Khattar v Khattar; Fayad v Khattar [2023] NSWCA 133

Khattar v Khattar; Fayad v Khattar [2023] NSWCA 133

The executors' obligation under the deed of agreement was not merely to use reasonable endeavours but to ensure the transfer of unencumbered units to the trust controlled by respondents. The measure of damages is the value of the unencumbered units as at the date of breach, unaffected by subsequent encumbrances or the respondents' later use of the units. Appeals dismissed; original damages awarded were correct.

Parties
Appellant: Joseph Khattar; Appellant: Maria Fayad; First Respondent: Carol Lourdes Khattar; Second Respondent: Georgia Khattar; Third Respondent: Alana Khattar
Jurisdiction
Australia
Judgment Date
14 June 2023
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeals dismissed with costs
Legal Topics
Contract Interpretation, Remedies for Breach, Damages Assessment, Obligation to Facilitate, Loss of Bargain, Construction of Deed
Contract Law Contract Interpretation Remedies for Breach Damages Assessment Obligation to Facilitate Loss of Bargain Construction of Deed

Case Brief

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Parties

Joseph Khattar

Appellant

Maria Fayad

Appellant

Carol Lourdes Khattar

First Respondent

Georgia Khattar

Second Respondent

Alana Khattar

Third Respondent

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Construction of 'facilitate' in deed of agreement
  2. 2 Obligation of executors regarding transfer of unencumbered units
  3. 3 Assessment of damages and loss of bargain

Ratio Decidendi

The executors' obligation under the deed of agreement was not merely to use reasonable endeavours but to ensure the transfer of unencumbered units to the trust controlled by respondents. The measure of damages is the value of the unencumbered units as at the date of breach, unaffected by subsequent encumbrances or the respondents' later use of the units. Appeals dismissed; original damages awarded were correct.

Court Disposition

Appeals dismissed with costs

Orders

  • Appeals dismissed with costs to respondents.