Yi v Park [2024] NSWCA 187

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Yi v Park [2024] NSWCA 187 Hearing dates: 26 July 2024 Date of orders: 31 July 2024 Decision date: 31 July 2024 Before: Bell CJ at [1]; Mitchelmore JA at [56]; Adamson JA at [57]. Decision: 1. Allow the appeal. 2. Set aside order 1 of the Court below made on 22 March 2024 and orders 2 and 3 made on 11 April 2024 and in lieu thereof, order that the plaintiff's claim is dismissed with costs. 3. Order the Respondent to pay the Appellant's costs of the appeal. Catchwords: APPEALS – point not taken below – whether argument sought to be run on appeal was outside the pleadings and the manner in which the case was run at first instance – where evidence relied upon by the Respondent on appeal was not challenged by the Appellant at first instance given the way the case has been formulated and run CONTRACTS – formation – consideration – forbearance to sue – whether there was a presently owing debt as at the date when the agreement was entered into – whether the primary judge made a finding that there was a presently owing debt as at the date when the agreement was entered into – where pleadings were silent as to how any indebtedness was said to have arisen – where the Respondent sought to advance a different argument on appeal that was not pleaded at first instance and did not reflect the way the trial was conducted at first instance Legislation Cited: Contracts Review Act 1980 (NSW) Family Law Act 1975 (Cth) s 90C Cases Cited: Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Eastwood v Kenyon (1840) 11 Ad & E 438 Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 75 ALJR 867 SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56 University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 Category: Principal judgment Parties: Chong Eun Yi as the executor of the late Young Ja Yi (Appellant) Eun Ju Park (Respondent) Representation: Counsel: