Abdalla v Jarvis J Pty Ltd

1. [1]

   These proceedings were commenced as long ago as January 2020.

2. [2]

   The essence of the relief sought by the plaintiff (Mr Abdalla) is that each of the first defendant (Jarvis J) and the second defendant (Anthony Hanna) hold a half interest in land located at Unit 16/7 Altair Place, Hinchinbrook, New South Wales being folio identifier 17/SP93648 (Land) on trust for Mr Abdalla.

3. [3]

   The third defendant is the Registrar General of New South Wales who has not taken an active role in the proceedings. Counsel for Mr Abdalla stated at the commencement of the hearing that he did not know why the Registrar General had been made a party to the proceedings.

4. [4]

   The fourth defendant is the Commonwealth Bank of Australia (Commonwealth Bank) who is the registered first mortgagee on the title to the Land. On 1 October 2020, Darke J ordered that the Commonwealth Bank be excused from further attendance in the proceedings. This was on the basis, as was noted by Darke J, that the remaining parties agreed that no orders made by the Court would affect the Commonwealth Bank’s mortgage.

5. [5]

   The precise reason why the proceedings took so long to come on for hearing was not completely explained although it appears to be primarily as a result of certain related proceedings in the Federal Court of Australia which were ultimately determined by Goodman J on 17 October 2024. I explain these proceedings later in these reasons.

6. [6]

   The proceedings were heard on 9 September 2025. Mr D Allen of counsel appeared for Mr Abdalla. There was no appearance for Jarvis J. This is because, as I explain below, the claim against Jarvis J was determined adverse to Jarvis J by Goodman J in the Federal Court proceedings. No relief was sought against Jarvis J at the hearing. Mr M Wang, solicitor appeared for Anthony Hanna.

7. [7]

   For the reasons set out below, I have determined that Anthony Hanna is not a bona fide purchaser for value without notice of the Land and that Anthony Hanna holds a one half interest in the Land on trust for Mr Abdalla. Orders for the judicial sale of the land should be made. The parties should seek to agree orders to give effect to these reasons with any remaining issues to be determined on the papers.

The facts

1. [8]

   Mr Abdalla and Mr John Mhanna (sometimes referred to as Mr John Hanna Snr) were in partnership together engaged in property development activities.

2. [9]

   John Mhanna is Anthony Hanna’s father. Mr Mhanna’s wife (Anthony Hanna’s mother) is Eman Shonoda (Ms Shonoda).

3. [10]

   There were relevantly two development sites, one at Hinchinbrook (which included the Land) and another at Lawson.

4. [11]

   According to Ms Shonoda, she kept an account of the expenses incurred at both Hinchinbrook and Lawson. A spreadsheet maintained by Ms Shonoda showed that Mr Abdalla paid an extra amount of $112,356.74 in relation to the Hinchinbrook development. The spreadsheet also states that the net amount due to Mr Abdalla from Mr Mhanna “for Lawson” is $135,000.

5. [12]

   On or about 4 April 2017, a deed was prepared between Mr Mhanna, Mr Abdalla (as Mortgagee) and Ms Shonoda (First Mortgagor and Guarantor) (Deed). The Deed is described on its cover page as an “Equitable Mortgage”.

6. [13]

   The Recitals to the Deed are as follows:

7. [14]

   Notwithstanding what is contained in the Recitals, the substantive terms of the Deed did not provide for the transfer of the properties by Mr Abdalla or the payments to him.

8. [15]

   The operative provisions deal with the security provided by Ms Shonoda with respect to the payments to be made to Mr Abdalla.

9. [16]

   In any event, Mr Abdalla agreed in cross-examination that he had agreed to transfer his interest in the properties to Ms Shonoda in accordance with the Recitals in the Deed.

10. [17]

    It would appear that there were originally eight units in the Hinchinbrook development. As at the time of the Deed, Mr Abdalla and Mr Mhanna were registered proprietors of Unit 16 (Land) as tenants in common for 50% each.

11. [18]

    Mr Mhanna was made bankrupt on or about 11 July 2017.

12. [19]

    On or about 13 July 2017, it would appear that Anthony Hanna, at the request of Ms Shonoda, withdrew $112,000 from an account he operated with ANZ Bank and caused that money to be paid to Osama Botros. The payment was apparently at the request of Mr Abdalla and appears to have been intended as part payment of moneys owing under the Deed.

