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] [1992] NSWCA 262

The amendment to the notice of appeal was allowed because it was construed as confined to the factual issue litigated at trial, namely whether the lessor could have required the guarantors to sign the lease but did not seek to do so. Thus, no procedural unfairness arose. Fresh evidence was unnecessary as the amendment does not go beyond issues contested at trial.

Parties
Appellant: Verdi La Fontana Pty Ltd; First Respondent: Mabrouk Pty Ltd; Second Respondent: second respondent; Third Respondent: third respondent
Jurisdiction
Australia
Judgment Date
13 April 1992
Procedural Posture
Appeal / Interlocutory Application
Outcome
Amendment to grounds of appeal allowed; application to call fresh evidence refused.
Legal Topics
Amendment of Grounds of Appeal, Addition of Fresh Ground, Tender of Fresh Evidence, Confined Issues on Appeal
Practice and Procedure Amendment of Grounds of Appeal Addition of Fresh Ground Tender of Fresh Evidence Confined Issues on Appeal

Case Brief

Summary, issues, holding and outcome

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Parties

Verdi La Fontana Pty Ltd

Appellant

Mabrouk Pty Ltd

First Respondent

second respondent

Second Respondent

third respondent

Third Respondent

Procedural Posture

Appeal / Interlocutory Application

Legal Issues

  1. 1 Whether the appellant can amend the notice of appeal to add a new ground confined to issues litigated at trial
  2. 2 Whether fresh evidence should be admitted

Ratio Decidendi

The amendment to the notice of appeal was allowed because it was construed as confined to the factual issue litigated at trial, namely whether the lessor could have required the guarantors to sign the lease but did not seek to do so. Thus, no procedural unfairness arose. Fresh evidence was unnecessary as the amendment does not go beyond issues contested at trial.

Court Disposition

Amendment to grounds of appeal allowed; application to call fresh evidence refused.

Orders

  • Amendment to grounds of appeal to incorporate ground 3(b) allowed
  • Tender of fresh evidence refused