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Arida v Arida

Arida v Arida

Case [2015] NSWCA 170 26 June 2015

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Arida v Arida [2015] NSWCA 170
Hearing dates: 8 April 2015
Decision date: 26 June 2015
Before: Bathurst CJ at [1];
Macfarlan JA at [7]
Sackville AJA at [8]
Decision:
Proceedings 2014/211401
1. Appeal allowed.
2. Direct the parties to file agreed short minutes of order giving effect to these reasons for judgment within fourteen days.
3. In the absence of agreement;
(a) the appellants are to file their proposed short minutes of order, together with written submissions not exceeding three pages in length, within fourteen days;
(b) the respondent is to file his proposed short minutes of order, together with brief written submissions not exceeding three pages in length, within a further seven days.
4. The respondent pay the appellants’ costs of the appeal.
5. The respondent, if otherwise eligible, have a certificate under the Suitors’ Fund Act 1951 (NSW).
Proceedings 2014/131524
1. The Summons for leave to appeal filed on 27 June 2014 be dismissed.
Catchwords: CONTRACT – construction of Heads of Agreement designed to resolve commercial dispute – one party purchased property from trustees for sale appointed as part of the resolution of an earlier dispute – contract of sale provided for the purchaser to pay interest if the sale was not completed on the Completion date – the trustees for sale parties to the Heads of Agreement – whether the Heads of Agreement modified the purchaser’s obligation to pay interest.
Legislation Cited: Conveyancing Act 1919 (NSW), s 66G
Suitors’ Fund Act 1951 (NSW)
Cases Cited: Arida v Arida [2014] NSWSC 395
Arida v Arida (No 2) [2014] NSWSC 579
Arida v Arida [2013] NSWSC 1051
Braidotti v Queensland City Properties Ltd [1991] HCA 19; 172 CLR 293
Ciaverella v Balmer [1983] HCA 26; 153 CLR 438
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1
Louinder v Leis [1982] HCA 28; 149 CLR 509
Menzies v Paccar Financial Pty Ltd (No 4) [2014] NSWCA 210
Ross v Lane Cove Council [2014] NSWCA 50
Category: Principal judgment
Parties: Sid Arida, Joseph Arida, George Arida (Appellants)
Tony Arida (Respondent)
Representation:
Counsel:
M Condon SC/Ms H Mann (Appellants)
D Studdy SC / Ms V McWilliam (Respondent)
Solicitors:
Somerset Ryckmans Lawyers (Appellants)
Greenaway & Tohme (Respondent)

File Number(s): 2014/211401; 2014/131524
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Citation:

Arida v Arida [2014] NSWSC 395
Arida v Arida (No 2) NSWSC 579

Date of Decision:

4 April 2014; 13 May 2014

Before:

Slattery J

File Number(s):

2011/109699; 2010/266736

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellants and the respondent are brothers who co-owned a property. The respondent successfully bid at auction to purchase the property from Trustees for sale. A special condition in the Contract of Sale provided for the payment of…

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 Arida v Arida

Details

AGLC: Arida v Arida [2015] NSWCA 170
Case: [2015] NSWCA 170
Decision Date: 26 June 2015

CaseChat Overview and Summary

The appeal in *Arida v Arida* concerned the construction of a Heads of Agreement intended to resolve a commercial dispute. The dispute arose from a contract for the sale of property, where the purchaser was obligated to pay interest if completion did not occur by a specified date. The sellers, who were trustees for sale appointed as part of the resolution of an earlier dispute, were also parties to the Heads of Agreement. The central question was whether the Heads of Agreement altered the purchaser's obligation to pay interest under the sale contract.

The court was required to determine whether the Heads of Agreement had the effect of modifying or overriding the interest clause in the contract for sale. Specifically, the court had to interpret the terms of the Heads of Agreement in light of the sale contract to ascertain the parties' intentions regarding the payment of interest in the event of delayed completion.

