Diao v Cohen [2016] NSWSC 96

Diao v Cohen [2016] NSWSC 96

There was no concluded contract; the plaintiff's payments were made conditional upon execution of a written agreement, which never occurred. The first defendant is not entitled to retain the money; restitution is appropriate and neither estoppel nor change of position defence apply.

Parties
Plaintiff/cross Defendant: Gin Zhu Diao; First Defendant/cross Claimant: Robin Cohen; Second Defendant/cross Claimant: Office Deals Pty Limited ACN 141870840
Jurisdiction
Australia
Judgment Date
22 February 2016
Procedural Posture
Civil / Final Judgment
Outcome
Judgment for the plaintiff against the first defendant
Legal Topics
Subject to Contract, Failure of Consideration, Change of Position Defence, Estoppel
Contract Restitution Subject to Contract Failure of Consideration Change of Position Defence Estoppel

Case Brief

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Parties

Gin Zhu Diao

Plaintiff/cross Defendant

Robin Cohen

First Defendant/cross Claimant

Office Deals Pty Limited ACN 141870840

Second Defendant/cross Claimant

Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 Whether the parties were contractually bound to the sale of shares subject to contract
  2. 2 Restitution for moneys had and received
  3. 3 Application of change of position defence

Ratio Decidendi

There was no concluded contract; the plaintiff's payments were made conditional upon execution of a written agreement, which never occurred. The first defendant is not entitled to retain the money; restitution is appropriate and neither estoppel nor change of position defence apply.

Court Disposition

Judgment for the plaintiff against the first defendant

Orders

  • Office Deals Pty Ltd ACN 141870840 joined as a defendant and cross claimant
  • Judgment for the plaintiff against the first defendant in the sum of $281,995, plus interest under Civil Procedure Act 2005 NSW, s 100