Gigg v Rodney Rodney Alan Wilks atf the Wilks Family Trust [2018] NSWCATAP 278

Gigg v Rodney Rodney Alan Wilks atf the Wilks Family Trust [2018] NSWCATAP 278

The Appeal Panel found no error of law affecting the outcome. Even if non-installation of a significant part of the sub-surface irrigation system were a major failure, any rejection period for a refund had passed before the refund claim was raised, and compensation based on the cost of installing the missing component was the appropriate relief. The primary member's factual conclusions were consistent with the evidence, the appellants' new material was reasonably available for the primary hearing or would not have changed the result, and no substantial miscarriage of justice or special circumstances for costs was established.

Jurisdiction
Australia
Judgment Date
26 November 2018
Procedural Posture
Consumer Claim Appeal Concerning Supply, Installation and Maintenance of a Waste Water Treatment System / Internal Appeal to the Appeal Panel From a Consumer Claims Division Decision; Leave to Appeal Considered
Outcome
Leave to appeal refused; appeal dismissed.
Legal Topics
['consumer Guarantees' 'waste Water Treatment System' 'defective Supply and Installation' 'leave to Appeal' 'questions of Law' 'substantial Miscarriage of Justice' 'significant New Evidence' 'costs']
['consumer Law' 'tribunal Procedure' 'civil Appeals'] ['consumer Guarantees' 'waste Water Treatment System' 'defective Supply and Installation' 'leave to Appeal' 'questions of Law' 'substantial Miscarriage of Justice' 'significant New Evidence' 'costs']

Case Brief

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Procedural Posture

Consumer Claim Appeal Concerning Supply, Installation and Maintenance of a Waste Water Treatment System / Internal Appeal to the Appeal Panel From a Consumer Claims Division Decision; Leave to Appeal Considered

Legal Issues

  1. 1 ["Whether the primary member made an error of law in refusing the appellants' remaining claims, including a claimed refund for the uninstalled part of the sub-surface irrigation system." 'Whether leave to appeal should be granted on factual grounds under cl 12 of Schedule 4 to the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether new material relied on by the appellants was significant new evidence that was not reasonably available at the primary hearing.' 'Whether the primary decision was not fair and equitable or was against the weight of evidence in relation to service fees, alleged pump defects, warranty, spare filter, replacement parts and sundry expenses.' 'Whether there were special circumstances justifying costs of the appeal.']

Ratio Decidendi

The Appeal Panel found no error of law affecting the outcome. Even if non-installation of a significant part of the sub-surface irrigation system were a major failure, any rejection period for a refund had passed before the refund claim was raised, and compensation based on the cost of installing the missing component was the appropriate relief. The primary member's factual conclusions were consistent with the evidence, the appellants' new material was reasonably available for the primary hearing or would not have changed the result, and no substantial miscarriage of justice or special circumstances for costs was established.

Court Disposition

Leave to appeal refused; appeal dismissed.

Orders

  • ['Leave to Appeal is refused.' 'The Appeal is dismissed.']