Thomas v HP Mercantile Pty Ltd [2008] NSWCA 308

New South Wales Court of Appeal

CITATION: Thomas v HP Mercantile Pty Ltd [2008] NSWCA 308

HEARING DATE(S): 6 - 7 November 2008

JUDGMENT DATE: 20 November 2008

JUDGMENT OF: Spigelman CJ at 1; Tobias JA at 2; Sackville AJA at 3

1. The summons filed on 28 March 2007 by the claimant in CA No 40822 of 2006 ("Mr Thomas") seeking leave to appeal from the decision of the primary Judge be dismissed. 2. Mr Thomas pay the costs of the opponent ("HPM") to application for leave to appeal referred to in Order 1. DECISION: 3. Mr Thomas' summons filed on 1 October 2008, seeking an order that the Court receive further evidence, be dismissed. 4. Mr Thomas pay HPM's costs of the summons referred to in Order 3. 5. The amended summons filed on 24 October 2008 by the claimant in CA No 40220 of 2007 ("Mr Hobson"), seeking an order extending the time for the filing and serving of a summons seeking leave to appeal, be dismissed, with costs. 6.The summons filed on 13 April 2007 by the claimant in CA No 40221 of 2007, seeking an order extending the time for the filing and serving of a summons seeking leave to appeal, be dismissed, with costs.

CATCHWORDS: ASSIGNMENT OF CHOSE IN ACTION: Deed of loan between financier and investor in orchard project – offer of assignment of debt capable only of oral acceptance – whether funds actually advanced under deed of loan – whether offer of assignment validly accepted – whether assignment supported by consideration – whether assignment was immediate and unconditional so as to be enforceable in equity. - APPEAL – Application to adduce further evidence under s 75A(7) of the Supreme Court Act 1970 (NSW) – whether "special grounds" where evidence could have been obtained at trial.