Lahoud & Anor v Lahoud & Ors

Lahoud & Anor v Lahoud & Ors - [2005] NSWSC 509 - NSWSC 2005 case summary — Zoe

It is apparent that in his affidavit of 14 February 2002 Victor was prepared to make a statement advancing his case which he did not later adhere to. 113 Fourth, there is a major difficulty in accepting Victor's evidence that it was Joseph who suggested that the private agreement should not be recorded in writing. 114 I accept Mr Neil's evidence that shortly before the private discussions commenced on 5 February Joseph expressed reservations about Victor's willingness to adhere to agreements: "Victor can twist things and they come back to you in all sorts of ways". I accept that Mr West told Joseph that the way to protect himself against that sort of conduct was to insist that there be "no handshake agreements" and that everything agreed must be contained in the final settlement document. I accept Mr Neil's evidence that Joseph agreed to follow that advice and to participate in private discussions with Victor on that basis. 115 Nevertheless, if Victor's evidence is to be accepted, only minutes later Joseph himself volunteered the suggestion to Victor in the first private discussion that the agreements about the watch and Riad, although pre-conditions to the commercial settlement, should be no more than a handshake agreement and should not be recorded in writing. For Joseph to have agreed to such a suggestion if it had been made by Victor would have been improvident in the extreme in the light of his own expressed doubts about Victor's trustworthiness and in the light of the clear and strong legal advice which he had just received. Yet, according to Victor, Joseph did not merely agree to such a suggestion - he himself initiated it. In my view, Victor's evidence about this aspect of the discussions is highly improbable. 116 Fifth, it is likely, in my view, that a great deal of Victor's evidence in the case has been coloured by an overwhelming resentment that his efforts on behalf of the whole family have been met with indifference and ingratitude, particularly by Joseph. Whether he is justified in feeling this way is not for me to decide. It is pertinent to his ability to give his evidence carefully and accurately, however, that he feels very strongly that he has been wronged by all of his siblings. 117 As I have said, there are major difficulties in accepting Victor's evidence about the private agreement. Nevertheless, Mr Weber SC, who appears with Mr Gyles for the Defendants, says that Victor's evidence should be accepted because it is corroborated by what Victor told his lawyers immediately after the private discussions and before the Terms of Settlement were signed. The corroboration evidence

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118 Victor says that immediately after the first private discussion he told Mr Holmes, Mr Crow and Mr Callanan that Victor had agreed to give him the watch and to share the care of Riad. He says that minutes later he told Mr Callanan that the private agreements were not to be recorded in the deed of settlement. 119 As I have already observed, none of Victor's lawyers corroborates this evidence. Mr Callanan says that Victor told him that the brothers were going to Houda's home and that "there are some private matters that need to be discussed". Mr Holmes' evidence is to the same effect. As I have noted, that evidence suggests that there had been no concluded agreement about the private matters in the first private discussion. 120 Mr Callanan says that it was only at about 3:30pm on 5 February that Victor told him what the private matters were and that they were not to be recorded in the settlement agreement. It is of great significance, in my view, that neither Victor nor Mr Callanan says that Victor said in this conversation that the terms of the private agreement were "pre-conditions" of the terms of the commercial contract. 121 I accept that in the afternoon of 5 February Victor said something to Mr Callanan about private matters which were not to be included in the settlement agreement. I accept that there was a discussion later that day in a conference in Mr Holmes' Chambers in which reference was made to the private matters and that they were not to form part of the recorded terms of the settlement. However, neither Mr Holmes nor Mr Crow are able to confirm Mr Callanan's evidence that the precise terms of the private agreement were revealed in the conference. 122 I cannot accept without reservation that the terms of the alleged private agreement were made clear by Victor to Mr Callanan and Mr Holmes at any time on 5 February. If Victor had told Mr Callanan that Joseph had agreed to return the watch and had agreed to share responsibility for Riad's care, each accommodating him for a period of six months in turn and each paying 50% of his living expenses, it is difficult to understand why Mr Callanan would not have stated the terms of the private agreement explicitly in his letter to Mr Chaffey of 7 March, and why he misstated the terms of the agreement concerning Riad in his letter of 17 April. 123 In the absence of a contemporaneous note of Mr Callanan's conversation with Victor and with Counsel on 5 February, and in light of the fact that Mr Callanan himself became passionately committed to his client's cause - as evidenced by the terms of a letter which he wrote to Mr Chaffey on 4 February 2001 - I cannot be satisfied that Mr Callanan's recollection of what was said to him by Victor on 5 February has not been affected by Victor's subsequent instructions as to what was agreed. 124 Most importantly, however, there is no evidence from Victor's lawyers corroborating Victor's evidence that it was agreed between himself and Joseph that the "private matters" would form part of, and would be a pre-condition to, the agreement resolving the commercial dispute. Indeed, Mr Callanan's evidence suggests the very opposite: he was instructed that the "private matters" were to remain private and outside the recorded terms of the commercial settlement. That instruction from Victor strongly suggests that whatever "private matters" had been discussed between Victor and Joseph, Victor was of the view that they were to be worked out outside the context of a legally binding agreement - that is, on the basis of a family arrangement binding only in honour. 125 In short, if I were to disregard the corroboration evidence, I would have no hesitation in concluding that Joseph's account of the private discussions should be preferred to that of Victor: when Victor's corroboration evidence is added to the scales, I do not find the balance altered to such a degree that I can come to the opposite conclusion. Conclusion

