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trial — claim for compensation for wrongful lodgment of a caveat — claim determined under s98 Real Property Act 1900 (repealed) instead of under substituted provisions of s74P of the Act — larger issues raised by s74P included whether caveat unreasonably refused to withdraw caveat —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." In my opinion, the appellant should not have such leave to enlarge the grounds of appeal in this way. By the appellant's summons, the appellant sought, amongst other things, an order that the respondent withdraw a caveat lodged by it. It also sought an order that the respondent pay the appellant compensation under s74P of the Real Property Act 1900. However, when the matter came on for trial before Young J, the issue which was tendered to his Honour was whether the appellant was entitled to compensation under s98 of that Act. It is now suggested that this was a mistake on the part of those then representing the appellant. I should say that counsel at the trial was not counsel before us. The application to amend cannot be allowed because, for the Court to allow it, would involve that kind of procedural unfairness which the High Court has said repeatedly is impermissible. See for example Coulton v Holcombe (1986) 162 CLR 1, 7f. 2 UNREPORTED JUDGMENTS It is plain that the issue which Young J tried was whether or not the caveat was lodged without reasonable cause. The new s74P of the Real Property Act addresses the attention of a court considering a claim as to whether the caveat was lodged without reasonable cause. However, it also poses a question of whether the caveator has unreasonable refused to withdraw the caveat. It is plain that, had the second issue been tendered for decision, it would have given rise to evidence and also submissions to his Honour, on a larger frame of reference than that which was raised before him. It is said that there was evidence concerning the issue of unreasonable refusal contained in affidavits which were before his Honour. However, those affidavits were not the subject of cross examination on the specific point of unreasonable refusal to withdraw. They might have been had the issue now tendered by the supplementary notice of appeal been tried before Young J. Accordingly, it appears to be quite clear that the appellant should not have the permission of the Court to enlarge the issues on the appeal which were not litigated at the trial. I would therefore decline the motion for leave to enlarge the notice of appeal in terms of the supplementary notice of appeal. I initial that document. It will be placed with the papers. Clarke JA I agree. The first additional ground sought to be relied on asserts his Honour was in error in deciding the issue between the parties by reference to s98 of the Real Property ACt 1900 rather than s74P of that Act. This is a rather bold claim, in the light of the fact that it is clear from his Honour's judgment that he considered the application under s98 at the express invitation of the appellant. Ido not think there is any basis in which the claim now sought to be raised can properly be litigated in this Court, bearing in mind the course of the proceedings in the court below. I would agree with the orders proposed by Kirby P. Waddell AJA I agree with the orders proposed and with the reasons which have been given. Kirby P: The application is refused. Counsel for the Claimant: Dr Lindgren/S White Counsel for the Opponent: P Stone Solicitors for the Claimant: Wall and Associates Solicitors for the Opponent: Snelgrove and Partners