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)
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…
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 Qushair v Raffoul
Sign in free to access the full text
Details
AGLC
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).