Diransson Pty Ltd v Hassan El Dirani - [2019] NSWSC 617

Supreme Court

New South Wales

Medium Neutral Citation: Diransson Pty Ltd v Hassan El Dirani [2019] NSWSC 617
Hearing dates: 11, 12, 13, 14, 15, 18, 19 and 20 March, oral submissions 4 & 5 April 2019
Date of orders: 31 May 2019
Decision date: 31 May 2019
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
See para [608]

Catchwords: EQUITY- oral contract- post contractual conduct- constructive trust- restitution – proprietary estoppel
Legislation Cited: Australian Consumer Law
Competition and Consumer Act 2010 (Cth)
Evidence Act 1995 (NSW)
Limitation Act 1969 (NSW)
Cases Cited: Ardestani v Doss [2018] NSWSC 1084
Australian Estates v Palmer [1989] NSWCA 11
Fox v Percy (2003) 214 CLR 118
Gestion Pty Ltd v Kit Digital Aus Pty Ltd (in liq) [2014] NSWSC 1547
John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451
Raphel Shin Enterprises Pty Ltd v Waterpoint Shepherds Bay Pty Ltd [2014] NSWSC 743
Re Centura Global Holdings Pty Ltd (2016) 111 ACSR 185; [2016] NSWSC 62
Textralian Enterprises Pty Ltd v Perpetual Trustees Victoria Ltd [2000] NSWCA 176
Watson v Foxman (1995) NSWLR 49
Texts Cited: n/a
Category: Principal judgment
Parties:
2018/259014
2018/103105
2018/103113
Diransson Pty Limited Anors (First Plaintiff)
Ibrahim El Dirani (Plaintiff)
Mohammed Dirani Anors (First Plaintiff)
Hassan El Dirani (First Defendant)
Youmna El Dirani (Second Defendant)
Representation:
Counsel:
M Pesman SC, C Alexander (plaintiff in 2018/103105 & 2018/103113)
Ms A Power (Plaintiffs in 2018/259014)
S Balafoutis, Ms E Doyle-Markwick (Defendants in all 3 matters)
Solicitors:
Tully & Chipper Lawyers (Plaintiffs in 2018/103105 & 2018/103113)
Matulich Lawyers (Plaintiffs in 2018/259014)
One Group Legal (Defendants in all matters)

File Number(s): 2018/259014, 2018/103105, 2018/103113,
Publication restriction: n/a

Judgment

Background Facts
Procedural History
Parties
Hassan’s Business Model
Peak Hill Proceedings
Hill Top Proceedings
Oaks Proceedings

Evidence
Peak Hill Plaintiffs’ witnesses
Peak Hill Plaintiffs’ documents
Hill Top and Oaks Plaintiffs’ witnesses
Hill Top and Oaks Plaintiffs’ documents
Defendants’ Witnesses
Defendants’ Documents

Peak Hill Plaintiffs submissions
Hill Top Plaintiffs and Oaks Plaintiff submissions
Defendant submissions
Peak Hill Proceedings
Hill Top Proceedings
The Oaks Proceedings
Rebates

Consideration
Peak Hill
Hill Top Proceedings
Oaks

Conclusion

Judgment

Background Facts

Procedural History

Three separate proceedings were commenced in 2018 all seeking that a Mr Hassan El Dirani, specifically perform certain contracts relating to alleged promises to transfer land and businesses. Given the commonality in the Defendant and the alleged similarity of factual circumstances, I made orders on 29 September 2018 that the three matters be heard together.
The evidence was heard over 8 days from 11 March to 20 March 2019. Final oral submissions were then heard on 4 and 5 April 2019.

Parties

Given commonality of surnames as well as the multiple proceedings, the parties and witnesses in this case are generally referred to by their first names. The proceedings are generally dealt with in chronological order.
The Defendant common to all these proceedings is Hassan El Dirani (the ‘First Defendant’) and his wife Youmna El Dirani (the ‘Second Defendant’) who together…

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: [2019] NSWSC 617
Decision Date: 31 May 2019

CaseChat Overview and Summary

The case of Diransson Pty Ltd v Hassan El Dirani was heard in the Supreme Court of New South Wales. The dispute involved Diransson Pty Ltd, a company, and Hassan El Dirani, an individual. The central issue was whether Diransson Pty Ltd was entitled to equitable relief in the form of a constructive trust or restitution based on an oral agreement and the post contractual conduct of the parties. Diransson Pty Ltd claimed that Mr. El Dirani had orally agreed to certain terms, including the repayment of a loan, and that his subsequent conduct confirmed this agreement. Mr. El Dirani denied any such agreement and argued that there was no enforceable contract.

The court was tasked with determining whether an enforceable oral agreement existed between the parties and, if so, whether Mr. El Dirani's conduct post agreement could be interpreted as confirming this agreement, thereby justifying the imposition of a constructive trust or restitutionary relief. The court had to consider the principles of proprietary estoppel and whether Diransson Pty Ltd had acted to its detriment based on an expectation created by Mr. El Dirani's conduct.

The court found that there was no enforceable oral contract between the parties. It held that the evidence did not support the existence of a clear and unequivocal oral agreement as claimed by Diransson Pty Ltd. Furthermore, the court determined that Mr. El Dirani's post contractual conduct did not confirm any such agreement, nor did it give rise to proprietary estoppel. The court concluded that Diransson Pty Ltd had not acted to its detriment based on any reasonable expectation created by Mr. El Dirani. Consequently, the court dismissed the claims for a constructive trust and restitution, finding no basis for equitable relief in the circumstances presented.

The final orders of the court were that Diransson Pty Ltd's claims against Mr. El Dirani were dismissed in their entirety, with no orders for costs.

Orders