Read the full judgment text of CACV 000025/1970 on BabelCite. This Court of Appeal judgment was delivered on 25 November 1970 before Blair-Kerr, Mills-Owens and Huggins, JJ..
Civil law – lease – oral agreement to extend term – Statute of Frauds – part-performance – whether part-performance can be raised for the first time on appeal – 20-year lease of orchard from 1 November 1948 – government requisition of land for army use from July 1949 to June 1958 – alleged oral agreement in March or April 1950 to extend lease by a period equivalent to army occupation (alleged 9 years) – written lease expired by effluxion of time on 31 October 1968 – respondent claimed ejectment and mesne profits at $300 per month – appellant counterclaimed for specific performance of alleged 1950 oral agreement – trial judge held alleged oral agreement unenforceable under Statute of Frauds for lack of memorandum in writing – appellant sought to argue part-performance for the first time on appeal – whether pleadings sufficient to raise part-performance – whether same strictness required in construing District Court pleadings as Supreme Court pleadings – section 33 of District Court (Civil Jurisdiction and Procedure) Ordinance Cap.336 requiring written notice of equitable defence – whether appellate court should allow new point not argued below – exercise of discretion – test from Lord Herschell in The Tasmania and Jessel M.R. in Ex p. Firth, re Cowburn – rule strictly applied – appellant's mere averment of willingness to perform was condition precedent to specific performance, not a plea of part-performance – no facts of part-performance such as payment and acceptance of rent or expenditure on improvements pleaded or proved – respondent's counsel entitled to rely on absence of writing and properly called no evidence – appeal dismissed with costs.
Legal issues: Whether part-performance can be raised for the first time on appeal when not pleaded or argued below · Whether the pleadings in the District Court were sufficient to raise the defence of part-performance
Outcome: Appeal dismissed with costs; the appellant was not permitted to raise the issue of part-performance for the first time on appeal.
Cited by 1 case