The Court of Appeal held that appellants were bound by the way they conducted their case at trial and could not raise on appeal a new construction of a carve-out clause in a General Security Deed (cl 2.2(a)(ii)) that had not been argued below. Bare denials in a Commercial List Response did not put in issue the specific question of whether shareholders' consent was required under the carve-out, particularly where the appellants' case below was confined to the proposition that the shares were not covered because the company was not a wholly owned subsidiary. The Court also indicated, without deciding, that the receiver would have had standing under s 420(2)(k) of the Corporations Act to bring proceedings concerning disputed ownership of property potentially secured by the charge under which the receiver was appointed.
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