Preston v Harbour Pacific Underwriting Management Pty Ltd

In *Preston v Harbour Pacific Underwriting Management Pty Ltd*, the New South Wales Court of Appeal considered an application for a new trial. The appellant sought this relief on the basis of alleged fresh evidence, specifically the discovery of documents that had not been disclosed during the original proceedings.

The central legal issue before the Court of Appeal was whether the newly discovered documents constituted "fresh evidence" for the purposes of granting a new trial, and whether the failure to discover these documents by the appellant and some defendants was a sufficient ground for such an order. The Court was required to determine if the application met the criteria for a new trial, particularly in light of the Supreme Court Act 1970 (NSW) s 75A.

The Court of Appeal reasoned that the discovered documents did not qualify as fresh evidence in the legal sense required to grant a new trial. It distinguished the situation from that in *Commonwealth Bank of Australia v Quade*, holding that the failure of the appellant and certain defendants to discover these documents did not, in itself, constitute grounds for a new trial. The Court found that the default in discovery did not transform the previously available documents into "fresh evidence."

Consequently, the appeal was dismissed with costs.