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Lahoud v Lahoud

Lahoud v Lahoud

Case [2009] NSWSC 623 3 July 2009

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CITATION: Lahoud v Lahoud; Lahoud v Lahoud [2009] NSWSC 623

HEARING DATE(S): 14, 15, 16, 17, 21, 22 and 24 April 2009

JUDGMENT DATE :
3 July 2009

JURISDICTION: Equity Division

JUDGMENT OF: Ward J

DECISION: Damages awarded to plaintiffs in 3606 of 2001. Judgment for plaintiffs in 3582 of 2007.

CATCHWORDS: DAMAGES – measure and remoteness of damages in actions for breach of contract – order made in previous hearing that Victor Lahoud interests perform contract – enquiry as to damages suffered by Joseph Lahoud interests resulting from Victor Lahoud interests’ failure to transfer residential units for period of six years – Joseph Lahoud interests claimed damages referable to lost rent from units or interest on capital value of units – whether loss of income would be presumed from failure to transfer income-producing asset – consideration of Wenham v Ella and Hadley v Baxendale – held that Joseph Lahoud interests had only established loss of rents from particular leases existing at time of breach until expiry of those leases (and, in one case, an option lease) and had otherwise failed to establish loss. - CONTRACTS – general contractual principles – order made in previous hearing that parties execute Deed of Settlement in performance of obligation in Terms of Settlement – Deed substantially similar to Terms – Victor Lahoud interests exercised right under Deed to audit – whether Deed created new right to audit – if Deed created no new right, whether reasonable time for exercise of right under Terms had elapsed – whether right to audit should be construed to mean audit of specific figures or audit of project profits – held that Deed created new right to audit – if not, reasonable time had not elapsed – right to audit construed to mean a right to audit of project profits.

LEGISLATION CITED: Civil Procedure Act 2005
Industrial Relations Act 1996
Supreme Court Act 1970

CATEGORY: Principal judgment

CASES CITED: Anthanasopoulos v Moseley (2001) 52 NSWLR 262
Australian Broadcasting Commission v Australasian Performing Right Association (1973) 129 CLR 99
Australian Woollen Mills Pty Limited v Commonwealth (1954) 92 CLR 424
Bak v Glenleigh [2006] NSWCA 10
Ballas v Theophilos (1957) 98 CLR 193
Baume v Commonwealth (1906) 4 CLR 97
BHP Coal v O & K Orenstein & Koppel [2008] QSC 141
Bilambil-Terranora Pty Ltd v Tweed Shire Council [1980] 1 NSWLR 465
Boreland v Docker [2007] NSWCA 94
Broken Hill Metals v Roberts (WACA, unreported, 18 August 1994)
Buckman v Rose (1980) 1BPR 97059
Business and Professional Leasing Pty Limited v Akuity Pty Limited [2008] QCA 215
Castle Constructions Pty Limited v Fekala Pty Limited (2006) 65 NSWLR 648
Champtaloup v Thomas [1976] 2 NSWLR 264
Chen v Lord Energy Limited [2002] HKFCA 11
Chinnock v Marchioness of Ely (1864) H & M 220; 71 ER 447
Codelfa Construction Pty Limited v State Rail Authority of NSW (1982) 149 CLR 337
Commissioner of State Revenue v Pinesales Pty Limited (2007) 34 WAR 360
Commissioner of Taxation v Sara…

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 Lahoud v Lahoud

Details

AGLC: Lahoud v Lahoud [2009] NSWSC 623
Case: [2009] NSWSC 623
Decision Date: 3 July 2009

CaseChat Overview and Summary

The case of Lahoud v Lahoud involved a dispute between the parties regarding damages arising from a breach of contract. The dispute was heard in the Supreme Court of Queensland. The Joseph Lahoud interests sought damages for the failure of the Victor Lahoud interests to transfer residential units for a period of six years. The Joseph Lahoud interests claimed damages referable to lost rent or interest on the capital value of the units.

The legal issues that the court had to decide were whether the Joseph Lahoud interests had established the loss of income from the failure to transfer the income-producing asset and whether the Deed of Settlement created a new right to audit or if the reasonable time for the exercise of the right under the Terms had elapsed. The court had to determine if the right to audit should be construed to mean an audit of specific figures or an audit of project profits. The court found that the Joseph Lahoud interests had only established loss of rents from particular leases existing at the time of the breach until the expiry of those leases and had otherwise failed to establish loss. The court also held that the Deed created a new right to audit and, if not, a reasonable time had not elapsed. The right to audit was construed to mean a right to audit of project profits.

The final orders of the court were that the Joseph Lahoud interests were entitled to damages for the loss of rents from particular leases existing at the time of the breach until the expiry of those leases and an option lease. The Victor Lahoud interests were required to pay the damages to the Joseph Lahoud interests. The court also held that the Deed created a new right to audit and that the right to audit should be construed to mean an audit of project profits. The Victor Lahoud interests were required to allow the Joseph Lahoud interests to audit the project profits.

Orders