The Suttor v Gundowda principle does not preclude an appellate court from entertaining an alternative legal characterisation of undisputed facts where no different evidence could by any possibility have been called to prevent the point from succeeding. The Court of Appeal's powers under s 75A(10) of the Supreme Court Act 1970 (NSW) extend to entering judgment against a party joined as respondent to an appeal, even in the absence of a cross-appeal, provided the party has had a full opportunity to be heard on the substantive point. However, the scope of these powers remains contested, with Powell JA expressing reservations.
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