Joseph Taouk v Assure (NSW) Pty Ltd [2017] NSWSC 534

Joseph Taouk v Assure (NSW) Pty Ltd [2017] NSWSC 534

The Development Agreement (and its Variation) did not obligate the defendant (Assure) to reimburse the plaintiff (Taouk) for any contributions made to the Berowra Development. The only obligation imposed by the contracts was the payment of a Consideration Amount by the defendant to the Developer upon project completion, with the Developer (and by guarantee, the plaintiff) responsible for all development costs and any shortfall. There was no credible evidence of binding oral agreements varying this structure, nor of estoppels, unconscionable conduct, or unjust enrichment. Conversely, the plaintiff was liable under the guarantee and indemnity for the Developer’s defaults.

Parties
Plaintiff: Joseph Taouk; Defendant: Assure (NSW) Pty Ltd
Jurisdiction
Australia
Judgment Date
04 May 2017
Procedural Posture
Civil / Final Judgment After Trial
Outcome
Plaintiff’s claim dismissed; cross-claim by defendant succeeds to liability with quantum to be determined.
Legal Topics
Construction of Contracts, Oral Agreements, Promissory Estoppel, Estoppel by Convention, Unjust Enrichment, Credit of Witnesses, Guarantee and Indemnity, Australian Consumer Law S 21, Breach of Contract
Contract Law Equity Construction of Contracts Oral Agreements Promissory Estoppel Estoppel by Convention Unjust Enrichment Credit of Witnesses +3 more

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Parties

Joseph Taouk

Plaintiff

Assure (NSW) Pty Ltd

Defendant

Procedural Posture

Civil / Final Judgment After Trial

Legal Issues

  1. 1 Whether the defendant is liable to the plaintiff for breaches of agreement (including alleged oral variations and implied terms)
  2. 2 Whether estoppel (promissory or by convention) precludes the defendant from denying plaintiff’s entitlement to payments
  3. 3 Whether the defendant engaged in unconscionable conduct under section 21 of the Australian Consumer Law

Ratio Decidendi

The Development Agreement (and its Variation) did not obligate the defendant (Assure) to reimburse the plaintiff (Taouk) for any contributions made to the Berowra Development. The only obligation imposed by the contracts was the payment of a Consideration Amount by the defendant to the Developer upon project completion, with the Developer (and by guarantee, the plaintiff) responsible for all development costs and any shortfall. There was no credible evidence of binding oral agreements varying this structure, nor of estoppels, unconscionable conduct, or unjust enrichment. Conversely, the plaintiff was liable under the guarantee and indemnity for the Developer’s defaults.

Court Disposition

Plaintiff’s claim dismissed; cross-claim by defendant succeeds to liability with quantum to be determined.

Orders

  • The defendant is not liable to the plaintiff for the alleged breaches of agreement, estoppels, unconscionable conduct or unjust enrichment; the plaintiff is not entitled to reimbursement for alleged payments; none of the Tab 33 Schedule payments are recoverable against the defendant.
  • The plaintiff is liable to the defendant for breach of the Development Agreement and the guarantee and indemnity; liability on the cross-claim is established, with quantification of damages/liquidated damages to be dealt with subsequently.