Can a defendant argue a preliminary point of law where the facts of a third party’s application have been denied?

There seemed to be a fundamental misapprehension on the part of defendant’s counsel that these facts could be admitted yet he could still argue the application. Indeed, counsel for the third party fairly raised this issue in his brief, but the defendant pressed on with his application. As stated in Tilling v. Whiteman, [1980] A.C. 1, “Preliminary points of law are often treacherous shortcuts”. The fact that one party does not recognize the peril does not make the proposed path any less treacherous.