Treana Holdings Pty Ltd v Kakkad - [2025] SASCA 49

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
TREANA HOLDINGS PTY LTD & ANOR v KAKKAD & ORS
[2025] SASCA 49
Decision of the Honourable President Livesey (ex tempore)
9 May 2025
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS
The respondents sought to strike-out various sub-paragraphs of the appellants’ Notice of Appeal.

The respondents contended that certain sub-paragraphs reflected arguments not put before the primary judge and should be struck out, relying on the principle in University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481.
The respondents also contended that certain other sub-paragraphs should be struck out because they failed to articulate how the facts as found were inconsistent with other incontrovertible evidence nor why it was not reasonably open for the primary judge to make those factual findings.
The Court held, dismissing the application with costs:
1.The exercise of the power to strike out, particularly by a single judge, should be reserved for clear cases where the finding that the impugned paragraphs are frivolous, vexatious or an abuse of process can be made with confidence.
2.A better view of what was in issue at trial and what is in issue on appeal will inevitably be formed at the hearing of the appeal, and it is necessary to be cautious when considering a strike-out application heard well in advance of the hearing of the appeal.
3.In the circumstances of this case, the issue whether the impugned sub-paragraphs breach the principle in University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 or raise unmeritorious questions of fact must be determined at the hearing of the appeal.
4.Observations made about the principle in University of Wollongong v Metwally, and about the utility of and the exercise of discretion on a strike-out application heard before the hearing on an appeal.

Uniform Civil Rules 2020 (SA) rr 3.1(1), 3.2, referred to.
Battye v Shammall (2005) 91 SASR 315; Bird v DP (A Pseudonym) (2024) 98 ALJR 1349; Brackenridge v Bendigo and Adelaide Bank Ltd [2021] SASCA 129; Brown v The Scout Association of Australia, South Australia Branch Inc (2022) 142 SASR 1; Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11; Cleaning Doctor NSW Pty Ltd v Fonseca [2022] NSWCA 157; Connecticut Fire Insurance Co v Kavanagh [1892] AC 473; Coulton v Holcombe (1986) 162 CLR 1; Crampton v The Queen (2000) 206 CLR 161; Hall v Carney (No 3) (2021) 139 SASR 63; Hall v Foster [2011] NSWSC 295; Hallett Concrete Pty Ltd v Adelaide Brighton Cement Ltd & Ors [2024] SASCA 80; Kakkad & Ors v Treana Holdings Pty Ltd & Ors [2024] SADC 161; Keane v Woolworths Group Ltd (No 4) [2024] SASCA 113; McDonald & Anor v Attorney-General (SA) (No 4) [2025] SASCA 43; Miojlic v City of Onkaparinga Council [2025] SASCA 2; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; Oatley v Director of Public Prosecutions (Cth) [2021] SASCA 108; Plaintiff M19A/2024 v Minister for Immigration and Multicultural Affairs [2025] HCA 17; R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603; Rebbeck v Housing SA [2024] SASCA 86; Redman v Return to Work Corporation of South Australia (2021) 139 SASR 131; Saudi Arabian Cultural Mission v Alramadi (2024) 305 FCR 581; SJ Berry v McEntee (2022) 142 SASR 31; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; The State of South Australia in Right of the Department for Education and Child Development v Dolan [2021] SASCFC 30; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; Wang v Kaymet Corporation Pty Ltd [2015] NSWSC 1459; Water Board v Moustakas (1988) 180 CLR 491; Wheeler v State of South Australia (2012) 114 SASR 111; Yeung v Desnor Pty Ltd (1989) 5 BPR 11,343; Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40; Zhengtang Precinct Loft Pty Ltd v Corporation of the City of Adelaide [2024] SASCA 148, considered.

TREANA HOLDINGS PTY LTD & ANOR v KAKKAD & ORS
[2025] SASCA 49
Court of Appeal – Civil - Application
LIVESEY P (ex tempore):
Introduction

This is an interlocutory application by the respondents before an appeal is heard, seeking to strike-out various sub-paragraphs of the appellants’ Notice of Appeal dated 19 February 2025.[1] The respondents contended that certain sub‑paragraphs reflected arguments that were not put before the primary judge,[2] relying on the principle in University of Wollongong v Metwally (No 2), that a party is generally bound by the way it conducts its case below:[3]
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
[1]     Being sub-paragraphs 1.1, 1.2, 2.1, 2.2, 2.3, 3.1, 3.3, 4.1 and 4.2 of the appellants’ Notice of Appeal.
[2]     Being sub-paragraphs 1.1, 1.2, 3.1 and 4.1.