13. [20]

    On or about 30 August 2017, Anthony Hanna withdrew a further amount of $100,000 from his ANZ Account at the request of his mother. The money was paid to Ada Boyan (Ms Boyan). Again, the payment was apparently requested by Mr Abdalla and was intended as part payment of the moneys going to him under the Deed. Mr Abdalla had purchased a property from Ms Boyan in Mars Street, Revesby.

14. [21]

    Mr Abdalla agreed that he asked for the payments to be made but that he did not know that Anthony Hanna was the source of the funds.

15. [22]

    After the two payments above, Ms Shonoda says she tried to obtain finance to complete the purchase of the land at Lawson. She could not obtain the finance and decided not to complete the purchase. ANZ, as mortgagee in possession, subsequently sold the land at Lawson. Mr Abdalla apparently received $4,342.24 from the proceeds of sale.

16. [23]

    On 16 January 2018, by registered transfer AN40118X, the Land was transferred to Jarvis J. It was not in dispute that Jarvis J was at all material times a company controlled by Ms Shonoda. The stated consideration on the transfer was $650,000, although it was not in dispute that no such consideration was paid for the transfer.

17. [24]

    Mr Abdalla contends, and I find, that he did not sign the transfer or authorise it to be signed. He was unaware at the time that the transfer had been executed and the Land transferred. His signature was forged.

18. [25]

    Mr Abdalla gave evidence in these proceedings that he did not sign the transfer and he was not seriously challenged in this respect. I accept his evidence.

19. [26]

    Mr Abdalla’s evidence is also supported by a report of a handwriting expert, Melanie Holt.

20. [27]

    Mr Allen also placed reliance on certain statements made by Mr Mhanna outside Court in these proceedings on 28 January 2020 to the legal representatives for Mr Abdalla, as well as to Henry J on that day. The statements were to the effect that Mr Mhanna had spoken to his son and was authorised to speak on his behalf on that occasion and that he – Mr Mhanna – admitted to forging Mr Abdalla’s signature on the transfer.

21. [28]

    Anthony Hanna did not, at the hearing before me, dispute that his father had authority to speak on his behalf on 28 January 2020 and made the statements that he did.

22. [29]

    It is not necessary for me to reach a final view on whether Mr Mhanna’s statements are to be held as an admission against Anthony Hanna in these proceedings. The evidence – which was not objected to – is to the effect that Mr Mhanna forged the signature. Mr Mhanna made an affidavit in the proceedings on behalf of Anthony Hanna but it was ultimately not read. No explanation was advanced as to why not. There was thus no denial by Mr Mhanna of what he had previously told Henry J that he was the person that forged Mr Abdalla’s signature.

23. [30]

    Consistent with orthodox principles, I can and do more readily accept the direct evidence from Mr Abdalla.

24. [31]

    On 19 February 2018, Mr Abdalla, through SKM Lawyers, wrote to Mr Mhanna and Ms Shonoda in the following terms:

25. [32]

    The letter clearly put Ms Shonoda and Mr Mhanna on notice of the forged signature and that the Land had been transferred without Mr Abdalla’s consent.

26. [33]

    On 3 April 2019, Jarvis J transferred the Land to Anthony Hanna. As set out above, it is admitted in the proceedings that Ms Shonoda was the controlling mind of Jarvis J.

27. [34]

    It is also admitted that Ms Shonoda procured the transfer to Anthony Hanna. The stated consideration on the transfer was $600,000 although Anthony Hanna admitted that this consideration was not paid.

28. [35]

    At [20] of his defence, Anthony Hanna contended that although Ms Shonoda procured the transfer, he held the interest “to the property (not on behalf of Ms Shonoda) as I have paid the full required consideration.”. The only matters pointed to in this regard were the two payments made in about mid 2017 of $112,000 and $100,000.

29. [36]

    No evidence was given, or submission made, linking the transfer to Anthony Hanna in 2019 to the earlier payments made in 2017. The highest the evidence went is that in 2017 Anthony Hanna was asked by his mother to make the payments which were said to be in regards to the purchase of the “property of 16 Hinchinbrook - sorry, correction, unit 16 of 7 Altair Place, Hinchinbrook”. Anthony Hanna said in his oral evidence in chief that his “memory is a little bit faulty in this area” and he “can’t recall specifics”.

30. [37]

    On the same day that the Land was transferred to Anthony Hanna, he took out a mortgage with the Commonwealth Bank. Anthony Hanna admitted that his parents facilitated or assisted him in taking out the loan with the Commonwealth Bank. He also admitted that a substantial part of the moneys advanced was used to make a payment to Mr Mhanna’s bankruptcy trustee.

31. [38]

    In cross-examination, Anthony Hanna denied that he was holding the Land on trust for his mother. He said that it was his investment property.

