Douglas v Mikhael

Case [2024] NSWCA 89

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Douglas v Mikhael [2024] NSWCA 89
Hearing dates: 2 April 2024
Date of orders: 2 April 2024
Decision date: 24 April 2024
Before: Ward P; Mitchelmore JA; Basten AJA
Decision:

Appeal dismissed with costs.

Catchwords:

CONTRACTS – Formation – Oral contract – Whether evidence of conversation alleged to have occurred in 1999 in which alleged agreement was reached was plausible – Whether primary judge erred in considering surrounding circumstances to determine the existence of the contract

EVIDENCE – Witness evidence – Affidavits – Where affidavit evidence of two witnesses included identical paragraphs – Whether primary judge erred in rejecting evidence of appellant’s witness

APPEALS – Procedural fairness – Apprehended bias – Whether primary judge’s interjections during witness examination amounted to a denial of procedural fairness to the appellant or gave rise to a reasonable apprehension of bias

Legislation Cited:

Supreme Court Act 1970 (NSW), ss 75A

Uniform Civil Procedure Rules 2005 (NSW), rr 7.3, 51.29, 51.36

Cases Cited:

Akins v National Australia Bank (1994) 34 NSWLR 155

Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175; [2009] HCA 27

Ball v McInerney [2014] NSWCA 331

Brambles Holdings Pty Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61

Celermajer Holdings [2011] NSWSC 40

Douglas v Mikhael (No 2) [2024] NSWCA 61

Douglas v Mikhael [2024] NSWCA 60

Duraisamy v Sydney Trains [2019] NSWCA 269

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Elite Realty Development Pty Ltd v Sadek [2023] NSWCA 165

Forster v Harvey [2006] NSWSC 1112

Galea v Galea (1990) 19 NSWLR 263

John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451

Jones v Dunkel (1959) 101 CLR 298

Jones v National Coal Board [1957] 2 QB 55

Macquarie Developments Ltd v Forrester [2005] NSWSC 674

Nicholls v Wilson & Partners Limited [2010] NSWCA 140

Nobarani v Mariconte [2018] HCA 36

Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep)

Rosebanner Pty Ltd v Energy Australia [2009] NSWSC 43

Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88

Sweeney v He [2023] NSWCA 68

University of Wollongong v Metwally (No 2) [1985] HCA 28

Watson v Foxman (1995) 49 NSWLR 315

Whisprun Pty Ltd v Dixon (2003) 234 CLR 492; [2003] HCA 48

Category:Principal judgment
Parties: Joseph Douglas (Appellant)
Fadi Mikhael (First Respondent)
Mary Karborani (Second Respondent)
FBM Enterprises Pty Ltd (Third Respondent)
Representation:

Counsel:
J Douglas (Appellant) (In person)
AJ Munro (Respondents)

Solicitors:
Attia Lawyers and Consultants (Appellant)
Crumpton Lawyers (Respondents)
File Number(s): 2023/00285206
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity Division
Citation:

[2023] NSWSC 979

Date of Decision:
18 August 2023
Before:
Richmond J
File Number(s):
2021/151712

HEADNOTE

[This headnote is not to be read as part of the judgment]

This appeal related to two alleged…

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AGLC
Douglas v Mikhael [2024] NSWCA 89
Case
[2024] NSWCA 89
Decision Date

CaseChat Overview and Summary

The appeal in *Douglas v Mikhael* concerned a dispute over an alleged oral contract. The appellant, Mr. Douglas, sought to overturn a decision of the primary judge who had found that no such contract existed. The appeal was heard by Ward P, Mitchelmore JA, and Basten AJA.

The central legal issues before the Court of Appeal were whether the primary judge erred in finding that the evidence of a conversation in 1999, which was alleged to have formed the oral contract, was not plausible. Further, the court considered whether the primary judge had erred in rejecting the affidavit evidence of Mr. Douglas's witness, particularly given that certain paragraphs in the affidavits of two witnesses were identical. Finally, the court examined whether the primary judge's conduct during the examination of Mr. Douglas's witness amounted to a denial of procedural fairness or gave rise to a reasonable apprehension of bias.

The Court of Appeal found no error in the primary judge's assessment of the evidence. The court held that the primary judge was entitled to consider the surrounding circumstances when determining the existence of the alleged oral contract and that the identical paragraphs in the affidavits were a legitimate reason to doubt the reliability of that evidence. Furthermore, the court concluded that the primary judge's interjections did not amount to a denial of procedural fairness or create a reasonable apprehension of bias.

Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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