Saleh v Romanous

Case [2010] NSWCA 274

New South Wales


Court of Appeal


CITATION: Saleh v Romanous [2010] NSWCA 274
HEARING DATE(S): 30/08/2010
 
JUDGMENT DATE: 
28 October 2010
JUDGMENT OF: Giles JA at 1; Handley AJA at 2; Sackville AJA at 85
DECISION: Appeal dismissed with costs.
CATCHWORDS: CONTRACT – collateral contract – inconsistent with principal contract – pre-contractual promissory estoppel available. - EQUITY – contract – equitable relief against enforcement – pre-contractual promissory estoppel. - ESTOPPEL – promissory estoppel – pre-contractual promise – estoppel available. - ESTOPPEL – promissory estoppel – negative effect – restraint on enforcement of rights. - ESTOPPEL – promissory estoppel – exclusively equitable. - EVIDENCE – written contract – parol evidence rule – entire contract rule – pre-contractual promissory estoppel not barred.
LEGISLATION CITED: Conveyancing Act, s 55(2A) & s 66L
Fair Trading Act, s 45
CATEGORY: Principal judgment
CASES CITED: Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd [1982] QB 84 CA
Australian Co-operative Foods Ltd v Norco Co-operative Ltd (1999) 46 NSWLR 267
Bank Negara Indonesia v Hoalim [1973] 2 MLJ 3
Birmingham & District Land Co v London & North Western Railway Co (1888) 40 ChD 268 CA
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, 117 FCR 424
Carter v Salmon (1880) 43 LT 490 CA
City and Wesminster Properties (1934) Ltd v Mudd [1959] Ch 129
Equuscorp Pty Ltd v Glengallen Investments Pty Ltd [2004] HCA 55, 218 CLR 471
Fox v Percy [2003] HCA 22, 214 CLR 118
Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407, 264 ALR 15
Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; 59 CLR 641
Harkins v Butcher [2002] NSWCA 237, 55 NSWLR 558
Hoyts Pty Ltd v Spencer [1919] HCA 64; 27 CLR 133
Hughes v Metropolitan Railway Co (1877) 2 App Cas 439
Johnson Mathey Ltd v AC Rochester Overseas Corp (1990) 23 NSWLR 190
Martin v Pycroft (1852) 2 DeGM & G 785
Maybury v Atlantic Union Oil Co Ltd [1953] HCA 89; 89 CLR 507
MK & JA Roche Pty Ltd v Metro Edgley Pty Ltd [2005] NSWCA 39
State Rail Authority of New South Wales v Heath Outdoor Pty Ltd (1986) 7 NSWLR 170
Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7, 164 CLR 387
Wright v Hamilton Island Enterprises Ltd [2003] QCA 36
PARTIES: Michael Saleh - 1st Appellant
Rose Saleh - 2nd Appellant
Harris Romanous - First Respondent
Philomena Romanous - Second Respondent
FILE NUMBER(S): CA 06/258370
COUNSEL: B W Rayment QC & D W Rayment - Appellants
S J Stanton & F G Kalyk - Respondents
SOLICITORS: Woods & Day Solicitors - Appellants
Thurlow Fisher Lawyers - Respondents
LOWER COURT JURISDICTION: Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S): SC 4516/06
LOWER COURT JUDICIAL OFFICER: Forster J
LOWER COURT DATE OF DECISION: 20/11/09
LOWER COURT MEDIUM NEUTRAL CITATION: [2009] NSWSC 1166




                          CA 2006/258370

                          GILES JA
                          HANDLEY AJA
                          SACKVILLE…

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Saleh v Romanous [2010] NSWCA 274
Case
[2010] NSWCA 274
Decision Date

CaseChat Overview and Summary

The dispute in *Saleh v Romanous* concerned the enforceability of a written contract for the sale of a business, where the purchaser alleged a pre-contractual promise had been made by the vendor that was inconsistent with the terms of the written agreement. The case was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court were whether a pre-contractual promise, which was inconsistent with the terms of a subsequent written contract, could be relied upon by the purchaser. Specifically, the Court had to consider the interplay between the parol evidence rule, the doctrine of collateral contract, and the availability of pre-contractual promissory estoppel as a defence to the enforcement of the written contract.

The Court held that the parol evidence rule, which generally prevents the admission of extrinsic evidence to contradict or vary the terms of a written contract, did not preclude the operation of pre-contractual promissory estoppel. The judges reasoned that promissory estoppel, being an equitable doctrine, could provide a defence to the enforcement of contractual rights where it would be unconscionable to assert those rights. In this instance, the vendor's alleged promise, even if it did not give rise to a collateral contract due to its inconsistency with the main agreement, could still operate to estop the vendor from enforcing the written contract in a manner contrary to that promise. The Court affirmed that promissory estoppel could have a negative effect, restraining the enforcement of rights.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

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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