Hayek v DockPro Pty Ltd [2018] NSWCATAP 290

Hayek v DockPro Pty Ltd [2018] NSWCATAP 290

Leave was granted and the appeal upheld because the first instance preference for the respondent's version was against the weight of the evidence. The appellant's consistent evidence and emails were corroborative of his case that the respondent's representative represented that approvals were unnecessary or that compliance would be ensured, while the respondent failed to call or obtain evidence from Mr Jenkin, the only person who dealt directly with the appellant on the critical conversations. On the evidence, a contractual term was incorporated that the installation would comply with all relevant statutory requirements, which did not occur, amounting to breach of a fundamental provision...

Jurisdiction
Australia
Judgment Date
30 November 2018
Procedural Posture
Internal Appeal From a Consumer and Commercial Division Decision Dismissing a Claim for Refund of Monies Paid Under a Contract for Supply and Installation of a Sea Pen and Associated Floating Bricks / Leave to Appeal and Appeal Determined by the NCAT Appeal Panel
Outcome
Leave to appeal granted; appeal upheld; respondent ordered to pay the appellant $24,000 within 21 days; parties' agreement about no claims concerning possession or removal of the sea pen noted.
Legal Topics
['internal Appeal' 'leave to Appeal' 'decision Against the Weight of Evidence' 'contractual Terms' 'pre Contractual Representations' 'estoppel' 'statutory Approvals' 'failure to Call Evidence' 'refund of Purchase Price']
['contract Law' 'consumer and Commercial Law' 'civil Procedure' 'evidence'] ['internal Appeal' 'leave to Appeal' 'decision Against the Weight of Evidence' 'contractual Terms' 'pre Contractual Representations' 'estoppel' 'statutory Approvals' 'failure to Call Evidence' 'refund of Purchase Price']

Case Brief

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Procedural Posture

Internal Appeal From a Consumer and Commercial Division Decision Dismissing a Claim for Refund of Monies Paid Under a Contract for Supply and Installation of a Sea Pen and Associated Floating Bricks / Leave to Appeal and Appeal Determined by the NCAT Appeal Panel

Legal Issues

  1. 1 ['Whether leave to appeal should be granted on the ground that the decision under appeal was against the weight of the evidence and may have caused a substantial miscarriage of justice.' "Whether the appellant's evidence about representations by the respondent's representative concerning approvals for the sea pen should have been preferred to the respondent's documents and business records." 'Whether the contract included a term that the installation would comply with all relevant statutory requirements, or whether the respondent was estopped from relying on its disclaimer.' 'Whether the appellant was entitled to a refund of the purchase monies.']

Ratio Decidendi

Leave was granted and the appeal upheld because the first instance preference for the respondent's version was against the weight of the evidence. The appellant's consistent evidence and emails were corroborative of his case that the respondent's representative represented that approvals were unnecessary or that compliance would be ensured, while the respondent failed to call or obtain evidence from Mr Jenkin, the only person who dealt directly with the appellant on the critical conversations. On the evidence, a contractual term was incorporated that the installation would comply with all relevant statutory requirements, which did not occur, amounting to breach of a fundamental provision...

Court Disposition

Leave to appeal granted; appeal upheld; respondent ordered to pay the appellant $24,000 within 21 days; parties' agreement about no claims concerning possession or removal of the sea pen noted.

Orders

  • ['leave to appeal is granted' "the appellant's appeal is upheld" 'the respondent is to pay the appellant the sum of $24,000 within 21 days of this date' 'the Tribunal notes the agreement reached between the parties that the respondent will not make any claim against the appellant for recovery of possession of the...