Siev v. Magid [2004] NSWCA 135

Siev v. Magid [2004] NSWCA 135

The reference to 'the trustee' in the contract was ambiguous and, on extrinsic evidence, referred to the Cyprus trustee (Totalserve). Mr. Siev failed to ensure effective transfer of his shareholdings and rights as required, constituting a fundamental breach justifying Mr. Magid's termination of the contract. There was a total failure of consideration for the payment made, entitling Mr. Magid to recover the US$750,000 paid.

Jurisdiction
Australia
Judgment Date
05 May 2004
Procedural Posture
Appeal / Final Judgment
Outcome
appeal dismissed with costs
Legal Topics
['contract Interpretation' 'extrinsic Evidence' 'breach of Contract' 'termination' 'recovery of Money Paid' 'conditional Payment' 'failure of Consideration']
['contracts'] ['contract Interpretation' 'extrinsic Evidence' 'breach of Contract' 'termination' 'recovery of Money Paid' 'conditional Payment' 'failure of Consideration']

Case Brief

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Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 ["Identity of 'the trustee' referred to in the agreement" 'Whether breach of contract justifying termination occurred' 'Whether there was a total failure of consideration warranting recovery of money paid']

Ratio Decidendi

The reference to 'the trustee' in the contract was ambiguous and, on extrinsic evidence, referred to the Cyprus trustee (Totalserve). Mr. Siev failed to ensure effective transfer of his shareholdings and rights as required, constituting a fundamental breach justifying Mr. Magid's termination of the contract. There was a total failure of consideration for the payment made, entitling Mr. Magid to recover the US$750,000 paid.

Court Disposition

appeal dismissed with costs

Orders

  • ['Appeal dismissed with costs' 'The orders made below, including return of US$750,000 plus interest to Mr. Magid, were affirmed']