ACS Equip Pty Ltd v Richards [2021] NSWCATAP 253

ACS Equip Pty Ltd v Richards [2021] NSWCATAP 253

The appeal was dismissed because the Tribunal was entitled to accept the independent expert evidence of Mr Gricks that the bore's design flaw and the lack of benefit from rehabilitation should have been apparent from the first inspection, and to reject the contention that those matters were only discoverable after the works. On those findings, ACS knew or should have known before undertaking the works that they might not reasonably be expected to achieve the Richards' known desired result of the bore operating at full capacity, yet gave no warning. The Tribunal did not apply the wrong test under s61(2) or s60 of the Australian Consumer Law, did not make an unsupported finding that Mr...

Jurisdiction
Australia
Judgment Date
30 August 2021
Procedural Posture
Appeal in a Consumer Claim Concerning Services for Redevelopment of a Water Bore / Appeal Panel Appeal From the Consumer and Commercial Division Decision Dated 14 March 2021
Outcome
Appeal dismissed
Legal Topics
['australian Consumer Law Guarantees as to Due Care and Skill' 'australian Consumer Law Guarantees as to Fitness for a Particular Purpose or Result' 'expert Evidence' 'no Evidence Ground' 'procedural Fairness' 'failure to Warn of Risk That Services Might Not Achieve Intended Result']
['consumer Law' 'civil and Administrative Tribunal Appeals' 'evidence'] ['australian Consumer Law Guarantees as to Due Care and Skill' 'australian Consumer Law Guarantees as to Fitness for a Particular Purpose or Result' 'expert Evidence' 'no Evidence Ground' 'procedural Fairness' 'failure to Warn of Risk That Services Might Not Achieve Intended Result']

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Procedural Posture

Appeal in a Consumer Claim Concerning Services for Redevelopment of a Water Bore / Appeal Panel Appeal From the Consumer and Commercial Division Decision Dated 14 March 2021

Legal Issues

  1. 1 ['Whether the Tribunal erred in finding that ACS should have warned the Richards that the bore redevelopment works might not reasonably be expected to return the bore to operating at full capacity.' 'Whether the Tribunal erred in preferring the independent expert opinion of Mr Gricks to the opinion of Mr Woods.' 'Whether the Tribunal made a credibility finding that Mr Woods was untruthful without evidence or procedural fairness.' 'Whether the Tribunal applied the wrong test under s61(2) of the Australian Consumer Law.' 'Whether the Tribunal erred in finding a breach of s60 of the Australian Consumer Law.' 'Whether leave to appeal grounds alleging illogical reasoning, irrelevant considerations, inadequate reasons or no evidence had merit.']

Ratio Decidendi

The appeal was dismissed because the Tribunal was entitled to accept the independent expert evidence of Mr Gricks that the bore's design flaw and the lack of benefit from rehabilitation should have been apparent from the first inspection, and to reject the contention that those matters were only discoverable after the works. On those findings, ACS knew or should have known before undertaking the works that they might not reasonably be expected to achieve the Richards' known desired result of the bore operating at full capacity, yet gave no warning. The Tribunal did not apply the wrong test under s61(2) or s60 of the Australian Consumer Law, did not make an unsupported finding that Mr...

Court Disposition

Appeal dismissed

Orders

  • ['Appeal dismissed']