Canale v G W & R Mould Pty Ltd

[2018] VSCA 346

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Appeal
2. › New argument raised on appeal
3. › Whether applicant established exceptional circumstances
4. › Whether point could possibly have been met with evidence at trial
5. › Onus on applicant to show exceptional circumstances
1. Contract
2. › Construction of deeds
3. › Deed of settlement
4. › Whether clause operated as surrender of equitable interest
5. › Admissibility of evidence of objective background circumstances
6. › Commercial purpose of parties

Quick Take

A party seeking to raise a new argument on appeal must demonstrate that the point could not possibly have been met by evidence at trial. Where the new argument raises a question of contractual construction, evidence of objective background facts known to the parties (including the value of the subject matter and the commercial context of the transaction) is admissible and could have been led at trial, defeating the threshold requirement for raising the new point on appeal.