Lahoud v Lahoud

Case [2006] NSWCA 169

New South Wales


Court of Appeal


CITATION: Lahoud & Ors. v. Lahoud & Anor. [2006] NSWCA 169
HEARING DATE(S): 27 and 28 April 2006
 
JUDGMENT DATE: 
30 June 2006
JUDGMENT OF: Handley JA at 1; Hodgson JA at 5; Ipp JA at 113
DECISION: Appeal dismissed with costs
CATCHWORDS: CONTRACT - Appeal - Primary judge not satisfied that oral promises or representations made as conditions for entry into a written agreement - Whether factual errors shown.
CASES CITED: Hoyts Pty. Limited v. Spencer (1919) 27 CLR 133
Stockland (Constructors) Pty. Limited v. Retail Design Group (International) Pty. Limited [2003] NSWCA 84
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Watson v. Foxman (1995) 49 NSWLR 315
PARTIES: Victor Lahoud - 1st appellant
Castle Constructions Pty. Ltd. - 2nd appellant
Solidare Pty. Ltd. - 3rd appellant
Joseph Lahoud - 1st respondent
Joseph Lahoud & Associates Pty. Ltd. - 2nd respondent
FILE NUMBER(S): CA 40528/05
COUNSEL: Mr. J.T. Gleeson SC with Mr. P. Kulevski for appellants
Mr. S.D. Epstein SC with Mr. T. Maltz for respondents
SOLICITORS: Aitken McLachlan Thorpe for appellants
Baron & Associates for respondents
LOWER COURT JURISDICTION: Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S): SC3606/01
SC2530/04
LOWER COURT JUDICIAL OFFICER: Palmer J
LOWER COURT DATE OF DECISION: 30 May 2005
LOWER COURT MEDIUM NEUTRAL CITATION: [2005] NSWSC 509



                          CA40528/05
                          SC 3606/01
                          SC 2530/04

                          HANDLEY JA
                          HODGSON JA
                          IPP JA

                          Friday 30 June 2006
LAHOUD & ORS. V. LAHOUD & ANOR.
Judgment

1 HANDLEY JA: In this appeal I have had the benefit of reading the extensive reasons for judgment of Hodgson JA in draft. Subject to one matter I agree with his reasons and the orders he has proposed. My qualification relates to para [111] of his Honour’s reasons.

2 With respect I can discern no basis for any estoppel in this case. The alleged statement about the care of Riad and the delivery of the watch were not statements of existing fact. They were promissory and positive in substance. The promises which support an orthodox promissory estoppel are negative in substance and restrict the promisor’s enforcement of his existing legal rights against the promisee. The alleged promises made by Joseph were manifestly not of this character. Nor were they promises of the kind enforced in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387. Joseph’s so called representations did not continue and were not repeated. He did not stand by in silence, there was no continuing change of position by Victor, and there was no basis for a proprietary estoppel by standing by.

3 In any event in my opinion, in the circumstances of this case, cl 9 and sch 2 exclude proof of the antecedent collateral promises or statements of intention relied on by Victor. They also negative a finding of reasonable reliance on those promises on Victor’s part, leaving Joseph’s promises or statements, if proved, binding only in honour as was the case in Jorden v Money (1854) 5…

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AGLC
Lahoud v Lahoud [2006] NSWCA 169
Case
[2006] NSWCA 169
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between Lahoud and Lahoud. The primary judge had found that certain oral promises or representations, alleged by the appellant to have been made as conditions for entering into a written agreement, were not established. The appellant sought to overturn this finding on appeal.

The central legal issue before the Court of Appeal was whether the primary judge had made factual errors in assessing the evidence regarding the alleged oral promises. The appellant contended that the primary judge's findings of fact were demonstrably wrong, thereby necessitating appellate intervention.

The Court of Appeal reviewed the evidence and the primary judge's findings. The judges concluded that no reversible error had been demonstrated in the primary judge's assessment of the facts. The principles applied involved the well-established standard of appellate review, which requires a high degree of certainty that the primary judge's factual findings were incorrect before disturbing them. The Court found that the appellant had failed to meet this threshold.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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