[3]     University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, 483 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).
The respondents also contended that certain other sub-paragraphs concerning questions of fact should be struck out as they failed to articulate how the facts as found were inconsistent with other incontrovertible evidence, nor why the factual findings were not reasonably open to the primary judge.[4]
[4] Being sub-paragraphs 2.1, 2.2, 3.3 and 4.3, which were subsequently sought to be struck out by the Respondents’ Written Submissions dated 24 April 2025.
The appeal concerns the decision of a District Court judge, who found that the appellants breached a contract for the construction and sale of townhouses, in that they failed to use “reasonable endeavours” to achieve practical completion of the respondents’ townhouses by a “Sunset Date”.[5]
[5] Kakkad & Ors v Treana Holdings Pty Ltd & Ors [2024] SADC 161, [250] (Chivell AUJ).
The appellants purported to terminate the contracts when practical completion was not achieved by the Sunset Date. The primary judge held that because the appellants were in breach when they purported to terminate, their termination was invalid.[6]
[6] Kakkad & Ors v Treana Holdings Pty Ltd & Ors [2024] SADC 161, [252] (Chivell AUJ).
The impugned sub-paragraphs in the Notice of Appeal concern the obligation to use “reasonable endeavours” to achieve practical completion by the Sunset Date, and the contractual constraints which it is alleged inform that obligation, as well as certain factual findings made on these and other issues.
The respondents contended that the argument that the appellants were constrained by the terms of their contracts with the Builders, and that this in turn constrained the endeavours they made or could make, was not pressed at the trial.[7] Rather, the respondents submitted that the focus of the appellants’ defence was on the unavailability of labour and materials.[8]
[7] Affidavit of Mark Kenneth Gustavsson dated 25 March 2025, [32].
[8] Affidavit of Mark Kenneth Gustavsson dated 25 March 2025, [32].
On 14 March 2025, this matter was set down for hearing in the Court of Appeal on Monday, 11 August 2025. Outlines have been ordered to be exchanged and filed on 25 July and 1 August 2025.
There was an issue about security for costs which was resolved by consent and later, during March 2025, it was requested that half a day be set aside for this argument. At the hearing today, both parties agreed that the one day estimated for the appeal hearing remains appropriate.
For the reasons that follow, the respondents’ application to strike-out should be dismissed.
The respondents’ application and prejudice
The respondents’ strike-out application is made under r 34.1 of the Uniform Civil Rules 2020 (SA),[9] which provides:
(1)The Court may order that a filed document or part of a filed document be struck out if—
(a)     it does not comply with these Rules; or
(b)     it is frivolous, vexatious or an abuse of the process of the Court.
(2)If the Court strikes out all or part of a document under subrule (1), it may if it thinks fit grant leave to file within a specified time an amended or substituted document rectifying the matter that caused the original document to be struck out.
[9]     Although the respondents’ interlocutory application states that the application is made under r 31.4 of the Uniform Civil Rules 2020 (SA), it is assumed that this is a typographical error and r 34.1 is the correct reference.
The respondents’ supporting affidavit is unusual. It is made by the respondents’ instructor who appeared as junior counsel at the trial. He spoke to his recollection of what was argued and in issue. Much of the affidavit really comprises submissions rather than evidence. It addresses the respondents’ prejudice. The respondents submit that they would be prejudiced if the application to strike-out were refused, because they “would be required to address those arguments for the first time without the testimony, documentary evidence and expert opinion that would be available had the issues been squarely pleaded and ventilated at trial following discovery on directly relevant documents on the topic”.[10]
[10] Affidavit of Mark Kenneth Gustavsson dated 25 March 2025, [80].
The respondents also contended that they “would have prepared and conducted the trial differently”, including by issuing subpoenas to the builders and seeking further discovery, and they are prejudiced in their ability to meet the appeal because they cannot call new evidence and the appellants do not seek leave to re‑open evidence.[11]
[11] Respondents’ Written Submissions dated 24 April 2025, [34].
In truth, these are reasons why certain of the sub-paragraphs which are attacked should be rejected on appeal, based on the principle in University of Wollongong v Metwally (No 2).
No prejudice associated with the conduct of the appeal is suggested. It is not suggested, and there is no evidence, that the appeal will be longer or rendered more costly by reason of the impugned sub-paragraphs.
The principle in University of Wollongong v Metwally (No 2)
The respondents contended that the appellants should be held to the case they ran below. The ruling by the High Court in University of Wollongong v Metwally (No 2), set out earlier, was made in the context of an application to vacate an order of the High Court after it was perfected and re-open the High Court appeal.[12] It may be accepted that that kind of application before a court of final appeal raises particular considerations that may not necessarily apply to an appeal before an intermediate appellate court.
