Mohammed Nurul Gani v Raffaele Maiolo - [2013] HCASL 153

MOHAMMED NURUL GANI
v
RAFFAELE MAIOLO & ANOR
[2013] HCASL 153
S100/2013

The applicant was the lessee of premises owned by the respondents. The lease was entered into on 13 April 2010 for a term of five years and two days. The applicant fell into arrears and was locked out of the premises by the respondents on 3 August 2010 for failure to pay rent.
The applicant commenced proceedings in the Administrative Decisions Tribunal ("the Tribunal") before a judicial member (Mr Bluth). The Tribunal described the applicant's submissions as follows. First, the applicant argued that there had been an oral agreement to vary the commencement date of the lease. Secondly, the applicant argued that the respondents were liable for the cost of replacing an awning. Mr Bluth rejected these contentions, holding that the applicant was in breach of the lease on 3 August 2010 and that he had forfeited the bond money. The parties were ordered to pay their own costs of the proceedings.
The applicant appealed to the Appeal Panel of the Tribunal, raising the same two issues and a third, that the Tribunal had failed to address the applicant's claim that he was entitled to compensation for the value of certain goods which had not been returned to him after he was locked out of the premises. On 5 March 2012, the appeal was dismissed. With respect to the commencement date of the lease, the Appeal Panel found that the Tribunal's findings were entirely correct in law and consistent with the evidence. With respect to the cost of the awning and compensation for goods not returned, the Appeal Panel found the applicant did not discharge his onus of producing reliable evidence on the matter sufficient for a finding to be made in his favour.
On 27 November 2012, the Supreme Court of New South Wales (Hall J) granted the applicant an extension of time within which to appeal, but dismissed the appeal. An appeal was available only on a question of law. Hall J held that no question of law arose with respect to the findings on the commencement date and arrears, the return of goods, the forfeiture of the bond, or the cost of the awning. On 2 May 2013, the Court of Appeal (Meagher JA, Basten JA concurring) refused the applicant leave to appeal Hall J's decision.
The applicant seeks special leave to appeal to this Court. He claims that the Court of Appeal erred in calculating the value of his matter for the purposes of leave. This does not involve any question of principle. He does not otherwise identify any error by the Court of Appeal and has not raised any question of law or principle. The applicant does not enjoy sufficient prospects of success to warrant a grant of special leave to appeal. Special leave should be refused.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
4 September 2013 P.A. Keane

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.

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Details

Case: [2013] HCASL 153
Decision Date

CaseChat Overview and Summary

The case of Mohammed Nurul Gani versus Raffaele Maiolo and another involves a dispute between the lessee of premises, Mr Gani, and the respondents, the owners of the property. Mr Gani had leased the premises from the respondents for a term of five years and two days, but fell into arrears and was subsequently locked out by the respondents for non-payment of rent on 3 August 2010. The applicant commenced proceedings in the Administrative Decisions Tribunal, asserting that there had been an oral agreement to vary the commencement date of the lease and that the respondents were liable for the cost of replacing an awning. Mr Bluth, the judicial member of the Tribunal, rejected these claims and held that Mr Gani was in breach of the lease and had forfeited the bond money. The applicant appealed this decision, but the Appeal Panel found that the Tribunal's findings were correct in law and consistent with the evidence. The applicant then sought an extension of time to appeal to the Supreme Court of New South Wales, which was granted, but the appeal was dismissed. The Court of Appeal also refused the applicant leave to appeal, and the applicant now seeks special leave to appeal to this Court.

The legal issues in this case include whether the Court of Appeal erred in calculating the value of the applicant's matter for the purposes of leave, and whether the applicant has sufficient prospects of success to warrant a grant of special leave to appeal. The Court of Appeal found that no question of law or principle arose with respect to the findings on the commencement date and arrears, the return of goods, the forfeiture of the bond, or the cost of the awning. The applicant does not dispute this finding and has not raised any other error by the Court of Appeal.

The Court held that the applicant does not enjoy sufficient prospects of success to warrant a grant of special leave to appeal. The Court found that the Court of Appeal correctly assessed the value of the applicant's matter for the purposes of leave, and that no question of principle was involved. The applicant's claims do not involve any new or significant legal issues, and it is unlikely that the High Court would reach a different conclusion on the matter. The Court therefore dismissed the application for special leave to appeal.

The Court directs the Registrar to draw up, sign and seal an order dismissing the application. This means that the applicant's appeal to the High Court will not proceed, and the decisions of the lower courts will stand. The Court's decision is based on the assessment of the prospects of success of the applicant's appeal, and the finding that no new or significant legal issues are involved in the case. The Court's decision is final, and there is no further recourse for the applicant in this matter.

Orders