While most legal disputes settle, some go-ahead to what lawyers call a “final hearing” where the parties will prepare evidence, go off to Court (whether virtual or in-person!), and a judgment will be handed down. Sometimes, after that, an aggrieved party might try to overturn that “first instance” judgment by appealing it.

As the parties found in a recent dispute: it’s important to remember that you can’t use an appeal to make a claim you didn’t pursue at first instance.

Below is a simplified summary of French v Bremner; Bremner v French [2020] NSWCA 339 that illustrates this.

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A party we will call “A” created an invention. A part known as “R” wanted to help commercialise it by lending A money for its development.

R made a loan of $335,000.00 to A, and then a further $3 million later. The two also became involved in property development together, with R providing some of the finance for those property ventures.

A lender (not R) sued A for failing to keep up with finance payments concerning some properties.

Having been on the receiving end of that suit, A cross-claimed against R alleging that A and R had made several agreements. A said R was contractually obliged to pay A:

  1. The money A had to pay the lender.
  2. $ 39 million for breaching an agreement to commercialise the invention.
  3. Some property management fees.

(R also cross-claimed against A seeking repayment of the loans and declarations of resulting trusts for some properties registered in A’s and A’s partner’s names.)

A’s cross-claim failed on all counts.

Crucially, A explicitly said in their cross-claim that they would not pursue any claim against R arising from the law of partnership, and would not seek any equitable remedies. Indeed: the judge in the “first instance” decision put this issue squarely to A’s lawyer, who confirmed the position.

A appealed the “first instance” decision. A said the judge should have found there was a partnership and should have ordered that equitable relief should follow.

On hearing A’s appeal, the Court of Appeal said that A could only appeal the claim he brought at first instance. Because he had not pursued a partnership claim and had not sought equitable relief initially, the Court confirmed he could not do either on appeal.

A’s appeal was dismissed.

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This case, among other things, highlights the importance of a party in a legal dispute figuring our what their actual claim is, and pursuing it. This will often require expert advice.

 

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