TOTAL AUSTRALIA LTD v DRAKE BROS PTY LTD [1988] NSWCA 158

TOTAL AUSTRALIA LTD v DRAKE BROS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope Ap, MCHUGH and CLARKE JJA 8 March 1988

[1988] NSWCA 158

Decision on preliminary question of fact — application for leave to appeal — application supported by claim that decision might result in final determination of case — leave granted — at hearing of appeal appellant raises fresh matters not previously raised in pleadings or otherwise — fresh matters requiring evidence to support them — leave to appeal revoked and appeal dismissed.

ORDERS Leave to appeal and order as to costs of application revoked.

Appeal dismissed.

Appellant to pay costs of appeal and application for leave to appeal.

Hope JA The Court has before it an appeal from a decision by Yeldham J declaring that the matters pleaded in pars19-21 of the defendant's statement of defence to the plaintiffs' further amended statement of claim did not as a matter of law constitute a defence to that further amended statement of claim and ordering that those paragraphs be struck out, the defendant to pay the costs of the plaintiffs of the separate trial of this issue. As appears from that last order, his Honour's orders were made at a separate preliminary trial of the issue.

Application was made by the present appellant for leave to appeal from that decision to this Court, and on 24 August 1987 that leave was granted. Undoubtedly, an important consideration in the granting of leave was the submission that a decision in the matter if adverse to the appellant would determine the proceedings finally, save in respect of one of the plaintiffs.

The matter has now come on as an appeal pursuant to the leave that was granted. As recently as yesterday the appellant for the first time indicated that it would seek to rely upon matters which were not raised before Yeldham J, nor in the application for leave to appeal, nor in the notice of appeal. These matters concern questions as to whether leases were in existence on a particular date and as to whether the losses sustained and claimed by the plaintiffs are purely economic and not recoverable on that account. Both these questions involve the resolution of questions of fact which are not covered by an agreed statement of facts and which would necessarily be the subject of evidence at a hearing.