[12] University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, 482 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).
Nonetheless, the principle has been cited in that context. In SJ Berry and Another v McEntee and Another it was explained:[13]
This Court is not authorised to intervene merely so as to substitute its own view as if it were hearing the matter afresh. Rather, this Court must consider whether the findings made by the primary judge were affected by material error. That will often require that this Court consider the way in which the parties chose to conduct their litigation for they are generally bound by their conduct of the trial and confined to the issues they litigated at it.
[13] SJ Berry and Another v McEntee and Another (2022) 142 SASR 31, [31] (Livesey P), citations omitted.
Usually, the issue before this Court is dealt with on the basis that if a point is not taken in the court below, and evidence might have been adduced preventing any possibility of the point succeeding, the point cannot be taken afterwards.[14] This principle has been followed in the Full Court and the Court of Appeal many times:[15]
The Court will only entertain a new point on appeal in exceptional circumstances.[16] Parties are ordinarily bound by their conduct of the litigation, whether at trial or on appeal. The Court may decline to entertain the point if it appears that it was not raised for some form of forensic or other tactical advantage.[17] There may be other good reasons to decline to entertain the point, particularly where there has been an opportunity to raise it and entertaining it for the first time in this Court may cause injustice. A well-recognised example of that kind of case is where the point might have been met by further evidence at trial.[18] In most cases, the strength of the point will also have a bearing on whether it should be entertained.
Notwithstanding the exceptional nature of the exercise of the power to entertain a new point on appeal, it is also well-recognised that where the point is a question of law which could not have been met by further evidence, it will often be entertained:[19]
…
There are examples of this approach having been taken in this Court, including on a second appeal.[20] In many cases where a new point is entertained for the first time on a second appeal, there will be a costs consequence, particularly if, had the point been raised earlier, it would likely have rendered the second appeal to this Court unnecessary.
[14] Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11, [14] (Giles JA, with whom Mason P and Priestley JA agreed), citing Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438 (Latham CJ, Williams and Fullagar JJ) and Coulton v Holcombe (1986) 162 CLR 1, 7-8 (Gibbs CJ, Wilson, Brennan and Dawson JJ).
[15] The State of South Australia in Right of the Department for Education and Child Development v Dolan [2021] SASCFC 30, [73]-[75] (Livesey J, with whom Doyle J agreed). See also Hall v Carney (No 3) (2021) 139 SASR 63, [24]-[38] (Doyle, Livesey and Bleby JJA); Redman v Return to Work Corporation of South Australia (2021) 139 SASR 131, [99] (Livesey JA, with whom Bleby JA agreed); Oatley v Director of Public Prosecutions (Cth) [2021] SASCA 108, [37]-[39] (Livesey P, Lovell JA and Stanley AJA); Brackenridge v Bendigo and Adelaide Bank Ltd [2021] SASCA 129, [135] (Lovell, Livesey and Bleby JJA); Brown v The Scout Association of Australia, South Australia Branch Inc (2022) 142 SASR 1, [27]-[30] (Livesey P, Doyle and Bleby JJA); Keane v Woolworths Group Ltd (No 4) [2024] SASCA 113, [10] (Livesey P, Stanley and Hall AJJA); Zhengtang Precinct Loft Pty Ltd v Corporation of the City of Adelaide [2024] SASCA 148, [151]-[152 (Livesey P, Doyle and Bleby JJA).
[16] Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, 483; Coulton v Holcombe (1986) 162 CLR 1, 7-8; Water Board v Moustakas (1988) 180 CLR 491, 496-497.
[17] Crampton v The Queen (2000) 206 CLR 161, [7], [10] (Gleeson CJ).
[18] Coulton v Holcombe (1986) 162 CLR 1, 7-8 (Gibbs CJ, Wilson, Brennan and Dawson JJ).
[19] Connecticut Fire Insurance Co v Kavanagh [1892] AC 473, 480 (Lord Watson), approved in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438.
[20] Battye v Shammall (2005) 91 SASR 315, [20]-[22] (Doyle CJ), [28] (Duggan J), [49] (Gray J); Wheeler v State of South Australia (2012) 114 SASR 111, [50] (White J, with whom Sulan and Nicholson JJ agreed).
