Hanna v Saad

[2003] NSWSC 399

CITATION:	Hanna v Saad [2003] NSWSC 399
HEARING DATE(S):	10/04/03
JUDGMENT DATE:	14 May 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Barrett J
DECISION:	Summons dismissed with costs
CATCHWORDS:	CONVEYANCING - alleged breach of contract - whether contract supplemented by oral term that vendor would deliver original letter from Council to purchaser before completion - whether oral agreement to defer date fixed for completion - no question of principle
PARTIES :	Brian Hanna and Francois Harb - Plaintiffs Sonia Saad and Raymond Saad - Defendants
FILE NUMBER(S):	SC 5133/02
COUNSEL:	Mr M J Cohen - Plaintiffs Mr K F Morrissey - Defendants
SOLICITORS:	Mannix Lawyers - Plaintiffs Sattout & Associates - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

WEDNESDAY, 14 MAY 2003

5133/02 – BRIAN HANNA & ANOR v SONIA SAAD & ANOR

JUDGMENT

1 On 17 December 2001, the defendants as vendors and the plaintiffs as purchasers became parties to a contract for the sale of land, being a property at 5 Strickland Street, Bass Hill for a price of $550,000. The defendants had obtained from the Bankstown City Council some two months earlier a development consent permitting demolition of the existing dwelling and erection of four villa homes. The plaintiffs are builders.

2 Three days later, the defendants as vendors executed and delivered to the plaintiffs as purchasers a document as follows:

“I, Sonia Saad and Raymond Saad the owners of 5 Strickland St Bass Hill agree to transfer the architectural plans, structural plans and DA approval for four town houses at Lot 123 Plan 8717 to be built on 5 Strickland St Bass Hill to Brian Hanna and Francois Harb at the time of settlement.”

3 In circumstances which it is not necessary to relate, the vendors purported to terminate the contract and forfeit the deposit of $55,000 by notice dated 20 March 2002. The plaintiffs later instituted proceedings 2365 of 2002 against the defendants in this Division. Those proceedings were compromised and the following orders were made by consent on 7 May 2002:

“1. Notice of termination of the contract dated the 20th March 2002 is set aside.
2. The contract referred to in the summons must be completed by the 22 May 2002 and if it is not completed by that date for any reason other than the default of the defendant the said contract is deemed properly terminated by the defendant [ie, present defendant/vendor] and the deposit paid pursuant to the said contract is forfeited to the defendant.
3. The Plaintiff [ie, present plaintiffs/purchasers] pay to the defendant the sum of $70,000.00 in addition to the purchase price set out in the contract at the same time as the plaintiff pays to the defendant the balance of the purchase price.
4. Each party to pay his own costs.”

4 The contract was not completed in accordance with the revised regime created by these consent orders. By their summons filed on 24 October 2002 which initiated the present proceedings, the plaintiffs seek, as principal relief, a declaration that the defendants have repudiated the contract dated 17 December 2001 (as amended) and a declaration that the plaintiffs have accepted the repudiation.

5 The plaintiffs say that the contract, as supplemented by the document of 20 December 2001 and amended by the consent orders, was further amended by an oral agreement made on 22 May 2002, the date fixed for completion by the consent orders. The oral agreement is said by the plaintiffs to have been made by the first plaintiff, Mr Hanna, on behalf of the plaintiffs and the second defendant, Mr Saad, on behalf of the defendants by a conversation on that date. The repudiation is said to have consisted of a statement made by Mr Saad in a conversation on 29 May 2002.

6 The plaintiffs also say that the consent orders of 7 May 2002 constitute (or, perhaps more accurately, evidence) only part of the agreement of compromise reached by the parties on that day, being a compromise the terms of which Mr Hanna for the plaintiffs and Mr Saad for the defendants had announced orally to the defendants’ solicitor on 30 April 2002 at the solicitor’s office. Another element of the overall agreement, it is said by the plaintiffs, arose from an oral promise by the defendants. The outline of submissions furnished on behalf of the plaintiffs characterised that other oral promise as a promise that “the rights to development consent subsisting in the title” would be “assigned” by the defendants to the plaintiffs. As the hearing before me unfolded, however, it became clear that the alleged oral promise was a promise by the defendants that they would hand over to the plaintiffs the original of a letter dated 12 October 2001 from Bankstown City Council notifying approval of development application D485/2001, coupled with a stipulation (said to be implied) that this would be done in sufficient time before the contract’s scheduled completion date (22 May 2002) to enable the purchasers to ensure the availability of their finance on that date.

