PERRAM J:
1 This is an application for leave to appeal from orders made by Middleton J on 22 December 2022 by the members of the Hastie group of companies and their liquidator. The Hastie group was involved in the provision of services to the building industry. The proposed appeal concerns whether the trial judge was right to dismiss the whole of the group's case concerning certain bank guarantees.
2 The group had procured the issue of the bank guarantees to the various respondents (who are construction companies) which then drew down on them when the Hastie group ceased trading due to insolvency. It is evident that the way in which the case was conducted before the trial judge meant the sole issue was whether the group owned the bank guarantees or the funds drawn on the bank guarantees as a matter of law. A case was not run before the trial judge that the respondents were contractually obliged to return to the group any surplus in their hands if the guarantees were called upon. To the extent that a claim was advanced for return of all of the proceeds of the bank guarantees, that claim was advanced on the proprietary grounds just noted (and not on the basis of an obligation to account).
3 During the trial, many of the respondents accepted that, as a matter of law, there was an implied term in the relevant contracts requiring them to return any such surplus, and the trial judge accepted this. However, that submission was in aid of their other submission that the group's claim to own the bank guarantees and their proceeds could not be correct.
4 Towards the end of the trial, it became evident to those then representing the group (who are not their present advisors) that the existence of this obligation gave rise to the possibility of a claim on the basis of the contractual obligation to return any surplus funds. Efforts were made to raise this claim, but it was pointed out by the respondents that it lay outside the pleadings and the lists of issues the parties had prepared from those pleadings. In this regard, the respondents were correct. I do not accept Dr Moore KC's submission that claiming the amount of the bank guarantees left open the claim for a surplus. Read in context, this allegation in the points of claim could only be seen as going to the property claim.
5 The group were at that point in the trial challenged to amend their pleadings, but did not seek to do so. Nevertheless, in their final submissions before the trial judge, the new surplus claim was advanced but this was resisted by the respondents who again pointed out that it was not their pleaded case. This was not a case in which the parties joined issue to litigate their dispute on unpleaded grounds. The trial judge concluded that the case had been conducted solely on the basis that the group were entitled as a matter of property law to the return of the bank guarantees or their proceeds. As his Honour said, the group had conducted the bank guarantee case on an 'all-or-nothing' basis.
6 His Honour rejected that all-or-nothing case and made orders disposing of the whole of the group's case concerning bank guarantees (although leaving other claims against the respondents on foot). On the present application, the group says that the trial judge erred in disposing of the case in this fashion and a serious injustice arises as a number of respondents have already foreshadowed that they will raise the dismissal of the bank guarantee case as precluding the group from applying to amend their remaining case (as they have stated they intend to do) to pursue bank guarantee surpluses.
7 I would refuse leave because no such case was run at trial. The applicants for leave are bound by the way they conducted their case, and whether they can amend what remains of their case to add the surplus case will be a matter for the docket judge. However, the contention that the trial judge's orders for disposing of the group's case are infected by appellable error is without substance. The application for leave to appeal should, in my opinion, be dismissed.