In that case the new point was entertained for the first time on a second appeal. Accordingly, the operation of the rule is not absolute.[21]
[21] Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438 (Latham CJ, Williams and Fullagar JJ); Water Board v Moustakas (1988) 180 CLR 491, 497 (Mason CJ, Wilson, Brennan and Dawson JJ); NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51, [73]-[77] (Hill J, in dissent); Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40, [66] (Buss P, Murphy and Vaughan JJA).
Where the point to be taken is one of construction or of law, it may be expedient and in the interests of justice for the point to be entertained by the appeal court.[22] Likewise, an appeal court may find it expedient and in the interests of justice to entertain the point where all the facts have been established beyond controversy.[23]
[22] Water Board v Moustakas (1988) 180 CLR 491, 497 (Mason CJ, Wilson, Brennan and Dawson JJ); Saudi Arabian Cultural Mission v Alramadi (2024) 305 FCR 581, [34] (Raper J).
[23] Water Board v Moustakas (1988) 180 CLR 491, 497 (Mason CJ, Wilson, Brennan and Dawson JJ).
Where the point was not raised by a party because the party could not reasonably have been aware of a relevant authority, an appeal court may find it necessary and in the interests of justice to entertain the point.[24] An appeal court may also permit a party to rely on a point not raised in the court below if the other party concedes that its case would not have been presented differently had the point been taken.[25]
[24] Plaintiff M19A/2024 v Minister for Immigration and Multicultural Affairs [2025] HCA 17, [5] (Gageler CJ, Steward, Gleeson, Jagot and Beech-Jones JJ).
[25] Bird v DP (A Pseudonym) (2024) 98 ALJR 1349, [39] (Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ); R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603, [108] (Gummow, Hayne, Heydon and Kiefel JJ).
The rule will otherwise be strictly applied.[26]
[26] Water Board v Moustakas (1988) 180 CLR 491, 497 (Mason CJ, Wilson, Brennan and Dawson JJ).
Other factual issues
The respondents contended that sub-paragraphs 2.1, 2.2, 3.3 and 4.3 “simply dispute the primary judge’s factual findings and point to no legal error”.[27] That is to say, the respondents submitted that the sub-paragraphs are “purely” questions of fact and do not “call for a determination of the proper legal effect of proved facts” nor identify any associated “legal error”.[28]
[27] Respondents’ Written Submissions dated 24 April 2025, page 2.
[28] Respondents’ Written Submissions dated 24 April 2025, [35].
It was contended that these sub-paragraphs do not articulate how the primary judge’s findings are inconsistent with other incontrovertible evidence, nor why the findings were not reasonably open to the primary judge, and should consequently be struck out.[29]
[29] Respondents’ Written Submissions dated 24 April 2025, [35].
Exercising power: the utility of raising this issue before the appeal
I am hearing an interlocutory application as a single judge more than three months before the hearing of the appeal, see r 212.5(2) of the Uniform Civil Rules 2020 (SA).
I must decide, in effect, whether the impugned sub-paragraphs in the Notice of Appeal are “frivolous, vexatious or an abuse of the process of the Court” and should be struck-out because they contravene the principle in University of Wollongong v Metwally (No 2).
My views on what will likely be in issue on appeal – and what was in issue at the trial – necessarily depend on the notice and grounds of appeal, the reasons of the primary judge, the submissions made to him and the arguments made at the hearing of this application. I do not have the benefit of the final written submissions of the parties, nor their addresses on appeal.
It is inevitable that a better view of what was in issue at trial, and what is in issue on appeal, will be formed at the hearing of the appeal. I am in no position to form any views about the merits of the appeal or, indeed, whether the impugned sub-paragraphs have any, and if so what, merit. Indeed, Mr Douglas for the respondents made it clear that I should not determine their merits.
Accordingly, it is necessary to be cautious when considering a strike-out application such as this when it is heard well before the hearing of the appeal. The exercise of power, particularly by a single judge, should be reserved for clear cases where the conclusion that the impugned sub-paragraphs in the notice of appeal are “frivolous, vexatious or an abuse of the process of the Court” can be made with confidence.[30]
[30] See Rebbeck v Housing SA [2024] SASCA 86, [17]-[18] (Livesey ACJ) (strike-out); Miojlic v City of Onkaparinga Council [2025] SASCA 2, [8], [17]-[20] (Livesey P) (summary dismissal); cf Hallett Concrete Pty Ltd v Adelaide Brighton Cement Ltd & Ors [2024] SASCA 80, [46]-[48] (Livesey ACJ, Doyle and Bleby JJA), in the context of an alleged abuse of process associated with a proposed pleading.

