Volanne Pty Ltd v International Consulting and Business Management (ICBM) Pty Ltd (No 3)

Volanne Pty Ltd (the applicant) sought to adduce fresh evidence on appeal in proceedings against International Consulting and Business Management (ICBM) Pty Ltd (the respondent). The appeal concerned the calculation of the judgment sum arising from a previous decision. The fresh evidence proposed by the applicant related to an allegation that repayments made by the respondent were not to be allocated first to interest, contrary to the usual presumption.

The primary legal issue before the court was whether to admit the fresh evidence on appeal. This required the court to consider whether the issue to which the evidence related was in contest at the trial, whether the evidence was credible, and whether its admission would cause unfair prejudice to the respondent. The court also had to determine if exceptional circumstances justified departing from the usual rule that fresh evidence is not admitted on appeal.

The court reasoned that the issue of the allocation of repayments was not in contest at the trial, and therefore the applicant had not demonstrated exceptional circumstances for admitting fresh evidence on appeal. The court found that admitting the evidence would likely cause unfair prejudice to the respondent, as it would require a reopening of the factual basis of the judgment. Consequently, the application to adduce fresh evidence was dismissed. The court then directed the parties to confer on the remaining orders, including the judgment sum and costs, and to file submissions if agreement could not be reached.