Edwards v Merlaust Pty Ltd [2023] NSWSC 1477

Supreme Court New South Wales

Medium Neutral Citation: Edwards v Merlaust Pty Ltd [2023] NSWSC 1477 Hearing dates: 24 November 2023 Date of orders: 5 December 2023 Decision date: 05 December 2023 Jurisdiction: Common Law Before: Schmidt AJ Decision: (1) The appeal is dismissed. (2) Unless the parties approach to be heard within 7 days, Mr and Mrs Edwards bear Merlaust's costs as agreed or assessed. Catchwords: APPEALS — Procedure — Further evidence on appeal — appeal from Local Court — Local Court Act 2007 (NSW), s 39 — Whether plaintiffs could tender evidence on appeal not relied on at first instance and for which leave had not been sought — Uniform Civil Procedure Rules 2005 (NSW), r 50.16 — Appeal confined to an error of law — evidence could only raise questions of fact — not for this Court to determine - receipt of evidence not relied on upon first instance refused APPEALS — Procedure — whether a question of law raised for the first time on appeal could be considered — only in exceptional circumstances —expedient in the interests of justice to consider the new legal arguments raised on construction questions CONTRACTS — Construction — Interpretation —Consideration — whether there was a binding contract which varied a lease — whether any consideration was given — no consideration when a promisor promises to do something they are already bound to do — past consideration is not good consideration — no additional consideration given —appeal dismissed Legislation Cited: Local Court Act 2007 (NSW), s 39(1) Uniform Civil Procedure Rules 2005 (NSW), rr 50.16, 42.1 Cases Cited: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Director of Public Prosecutions for Victoria v Le [2007] HCA 52 Larkin v Girvan (1940) 40 SR (NSW) 365 Rose v Tunstall [2018] NSWCA 241 SAS Realty Developments v Kerr [2013] NSWCA 56 Searle v Commonwealth of Australia [2019] NSWCA 127 Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 University of Wollongong v Metwally (No. 2) [1985] HCA 28; (1985) 59 ALJR 481, at 483; [1985] HCA 28; 60 ALR 68 White Pointer Investments Pty Ltd v Creative Academy Group Pty Ltd [2023] NSWSC 817 Category: Principal judgment Parties: Andrew Edwards (First Plaintiff) Maureen Edwards (Second Plaintiff) Merlaust Pty Ltd (Defendant) Representation: Counsel: M V Sahade (Plaintiffs) Q Rares (Defendant)