As well, the exercise of power under the rules is discretionary. Even if I found that the impugned sub-paragraphs in the Notice of Appeal were “frivolous, vexatious or an abuse of the process of the Court”, I must consider whether I should exercise the power conferred. For example, much may depend on my degree of confidence about whether the principle in University of Wollongong v Metwally (No 2) applies, or indeed about the extent to which I am satisfied that the impugned sub-paragraphs are an abuse or otherwise lack merit.
Even if was confident, I must consider the prospect that there may be an appeal against my decision. Paradoxically, that appeal could not be heard any earlier than around the time this appeal is listed for hearing in August. That risk has been addressed in various authorities. In Brackenridge v Bendigo and Adelaide Bank Ltd, it was explained:[31]
… Where a single Judge makes orders under r 212.5(1) they are not orders of the Court of Appeal, though they may be the orders of a single Judge of the Court of Appeal. An appeal lies to the Court of Appeal against the refusal by a single Judge to grant a stay, see s 50 of the Supreme Court Act 1935 (SA) …
[31] Brackenridge v Bendigo and Adelaide Bank Ltd [2022] SASCA 4, [8] (Livesey P).
In Cleaning Doctor NSW Pty Ltd v Fonseca, Leeming JA found that an application to strike out a notice of appeal was futile, and the power would be only be exercised in “a most unusual case”:[32]
It is to misconceive a notice of appeal to proceed as if requests for particulars are appropriate. It is to be borne in mind that in the ordinary course, the grounds of appeal will be supplemented and elaborated by written submissions provided well in advance of the hearing and well in advance of when the respondent needs to respond to the case.
It is difficult to contemplate any case where a request for particulars could be appropriate. The notion that a single judge might strike out a notice of appeal likewise is a power that would be exercised only in a most unusual case. One can contemplate prolix notices of appeal with dozens or perhaps hundreds of grounds where such an order might be appropriate. That is not this case. This notice of appeal is concise. It contains seven grounds over a page and it has been articulated by senior counsel who appeared before me today, who also appeared at trial.
Further, the application is, if one pauses for a moment, futile. Were I to accede to a motion to strike out the notice of appeal, the appellant would have a right of review under s 46 of the Supreme Court Act 1970 (NSW) and then the decision for the Court of Appeal constituted by three judges would be whether in the exercise of my discretion I had erred in concluding to the requisite high threshold that the notice of appeal was so hopeless that it warranted striking out. A complete answer to that application would be to find that the grounds of appeal had substance and so the result of success would merely be an expansion of the issues, but an expansion which would include the success or otherwise of the original grounds of appeal. Considerations not dissimilar to this may be seen in Murray Darling Basin Authority v Doyle's Farm Produce Pty Ltd [2021] NSWCA 191 at [3]-[4].
[32] Cleaning Doctor NSW Pty Ltd v Fonseca [2022] NSWCA 157, [9]-[11] (Leeming JA).
In that connection, I must also take into account the purpose for which the rule exists, and its proper place in the procedural scheme for the expeditious management and conduct of appeals by the Court of Appeal. The general rules relating to the conduct of litigation in this Court, including on appeal, commence with r 1.5 of the Uniform Civil Rules 2020 (SA):
1.5—Object
The object of these Rules is to facilitate the just, efficient, timely, cost‑effective and proportionate resolution or determination of the issues in proceedings governed by these Rules.
In addition, by r 3.1(1) there are a number of overarching obligations in parties and their lawyers:[33]
[33] Uniform Civil Rules 2020 (SA), r 3.1(1). The consequences of breach are addressed by r 3.2.
(1)A party or a person appearing or required to appear before the Court must in relation to a proceeding or an appellate proceeding—
(a)     act honestly;
(b)     not engage in misleading conduct;
(c)     not take a step that is frivolous, vexatious or an abuse of process;
(d)     not make an assertion or response to an assertion for which they do not, on the material available at the time, have a proper basis;
(e)     not take a step unless they reasonably believe that it is necessary to facilitate the resolution or determination of the proceeding;
(f)     cooperate with the other parties and with the Court in relation to the conduct of the proceeding;
(g)     use reasonable endeavours to resolve, or alternatively narrow the scope of, a dispute in or the subject of the proceeding by agreement;
(h)     use reasonable endeavours to ensure that the time and costs incurred are reasonable and proportionate to—
(i)the importance and value of the subject matter of the proceeding or step in the proceeding; and
(ii)the complexity of the issues in the proceeding or step in the proceeding;
(i)    comply with these Rules and orders made by the Court;
(j)    be prepared for and ready to proceed with a hearing, directions hearing or trial at the appointed time; and
(k)     use reasonable endeavours to act promptly and minimise delay.
