Thomas v HP Mercantile Pty Ltd

The case involved an appeal from a decision of the primary Judge in the District Court of New South Wales. The proceedings were brought by HP Mercantile Pty Ltd (HPM) against several participants in the Tumut River Orchard Project, including Mr Thomas, Chandelle Nominees Pty Ltd, and Adrian Hobson. HPM sought to recover amounts allegedly due under Deeds of Loan executed by these participants. The claims were based on a series of assignments of the debts, ultimately from Merilbah Pty Ltd to HPM. The defendants challenged both the existence of the debts and the validity of the assignments. The primary Judge found that the debts existed and that the assignments to HPM were valid in equity concerning Mr Thomas, but not for Chandelle and Mr Hobson.

The legal issues before the Court of Appeal included whether the primary Judge erred in finding that the debts were created and validly assigned to HPM in equity, particularly in relation to Mr Thomas. A further issue arose from Mr Thomas' application to adduce further evidence, which was made pursuant to section 75A of the *Supreme Court Act 1970* (NSW). This required the Court to consider whether "special grounds" existed to receive evidence that could have been obtained at trial, given that the appeal was from a judgment after a trial on the merits.

The Court considered the evidence presented at trial and the primary Judge's findings of fact. The primary Judge had accepted the evidence of Mr Purcell regarding the validity of the assignments, including the acceptance of an offer of assignment by Treetop Project Ltd (TPL). Mr Thomas sought to adduce an affidavit from Mr Moody, a former director of TPL, which directly contradicted Mr Purcell's evidence and asserted that the offer of assignment was never accepted. The Court noted that section 75A(8) of the *Supreme Court Act 1970* (NSW) restricts the reception of further evidence on appeal from a trial on the merits unless special grounds are shown. The Court found that the evidence sought to be adduced by Mr Thomas did not meet the threshold for admission under this provision, as it was evidence that could have been obtained and presented at trial.

Consequently, the Court dismissed Mr Thomas' application for leave to appeal and his summons seeking to adduce further evidence. Mr Thomas was ordered to pay HPM's costs of these applications. The Court also dismissed applications by Mr Hobson and Chandelle for extensions of time to seek leave to appeal, with costs.