7 The essence of the plaintiffs’ claim is that, in breach of the unwritten term to which I have just referred, the defendants failed to deliver the original letter of 12 October 2001 in time to enable the purchasers to ensure the availability of their finance by 22 May 2002 and that having agreed orally on that date to extent the time for completion until 31 May 2002, the defendants wrongfully repudiated the contract by stating that they would not complete on 31 May 2002.

8 The defendants deny that the totality of the contractual stipulations in force between the parties contained the unwritten promises on their part on which the plaintiffs rely. Given that the alleged contractual terms are said to be oral, it is necessary to give close consideration to the evidence of meetings and conversations.

9 The first plaintiff, Mr Hanna, gave evidence of having visited the defendants’ home at Greenacre on about 28 April 2002 with the second plaintiff, Mr Harb. The original contract was then in force without any alleged addendum, although the proceedings with respect to that contract were in train. They went there at the invitation of the second defendant, Mr Saad, and had a conversation with him. According to Mr Hanna, the conversation was as follows:

“RS: ‘I will settle for $630,000.00’.
BH: ‘I can offer you $590,000.00 but I will need to get the DA documents now so I can raise the extra money needed to settle. The valuer only valued the place as a vacant block of land and not as a development site because he did not have the DA documents. He said he will need the DA documents otherwise he cannot re-do the valuation for the higher amount. I need the valuation increased so I can borrow the extra money to pay you to settle’.
RS: ‘I will speak to Patrick Sattout [the plaintiff’s solicitor] and get back to you’.”

10 Mr Saad testified that such a meeting took place at his home on that day but dealt only with the question of a revised price and that nothing was said about “DA documents”. Mr Harb’s account of the conversation is in exactly the same words as Mr Hanna’s, although without the concluding comment about Patrick Sattout related by Mr Hanna. It will be noted that nothing in this alleged conversation could be said to amount to a promise by Mr Saad with respect to the “DA documents”.

11 Mr Hanna’s affidavit next refers to a telephone call he received from Mr Saad on 30 April 2002 in which the following conversation occurred:

“RS: ‘I will accept $620,000.00 plus give you the DA documents now to give to the valuer’.
BH: ‘That’s OK by me but I do need the DA documents straight away so I can re-arrange my finance. I want us to go to Patrick Sattout’s office to tell him what we have agreed and sort it out once and for all’.”

12 Mr Saad’s evidence is that Mr Hanna telephoned him “another day” (i.e., after the day of the meeting at the Saads’ home) and “we agreed 620 over the phone”. In cross-examination, he placed the “other” day as that immediately after the meeting, namely, 29 April 2002. Mr Saad also says that the conversation did not deal with any aspect of the transaction other than the price. He maintained that position in cross-examination.

13 It is the testimony of both Mr Hanna and Mr Saad that they went together on 30 April 2002 to the office of Mr Sattout, the defendants’ solicitor. Mr Hanna collected Mr Saad and took him to the office at Campsie. Mr Hanna’s account of the meeting in his affidavit is as follows:

“RS: ‘We have come to an agreement. The new price is $620,000.00’.
BH: ‘I also need the DA documents now as agreed so I can give them to the valuer so he can increase the valuation of the property as a development site and that will allow me to raise the extra $70,000.00 for settlement’.
RS: ‘That’s good I see no problems with that arrangement. Can you settle in 14 days?’
BH: ‘I can’t say its up to Joe Mannix [the plaintiffs’ solicitor]. He has to get everything ready to settle’.
RS: ‘I will give you the DA documents. My house is a mess at the moment because of renovations so I will need to find them. I will ring you when they are ready’.
BH: ‘Please Ray I can’t settle without them. The sooner the better’.”

14 Mr Saad said in his evidence in chief that the meeting took five or ten minutes and that the only matters discussed were price and settlement date. He denied that the conversation took the form related by Mr Hanna. I quote from Mr Saad’s cross-examination:

“Q. I put to you that you got there and the reason for the discussion was all about settling as it was vital and important to the plaintiff's for them to have access to what's referred to as the ‘DA documents’ that is the development consent?
A. We [sic; scil ‘they’] had access from the beginning.

