Tawson Pty Ltd v Hillston Vineyard Pty Ltd [2022] NSWSC 801

Supreme Court New South Wales

Medium Neutral Citation: Tawson Pty Ltd v Hillston Vineyard Pty Ltd [2022] NSWSC 801 Hearing dates: 29 March 2022 Date of orders: 17 June 2022 Decision date: 17 June 2022 Jurisdiction: Common Law Before: Hamill J Decision: (1) Quash the orders of Magistrate Love dated 14 October 2021 entering judgment in favour of the respondent, Hillston Vineyard Pty Ltd. (2) Remit the proceedings to the Local Court to be dealt with according to the terms of this judgment. (3) The appellant's (Tawson Pty Ltd) costs of, and incidental to, this appeal are to be paid by the respondent. (4) The costs of the hearing in the Local Court are to be the costs in the cause. Catchwords: EVIDENCE – appeal from magistrate – damages for breach of contract to construct bore – where fine sand egression prevented installation of pump – admissibility of evidence contained in a report – opinion rule – whether opinion was a lay opinion – whether evidence was an expert opinion – where author of report not called to give evidence – where appellant conceded report was a business record – other exclusionary rules still applied – diagram and structure of Evidence Act not applied – denial of opportunity to cross-examine – fundamental precept of adversarial system of justice Legislation Cited: Evidence Act 1995 (NSW), ss 63, 69, 76, 78, 79, 135, Ch 3 Local Court Act 2007 (NSW), ss 39, 40, 41 Cases Cited: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 408; [2002] HCA 22 Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 R v Powch (1988) 14 NSWLR 136 Category: Principal judgment Parties: Tawson Pty Ltd (Appellant) Hillston Vineyard Pty Ltd (Respondent) Representation: Counsel: J Shaw (Appellant) M Gunning (Respondent)