Steele Associates Pty Ltd v Downie [2020] NSWCATAP 289

Steele Associates Pty Ltd v Downie [2020] NSWCATAP 289

The Appeal Panel held that the refusal to admit the email was not an error of law and did not cause a miscarriage of justice because it was produced during cross-examination after directions for documents, its late admission would have caused identified prejudice, and the email did not show a significant possibility...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
04 February 2020
Procedural Posture
Internal Appeal in a Home Building Defects Claim / Appeal Panel Decision on Leave to Appeal and Appeal
Outcome
Leave to appeal refused; appeal dismissed; costs to be determined on the papers after submissions.
Legal Topics
['leave to Appeal' 'section 18 F Defence' 'admission of Evidence' 'weight of Evidence' 'expert Evidence' 'water Ingress' 'costs']
['home Building' 'civil and Administrative Tribunal Procedure'] ['leave to Appeal' 'section 18 F Defence' 'admission of Evidence' 'weight of Evidence' 'expert Evidence' 'water Ingress' 'costs']

Source-derived case record

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Procedural Posture

Internal Appeal in a Home Building Defects Claim / Appeal Panel Decision on Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether the Tribunal erred in law by refusing to admit an email marked MFI1 said to support a defence under s 18F of the Home Building Act 1989.' "Whether leave to appeal should be granted because the Tribunal's acceptance of moisture readings and evidence of water ingress was against the weight of evidence or not fair and equitable." 'Whether leave to appeal should be granted because the Tribunal wrongly found a lack of damp course and flashings or otherwise made findings against the weight of evidence.' 'Whether additional submissions and documents filed after the appeal hearing should be allowed.']

Ratio Decidendi

The Appeal Panel held that the refusal to admit the email was not an error of law and did not cause a miscarriage of justice because it was produced during cross-examination after directions for documents, its late admission would have caused identified prejudice, and the email did not show a significant possibility of an alternative outcome under s 18F. The findings on moisture and water ingress were not against the weight of evidence because the Tribunal considered the expert and lay evidence, including direct observations of water entering the property. The challenge concerning damp course and flashings failed because the Tribunal's finding concerned failure in the method of...

Court Disposition

Leave to appeal refused; appeal dismissed; costs to be determined on the papers after submissions.

Orders

  • ['Leave to appeal is refused.' 'The appeal is dismissed.' 'The respondent is to provide to the Appeal Panel and the appellant, either in person or by post, any submissions and documents in relation to any application for costs by 12 February 2021.' 'The appellant is to provide to the Appeal Panel and the costs...