Hussain v Haynoum Developments Pty Ltd

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.