Sunlight Nominees Pty Ltd v Zotti and Zotti

Sunlight Nominees Pty Ltd appealed to the Full Court of the Supreme Court of South Australia against a decision of a single judge, who had declined to admit fresh evidence tendered by Sunlight and had also increased the damages awarded to the defendants, Mr and Mrs Zotti, on their counterclaim. The dispute concerned the construction of a concrete driveway, with the Zottis alleging the concrete was defective due to not meeting an agreed strength of 25 megapascals (MPa), whereas Sunlight contended the agreed strength was 20MPa.

The primary legal issues before the Full Court were whether the single judge erred in refusing to admit fresh evidence, specifically an affidavit from a truck driver named Nino Calabria, and whether the judge was correct in increasing the damages awarded on the counterclaim. Sunlight sought to introduce Mr Calabria's affidavit, which purported to depose to a conversation overheard between Mr Russo of Sunlight and Mr Zotti, suggesting the agreed concrete strength was 20MPa. The Zottis also sought to tender fresh evidence in response to Sunlight's new affidavits.

The Full Court, in allowing the appeal in part, found that the single judge had erred in his assessment of the fresh evidence. While the judge accepted that there was a reasonable explanation for Sunlight's failure to call Mr Calabria at trial and that his evidence was relevant and potentially influential, he ultimately declined to admit it. The Full Court noted that Mr Russo's evidence at trial, which did not mention the presence of a third party during the crucial conversation, was inconsistent with the explanation for not calling Mr Calabria earlier. However, the Court ultimately did not receive Mr Calabria's affidavit or other fresh evidence tendered by Sunlight.

The Court allowed the appeal solely for the purpose of setting aside the single judge's increased award of damages on the counterclaim and restoring the original award made by the Magistrate, which was $56,600. The Court ordered that the fresh evidence tendered by both parties not be received.