Agusta Pty Limited v Provident Capital Limited

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.

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].

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.

The summons is dismissed with costs.