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Taouk v Assure (NSW) Pty Ltd

Taouk v Assure (NSW) Pty Ltd

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Supreme Court

New South Wales

Medium Neutral Citation: Joseph Taouk v Assure (NSW) Pty Ltd [2017] NSWSC 534
Hearing dates: 6, 7, 8, 9 February 2017, oral closing submissions 16 February 2017, Defendant’s closing cross-claim submissions 20 February 2017, Plaintiff’s closing submissions and closing submissions on the Defendant’s cross-claim 21 February 2017, Defendant’s closing submissions 27 February 2017, Plaintiff’s responses to particular claims regarding Mr Taouk’s asserted payments 2 March 2017, Defendant’s reply to Plaintiff’s Document 9 March 2017.
Decision date: 04 May 2017
Before: Sackar J
Decision:
See para [381]

Catchwords: Construction of contracts – construction of contracts to vary – oral agreements – promissory estoppel – estoppel by convention – unjust enrichment – credit of witnesses.
Legislation Cited: Corporations Act 2001 (Cth)
Evidence Act 1995 (NSW)
Cases Cited: Ashton v Pratt [2015] NSWCA 12
ASIC v Hellicar (2012) 247 CLR 345
Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560
B&B Constructions (Aust) Pty Ltd v Brian A Cheeseman & Associates Pty Ltd (1994) 35 NSWLR 227
Beale v Government Insurance Office of NSW [1997] 48 NSWLR 430
Blatch v Archer (1774) 1 Cowp 63
Caringbah Investments Pty Ltd v Caringbah Business and Sports Club Ltd (in liq) [2016] NSWCA 165
Christmas v Nicol Bros. Pty Ltd and Anor (1941) 41 NSWSR 317
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Commissioners for Her Majesty’s Revenue and Customs v The Investment Trust Companies (In Liquidation) [2017] UKSC 29
Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Limited (1986) 160 CLR 226
Cubillo v Commonwealth (No 2) (2000) 103 FCR 1
Dabbs v Seaman (1925) 36 CLR 538
Dare v Pulham (1982) 148 CLR 658
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640
Fox v Percy (2003) 214 CLR 118
Gould v Mount Oxide Mines Ltd (In liq) (1916) 22 CLR 490
Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641
Ho v Powell (2001) 51 NSWLR 572
International Air Transport Association v Ansett Australia Holdings Ltd (2008) 82 ALJR 419
John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451
Jones v Dunkel (1959) 101 CLR 298
Jones v Sutherland Shire Council [1979] 2 NSWLR 206
Legione v Hateley (1983) 152 CLR 406
Lowick Rose LLP (in liquidation) v Swynson Ltd and anor [2017] UKSC 32
Moratic Pty Ltd v Gordon [2007] NSWSC 5
Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited (S99/2015; S102/2015) (2015) 256 CLR 104
Murtagh v Murtagh [2013] NSWSC 926
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451
Pavlovic v Universal Music Australia Pty Limited (2015) 90 NSWLR 605
Pennimpede v Pennimpede [2009] NSWSC 85
Portsmouth City Football Club Ltd v Seller Properties (Portsmouth) Ltd [2004] EWCA…

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] NSWSC 534
Decision Date: 04 May 2017

CaseChat Overview and Summary

Taouk v Assure (NSW) Pty Ltd involved a dispute between the plaintiff, Taouk, and the defendant, Assure (NSW) Pty Ltd, concerning the variation of a written contract. The case was heard in the Supreme Court of New South Wales. The plaintiff sought to enforce an oral agreement to vary the terms of their written contract, which the defendant contested. The central legal issues before the court were whether an oral agreement could validly alter the terms of a written contract and whether the doctrine of promissory estoppel applied to prevent the defendant from enforcing the original written contract terms.

The court examined whether the oral agreement was sufficiently clear and certain to constitute a binding variation of the written contract. It also considered whether promissory estoppel could be invoked to prevent the defendant from relying on the original contract terms, given the plaintiff's reliance on the oral agreement. The court assessed the credibility and reliability of the witnesses and the circumstances under which the oral agreement was made. The court found that the oral agreement was clear and enforceable, and that promissory estoppel applied to prevent the defendant from enforcing the original written contract terms. The court concluded that the plaintiff was entitled to enforce the terms of the oral agreement.

The court ordered that the defendant was bound by the terms of the oral agreement and could not rely on the original written contract terms. The defendant was required to compensate the plaintiff for any losses incurred as a result of enforcing the original contract terms. The court also noted the importance of the credibility of the witnesses in reaching its decision. This case highlights the potential for oral agreements to vary written contracts and the importance of clear communication and documentation in avoiding disputes.

Orders