Agusta Pty Limited v Provident Capital Limited

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Agusta Pty Limited v Provident Capital Limited [2008] NSWCA 234

FILE NUMBER(S):
40087/08

HEARING DATE(S):
17 September 2008

EX TEMPORE DATE:
17 September 2008

PARTIES:
Agusta Pty Limited (First applicant)
Nida Ferella (Second applicant)
Provident Capital Limited (Respondent)

JUDGMENT OF:
Beazley JA McColl JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 4539/06

LOWER COURT JUDICIAL OFFICER:
Phegan DCJ

LOWER COURT DATE OF DECISION:
23 November 2007

COUNSEL:
D Ash (Applicants)
M Ashhurst SC (Respondent)

SOLICITORS:
Colin Biggers & Paisley (Applicants)
Tiernan & Associates (Respondent)

CATCHWORDS:
APPEAL - issue not raised at trial - quantum meruit and new factual issue raised - summons dismissed

LEGISLATION CITED:

CASES CITED:

TEXTS CITED:

DECISION:
The summons is dismissed with costs.

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40087/08
BEAZLEY JA
McCOLL JA
Ex tempore 17 September 2008

Agusta Pty Limited & Anor v Provident Capital Limited

Judgment

THE COURT: The Court refuses leave in this matter. Leave is sought on an issue not raised at trial. If the issue which is sought to be raised on an appeal (if leave was granted) had been raised at trial, it would most likely have caused an amendment to the plaintiff’s pleadings, so as to raise a claim on a quantum meruit. That in turn would have raised a factual question whether any benefit had been received by the defendants in those proceedings, the defendants being the applicant for leave.
This is not a case where a new issue on a point of law only is sought to be agitated on the appeal. It is to be kept in mind that:
“In the common law system of civil justice the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal”: Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 per Gleeson CJ at [2].
There are circumstances where the Court will permit a new point to be raised on appeal but those circumstances are constrained and usually confined to where the point sought to be raised is a point of law only. As we have said, what is sought to be raised here would have involved factual issues, had it been raised at trial.
The summons is dismissed with costs.

LAST UPDATED:
29 September 2008

CaseChat Overview and Summary

Agusta Pty Limited (the appellant) appealed a decision of the primary judge who had dismissed its summons. The dispute concerned a claim for a quantum meruit payment, with the appellant seeking to raise a new factual issue on appeal that had not been canvassed at trial. The appeal was heard by Beazley JA and McColl JA in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether it should permit the appellant to raise a new factual issue on appeal, which had not been pleaded or relied upon at the trial, in support of its claim for a quantum meruit payment. This involved considering the principles governing the admission of fresh evidence or new arguments on appeal, particularly where such matters were not considered by the court of first instance.

The Court of Appeal held that it was not appropriate to allow the appellant to raise a new factual issue on appeal that had not been raised at trial. The Court applied the well-established principle that appeals are generally limited to the issues that were before the trial judge, and that new factual issues should not be introduced at the appellate stage unless there are exceptional circumstances. The Court found that no such exceptional circumstances were present in this case, and that to allow the new factual issue would be to permit the appellant to run a case that was not presented to the primary judge.

Consequently, the summons was dismissed with costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established