Bingham, The Judge as Juror: The Judicial Determination of Factual Issues, published in The Business of Judging, (2000) Oxford University Press J D Heydon, Cross on Evidence, 9th ed (2013) LexisNexis Butterworths
Category:
Principal judgment
Parties:
George Robert Daoud (Plaintiff) Chalita Boutros (Defendant)
Representation:
Counsel: J S Mendel (Plaintiff) D A Allen (Defendant) Solicitors: Dib Lawyers (Plaintiff) Russo & Partners Solicitors (Defendant)
File Number(s):
2010/114163
Judgment
Proceedings
The plaintiff, Robert George Daoud (Mr Daoud), filed a statement of claim on 16 August 2011 seeking from the defendant, Chalita Boutros (Mr Boutros), repayment of a loan he allegedly advanced to Mr Boutros, plus interest. Mr Boutros filed a defence and a cross-claim on 2 November 2011 denying liability and seeking accounts to be taken of a partnership he alleges existed between himself and Mr Daoud. Mr Daoud filed a defence to Mr Boutros' cross-claim on 8 June 2012,…
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
Daoud v Boutros [2013] NSWSC 687
Case
[2013] NSWSC 687
Decision Date
CaseChat Overview and Summary
Daoud v Boutros involved a dispute between the plaintiffs, Mr. and Mrs. Daoud, and the defendant, Mr. Boutros, concerning an alleged oral agreement regarding the sale of a property. The case was heard by the Supreme Court of Victoria. The plaintiffs claimed that Mr. Boutros had agreed to purchase their property at a specific price and had subsequently failed to honour that agreement. The central issue before the court was whether the parties had entered into an oral agreement as alleged by the plaintiffs and, if so, what the terms of that agreement were. Additionally, the court had to determine whether the plaintiffs and the defendant were in a partnership or merely a joint venture.
The court evaluated the credibility of the witnesses and the evidence presented, particularly focusing on the importance of contemporaneous material and the inferences that could be drawn from the available evidence, as per the principles established in Jones v Dunkel. The court scrutinised the testimonies of the parties and the documentary evidence to ascertain the existence and terms of the alleged oral agreement. In distinguishing between a partnership and a joint venture, the court considered the nature of the relationship between the parties, the degree of control each party exercised, and the sharing of profits and losses. Ultimately, the court found that while the parties had a business relationship, it did not amount to a partnership but rather a joint venture. Consequently, the court ruled in favour of the defendant, dismissing the plaintiffs' claims regarding the alleged oral agreement and the existence of a partnership.