Agusta Pty Limited v Provident Capital Limited

[2008] NSWCA 234

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Agusta Pty Limited v Provident Capital Limited  [2008] NSWCA 234

FILE NUMBER(S):
40087/08

HEARING DATE(S):
17 September 2008

EX TEMPORE DATE:
17 September 2008

PARTIES:
Agusta Pty Limited (First applicant)
Nida Ferella (Second applicant)
Provident Capital Limited (Respondent)

JUDGMENT OF:
Beazley JA McColl JA    

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 4539/06

LOWER COURT JUDICIAL OFFICER:
Phegan DCJ

LOWER COURT DATE OF DECISION:
23 November 2007

COUNSEL:
D Ash (Applicants)
M Ashhurst SC (Respondent)

SOLICITORS:
Colin Biggers & Paisley (Applicants)
Tiernan & Associates (Respondent)

CATCHWORDS:
APPEAL - issue not raised at trial - quantum meruit and new factual issue raised - summons dismissed

LEGISLATION CITED:

CASES CITED:

TEXTS CITED:

DECISION:
The summons is dismissed with costs.

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40087/08

BEAZLEY JA
McCOLL JA

Ex tempore 17 September 2008

Agusta Pty Limited & Anor v Provident Capital Limited

Judgment

1. THE COURT:  The Court refuses leave in this matter.  Leave is sought on an issue not raised at trial.  If the issue which is sought to be raised on an appeal (if leave was granted) had been raised at trial, it would most likely have caused an amendment to the plaintiff’s pleadings, so as to raise a claim on a quantum meruit.  That in turn would have raised a factual question whether any benefit had been received by the defendants in those proceedings, the defendants being the applicant for leave. 

2. This is not a case where a new issue on a point of law only is sought to be agitated on the appeal.  It is to be kept in mind that:

   “In the common law system of civil justice the issues between the parties are determined by the trial process.  The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal”:  Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 per Gleeson CJ at [2].

3. There are circumstances where the Court will permit a new point to be raised on appeal but those circumstances are constrained and usually confined to where the point sought to be raised is a point of law only.  As we have said, what is sought to be raised here would have involved factual issues, had it been raised at trial. 

4. The summons is dismissed with costs.

LAST UPDATED:
29 September 2008