32. [39]

    Ms Shonoda was asked one question in cross-examination:

33. [40]

    In re-examination, Ms Shonoda was asked what document she was referring to when she said “deed” to which she responded “to the deed…. that was arranged on the 4th of April 2017, Exhibit A … Exhibit 1”.

34. [41]

    These proceedings were commenced in January 2020 by Summons. They clearly put Anthony Hanna on notice of the forgery of Mr Abdalla’s signature.

The Federal Court proceedings

1. [42]

   Prior to the commencement of these proceedings, Mr Mhanna’s bankruptcy trustee commenced proceedings in the Federal Court. On 21 November 2019, Yates J gave default judgment against Jarvis J on a cross-claim filed by Mr Abdalla in the sum of $325,000 for unpaid moneys for the transfer of the Land: see Amirbeaggi as trustee of the bankrupt estate of John Mamdouh Hanna v Kamel [2019] FCA 1965.

2. [43]

   On 11 October 2024, Goodman J gave judgment in the Federal Court in which he considered a number of claims including a further claim by Mr Abdalla against Jarvis J: see Amirbeaggi as trustee of the bankrupt estate of Hanna v Hanna (No 3) [2024] FCA 1171. Goodman J relevantly held:

3. [44]

   On 16 May 2025, Needham J ordered that the appeal brought by Jarvis J against Mr Abdalla be dismissed “on the basis of objection to competency”.

4. [45]

   Although the judgment of Goodman J was admitted before me without objection, I did not understand Mr Allen to ultimately contend that the findings made by Goodman J were somehow binding on me. I do not think that they are binding on me: see s 91 of Evidence Act 1995 (NSW). In any event, the evidence adduced before me has established the facts relevant to the claims pursued in these proceedings.

Claims made in the proceedings and defences

1. [46]

   The claims ultimately advanced by Mr Abdalla against Anthony Hanna (who was the only defendant proceeded against given that the claim against Jarvis J was determined by Goodman J) was relatively simple: Anthony Hanna was not a bona fide purchaser for value of the Land. He received trust property and subsequently acquired notice of the trust at the time of the commencement of the proceedings and, in denying any interest of Mr Abdalla in the Land, is dealing with the trust property in a manner inconsistent with the trust. Reliance in this regard was placed on authorities such as Fistar v Riverwood Legion and Community Club Ltd (2016) 91 NSWLR 732; [2016] NSWCA 81 at [45] per Leeming JA (Fistar) and Sze Tu v Lowe (2014) 89 NSWLR 317; [2014] NSWCA 462 at [141]-[162] per Gleeson J (Sze Tu).

2. [47]

   No written submissions were provided on behalf of Anthony Hanna prior to the hearing.

3. [48]

   In his oral submissions, Mr Wang relied on the following bases to oppose the relief sought:

4. [49]

   In response, Mr Allen contended that, apart from the third matter of Anthony Hanna providing consideration, none of the bases set out above were pleaded and Mr Hanna should not be permitted to run them now. Mr Wang accepted that the three matters were not pleaded but contended that there was no prejudice to Mr Abdalla in permitting the points to be run now.

5. [50]

   I am not satisfied that Anthony Hanna should be able to rely on the three unpleaded bases set out above.

6. [51]

   The starting point is that although Anthony Hanna has been unrepresented for a substantial part of the proceedings, a notice of appointment of solicitor was filed on 14 May 2025, nearly four months ago. Mr Wang’s firm has been on the record since this time.

7. [52]

   Mr Wang did not advance any cogent reason as to why the three unpleaded bases were not pleaded.

8. [53]

   In relation to the claim of Anshun estoppel, at the time that the solicitors for Anthony Hanna came on the record, the proceedings had already been listed by me for final hearing and Anthony Hanna was prosecuting a motion that the proceedings against him should be dismissed either for want of due despatch or on the grounds of res judicata. That motion was not continued after solicitors commenced acting for Anthony Hanna. Mr Wang informed me that there was no utility to the want of due despatch claim because the proceedings had been listed for final hearing and the res judicata claim was dropped because Anthony Hanna was not a party to the Federal Court proceedings.

9. [54]

   As I have said above, no cogent reason was advanced by Mr Wang as to why any Anshun defence was not pleaded. As Mr Allen submitted, any Anshun defence would open up factual issues in relation to why the Supreme Court proceedings were not progressed whilst the Federal Court proceedings continued (which conduct Anthony Hanna was said to have acquiesced in) or why the Supreme Court proceedings were not transferred to the Federal Court. I accept these submissions.

