The lender sought judgment and possession. The borrower’s defence claimed the mortgage broker was the lenders agent and his conduct was such that the mortgage should be set aside.
The lower court held in favour of the lender and the borrower appealed on the basis that the court failed to consider all of the borrower’s allegations, namely unconscionable conduct and breaches of the Consumer Credit Code.
The Appeal Court found that the allegations had not been addressed because they were not pleaded or raised at trial adding:
The public interest in the finality of court proceedings means that appellate courts are loathed to allow points not argued at trial to be canvassed for the first time on appeal.
Further the Appeal Court noted that the lower court found the borrower dishonest in giving evidence and those findings, unchallenged on appeal, did not suggest any merit in the new allegations, not raised at trial. The appeal was dismissed.