Sierra v Underwater Australasia Pty Limited [2024] NSWCATAP 131

Sierra v Underwater Australasia Pty Limited [2024] NSWCATAP 131

Time was extended because the appeal was only 6 days late, the appellant was overseas, and no obvious prejudice to the respondent was identified. Leave to rely on new evidence was refused because the appellant did not establish that it was not reasonably available at the original hearing. The appellant was not...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
08 July 2024
Procedural Posture
Appeal Concerning a Consumer Claim Under Ss 54 and 55 of the Australian Consumer Law (nsw) About a Yamaha Jet Seascooter Pro / Appeal Panel Consideration of an Out of Time Appeal and Application for Leave to Appeal From Dismissal of the Claim in the Consumer and Commercial Division
Outcome
Leave to appeal is refused and the appeal is dismissed.
Legal Topics
['acceptable Quality' 'fitness for Purpose' 'durability' 'procedural Fairness' 'leave to Appeal' 'new Evidence on Appeal' 'standard of Proof' 'extension of Time']
['consumer Law' 'civil Procedure' 'administrative Law'] ['acceptable Quality' 'fitness for Purpose' 'durability' 'procedural Fairness' 'leave to Appeal' 'new Evidence on Appeal' 'standard of Proof' 'extension of Time']

Source-derived case record

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Procedural Posture

Appeal Concerning a Consumer Claim Under Ss 54 and 55 of the Australian Consumer Law (nsw) About a Yamaha Jet Seascooter Pro / Appeal Panel Consideration of an Out of Time Appeal and Application for Leave to Appeal From Dismissal of the Claim in the Consumer and Commercial Division

Legal Issues

  1. 1 ['Whether time should be extended for the out-of-time appeal.' 'Whether the appellant should be permitted to rely on new evidence from Aqua Toys and new photographs.' "Whether the appellant was denied procedural fairness because the respondent's bundle was provided at the hearing at first instance." 'Whether the Tribunal applied the wrong standard of proof by referring to proof beyond reasonable doubt.' 'Whether the appellant established that the watercraft failed to comply with the guarantees of acceptable quality or fitness for purpose under ss 54 and 55 of the Australian Consumer Law (NSW).' 'Whether leave to appeal should be granted on the basis of a substantial miscarriage of justice.']

Ratio Decidendi

Time was extended because the appeal was only 6 days late, the appellant was overseas, and no obvious prejudice to the respondent was identified. Leave to rely on new evidence was refused because the appellant did not establish that it was not reasonably available at the original hearing. The appellant was not denied procedural fairness because she accepted at the appeal that, after receiving the respondent's bundle, she agreed to proceed and no evidence showed that the hearing miscarried or that an adjournment was sought and refused. The reference to proof beyond reasonable doubt was treated as a textual error because the reasons as a whole showed that the Tribunal applied the balance of...

Court Disposition

Leave to appeal is refused and the appeal is dismissed.

Orders

  • ['Leave to appeal is refused and the appeal is dismissed.']