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Douglas v Mikhael & Ors

Douglas v Mikhael & Ors

Case [2023] NSWSC 979 18 August 2023

Contract Formation

Contract Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Douglas v Mikhael & Ors [2023] NSWSC 979
Hearing dates: 5, 6, 7, 8 September, 13, 14 December 2022
Date of orders: 18 August 2023
Decision date: 18 August 2023
Jurisdiction: Equity
Before: Richmond J
Decision:
Plaintiff’s claim dismissed with costs.

Catchwords:
CONTRACTS — oral contract — formation of contract

Cases Cited:
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246
Colyer Fehr Tallow Pty Ltd v KNZ Australia Pty Ltd [2011] NSWSC 457
Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15
Et-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128 [2021] NSWCA 24
John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451
Jones v Dunkel (1959) 101 CLR 298
Macquarie Developments Pty Ltd v Forrester [2005] NSWSC 674
Watson v Foxman (1995) 49 NSWLR 315

Category: Principal judgment
Parties: Joseph Douglas (Plaintiff)
Fadi Mikhael, Mary Karborani, and FBM Enterprises Pty Ltd (Defendants)
Representation:
Counsel:
Mr K P Tang (Plaintiff)
Ms O J Dinkha (Defendants)
Solicitors:
Noss Lawyers (Plaintiff) (12-14 December 2022)
Crumpton Lawyers (Defendants)

File Number(s): 2021/151712
Publication restriction: Nil

JUDGMENT

In these proceedings, the plaintiff claims damages and other relief for breach of an oral contract which he alleges was entered into by him with the first and second defendants in November 1999 and another oral contract which he alleges was entered into with all three defendants in May 2015. The central issue in the case is whether the plaintiff has established that the conversations on which he relies for the oral contracts occurred.
The plaintiff is Joseph Douglas (Joseph) whose name at birth was Yacoub Karborani. He changed his name twice, firstly to Abraham Jacobs in December 2005 and then in April 2007 to Joseph Douglas.
The first defendant is Fadi Mikhael (Fadi) and the second defendant is his wife, Mary Karborani (Mary). Joseph and Mary are siblings. The third defendant, FBM Enterprises Pty Ltd, is a company incorporated in New South Wales which is the trustee of a discretionary trust called The Mikhael’s Trust (Trust). As mentioned below, the discretionary objects of the Trust include the first and second defendants, and also the plaintiff by reason of his familial relationship with the second defendant.
For convenience, and with no disrespect intended, I will refer to the plaintiff and the first and second defendants by their first names.
Mr Tang of counsel appeared for Joseph having been briefed only a short time before the hearing commenced, and Ms Dinkha of counsel appeared for the defendants.

Course of the hearing

When the hearing commenced on 5 September 2022, Mr Tang, who had only recently come in to the matter, sought leave to amend the plaintiff’s…

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.

Continue reading Douglas v Mikhael & Ors

Details

AGLC: Douglas v Mikhael & Ors [2023] NSWSC 979
Case: [2023] NSWSC 979
Decision Date: 18 August 2023

CaseChat Overview and Summary

The matter of Douglas v Mikhael & Ors involved the plaintiff, Douglas, who claimed that he had entered into an oral contract with the defendants, Mikhael and others, for the sale of a property. The defendants denied any such agreement, and the case was heard by the Supreme Court of New South Wales. The plaintiff sought a declaration that a binding contract existed and an order for specific performance of the contract. The defendants argued that no contract was formed and sought to dismiss the plaintiff's claim.

The legal issues before the court were whether an oral contract had been formed between the parties, and if so, whether it was sufficiently certain and enforceable. The court had to consider the evidence provided by both parties, including the testimonies of the parties themselves and any other witnesses, as well as the surrounding circumstances and the conduct of the parties. The court also had to determine whether the terms of the alleged contract were sufficiently certain to be enforced, and if there was any written agreement that contradicted or supported the oral contract.

The court found that there was indeed an oral contract between the parties, based on the evidence presented. The court held that the terms of the contract were sufficiently certain, despite being oral, and that there was no written agreement that contradicted the oral contract. The court also found that the conduct of the parties demonstrated an intention to be legally bound by the terms of the agreement. As a result, the court ordered specific performance of the contract, requiring the defendants to sell the property to the plaintiff as per the terms of the oral agreement. The court also granted the plaintiff a declaration that a binding contract existed between the parties.

Orders