Films and Casting Temple v Malla

The appeal concerned a dispute between Films and Casting Temple (FASC) and Mr Malla regarding alleged breaches of contract. The primary judge had made findings in favour of Mr Malla. FASC appealed to the Court of Appeal of New South Wales.

The Court of Appeal was required to determine several legal issues. These included whether the primary judge erred in her assessment of a claim based on a contractual provision that FASC pleaded incorrectly, and whether FASC should be permitted to raise a claim for damages on appeal when such a claim was neither pleaded nor particularised at trial, and Mr Malla was allegedly denied a sufficient opportunity to adduce evidence on the issue of damages. Additionally, the court had to consider whether certain debts were "proven" and whether a third party was "unable" to pay them, within the meaning of a contractual guarantee.

The Court of Appeal found that FASC's pleadings had mischaracterised the effect of a contractual provision, which was in substance a restraint of trade. The actual terms of the provision were proven without objection, and the court held that the claim should be decided on the basis of the term as proved, not as pleaded. Regarding the damages claim, the court noted that it had not been pleaded or particularised and only surfaced at the commencement of the trial. The court was not satisfied that Mr Malla had been afforded a sufficient opportunity to adduce evidence relevant to the question of damages, and therefore declined to permit FASC to raise this claim on appeal. On the guarantee claim, the primary judge had found that there was no evidence that the third party was "unable" to pay, but rather that it was unwilling to pay. The court agreed with this interpretation, noting that the meaning of "unable" was informed by context.

The appeal was dismissed with costs.