AGUILAR v JAUCIAN [1989] NSWCA 3

AGUILAR v JAUCIAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and MEAGHER JJA 15 February 1989, 15 February 1989

[1989] NSWCA 3

APPEAL from District Court — trial judge unable to accept either the plaintiff or defendant in their competing versions of contract — exclusion of admissible evidence which might have significant bearing on resolution of some critical issues — new trial ordered. ORDERS 1. Judgment in favour of the defendant set aside. 2. New trial of the proceedings in the District Court. 3. Costs of the appeal should be borne by the respondent to the appeal. 4. Respondent to have a Suitors' Fund Certificate. 5. Costs of the first trial to abide the result of the second trial.

Priestley JA Shillington DCJ, who tried this case, was confronted with an unusual conflict of evidence between the plaintiff, Mr Aguilar, and his wife on the one hand and the defendant, Mr Jaucian, on the other. Although it was common ground that the plaintiff sold his restaurant business to the defendant and that the defendant took the business over on 8 or 9 April 1984, two deeds, each signed by the plaintiff and the defendant, purported to record the sale.

The deed relied on by the plaintiff, (Exhibit B) recorded the consideration as (i) $23,000, payable as to $10,000 by 21 April 1984, the balance payable in thirteen monthly payments of $1,000, the first due on 7 July 1984; (ii) a promise to pay up to $10,000 to the plaintiff's trade suppliers and; (iii) a promise to obtain a release from the owner of the restaurant premises of all obligations under any relevant agreement. The other, relied on by the defendant (Exhibit 4) recorded the consideration as (i) $10,000, payable as to $5,000 by 21 April 1984, the balance payable in five monthly payments of $1,000, the first due on 7 May 1984; (ii) a promise to pay up to $5,000 to the plaintiff's trade suppliers and; (iii) a promise to obtain a release from the owner. Except for the figures and the date of commencement of the monthly instalments, the two deeds were in identical terms.