Attia v Caird Seven Pty Ltd - [2016] NSWCA 271

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Attia v Caird Seven Pty Ltd [2016] NSWCA 271
Hearing dates: 15 September 2016
Date of orders: 15 September 2016
Decision date: 28 September 2016
Before: Gleeson JA; Leeming JA; Payne JA
Decision:
Summons seeking leave to appeal dated 4 August 2016 dismissed with costs.

Catchwords:
PROCEDURE – application to vacate consent orders for specific performance – whether justice would be served by vacating the orders – whether prima facie case of breach of contract of sale
PROCEDURE – whether appellants able to advance argument on appeal which was expressly abandoned by counsel before primary judge
Legislation Cited: Supreme Court Act 1970 (NSW), s 101
Cases Cited: Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Bott v Carter [2012] NSWCA 89
Buckman v Rose (1980) 1 BPR 97,059
Carolan v AMF Bowling Pty Ltd (Court of Appeal (NSW), 16 November 1995, unrep)
Chouman v Margules (1993) 17 MVR 144
Commissioner of Taxation (Cth) v Murry (1998) 193 CLR 605; [1998] HCA 42
Despot v Registrar General of New South Wales [2016] NSWCA 5
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Haberle Crystal Springs Brewing Co v Clarke 30 F 2d 219 (2nd Cir 1929)
House v The King (1936) 55 CLR 499
JAG Investment Pty Ltd v Strati [1981] 2 NSWLR 600
Johnson v Agnew [1980] AC 367
Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Aust) Pty Ltd (1978) 139 CLR 231
Sargent v ASL Developments Ltd (1974) 131 CLR 634
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245
Category: Principal judgment
Parties:
Mina Attia (first applicant)
Shopsmart Pharmacy Franchising Pty Ltd (second applicant)
Caird Seven Pty Ltd (respondent)
Representation:
Counsel:
M W Young SC / J P Nathan (first and second applicants)
P Herzfeld (respondent)
Solicitors:
Bransgroves Lawyers (first and second applicants)
Meridian Lawyers (respondent)

File Number(s): 2016/243560
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity – Commercial List

Citation:

[2016] NSWSC 1088

Date of Decision:

29 July 2016 (orders) / 9 August 2016 (decision)

Before:

Emmett AJA

File Number(s):

2014/354640

Judgment

THE COURT: On 15 September 2016, the Court made orders dismissing the applicants’ summons for leave to appeal dated 4 August 2016 with costs. These are the Court’s reasons for making those orders.

Brief facts

On 2 August 2013, Mr Attia (the first applicant) entered into a contract for sale of a pharmacy business to Caird Seven Pty Ltd (Caird - the respondent) (Sale Contract). On the same day Caird entered into a franchise agreement with Shopsmart Pharmacy Franchising Pty Ltd, a company controlled by Mr Attia. (Shopsmart – the second…

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.

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Details

Case: [2016] NSWCA 271
Decision Date: 28 September 2016

CaseChat Overview and Summary

The applicants, Attia and another, sought leave to appeal against consent orders made by the primary judge in proceedings between them and the respondent, Caird Seven Pty Ltd. The dispute concerned a contract for the sale of land, and the consent orders had been made for specific performance of that contract. The applicants sought to have these consent orders vacated.

The central legal issues before the Court of Appeal were whether justice would be served by vacating the consent orders, and whether the applicants could advance an argument on appeal that had been expressly abandoned by their counsel before the primary judge. The applicants contended that the respondent had breached the contract of sale, thereby providing grounds to set aside the consent orders.

The Court of Appeal held that the applicants had not established a prima facie case that justice would be served by vacating the consent orders. It further found that the applicants were not entitled to advance an argument on appeal that had been expressly abandoned before the primary judge, as this would undermine the finality of litigation and the authority of consent orders. The Court noted that the applicants had not demonstrated any error on the part of the primary judge in making the consent orders.

Consequently, the summons seeking leave to appeal was dismissed with costs.

Orders

Orders of the court

Summons seeking leave to appeal dated 4 August 2016 dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Attia v Caird Seven Pty Ltd [2016] NSWCA 271
Hearing dates:	15 September 2016
Date of orders:	15 September 2016
Decision date:	28 September 2016
Before:	Gleeson JA; Leeming JA; Payne JA
Decision:	Summons seeking leave to appeal dated 4 August 2016 dismissed with costs.
Catchwords:	PROCEDURE – application to vacate consent orders for specific performance – whether justice would be served by vacating the orders – whether prima facie case of breach of contract of sale PROCEDURE – whether appellants able to advance argument on appeal which was expressly abandoned by counsel before primary judge
Legislation Cited:	Supreme Court Act 1970 (NSW), s 101
Cases Cited:	Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Bott v Carter [2012] NSWCA 89 Buckman v Rose (1980) 1 BPR 97,059 Carolan v AMF Bowling Pty Ltd (Court of Appeal (NSW), 16 November 1995, unrep) Chouman v Margules (1993) 17 MVR 144 Commissioner of Taxation (Cth) v Murry (1998) 193 CLR 605; [1998] HCA 42 Despot v Registrar General of New South Wales [2016] NSWCA 5 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Haberle Crystal Springs Brewing Co v Clarke 30 F 2d 219 (2nd Cir 1929) House v The King (1936) 55 CLR 499 JAG Investment Pty Ltd v Strati [1981] 2 NSWLR 600 Johnson v Agnew [1980] AC 367 Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Aust) Pty Ltd (1978) 139 CLR 231 Sargent v ASL Developments Ltd (1974) 131 CLR 634 Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245
Category:	Principal judgment
Parties:	Mina Attia (first applicant) Shopsmart Pharmacy Franchising Pty Ltd (second applicant) Caird Seven Pty Ltd (respondent)
Representation:	Counsel: M W Young SC / J P Nathan (first and second applicants) P Herzfeld (respondent) Solicitors: Bransgroves Lawyers (first and second applicants) Meridian Lawyers (respondent)
File Number(s):	2016/243560
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity – Commercial List Citation: [2016] NSWSC 1088 Date of Decision: 29 July 2016 (orders) / 9 August 2016 (decision) Before: Emmett AJA File Number(s): 2014/354640