Q. What was referred to was the documentation. He said there he needed the DA documents. You started saying you've come to an agreement of what the new price agreed to was. And then he said:

‘I also need the DA documents now as agreed so I can give them to the valuer so he can increase the valuation of the property as a development site and that will allow me to raise the extra $70,000 for settlement.


He said that, did he not?
A. He only told me he agreed on the new price, and that's a new settlement date.

Q. With respect, Mr Hanna didn't need to go all the way to Campsie and pick you up on the way to do that because he'd already done that by time of that conversation in paragraph 6 had he not early that morning?
A. Sorry, he had already agreed--

Q. On a new price with you earlier?
A. When we - on the following day after a couple days he rang me for a meeting in the city to confirm the new price.

Q. You didn't need a meeting with Mr Sattout to confirm there was an increase in price?
A. Of course we needed to.

Q. The new arrangements were dependant upon Mr Hanna knowing from you, in the presence of Mr Sattout, there was an agreement he was going to get the DA documents, that's what he asked for in Mr Sattout's office?
A. That wasn't the truth for what we went for.

Q. What do you say you went for?
A. For the new agreement, the new price and new settlement day.

Q. You could have done that by phone?
A. No, we had to go there and tell him straight away what we agreed. If I tell him we agreed on that and Mr Hanna with Mr Hanna - how would he know Mr Hanna?

Q. You accept he doesn't have to be in the company of Mr Sattout to give Mr Sattout instructions?
A. He has to hear it from him.

Q. That's the point, Mr Hanna had to hear it from Mr Sattout that there was agreement by receiving that document?
A. That wasn't the case.

Q. That's the entire purpose of this meeting. The purpose of this meeting at Campsie on 30 April was to have, out of your mouth with conformation with Mr Sattout, that those documents were going to be provided?
A. That wasn't the case, it was only the price and it's the case he should have brought it to my house if that's important to sign with me and my wife.

Q. When Mr Sattout spoke, he said in your hearing "that's good, I see no problems with that arrangement, can you settle in 14 days." ?
A. He said that about the new price.

Q. He said ‘can you settle in 14 days’ didn't he?
A. Yeah.

Q. It was understood by you that Mr Hanna needed 14 days?
A. Yes.

Q. He needed 14 days from the time when there was agreement about all the terms and conditions?
A. Mm hmm.

Q. Mr Hanna also went on to say in reply ‘I can't say it's up to Joe Mannix. He has to get everything ready to settle’. So Mr Hanna had to understand the 14 days could happen in a way that was convenient to Mr Mannix and therefore convenient to all concerned?
A. Sorry?

Q. Mr Hanna during his conversations wanted to be convinced there was agreement about the way this transaction was to transpire; all the terms were understood and he said I can't say now in response to Mr Sattout's question, I have to ask Joe Mannix?
A. No he agreed.

Q. You accept he said- he can't say, it's up to?
A. He agreed on new price that's why we say--

Q. In fairness, Mr Saad, about a minute ago you agreed that's what he said, that Mr Sattout said: ‘That's good I see no problems with that arrangement. Can you settle in 14 days’?
A. Yeah.

Q. He did say it?
A. Who said it?

Q. Mr Sattout did say it--?
A. And yes and Mr Hanna--

Q. Mr Sattout did say ‘that's good, I see no problems with that arrangement, can you settle in 14 days’ no doubt about that?

OBJECTION.

MORRISSEY: Perhaps it should be ‘I’.

COHEN: Q. You knew Mr Sattout said ‘we have come to an agreement to a new price of $620,000’. Mr Hanna said ‘I also need the DA documents now as agreed so I can give them to the valuer so he can increase the value as the development site and that will allow me to raise the extra $70,000 for settlement’. What do you say he did say?
A. He did say we agreed on new price. ‘Can you please agree with a settlement day and go ahead with the contract’.”

15 Mr Sattout’s evidence about the meeting comes from his examination in chief:

“Q. Do you have a recollection of what took place at that meeting on 29 April?
A. Yes, I do.

Q. In the correct form, could you tell his Honour what happened?
A. To the best of my recollection, I had a phone call earlier that day making the appointment.

