Qushair v Raffoul

Case [2009] NSWCA 329



New South Wales


Court of Appeal


CITATION: Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329
HEARING DATE(S): 9 October 2009
 
JUDGMENT DATE: 

28 October 2009
JUDGMENT OF: Campbell JA at 1; Bergin CJ in Eq at 2; Sackville AJA at 3
DECISION: 1. Appeal allowed.
2. The orders made by the primary Judge on 21 November 2008 set aside.
3. Direct that the matter be remitted to the District Court and that there be a new trial of the respondent’s claim and the appellant’s cross-claim.
4. The respondent pay the appellant’s costs of the appeal.
5. The costs of the trial be reserved for determination by the District Court.
6. The respondent, if otherwise qualified, to have a certificate under the Suitors Fund Act 1951 (NSW).
CATCHWORDS: FAIR TRADING - whether alleged representations made- whether representations, if made, were misleading or deceptive. - REASONS - whether primary Judge gave adequate reasons for finding that the representations were not made and, if made, did not constitute misleading or deceptive conduct- whether a retrial should be ordered.
LEGISLATION CITED: Trade Practices Act 1974 (Cth) ss 52, 82(1)
Fair Trading Act 1987 (NSW) ss 41, 42(1), 68(1), 72 (1), 72(5)(a),(c)
Suitors Fund Act 1951 (NSW)
CATEGORY: Principal judgment
CASES CITED: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; 218 CLR 592
Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; 257 ALR 610
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186
I&L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; 210 CLR 109
Palmer v Clarke (1989) 19 NSWLR 158
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
PARTIES: Abdel Naser Qushair (Appellant)
Naji Raffoul (Respondent)
FILE NUMBER(S): CA 40043/09
COUNSEL: Coles SC; Hughes (Appellant)
White (Respondent)
SOLICITORS: Westside Law Firm (Appellant)
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 4784/07
LOWER COURT JUDICIAL OFFICER: Goldring DCJ
LOWER COURT DATE OF DECISION: 21 November 2008
LOWER COURT MEDIUM NEUTRAL CITATION: Naji Raffoul v Abdel Naer Qushair [2008] NSWDC 253





                          CA 40043 of 2009

                          CAMPBELL JA
                          BERGIN CJ in Eq
                          SACKVILLE AJA

                          28 October 2009
ABDEL NASER QUSHAIR v NAJI RAFFOUL
Judgment

1 CAMPBELL JA: I agree with Sackville AJA.

2 BERGIN CJ in Eq: I agree with Sackville AJA and the orders proposed by his Honour.

3 SACKVILLE AJA: This is an appeal from a decision of a Judge of the District Court (Goldring DCJ). The primary Judge entered a verdict for the plaintiff (“Mr Raffoul”) (the respondent to the appeal) against the defendant (“Mr Qushair”) (the appellant) in the sum of $134,700 plus interest. His Honour also dismissed a cross-claim by Mr Qushair against Mr Raffoul.

4 The proceedings arose out of a written agreement entered into on 16 January 2006 (“Loan Agreement”) under which Mr Raffoul lent…

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Qushair v Raffoul [2009] NSWCA 329
Case
[2009] NSWCA 329
Decision Date

CaseChat Overview and Summary

The appeal in *Qushair v Raffoul* concerned a dispute between the parties regarding alleged representations made by the appellant to the respondent. The primary judge had made findings that the representations were not made, or if made, did not constitute misleading or deceptive conduct. The appeal was heard by Campbell JA, Bergin CJ in Eq, and Sackville AJA.

The central legal issues before the appellate court were whether the primary judge had provided adequate reasons for concluding that the alleged representations were not made and, alternatively, that if made, they did not amount to misleading or deceptive conduct. A further issue was whether, in light of any deficiencies in the primary judge's reasons, a retrial of the matter should be ordered.

The appellate court found that the primary judge's reasons were insufficient to justify the conclusions reached. Consequently, the appeal was allowed, and the orders of the primary judge were set aside. The court directed that the matter be remitted to the District Court for a new trial of both the respondent's claim and the appellant's cross-claim. The respondent was ordered to pay the appellant's costs of the appeal, with the costs of the trial to be determined by the District Court.

Orders

Orders of the court

1. Appeal allowed.

2. The orders made by the primary Judge on 21 November 2008 set aside.

3. Direct that the matter be remitted to the District Court and that there be a new trial of the respondent’s claim and the appellant’s cross-claim.

4. The respondent pay the appellant’s costs of the appeal.

5. The costs of the trial be reserved for determination by the District Court.

6. The respondent, if otherwise qualified, to have a certificate under the Suitors Fund Act 1951 (NSW).

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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