The court reasoned that the Heads of Agreement, by its plain language and the context of the dispute it sought to resolve, did not operate to waive or modify the purchaser's contractual obligation to pay interest. The court emphasised the importance of construing the Heads of Agreement as a whole and in conjunction with the underlying sale contract. The appeal was allowed, with the court directing the parties to file agreed short minutes of order reflecting the court's reasons. The respondent was ordered to pay the appellants' costs of the appeal. In a separate proceeding, the Summons for leave to appeal was dismissed.

Orders

Orders of the court

Proceedings 2014/211401

1. Appeal allowed.

2. Direct the parties to file agreed short minutes of order giving effect to these reasons for judgment within fourteen days.

3. In the absence of agreement;

(a) the appellants are to file their proposed short minutes of order, together with written submissions not exceeding three pages in length, within fourteen days;

(b) the respondent is to file his proposed short minutes of order, together with brief written submissions not exceeding three pages in length, within a further seven days.

4. The respondent pay the appellants’ costs of the appeal.

5. The respondent, if otherwise eligible, have a certificate under the Suitors’ Fund Act 1951 (NSW).

Proceedings 2014/131524

1. The Summons for leave to appeal filed on 27 June 2014 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Arida v Arida [2015] NSWCA 170

Most Recent Citation

Frederic & Brisset [2023] FedCFamC2F 1291

Cases Citing This Decision

Genesalio & Genesalio (No 5) [2024] FedCFamC1F 450
Citation 1 (Para 3)

…[2022] FedCFamC1F 850. There, Harper J observed:- 39.It does not matter whether a proposed party wishes to participate in a proceeding: Arida v Arida [2015] NSWCA 170, per Sackville AJA at [19] (with Bell P and Macfarlan JA agreeing). 40.It is well settled that, applying these principles, it can be appropriate to j…
Yong & Weng [2024] FedCFamC1F 440
Citation 2 (Para 26)

…At [39] – [40], Harper J continued: 39.It does not matter whether a proposed party wishes to participate in a proceeding: Arida v Arida [2015] NSWCA 170, per Sackville AJA at [19] (with Bell P and Macfarlan JA agreeing). 40.It is well settled that, applying these principles, it can be appropriate to join third part…
Kayce & Wilda (No 2) [2024] FedCFamC1F 405
Citation 3 (Para 23)

…At [39] – [41], Harper J continued: 39.It does not matter whether a proposed party wishes to participate in a proceeding: Arida v Arida [2015] NSWCA 170, per Sackville AJA at [19] (with Bell P and Macfarlan JA agreeing). 40.It is well settled that, applying these principles, it can be appropriate to join third part…
Nicotra & Nicotra [2023] FedCFamC2F 1548
Citation 4 (Para 20)

…In the exercise of the Court’s power, it does not matter whether a proposed party wishes to participate in a proceeding: Arida v Arida [2015] NSWCA 170 per Sackville AJA at [19] (with Bathurst CJ and Macfarlan JA agreeing).…
Frederic & Brisset [2023] FedCFamC2F 1291
Citation 5 (Para 10)

…o all others who have or claim an interest. 39.It does not matter whether a proposed party wishes to participate in a proceeding: Arida v Arida [2015] NSWCA 170, per Sackville AJA at [19] (with Bell P and Macfarlan JA agreeing). 40.It is well settled that, applying these principles, it can be appropriate to join th…
Toma & Doyle (No 2) [2023] FedCFamC1F 477
Citation 6 (Para 6)

…At [39] – [41], Harper J said: 39It does not matter whether a proposed party wishes to participate in a proceeding: Arida v Arida [2015] NSWCA 170, per Sackville AJA at [19] (with Bell P and Macfarlan JA agreeing). 40It is well settled that, applying these principles, it can be appropriate to join third parties to…
Jordan & Sutton (No 2) [2022] FedCFamC1F 850
Citation 7 (Para 17)

