Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd In the matter of Combined Projects (Arncliffe) Pty Ltd

1. [1]

   HER HONOUR: Late last year, I heard together two sets of proceedings involving a variety of parties and a number of disputes arising out of dealings between, broadly: Mr Moustafa Sayour (Moustafa, also known as Michael) and his late son, Jamil Sayour (Jamil), along with entities associated with them (the Sayour interests), on the one hand; and Mr Fouad Deiri (Mr Deiri) and entities associated with Mr Deiri (the Deiri interests), on the other hand. However, as will become clear, the parties involved in the respective proceedings extend beyond the Sayour interests and the Deiri interests (as I will explain shortly). I refer to Moustafa and Jamil by first name without intending any disrespect, simply so as to distinguish between them.

2. [2]

   At the outset I note that, when Parker J made orders on 28 February 2019 that the two sets of proceedings be heard together, his Honour ordered that evidence in one proceeding be evidence in the other (see Order 3). That has in the main occurred, save that at the hearing some evidence was not admitted as against particular parties or was only admitted subject to relevance as against particular parties (generally speaking, those being parties other than the Sayour interests or the Deiri interests).

3. [3]

   The combined hearing of the two sets of proceedings occupied over 28 sitting days, including a day of submissions heard during the Court vacation and a further day of submissions during the first week of the law term this year. The final reply submissions for the Sayour interests, and supplementary reply submissions by various other parties, were dealt with in written submissions. The final tranche of written submissions was not received until April this year.

Background

1. [4]

   Although the background to the disputes between the parties has been briefly set out in earlier interlocutory decisions (see, for example, Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410 and Broadway Plaza Investments v Broadway Plaza Pty Ltd; In the matter of Combined Projects (Arncliffe) Pty Ltd [2019] NSWSC 1082), it is convenient here to reprise (and add to) my earlier summary of the relevant background to the proceedings before turning to the chronology of events.

2. [5]

   I also note that, to the extent that there is or is perceived to be any inconsistency between the below factual background and my determination of specific factual controversies, the latter is to be taken as my findings of fact.

3. [6]

   As adverted to above, there are two sets of proceedings: the Broadway Proceedings (2016/00282940) and the Arncliffe Proceedings (2017/00180712).

4. [7]

   The Broadway Proceedings arise out of a now dissolved partnership (the Broadway Partnership) between the plaintiff, Broadway Plaza Investments Pty Ltd (Investments), and the defendant, Broadway Plaza Pty Ltd (Plaza) (formerly known as Sayour Investments Pty Ltd (Sayour Investments)).

5. [8]

   The Broadway Partnership was formed to undertake a residential and commercial development (the Broadway Development) of a site in Punchbowl (the Broadway Site) that was comprised of a number of adjacent properties.

6. [9]

   Investments is a company the shares in which are held by Deiri Nominees Pty Ltd (Deiri Nominees). Mr Deiri is the director of Investments. Both Deiri Nominees and Investments form part of a group of construction and property development companies (the Deiri Group) run by Mr Deiri.

7. [10]

   In the context of the Broadway Proceedings, I refer to these three parties (i.e., Investments, Deiri Nominees and Mr Deiri), collectively, as the Deiri Parties. They were represented separately from other entities involved in these proceedings with which Mr Deiri is also associated, those being here generally referred to as the Deicorp Entities.

8. [11]

   The Deicorp Entities include Deicorp Pty Ltd (formerly known as Deicorp Constructions (NSW) Pty Ltd) (to which I will refer where necessary as Deicorp Constructions (NSW), but generally more simply as, Deicorp), and Deicorp Properties Pty Ltd (Deicorp Properties). It is relevant here to note (lest there be any confusion – as there was in some of the material before me) that Deicorp is a different entity from Deicorp Constructions Pty Ltd (Deicorp Constructions), both of those companies being involved at different stages in the construction of one or other of the developments the subject of the two sets of proceedings here before me.

9. [12]

   Plaza is a company the shares in which are held by Moustafa Sayour, a company of which Moustafa is the sole shareholder and a director. Moustafa was previously the sole director of Plaza and I understand that he remains a director of the company. Moustafa owns a medical textiles manufacturing business, Biomed Technology Australia Pty Ltd (Biomed), which was managed for some time during the events in question by Jamil. In the context of the Broadway Proceedings, I will refer collectively to Plaza, Moustafa and Sayour Holdings as the Sayour Parties (and when addressing the submissions filed on behalf of one or more of them I will, simply for convenience, refer to them as the Sayour Parties’ submissions).

