Skorpos & Anor v United Petroleum Pty Ltd

[2013] SASCFC 117

South Australia Full Court

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For Australian Law.

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Interrogate

Catchwords

1. Appeal
2. › General principles
3. › Points and objections not taken below
4. › When not allowed to be raised on appeal
5. › Course of conduct at trial
6. › Claim abandoned at trial and inconsistent claim pursued
7. › Whether exceptional circumstances exist to permit abandoned claim to be raised on appeal
1. Landlord and Tenant
2. › Leases and tenancy agreements
3. › Term of lease or tenancy
4. › Commencement
5. › Conditions precedent to commencement of term
6. › Whether obligation to pay rent arises before commencement of term as defined by lease
1. Landlord and Tenant
2. › Leases and tenancy agreements
3. › Covenants
4. › Repair
5. › Obligation to return premises in good tenantable repair
6. › Whether tenant obliged to restore premises to original condition or to state fit for future tenant
1. Practice and Procedure
2. › Costs
3. › Offers of settlement
4. › Construction of Rule 188 of Supreme Court Civil Rules 2006 (SA)
5. › Whether cost consequences follow from failure to better substantive offer irrespective of reasonableness of costs limb

Quick Take

A party who abandons a claim at trial and pursues an inconsistent alternative claim will not be permitted to resurrect the abandoned claim on appeal, as this would seriously undermine the principle of finality of litigation. The cost consequences under R 188 of the Supreme Court Civil Rules 2006 (SA) follow from failure to better the substantive offer irrespective of the reasonableness of the costs limb of the filed offer.