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. The identified issues were three. The second of them was that the lessor could have required Mr Civitarese and Mr Barbi (the guarantors) to sign a new lease but has not sought to do so. The third of them was that the lessor asked Mr Civitarese or Mr Barbi of the guarantors not so sign the lease. Young J found the third issue against the appellant. That issue is not being contested in the appeal. However, the appellant has sought to argue that the second issue in the statement of issues before Young J (that is issue 1(b) in the statement of issues) should be read widely, ie that the lessor had failed to do various things, which it could, or should, have done, in order to secure the signature of the lease by the guarantors. The first respondent has said that this issue, so read, was not a matter which was in contest at the trial and that, had it been in contest, evidence would have been adduced to the effect that steps were indeed undertaken and a request made that the guarantors sign the lease. Such evidence was not adduced, because the issue was not in contest. To allow a contest now would involve a procedural unfairness. Cf Coulton, ibid, 8. 2 UNREPORTED JUDGMENTS It does seem to me that the objection which the lessor has taken is a good one. A proper understanding of Young J's reasons, now illuminated by the statement of issues which was before his Honour, confirms that what Young J was considering was whether the lessor should have required Mr Civitarese and Mr Barbi, the reluctant guarantors, to sign the lease and nothing else. This was the way in which I would construe para3(b) of the Further Amended Notice of Appeal. It will not be construed as going beyond that issue. An amendment to allow the issue, so understood, to be argued in the appeal involves no procedural unfairness because it was certainly an issue in contest at the trial. I would propose therefore that the Court allow the amendment in para3(b) in the terms sought. But we should make it clear that the appellant is confined in argument upon that paragraph to the matter which was contested at trial, as set out in the statement of issues. This was that the lessee was entitled to a renewal of the lease because the lessor could have required Mr Civitarese and Mr Barbi, as guarantors, to sign the lease but had not sought do so: eg by proceeding to procure an order for specific performance. That and that alone was the matter which was contested at trial. Secondly, that is all that the appellant should be allowed to argue in the appeal. Clarke JA Yes I agree. Cripps JA Yes, I also agree. KIRBY P: That therefore is how the Court will approach the proposed amendment. The amendment sought is allowed. The application to call fresh evidence is refused, as unnecessary in view of the way in which the Court interprets the amendment which it has allowed. 1. Amendment to grounds of appeal to incorporate ground 3(b) allowed; 2. Tender of fresh evidence refused. Counsel for the appellant: GA Palmer QC / CJ Callaway Solicitors for the appellant: Daniele Scott Counsel for the first respondent: FP Carnovale Solicitors for the first respondent: F Del Duca and Co Counsel for the second and third respondents: MG Skinner Solicitors for the second and third respondents: Holmes and Bevan