Saleh v Romanous [2010] NSWCA 274

Saleh v Romanous [2010] NSWCA 274

The trial judge's finding that Michael Saleh made the pre-contractual promise was supported by the evidence and was not glaringly improbable. Promissory estoppel is an equitable doctrine capable of arising from pre-contractual conduct and is not excluded by the parol evidence rule or the entire agreement clause. The promise restrained the vendors from enforcing the contract of sale, although promissory estoppel did not itself give positive rights to rescind. Because the estoppel would prevent enforcement of the contract and made it just to deprive the vendors of the deposit, the order for repayment could be supported under s 55(2A) of the Conveyancing Act. The appeal was therefore dismissed.

Jurisdiction
Australia
Judgment Date
28 October 2010
Procedural Posture
Appeal / Appeal From the Judgment of Forster J in the Supreme Court Equity Division
Outcome
Appeal dismissed with costs.
Legal Topics
['collateral Contract' 'pre Contractual Promissory Estoppel' 'parol Evidence Rule' 'entire Agreement Clause' 'return of Deposit' 'contract for Sale of Land']
['contract' 'equity' 'evidence'] ['collateral Contract' 'pre Contractual Promissory Estoppel' 'parol Evidence Rule' 'entire Agreement Clause' 'return of Deposit' 'contract for Sale of Land']

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Procedural Posture

Appeal / Appeal From the Judgment of Forster J in the Supreme Court Equity Division

Legal Issues

  1. 1 ["Whether the trial judge's factual finding that Michael Saleh made a pre-contractual promise to Harris Romanous should be disturbed on appeal." 'Whether the parol evidence rule and the entire agreement clause excluded evidence of a pre-contractual promissory estoppel.' 'Whether a pre-contractual promise inconsistent with an unconditional contract for sale could found a promissory estoppel restraining enforcement of the contract.' 'Whether the purchasers were entitled to rescind the contract and recover their deposit.']

Ratio Decidendi

The trial judge's finding that Michael Saleh made the pre-contractual promise was supported by the evidence and was not glaringly improbable. Promissory estoppel is an equitable doctrine capable of arising from pre-contractual conduct and is not excluded by the parol evidence rule or the entire agreement clause. The promise restrained the vendors from enforcing the contract of sale, although promissory estoppel did not itself give positive rights to rescind. Because the estoppel would prevent enforcement of the contract and made it just to deprive the vendors of the deposit, the order for repayment could be supported under s 55(2A) of the Conveyancing Act. The appeal was therefore dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']