A trial judge errs in law by failing to determine a pleaded defence that has not been abandoned, even where neither party makes submissions on it at trial; the correct approach is to inquire of counsel why no submissions were made. Pre-judgment interest under s 32 of the Supreme Court Act 1935 (WA) can only run from the date the cause of action arose, which in the case of a novation is the date of the novation agreement, not the date of the underlying debt assumed.
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