VERDI LA FONTANA PTY LTD v MABROUK PTY LTD and ORS [NO 2] [1992] NSWCA 262

VERDI LA FONTANA PTY LTD v MABROUK PTY LTD and ORS [NO 2] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P CLARKE and CRIPPS JJA 13 April 1992, 13 April 1992 [1992] NSWCA 262

PRACTICE and PROCEDURE — Court of Appeal — grounds of appeal — amendment of — addition of fresh ground — contingent tender of evidence by respondent — held: (1) The amendment should be allowed on the basis that it would be construed as confined to the issues of fact litigated at trial. Coulton and Ors v Holcombe and Ors (1986) 162 CLR 1 applied; (2) Accordingly, fresh evidence rejected as unnecessary.

Kirby P The appellant has sought to file a Further Amended Notice of Appeal. It contains a new paragraph which, although numbered (c), is actually para3(b). It reads:

"Tn addition or in the alternative there was an implied obligation on the part of the first respondent to do all that was reasonable on its part to obtain execution of the new lease by the guarantors and having failed to do anything to procure such execution it was not entitled to rely on the absence of such execution to avoid its obligation to grant a new lease."

The first respondent (the lessor) has contested the addition of the ground. It has done so upon the basis that the issue was not litigated at the trial. It is trite law that this Court must confine issues which are presented in the appeal to those which were litigated at the trial. An exception arises where the issue raised is one of law upon which there was no evidence which would have been relevant to the issue at the trial. See Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438; Coulton and Ors v Holcombe and Ors (1986) 162 CLR 1, 7f.

We have seen the plaintiff's statement of issues which were presented to Young J. His Honour considered this statement in the answers which he gave to the questions which were contested before him. The statement defined those questions.