Nassif & Anor v Fahd & Ors [2007] NSWCA 269

New South Wales Court of Appeal

CITATION: Nassif & Anor v Fahd & Ors [2007] NSWCA 269

HEARING DATE(S): 22/06/2007

JUDGMENT DATE: 8 October 2007

JUDGMENT OF: Ipp JA at 1; McColl JA at 2; Bryson AJA at 3

DECISION: (1) Appeal allowed; (2) Judgment and orders of the District Court set aside and in lieu thereof give judgment for the defendants; (3) Reserve further consideration of costs in the District Court and in the Court of Appeal; (4) Direct that within 7 days each party make a written submission on the costs orders which should be made, and within a further 7 days reply to the opponents' written submission.

CATCHWORDS: VENDOR and PURCHASER - Collateral contract - oral agreement collateral to written contracts for sale of land - whether oral collateral agreement enforceable where inconsistent as to consideration with written contracts. Vendors (respondents) agreed to purchase property from the Clarkes - appellants agreed to pay Vendors $150,000 and out-of-pocket expenses if Vendors and Clarkes rescinded their contract and Clarkes sold to appellants at same price - Clarkes refused and Vendors settled their purchase from Clarkes - later appellants agreed to purchase property from respondents in contracts stating same price as in contract with Clarkes, with oral agreement to pay extra $150,000 and out-of-pocket expenses if respondents would sell - HELD that the oral collateral agreement was inconsistent with the written agreement and was unenforceable.

Cutts v Buckley (1933) 49 CLR 189 Esanda Ltd v Burgess & Anor [1984] 2 NSWLR 139 Gates v The City Mutual Life Assurance Society Limited (1986) 160 CLR 1 CASES CITED: Heilbut, Symons & Co. v Buckleton [1913] AC 30 Hoyt's Proprietary Ltd v Spencer (1919) 27 CLR 133 Maybury & Anor v Atlantic Union Oil Company Limited (1953) 89 CLR 507 Shepperd v Ryde Corporation (1952) 85 CLR 1