Q. From whom?
A. From Mr Saad, my client, and at 4 o’clock I saw both Mr Saad and Mr Hanna, the usual greetings, and then Mr Saad said, ‘We have agreement to settle the matter’, referring to the matter before this Honourable court, which was due on 7 May, I think.

Q. I think by that time you had instructions to act for him in relation to those proceedings?
A. I did.

Q. And then what happened next?
A. He said, ‘Mr Hanna has got to pay me an extra $70,000’, and that the settlement would happen quickly and I said to Mr Hanna at the time, ’Is that what you are agreed on?’ and he said, ‘Yes,’ and I said, ‘Well, can you settle the matter in 14 days?’ and he said, ‘I don’t see any reason why not,’ and I said to them, ‘I congratulate you on reaching an amicable solution,’ and that was the end of the matter.

Q. That took place at your office at Campsie?
A. Yes, that’s right.

Q. How long did the exchange take?
A. A few minutes.”

It will be seen that Mr Sattout said nothing about “DA documents” having been mentioned.

16 Mr Hanna deposes to having telephoned Mr Saad on several subsequent occasions asking for the DA documents culminating in a call on 20 May 2002 which resulted in Mr Hanna’s going to the defendants’ home at Greenacre on that evening where, he says, he “collected the DA documents from Raymond Saad”.

17 Mr Saad denied in the witness box that Mr Hanna came to his home on 20 May 2002 (or at any other time, except for the occasion on or about 28 April 2002 already mentioned) and that he gave Mr Hanna any documents after the occasion on which the two of them went to Mr Sattout’s office.

18 There are numerous references in Mr Hanna’s affidavit to the “DA documents”. What he meant by this was clarified in the course of his evidence. There are three documents or sets of documents relevant to the development consent issued by the Bankstown Council in respect of the property. One is a bundle of plans, specifications and other documents which were apparently submitted to the Council with or as part of the application. These were referred to in evidence but were not tendered. The second is a one page letter of 12 October 2001 from the Council to Arnold Grapulin Bello Design Group of Yagoona West (part of Exhibit B) stating that the development application has been approved and that the development consent is subject to conditions. The letter goes on to deal with matters relevant to a construction certificate. The third document is also dated 12 October 2001. It is on the Council’s letterhead addressed to the same firm and is entitled “Notice of Determination of a Development Application”. This document (Exhibit 1) runs to 13 pages and is the formal instrument of approval, commencing “Bankstown City Council hereby consents to the above described land being developed for the following purpose …”.

19 It became clear in the course of Mr Hanna’s evidence that what he referred to in his affidavit as “DA documents” was in reality only the second item I have mentioned, that is, the one page letter from the Council dated 12 October 2001. Mr Hanna acknowledged having received other documents from Mr Saad at a relatively early stage of their dealings, together with a photocopy of the letter of 12 October 2001 which, he said, was a bad copy and hard to read. The party with which he was negotiating for a loan to finance the purchase wanted the original. Mr Harb testified to having seen a photocopy of the one page letter of 12 October 2001 shortly after 17 December 2001 as part of a bundle of documents shown to him by Mr Hanna. Mr Saad’s evidence about giving documents to Mr Hanna after exchange of contracts on 17 December 2001 was as follows:

“Q. Tell his Honour what you gave to Mr Hanna?
A. I gave him the letter from the council.

Q. Which one?
A. Letter of approval. It was a documents before, it's got all shadow engineering, specifications--

Q. A letter and a folder containing shadow diagrams?
A. Everything.

Q. Engineering specification plans?
A. Yes and floor plans, specifications.

Q. Right and I think you signed - you and your wife signed that undertaking to give the originals of settlement?
A. Exactly.

Q. Shortly after that, it seems to be around 20 December, did Mr Hanna approach you again?
A. Yes he did.

Q. And what did he say?
A. He want the DA conditions.

Q. I show you this document (shown). Did you do something with that document?
A. I gave him a copy of this.”

The document Mr Saad was shown is the third document I referred to earlier (Exhibit 1).

