Cohen v Gigliotti [2023] NSWCATAP 197

Cohen v Gigliotti [2023] NSWCATAP 197

The application for extension of time was refused because the delay was not satisfactorily explained and the appeal had no merit. Leave to renew proceedings was properly refused as the appellant had consented to clear and unambiguous orders and subsequently unilaterally changed his mind regarding the agreed replacement. The evidence did not establish, on the balance of probabilities, that the supplier was responsible for the tree's death due to a defect present on delivery.

Parties
Appellant: Adrian John Cohen; First Respondent: Anthony Gigliotti; Second Respondent: Designer Trees Pty Ltd
Jurisdiction
Australia
Judgment Date
19 July 2023
Procedural Posture
Consumer Claim Appeal / Application for Extension of Time and Leave to Appeal, Dismissed at Appeal Panel
Outcome
appeal dismissed; application for extension of time refused
Legal Topics
Appeals, Consumer Guarantees, Contracts for Goods, Extension of Time, Leave to Appeal, Fit for Purpose, Acceptable Quality, Renewal of Proceedings
Consumer Law Appeals Consumer Guarantees Contracts for Goods Extension of Time Leave to Appeal Fit for Purpose Acceptable Quality +1 more

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Parties

Adrian John Cohen

Appellant

Anthony Gigliotti

First Respondent

Designer Trees Pty Ltd

Second Respondent

Procedural Posture

Consumer Claim Appeal / Application for Extension of Time and Leave to Appeal, Dismissed at Appeal Panel

Legal Issues

  1. 1 Whether the Tribunal erred in refusing extension of time to appeal
  2. 2 Whether leave to renew proceedings should be granted
  3. 3 Whether the supplied tree failed to comply with consumer guarantees under Australian Consumer Law (NSW)

Ratio Decidendi

The application for extension of time was refused because the delay was not satisfactorily explained and the appeal had no merit. Leave to renew proceedings was properly refused as the appellant had consented to clear and unambiguous orders and subsequently unilaterally changed his mind regarding the agreed replacement. The evidence did not establish, on the balance of probabilities, that the supplier was responsible for the tree's death due to a defect present on delivery.

Court Disposition

appeal dismissed; application for extension of time refused

Orders

  • The application for an extension of time in which to lodge the appeal is refused.
  • The appeal is dismissed.