Touma v Highfields Australia Pty Ltd

[2024] NSWCA 160

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Touma v Highfields Australia Pty Ltd [2024] NSWCA 160

Hearing dates:

31 May 2024

Date of orders:

4 July 2024

Decision date:

04 July 2024

Before:

White JA at [1];
Adamson JA at [2];
Basten AJA at [3]

Decision:

(1)   Dismiss the appeal from the judgment given in the Equity Division on 28 November 2023 and the orders made on 5 December 2023 and 1 February 2024.

(2)   Order that the appellant (Joseph Anthony Touma) pay the costs of the first respondent (Highfields Australia Pty Ltd) in this Court.

Catchwords:

CONTRACTS – Construction – Context – where the parties entered into four separate oral contracts – whether the contracts provided for the transfer of ownership of four cars – where transaction documents indicated that a security interest in the vehicles was required – whether trial judge’s construction of contract was uncommercial

CORPORATIONS – Contracts – financial statements – s 1305(1) Corporations Act 2001 (Cth) – whether information within financial statements held significant probative value in determining the terms of a contract – where signatory to financial statements not a party to proceedings

Legislation Cited:

Corporations Act 2001 (Cth), s 1305

Cases Cited:

Australian Securities and Investment Commission v Rich (2009) 236 FLR 1; [2009] NSWSC 1229

Category:

Principal judgment

Parties:

Joseph Anthony Touma (Appellant)
Highfields Australia Pty Ltd (First Respondent)
Advanced Motor Dealers Group Pty Ltd (receiver and manager appointed) (Second Respondent)
Shumit Banerjee (Third Respondent)

Representation:

Counsel:
H Somerville / M McGirr (Appellant)
P Afshar / J Pokoney (First Respondent)

Solicitors:
Emerson Lewis Lawyers (Appellant)
MistryFallahi Lawyers and Business Advisors (First Respondent)
HWL Ebsworth Lawyers (Second and Third Respondents)

File Number(s):

2023/465829

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2023] NSWSC 1458; [2024] NSWSC 35

Date of Decision:

28 November 2023; 1 February 2024

Before:

Richmond J

File Number(s):

2020/344338

HEADNOTE

[This headnote is not to be read as part of the judgment]

In 2016, Advanced Motor Dealers Group Pty Ltd (AMDG), through its general manager, Joseph Touma, arranged for the respondent, Highfields Australia Pty Ltd (Highfields), to arrange refinancing for four luxury cars owned by AMDG. Refinancing was obtained from financiers, including BMW Australia Finance Ltd, which required Highfields to provide security over the vehicles, and personal guarantees from its directors, one of whom was Alan Balout. Mr Balout was known to Mr Touma and was jointly involved in aspects of the same business, which involved hiring luxury vehicles to customers, often for short terms.

After the refinancing was secured, the vehicles remained in the control of AMDG, which then licensed them to a related entity, Ultimate Drive Days Pty Ltd (UDD). UDD’s business was renting luxury cars to customers for purposes such as weddings, track days or day trips. UDD would pay AMDG rental, and AMDG was responsible for paying any fees or costs associated with the vehicles, including loan repayments.

In 2020, AMDG was…