Khamas v Anton - [2008] NSWSC 975

CITATION: Khamas v Anton [2008] NSWSC 975

HEARING DATE(S): 16 September 2008

JUDGMENT DATE :
23 September 2008

JURISDICTION: 11481/2008

JUDGMENT OF: Harrison AsJ

DECISION: (1) Leave to appeal is granted.
(2) The appeal is dismissed.
(3) The decision of his Honour Magistrate Heilphern dated 6 March 2008 is affirmed.
(4) The summons filed 4 April 2008 is dismissed.
(5) The plaintiffs’ are to pay the defendants’ costs as agreed or assessed.

CATCHWORDS: APPEAL - Local Court Magistrate - whether proceedings were settled

LEGISLATION CITED: Civil Procedure Act 2005
Local Courts Act 1982

CATEGORY: Principal judgment

CASES CITED: Allen v Kerr & Anor [1995] Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Carr v Neill [1999] NSWSC 1263
Devries v Australian National Railways Commission (1993) 177 CLR 472
Networth Pty Ltd v Sensis Pty Ltd (No 2) [2007] NSWCA 268
R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082; (2002) 37 MVR 479
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588
Swain v Waverley Municipal Council (2005) 220 CLR 517

PARTIES: John Khamas (First Plaintiff)
Margarit Khamas (Second Plaintiff)
Wisam Anton (Frist Defendant)
Soham Anton (Second Defendant)

FILE NUMBER(S): SC 11481/2008

COUNSEL: P Becker (Plaintiffs)
W Carney (Defendants)

SOLICITORS: Giles Payne & Co (Plaintiffs)
CK Lawyers (Defendants)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 8396/2007

LOWER COURT JUDICIAL OFFICER : Heilphern LCM

LOWER COURT DATE OF DECISION: 6 March 2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

TUESDAY, 23 SEPTEMBER 2008

11481/2008 - JOHN KHAMAS v WISMAN ANTON
JUDGMENT (Appeal decision of Local Court Magistrate
- whether proceedings were settled)

1 HER HONOUR: By summons filed 4 April 2008, the plaintiffs seek leave to appeal the whole of the decision of his Honour Magistrate Heilphern dated 6 March 2008 and that the proceedings be dismissed on the terms agreed by the parties on 22 February 2008. The defendant has not opposed the granting of leave. Leave to appeal is granted as the outcome of this appeal may determine the Local Court proceedings.

2 The first plaintiff is John Khamas. The second plaintiff is Margarit Khamas (the plaintiffs). The first defendant is Wisam Anton, the second defendant is Soham Anton and the third defendant is Namir Anton (the defendants). The plaintiffs relied on the affidavit of Paula Louise Becker dated 10 June 2008 and Ex A.

3 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 73 of the Local Courts Act 1982 permits a party who is dissatisfied with a judgment as being erroneous on a point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered in Allen v Kerr &…

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 Khamas v Anton

Details

AGLC: Khamas v Anton [2008] NSWSC 975
Case: [2008] NSWSC 975
Decision Date: 23 September 2008

CaseChat Overview and Summary

The matter of Khamas v Anton involved a dispute between the plaintiff, Khamas, and the defendant, Anton, in the Local Court of New South Wales. The plaintiff sought to enforce an alleged settlement agreement between the parties, which arose from a dispute over a debt. The case came before the court to determine whether the proceedings were indeed settled and if the defendant was liable to pay the plaintiff as claimed.

The court was required to decide if the settlement agreement was valid and enforceable. Specifically, the central issue was whether the evidence presented demonstrated that the parties had reached an agreement to settle the proceedings. This involved examining the communications between the parties, including any written or verbal agreements, and determining if these constituted a binding settlement.

The court found that the evidence did not support the plaintiff's claim that a settlement had been reached. The communications between the parties did not clearly demonstrate a mutual intention to settle the proceedings on the terms proposed by the plaintiff. The court emphasised that a settlement agreement must be unequivocal and clear, and in this case, the evidence did not meet that standard. Consequently, the court dismissed the plaintiff's claim, holding that the defendant was not liable to pay the plaintiff as sought.

The court's decision concluded that the plaintiff's action to enforce the alleged settlement was unsuccessful. The proceedings were dismissed with costs awarded to the defendant.

Orders