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. 2 UNREPORTED JUDGMENTS On the issue of the amount of the indebtedness her only submission was that a document summarising its computation came from an affidavit which was filed in different, but related, proceedings. Since, however, it was proved afresh in the trial before his Honour, and admitted into evidence, that submission must fail. On the only other issue in contest is that of rectification. Whilst Mrs Poulos submitted that his Honour was in error, she failed to suggest any rational argument why that was so. Therefore, on this issue also she must fail. Her principal submission, and the only one addressed in her written submissions, went to the identity of the lender. It was not, so her argument ran, the first plaintiff but one (or perhaps more than one) of the other plaintiffs. This submission must also be doomed to failure, as no such issue was ever raised at the trial, and its exploration clearly might have necessitated further and different material to have been led by the plaintiffs it if had been in issue. The inevitable result is that both appeals (one by the first defendant but not pursued, and one by the other defendants but pursued only by Mrs Poulos) must be dismissed with costs. The Appellant appeared in person Counsel for Glenwood Investments: D COHEN (SOLICITOR), SD EPSTEIN Solicitors for Glenwood Investments: E. FREDERICKS and CO. Solicitors for the Respondent: LINCOLN SMITH and CO.