20 Mr Hanna was cross-examined as to why he had not had his solicitor (Mr Mannix) press with the Saads’ solicitor (Mr Sattout) any request for the “DA documents”. His answers were to the effect that as the agreement for the delivery of the one page letter was unwritten and had been made direct between Mr Saad and him, it was for him rather than his solicitor to pursue the matter. That part of the cross-examination concluded:

“Q. I put it to you, you are not telling the truth. The reason you did not ask Mr Mannix to obtain this original letter was because there was no agreement. There was no such agreement to provide it?
A. Mr Mannix knew about it from the first day but he had no right to inform Mr Sattout of this because there was nothing in writing. You're asking for something that is not on the grounds for you to fight. I don't have a clause in my hand to say I need that paper. He couldn't ring and say ‘This is Mr Sattout, please ask your client to hand it over.’ There's nothing there in writing because it was promised to me by him, that's why I had to go and chase it and get it.”

21 I turn now to the evidence about the alleged agreement for extension of the due date for completion from 22 May 2002 (the date specified in the consent orders) to 31 May 2002.

22 Mr Hanna deposes to having spoken to Mr Saad by telephone on 22 May 2002 and that the following conversation occurred:

“BH: ‘Ray. There is a delay with the finance company as I was not able to get the DA Documents from you. We can settle on Friday [i.e, 31 May] is that OK by you.’
RS: ‘Yes, that fine by me’.”

23 Mr Saad’s evidence refers to three relevant conversations, one on 20 May 2002 and the other two on 22 May 2002. The first was as follows:

“Brian: ‘My aunt has died in Lebanon and I don’t have time to settle can we delay the settlement until Friday of next week’ [i.e, 31 May].
I said: ‘Brian I don’t want any further delays, settlement has to as the Court ordered let the solicitors work it out’.”

24 The second conversation related by Mr Saad (being the first on 22 May 2002) was:

“Brian ‘We cannot settle today can you have to help me with an extension of time’.
I said ‘I’m leaving the matter in the hands of the solicitor’.”

25 The third conversation, said by Mr Saad to have occurred on the evening of 22 May 2002, was:

“Brian: ‘Can I come over to discuss this matter’.
I replied: ‘No there can be no more negotiations, the solicitors can sort it out’.”

26 It is necessary to refer next to letters that passed between the respective solicitors. The plaintiffs’ solicitor, Mr Mannix, sent the following letter by facsimile to Mr Sattout on 22 May 2002, the date fixed for settlement:

‘We refer to Mr Mannix’ call to your office this morning confirming that settlement could not take place today.
Mr Brian Hanna contacted Mr Saad on Monday to say the incoming mortgagee needed to sight the DA letter from Council. It was arranged that he would make it available yesterday. We are instructed that Mr Saad did not make the DA letter available. However, he has agreed that Mr Hanna can collect it from him this evening.
Once our mortgagee has the DA letter we can re-schedule settlement but given the number of parties and properties involved this cannot occur for a few more days.
Our clients reserve their positions under the Consent orders and the Contract.”

27 Mr Sattout replied by facsimile on 24 May 2002 as follows:

“We note that you did not attend the settlement at the appointed time and place on the 22nd May 2002.
We refer to your letter of the 22nd May and note that our client is under no obligation to deliver the ‘DA’ letter.
It is our clients view that the purchaser is now in breach of the Supreme Court orders and in accordance with such orders the contract is deemed to be properly terminated.
We note that we telephoned you on the 22nd May attempting to obtain a finalisation of this matter without success.
We will now take instructions as to our clients next course of action.”

28 Mr Sattout sent a further letter to Mr Mannix by facsimile on 27 May 2002:

“We note that this matter did not complete in accordance with Court orders.
Your letter of the 22nd indicated that you would complete immediately upon receipt of the ‘DA letter’.
Notwithstanding that our client was under no obligation to provide such a letter, he did so.
Despite our call to you of the 22nd, our letter of the 24th, our further calls to you of the 24th and two of today’s date, we have heard nothing further.
In the circumstances we have no alternative but to advise our client that in accordance with the orders of the Court he is at liberty to deal with the property as he deems fit.”

29 Mr Mannix wrote to Mr Sattout on 29 May 2002 as follows:

“I wish to wholeheartedly apologise to you for being incommunicado in the last few days. I have had family health issues that have, in the main, kept me from the office.
I am advised that the mortgage can settle late Friday afternoon. Would you please nominate a suitable time and place. Have cheque details altered?”

30 Mr Sattout’s reply of the same day was:

“We refer to your facsimile just received. It is our client’s position that there exists no contract ‘to settle’.
In accordance with Court orders the contract between the parties was properly terminated when it was not completed on the 22nd May 2002 as ordered.”

