Marcus v Carroll [2022] NSWCATAP 141

Marcus v Carroll [2022] NSWCATAP 141

The Tribunal made appellable error in relation to the misleading and deceptive conduct and misleading representation claims because its conclusion that there was no cogent evidence that the new flooring was not close to the existing flooring in appearance was not reasonably open in light of important photographic evidence showing a stark colour mismatch, and the Tribunal failed to address material photographic evidence relevant to the respondent's explanation that the new timber would darken over time. That central error warranted leave and a redetermination of the s 18 and s 29 Australian Consumer Law (NSW) claims. No appellable error was established in relation to the contract claim,...

Jurisdiction
Australia
Judgment Date
04 May 2022
Procedural Posture
Internal Appeal From Dismissal of Consumer Claim in the Consumer and Commercial Division / Appeal Panel Decision
Outcome
Leave to appeal granted; appeal allowed in part for the claims under s 18 and s 29 of the Australian Consumer Law (NSW); otherwise dismissed; relevant parts of the Tribunal's dismissal order set aside and remitted for redetermination by a differently constituted Tribunal.
Legal Topics
['supply and Installation of Timber Flooring' 'misleading and Deceptive Conduct' 'misleading Representation' 'breach of Contract' 'leave to Appeal' 'photographic Evidence' 'procedural Fairness' 'fresh Evidence']
['consumer Law' 'contract Law' 'civil Procedure and Appeals'] ['supply and Installation of Timber Flooring' 'misleading and Deceptive Conduct' 'misleading Representation' 'breach of Contract' 'leave to Appeal' 'photographic Evidence' 'procedural Fairness' 'fresh Evidence']

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Procedural Posture

Internal Appeal From Dismissal of Consumer Claim in the Consumer and Commercial Division / Appeal Panel Decision

Legal Issues

  1. 1 ["Whether the Tribunal made appellable error in rejecting the appellant's claim for misleading and deceptive conduct and misrepresentation concerning the colour match between existing and new timber flooring." 'Whether leave to appeal should be granted because the decision was not fair and equitable or was against the weight of evidence regarding photographic evidence of the flooring colour mismatch.' 'Whether the Tribunal made appellable error in rejecting the breach of contract claim concerning the term that coating match the existing flooring as best as possible.' 'Whether procedural fairness grounds were established on appeal.' 'Whether the appellant established that fresh evidence was significant new evidence not reasonably available at the time of the hearing.']

Ratio Decidendi

The Tribunal made appellable error in relation to the misleading and deceptive conduct and misleading representation claims because its conclusion that there was no cogent evidence that the new flooring was not close to the existing flooring in appearance was not reasonably open in light of important photographic evidence showing a stark colour mismatch, and the Tribunal failed to address material photographic evidence relevant to the respondent's explanation that the new timber would darken over time. That central error warranted leave and a redetermination of the s 18 and s 29 Australian Consumer Law (NSW) claims. No appellable error was established in relation to the contract claim,...

Court Disposition

Leave to appeal granted; appeal allowed in part for the claims under s 18 and s 29 of the Australian Consumer Law (NSW); otherwise dismissed; relevant parts of the Tribunal's dismissal order set aside and remitted for redetermination by a differently constituted Tribunal.

Orders

  • ['Leave to appeal granted.' "Appeal allowed, but only in so far as it concerned the appellant's claim for misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law (NSW) and the appellant's claim for misrepresentation in contravention of s 29 of that law." 'Otherwise, the appeal is...