Devon v Capital Finance Australia Limited

[2014] VSCA 73

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Appeal
3. › New point on appeal
4. › Whether defence raised on pleadings or at trial
5. › Whether new defence may be raised on appeal
6. › Principles governing when new point can be raised
7. › Whether evidence could have been given to prevent point succeeding
1. Practice and Procedure
2. › Appeal
3. › New trial
4. › Whether new trial should be ordered on issue of fact not litigated at trial
5. › Very exceptional circumstances required
6. › Whether interests of justice require new trial
7. › Whether prejudice to other party

Quick Take

A party who fails to raise a defence at trial based on a forensic decision cannot raise it for the first time on appeal where evidence could have been given below to meet it. The very exceptional jurisdiction to order a new trial on an unlitigated factual issue will not be exercised where the failure was a deliberate forensic choice, no explanation is given, and a new trial would allow the party to run a whole new case on new contested facts.