Particularly, parties and their lawyers must “not take a step unless they reasonably believe that it is necessary to facilitate the resolution or determination of the proceeding” (r 3.1(1)(e)). In so far as it might be suggested that an early strike-out will narrow the scope of the dispute (r 3.1(1)(g)), that must be counter‑balanced against the obligation to “use reasonable endeavours to ensure that the time and costs incurred are reasonable and proportionate” (r 3.1(1)(h)).
Finally, and separately, as is well-known, the resources of this Court are stretched. That affects the times for hearing and for the delivery of decisions. Appeals are now being listed in the second half of this year and, in many cases, at the end of the year. In a number of contexts, it has been necessary to take robust steps to ensure that the scarce judicial and public resources available to this Court are preserved.[34]
[34] In a very different context, see McDonald & Anor v Attorney-General (SA) (No 4) [2025] SASCA 43, [202] (Livesey P, Doyle and Bleby JJA).
In all of these circumstances, the utility in applying to strike-out a handful of sub-paragraphs of a notice of appeal which will not avoid the hearing of the appeal, nor even the grounds to which they relate is, with respect, questionable.
The trial orders, notice of appeal and grounds of appeal
By Notice of Appeal dated 19 February 2025, the appellants appeal against the following orders:
It is ordered that this Court:
…
2. DECLARES that the [appellants’] purported termination of the contracts for Unit 1 and Unit 6 dated 10 January 2023 are invalid and of no legal effect.
…
3. ORDERS that the [appellants] specifically perform the contracts dated 13 September 2020 and 19 September 2020 for Unit 1 and Unit 6 respectively, and to take all steps necessary to complete the contracts, including but not limited to ensuring settlement occurs in accordance with the contracts (save that settlement shall be by a date as agreed and in any event not later than 30 June 2025).
…
5. The [appellants] are ordered to pay 50% of the appellants’ costs of the proceedings on a standard basis to be agreed or taxed.
The appellants’ grounds of appeal are as follows, remembering that sub‑paragraphs 1.1, 1.2, 2.1, 2.2, 2.3, 3.1, 3.3, 4.1 and 4.3 are in issue:
1. The Learned Trial Judge (LTJ) erred as a matter of fact or law in that, having correctly recognised that the obligation to use ‘reasonable endeavours’ was not an ‘absolute or unconditional obligation’ but one which is ‘necessarily conditioned by what is reasonable in the circumstances’ (Reasons [165] and [166]), the LTJ failed to apply that principle in that:
1.1.    The LTJ had no regard for the fact that the Appellants’ ability to affect the progression of the construction works was constrained by the terms of their contract with the Builders.
1.2.    Those constraints included:
1.2.1. the Appellants’ obligation not to give instructions to the Builders’ suppliers, subcontractors or workers (clause 7.4);
1.2.2. the Builders’ possession of the site (clause 9); and
1.2.3. the fact that the Builders were entitled to a reasonable extension of time for doing the work because of ‘materials being difficult to get’ (clause 11.3.16) or anything else beyond the control of the Builders (clause 11.3.17).
2. The LTJ, having misapprehended the nature and extent of the Appellants’ reasonable endeavours obligation, made findings that were beyond the scope of the Appellants’ proper reasonable endeavours obligation, including the following erroneous findings that the Appellants were obliged to:
2.1.    pursue (un-pleaded) variations; ‘adjustments’, ‘alternative specifications’ or a ‘re-engineering’ of the contracted scope of works (per Sentschuk Report, p5; 7 & 8), upon which the opinion of Mr Sentschuk was based and the acceptance of which led the LTJ to conclude that the reasonable endeavours obligation had not been discharged (see Reasons [234]);
2.2.    terminate a contract for the supply of pre-fabricated joinery with an overseas supplier based in China, and thereby lose a 50% deposit already paid by the Appellants, unless ‘…no joinery had yet been built’, in which case the Appellants could ‘expect the deposit to be returned’ (Reasons at [170]; [208]); and
2.3.    exercise ‘control and oversight’ over the Builders, where the degree of ‘control and oversight’ was expressly constrained by the terms of its contract with the Builders (Reasons at [209]; [210]) (referred to above).
