Matterson v Sunrise Pools Australia Pty Ltd [2017] NSWCATAP 211

Matterson v Sunrise Pools Australia Pty Ltd [2017] NSWCATAP 211

Leave to appeal based on significant new evidence was refused because the post-hearing dye testing and height investigations, although significant, were reasonably available before the Tribunal hearing notwithstanding that they would damage the spa. The Tribunal erred in law on the leakage claim because Mrs Matterson's evidence about ongoing leaks was significant to a central controversy and the reasons did not address or resolve it. The Appeal Panel could not determine the factual leakage dispute itself and remitted that claim for redetermination with an opportunity for further evidence. The height grounds failed because, although the Tribunal erred in suggesting that the datum point had...

Jurisdiction
Australia
Judgment Date
09 November 2017
Procedural Posture
Internal Appeal in a Home Building Contract Dispute / Appeal Panel Decision From Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 15 February 2017
Outcome
Leave to appeal refused; appeal allowed only in relation to the claim that the concrete structure of the spa leaks; that claim remitted for redetermination; all other claims dismissed.
Legal Topics
['residential Building Work' 'alleged Defects in Spa Construction' 'adequacy of Reasons' 'significant New Evidence' 'construction of Contract Datum Point' 'leave to Appeal' 'remittal for Redetermination']
['home Building' 'contract Law' 'civil Procedure' 'administrative Tribunal Appeals'] ['residential Building Work' 'alleged Defects in Spa Construction' 'adequacy of Reasons' 'significant New Evidence' 'construction of Contract Datum Point' 'leave to Appeal' 'remittal for Redetermination']

Case Brief

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Procedural Posture

Internal Appeal in a Home Building Contract Dispute / Appeal Panel Decision From Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 15 February 2017

Legal Issues

  1. 1 ['Whether leave to appeal should be granted on the basis of significant new evidence about alleged spa leakage and height.' 'Whether the Tribunal erred in law by failing to give adequate reasons for rejecting the claim that the spa leaked.' "Whether the Tribunal's finding that leakage was not established was against the weight of the evidence." 'Whether the Tribunal misconstrued the contract by finding that the datum point for the spa height was the top of the existing pool pavers.' "Whether leave should be granted to challenge the Tribunal's fact finding about the height of the spa."]

Ratio Decidendi

Leave to appeal based on significant new evidence was refused because the post-hearing dye testing and height investigations, although significant, were reasonably available before the Tribunal hearing notwithstanding that they would damage the spa. The Tribunal erred in law on the leakage claim because Mrs Matterson's evidence about ongoing leaks was significant to a central controversy and the reasons did not address or resolve it. The Appeal Panel could not determine the factual leakage dispute itself and remitted that claim for redetermination with an opportunity for further evidence. The height grounds failed because, although the Tribunal erred in suggesting that the datum point had...

Court Disposition

Leave to appeal refused; appeal allowed only in relation to the claim that the concrete structure of the spa leaks; that claim remitted for redetermination; all other claims dismissed.

Orders

  • ['Leave to appeal is refused.' 'The appeal is allowed in so far as it relates to the claim based upon an alleged defect that the concrete structure of the spa leaks.' 'Order 3 of the orders made by the Tribunal on 15 February 2017 be set aside.' 'The claim made by the Appellant based upon an alleged defect that the...