Hussain v Haynoum Developments Pty Ltd - [2015] NSWCA 420

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hussain v Haynoum Developments Pty Ltd [2015] NSWCA 420
Hearing dates: 11 December 2015
Date of orders: 22 December 2015
Decision date: 22 December 2015
Before: Beazley P [1];
Leeming JA [2];
McDougall J [11]
Decision:
Appeal dismissed with costs.

Catchwords:
CONTRACT – formation – where appellants entered into a deed with respondents to pay the latter a sum of money – whether that deed was entered into as a result of duress or unconscionability – where that question depends upon the lawfulness of the respondents’ conduct – where appellants had resisted paying money owing to respondents under an earlier agreement – where respondents had withheld performance of a term of the earlier agreement as a negotiating technique to ensure that payment – where earlier agreement contained no term, express or implied, that performance be given promptly – statutory illegality – whether, in the alternative, second respondent had acted unlawfully by breaching its statutory obligations as a ‘certifying authority’ under the Environmental Planning and Assessment Act 1979 (NSW) – where it was not proved that the second respondent had been appointed as a ‘certifying authority'
APPEALS – adequacy of reasons – obligation of primary judge to make findings of primary fact – where a central argument depending upon finding that the contract contained an implied term – where primary judge made no findings at all as to terms of the contract – resultant difficulty for appellate court to make disputed findings – where, in any event, no substantial wrong or miscarriage
Legislation Cited: Building and Construction Industry Security of Payments Act 1999 (NSW), s 13
Environmental Planning and Assessment Regulation 2000 (NSW), cll 162A, 162B, 162C
Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Cases Cited: Australia and New Zealand Banking Group v Karam [2005] NSWCA 344
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Kakavas v Crown Melbourne Ltd [2013] HCA 25
Category: Principal judgment
Parties: Emad Hussain (First Appellant)
Buthania Said (Second Appellant)
Haynoum Developments Pty Ltd (First Respondent)
Boulos Haykal (Second Respondent)
Representation:
Counsel:
G W McGrath SC / C W Robinson (Appellants)
P E King / F Sinclair (Respondents)
Solicitors:
City Legal Solicitors (Appellants)
George Khoury & Co (Respondents)

File Number(s): 2015/77651
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil Division

Citation:

2012/299804

Date of Decision:

25 February 2015

Before:

Sorby DCJ

File Number(s):

2012/299804

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of McDougall J. I agree with his Honour's reasons and with the orders he has proposed.
LEEMING JA: I agree with the orders proposed by McDougall J, and, subject to the following, with his Honour’s reasons.
Subject to statute, people, including commercial people, are free to reach and rely on oral agreements which bind them. However, doing so is apt to lead to difficulties where…

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: [2015] NSWCA 420
Decision Date: 22 December 2015

CaseChat Overview and Summary

The appeal concerned a dispute between the appellants and Haynoum Developments Pty Ltd and another respondent. The appellants had entered into a deed with the respondents to pay a sum of money, but argued that this deed was entered into under duress or unconscionability. This contention hinged on the lawfulness of the respondents' conduct, specifically their withholding of performance under an earlier agreement as a negotiating tactic to secure payment. The appellants had resisted paying money owed under the earlier agreement, which contained no express or implied term requiring prompt performance.

The court was required to determine whether the deed was vitiated by duress or unconscionability, which in turn depended on the lawfulness of the respondents' conduct in withholding performance. An alternative argument raised the question of whether the second respondent had acted unlawfully by breaching its statutory obligations as a ‘certifying authority’ under the *Environmental Planning and Assessment Act 1979* (NSW). The court also considered whether the primary judge had provided adequate reasons, particularly in relation to findings of primary fact necessary to determine a central argument concerning an implied term in the contract.

The court found that the respondents' conduct in withholding performance did not amount to duress or unconscionability. It was not established that the earlier agreement contained an implied term requiring prompt performance, and the respondents were therefore entitled to withhold performance until payment was made. Furthermore, the court held that it was not proven that the second respondent had been appointed as a ‘certifying authority’ under the relevant Act, meaning the argument regarding statutory illegality failed. Regarding the adequacy of reasons, while the primary judge’s findings on the terms of the contract were limited, the appellate court concluded that no substantial wrong or miscarriage of justice had occurred.

The appeal was dismissed, and the appellants were ordered to pay the costs of the respondents.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Hussain v Haynoum Developments Pty Ltd [2015] NSWCA 420
Hearing dates:	11 December 2015
Date of orders:	22 December 2015
Decision date:	22 December 2015
Before:	Beazley P [1]; Leeming JA [2]; McDougall J [11]
Decision:	Appeal dismissed with costs.
Catchwords:	CONTRACT – formation – where appellants entered into a deed with respondents to pay the latter a sum of money – whether that deed was entered into as a result of duress or unconscionability – where that question depends upon the lawfulness of the respondents’ conduct – where appellants had resisted paying money owing to respondents under an earlier agreement – where respondents had withheld performance of a term of the earlier agreement as a negotiating technique to ensure that payment – where earlier agreement contained no term, express or implied, that performance be given promptly – statutory illegality – whether, in the alternative, second respondent had acted unlawfully by breaching its statutory obligations as a ‘certifying authority’ under the Environmental Planning and Assessment Act 1979 (NSW) – where it was not proved that the second respondent had been appointed as a ‘certifying authority' APPEALS – adequacy of reasons – obligation of primary judge to make findings of primary fact – where a central argument depending upon finding that the contract contained an implied term – where primary judge made no findings at all as to terms of the contract – resultant difficulty for appellate court to make disputed findings – where, in any event, no substantial wrong or miscarriage
Legislation Cited:	Building and Construction Industry Security of Payments Act 1999 (NSW), s 13 Environmental Planning and Assessment Regulation 2000 (NSW), cll 162A, 162B, 162C Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Cases Cited:	Australia and New Zealand Banking Group v Karam [2005] NSWCA 344 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Kakavas v Crown Melbourne Ltd [2013] HCA 25
Category:	Principal judgment
Parties:	Emad Hussain (First Appellant) Buthania Said (Second Appellant) Haynoum Developments Pty Ltd (First Respondent) Boulos Haykal (Second Respondent)
Representation:	Counsel: G W McGrath SC / C W Robinson (Appellants) P E King / F Sinclair (Respondents) Solicitors: City Legal Solicitors (Appellants) George Khoury & Co (Respondents)
File Number(s):	2015/77651
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Division Citation: 2012/299804 Date of Decision: 25 February 2015 Before: Sorby DCJ File Number(s): 2012/299804