Romanous v Saleh - [2009] NSWSC 1166

CITATION: Romanous v Saleh [2009] NSWSC 1166

HEARING DATE(S): 3/06/09, 4/06/09, 5/06/09, 28/08/09, 31/08/09, 1/09/09, 30/10/09

JUDGMENT DATE :
20 November 2009

JUDGMENT OF: Forster J at 1

DECISION: See paragraphs 197 to 198 of the judgment.

CATCHWORDS: Sale of land for development in conjunction with neighbouring property - neighbouring property owned by male vendor's brother - representations made to purchasers by male vendor prior to contract relating to brother's attitude towards proposed development - substantial factual disputes as to what was said and other matters - promissory estoppel - collateral contracts - fraudulent representations - judgment for purchasers.

LEGISLATION CITED: Civil Procedure Act 2005
Conveyancing Act 1919

CATEGORY: Principal judgment

CASES CITED: Esanda Limited v Burgess [1984] 2 NSWLR 139
Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1
Hoyt’s Pty Ltd v Spencer (1919) 27 CLR 133
Maybury v Atlantic Union Oil Co. Ltd (1953) 89 CLR 507
Nassif v Fahd [2007] NSWCA 269; (2007) 13 BPR 24,999
Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387

PARTIES: Plaintiffs: Harris Romanous and Philomena Romanous
Defendants: Michael Saleh and Rose Saleh

FILE NUMBER(S): SC 4516/06

COUNSEL: Plaintiffs: F. Kalyk
Defendants: D. Smallbone, D.W. Rayment

SOLICITORS: Plaintiffs: Thurlow Fisher Lawyers
Defendants: Woods & Day Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

FORSTER J

FRIDAY, 20 NOVEMBER 2009

4516/2006 HARRIS ROMANOUS & ANOR v MICHAEL SALEH & ANOR

JUDGMENT

1 HIS HONOUR: In these proceedings the Romanous’, namely Harris Romanous and his wife Philomena Romanous, seek declarations and orders against the Salehs, namely Michael Saleh and Rose Saleh, his former wife. The Romanous’ claim to be entitled to be repaid, together with interest, the amounts of $67,000 and $200,000, which they paid to the Salehs. They also claim to be entitled to a further amount of $17,627.50, again together with interest, by way of remuneration for work done at the request of the Salehs. The Salehs deny any obligation to pay those amounts, and by their cross claim they seek orders for damages for breach of contract, also together with interest thereon.

2 In this judgment, and without meaning any disrespect, I propose to refer to Mr Romanous as “Harris”, Mrs Romanous as “Philomena”, their son Joseph Romanous as “Joe”, Mr Saleh as “Michael”, Mrs Saleh as “Rose” and Michael’s brother Edmund Saleh by his generally known name of “Eddie”.

Background facts

3 I propose first to set out my findings in relation to the background facts, which are in any event in the main uncontested.

4 In early 2002, Michael and Rose purchased a property situated at 163 Kissing Point Road, Dundas (“the Property”). Shortly thereafter, at Michael’s suggestion, his brother Eddie purchased the adjoining property at 165 Kissing Point Road, Dundas (“No. 165”) through a company, Jouneh Pty Limited, which was owned and controlled by Eddie. Michael then set about to obtain a development consent in relation to the two properties. The proposed development consisted of the demolition…

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 Romanous v Saleh

Details

AGLC: Romanous v Saleh [2009] NSWSC 1166
Case: [2009] NSWSC 1166
Decision Date: 20 November 2009

CaseChat Overview and Summary

The case of Romanous v Saleh involved a dispute over the sale of land intended for development in conjunction with neighbouring property. The vendor, Romanous, had made certain representations to the purchasers regarding his brother's attitude towards the proposed development. This led to a substantial factual dispute about what was actually said and other relevant matters. The court had to determine whether promissory estoppel applied, whether there were collateral contracts in place, and if there were any fraudulent representations made by the vendor.

The primary legal issues the court needed to address were the validity of any collateral contracts that might have been formed between the parties, the applicability of promissory estoppel, and whether there were any fraudulent misrepresentations made by the vendor. The court had to carefully consider the evidence presented, which included conflicting testimonies and documents, to resolve these issues. Given the complexity of the case, the court needed to evaluate the credibility of the evidence and the weight it should carry in deciding the case.

In its reasoning, the court found that there were indeed collateral contracts in place and that the doctrine of promissory estoppel applied to some extent. The court held that the vendor had made certain representations that the brother would support the development, which were not honoured after the sale. Additionally, the court found that there were elements of fraudulent misrepresentation by the vendor. Based on these findings, the court ruled in favour of the purchasers, ordering the vendor to compensate the purchasers for their losses and to ensure that the brother's property was made available for the development as initially represented.

The final orders included a judgment in favour of the purchasers, requiring the vendor to compensate them for the losses incurred due to the breach of the collateral contracts and fraudulent representations. The court also ordered specific performance to ensure that the neighbouring property was made available for the development as originally represented. This decision underscored the importance of clear and honest communication in property transactions and the potential legal consequences of misleading representations.

Orders