3. The LTJ erred in concluding that ‘with the exercise of reasonable diligence on the part of the [Appellants], the Anzac Highway Development could have been completed by 29 December 2020’ (Reasons [234]) because:
3.1.    The finding was based on the LTJ’s misapprehension about the nature and extent of the Appellants’ reasonable endeavours obligation (referred to above);
3.2.    There were no intermediate findings to support the conclusion, such as the steps that the Appellants could have undertaken to progress the works or the source from which the Appellants could have procured materials and labour sufficient to achieve Practical Completion of the contract works by 29 December 2022; and
3.3.    The finding was based on the LTJ’s acceptance of the evidence of Mr Sentschuk, whose evidence was incapable of proving the Respondents’ pleaded case, being, relevantly, that if the Appellants had made enquiries with other builders or alternative suppliers, materials and labour would have been sourced and procured such that Practical Completion of the works under the contracts, would be achieved by 29 December 2022 (refer Claim 25.2(i)&(iii); and Reasons [163] and [182]).
4. The LTJ erred in fact and law at Reasons [243] and [249], because of those findings:
4.1.    Failed to regard the contractual constraints referred to above correctly.
4.2.    Were based on inferential reasoning unsupported by objective facts or any application of the principles of causation of loss.
4.3.    Were inconsistent with incontrovertible facts, including that:
4.3.1. The Appellants exercised their contractual right to extend the Proposed Practical Completion Dates from 29 June 2022 to 29 December 2022 (Reasons at [14]); as distinct from exercising their contractual right to terminate on non-satisfaction of Practical Completion on 29 June 2022 (per Special Condition 7.2);
4.3.2. Building works continued from May 2021 through December 2022;
4.3.3. The Appellants had taken no steps to re-market or re-sell the land the subject of the contracts;
4.3.4. The Builders had not breached their own contractual obligations to the Appellants or delayed the performance of their own obligations; and
4.3.5. The Appellants had agreed to convert the original fixed-price build contracts to cost-plus contracts, thereby increasing their exposure and absorbing increased material and labour prices.
Sub-paragraph 1.1 of the impugned sub-paragraphs articulates a contention that the primary judge failed to apply the principle that the appellants’ “reasonable endeavours” was not an “absolute or unconditional obligation” but one which is “necessarily conditioned by what is reasonable in the circumstances”. These circumstances are said to have included that the appellants’ ability to affect the progression of the construction works was constrained by the terms of their contract with their builders. Sub-paragraph 1.2 of the impugned sub-paragraphs provides particulars of that contention.
Sub-paragraph 2.1 contends that a finding that the appellants were obliged to pursue variations of the contracted scope of works fell beyond the scope of the “reasonable endeavours” obligation.
Sub-paragraph 2.2 similarly provides that a finding that the appellants were obliged to terminate a contract for the supply of prefabricated joinery with an overseas supplier unless “no joinery had been built” went beyond the scope of the “reasonable endeavours” obligation.
Sub-paragraph 2.3 complains about a finding concerning the extent to which the appellants could exercise “control and oversight” over the builders, where it is contended that the degree of “control and oversight” was expressly constrained by the terms of the appellants’ contract with the builders. Reference is made to the reasons of the primary judge.
Sub-paragraph 3.1 contends that there was misapprehension about the nature and extent of the appellants’ reasonable endeavours obligation “referred to above”.
Sub-paragraph 3.3 provides that the primary judge’s finding that the development could have been completed by the Sunset Date with the “exercise of reasonable diligence” by the appellants was based upon the primary judge’s acceptance of an expert witness, Mr Sentschuck, which it is contended was incapable of proving the respondents’ pleaded case.
Sub-paragraph 4.1, similarly, contends that the primary judge “[f]ailed to regard the contractual constraints referred to above correctly”.
Sub-paragraph 4.3 complains that the primary judge’s conclusion that the development could have been completed by the Sunset Date with the “exercise of reasonable diligence” by the appellants was inconsistent with incontrovertible facts. One of the references to the reasons of the primary judge is to [210]:
The obligation to progress the development was not that of the builders, it was the obligation of the respondents. There was evidence that the builders were handling other projects at the relevant time. There is the issue of their competence, familiarity with the local conditions, business acumen, all of which should have been taken into account by the respondent when exercising appropriate oversight of the progress of the development.
Whether a party has exercised best endeavours is a question of fact.[35] Likewise, whether a party has breached an obligation to exercise reasonable endeavours is a question of fact.[36] I accept that it is important to consider what was pleaded into issue between the parties, as well as the conduct of the case by the parties, whether through their submissions or through the evidence that was led and tested by the parties at the trial.
[35] Yeung v Desnor Pty Ltd (1989) 5 BPR 11,343, 11,345 (Waddell CJ in Eq); Hall v Foster [2011] NSWSC 295, [62] (Tamberlin AJ).
[36] Wang v Kaymet Corporation Pty Ltd [2015] NSWSC 1459 (Stevenson J).
