Mulvenna v Tuan Golden Pty Ltd [2023] NSWCATAP 108

Mulvenna v Tuan Golden Pty Ltd [2023] NSWCATAP 108

The applicants failed to objectively prove that the new evidence (from ARL and additional Airbnb quotes) was not reasonably available before the first instance hearing, as similar evidence was obtained previously within short timeframes. Therefore, the statutory test for admission of fresh evidence on appeal was not met, and leave to appeal was refused.

Jurisdiction
Australia
Judgment Date
17 April 2023
Procedural Posture
Appeal / Application for Reinstatement and Application for Leave to Appeal
Outcome
Application to reinstate appeal granted; application for leave to appeal refused.
Legal Topics
['appeal Panel Jurisdiction' 'leave to Appeal' 'new Evidence' 'home Building Act Warranties' 'damages for Alternative Accommodation']
['administrative Law'] ['appeal Panel Jurisdiction' 'leave to Appeal' 'new Evidence' 'home Building Act Warranties' 'damages for Alternative Accommodation']

Case Brief

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Procedural Posture

Appeal / Application for Reinstatement and Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether new evidence tendered was not reasonably available at first instance and meets the statutory test for fresh evidence on appeal' 'Whether leave to appeal should be granted based on alleged new evidence unavailable before the Tribunal']

Ratio Decidendi

The applicants failed to objectively prove that the new evidence (from ARL and additional Airbnb quotes) was not reasonably available before the first instance hearing, as similar evidence was obtained previously within short timeframes. Therefore, the statutory test for admission of fresh evidence on appeal was not met, and leave to appeal was refused.

Court Disposition

Application to reinstate appeal granted; application for leave to appeal refused.

Orders

  • ['The application to reinstate the appeal is granted.' 'The application for leave to appeal is refused.']