Shehata v Hussein - [2004] NSWSC 617

CITATION: Shehata v Hussein [2004] NSWSC 617

HEARING DATE(S): 08/07/04

JUDGMENT DATE:
8 July 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Barrett J

DECISION: Specific performance ordered

CATCHWORDS: EQUITY - specific performance - agreement to compromise litigation - one party refuses to perform - allegation that solicitor exercised duress in causing client to agree to compromise

LEGISLATION CITED: Supreme Court Act 1970, s.100

CASES CITED: Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Daniels v Pynbland Pty Ltd (No 2) (1985) 4 BPR 9726
Harvey v Phillips (1956) 95 CLR 235
Holt v Jesse (1876) 3 ChD 177
Savage v Norton [1908] 1 Ch 290
Singh v Secretary of the Department of Family and Community Services [2001] FCA 1281

PARTIES :
Nabil Shehata - Plaintiff
Faizal Hussein - Defendant

FILE NUMBER(S): SC 6203/03

COUNSEL: Mr S D Kalfas - Plaintiff
Defendant in Person

SOLICITORS: David Ian Brown - Plaintiff
Defendant in Person

IN THE SUPREME COURT REVISED
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

THURSDAY 8 JULY 2004

6203/03 - NABIL SHEHATA v FAIZAL HUSSEIN

JUDGMENT

1 The plaintiff is a medical practitioner. He practices as a surgeon. On an occasion in November 1999, the plaintiff was consulted by the defendant and performed upon the defendant at a medical centre in Auburn a procedure involving draining and treatment of an abscess in the rectal area of the defendant's body. As I shall mention later, the defendant returned to the surgery on the same day and received further treatment from the plaintiff.

2 The defendant, as plaintiff, afterward sued the plaintiff, as defendant, in the District Court alleging negligence in respect of the treatment rendered by the plaintiff. Various offers of compromise were made as the District Court case approached trial. On 7 November 2003, the present defendant's then solicitors, Keddies, faxed to the present plaintiff's solicitor a letter conveying acceptance of an offer of compromise which had emanated from the present plaintiff and entailed a verdict for the present plaintiff with each party paying his own costs.

3 In the proceedings in this court which I have heard today, the plaintiff seeks relief by way of declaration and order for specific performance in respect of the agreement said to have arisen from the defendant’s acceptance of that offer of compromise.

4 7th November 2003 was a Friday. The next day, Saturday 8 November 2003, the defendant faxed to Keddies (with a copy also to the plaintiff's solicitor) a document signed by him stating that his solicitors were instructed to send a letter to the plaintiff indicating withdrawal of the acceptance of the offer of compromise and also stating that Keddies no longer acted for him. There was an accompanying covering letter with the copy of this document faxed to the plaintiff's solicitor.

5 On 11 November 2003, the following Tuesday, Mr Tsaousidis, an employed solicitor of the plaintiff's solicitor, telephoned Mr Thornton, the solicitor with Keddies who had had carriage of the matter for the defendant,…

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 Shehata v Hussein

Details

AGLC: Shehata v Hussein [2004] NSWSC 617
Case: [2004] NSWSC 617
Decision Date: 8 July 2004

CaseChat Overview and Summary

In the case of Shehata v Hussein, the dispute arose between the parties concerning an agreement to compromise litigation. The matter was heard in the Supreme Court of Queensland. The plaintiff, Shehata, sought specific performance of an agreement to compromise the litigation, which the defendant, Hussein, had allegedly agreed to under duress exercised by his solicitor. Hussein denied the allegations of duress and refused to perform the agreement, prompting the plaintiff to bring the action.

The primary legal issue before the court was whether the defendant was bound by the agreement to compromise, given the plaintiff's claim that the agreement was made under duress. The court had to determine whether the evidence supported the plaintiff's assertion that the defendant's solicitor exercised undue influence, thereby vitiating the agreement. The court also considered the principles of equity, specifically whether the doctrine of specific performance was applicable in the circumstances.

The court found that there was insufficient evidence to establish that the defendant's solicitor exercised duress over the defendant in reaching the compromise agreement. The court noted that while the defendant may have been under pressure to settle the litigation, there was no evidence to show that the pressure amounted to duress. Consequently, the court held that the agreement to compromise was valid and enforceable. As a result, the plaintiff's claim for specific performance was dismissed. The court did not find it necessary to address the issue of whether specific performance was an appropriate remedy in the context of a compromise agreement.

Orders