Hussain v Haynoum Developments Pty Ltd [2015] NSWCA 420

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hussain v Haynoum Developments Pty Ltd [2015] NSWCA 420 Hearing dates: 11 December 2015 Date of orders: 22 December 2015 Decision date: 22 December 2015 Before: Beazley P [1]; Leeming JA [2]; McDougall J [11] Decision: Appeal dismissed with costs. Catchwords: CONTRACT – formation – where appellants entered into a deed with respondents to pay the latter a sum of money – whether that deed was entered into as a result of duress or unconscionability – where that question depends upon the lawfulness of the respondents' conduct – where appellants had resisted paying money owing to respondents under an earlier agreement – where respondents had withheld performance of a term of the earlier agreement as a negotiating technique to ensure that payment – where earlier agreement contained no term, express or implied, that performance be given promptly – statutory illegality – whether, in the alternative, second respondent had acted unlawfully by breaching its statutory obligations as a 'certifying authority' under the Environmental Planning and Assessment Act 1979 (NSW) – where it was not proved that the second respondent had been appointed as a 'certifying authority'

APPEALS – adequacy of reasons – obligation of primary judge to make findings of primary fact – where a central argument depending upon finding that the contract contained an implied term – where primary judge made no findings at all as to terms of the contract – resultant difficulty for appellate court to make disputed findings – where, in any event, no substantial wrong or miscarriage Legislation Cited: Building and Construction Industry Security of Payments Act 1999 (NSW), s 13 Environmental Planning and Assessment Regulation 2000 (NSW), cll 162A, 162B, 162C Uniform Civil Procedure Rules 2005 (NSW), r 51.53 Cases Cited: Australia and New Zealand Banking Group v Karam [2005] NSWCA 344 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Kakavas v Crown Melbourne Ltd [2013] HCA 25 Category: Principal judgment Parties: Emad Hussain (First Appellant) Buthania Said (Second Appellant) Haynoum Developments Pty Ltd (First Respondent) Boulos Haykal (Second Respondent) Representation: Counsel: G W McGrath SC / C W Robinson (Appellants) P E King / F Sinclair (Respondents)