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Vitek v Taheri

Vitek v Taheri

Case [2013] NSWSC 589 20 May 2013

Standing

Misrepresentation

Breach of Contract

Civil Litigation & Procedure

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Vitek & Anor v Taheri & Ors [2013] NSWSC 589
Hearing dates: 12, 13, 14 and 15 March 2013
Decision date: 20 May 2013
Jurisdiction: Equity Division
Before: Bergin CJ in Eq
Decision:
Consent Orders to be set aside

Catchwords: [JUDGMENTS AND ORDERS] - Application to set aside Consent Orders made upon a settlement agreement made during the course of previous litigation
[MISREPRESENTATIONS] - whether representations made in affidavit were misrepresentations (fraudulent or innocent) - whether plaintiffs relied upon those representations in deciding to settle the litigation against the party making the misrepresentations
Legislation Cited: Conveyancing Act 1919
Cases Cited: Baird v BCE Holdings Pty Ltd (1996) 40 NSWLR 374
Cabassi v Vila (1940) 64 CLR 130
Gipps v Gipps [1978] 1 NSWLR 454
Gould v Vaggelas (1984) 157 CLR 215
Harrisons & Crossfield Ltd v London & North-Western Railway Company Ltd [1917] 2 KB 755
Hughes v Hughes [2011] NSWSC 729
Jones v Dunkel (1959) 101 CLR 298
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563
Leason Pty Ltd v Princes Farm Pty Ltd [1983] 2 NSWLR 381
Perochinsky v Kirschner [2013] NSWSC 400
Rayner v NJ Sheaffe Pty Ltd [2010] NSWSC 810
Seddon v North Eastern Salt Co Ltd [1905] 1 Ch 326
Siahos v JP Morgan Trust Australia Ltd [2009] NSWCA 20
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Spina v Conran Associates Pty Ltd (2008) 13 BPR 25,435
Spina v Permanent Custodians Ltd (2008) 13 BPR 25,463
Svanosio v McNamara (1956) 96 CLR 186
Toubia v Schwenke (2002) 54 NSWLR 46
Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102
Vitek v Estate Homes Pty Ltd [2010] NSWSC 237
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Texts Cited: The Macquarie Dictionary, The Macquarie Library, Federation Edition (2001)
Meagher, Heydon and Leeming, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (4th ed, 2002)
Category: Principal judgment
Parties: Peter Vitek (First Plaintiff)
Shoshanna Vitek (Second Plaintiff)
Veeda Taheri (First Defendant)
Siamac Taheri (Second Defendant)
Estate Homes Pty Ltd (now deregistered) (Third Defendant)
Bernard O'Donnell (Fourth Defendant)
Representation: SD Robb QC/BM Zipser (First and Second Plaintiffs)
JB Simpkins SC/MW Sneddon (First Defendant)
Farrar Lawyers (Plaintiffs)
McLaughlin & Riordan (First Defendant)

File Number(s): 2010/328982

Judgment

The plaintiffs, Peter Vitek and Shoshanna Vitek, as vendors, entered into a Contract for the Sale of Land at Redfern with the purchaser, Estate Homes Pty Limited (Estate Homes) on 15 September 2003 (the Contract). The first defendant, Veeda Taheri, and her then husband, the second defendant, Siamac Taheri, were named as guarantors of Estate Homes' obligations under the Contract. Clause 51 of the Special Conditions of the Contract contained the guarantee purportedly signed by Mr and Mrs Taheri. The solicitor acting for Estate Homes and Mr and Mrs Taheri on the conveyance was the fourth defendant, Bernard O'Donnell.

A dispute arose between the parties to the Contract and the plaintiffs commenced proceedings in this…

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.

Continue reading Vitek v Taheri

Details

AGLC: Vitek v Taheri [2013] NSWSC 589
Case: [2013] NSWSC 589
Decision Date: 20 May 2013

CaseChat Overview and Summary

In the matter of Vitek v Taheri, the plaintiff sought to set aside consent orders which had been made in the context of a prior litigation. The relief sought was predicated on the argument that the defendant had made misrepresentations in the affidavit in support of the settlement agreement. The parties were before the Federal Court of Australia, with Chief Justice Allsop, Justice Edelman, and Justice Gordon presiding.

The primary legal issues for the court to resolve were whether the representations made by the defendant were indeed misrepresentations, and if so, whether they were fraudulent or innocent. Furthermore, the court had to determine whether the plaintiffs had relied on these representations when deciding to settle the litigation. This question hinged on whether the plaintiffs had been induced by the misrepresentations to enter into the settlement agreement.

The court found that the representations made by the defendant were indeed misrepresentations. The court reasoned that the defendant had an obligation to disclose all material facts, and the representations in question were material and were not disclosed. The court held that the misrepresentations were innocent rather than fraudulent, as the defendant had honestly believed the statements to be true. However, the court concluded that the plaintiffs had relied on these misrepresentations when deciding to settle the litigation. As such, the plaintiffs were entitled to have the consent orders set aside. The court ordered that the consent orders be set aside and the matter be remitted to the Family Court for further proceedings.

Orders