Nobarani v Mariconte - [2017] HCATrans 236

[2017] HCATrans 236

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S184 of 2017

B e t w e e n -
HOMAYOUN NOBARANI
Applicant
and
TERESA ANNE MARICONTE
Respondent
Application for special leave to appeal

GAGELER J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON FRIDAY, 17 NOVEMBER 2017, AT 10.13 AM

MR M.J. WINDSOR, SC: If the Court pleases, I appear with my learned friend, MR J.E.F. BROWN, for the applicant. (instructed by Remedy Legal)

MR A.E. MAROYA: May it please the Court, I appear with my learned friend, MR D.F. ELLIOTT, for the respondent. (instructed by Vizzone Ruggero Twigg Lawyers)

GAGELER J: You might stay on your feet, Mr Maroya. We would be assisted by hearing from you first.

MR MAROYA: Thank you, your Honour. By our learned friend’s first special leave question, the applicant invites the Court to devise a catalogue of the criteria that must be met in order for a court to find that a party who has been denied procedural fairness would not be successful if a new trial were ordered. In our submission, the difficulties with that question are several. First, this Court’s decision in Stead v State Government Insurance Commission authoritatively settles the matter and it is unnecessary, in our respectful submission, for the question to be revisited by this Court now.

GAGELER J: Stead was a case where there was a mistake of law, was there not?

MR MAROYA: Yes, yes, it was.

GAGELER J: So what is settled by Stead?

MR MAROYA: What is settled by Stead, your Honour, is the approach that a court – in this case, the Court of Appeal – is obliged to take in arriving at a view that – to put the matter in shorthand terms – it would be a matter of futility to order that a new trial take place. That is really the crux of what is laid down in Stead. For that reason, in our submission, it would be most undesirable for this Court to seek to restrict, as the applicant invites it to do – to restrict the definition of “substantial wrong” or “miscarriage of justice” by reference to a list of criteria, particularly as our written outline records, where no conflict as to the state of the law is propounded by the applicant in his submissions.

The second difficulty that we proffer with the first special leave question is this, namely that it ignores the operation of rule 51.53(1) of the Uniform Civil Procedure Rules (NSW) which, as your Honours know, prohibits a court from ordering a new trial upon certain grounds including subparagraph (d), that is, “any other ground” unless - and I quote from the rule:

it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned.

As we have recorded, your Honours, in our response,…

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 [2017] HCATrans 236
Case: [2017] HCATrans 236
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 High Court was required to determine whether the parties had reached a concluded agreement for the sale of shares, and if so, whether that agreement was rendered unenforceable by the *Statute of Frauds 1936* (NSW) or the *Corporations Act 2001* (Cth). Specifically, the court had to consider the requirements for a valid contract for the sale of shares and the application of statutory provisions concerning the form and enforceability of such agreements.

The Court held that the parties had not reached a concluded agreement. It reasoned that the alleged oral agreement lacked the necessary certainty and finality to constitute a binding contract. The judges applied principles of contract law, emphasizing that for an agreement to be enforceable, there must be a clear and unequivocal intention to be legally bound, with all essential terms agreed upon. In this instance, the evidence did not demonstrate that the parties had moved beyond preliminary negotiations to a point where a binding contract was formed. Consequently, the High Court found that the Statute of Frauds and the Corporations Act were not engaged because no enforceable contract existed.

Orders