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Assad v Eliana Construction & Developing Group Pty Ltd

Assad v Eliana Construction & Developing Group Pty Ltd

Case [2015] VSCA 53 1 April 2015

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0046

SINOT SAMY ASSAD	Appellant
v
ELIANA CONSTRUCTION & DEVELOPING GROUP PTY LTD (ACN 132 817 362)	Respondent

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JUDGES:	REDLICH, KYROU and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 March 2015
DATE OF JUDGMENT:	1 April 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 53
JUDGMENT APPEALED FROM:	Eliana Construction and Developing Group Pty Ltd v Assad [2014] VSC 143

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CONTRACT – Whether parties had concluded a settlement agreement to settle disputes arising in the course of a joint venture – Absence of credibility findings on important factual questions – Matter remitted for new hearing.

COURTS – Whether reasons for finding that there had been no settlement agreement were adequate – Competing witness statements, documentary evidence and primary arguments not referred to by trial judge – Appeal allowed.

FIDUCIARY DUTIES – Joint venture – Whether appellant owed a fiduciary duty to respondent – Matter raised for the first time on appeal – Absence of evidence – Notice of contention dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr F Tiernan QC with Dr M Sharpe	Seoud Solicitors
For the Respondent	Mr J Stavris with Mr A T Conley	John Yianoulatos

REDLICH JA
KYROU JA
McLEISH JA:

The respondent company was incorporated in 2008 and carries on business as a builder and developer. Magdy Sowiha, a licensed builder, is the sole director and shareholder of the respondent. The appellant is a medical doctor who also engages in property development. Mr Sowiha and the appellant became acquainted in 2008 and established a business relationship.

In September 2008, the respondent purchased a property at 231 High Street, Lower Templestowe, Victoria, with the intention of building a block of 11 units. Both parties contributed to the purchase price at settlement. The parties together entered into a loan agreement to facilitate the development, and entered into a mortgage over the property to secure the loan. They became registered on the title to the property as tenants in common in equal shares. The solicitor acting for both parties throughout the project was Ellen Assad, the appellant’s wife. Between 3 October 2008 and 13 October 2010 the parties each made payments in furtherance of the development.

Between August 2009 and May 2011 the respondent constructed 11 apartments on the property. On 26 July 2011 the plan of subdivision for the property was registered. By late July 2011, seven of the apartments had been sold. Those unsold were apartments 2, 3, 4 and 11.

It appears that, in mid-2011, contracts of sale and transfer of title forms for the four remaining apartments were signed by the parties and given to Mrs Assad. The contracts of sale were backdated to 3 October 2009, and provided that apartments 2, 3 and 4 were to be sold to the appellant and apartment 11 was to be sold to the respondent. The transfer of title forms contained all relevant details except for the title particulars. The appellant’s evidence was that…

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 Assad v Eliana Construction & Developing Group Pty Ltd

Details

AGLC: Assad v Eliana Construction & Developing Group Pty Ltd [2015] VSCA 53
Case: [2015] VSCA 53
Decision Date: 1 April 2015

CaseChat Overview and Summary

The appeal was brought by the respondent, Assad, against Eliana Construction & Developing Group Pty Ltd, the appellant, following a decision of the primary judge that there was no settlement agreement between the parties to settle disputes arising from a joint venture. The case was heard in the Supreme Court of New South Wales. The respondent sought to enforce a settlement agreement that he claimed had been reached between the parties, while the appellant denied the existence of such an agreement.

The legal issues before the court were whether the parties had indeed concluded a settlement agreement, and if the reasons provided by the primary judge for finding that there was no such agreement were adequate. Additionally, the court considered whether the appellant owed a fiduciary duty to the respondent in their joint venture, a matter that was first raised on appeal.

The court found that the primary judge's reasons were inadequate as they failed to address competing witness statements, documentary evidence, and primary arguments from both parties. The court also held that the matter of the appellant owing a fiduciary duty to the respondent was not supported by evidence and was therefore dismissed. Consequently, the appeal was allowed, and the matter was remitted for a new hearing to determine whether a settlement agreement was indeed reached by the parties.

The final orders of the court included remitting the matter to a new hearing to address the question of whether a settlement agreement was reached between the parties. The court also dismissed the contention that the appellant owed a fiduciary duty to the respondent, finding that there was insufficient evidence to support this claim.

Orders