Edwards v Merlaust Pty Ltd - [2023] NSWSC 1477

Supreme Court

New South Wales

Medium Neutral Citation: Edwards v Merlaust Pty Ltd [2023] NSWSC 1477
Hearing dates: 24 November 2023
Date of orders: 5 December 2023
Decision date: 05 December 2023
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
(1) The appeal is dismissed.
(2) Unless the parties approach to be heard within 7 days, Mr and Mrs Edwards bear Merlaust’s costs as agreed or assessed.

Catchwords:
APPEALS — Procedure — Further evidence on appeal — appeal from Local Court — Local Court Act 2007 (NSW), s 39 — Whether plaintiffs could tender evidence on appeal not relied on at first instance and for which leave had not been sought — Uniform Civil Procedure Rules 2005 (NSW), r 50.16 — Appeal confined to an error of law — evidence could only raise questions of fact — not for this Court to determine - receipt of evidence not relied on upon first instance refused
APPEALS — Procedure — whether a question of law raised for the first time on appeal could be considered — only in exceptional circumstances —expedient in the interests of justice to consider the new legal arguments raised on construction questions
CONTRACTS — Construction — Interpretation —Consideration — whether there was a binding contract which varied a lease — whether any consideration was given — no consideration when a promisor promises to do something they are already bound to do — past consideration is not good consideration — no additional consideration given —appeal dismissed

Legislation Cited:
Local Court Act 2007 (NSW), s 39(1)
Uniform Civil Procedure Rules 2005 (NSW), rr 50.16, 42.1

Cases Cited:
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Director of Public Prosecutions for Victoria v Le [2007] HCA 52
Larkin v Girvan (1940) 40 SR (NSW) 365
Rose v Tunstall [2018] NSWCA 241
SAS Realty Developments v Kerr [2013] NSWCA 56
Searle v Commonwealth of Australia [2019] NSWCA 127
Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418
University of Wollongong v Metwally (No. 2) [1985] HCA 28; (1985) 59 ALJR 481, at 483; [1985] HCA 28; 60 ALR 68
White Pointer Investments Pty Ltd v Creative Academy Group Pty Ltd [2023] NSWSC 817

Category: Principal judgment
Parties: Andrew Edwards (First Plaintiff)
Maureen Edwards (Second Plaintiff)
Merlaust Pty Ltd (Defendant)
Representation:
Counsel:
M V Sahade (Plaintiffs)
Q Rares (Defendant)
Solicitors:
Oliveri Lawyers (Plaintiffs)
Martin Street Lawyers (Defendant)

File Number(s): 2023/00237890
Publication restriction: Nil.

JUDGMENT

Mr and Mrs Edwards, formerly the lessees of a property of which Merlaust was the landlord, appeal a decision of the Local Court. Their case, that an agreement they had reached at a meeting with Merlaust’s agent Mr Boyle in December 2020 which he recorded in a January 2021 letter, had validly varied the lease agreement, was rejected. Arm LCM’s conclusion turning on the question of whether there had been consideration given for that agreement, as they unsuccessfully claimed.
Somewhat unusually the parties were pursuing separate statements of claim in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Edwards v Merlaust Pty Ltd

Details

AGLC: Edwards v Merlaust Pty Ltd [2023] NSWSC 1477
Case: [2023] NSWSC 1477
Decision Date: 05 December 2023

CaseChat Overview and Summary

In the case of Edwards v Merlaust Pty Ltd, the dispute originated from an appeal to the Supreme Court from a decision made by the Local Court. The plaintiffs, Edwards, sought to challenge the Local Court’s ruling, arguing that there was a binding contract that varied their lease agreement. Central to the appeal was the contention that a new legal argument concerning the construction of the contract could be considered for the first time on appeal, as well as whether new evidence could be presented that had not been relied upon in the Local Court.

The primary legal issues before the court were whether the plaintiffs could introduce new evidence on appeal that was not presented at first instance, and if a question of law raised for the first time on appeal could be considered. The court was also required to determine whether there was a binding contract that varied the lease and whether any consideration was provided, as past consideration is not valid consideration.

The court ruled that the appeal was confined to an error of law and that the introduction of new evidence was not permissible unless leave had been sought. The court further clarified that only in exceptional circumstances would a question of law raised for the first time on appeal be considered, and only if it was expedient in the interests of justice to do so. Regarding the construction of the contract, the court found that no additional consideration was given as the promisor was merely promising to do what they were already legally bound to do. Consequently, the appeal was dismissed.

As a result of this decision, the plaintiffs' appeal was unsuccessful. The court maintained the Local Court's ruling, reinforcing the principle that new evidence and new legal arguments are not typically entertained on appeal unless specific conditions are met. The court's decision underscores the importance of adhering to procedural rules and the limitations on what can be considered on appeal.

Orders