The Appellant challenged an Order of a Chambers Judge directing that funds be set aside from the proceeds of a transaction between the Appellant and a third party. The Chambers Judge was satisfied that there was a reasonable likelihood that the money from the transaction would be dissipated while the Respondents were seeking payment for assets they had sold to the Appellant. While the Appellant took the position that a valid purchase and sale agreement had not been formed, the Chambers Judge found part performance.

On Appeal, the Appellants argued that part performance was not properly pleaded under Rule 13.6(3)(i) which states that a pleading “must also include a statement of any matter on which a party intends to rely that may take another party by surprise” including “performance.” The Court of Appeal dismissed the Appeal, finding that there was no element of “surprise.” It also compared Rule 13.6 with Rule 13.7 which lists the topics for which pleadings “must give particulars,” surprise or not, and noted that Rule 13.7 did not include “part performance.”