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126 Victor bears the onus of establishing that a legally binding "private agreement" was made between the brothers on 5 February 2001 in the terms which he alleges and that the parties agreed that performance of that agreement was a pre-condition to the performance of the commercial agreement expressed in the Terms of Settlement. I am not satisfied on the balance of probabilities that Victor has discharged that onus. 127 First, for the reasons which I have given, I do not prefer the credit of Victor over the credit of Joseph. 128 Second, I am not satisfied that the evidence of Victor's lawyers unequivocally corroborates Victor's evidence that an agreement was made that Joseph was to hand over the watch immediately and unconditionally and that Joseph was to share responsibility for Riad on the terms alleged. 129 I am satisfied that Victor raised the question of the watch with Joseph at Houda's house. It is open to conclude that, despite Joseph's refusal to hand back the watch immediately, Victor took some hope from what Joseph said that, if the commercial settlement resolved satisfactorily, Joseph might eventually be willing to give him the watch. It is open to conclude that Victor said something to Mr Callanan in the late afternoon on 5 February and in the conference with Mr Holmes to the effect that the issue of the watch would be resolved, and that he has later elevated that possibility into a promise. 130 I am satisfied also that Victor mentioned the care of Riad in the course of private discussions. Joseph may well have said something to the effect set out in Mr Callanan's letter of 17 April, that is, that he was willing to "sit down and make arrangements suitable to ensure the welfare and wellbeing" of Riad. Again, it is open to conclude that Victor said to his lawyers later on 5 February that he had come to a satisfactory arrangement about that, and that he has later elevated Joseph's willingness to discuss Riad's care into an agreement in the terms which Victor now alleges. 131 Third, because of Victor's insistence to his legal advisers that the "private matters" should not form part of the Terms of Settlement, I am not satisfied that whatever was discussed or agreed privately between the brothers was intended by them to be legally binding and, in particular, to be a pre-condition of performance of the Terms of Settlement. 132 In summary, therefore, Victor has failed to prove the "private agreement" for which he contends, so that the Cross Claim fails on the facts. 133 Joseph's contention that the "private agreement", even if proved, would not be enforceable under s.54A Conveyancing Act for want of writing is a question of pure law. On the facts as I have found them, the question does not arise and it is, therefore, not necessary for me to decide it. If I am wrong in my findings of fact, there will either be a new trial or else the Court of Appeal itself will make a new finding of fact. Either way, the question of enforceability is best left to be decided if and when appropriate factual findings giving rise to the question are made. Orders

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