The respondent sought specific performance of an asset purchase agreement for its restaurant.
At the hearing, the application judge denied specific performance but awarded restitution for unjust enrichment, despite the claim not being pleaded in the Notice of Application.
The application judge had also indicated during the hearing that he would not entertain the unpleaded restitution claim, leading the appellant to make no submissions on the issue.
The Court of Appeal allowed the appeal and set aside the judgment, finding that the application judge's conduct denied the appellant procedural fairness and the right to know the case it had to meet.
