Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 328 Hearing dates: 3 November 2021 Date of orders: 17 December 2021 Decision date: 17 December 2021 Before: Macfarlan JA at [1]
Gleeson JA at [2]
Brereton JA at [104]Decision: (1) Appeal dismissed.
(2) Appellant to pay the respondents’ costs.
Catchwords: EVIDENCE – admissibility – hearsay – business records exception, s 69 Evidence Act 1995 (NSW) – where appellant/tenant introduced soil onto property alleged to be contaminated – where Council issued clean-up notice to respondent/landlord – where respondent commissioned expert report – where samples collected and tested by persons other than author of report – whether report business record of respondent – whether primary judge erred in giving weight to report
EVIDENCE – expert reports – where no orders made for service of expert reports – where both parties served expert reports late – where both parties had opportunity to cross-examine experts – whether “exceptional circumstances” for admitting expert report in reply served by respondent – Uniform Civil Procedure Rules 2005 (NSW), r 31.28(4) – whether primary judge erred in House v The King sense
DAMAGES – damages awarded for costs of remediating land – where only evidence of quantum was two quotes obtained in preparation of proceedings – where quotes contained hearsay material – where no objection by appellant to admissibility of quotes at trial – where appellant self-represented at trial – whether primary judge erred in giving weight to quotes
DAMAGES – damages awarded for unpaid rent – where primary judge made declaration that lease validly terminated by respondent – where appellant remained in possession of property – where no termination order yet made by NCAT – whether residential tenancy agreement remained on foot – whether landlord’s remedy limited to loss of bargain damages
Legislation Cited: Civil Procedure Act 2005 (NSW), s 14
Evidence Act 1995 (NSW), ss 64, 69, 183
Protection of the Environment Operations Act 1997 (NSW), ss 6, 91
Protection of the Environment Operations (Waste) Regulation 2014 (NSW)
Residential Tenancies Act 2010 (NSW), ss 80, 81, 83, 87
Securities Exchange Act of 1934 (15 U.S.C.)
Uniform Civil Procedure Rules 2005 (NSW), rr 31.23, 31.28, 42.1, 51.53
Cases Cited: Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448; [2012] FCA 1355
Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd (ACN 008 204 635) (No 4) [2008] FCA 1038
Australian Securities and Investments Commission v Rich [2005] NSWSC 417
Averkin v Insurance Australia Ltd (2016) NSWLR 68; [2016] NSWCA 122
Bauskis v Liew [2013] NSWCA 297
Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 163
Di Liristi v Matautia Developments Pty Ltd (No 4) [2021] NSWSC 661
Di Liristi v Matautia Developments Pty Ltd (No 6) [2021] NSWSC 663
Di Liristi v Matautia Developments Pty Ltd (No 7) [2021] NSWSC 760
Gregg v R [2020] NSWCCA 245
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- Case
- [2021] NSWCA 328
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine several issues, including the admissibility and weight given to an expert report commissioned by the respondent, particularly in light of the business records exception to the hearsay rule under section 69 of the *Evidence Act 1995* (NSW). The court also considered whether the primary judge erred in admitting an expert report served late by the respondent, under rule 31.28(4) of the *Uniform Civil Procedure Rules 2005* (NSW), and whether exceptional circumstances justified its admission. Furthermore, the court examined the weight given to two quotes for remediation costs, which contained hearsay material, and whether the primary judge erred in awarding damages for unpaid rent when the lease had not yet been formally terminated by NCAT, despite the appellant remaining in possession.
The Court of Appeal found no error in the primary judge's decision. Regarding the expert report, the court held that it was admissible as a business record, as it was prepared for the respondent in the ordinary course of its business. The court also found that the late service of the expert report was justified by exceptional circumstances, as both parties had served expert reports late and had the opportunity to cross-examine the experts. The court further determined that the primary judge did not err in giving weight to the remediation quotes, as no objection was raised to their admissibility at trial, and the appellant was self-represented. Finally, the court upheld the award of damages for unpaid rent, concluding that the residential tenancy agreement remained on foot while the appellant remained in possession, and the respondent's remedy was not limited to loss of bargain damages.
Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.
Orders
Orders of the court
(1) Appeal dismissed.
(2) Appellant to pay the respondents’ costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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