Icon Co (NSW) Pty Ltd v The Owners - Strata Plan No. 97315

Icon Co (NSW) Pty Ltd (the applicant) sought leave to appeal from a decision of the primary judge in proceedings against The Owners - Strata Plan No. 97315 (the respondent). The dispute concerned the admissibility of expert evidence tendered by the applicant, which the primary judge had ruled inadmissible.

The central legal issue before the Court of Appeal was whether the primary judge erred in finding that the expert evidence was inadmissible. The applicant argued that the evidence was relevant as it provided an alternative explanation for the cause of loss, thereby responding to the issue of causation. The primary judge had determined that such an alternative explanation should have been pleaded, and admitting the evidence without prior pleading would constitute a breach of procedural fairness.

Brereton and Kirk JJA found that the appeal did not raise an arguable case. Their Honours reasoned that the primary judge's decision to exclude the evidence on the grounds of procedural fairness, due to the failure to plead the alternative causation, was a valid exercise of discretion. The court considered that the applicant had not demonstrated a sufficiently arguable case that the primary judge had erred in this determination.

Consequently, the application for leave to appeal was dismissed, with costs awarded to the respondent.