BECA DEVELOPMENTS PTY LTD v IDAMENCO (NO 92) PTY LTD [NO 1] [1990] NSWCA 20

BECA DEVELOPMENTS PTY LTD v IDAMENCO (NO 92) PTY LTD [NO 1]

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE JA, WADDELL AJA 9 October 1990, 9 October 1990 [1990] NSWCA 20

PRACTICE and PROCEDURE — Court of Appeal — grounds of appeal — enlargement of — common mistake at trial — claim for compensation for wrongful lodgment of a caveat — claim determined under s98 Real Property Act 1900 (repealed) instead of under substituted provisions of s74P of the Act — larger issues raised by s74P included whether caveat unreasonably refused to withdraw caveat — whether appellant should be permitted at hearing of appeal to rely on additional ground notwithstanding the manner in which the parties had conducted the trial — held: Having regard to the conduct of the trial including by the appellant and the larger evidentiary questions raised by the proposed additional ground, the appellant should not be permitted to raise the fresh grounds as to do so would involve procedural unfairness to the respondent. Coulton v Holcombe (1986) 162 CLR 1, 7 referred to. Real Property Act 1900, s74P, s98.

ORDERS Application refused.

Kirby P (On application for leave to file supplementary notice of appeal)

On the return of this appeal the appellant sought the leave of the Court to file a supplementary notice of appeal to enlarge the grounds of challenge to the decision below. The supplementary notice of appeal sought to add to the notice of appeal originally filed the following two grounds:

"2. His Honour was in error in deciding the issue between the parties by reference to s98 of the Real Property Act 1900 (NSW) rather than s74P of that Act, which was the applicable section and which was the section referred to in para5S of the amended summons.

3. His Honour was in error in holding (at TR 5.3) that he had to focus on what happened at the time of lodgement of the caveat and not on the reasonableness or unreasonableness of what the solicitor for the caveator may have done since that date."