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.


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.


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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