Chanaa v Zarour

[2011] NSWCA 199

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Civil appeal
3. › Whether trial judge's finding was open on the pleadings and the way the case was conducted
4. › Requirement of procedural fairness
5. › Relief confined to that available on pleadings unless actual conduct of proceedings shows another issue was litigated
1. Appeal
2. › Civil appeal
3. › Sufficiency of evidentiary support for trial judge's finding
4. › Whether finding had evidentiary basis
1. Contract
2. › Parties
3. › Identification of parties to oral agreement
4. › Whether contract was with one party alone or with two parties jointly
5. › Conflicting evidence as to conversations giving rise to agreement
1. Contract
2. › Parties
3. › Joint and several liability
4. › Promise made by two promisors presumed to be joint unless words making it joint and several

Quick Take

Where pleadings are equivocal but encompass a particular case, and the actual conduct of the trial (including evidence, cross-examination, and submissions) shows that the issue was litigated, a trial judge may decide the case on that basis without offending procedural fairness. A promise made by two promisors is presumed to be joint unless there are express words making it joint and several.