31 Mr Mannix wrote on 1 June 2002:

“We refer to your letters of 29th May. We disagree with the stance taken by you re the Contract. We are instructed to re-list the matter for directions. Geoffrey Rundle is briefed in this regard.
On Wednesday last Mr Hanna spoke to Mr Saad to advise that settlement would take place on Friday. Mr Saad’s response was ‘That’s OK’. The same day we wrote to you seeking an appointment and cheque details. In the light of what Mr Saad said to our client we do not understand the position you have taken as expressed in your letters.
In view of the above matters could you please seek instructions from your client as to his attitude to settlement.”

32 In his response of 3 June 2002, Mr Sattout said that his client denied any such agreement.

33 I proceed now to findings of fact. First, I am satisfied that Mr Saad gave to Mr Hanna soon after 17 December 2001 a bundle of documents concerning development of the property and that this contained a copy of the one page letter of 12 October 2001 and a copy of the formal instrument of approval (Exhibit 1). Mr Hanna accepted all along that he had a copy of the one page letter but said that it was a bad copy and he needed the original for his financier. Mr Saad’s evidence is that he gave Mr Hanna soon after 17 December 2001 “the letter from the council” being “letter of approval”. Mr Saad also testified that he gave Mr Hanna a copy of the formal instrument (Exhibit 1) on or about 20 December 2001. Because Mr Saad gave only a copy of Exhibit 1, I am prepared to think, particularly in light of Mr Hanna’s evidence, that, so far as the one page letter is concerned, it was a copy rather than the original that Mr Saad handed over on or soon after 17 December. His own reference to “the letter from the council” is inconclusive on the issue of original versus copy.

34 Second, I find that, while Mr Hanna may have subsequently asked Mr Saad for the original of the one page letter, Mr Saad never promised to give it to him, except by way of the written contract supplement of 20 December 2001. For the most part, the evidence about the conversations relevant to this is Mr Hanna’s word against Mr Saad’s. On two occasions, another person was present. Mr Harb was present when Mr Hanna and Mr Saad spoke in the course of the meeting at Mr Saad’s home on about 28 April 2002. Both Mr Hanna and Mr Harb say that, on that occasion, Mr Hanna said, when offering $590,000, that he would “need to get the DA documents now” and explaining why. However, neither Mr Hanna nor Mr Harb attributes any words of concurrence or agreement to Mr Saad that could be construed as a promise to give the “DA documents” in satisfaction of Mr Hanna’s expressed need. The words attributed by Mr Hanna to Mr Saad that, if in fact spoken, would amount to a promise to hand over the DA documents are those related by Mr Hanna in his evidence of what transpired during the subsequent meeting at Mr Sattout’s office. On that occasion, according to Mr Hanna, Mr Saad said, “I will give you the DA documents”. Mr Saad, however, denies that Mr Hanna even asked for the DA documents at the meeting and Mr Sattout’s account of what was said at the meeting (which he says took “a few minutes”) does not refer to DA documents at all.

35 The letters of 22, 24, 27 and 29 May and 1 June 2002 between the solicitors also throw light on the matter Mr Mannix’s letter of 22 May refers to Mr Hanna having contacted Mr Saad “on Monday” – that is, on 20 May – to say that the incoming mortgagee needed to see “the DA letter from Council”. This statement creates the distinct impression that that was the first occasion on which the matter was raised between the parties. Mr Mannix’s letter did not refer to on-going attempts by Mr Hanna to obtain the letter, much less did it assert any promise by Mr Saad to give it, except for a promise made on or after 21 May 2002 (being the “yesterday” referred to in the letter) that Mr Hanna could collect it from Mr Saad “this evening”, that is, on 22 May. Mr Sattout’s letter of 24 May denied any obligation of the defendants to deliver the “DA letter” while his letter of 27 May says that, despite absence of any obligation to deliver, the letter was delivered by the defendants.

36 On the basis of this correspondence, there was no request by Mr Hanna for the “DA letter” until 20 May 2002. The letter of 22 May 2002 from Mr Mannix to Mr Sattout did not assert an entitlement to the “DA letter” under a contractual term dating from the meeting in Mr Sattout’s office on 30 April 2002. It merely said that Mr Hanna had, on “Monday” (being 20 May 2002), stated that the incoming mortgagee needed it. That was the reason for the request which was not associated with any asserted contractual entitlement.

