Raedel v Shahin

The appeal concerned a dispute over a retaining wall constructed by the appellants, the Raedels, which allegedly caused damage to the respondents' (the Shahins') land. The primary judge had found that the retaining wall was inadequate and ordered remediation. The Raedels appealed this decision, raising several grounds of error.

The legal issues before the appellate court included whether the primary judge erred in preferring the evidence of the Shahins' expert, Dr. Mitchell, over the Raedels' expert, Mr. John, in determining the structural adequacy of the retaining wall. The appellants also contended that the finding of inadequacy was contrary to the weight of the evidence, that certain evidence was wrongly excluded, that the action was brought out of time, and that the judge's discretion in ordering remediation had miscarried.

The appellate court, comprising Kelly, Stanley, and Hinton JJ, considered the principles for interfering with a trial judge's findings of fact, particularly concerning conflicting expert evidence. The court noted that an appellate court should grant permission to appeal on a question of fact. The primary judge's reasoning for preferring Dr. Mitchell's evidence was that Mr. John's method of calculation was not recognised and that Dr. Mitchell's assumptions were warranted due to a lack of information. The court applied the principles from *Sotiroulis v Kosac*, which state that conflicts in expert evidence are not resolved by counting witnesses but by discerning grounds for preference based on qualifications, reasoning, and grasp of facts. The court found that the primary judge had provided sufficient reasons for preferring Dr. Mitchell's evidence.

The appeals were dismissed, with the court granting permission to appeal on questions of fact. The parties were to be heard on costs.