Di Liristi v Matautia Developments Pty Ltd

The appeal concerned a dispute between a landlord, Matautia Developments Pty Ltd (respondent), and a tenant, Di Liristi (appellant), regarding the remediation of contaminated land and unpaid rent. The primary judge had awarded damages to the respondent for the costs of remediating the land and for unpaid rent. The appellant, who had introduced soil onto the property, alleged to be contaminated, appealed the primary judge's decision.

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.