Yi v Park

The appeal in *Yi v Park* concerned a dispute between the appellant and the respondent regarding a contract. The case was heard by Bell CJ, Mitchelmore and Adamson JJA in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether an argument sought to be advanced by the respondent on appeal was outside the scope of the pleadings and the way the case was conducted at first instance, and whether there was a presently owing debt at the time the agreement was entered into, which was relevant to the issue of consideration, specifically forbearance to sue. The Court also considered whether the primary judge had made a finding that such a debt existed, given the pleadings were silent on the origin of any indebtedness.

The Court of Appeal allowed the appeal, finding that the respondent was attempting to advance a new argument on appeal that was not pleaded at first instance and did not reflect how the trial was conducted. The Court noted that the evidence relied upon by the respondent on appeal had not been challenged at first instance precisely because of the way the case had been formulated and run. Consequently, the Court set aside the orders of the Court below and dismissed the plaintiff's claim with costs, ordering the respondent to pay the appellant's costs of the appeal.