Taouk v Assure (NSW) Pty Ltd

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.