Rashid Raashed v Mosharrof Hussein - [2011] NSWSC 1342

Supreme Court

New South Wales

Medium Neutral Citation: Rashid Raashed v Mosharrof Hussein [2011] NSWSC 1342
Hearing dates: 13 September 2011
Decision date: 13 November 2011
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The appeal is dismissed.
(2) The decision of her Honour Magistrate Swain dated 29 October 2010 is affirmed.
(3) The summons filed 7 December 2010 is dismissed.
(4) The plaintiff is to pay the defendants' costs as agreed or assessed.

Catchwords: APPEAL FROM LOCAL COURT - whether error of law - whether Magistrate erred in relief granted - whether Magistrate erred in failing to hold that party had not discharged evidentiary burden - appeal dismissed
CONTRACT - contract for sale of business - Contracts Review Act 1980 - contract unjust - discretionary relief
Legislation Cited: Contracts Review Act 1980
Local Court Act 2007
Uniform Civil Procedures Rules 2005
Cases Cited: House v The King (1936) 55 CLR 499
Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41
S H Lock (Australia) Ltd v Kennedy (1988) 12 NSWLR 482
Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4
US Manufacturing Co Pty Ltd v ABB Service Pty Ltd [2008] NSWSC 705
Verduci v Golotta [2010] NSWSC 506
West v AGC (Advances) Ltd (1986) 5 NSWLR 610
Category: Principal judgment
Parties: Dr Rashid Raashed - Plaintiff
Mosharrof Hussein - First Defendant
Mehjabin Hussein - Second Defendant
Representation: Counsel:
J Paine - Plaintiff
V Thomas - Defendants
Solicitors:
Kinghan & Associates - Plaintiff
Turner Freeman - Defendants

File Number(s): 2010/406425
Decision under appeal

Citation:

Dr Rashid Rasheed v Mosharrof Hussein

Date of Decision:

2010-10-29 00:00:00

Before:

V M Swain LCM

File Number(s):

401/2009

Judgment

HER HONOUR : By summons filed 7 December 2010, the plaintiff seeks firstly, an order that the time for appeal be extended pursuant to rule 50.3(1)(c) of the Uniform Civil Procedures Rules 2005 ("UCPR"); secondly, leave to appeal from the whole of the decision of her Honour Magistrate V M Swain dated 29 October 2010; thirdly that the Local Court judgment be set aside and there be judgment for the plaintiff; or alternatively that the matter be remitted to the Local Court to be reheard according to law.

The plaintiff is Dr Rashid Raashed, who was the plaintiff in the Local Court proceedings. The first defendant is Mosharrof Hussein and the second defendant is Mehjabin Hussein ("the Husseins"). The Husseins are husband and wife and were the defendants in the Local Court proceedings. Dr Raashed relied on the affidavit of Ann Christine Kinghan sworn 9 June 2011.

The appeal

On 16 March 2011, leave to appeal out of time was granted by Hall J.

Section 39 of the Local Court Act 2007 provides that a party who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.

Section 40 of the Local Court Act provides that a party may appeal on a question of mixed law…

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 Rashid Raashed v Mosharrof Hussein

Details

AGLC: Rashid Raashed v Mosharrof Hussein [2011] NSWSC 1342
Case: [2011] NSWSC 1342
Decision Date: 13 November 2011

CaseChat Overview and Summary

The appeal in this case originated from a decision of the Local Court where the appellant, Rashid Raashed, sought relief from a contract for the sale of a business. The respondent, Mosharrof Hussein, was the seller of the business. The primary dispute centred on the fairness and enforceability of the contract, with Raashed asserting that the contract was unjust and that he was entitled to relief under the Contracts Review Act 1980. The appeal was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the Magistrate had erred in granting the relief sought by Raashed and whether the Magistrate had failed to correctly apply the evidentiary burden of proof. Specifically, the court had to determine whether the contract was indeed unjust and whether Raashed had adequately discharged his burden to prove that the contract was unjust. The court also needed to examine whether the Magistrate's decision to grant relief was an error of law or a misapplication of the statutory provisions.

In dismissing the appeal, the court found that the Magistrate had correctly exercised his discretion in granting relief under the Contracts Review Act 1980. The court held that the evidence presented did not establish that the contract was unjust to such an extent that it warranted relief. Furthermore, the court determined that the Magistrate had not erred in his assessment of the evidentiary burden, concluding that Raashed had not discharged the necessary burden of proof. The court found no grounds for an error of law in the Magistrate's decision, affirming that the appeal was without merit.

Consequently, the Supreme Court dismissed the appeal, upholding the decision of the Local Court. The relief granted by the Magistrate was affirmed, and no further orders were made in relation to the contract.

Orders