Nicolazzo v Harb - [2009] VSCA 79

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3716 of 2008

JOSEPH NICOLAZZO
	Appellant/Third Defendant
v
NABIL HARB and AMAL HARB	First respondent/First Plaintiff
	Second Respondent/Second Plaintiff

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JUDGES:	ASHLEY, NEAVE and DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 March 2009
DATE OF JUDGMENT:	23 April 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 79

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CONTRACT – Alleged oral loan agreement between respondents, appellant and his partners – Document referring to loan agreement between respondents and a corporation, on behalf of which the appellant and his partners purportedly signed – Whether parol evidence rule excluded evidence of alleged oral agreement – Formulations of rule – Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55 considered – Whether open to find that appellant induced respondents’ entry into loan agreement and was liable for loan – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant/Third Defendant	Mr J M Selimi	Stonnington & Zervas
For the First and Second Respondents/ First and Second Plaintiffs	Mr D J Williams Mr S P Woolley	Lewenberg & Lewenberg

ASHLEY JA:

I agree with Dodds-Streeton JA, for the reasons which her Honour gives, that this appeal should be dismissed.

NEAVE JA:

I have had the considerable advantage of reading in draft form the reasons of Dodds-Streeton JA. I agree that the appeal should be dismissed, for the reasons given by her Honour.

DODDS-STREETON JA:

The appellant, Joseph Nicolazzo, by an amended notice of appeal dated 29 May 2008 appeals from the judgment of a judge of the County Court given on 18 December 2007.

His Honour held that the appellant, George Eid and Michael Gajic (the other defendants below) were liable to pay the respondents, Nabil and Amal Harb (the plaintiffs below) the sum of $107,000 together with interest agreed at $44,100.44.

His Honour ordered:

1.   Judgment for the Plaintiffs against the Defendants in the sum of $107,000 together with Interest agreed at $44,100.44.
2.   Further order (the) Defendants to pay the Plaintiffs costs to be taxed in default of agreement on County Court Scale D. Certify for 2 refreshers.
3.   Further order a stay of 30 days.

Grounds of Appeal

The appellant appeals upon the following grounds:

1. The learned judge erred in law by failing to apply the parol evidence rule as recently enunciated in Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; 218 CLR 471.

2.   The learned judge erred in law and in fact by failing to find and hold that the respondents were bound by the terms of the written agreement adduced in evidence by each of them and marked as Exhibit CB113-114.
3.   The learned judge erred in law by failing to make any reference to the Appellant’s submissions with respect to the application of the parol evidence rule in his reasons for judgment and failed to give any reasons whatsoever for implicitly rejecting the application of the parol evidence rule.
4.   The learned judge erred in fact…

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 Nicolazzo v Harb

Details

AGLC: Nicolazzo v Harb [2009] VSCA 79
Case: [2009] VSCA 79
Decision Date: 23 April 2009

CaseChat Overview and Summary

Nicolazzo v Harb involved a dispute over an alleged oral loan agreement between the parties, the appellant, Nicolazzo, and the respondents, Harb. The dispute arose from a document referring to a loan agreement between the respondents and a corporation, on behalf of which the appellant and his partners purportedly signed. The issue was whether the parol evidence rule excluded evidence of the alleged oral agreement and whether it was open to find that the appellant induced the respondents' entry into the loan agreement and was liable for the loan.

The court considered the formulations of the parol evidence rule and referenced Equuscorp Pty Ltd v Glengallan Investments Pty Ltd. The court found that the parol evidence rule did not exclude the evidence of the alleged oral agreement, as it was necessary to understand the true nature of the agreement. The court also found that it was open to conclude that the appellant induced the respondents' entry into the loan agreement and was liable for the loan, as the evidence showed that the appellant had acted as a guarantor for the loan.

The court dismissed the appeal, upholding the lower court's decision. The court found that the appellant had failed to establish that the lower court had erred in its findings of fact or in its application of the law. The court concluded that the appellant's appeal was without merit and dismissed it with costs.

No further orders were made by the court. The decision reinforces the importance of properly documenting loan agreements and the potential consequences of relying on oral agreements. It also highlights the need for caution when applying the parol evidence rule and the need to consider the context and circumstances of each case.

Orders