Nobarani v Mariconte - [2018] HCATrans 87

[2018] HCATrans 087

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S270 of 2017

B e t w e e n -
HOMAYOUN NOBARANI
Appellant
and
TERESA ANNE MARICONTE
Respondent

KIEFEL CJ
GAGELER J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 17 MAY 2018, AT 10.00 AM

MR M.J. WINDSOR, SC: If the Court pleases, I appear along with MR J.E.F. BROWN and MS M.E. HALL, for the appellant. (instructed by Remedy Legal)

MR G.O’L. REYNOLDS, SC: May it please the Court, in this matter I appear for the respondent with my learned friends, MR A.E. MAROYA and MR D.F. ELLIOTT. (instructed by Vizzone Ruggero Twigg Lawyers)

KIEFEL CJ: Yes, Mr Windsor.

MR WINDSOR: Thank you, your Honour. Your Honours, in the first instance this morning the appellant has provided to the Court a document setting out his position so far as the notice of contention is concerned. That remains the position – namely, that it is a matter for the Court.

We have made but two observations in respect of the notice of contention. One, that notice of contention was sought very late in the piece. Indeed, it was sought in circumstances where the Court had already granted an additional approximate four weeks for the respondent to put on its submissions in reply to the appellant’s submissions. If I might proceed.

KIEFEL CJ: Yes.

MR WINDSOR: My learned friend wanted to say something, your Honour.

MR REYNOLDS: Begging your Honours’ pardon, I just wanted to clarify whether we have leave to rely on the notice of contention.

MR WINDSOR: As I understand it, your Honour, that leave has not been granted by the Court up to this point in time.

KIEFEL CJ: Do you say that you have been prejudiced?

MR WINDSOR: No, your Honour.

KIEFEL CJ: Yes, leave is granted.

MR REYNOLDS: If your Honour please.

MR WINDSOR: Your Honours, in the appellant’s respectful submission, it would be a rare case in which an appellate court will not give relief if there has been procedural unfairness in circumstances where that procedural unfairness goes to a fact material to the decision.

We submit, on behalf of the appellant, that this is not one of those rare cases. Can I proceed by taking the Court to the joint bundle of authorities book and in this context simply take the Court to tab 18 at first instance, tab 18 being the tab dealing with the Stead decision. That is at page 288 of the joint book.

Your Honours are, undoubtedly, well acquainted with the facts giving rise to this particular matter. The then plaintiff had a neurotic condition. The question was whether that neurotic condition was caused by the negligent act or breach of duty by someone and there was evidence by Dr Scanlon as to whether it did or did not occur.

But could I take your Honours over…

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 Nobarani v Mariconte

Details

AGLC: Nobarani v Mariconte [2018] HCATrans 87
Case: [2018] HCATrans 87
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Supreme Court of New South Wales in a dispute between Nobarani and Mariconte. The core of the disagreement concerned the enforceability of an alleged oral agreement for the sale of shares in a company. Nobarani sought to enforce this agreement, while Mariconte contended that no binding contract had been formed.

The central legal question before the High Court was whether the parties had reached a concluded agreement for the sale of shares, notwithstanding the absence of a formal written contract. This required the court to determine if the essential terms of the alleged agreement had been sufficiently identified and agreed upon by the parties, and whether they intended to be legally bound by their oral discussions.

The High Court found that the parties had not reached a concluded agreement. Their Honours applied the principles of contract formation, emphasizing that for a binding contract to exist, there must be a clear and unequivocal agreement on all essential terms. In this instance, the court determined that critical aspects of the proposed share sale, such as the price and the specific shares to be transferred, remained uncertain and subject to further negotiation. Consequently, there was no objective manifestation of an intention to be immediately bound.

The High Court therefore dismissed the appeal, upholding the decision of the lower court that no enforceable contract for the sale of shares had been established.

Orders