37 I am bound to say also that Mr Hanna’s account of Mr Saad’s having given, during the meeting at Mr Sattout’s office, the alleged contractual promise with respect to the “DA documents” (which he eventually identified as only the one page letter of 12 October 2001) raises other issues of difficulty. It may be accepted that a financier would prefer to see an original document and may be wary of relying on a copy. But what would a financier gain from the one page letter that it did not gain in greater detail and more authority from the Council’s formal instrument of approval (Exhibit 1)? The answer is obvious. It may be that Mr Hanna was confused and meant to refer to the formal instrument of approval instead of (or in addition to) the one page letter as being the vital “DA documents”. But even if this is so, two questions remain: why, if it or they were so important to Mr Hanna when he and Mr Saad went to Mr Sattout’s office to announce to him their new agreement, did he not say to Mr Sattout that a requirement with respect to them should be included in the documentation of the settlement; and why did he not tell his own solicitor, Mr Mannix, the same thing, or even, after the event, ask Mr Mannix to chase up the contractual commitment Mr Saad had supposedly given at Mr Sattout’s office to deliver the original? Again, it seems to me, these are factors militating against the truth of Mr Hanna’s account.

38 The other factor is that Mr Hanna’s account attaches to the document or documents in question a significance of undeserved proportions. A lender might well have been suspicious of a photocopy of unknown provenance. But a document of the kind in question is readily available for inspection free of charge at the office of a Council (Local Government Act 1993, s.12) and copies must be supplied by a Council subject only to payment of a reasonable copying charge (ibid, s.12B). It was thus open to the plaintiffs to overcome any difficulty they had with a copy by having their solicitor obtain and vouch to the financier for a copy taken from the Council’s records.

39 The plaintiffs bear the onus of proof in these proceedings. Having regard to the whole of the evidence regarding the supposed collateral or supplementary agreement for the delivery of the original one page letter of 12 October 2001, I am satisfied that the matter was raised by Mr Hanna with Mr Saad on or before 22 May 2002 but the evidence does not permit me to find, on the balance of probabilities, that Mr Saad conveyed to Mr Hanna at the meeting at Mr Sattout’s office any promise to deliver that letter which became part of the contract between the plaintiffs as purchasers and the defendants as vendors.

40 The next area in which findings are necessary concerns the alleged extension of time for completion from 22 May 2002 to 31 May 2002. On that, I have the conflicting evidence of Mr Hanna and Mr Saad about their conversations. They agree that Mr Hanna asked for an extension. Mr Hanna says that it was granted. Mr Saad says that it was not. The key conversation is placed by both as having occurred on 22 May 2002. Yet it is not referred to in either Mr Mannix’s letter of that date (which appears to report the up to date position on the parties’ conversations as related by Mr Hanna to Mr Mannix) or, significantly, in Mr Mannix’s letter of 29 May. Between these two letters, Mr Mannix received three letters from Mr Sattout asserting that the purchasers were in default. It appears that Mr Mannix may have been away from the office when these were received. But when he did write to Mr Sattout on 29 May 2002, Mr Mannix did not assert any agreement to postpone.

41 An agreement to postpone settlement was asserted in Mr Mannix’s letter of 1 June 2002. But it is not the agreement referable to the conversation on 22 May 2002 on which the plaintiffs base their case. Mr Mannix, in his 1 June 2002 letter, refers to Mr Hanna having spoken to Mr Saad on “Wednesday last”, which must have been Wednesday 29 May 2002. Any suspicion that Mr Mannix may have intended to refer to the preceding Wednesday, 22 May, is allayed by his sentence, “The same day we wrote to you seeking an appointment and cheque details”. Mr Mannix’s letter seeking an appointment and cheque details was dated 29 May 2002, not 22 May 2002. Mr Mannix’s letter of 22 May 2002 did not refer to those matters.

42 With the evidence in this state in relation to communications said by the plaintiffs to warrant a finding in their favour on the extension issue, I cannot find, on the balance of probabilities, that words spoken between Mr Hanna and Mr Saad brought into existence any oral contract term extending until 31 May 2002 the agreed time for completion.

43 In the result, therefore, the plaintiffs have failed to make out a case for the relief they seek and their summons is dismissed with costs.

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Last Modified: 05/14/2003