Bathurst CJ at [1] Campbell JA at [2] Tobias AJA at [93]
Decision:
(1) Appeal dismissed. (2) Appellant to pay costs of the Respondents to the appeal, except the costs of the Fourth Respondent of preparing written submissions and appearing at the hearing of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
APPEAL - whether judge's finding was open in light of the pleadings and the way the case was conducted - requirement of procedural fairness - relief confined to that available on the pleadings unless the actual conduct of the proceedings shows another issue was litigated
APPEAL - whether judge's finding had sufficient evidentiary support
CONTRACT - parties - identification of agreement and parties - whether contract was with A, B, A and B jointly, or A and B jointly and severally
CONTRACT - parties - promise made by two promisors presumed to be joint unless words making it joint and several
Counsel BW Collins QC; C Mulvey (Appellant) N Obrart (First Respondent) EN Gramelis (Fourth Respondent)
- Solicitors:
Solicitors Benjamin & Robinson (Appellant) Allied Lawyers (First Respondent) Unrepresented, submitting appearances (Second and Third Respondents) Dib Lawyers (Fourth Respondent)
File number(s):
2009/334368
Decision Under Appeal
- Court / Tribunal:
District Court
- Before:
Colefax DCJ
- Date of Decision:
24 September 2010
- Citation:
- Court File Number(s)
2009/334368
Publication Restriction:
Judgment
BATHURST CJ : I agree with the reasons and orders of Campbell JA.
CAMPBELL JA : This appeal arises from a building project in which three friends were involved. The Appellant, Mr Chanaa, owned a parcel of land at Northmead on which he wished to construct some villas. The Second Respondent, Mr Assaf, was to fill the role of builder. The First Respondent, Mr Zarour, lent an amount of $270,000 for the purposes of that development project. Without intending any disrespect, it is convenient to refer to these three men by reference to the roles they played concerning the development project, rather than by reference to the roles they played in the litigation. Thus, I will refer to them, respectively,…
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
AGLC
Chanaa v Zarour [2011] NSWCA 199
Case
[2011] NSWCA 199
Decision Date
CaseChat Overview and Summary
In *Chanaa v Zarour*, the appeal concerned a dispute over the identification of parties to an agreement and the nature of their liability. The appeal was heard by Bathurst CJ, Campbell JA, and Tobias AJA.
The primary legal issues before the court were whether the primary judge's finding regarding the parties to the contract was open to them in light of the pleadings and the conduct of the proceedings, and whether that finding was supported by sufficient evidence. A further issue was the correct characterisation of the contractual promise, specifically whether it was made jointly by two promisors or jointly and severally.
The court reasoned that relief granted must generally be confined to that available on the pleadings, unless the actual conduct of the proceedings demonstrates that another issue was litigated by the parties. The presumption in contract law is that a promise made by two promisors is joint unless there are words indicating it is joint and several. The court found that the primary judge's finding was open and had sufficient evidentiary support, and that the contract was joint.
The appeal was dismissed, and the appellant was ordered to pay the costs of the respondents to the appeal, with an exception for the costs of the Fourth Respondent in relation to written submissions and appearance at the hearing.
Orders
Orders of the court
(1) Appeal dismissed.
(2) Appellant to pay costs of the Respondents to the appeal, except the costs of the Fourth Respondent of preparing written submissions and appearing at the hearing of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]