Basten JA at [1] Macfarlan JA at [12] Meagher JA at [66]
Decision:
Orders in the Joint Venture Proceedings No 2011/226988:
(1) Grant Dr Schwartz leave to appeal.
(2) Direct that the Notice of Appeal filed by him on 28 November 2011 stand as his Notice of Appeal.
(3) Appeal allowed.
(4) Set aside the judgment entered in favour of Mr Hadid at first instance and the order made at the same time that Dr Schwartz pay Mr Hadid's costs of the proceedings to date.
(5) Judgment for Dr Schwartz in the proceedings.
(6) Order Mr Hadid to pay Dr Schwartz's costs of the proceedings at first instance and on appeal.
(7) Grant Mr Hadid a certificate under the Suitors' Fund Act 1951, if he is qualified.
Orders in the Loan Proceedings No 2010/99772:
Mr Hadid's cross-appeal is dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
CONTRACTS - construction and interpretation of contracts - use of extrinsic evidence - Deed of Agreement contained clause that appellant had 'agreed at his discretion to buy one or more properties' - whether recourse to a prior proposal and oral negotiations permitted in construction of the Deed of Agreement - whether language of deed ambiguous - whether proposal and conversations were mutually known surrounding circumstances - whether contract was partly in writing and partly oral - whether recital in Deed of Agreement incorporated any prior agreement
CONTRACTS - consideration - alleged variation of a loan agreement - whether variation agreement supported by consideration - whether there was a practical benefit that sufficed as consideration
[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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AGLC
Schwartz v Hadid [2013] NSWCA 89
Case
[2013] NSWCA 89
Decision Date
CaseChat Overview and Summary
In the Joint Venture Proceedings, Dr. Schwartz appealed a judgment entered in favour of Mr. Hadid. The dispute concerned the construction and interpretation of a Deed of Agreement, specifically a clause stating the appellant had "agreed at his discretion to buy one or more properties." The central question was whether extrinsic evidence, in the form of a prior proposal and oral negotiations, could be admitted to construe the Deed, and whether the Deed was ambiguous or partly in writing and partly oral. In the Loan Proceedings, Mr. Hadid cross-appealed regarding an alleged variation of a loan agreement, focusing on whether this variation was supported by consideration, specifically a practical benefit.
The Court of Appeal was required to determine whether the language of the Deed of Agreement was ambiguous, thereby permitting recourse to extrinsic evidence of prior negotiations and a proposal. It also needed to consider whether the Deed was a composite agreement, partly in writing and partly oral, and if a recital within the Deed incorporated any prior agreement. Furthermore, the court had to assess whether a practical benefit constituted sufficient consideration for the alleged variation of the loan agreement.
The Court allowed Dr. Schwartz's appeal, finding that the language of the Deed was not ambiguous and that the prior proposal and oral negotiations were not admissible to construe the Deed. The court held that the Deed was a complete and unambiguous written agreement. Consequently, the judgment in favour of Mr. Hadid was set aside, and judgment was entered for Dr. Schwartz. Mr. Hadid's cross-appeal in the Loan Proceedings was dismissed.
Orders
Orders of the court
Orders in the Joint Venture Proceedings No 2011/226988:
(1) Grant Dr Schwartz leave to appeal.
(2) Direct that the Notice of Appeal filed by him on 28 November 2011 stand as his Notice of Appeal.
(3) Appeal allowed.
(4) Set aside the judgment entered in favour of Mr Hadid at first instance and the order made at the same time that Dr Schwartz pay Mr Hadid's costs of the proceedings to date.
(5) Judgment for Dr Schwartz in the proceedings.
(6) Order Mr Hadid to pay Dr Schwartz's costs of the proceedings at first instance and on appeal.
(7) Grant Mr Hadid a certificate under the Suitors' Fund Act 1951, if he is qualified.
Orders in the Loan Proceedings No 2010/99772:
Mr Hadid's cross-appeal is dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]