Manny v Nissen (No 2) - [2023] ACTCA 20

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Manny v Nissen (No 2)

Citation:

[2023] ACTCA 20

Hearing Date:

15 November 2022

Decision Date:

12 May 2023

Before:

Loukas-Karlsson, McWilliam and O’Sullivan JJ

Decision:

See [39]

Catchwords:

APPEAL – GENERAL PRINCIPLES – In General and Right of

Appeal – whether decision of primary judge final or interlocutory – whether extension of time to file application for leave should be

granted – whether to grant leave to appeal from interlocutory decision – whether primary decision attended with sufficient doubt to warrant reconsideration – leave to appeal refused

Legislation Cited:

ACT Civil and Administrative Tribunal Act 2008 (ACT) s 86
Court Procedures Rules 2006 (ACT) rr 5312, 5405
Residential Tenancies Act 1997 (ACT)

Cases Cited:

Arrow International Australia Ltd v Group Konstrukt Pty Ltd [2012]
ACTCA 37; 7 ACTLR 48

Bienstein v Bienstein [2003] HCA 7; 195 ALR 225

Capital Property Projects (ACT) Pty Ltd v Australian Capital

Territory Planning & Land Authority [2008] ACTCA 9; 2 ACTLR
44
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147
CLR 246

Charisteas v Charisteas [2021] HCA 29; 273 CLR 289

Coulter v The Queen (1988) 164 CLR 350
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR
397

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR
337

Ensham Resources Pty Limited v Aioi Insurance Company Ltd

[2012] FCAFC 191; 209 FCR 1

Grassby v The Queen (1989) 168 CLR 1
Isbester v Knox City Council [2015] HCA 20; 255 CLR 135
Johnson v Johnson [2000] HCA 48; 201 CLR 488

Manny v Nissen [2022] ACTSC 41 Preston v Dukes [2012] ACTCA 29 Re Luck [2003] HCA 70; 203 ALR 1

Parties:

Jeff Manny (Appellant)

Beata Nissen (Respondent)

Representation:

Counsel

Self-represented (Appellant)

R Patrick (Respondent)

Solicitors

Self-represented (Appellant)

Gil-Jones Barker (Respondent)

File Number:

ACTCA 9 of 2022

Decision under appeal:

Court/Tribunal:	ACT Supreme Court
Before:	Justice Mossop
Date of Decision:	11 March 2022
Case Title:	Manny v Nissen
Citation:	[2022] ACTSC 41

Court File Number(s): SCA 33 of 2021

THE COURT:

1․

On 11 March 2022, a Justice of this Court refused the appellant leave to appeal to the

Supreme Court from the dismissal of an appeal within the Australian Capital Territory

(ACT) Civil and Administrative Tribunal (Tribunal) made on 9 September 2021: see

Manny v Nissen [2022] ACTSC 41 (primary judgment)

2․

The appellant and his wife (Mrs Manny) had brought proceedings in the Tribunal against

a former landlord under the Residential Tenancies Act 1997 (ACT). They alleged they

had been unlawfully evicted and were entitled to compensation as a result of that action

and other alleged breaches, which may collectively be described as relating to the

premises in question being uninhabitable upon commencement of the lease, and a

breach of the lessor’s obligation to repair and maintain the premises.

3․

At first instance, save for a relatively minor matter,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Manny v Nissen (No 2)

Details

AGLC: Manny v Nissen (No 2) [2023] ACTCA 20
Case: [2023] ACTCA 20
Decision Date: 15 November 2022

CaseChat Overview and Summary

The appeal concerned a dispute between Manny and Nissen (No 2) before the Full Court of the Supreme Court of South Australia. The precise nature of the underlying dispute is not detailed in the provided text, but the case proceeded as an appeal.

The central legal issue before the Full Court was the application of general principles relating to the right of appeal. The court was required to consider the circumstances under which an appeal could be brought and the overarching principles that govern appellate review.

The court's reasoning and the legal principles applied are not elaborated upon in the provided text. However, the judgment was delivered by Loukas-Karlsson, McWilliam, and O’Sullivan JJ.

The final orders or outcome of the appeal are indicated to be found at paragraph [39] of the full judgment.

Orders

Orders of the court

See [39]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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