New South Wales Court of Appeal CITATION: Agusta Pty Limited v Provident Capital Limited [2008] NSWCA 234 HEARING DATE(S): 17 September 2008 JUDGMENT OF: Beazley JA at 1; McColl JA at 1 EX TEMPORE JUDGMENT DATE: 17 September 2008 DECISION: The summons is dismissed with costs. CATCHWORDS: APPEAL - issue not raised at trial - quantum meruit and new factual issue raised - summons dismissed Agusta Pty Limited (First applicant) PARTIES: Nida Ferella (Second applicant) Provident Capital Limited (Respondent) FILE NUMBER(S): CA 40087/08 COUNSEL: D Ash (Applicants) M Ashhurst SC (Respondent) SOLICITORS: Colin Biggers & Paisley (Applicants) Tiernan & Associates (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 4539/06 LOWER COURT JUDICIAL OFFICER: Phegan DCJ LOWER COURT DATE OF DECISION: 23 November 2007 - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40087/08 BEAZLEY JA McCOLL JA Ex tempore 17 September 2008 Agusta Pty Limited & Anor v Provident Capital Limited Judgment 1 THE COURT: The Court refuses leave in this matter. Leave is sought on an issue not raised at trial. If the issue which is sought to be raised on an appeal (if leave was granted) had been raised at trial, it would most likely have caused an amendment to the plaintiff's pleadings, so as to raise a claim on a quantum meruit. That in turn would have raised a factual question whether any benefit had been received by the defendants in those proceedings, the defendants being the applicant for leave. 2 This is not a case where a new issue on a point of law only is sought to be agitated on the appeal. It is to be kept in mind that: "In the common law system of civil justice the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal": Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 per Gleeson CJ at [2]. 3 There are circumstances where the Court will permit a new point to be raised on appeal but those circumstances are constrained and usually confined to where the point sought to be raised is a point of law only. As we have said, what is sought to be raised here would have involved factual issues, had it been raised at trial. 4 The summons is dismissed with costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.