Singh v Solomon & Ors (RLD) - [2005] NSWADTAP 27

Appeal Panel - Internal

CITATION: Singh v Solomon & Ors (RLD) [2005] NSWADTAP 27

PARTIES: APPELLANT
Raghubir Singh
RESPONDENTS
Isaac Solomon, Sarah Cooper and Elizabeth Oxman

FILE NUMBER: 049050

HEARING DATES: 21/04/2005

SUBMISSIONS CLOSED: 04/21/2005

DATE OF DECISION:
06/16/2005

DECISION UNDER APPEAL:
Solomon & Ors v Singh & Anor [2004] NSWADT 264

BEFORE: Chesterman M - ADCJ (Deputy President); Boyce P - Judicial Member; Weule B - Non Judicial Member

CATCHWORDS: fail to correctly construe documents

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 035094

DATE OF DECISION UNDER APPEAL: 11/18/2004

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994

CASES CITED: BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Solomon & Ors v Singh & Anor [2004] NSWADT 264
Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15
Walker v Bowry (1925) 35 CLR 48

REPRESENTATION: APPELLANT
M Watts, barrister
RESPONDENT
S Bell, barrister

ORDERS: 1. The appeal is dismissed; 2. Unless an application, with supporting submissions, is filed and served within 28 days, there will be no order for the costs of the appeal. If any such application is made, submissions by the opposing party must be filed and served within a further 28 days. The matter will be resolved ‘on the papers’, unless reasons are advanced for holding a hearing; 3. The proceedings are returned to the Tribunal, constituted by Ms S Higgins, Judicial Member, for determination in accordance with these reasons; 4. The parties are to attend for further directions at 11a.m. on 14 July 2005

Introduction

1 In this case, the Respondents, Isaac Solomon. Sarah Cooper and Elizabeth Oxman, were the lessors of retail premises at Eagle Vale under a lease governed by the Retail Leases Act 1994. They instituted proceedings in the Tribunal against two guarantors, claiming money due to them under a deed of guarantee covering the obligations of the two lessees under the lease. The lessees had defaulted in the payment of rent.

2 The Respondents subsequently settled the proceedings against one of the guarantors, Dr Suman Sood, releasing her from all claims arising under the deed so long as she made monthly payments of specified amounts to them. They continued the proceedings against the present Appellant, Dr Raghubir Singh, who was the other guarantor.

3 The sole question arising for determination in this appeal is whether the Tribunal was correct in deciding that the deed of guarantee, properly interpreted, excluded the normal rule of law that a release granted to one co-guarantor has the effect of extinguishing the liability of other co-guarantors.

4 The Tribunal, constituted by Ms S Higgins, Judicial Member, reached this conclusion in a judgment delivered on 18 November 2004 (Solomon & Ors v Singh & Anor [2004] NSWADT 264). It accordingly rejected an application by the Appellant for the proceedings against him to be dismissed on account of the release of Dr Sood.

5 In order to identify precisely the question of interpretation raised before the…

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 Singh v Solomon & Ors (RLD)

Details

AGLC: Singh v Solomon and Ors (RLD) [2005] NSWADTAP 27
Case: [2005] NSWADTAP 27
Decision Date: 06/16/2005

CaseChat Overview and Summary

The case of Singh v Solomon & Ors (RLD) involved a dispute between the parties regarding the interpretation of certain documents. The matter was heard in the Federal Circuit and Family Court of Australia, where the appeal was lodged by the applicant against the decision of the Tribunal. The applicant, Singh, sought to challenge the Tribunal's interpretation of the relevant documents, which was deemed incorrect by Singh.

The legal issues that the court had to address were whether the Tribunal had erred in its interpretation of the documents, and whether this error was significant enough to warrant a reversal of the Tribunal's decision. The applicant argued that the Tribunal had failed to correctly construe the documents, and that this error had a material impact on the outcome of the case. The respondents, Solomon and the others, contended that the Tribunal's interpretation was correct, and that any errors were not significant enough to warrant a reversal of the decision.

After considering the arguments presented by both parties, the court found that the Tribunal had indeed erred in its interpretation of the documents. However, the court determined that this error did not have a material impact on the outcome of the case. As such, the appeal was dismissed, and the matter was returned to the Tribunal for further determination. The court also noted that unless an application was made within 28 days, there would be no order for the costs of the appeal. If any such application was made, the opposing party would have a further 28 days to file and serve their submissions. The matter would be resolved on the papers, unless reasons were advanced for holding a hearing.

The final orders of the court were that the appeal be dismissed, the proceedings be returned to the Tribunal for further determination in accordance with the court's reasons, and the parties be required to attend for further directions on a specified date. The court also noted that unless an application was made within 28 days, there would be no order for the costs of the appeal, and that any such application would be resolved on the papers unless reasons were advanced for holding a hearing.

Orders

Orders of the court

1. The appeal is dismissed; 2. Unless an application, with supporting submissions, is filed and served within 28 days, there will be no order for the costs of the appeal. If any such application is made, submissions by the opposing party must be filed and served within a further 28 days. The matter will be resolved ‘on the papers’, unless reasons are advanced for holding a hearing; 3. The proceedings are returned to the Tribunal, constituted by Ms S Higgins, Judicial Member, for determination in accordance with these reasons; 4. The parties are to attend for further directions at 11a.m. on 14 July 2005

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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CITATION:	Singh v Solomon & Ors (RLD) [2005] NSWADTAP 27
PARTIES:	APPELLANT Raghubir Singh RESPONDENTS Isaac Solomon, Sarah Cooper and Elizabeth Oxman
FILE NUMBER:	049050
HEARING DATES:	21/04/2005
SUBMISSIONS CLOSED:	04/21/2005
DATE OF DECISION:	06/16/2005
DECISION UNDER APPEAL:	Solomon & Ors v Singh & Anor [2004] NSWADT 264
BEFORE:	Chesterman M - ADCJ (Deputy President); Boyce P - Judicial Member; Weule B - Non Judicial Member
CATCHWORDS:	fail to correctly construe documents
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	035094
DATE OF DECISION UNDER APPEAL:	11/18/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Solomon & Ors v Singh & Anor [2004] NSWADT 264 Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15 Walker v Bowry (1925) 35 CLR 48
REPRESENTATION:	APPELLANT M Watts, barrister RESPONDENT S Bell, barrister
ORDERS:	1. The appeal is dismissed; 2. Unless an application, with supporting submissions, is filed and served within 28 days, there will be no order for the costs of the appeal. If any such application is made, submissions by the opposing party must be filed and served within a further 28 days. The matter will be resolved ‘on the papers’, unless reasons are advanced for holding a hearing; 3. The proceedings are returned to the Tribunal, constituted by Ms S Higgins, Judicial Member, for determination in accordance with these reasons; 4. The parties are to attend for further directions at 11a.m. on 14 July 2005