Nassif v Fahd

Case [2007] NSWCA 269

New South Wales


Court of Appeal


CITATION: Nassif & Anor v Fahd & Ors [2007] NSWCA 269
HEARING DATE(S): 22/06/2007
 
JUDGMENT DATE: 
8 October 2007
JUDGMENT OF: Ipp JA at 1; McColl JA at 2; Bryson AJA at 3
DECISION: (1) Appeal allowed; (2) Judgment and orders of the District Court set aside and in lieu thereof give judgment for the defendants; (3) Reserve further consideration of costs in the District Court and in the Court of Appeal; (4) Direct that within 7 days each party make a written submission on the costs orders which should be made, and within a further 7 days reply to the opponents’ written submission.
CATCHWORDS: VENDOR and PURCHASER - Collateral contract - oral agreement collateral to written contracts for sale of land - whether oral collateral agreement enforceable where inconsistent as to consideration with written contracts. Vendors (respondents) agreed to purchase property from the Clarkes - appellants agreed to pay Vendors $150,000 and out-of-pocket expenses if Vendors and Clarkes rescinded their contract and Clarkes sold to appellants at same price - Clarkes refused and Vendors settled their purchase from Clarkes - later appellants agreed to purchase property from respondents in contracts stating same price as in contract with Clarkes, with oral agreement to pay extra $150,000 and out-of-pocket expenses if respondents would sell - HELD that the oral collateral agreement was inconsistent with the written agreement and was unenforceable.
CASES CITED: Cutts v Buckley (1933) 49 CLR 189
Esanda Ltd v Burgess & Anor [1984] 2 NSWLR 139
Gates v The City Mutual Life Assurance Society Limited (1986) 160 CLR 1
Heilbut, Symons & Co. v Buckleton [1913] AC 30
Hoyt's Proprietary Ltd v Spencer (1919) 27 CLR 133
Maybury & Anor v Atlantic Union Oil Company Limited (1953) 89 CLR 507
Shepperd v Ryde Corporation (1952) 85 CLR 1
PARTIES: Sarkis Nassif - 1st Appellant
Bernadette Nassif - 2nd Appellant
Alex George Fahd - 1st Respondent
Ibtasim Fahd - 2nd Respondent
Alexi Mama Fahd - 3rd Respondent
Priscilla Fahd - 4th Respondent
FILE NUMBER(S): CA 40586/2006
COUNSEL: Mr R. Forster SC with Mr D.L. Warren for the appellant
Mr F. Lever SC for the Respondent
SOLICITORS: Advance Legal - Appellant
McGrath Dicembre & Co - Respondent
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 5026/2004
LOWER COURT JUDICIAL OFFICER: Judge O'Connor Q.C.
LOWER COURT DATE OF DECISION: 30/06/2006



                          CA 40586/2006

                          IPP JA
                          McCOLL JA
                          BRYSON AJA

                          8 October 2007
Sarkis NASSIF and Bernadette NASSIF v Alex George FAHD, Ibtasim FAHD, Alexi Mama FAHD and Priscilla FAHD
Judgment

1 IPP JA: I agree with Bryson AJA.

2 McCOLL JA: I agree with Bryson AJA.

3 BRYSON AJA: This is an appeal from the judgment of his Honour Judge Colin O'Connor QC in the District Court at Sydney. The Trial Judge heard the proceedings on seven days between 8 March 2005 and 18 October 2005, and gave a careful written judgment after reserving judgment for over eight months; the terms of…

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AGLC
Nassif v Fahd [2007] NSWCA 269
Case
[2007] NSWCA 269
Decision Date

CaseChat Overview and Summary

The dispute in *Nassif v Fahd* concerned an alleged oral agreement collateral to written contracts for the sale of land. The appellants, Nassif and others, sought to enforce this oral agreement against the respondents, Fahd and others, who were the vendors of the property. The matter came before the Court of Appeal of New South Wales.

The primary legal issue before the court was whether an oral collateral agreement, which stipulated an additional payment of $150,000 and out-of-pocket expenses, was enforceable when it was inconsistent with the terms of the written contracts for the sale of the land. Specifically, the court had to determine if the oral agreement could stand independently of, and in addition to, the consideration stated in the written agreements.

The Court of Appeal held that the oral collateral agreement was unenforceable because it was inconsistent with the written contracts. The court applied the principle that a collateral contract cannot be enforced if its terms contradict or are inconsistent with the main written contract. In this instance, the oral agreement to pay an additional $150,000 and out-of-pocket expenses was found to be inconsistent with the consideration agreed upon in the written contracts for the sale of the property.

Consequently, the appeal was allowed, and the judgment and orders of the District Court were set aside. The Court of Appeal entered judgment for the defendants and reserved further consideration of costs in both the District Court and the Court of Appeal, directing written submissions from the parties on the appropriate cost orders.

Orders

Orders of the court

(1) Appeal allowed; (2) Judgment and orders of the District Court set aside and in lieu thereof give judgment for the defendants; (3) Reserve further consideration of costs in the District Court and in the Court of Appeal; (4) Direct that within 7 days each party make a written submission on the costs orders which should be made, and within a further 7 days reply to the opponents' written submission. (Ipp and McColl JJ agreeing with Bryson AJA)

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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