Icon Co (NSW) Pty Ltd v The Owners – Strata Plan No. 97315 [2022] NSWCA 114

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Icon Co (NSW) Pty Ltd v The Owners – Strata Plan No. 97315 [2022] NSWCA 114 Hearing dates: 27 April 2022 Date of orders: 27 April 2022 Decision date: 27 April 2022 Before: Brereton JA at [1]; Kirk JA at [22]. Decision: Dismiss the application for leave to appeal, with costs. Catchwords: APPEALS – Leave to appeal – Arguable case – Whether primary judge erred in making advance finding that expert evidence was inadmissible – Where evidence was submitted to be relevant as responsive to issue of causation by providing an alternative explanation for cause of loss – Where primary judge found such alternative should have been pleaded and thus admitting the evidence would be a breach of procedural fairness – Appeal raises insufficiently arguable case that primary judge erred Legislation Cited: Evidence Act 1995 (NSW), s 192A Supreme Court Act 1970 (NSW), s 101 Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2010) 244 FLR 440; [2010] ACTCA 28 BE Financial Pty Ltd v Das [2012] NSWCA 164 Choi v University of Technology Sydney (No 2) [2020] NSWCA 342 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Marlin Brands Australia Ltd v Brando Aus Holdco Pty Ltd [2022] NSWCA 59 Rich v ASIC [2005] NSWCA 233; 54 ACSR 365 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 The Age Company Limited v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Category: Principal judgment Parties: Icon Co (NSW) Pty Ltd (Applicant) The Owners – Strata Plan No 97315 (Respondent) Representation: Counsel: