Rashid Raashed v Mosharrof Hussein [2011] NSWSC 1342

Rashid Raashed v Mosharrof Hussein [2011] NSWSC 1342

The appeal failed because the Magistrate applied the correct Contracts Review Act principles, made findings of fact open on the evidence, and exercised the statutory discretion to refuse enforcement of the $50,063 balance for the purpose of avoiding the unjust consequence of an unjust contract. The absence of valuation evidence did not require refusal of relief and the Husseins were not obliged to prove valuation facts distinct from those supporting the finding that the contract was unjust. Section 9(5) was permissive, and no failure to consider a required matter or other error of law was established.

Jurisdiction
Australia
Judgment Date
13 November 2011
Procedural Posture
Appeal From Local Court / Supreme Court Appeal From the Decision of Magistrate V M Swain Dated 29 October 2010
Outcome
Appeal dismissed; Local Court decision affirmed; summons dismissed; plaintiff ordered to pay defendants' costs as agreed or assessed.
Legal Topics
['contracts Review Act 1980' 'unjust Contract' 'discretionary Relief' 'appeal on Question of Law' 'evidentiary Burden' 'contract for Sale of Business']
['contract Law' 'civil Procedure'] ['contracts Review Act 1980' 'unjust Contract' 'discretionary Relief' 'appeal on Question of Law' 'evidentiary Burden' 'contract for Sale of Business']

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Procedural Posture

Appeal From Local Court / Supreme Court Appeal From the Decision of Magistrate V M Swain Dated 29 October 2010

Legal Issues

  1. 1 ['Whether the Magistrate erred in granting relief under s 7(1)(a) of the Contracts Review Act 1980 by refusing to enforce payment of the contract balance of $50,063.' 'Whether the defendants seeking relief under the Contracts Review Act 1980 bore an evidentiary burden to adduce valuation evidence about the property received under the contract.' "Whether the Magistrate failed to consider the defendants' conduct after the contract under s 9(5) of the Contracts Review Act 1980, including alleged inability to give restitution in integrum." 'Whether any error of law was shown on the appeal from the Local Court.']

Ratio Decidendi

The appeal failed because the Magistrate applied the correct Contracts Review Act principles, made findings of fact open on the evidence, and exercised the statutory discretion to refuse enforcement of the $50,063 balance for the purpose of avoiding the unjust consequence of an unjust contract. The absence of valuation evidence did not require refusal of relief and the Husseins were not obliged to prove valuation facts distinct from those supporting the finding that the contract was unjust. Section 9(5) was permissive, and no failure to consider a required matter or other error of law was established.

Court Disposition

Appeal dismissed; Local Court decision affirmed; summons dismissed; plaintiff ordered to pay defendants' costs as agreed or assessed.

Orders

  • ['The appeal is dismissed.' 'The decision of her Honour Magistrate Swain dated 29 October 2010 is affirmed.' 'The summons filed 7 December 2010 is dismissed.' "The plaintiff is to pay the defendants' costs as agreed or assessed."]