Bachour Enterprises Pty Ltd v Munzer [2024] NSWSC 1601
Hearing dates:
29 – 31 October 2024; last submissions 9 December 2024
Date of orders:
13 December 2024
Decision date:
13 December 2024
Jurisdiction:
Equity - Expedition List
Before:
Rees J
Decision:
Orders made for specific performance, an account and costs.
Catchwords:
CONTRACTS – sale of business – businessman in need of cash sells one of his businesses to his bookkeeper – bookkeeper pays for business and begins operations – parties sign Heads of Agreement while more detailed transaction documents are prepared – businessman changes his mind, fires the bookkeeper and re-takes possession of the business – whether businessman bound by his agreement – absolutely.
CONTRACTUAL CONSTRUCTION — ascertaining parties to contract — principles at [125]-[127] — vendor described by business name and ABN – both registered to the businessman – signature block assumed vendor was a corporation – drafting error corrected through contractual construction, at [135].
UNCONSCIONABLE CONDUCT – special disadvantage – principles at [154]-[162] – English not first language of businessman – bookkeeper translated some words into Arabic – businessman was the more experienced of the two.
MISREPRESENTATIONS – principles at [139]-[140]
– not persuaded that bookkeeper represented that the Heads of Agreement was a licence – not satisfied bookkeeper gave the businessman only one page and represented it comprised the entire agreement, where page clearly part of a larger document on its face.
NON EST FACTUM – principles at [147], [150] – not established.
[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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Bachour Enterprises Pty Ltd v Munzer [2024] NSWSC 1601
Case
[2024] NSWSC 1601
Decision Date
CaseChat Overview and Summary
Bachour Enterprises Pty Ltd, the businessman, sold his business to Munzer, the bookkeeper. The sale was facilitated by a Heads of Agreement. The businessman later decided to retract the sale and repossess the business. Munzer sought enforcement of the Heads of Agreement, leading to litigation. The court had to decide whether the businessman was bound by the agreement, if there was any unconscionable conduct, and if there were any misrepresentations.
The court examined the legal principles around contractual construction, particularly in ascertaining the parties to the contract. The businessman argued that the document was drafted in a way that suggested he was a corporation, which was a drafting error. The court, however, considered the parties' conduct and concluded that the businessman was indeed the vendor. The court also considered if there was any unconscionable conduct by Munzer, but found that there was no special disadvantage to the businessman, despite English not being his first language. The court found no evidence of misrepresentation or non est factum.
The court determined that the businessman was bound by the Heads of Agreement. The court found that the bookkeeper did not represent that the Heads of Agreement was a licence nor did he give the businessman only one page and suggest it was the entire agreement. The court also rejected the businessman's claims of non est factum.
The court ordered Bachour Enterprises Pty Ltd to honour the terms of the Heads of Agreement. The court found that the businessman was bound by the agreement and there were no grounds for relief from the contract.