Penhall (as executor of the estate of the late Paul Sukkar) v Abu. Tony Pty Ltd atf Abu. Tony Discretionary Trust [2023] NSWSC 434

Supreme Court New South Wales

Medium Neutral Citation: Penhall (as executor of the estate of the late Paul Sukkar) v Abu. Tony Pty Ltd atf Abu. Tony Discretionary Trust [2023] NSWSC 434 Hearing dates: 28 July 2022 – 5 August 2022, 23 August 2022 Decision date: 28 April 2023 Jurisdiction: Equity Before: Robb J Decision: See [187] – [193] Catchwords: CONTRACTS — remedies — where plaintiff seeks specific performance of contracts for sale of land CONTRACTS — formation — consideration — effective consideration — where contract for sale of land contained special condition that purchase price had already been paid — where parties entered into collateral agreement acknowledging conveyance of real property was satisfaction for loans — where consideration was provided by the compromise as to the sum of the loans and the agreement to transfer real property in repayment of debt CONTRACTS — duress — where evidence not capable of supporting fact of duress as alleged events occurred subsequent to contract date Legislation Cited: Evidence on Commission Act 1995 (NSW), ss 32, 33 Cases Cited: Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2022] HCA 38 Ampol Ltd v Caltex Oil (Aust) Pty Ltd (Supreme Court (NSW), Foster J, 22 December 1982, unrep) B & S Contracts and Design Ltd v Victor Green Publications Ltd [1984] ICR 419 Barton v Armstrong [1976] AC 104 Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 Fischer v Nemeske (2016) 257 CLR 615 Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298 Ippin Textiles Pty Ltd v Winau Aust Pty Ltd [2021] NSWCA 9 Nazzal v 1Quay Corporation Pty Ltd [2022] NSWSC 742 Pao On v Lau Yiu Long [1980] AC 614 Pascon Pty Ltd v San Marco in Lamis Cooperative Social Club Ltd [1991] 2 VR 227 Personal Representatives of Tang Man Sit v Capacious Investments Ltd [1996] AC 514 Petersen v Moloney (1951) 84 CLR 91 The Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 Yaroomba Beach Development Co v Coeur de Lion Investments (1989) 18 NSWLR 398 Texts Cited: JD Heydon, Heydon on Contract: The General Part (2019, Thomson Reuters) Category: Principal judgment Parties: Garry Neville Penhall as executor of the estate of the late Paul Sukkar (Plaintiff) Abu. Tony Pty Ltd atf Abu. Tony Discretionary Trust (First Defendant) Michael Taouk (Second Defendant) Amal Taouk (Third Defendant) Representation: Counsel: T S Hale SC/J O'Sullivan (Plaintiff) A Paterson (Defendants)