Flat Glass Industries Ltd v MCS Builders Pty Ltd [2015] NSWCATAP 148

Flat Glass Industries Ltd v MCS Builders Pty Ltd [2015] NSWCATAP 148

The Tribunal's finding that the glass unit failure was a manufacturing flaw was based principally on Dr Jacob's email, which did not comply with the expert witness procedural direction, set out no reasoning process or assumptions, and amounted to a bare assertion with no probative value as expert evidence. Reliance on that material to found liability for $40,000 was a significant error, either an error of law because there was no evidence capable of supporting the finding, or a basis for concluding that FGI may have suffered a substantial miscarriage of justice because the decision was not fair and equitable. The proper course was to allow the appeal, set aside the first instance orders,...

Jurisdiction
Australia
Judgment Date
22 July 2015
Procedural Posture
Appeal From Decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal / Appeal Allowed and Matter Remitted for Rehearing
Outcome
Appeal allowed; orders made at first instance set aside; matter remitted to the Consumer and Commercial Division; appellant ordered to pay respondent's costs of the appeal thrown away by the amended notice of appeal as agreed or assessed.
Legal Topics
['appeal From Tribunal Decision' 'expert Evidence' 'probative Value' 'no Evidence Ground' 'substantial Miscarriage of Justice' 'fair and Equitable Decision' 'costs Thrown Away by Amendment' 'residential Building Work']
['civil Procedure' 'administrative Law' 'consumer and Commercial' 'building and Construction' 'evidence' 'costs'] ['appeal From Tribunal Decision' 'expert Evidence' 'probative Value' 'no Evidence Ground' 'substantial Miscarriage of Justice' 'fair and Equitable Decision' 'costs Thrown Away by Amendment' 'residential Building Work']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal From Decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal / Appeal Allowed and Matter Remitted for Rehearing

Legal Issues

  1. 1 ['Whether the appeal was filed within time.' 'Whether the Tribunal erred by relying on an email from Dr Leon Jacob as expert evidence to find that the glass unit failure was a manufacturing flaw.' "Whether there was evidence capable of supporting the Tribunal's finding of liability against FGI." "Whether the Tribunal's decision was not fair and equitable or was against the weight of evidence so as to warrant leave to appeal." 'Whether FGI should be permitted to rely on new evidence on appeal.' 'Whether special circumstances warranted a costs order for costs thrown away by the amended notice of appeal.']

Ratio Decidendi

The Tribunal's finding that the glass unit failure was a manufacturing flaw was based principally on Dr Jacob's email, which did not comply with the expert witness procedural direction, set out no reasoning process or assumptions, and amounted to a bare assertion with no probative value as expert evidence. Reliance on that material to found liability for $40,000 was a significant error, either an error of law because there was no evidence capable of supporting the finding, or a basis for concluding that FGI may have suffered a substantial miscarriage of justice because the decision was not fair and equitable. The proper course was to allow the appeal, set aside the first instance orders,...

Court Disposition

Appeal allowed; orders made at first instance set aside; matter remitted to the Consumer and Commercial Division; appellant ordered to pay respondent's costs of the appeal thrown away by the amended notice of appeal as agreed or assessed.

Orders

  • ['The appeal is allowed, and the orders made at first instance on 10 October 2014 as amended on 2 December are set aside.' 'Remit the matter to the Consumer and Commercial Division of the Civil and Administrative Tribunal, to be determined in accordance with these reasons and otherwise according to law.' "The...