10. [55]

    Allowing an Anshun defence to be run would likely have necessitated an adjournment of the hearing. In my view it would not be in the interests of justice for this to occur.

11. [56]

    In relation to unclean hands and set off, it is clear that any claim in relation to the $212,000 would be at the suit of Ms Shonoda, being the person on whose behalf the monies were apparently paid to Mr Abdalla. She is not a party to these proceedings and thus has obviously not made such a claim.

12. [57]

    As presently constituted, such claims in these proceedings have no prospects.

13. [58]

    Further, the points not having been raised until now, there is presumptive prejudice to Mr Abdalla in permitting the claims to be made and expecting them to be immediately dealt with. In circumstances where there is no good reason as to why the matters could not have been raised much earlier so as to enable them to be and dealt with, I do not regard it as being in the interests of justice to enable them to be run at this stage.

14. [59]

    The parties also agreed that I should defer, for later consideration, if Mr Abdalla was otherwise successful in his contention that Anthony Hanna held a half interest in the Land on behalf of Mr Abdalla and that the Land should be sold, the quantum of any equitable compensation to be paid to Mr Abdalla from the proceeds of sale.

Determination

1. [60]

   It must be appreciated at the outset, as is perhaps obvious, that I am determining the present case on the basis of the evidence before me and the arguments advanced.

2. [61]

   The facts as proven before me establish that:

3. [62]

   In the circumstances I am satisfied that Anthony Hanna is not a bona fide purchaser for value of the Land. He holds one half of his interest in the Land on trust for Mr Abdalla. Anthony Hanna was a volunteer, has knowledge of the breach of trust, and still holds the Land.

4. [63]

   In Fistar, Leeming JA (with whom Bathurst CJ and Sackville AJA agreed) stated at [43] to [47]:

5. [64]

   The payment of $212,000 to Mr Abdalla does not assist Anthony Hanna. Although sourced from his bank account it was not consideration paid by him for the transfer to him of the Land in 2019.

6. [65]

   In any event, Mr Abdalla could not be compelled to transfer the Land until the full amount of $247,356.74 was paid to him. The full amount was never paid: see Golden Mile Property Investments Pty Ltd (in liq) v Cudgegone Australia Pty Ltd (2015) 89 NSWLR 237; [2015] NSWCA 100 at [98] to [105] per Emmett JA (Macfarlan and Gleeson JJA agreeing).

7. [66]

   Mr Abdalla’s interest in the Land was defeated by the fraudulent transfer. Jarvis J thus held 50% of the Land on trust for Mr Abdalla. As a volunteer, now being aware of the true position and still owning the Land, Anthony Hanna holds 50% oof the Land on trust for Mr Abdalla.

Relief

1. [67]

   No submissions were advanced on behalf of Anthony Hanna to the effect that if I formed the view (as I have) that Anthony Hanna holds a one half interest in the Land on trust for Mr Abdalla, that I should not order judicial sale for the Land, or in opposition to the orders proposed by Mr Abdalla for the means by which that should occur including that Mr Abdalla sell the Land.

2. [68]

   I note, however, that an order for vacant possession is sought on a date to be determined by the Court. I have not heard from the parties as to an appropriate time. In my view, 30 days is likely too short.

3. [69]

   As set out above, the parties agreed that the question of the amount of equitable compensation to be paid to Mr Abdalla was deferred for later consideration.

4. [70]

   In the circumstances, I propose to direct the parties to seek to agree orders to give effect to these reasons, failing which I will determine any remaining issues on the papers.

5. [71]

   As regards costs, absent any application for a special costs order, my view is that costs should follow the event and the second defendant should be ordered to pay the plaintiff’s costs of the proceedings to date. I will direct the parties to seek to agree a costs order, failing which I will determine any remaining issue on the papers.

Orders

1. [72]

   The orders of the Court are:

   1. (1)

      Direct the parties to confer and seek to agree final orders to give effect to these reasons, including as to costs.

   2. (2)

      Direct the parties to provide any agreed orders, or competing orders, to my Associate by no later than 5pm on 29 September 2025.

   3. (3)

      In the event there is no agreement, including as to costs, direct the parties to provide to my Associate by no later than 5pm on 29 September 2025 any submissions and supporting material, such submissions not to exceed 3 pages.

   4. (4)

      Direct the parties to provide to my Associate by no later than 5pm on 7 October 2025 any submissions and supporting material in reply, such submissions not to exceed 3 pages, whereupon the remaining issues will be determined on the papers.