Mansion Building Pty Ltd v Warren [2019] NSWCATAP 141

Mansion Building Pty Ltd v Warren [2019] NSWCATAP 141

Although there was a fairly open chance that, if an adjournment had been granted and the appellant's expert evidence heard, the damages award might have been lower, the Tribunal's refusal to adjourn was a practice and procedure decision not shown to involve a reasonably clear injustice or a plain and readily apparent error, particularly because the appellant had not complied with directions, had not sought an urgent adjournment before the hearing, provided no evidence explaining the expert's unavailability, and the respondents faced urgent potential enforcement action by NAB. Refusing to admit the expert report was not shown to justify leave because the expert was unavailable for...

Jurisdiction
Australia
Judgment Date
06 June 2019
Procedural Posture
Internal Appeal in Residential Building Proceedings / Appeal Panel Application for Extension of Time and Leave to Appeal From Interlocutory and Final Orders
Outcome
Time to appeal from the interlocutory orders dated 7 November 2018 granted; leave to appeal refused; appeal dismissed.
Legal Topics
['leave to Appeal' 'substantial Miscarriage of Justice' 'adjournment' 'expert Evidence' 'procedural Fairness' 'money Order and Work Order']
['civil Procedure' 'residential Building' 'consumer and Commercial Law'] ['leave to Appeal' 'substantial Miscarriage of Justice' 'adjournment' 'expert Evidence' 'procedural Fairness' 'money Order and Work Order']

Case Brief

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Procedural Posture

Internal Appeal in Residential Building Proceedings / Appeal Panel Application for Extension of Time and Leave to Appeal From Interlocutory and Final Orders

Legal Issues

  1. 1 ['Whether time should be extended to appeal from the interlocutory orders made on 7 November 2018.' "Whether leave should be granted to appeal on grounds that the Tribunal's decision was not fair and equitable and may have caused a substantial miscarriage of justice." "Whether the Tribunal erred by proceeding with the hearing and refusing an adjournment when the appellant's expert was unavailable." "Whether the Tribunal erred by refusing to admit the appellant's expert report where the expert was not available for examination and cross-examination." 'Whether the Tribunal erred by making a money order rather than a work order.']

Ratio Decidendi

Although there was a fairly open chance that, if an adjournment had been granted and the appellant's expert evidence heard, the damages award might have been lower, the Tribunal's refusal to adjourn was a practice and procedure decision not shown to involve a reasonably clear injustice or a plain and readily apparent error, particularly because the appellant had not complied with directions, had not sought an urgent adjournment before the hearing, provided no evidence explaining the expert's unavailability, and the respondents faced urgent potential enforcement action by NAB. Refusing to admit the expert report was not shown to justify leave because the expert was unavailable for...

Court Disposition

Time to appeal from the interlocutory orders dated 7 November 2018 granted; leave to appeal refused; appeal dismissed.

Orders

  • ['Leave granted to the appellant to lodge with the Tribunal an Amended Notice of Appeal containing a new Annexure A (which sets out the grounds of appeal) in the form set out in Tab 2 of Exhibit 1 on the appeal.' 'Time to appeal from the interlocutory orders dated 7 November 2018 granted.' 'Leave to appeal refused.'...