Anthea Hammon v Asko Appliances (AUST.) PTY. Ltd - [2025] NSWSC 766

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Anthea Hammon v ASKO APPLIANCES (AUST.) PTY. LTD. [2025] NSWSC 766
Hearing dates: 9 July 2025
Date of orders: 17 July 2025
Decision date: 17 July 2025
Jurisdiction: Common Law
Before: Hamill J (as Duty Judge)
Decision:
(1) The plaintiffs are granted leave to rely on the report of Marty Denham dated 30 June 2025 (“the report”) subject to the following conditions:
(i) The plaintiffs may not rely on the facts and opinions in part 10 of the report.
(ii) The plaintiffs are to make an election to avoid relying on multiple experts on the same issue, and are not permitted to rely on the evidence of both Marty Denham and John Gardner to respond to the opinions of Colin Grantham stated in his report of 5 October 2023 at paragraphs [45], [46] and [47].
(iii) For the sake of clarity, if the plaintiffs elect to rely on the opinions of Marty Denham, the plaintiffs are not to rely on the opinions expressed by John Gardner in his report of 6 May 2025 on the same issue, that is the opinions stated in paragraphs [72]-[76] and [130].
(iv) Conditions (i)-(iii) do not prohibit the plaintiffs from relying on the evidence and opinions of John Gardner more generally.
(2) Subject to the contents of paragraph [42] of this judgment, the plaintiffs are to pay the defendant’s costs of and incidental to the notice of motion.
(3) Confirm the matter is listed before Chen J for status review on 25 July 2025.
(4) Subject to any contrary order that may be made by Chen J at the status review on 25 July 2025, Marty Denham may participate in the expert conclave foreshadowed in orders 6, 7, 8 and 9 of the case management directions made by Chen J on 15 November 2024.
(5) The Court is to be advised of any application to be made at the status review before Chen J on or before 22 July 2025.
(6) Any notice of motion and evidence in support of such application is to be filed and served on or before 23 July 2025.
(7) Written submissions in support of, or opposing, such an application are to be filed and served on or before 24 July 2025.

Catchwords:
CIVIL LAW – plaintiffs seek leave to rely on expert evidence in reply – where both parties failed to comply with case management orders – where plaintiffs’ delinquency in obtaining report most egregious – whether evidence properly categorised as evidence in reply – contest between experts relating to cause of house fire – whether fire caused by electrical fault in appliance or lightning strike – case management – whether plaintiffs bound to retain original expert to provide evidence in reply – multiplicity of experts – fairness to defendant – imminence of hearing date and expert conclave – where part of expert report raises new issues – where part of report responsive to defendant’s expert’s opinion –…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 766
Decision Date: 17 July 2025

CaseChat Overview and Summary

Anthea Hammon, a homeowner, commenced proceedings against Asko Appliances (Aust) Pty Ltd, alleging that a fire that damaged her property was caused by a fault in one of their appliances. The defendant disputed this claim, contending that the fire was instead caused by a lightning strike. Both parties engaged experts who provided conflicting reports on the cause of the fire. The plaintiffs initially sought to rely on evidence from an expert different from the one originally retained, arguing that the original expert had provided an incomplete report. The defendant opposed this application, contending that the plaintiffs' failure to comply with case management orders and the introduction of a new expert so close to the trial date would be unfair and unjust.

The court had to determine whether the plaintiffs were entitled to rely on evidence from a new expert, despite the failure to comply with case management orders, and whether the new evidence could be categorised as evidence in reply. The court also had to consider whether the introduction of a new expert so close to the trial date would be fair to the defendant and whether it would result in a multiplicity of experts on the same issue. The court was required to balance the need for a fair trial against the potential prejudice to the defendant in allowing the new evidence.

The court found that the plaintiffs' delinquency in obtaining the report from the original expert was egregious and that the plaintiffs were not entitled to rely on the new expert's report. However, the court also found that the part of the report that raised new issues should be excluded, while the part that responded to the defendant's expert's opinion should be allowed. The court granted conditional leave to the plaintiffs to rely on the new expert's report, putting them to the election as to the expert upon which they relied. The court emphasised the importance of compliance with case management orders and the need to avoid a multiplicity of experts on the same issue.

The court ordered that the plaintiffs were granted conditional leave to rely on the new expert's report, but only to the extent that it responded to the defendant's expert's opinion. The plaintiffs were put to the election as to the expert upon which they relied, and the part of the report that raised new issues was excluded. The court emphasised the importance of compliance with case management orders and the need to avoid a multiplicity of experts on the same issue. The case serves as a reminder of the importance of adhering to case management orders and the potential consequences of failing to do so.

Orders