Noel v Intelpools Pty Ltd [2021] NSWCATAP 199

Noel v Intelpools Pty Ltd [2021] NSWCATAP 199

The Appeal Panel held that the Tribunal made an error of law by asking when the alleged damage was discoverable or ascertainable with reasonable diligence, rather than considering whether the alleged latent defect in the pool installation, as distinct from consequential damage, could have been discovered with reasonable diligence in October 2015. Because the correct legal test was not applied to the limitation question under s 79L, the appeal was allowed and the proceedings remitted for rehearing by a differently constituted Tribunal.

Jurisdiction
Australia
Judgment Date
30 June 2021
Procedural Posture
Internal Appeal From Consumer and Commercial Division Decision on a Consumer Claim / Appeal Panel Decision
Outcome
Appeal allowed; orders below set aside; proceedings remitted to the Consumer and Commercial Division differently constituted for determination according to law.
Legal Topics
['consumer Guarantees' 'supply of Services' 'accrual of Cause of Action' 'latent Defects' 'tribunal Jurisdiction' 'fresh Evidence on Internal Appeal']
['consumer Law' 'civil Procedure' 'limitation Periods' 'building and Construction'] ['consumer Guarantees' 'supply of Services' 'accrual of Cause of Action' 'latent Defects' 'tribunal Jurisdiction' 'fresh Evidence on Internal Appeal']

Case Brief

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Procedural Posture

Internal Appeal From Consumer and Commercial Division Decision on a Consumer Claim / Appeal Panel Decision

Legal Issues

  1. 1 ["Whether the appellant's consumer claim was instituted within three years of the cause of action first accruing under s 79L of the Fair Trading Act 1987 (NSW)." 'Whether the Tribunal erred in treating the cause of action as accruing when the alleged damage was first discoverable or ascertainable with reasonable diligence.' 'Whether, for a claim under s 267(4) of the Australian Consumer Law arising from supply of services, the alleged latent defect in the pool installation was reasonably discoverable in October 2015.' 'Whether fresh evidence concerning the alleged 2018 pool failure should be admitted on the internal appeal.']

Ratio Decidendi

The Appeal Panel held that the Tribunal made an error of law by asking when the alleged damage was discoverable or ascertainable with reasonable diligence, rather than considering whether the alleged latent defect in the pool installation, as distinct from consequential damage, could have been discovered with reasonable diligence in October 2015. Because the correct legal test was not applied to the limitation question under s 79L, the appeal was allowed and the proceedings remitted for rehearing by a differently constituted Tribunal.

Court Disposition

Appeal allowed; orders below set aside; proceedings remitted to the Consumer and Commercial Division differently constituted for determination according to law.

Orders

  • ['Appeal allowed.' 'Orders 1 to 4 made in proceedings GEN 20/03844 on 1 March 2021 are set aside.' 'The proceedings are remitted to the Consumer and Commercial Division of the Tribunal, differently constituted, for determination according to law.']