…It does not matter whether a proposed party wishes to participate in a proceeding: Arida v Arida [2015] NSWCA 170, per Sackville AJA at [19] (with Bell P and Macfarlan JA agreeing).…
Westgem Investments Pty Ltd v Commonwealth Bank of Australia Ltd (No 6) [2020] WASC 302
Citation 8

…2) [1992] 1 Lloyd's Rep 558 Apache Finance Pty Ltd v Quadrant Energy Pty Ltd [2018] WASC 68 Arcos Ltd v EA Ronaasen & Son [1933] AC 470 Arida v Arida [2015] NSWCA 170 Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10; [2009] 1 WLR 1988 Australian Securities and Investments Commission v Edwards [2005] N…
Segal v Osborne [2016] NSWSC 941
Citation 9 (Para 114)

…he purposes of clause 39 if the vendor lacked readiness, willingness and the ability to complete the contract. Reliance was placed upon Arida v Arida [2015] NSWCA 170 which concerned a clause which was said to operate in a similar manner. (I note, however, that the relevant clause in that case was expressed to oper…
Arida v Arida (No 2) [2015] NSWCA 226
Citation 10 (Para 1)

…the absence of agreement each party was directed to file proposed short minutes of order, together with brief written submissions. [1] Arida v Arida [2015] NSWCA 170 (Principal Judgment).…

See all citing cases →

Cases Cited

Menzies v Paccar Financial Pty Ltd (No 4) [2014] NSWCA 210
Citation 1 (Para 19)

…Ross v Lane Cove Council [2014] NSWCA 50 at [51]-[58] (Leeming JA, Meagher JA and Tobias AJA agreeing); Menzies v Paccar Financial Pty Ltd (No 4) [2014] NSWCA 210 at [101] (per curiam).…
Arida v Arida; Arida v Arida (No. 2) [2014] NSWSC 579
Citation 2 (Para 14)

…able to complete on 24 December 2013 and thus could not claim interest between that date and the date of actual completion: Arida v Arida (No 2) [2014] NSWSC 579 ( Supplementary Judgment ). [1] There is no challenge on the appeal to this finding. 1. See at [64]-[65] below.…
Tony Arida v Sid Arida; Tony Arida v Sid Arida [2014] NSWSC 395
Citation 3 (Para 13)

…e with the Heads of Agreement. Those moneys were in fact not paid until 24 December 2013. The primary Judge agreed with the respondent: Arida v Arida [2014] NSWSC 395 ( Principal Judgment ).…
Ross v Lane Cove Council [2014] NSWCA 50
Citation 4 (Para 19)

…[2] 2. John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 at [131]-[132] (per curiam); Ross v Lane Cove Council [2014] NSWCA 50 at [51]-[58] (Leeming JA, Meagher JA and Tobias AJA agreeing); Menzies v Paccar Financial Pty Ltd (No 4) [2014] NSWCA 210 at [101] (per curiam).…
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7
Citation 5

…[1991] HCA 19; 172 CLR 293 Ciaverella v Balmer [1983] HCA 26; 153 CLR 438 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 Louinder v Leis [1982] HCA 28; 149 CLR 509 Menzies v Paccar Financial…
Arida v Arida [2013] NSWSC 1051
Citation 6 (Para 30)

…ging the valuations. On 30 July 2013 White J held that the valuations were not binding on the parties to the Heads of Agreement. [5] 5. Arida v Arida [2013] NSWSC 1051.…
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19
Citation 7 (Para 19)

…llants’ notice of motion, but they clearly should have been joined as parties. [2] 2. John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 at [131]-[132] (per curiam); Ross v Lane Cove Council [2014] NSWCA 50 at [51]-[58] (Leeming JA, Meagher JA and Tobias AJA agreeing); Menzies v…
Braidotti v Queensland City Properties Ltd [1991] HCA 19
Citation 8

