Taouk v Assure (NSW) Pty Ltd - [2017] NSWCA 227

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Taouk v Assure (NSW) Pty Ltd [2017] NSWCA 227
Hearing dates: 20 July 2017
Decision date: 08 September 2017
Before: Beazley P at [1];
White JA at [2];
Sackville AJA at [9]
Decision:
1.   Grant leave to the extent necessary to enable the appellant (Mr Taouk) to appeal from the orders made by Sackar J on 23 May 2017.
2.   Note the appellant’s Amended Notice of Appeal dated 26 June 2017.
3.   Appeal allowed in part.
4.   Set aside order 2(c) made by Sackar J on 23 May 2017.
5.   Otherwise dismiss the appeal.
6.   Vary the costs order made by Sackar J on 16 June 2017 so that it reads as follows:
   The plaintiff to pay the defendant’s costs of the determination of the separate Questions on an indemnity basis.
7.   The appellant pay 75 per cent of the respondent’s (Assure’s) costs of the appeal (including the summons for leave to appeal).

Catchwords:
CONTRACT – construction of a deed varying an agreement for the development of a site – whether the variation deed intended to effect a fundamental change in the financial arrangements between the parties – necessity to construe the variation deed in context
PROCEDURAL FAIRNESS – whether the appellant denied procedural fairness by entry of judgment on the respondent’s cross-claim – whether determination of separate questions on liability left issues of quantum unresolved
Legislation Cited:
Real Property Act 1900 (NSW), s 74MA
Supreme Court Act 1970 (NSW), ss 101(1)(a), 103
Uniform Civil Procedure Rules 2005, r 28.2, r 51.33(3)
Cases Cited: Chief Commissioner of State Revenue v Smeaton Grange Holdings Pty Ltd [2017] NSWCA 184
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 343 ALR 58
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36
HIH Casualty & General Insurance Ltd v New Hampshire Insurance Co [2001] EWCA Civ 735
Lee v New South Wales Crime Commission [2012] NSWCA 262
Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
Royal Botanic Gardens v South Sydney City Council (2002) 240 CLR 45; [2002] HCA 5
Sanofi v Parke Davis Pty ltd (No 1) (1982) 149 CLR 147; [1982] HCA 9
Simic v New South Wales Land and Housing Corporation [2016] HCA 47; (2016) 339 ALR 200
South Sydney Council v Royal Botanic Gardens [1999] NSWCA 478; (1999) 10 BPR18,961
Taouk v Assure (NSW) Pty Ltd [2017] NSWSC 534
Taouk v Assure (NSW) Pty Ltd [2017] NSWSC 778
Western Export Services Inc v Jirch International Pty Ltd [2011] HCA 45; (2011) 86 ALJR 1
Texts Cited: JW Carter, The Construction of Commercial Contracts (Hart Publishing Ltd, 2013)
Category: Principal judgment

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: [2017] NSWCA 227
Decision Date: 08 September 2017

CaseChat Overview and Summary

The appeal concerned a dispute between Mr Taouk (appellant) and Assure (NSW) Pty Ltd (respondent) regarding the construction of a deed that varied an earlier development agreement. The primary issue was whether this variation deed fundamentally altered the financial arrangements between the parties. The appeal was heard in the Court of Appeal of New South Wales.

The court was required to determine whether the primary judge erred in construing the variation deed, specifically whether it effected a fundamental change to the financial arrangements. Additionally, the court considered whether Mr Taouk was denied procedural fairness by the entry of judgment on Assure's cross-claim, and whether the determination of separate questions on liability had left issues of quantum unresolved.

The Court of Appeal found that the primary judge's construction of the variation deed was correct, and that it did not effect a fundamental change in the financial arrangements. However, the court allowed the appeal in part, setting aside an order made by the primary judge concerning the determination of separate questions. The court reasoned that while the construction of the deed was sound, the procedural approach taken in relation to the separate questions had led to an unresolved issue of quantum, thus impacting procedural fairness. The court varied the costs order made at first instance to reflect the determination of the separate questions on an indemnity basis and ordered Mr Taouk to pay 75 per cent of Assure's costs of the appeal.

Orders

Orders of the court

1. Grant leave to the extent necessary to enable the appellant (Mr Taouk) to appeal from the orders made by Sackar J on 23 May 2017.

2. Note the appellant’s Amended Notice of Appeal dated 26 June 2017.

3. Appeal allowed in part.

4. Set aside order 2(c) made by Sackar J on 23 May 2017.

5. Otherwise dismiss the appeal.

6. Vary the costs order made by Sackar J on 16 June 2017 so that it reads as follows:

The plaintiff to pay the defendant’s costs of the determination of the separate Questions on an indemnity basis.

7. The appellant pay 75 per cent of the respondent’s (Assure’s) costs of the appeal (including the summons for leave to appeal).

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.

Medium Neutral Citation:	Taouk v Assure (NSW) Pty Ltd [2017] NSWCA 227
Hearing dates:	20 July 2017
Decision date:	08 September 2017
Before:	Beazley P at [1]; White JA at [2]; Sackville AJA at [9]
Decision:	1. Grant leave to the extent necessary to enable the appellant (Mr Taouk) to appeal from the orders made by Sackar J on 23 May 2017. 2. Note the appellant’s Amended Notice of Appeal dated 26 June 2017. 3. Appeal allowed in part. 4. Set aside order 2(c) made by Sackar J on 23 May 2017. 5. Otherwise dismiss the appeal. 6. Vary the costs order made by Sackar J on 16 June 2017 so that it reads as follows: The plaintiff to pay the defendant’s costs of the determination of the separate Questions on an indemnity basis. 7. The appellant pay 75 per cent of the respondent’s (Assure’s) costs of the appeal (including the summons for leave to appeal).
Catchwords:	CONTRACT – construction of a deed varying an agreement for the development of a site – whether the variation deed intended to effect a fundamental change in the financial arrangements between the parties – necessity to construe the variation deed in context PROCEDURAL FAIRNESS – whether the appellant denied procedural fairness by entry of judgment on the respondent’s cross-claim – whether determination of separate questions on liability left issues of quantum unresolved
Legislation Cited:	Real Property Act 1900 (NSW), s 74MA Supreme Court Act 1970 (NSW), ss 101(1)(a), 103 Uniform Civil Procedure Rules 2005, r 28.2, r 51.33(3)
Cases Cited:	Chief Commissioner of State Revenue v Smeaton Grange Holdings Pty Ltd [2017] NSWCA 184 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 343 ALR 58 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36 HIH Casualty & General Insurance Ltd v New Hampshire Insurance Co [2001] EWCA Civ 735 Lee v New South Wales Crime Commission [2012] NSWCA 262 Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Royal Botanic Gardens v South Sydney City Council (2002) 240 CLR 45; [2002] HCA 5 Sanofi v Parke Davis Pty ltd (No 1) (1982) 149 CLR 147; [1982] HCA 9 Simic v New South Wales Land and Housing Corporation [2016] HCA 47; (2016) 339 ALR 200 South Sydney Council v Royal Botanic Gardens [1999] NSWCA 478; (1999) 10 BPR18,961 Taouk v Assure (NSW) Pty Ltd [2017] NSWSC 534 Taouk v Assure (NSW) Pty Ltd [2017] NSWSC 778 Western Export Services Inc v Jirch International Pty Ltd [2011] HCA 45; (2011) 86 ALJR 1
Texts Cited:	JW Carter, The Construction of Commercial Contracts (Hart Publishing Ltd, 2013)
Category:	Principal judgment