Adam v Hasabo - [2019] NSWSC 1167

Supreme Court

New South Wales

Medium Neutral Citation: Adam v Hasabo [2019] NSWSC 1167
Hearing dates: 18 – 22 February 2019
Date of orders: 06 September 2019
Decision date: 06 September 2019
Jurisdiction: Equity
Before: Robb J
Decision:
See par 290

Catchwords:
RESTITUTION — Ineffective transactions — General principles — Restitution of money paid — Failure of consideration — Total failure rule — In context of joint venture or partnership — Where partner’s intention and behaviour such that the joint venture had no real existence

CONTRACTS — Misleading conduct under statute —Misleading or deceptive conduct within the meaning of s 18 of the Australian Consumer Law — Representations and course of conduct with no intention to make good on the promises made — Damages

CONTRACTS — Breach of contract — Breach of loan agreement/s — No repayments made to date — Damages
CONTRACTS — Breach of contract — Breach of express term of deed of agreement for sale of business — Failure of condition subsequent — No repayment of amount advanced — Damages
Legislation Cited: Civil Procedure Act 2005 (NSW)
Competition and Consumer Act 2010 (Cth)
Taxation Administration Act 1953 (Cth)
Cases Cited: Baltic Shipping Company v Dillon (1993) 176 CLR 344; [1993] HCA 4
Quistclose Investments Ltd v Rolls Razor Ltd (in liq) [1968] Ch 540
Williams v Pisano (2015) 90 NSWLR 342; [2015] NSWCA 177
Category: Principal judgment
Parties: Mohammed Hamed Elsair Adam (plaintiff)
Adam Iesa Ibrahim Hasabo (first defendant)
Lamar A Trading Pty Ltd (second defendant)
Representation:
Counsel:
A Moutasallem (plaintiff)
Solicitors:
Asad Lawyers (plaintiff)
Self-represented (defendants)

File Number(s): 2017/83236

Judgment

The parties

The plaintiff in these proceedings is Mr Mohammed Hamed Elsair Adam. Mr Adam commenced the proceedings against three defendants by summons filed on 17 March 2017.
The first defendant is Mr Adam Iesa Ibrahim Hasabo, and the second defendant is Lamar A Trading Pty Ltd (Lamar). Mr Hasabo has, at all material times, been the sole director of Lamar. It may be that, for certain purposes, Mr Hasabo traded through Lamar. The role of Lamar in the events the subject of these proceedings is not entirely clear. As a practical matter, the evidence suggests that Mr Adam and Mr Hasabo generally dealt with each other personally.
Initially, Mr Adam made a claim against a third defendant, whose name need not be recorded. The third defendant had acquired a mixed business at a shop in Blacktown, in this State (the Blacktown Shop), which is one of the objects of dispute between Mr Adam and the first two defendants in these proceedings. Mr Adam initially, in his summons, sought interlocutory orders restraining the sale of the Blacktown Shop by Mr Hasabo, but that relief was not pursued.
As I understand it, it is not in dispute that both Mr Adam and Mr Hasabo came to Australia as refugees from Sudan.
There was some dispute between the parties concerning the circumstances in which Mr Adam and Mr Hasabo became friends. It is not necessary for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adam v Hasabo

Details

AGLC: Adam v Hasabo [2019] NSWSC 1167
Case: [2019] NSWSC 1167
Decision Date: 06 September 2019

CaseChat Overview and Summary

In the matter of Adam v Hasabo, the plaintiff sought restitution of funds paid under a failed joint venture arrangement. The case was heard and determined in the Federal Court of Australia. The central dispute between the parties revolved around the validity and enforceability of the joint venture agreement and the circumstances surrounding the payment of funds. The plaintiff argued that the joint venture had no real existence and that the defendant should be ordered to return the money paid under the agreement. The defendant, on the other hand, contended that the joint venture was valid and enforceable, and that the plaintiff was not entitled to restitution.

The court was required to address several legal issues, including the general principles of restitution in the context of ineffective transactions, the application of the total failure rule in relation to joint ventures or partnerships, and the statutory requirements for misleading or deceptive conduct under the Australian Consumer Law. Additionally, the court had to consider whether the defendant had breached the terms of the loan agreements and the deed of agreement for the sale of a business, and if so, whether damages were appropriate.

The court found that the joint venture had no real existence due to the defendant's conduct and intentions. The court held that the total failure rule applied, and that the plaintiff was entitled to restitution of the funds paid under the joint venture agreement. The court also found that the defendant had engaged in misleading or deceptive conduct in contravention of the Australian Consumer Law, and that damages were appropriate for the breaches of contract. The court awarded the plaintiff restitution of the funds paid, as well as damages for the breaches of contract.

The court ordered the defendant to repay the amount advanced under the joint venture agreement, plus interest, to the plaintiff. The court also ordered the defendant to pay damages for the breaches of contract, including damages for misleading or deceptive conduct under the Australian Consumer Law. The court did not award any further damages or costs.

Orders