A respondent's failure to plead a positive case — particularly one tantamount to alleging fraud — and reliance instead on a bare non-admission is a significant factor in assessing whether an appellant exercised reasonable diligence in obtaining evidence for trial under s 75A(8) of the Supreme Court Act 1970 (NSW). The surprise caused by the unpleaded positive case may excuse the appellant's failure to call witnesses who could have rebutted the case actually run at trial. The 'cards on the table' approach to litigation reinforces this: parties who ambush opponents at trial risk fresh evidence being admitted on appeal.
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