…a [2014] NSWSC 395 Arida v Arida (No 2) [2014] NSWSC 579 Arida v Arida [2013] NSWSC 1051 Braidotti v Queensland City Properties Ltd [1991] HCA 19; 172 CLR 293 Ciaverella v Balmer [1983] HCA 26; 153 CLR 438 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 John Alexander’s Clubs P…
Ciavarella v Balmer [1983] HCA 26
Citation 9

…NSWSC 579 Arida v Arida [2013] NSWSC 1051 Braidotti v Queensland City Properties Ltd [1991] HCA 19; 172 CLR 293 Ciaverella v Balmer [1983] HCA 26; 153 CLR 438 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA…
Louinder v Leis [1982] HCA 28
Citation 10 (Para 82)

…, the breach did not of itself constitute a basis for the Trustees (if they were so minded) to terminate the Contract of Sale. [7] 7. Louinder v Leis [1982] HCA 28; 149 CLR 509 at 524, 526 (Gibbs CJ, Mason, Stephen and Wilson JJ agreeing).…

Legislation Cited

Conveyancing Act 1919 (ACT) 66G
2 mentions (from Para 23)
Suitors’ Fund Act 1951 (NSW)
1 mention

Medium Neutral Citation:	Arida v Arida [2015] NSWCA 170
Hearing dates:	8 April 2015
Decision date:	26 June 2015
Before:	Bathurst CJ at [1]; Macfarlan JA at [7] Sackville AJA at [8]
Decision:	Proceedings 2014/211401 1. Appeal allowed. 2. Direct the parties to file agreed short minutes of order giving effect to these reasons for judgment within fourteen days. 3. In the absence of agreement; (a) the appellants are to file their proposed short minutes of order, together with written submissions not exceeding three pages in length, within fourteen days; (b) the respondent is to file his proposed short minutes of order, together with brief written submissions not exceeding three pages in length, within a further seven days. 4. The respondent pay the appellants’ costs of the appeal. 5. The respondent, if otherwise eligible, have a certificate under the Suitors’ Fund Act 1951 (NSW). Proceedings 2014/131524 1. The Summons for leave to appeal filed on 27 June 2014 be dismissed.
Catchwords:	CONTRACT – construction of Heads of Agreement designed to resolve commercial dispute – one party purchased property from trustees for sale appointed as part of the resolution of an earlier dispute – contract of sale provided for the purchaser to pay interest if the sale was not completed on the Completion date – the trustees for sale parties to the Heads of Agreement – whether the Heads of Agreement modified the purchaser’s obligation to pay interest.
Legislation Cited:	Conveyancing Act 1919 (NSW), s 66G Suitors’ Fund Act 1951 (NSW)
Cases Cited:	Arida v Arida [2014] NSWSC 395 Arida v Arida (No 2) [2014] NSWSC 579 Arida v Arida [2013] NSWSC 1051 Braidotti v Queensland City Properties Ltd [1991] HCA 19; 172 CLR 293 Ciaverella v Balmer [1983] HCA 26; 153 CLR 438 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 Louinder v Leis [1982] HCA 28; 149 CLR 509 Menzies v Paccar Financial Pty Ltd (No 4) [2014] NSWCA 210 Ross v Lane Cove Council [2014] NSWCA 50
Category:	Principal judgment
Parties:	Sid Arida, Joseph Arida, George Arida (Appellants) Tony Arida (Respondent)
Representation:	Counsel: M Condon SC/Ms H Mann (Appellants) D Studdy SC / Ms V McWilliam (Respondent) Solicitors: Somerset Ryckmans Lawyers (Appellants) Greenaway & Tohme (Respondent)
File Number(s):	2014/211401; 2014/131524
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Citation: Arida v Arida [2014] NSWSC 395 Arida v Arida (No 2) NSWSC 579 Date of Decision: 4 April 2014; 13 May 2014 Before: Slattery J File Number(s): 2011/109699; 2010/266736