Hawkins v Kingsway Group [2009] NSWCA 399

The borrower sought leave to appeal out of time. This was refused with the appeal judge commenting:

He asserts that he has never seen a clause like cl 7.1 in a guarantee before but that may or may not be so. If matters of fact are not advanced before the primary judge then it does not lie in the mouth of an applicant for leave to appeal to assert that had they been put to the trial judge his or her decision may have been different. The judge can only determine a matter upon the material put before him or her and any appeal or leave to appeal from that decision must be determined on that basis.

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