Bremner v Sinclair (No 2)

Case [1999] NSWCA 407


CITATION: BREMNER & ANOR v SINCLAIR & ORS (No 2) [1999] NSWCA 407
FILE NUMBER(S): CA 40615/95
HEARING DATE(S): 18 May 1999
JUDGMENT DATE:
29 October 1999

PARTIES :


BRIAN SEFTON BREMNER & ANOR v SONDRA JEAN SINCLAIR & ORS (NO 2)
JUDGMENT OF: Mason P at 1; Meagher JA at 66; Powell JA at 67
COUNSEL: A: B Walker SC
1R: B Rayment QC/D Kell
2R: J E Armfield submitting
SOLICITORS: A: Corrs Chambers Westgarth
1R: John M Fitzgerald & Associates
2R: Gordon Cavanagh submitting
CATCHWORDS: APPEAL - application to set aside earlier orders of the Court of Appeal - appeal by way of rehearing - alternative case presented - whether open to Court of Appeal to entertain a fresh point having regard to the way the case was conducted at trial - whether the capacity to raise an alternative point should be precluded where raising the issue below would have meant evidence could have been given which would have prevented the point from succeeding - scope of duty of appellate court to address new questions of law arising upon facts either admitted or proved beyond controversy
ACTS CITED: Supreme Court Act s75A(10)
CASES CITED:
Bremner & Anor v Sinclair & Ors (Bremner No 1), Court of Appeal, unreported November 1998, Suttor v Gundowda Pty Limited (1950) 81 CLR 418, University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, 60 ALR 68, Coulton v Holcombe (1986) 162 CLR 1, Water Board v Moustakas (1988) 180 CLR 491, Gipp v The Queen (1998) 194 CLR 106, Ah Yick v Lehmert (1905) 2 CLR 593, Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, Castanho v Brown & Root (UK) Ltd [1981] AC 557, Rogers v The Queen (1994) 181 CLR 251, Council of the Municipality of Woollahra v Sved (24 July 1998, Court of Appeal, unreported), Multicon Engineering Pty Ltd v Federal Airports Corporation (15 October 1997, Court of Appeal, unreported), State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liquidation) (1999) 160 ALR 588, Warren v Coombes (1979) 142 CLR 531, Hanson v Wearmouth Coal Co [1939] 3 All ER 47, Castellan v Electric Power Transmission Pty Ltd (1967) 68 SR (NSW) 159, Helicopter Sales (Australia) Pty Ltd (1974) 48 ALJR 390, Imperial Chemical Industries of Australia Limited v Murphy (1973) 47 ALJR 122, Berkeley Challenge Pty Limited v Potbury (Court of Appeal, 18 December 1997, unreported)
DECISION: Parties to bring in Short Minutes within 14 days
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40615/95
ED 2980/91
MASON P
MEAGHER JA
POWELL JA

Friday 29 October 1999
BRIAN SEFTON BREMNER & ANOR v SONDRA JEAN SINCLAIR & ORS (No 2)
JUDGMENT
1    MASON P: Mr and Mrs Sinclair (“the vendors”) brought proceedings in the Equity Division against Mr and Mrs Hudson (as first defendants), Mr Bremner (as second defendant) and the corporate proprietor of Elders…

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AGLC
Bremner v Sinclair (No 2) [1999] NSWCA 407
Case
[1999] NSWCA 407
Decision Date

CaseChat Overview and Summary

Bremner (the appellant) sought to set aside earlier orders of the Court of Appeal. The dispute concerned the extent to which an appellate court could entertain a fresh point of law not raised at trial, particularly where its consideration might have led to the adduction of evidence that would have defeated the point. The appeal was heard by Mason P, Meagher and Powell JJA.

The central legal issue before the Court of Appeal was the scope of an appellate court's duty to address new questions of law that arise upon facts which are either admitted or proved beyond controversy. This involved determining whether the appellant should be precluded from raising an alternative point on appeal, given that its introduction at trial might have allowed the opposing party to present evidence to counter it.

The Court considered the principles governing the introduction of new arguments on appeal. It acknowledged that while appellate courts have a broad discretion to entertain new points, this discretion is not unfettered. The Court reasoned that where the introduction of a new point at trial would have fundamentally altered the nature of the proceedings and allowed for the presentation of evidence that could have resolved the issue differently, an appellate court should be cautious in entertaining such a point on appeal. The Court emphasised that the capacity to raise an alternative point should be limited where its consideration would be unfair to the other party, particularly if that party was denied the opportunity to present relevant evidence at the original hearing.

The Court ordered that the parties were to bring in Short Minutes within 14 days.

Orders

Orders of the court

Parties to bring in Short Minutes within 14 days

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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