Garside v Carroll [2019] NSWCATAP 4

Garside v Carroll [2019] NSWCATAP 4

The application for leave to appeal was refused due to substantial and inadequately explained delay and absence of substantial prospects of success. The fresh evidence was not admitted, as it was reasonably available at the time of the original hearing. The Tribunal’s findings regarding concession, owner-builder, and repudiation were open on the evidence. Costs order was correctly made under the rules applicable to claims over $30,000.

Parties
First Appellant: Christopher Garside; Second Appellant: Hang Thanh Thi Pham; Respondent: Damien Carroll
Jurisdiction
Australia
Judgment Date
02 January 2019
Procedural Posture
Appeal / Appeal Panel Decision
Outcome
Appeal dismissed
Legal Topics
Leave to Appeal, Substantial Delay, Fresh Evidence, Repudiation, Statutory Warranties, Costs
Practice and Procedure Evidence Contract Leave to Appeal Substantial Delay Fresh Evidence Repudiation Statutory Warranties +1 more

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Parties

Christopher Garside

First Appellant

Hang Thanh Thi Pham

Second Appellant

Damien Carroll

Respondent

Procedural Posture

Appeal / Appeal Panel Decision

Legal Issues

  1. 1 Whether leave to appeal should be granted given delay
  2. 2 Whether fresh evidence should be admitted
  3. 3 Whether Tribunal erred in findings of concession, owner-builder, and repudiation

Ratio Decidendi

The application for leave to appeal was refused due to substantial and inadequately explained delay and absence of substantial prospects of success. The fresh evidence was not admitted, as it was reasonably available at the time of the original hearing. The Tribunal’s findings regarding concession, owner-builder, and repudiation were open on the evidence. Costs order was correctly made under the rules applicable to claims over $30,000.

Court Disposition

Appeal dismissed

Orders

  • Leave is given to appellants to amend Notice of Appeal as per document filed 6 September 2018.
  • Application to adduce fresh evidence is refused.