Australia, Dec. 26 -- New South Wales Land and Environment Court issued text of the following judgement on Dec. 13:

1. HER HONOUR: Two years ago, the plaintiff paid $100,000 for a 'charcoal chicken' business in Mt Druitt, plus an amount for stock, and began operating the business. The landlord was asked to assign the lease to the plaintiff. The business' suppliers were notified of a change of ownership. The vendor and purchaser proceeded to sign a Heads of Agreement. But the vendor changed his mind, regained entry to the shop and excluded the plaintiff from the premises. The vendor has continued to run the business in the two years since.

2. The plaintiff, Bachour Enterprises Pty Ltd, now seeks specific performance of the agreement, together with an assignment of the lease of the premises. Initially, the proceedings were defended on the basis that the plaintiff's director, Fouad (Frank) Bachour, only "had discussions" with the vendor about granting a licence and sub-lease to shop manager, Maha Ghrayyeb, to operate the shop for five years. The $100,000 was said to be a licence fee, paid by Mr Bachour on behalf of Ms Ghrayyeb as a loan to her. By closing submissions, however, this 'case theory' was abandoned. The remaining issues are:

a) Was first defendant, Simon Munzer, the vendor or was the Heads of Agreement with his company, the second defendant, Paradise CC Corp Pty Ltd?

b) Is Mr Munzer absolved from compliance with any obligations under the Heads of Agreement by reason of misleading and deceptive conduct, unconscionable conduct and undue influence said to have been perpetrated by Mr Bachour, or the defences of non est factum or mistake?

c) What remedies, if any, should be granted to the plaintiff, including orders for specific performance, an account of profits, damages or, alternatively, restitution of the purchase price and payment for stock?

3. For the reasons which follow, the plaintiff is entitled to the relief sought. Mr Munzer sold the business to his long-time friend for $100,000, as he was in need of funds. But Mr Munzer changed his mind and, quite audaciously, re-took possession of the shop. The only person who was exploited in this matter was Mr Bachour.

Witnesses

4. The plaintiff relied on the evidence of Mr Bachour, Ms Ghrayyeb and former solicitor Christian Adams.

5. The defendants relied on the evidence of Mr Munzer, accountant Ziad Azzi and IT consultant Naji Ghebar.

6. Witnesses (other than Mr Adams) were bi-lingual, speaking both Arabic and English. Witnesses other than Mr Azzi were cross-examined.

7. Mr Bachour did not call his niece, Cynthia Bachour-Choucair, who was the solicitor initially instructed to prepare the transaction documents and also Mr Adams' "boss". Mr Bachour said he did not speak to his niece "due to family issues, I went through divorce". The defendants submitted that this was an unsatisfactory explanation as to why a legal practitioner would not come to Court to give evidence; the Court should infer that her evidence would not have assisted the plaintiff.

8. Before drawing a Jones v Dunkel inference, a missing witness must be a person who it would be natural for one party to call; the witness might be regarded as "in the camp" of one party or "a witness likely to be friendly to the interests of the party": Payne v Parker [1976] 1 NSWLR 191 at 201-202 per Glass JA; Ghazal v Government Insurance of New South Wales (1992) 29 NSWLR 336 at 343 per Kirby P with Mahoney and Clarke JJA agreeing. If the witness is equally available to both parties, the condition for drawing the inference usually stands unsatisfied: Payne v Parker at 202.

9. Ms Bachour-Choucair was initially retained by Mr Munzer on various transactions, before being retained by both Mr Bachour and Mr Munzer to prepare the Heads of Agreement. Thereafter Ms Bachour-Choucair proceeded to act for Mr Bachour only on the purchase of the Mt Druitt business, while Mr Munzer retained new solicitors for that purpose. Mr Munzer continued to retain Ms Bachour-Choucair on other transactions. In these circumstances, I consider that the solicitor was equally available to both parties to call.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/193b83ba1d552db1b2a4bdc6)

Disclaimer: Curated by HT Syndication.