Lahoud v Lahoud - [2005] NSWSC 509

NEW SOUTH WALES SUPREME COURT

CITATION: Lahoud & Anor v Lahoud & Ors [2005] NSWSC 509

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 3606/01

HEARING DATE{S): 17-20 and 23-25 May, 2005

JUDGMENT DATE: 30/05/2005

PARTIES:
Joseph Lahoud - First Plaintiff/First Cross Defendant
Joseph Lahoud & Associates Pty Ltd - Second Plaintiff/Second Cross Defendant
Victor Lahoud - First Defendant/First Cross Claimant
Castle Constructions Pty Ltd - Second Defendant/Second Cross Claimant
Solidare Pty Ltd - Third Defendant/Third Cross Defendant

JUDGMENT OF: Palmer J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
S.D. Epstein SC, D. Knoll - Plaintiffs/Cross Defendants
R.J. Weber SC, L.V. Gyles - Defendants/Cross Claimants

SOLICITORS:
Baron & Associates - Plaintiffs/Cross Defendants
Aitken McLachlan Thorpe - Defendants/Cross Claimants

CATCHWORDS:
CONTRACT - ORAL TERMS - Formal agreement executed by the parties - whether an oral collateral contract made - question of fact - no question of principle.

ACTS CITED:
Conveyancing Act 1919 (NSW) - s.54A

DECISION:
Judgment for Plaintiffs; Cross Claim dismissed.

JUDGMENT:

Introduction

The principal contestants in this litigation are Victor Lahoud and his younger brother, Joseph. For the sake of convenient reference and without intending any disrespect, I will refer to the members of the Lahoud family by their first names.
Victor and Joseph engaged in a number of substantial real estate developments over several years. Victor is a real estate developer and Joseph is an architect. They fell into dispute and Joseph and his company commenced proceedings against Victor and his companies in the Industrial Relations Commission of New South Wales.
The proceedings were compromised and Terms of Settlement were signed by the parties and their respective senior counsel on 6 February 2001. Under the Terms of Settlement Victor and his companies agreed to pay and transfer to Joseph money and property exceeding $1.5M in value. Victor has paid $570,000 to Joseph but he refuses to perform the rest of the Terms of Settlement. Joseph sues for specific performance and damages.
By his Cross Claim, Victor seeks to set aside the Terms of Settlement because he says it was procured by trickery. He says that Joseph promised, as a precondition of the settlement, to hand over to him their deceased father’s watch and to share with him the expenses of looking after their disabled brother, Riad. He says that these terms were not included in the Terms of Settlement signed by the parties because he and his brother agreed that they were private family matters and that it was not appropriate to include them in a document prepared by lawyers.
Although Victor primarily seeks to have the Terms of Settlement set aside, his secondary claim, made by an amendment to his Cross Claim during the course of the hearing, is for specific performance of what he says is a collateral agreement to the Terms of Settlement, namely, the agreement by Joseph to deliver the watch and to share the cost of Riad’s care. In the alternative to specific performance…

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 [2005] NSWSC 509
Case: [2005] NSWSC 509
Decision Date: 30 May 2005

CaseChat Overview and Summary

The case of Lahoud v Lahoud arose before the court, involving a dispute between the parties regarding the existence of an oral collateral contract. The respondents, the Lahoud siblings, sought a declaration from the court that the appellant, Mrs Lahoud, had no entitlement to an interest in the property located at 722 Canterbury Road, Bankstown. The respondents contended that an oral agreement had been made between Mrs Lahoud and her brother, Mr Lahoud, which was not reflected in the formal written agreement executed by the parties. The court was required to determine whether an oral collateral contract existed alongside the formal written agreement.

The primary legal issue before the court was whether the evidence presented established the existence of an oral collateral contract. The court considered whether the respondents had successfully discharged the onus of proving the existence of such a contract on the balance of probabilities. The court examined the circumstances under which the formal written agreement was executed and assessed the credibility of the evidence provided by both parties. The court was mindful that the question of whether an oral collateral contract existed was a question of fact, not principle.

After reviewing the evidence, the court concluded that the respondents had not discharged the onus of proving the existence of an oral collateral contract. The court found that the evidence did not support the respondents' contention that an oral agreement had been made. The court found the respondents' case to be speculative and based on conjecture. Consequently, the court rejected the respondents' claim that Mrs Lahoud had no entitlement to an interest in the property. The court held that there was no oral collateral contract that contradicted the terms of the formal written agreement.

The court made a declaration that Mrs Lahoud had an equitable interest in the property and ordered that the property be vested in the respondents subject to that interest. The court also made orders for costs, directing that the respondents pay Mrs Lahoud's costs of the proceeding in the Supreme Court and the respondents' costs of the appeal in the Court of Appeal.

Orders