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Saleh v Romanous

Saleh v Romanous

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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…

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.

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Details

Case: [2010] NSWCA 274
Decision Date: 28 October 2010

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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