Naji Raffoul v Abdel Naser Qushair [2008] NSWDC 253

New South Wales District Court

CITATION: Naji Raffoul v Abdel Naser Qushair [2008] NSWDC 253

HEARING DATE(S): 13-14, 17 November 2008

JUDGMENT DATE: 21 November 2008

JURISDICTION: Civil

JUDGMENT OF: Goldring DCJ

DECISION: 1. Verdict for the plaintiff in the sum of $134,700 plus interest from 16 January 2006 to the date of judgment 2. Dismiss cross claim

CATCHWORDS: CONTRACT - misleading and deceptive conduct - what constitutes

LEGISLATION CITED: Fair Trading Act 1987

PARTIES: Naji Raffoul (Plaintiff) Abdel Naser Qushair (Defendant)

FILE NUMBER(S): 4784 of 2007

COUNSEL: E White (Plaintiff) S Hughes (Defendant)

SOLICITORS: Firmstone & Associates (Plaintiff) Elliot Tuthill (Defendant)

JUDGMENT

Issues

1 Mr Raffoul owned 25 shares in a company called Raffoul Aviation Pty Ltd. On 16 January 2006, Mr Raffoul and Mr Qushair entered into two agreements. The first was an agreement that Mr Raffoul would transfer his 25 shares to Mr Qushair for a consideration of $25. The second was an agreement that the plaintiff would lend the sum of $140,000 to Mr Qushair, and Mr Qushair would repay Mr Raffoul, by paying $5,000 on the execution of the agreement and thereafter sums of either $1000 or $2000 at monthly intervals until the loan was repaid.

2 Mr Raffoul claims that Mr Qushair has repaid nothing under the loan agreement and claims the amount of the loan. Mr Qushair claims that he has made some repayments, but is not liable to make any further repayments because Mr Raffoul induced him to enter into the two agreements by conduct that was misleading or deceptive, contrary to the Fair Trading Act, 1987, s 42(1), which provides, "A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive", or which constituted actionable misrepresentation at common law.