POULOS v ELDERS LENDSWORTH FINANCE LTD [1990] NSWCA 147

POULOS v ELDERS LENDSWORTH FINANCE LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and MEAGHER JJA 27 November 1990, 5 December 1990

[1990] NSWCA 147 APPEAL — POINT NOT TAKEN BELOW

Mahoney JA I agree with the judgment of Meagher JA.

Mrs Poulos presented written submissions and courteously developed them before this Court. But, as Meagher JA has said, the only submission addressed in her written submissions, that relating to the identity of the lender, was not presented at the trial. She made other submissions but these also were not presented at the trial. The Court explained to her the reasons why, in circumstances such as the present, points not taken at the trial cannot be pursued by this Court. These matters, insofar as they were pursued, might have been cured by evidence at the trial. Mrs Poulos raised the possibility of her tendering evidence before this Court in relation to some of the matters. She was referred to the restrictions in this regard imposed by the relevant legislation: Supreme Court Act 1970, s75A, The evidence to which she referred was, she indicated, evidence which would have been available at the trial. In the end she did not tender any such evidence.

There is no reason for disturbing the judgment given by Needham J.

Priestley JA I agree with what is said by both Mahoney and Meagher JJA in explaining why this appeal must be dismissed with costs.

Meagher JA This is an appeal by Mrs Poulos against a judgment of Needham J in the Equity Division. In the proceedings before his Honour there were five plaintiffs, all of these companies which were associates of each other. They sued the first defendant, Glenwood Investments Pty. Ltd; Mr and Mrs Poulos, the second defendants; Hacide Pty. Ltd, the third defendant; and Jenasu Pty. Ltd., the fourth defendant. The plaintiffs alleged that the first plaintiff, Elders Lensworth Finance Ltd., lent certain monies to the first defendant, Glenwood Investments Pty. Ltd; that the second and fourth defendants entered into a deed of guarantee of that loan; and that the second and third defendants executed certain mortgages by way of guarantee of that loan over the properties in favour of the plaintiffs. They sought orders that the defendants repay the amount of the loan together with interest, orders for possession of the mortgaged properties, and rectification of one particular of the mortgages. This last mentioned order was thought to be necessary because without it an arguable case could be made that the mortgages were not security for the loan. The various defendants filed defences, all in similar form. Most of the defences were abandoned at the trial, when the defendants were represented by skilled senior and junior counsel. At the trial, only two issues were pursued: the amount of the loan and the question of rectification. His Honour decided both issues in favour of the plaintiffs, and accordingly made orders as requested by the plaintiffs. All defendants filed notices of appeal, but Mrs Poulos was the only appellant who persisted with the appeal.