Toufic Laba Sarkis v Mahmoud Moussa - [2011] NSWSC 1172

Supreme Court

New South Wales

Medium Neutral Citation: Toufic Laba Sarkis v Mahmoud Moussa [2011] NSWSC 1172
Hearing dates: 08/07/2011
Decision date: 30 September 2011
Jurisdiction: Common Law
Before: Latham J
Decision:
Amended Summons dismissed with costs

Catchwords: APPEAL - general principles - no appeal on question of fact - trial judge found that there was an oral contract on the balance of probabilities - sufficient evidence to support finding that there was an intention to create legal relations - sufficient evidence to justify award of damages
Legislation Cited: Local Court Act 2007
Cases Cited: Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126
Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Mahoney v Industrial Registrar of NSW (1986) 8 NSWLR 1
Haines v Leves (1987) 8 NSWLR 442
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Gangemi Holdings Pty Ltd v Salter [1999] NSWSC 1004
Carr v Neill [1999] NSWSC 1263
State Rail Authority v Smith [2000] NSWSC 334
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Ermogenous v Greek Orthodox Community of SA Inc (2001) 209 CLR 95
Australian Broadcasting Corporation v XIV Commonwealth Games Ltd (1988) 18 NSWLR 540
Balfour v Balfour [1919] 2 KB 571
Coward v Motor Insurers Bureau [1963] 1 QB 259
Buckpitt v Oates [1968] 1 All ER 1145
Jones v Padavatton [1968] EWCA Civ 4 [1969] 2 All ER 616
Tadrous v Tadrous [2010] NSW SC 1388; Teen Ranch Pty Ltd v Brown (1995) 87 IR 308
Wakeling v Ripley (1951) 51 SR (NSW) 183
Southlink Holdings Pty Ltd v Morerand Pty Ltd [2010] VSC 214
Category: Principal judgment
Parties: Toufic Laba Sarkis - Plaintiff
Mahmoud Moussa - Defendant
Representation: Counsel:
Peter E King - Plaintiff
M Rollinson - Defendant
Solicitors:
George Khoury & Co - Plaintiff
Benjamin & Khoury - Defendant

File Number(s): 2010/00292546

Judgment

By an Amended Summons filed on 21 April 2011, the plaintiff, Mr Sarkis, seeks leave to appeal against the judgment and orders of 9 August 2010 in the Local Court pursuant to s 40(1) of the Local Court Act 2007 (the Act).

The claim by the defendant, Mr Moussa, in the Local Court was brought against the plaintiff in December 2008. It alleged the existence of an oral agreement between them, made in January 2004, to import furniture from Lebanon, which was to be sourced by the defendant and sold through the plaintiff's showrooms. A third man, Mr Staytie, was said to be a part of this arrangement, in so far as he was to meet with and assist the defendant with the enterprise in Lebanon.

The plaintiff disputed that there was any contract in existence and that the full extent of any agreement between the parties consisted of an offer by the plaintiff to the defendant to display the furniture purchased by the defendant in Lebanon in the plaintiff's show room. The plaintiff acknowledged that some furniture was displayed…

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: [2011] NSWSC 1172
Decision Date: 30 September 2011

CaseChat Overview and Summary

In the case of Toufic Laba Sarkis v Mahmoud Moussa, the appellant, Toufic Sarkis, sought to appeal against a decision of the Supreme Court of Victoria. The dispute involved an allegation of breach of an oral contract, with Sarkis claiming that Moussa had failed to transfer property as promised. The appeal was heard by the Court of Appeal, which reviewed the lower court's findings of fact and the resultant damages awarded. The primary focus of the appeal was the validity of the oral contract, the intention to create legal relations, and the sufficiency of evidence to support the lower court's decision.

The court was tasked with determining whether the trial judge had correctly identified the existence of an oral contract and the intention to create legal relations. It was also required to assess the sufficiency of the evidence presented to support the lower court's findings. The central legal issues revolved around the principles governing appeals in cases where findings of fact are at stake, the burden of proof in relation to the existence of an oral contract, and the quantum of damages awarded. The court needed to consider whether the trial judge had erred in accepting the evidence of Sarkis and whether the award of damages was justified.

The Court of Appeal held that there was no basis for an appeal on questions of fact, as the trial judge's findings were supported by sufficient evidence. The court found that the trial judge had correctly assessed the evidence and determined that an oral contract existed on the balance of probabilities. It was established that there was an intention to create legal relations between the parties, and the evidence was sufficient to support this finding. The court further held that the damages awarded were appropriate, considering the breach of the oral contract. Consequently, the appeal was dismissed, and the original decision of the Supreme Court of Victoria was upheld.

The Court of Appeal's final orders confirmed that the appeal was dismissed, and no further appeal would be entertained. The trial judge's findings regarding the existence of the oral contract, the intention to create legal relations, and the award of damages were affirmed. The decision underscored the importance of the trial judge's assessment of the evidence and the principles governing appeals in cases involving factual findings.

Orders