The appellants’ conduct of the trial
The appellants pleaded that practical completion did not occur because of the unavailability of materials and labour and that this was beyond their control.[37] There has always been an issue between the parties as to whether the appellants could rely on the failure by the builders to supply materials and labour, in part due to the pandemic. What is raised by this application is whether or to what extent the appellants propose to go beyond that issue.
[37] Defence – Revision 3, [16.1]-[16.3], [25.1].
The contracts between the appellants and the builders were tendered and the appellants called evidence from the builders. In their written submissions under the heading “Reasonable endeavours – Performance”, the appellants outlined the following basis for the contention that the appellants did all they could to progress the Development:[38]
[38] Written Submissions dated 20 June 2024, [404].
Secondly, the Developers did all they could to fund all aspects of and progress the Development. It cannot be said that funds were withheld or that any delay fell to any inaction of the Developers. The Developers role was separate to and cannot be conflated with that of the Builders. The Developers engaged the Builders as the independent contractors to progress and further the Development (Affidavit of Otto Zhu R19 at [32] to [33]). In that context the notion of what was within the power and ability of the Developers to do to progress is confined. The Developers role was – at a high level – to ensure the Builders were in a position to progress and further construction. The evidence is as follows:
a.The evidence of Mr Sentschuk referred to above at T373:38; T373:10; T374:3 and T373:18-25
b.Affidavit of Otto Zhu - R19 at [90] to [109].
c.Affidavit of Changui Wu – FDN103 at [22] to [26], and [102] to [105].
d.Affidavit of Jiyu Zhu – R18 at [21] to [22], and [53] to [55].
e.Cross examination of Changhui Wu – T538:29 to T539:24; T540:1-15; T541:4-20; T543:19-25; T547:34 to T550:11.
f.Cross examination of Jiyu Zhu – T570:10 to T571:8.
g.Cross examination of Otto Zhu – T586:19-23; 597:34 to 598:1, 599:30-33
Further, the appellants in their supplementary written submissions contended that their role was limited to complying with obligations under the contract with the builders:[39]
The [Respondents] submit at [15] that the absence of communications of ‘plans, recommendations or advice’ demonstrates that the ‘Developers delegated their responsibility to the Builders’. The [Appellants] respectfully disagree and reply as follows:
a.The Developers have not abdicated or delegated their obligation to use reasonable endeavours. The nature of their obligation must be understood in the context of the role of the Developer as against the role of the Builder. The Developer and the Builder have different roles and responsibilities in a development of this nature. They are in different lanes, driving in the same direction.
b.The experts were united as to the separate and distinct roles of the Builder vs the Develop (Sentschuk at T373:38). It was the Builders’ role to source materials and labour, not the Developers (Sentschuck T373:10; T374:3); the Developers role was limited to complying with obligations under the build contract, which included the payment of invoices; dealing with council and approvals and nothing beyond that (Sentschuk T373:13-25); there is nothing a Developer as distinct from a Builder could do to abridge COVID-19 delays in materials and labour (Paddick T514:33).
[39] Supplementary Written Submissions dated 26 June 2024, [12].
What was ultimately in issue at trial was, amongst other matters, whether the appellants had used their “reasonable endeavours” to achieve practical completion before the Sunset Date given their reliance on the builders. As best I can tell at present, it is difficult to say whether the appeal raises a new case on constraint which is being run for the first time or whether, by contrast, the same case is being run in a slightly different or perhaps a more expansive way.

Whether additional discovery and evidence may have been relevant is presently difficult to determine. I am, as I have said, in no position to decide whether the impugned sub-paragraphs lack merit.
I cannot presently conclude that it is against the interests of justice for the appellants to raise these matters. The issue whether some of the impugned sub‑paragraphs breach the principle in University of Wollongong v Metwally (No 2), or otherwise raise unmeritorious questions of fact must, in the circumstances of this case, be determined at the hearing of the appeal.
Conclusion
The respondents’ application to strike-out the impugned paragraphs of the Notice of Appeal must be dismissed.
It is difficult to see what this pre-appeal skirmish will do other than add to the time, trouble and costs of the parties. Even though the respondents may ultimately succeed in demonstrating that the impugned sub-paragraphs breach the principle in University of Wollongong v Metwally (No 2), or that they are otherwise without merit, it is appropriate, in the circumstances, to order that the respondents pay the appellants’ costs of the unsuccessful application.
The orders of the Court are:
1.The respondents’ application dated 25 March 2025 seeking strike-out is dismissed.
2.The respondents must pay the appellants’ costs of the application on a standard costs basis.