10. [13]

    In the period from 2007 to 2010 (before entering into the Broadway Partnership), Plaza purchased a number of properties in Punchbowl which were ultimately amalgamated to form the Broadway Site.

11. [14]

    As noted above, the Broadway Partnership was formed between Plaza and Investments in or around December 2011 for the purposes of the Broadway Development. There was no written partnership agreement. However, it does not appear to be disputed that the arrangement between the partners was that Investments was to manage the design and construction of a shopping centre and residential apartments; and that Plaza was to manage the leasing of the centre. The profits were to be shared equally. The builder for Stage 1 of the Broadway Development (but not ultimately for Stage 2 – see at [358] below) was Deicorp (then known as Deicorp Constructions (NSW)).

12. [15]

    The claims brought against the Deicorp Entities (particularly in relation to the fifth cross-claim – to which I refer to throughout as the Fifth Broadway Cross-claim) overlap significantly with claims brought against others of the cross-defendants. As I have adverted to, the Deicorp Entities were represented separately from the Deiri Parties. There was some criticism by the Sayour Parties during the course of the hearing as to the level of representation amongst the various entities associated with Mr Deiri (in effect, there being three sets of solicitors involved and two sets of Counsel). Nevertheless, I accept that there was a reason for the separate representation of various of the entities associated with Mr Deiri and it was apparent that there had been a conscious attempt to confine cross-examination and to avoid unnecessary repetition of submissions between those parties. I did not consider the level of representation to be unreasonable given the issues involved in and quantum of the overall dispute.

13. [16]

    Mr Deiri’s principal dealings with Plaza throughout the Broadway Partnership were (until Jamil’s death in October 2015) through Jamil. It does not appear to be disputed that Jamil was relatively inexperienced in property development at the time (as also was Moustafa). The Deiri Parties’ case is that Moustafa was “semi-retired” or “essentially retired” (see, for example, at [111] below), and that he relied on Jamil during the course of the Broadway Development to communicate on Plaza’s behalf with Investments. Moustafa takes issue with at least some aspects of that characterisation of his involvement in the Broadway Development. Moustafa complains, in essence, that Mr Deiri and Jamil actively concealed from him information and decisions made in relation to the Broadway Development (including, relevantly, the making of various payments in the course of the project).

14. [17]

    As part of the partnership arrangements, Investments acquired from Plaza an interest in the Broadway Site. It says that it paid the purchase price (specified in the contract of sale) of $6 million in instalments over the course of 2011 to 2012 (see at [282] below) and that it also paid an agreed additional sum of $2 million towards the purchase (i.e., in effect, making a total purchase price for its 50% interest of $8 million). There is a dispute as to whether Investments in fact paid the whole of the purchase price for that half interest in the Broadway Site and a claim is made by Plaza in the Broadway Proceedings (in the second cross-claim – to which I refer throughout as the Second Broadway Cross-claim) for the sum it says remains owing to it ($5.6 million), plus interest calculated at 9% per month, in respect of the purchase.

15. [18]

    The Broadway Development was in two stages: first, a retail complex and, second, a residential complex. The development was financed by the Commonwealth Bank of Australia (CBA) (although it seems that at one stage the proposed financier had been Westpac Banking Corporation (Westpac)). On 15 February 2012, a loan agreement (the First Facility Agreement) to finance Stage 1 of the Broadway Development (the car park and shopping centre) was executed with CBA in the amount of $45.6 million (the Stage 1 Loan) (see, for example, at [261] below). For reasons that will become apparent in due course, it is relevant here to note that Moustafa accepts that he signed the First Facility Agreement.

16. [19]

    On 20 June 2013, the Stage 1 Loan was “reinstated” as an investment facility and the balance of the loan became part of a separate facility (the Stage 2 Loan) (see, for example, at [363] below). The documents pursuant to which this occurred included the Second Facility Agreement, which Moustafa denies was signed by him. There is (see, for example, at [1060] below) unchallenged evidence from a forensic expert (Mr Stephen Dubedat) supporting the conclusion that Moustafa did not sign that document (and, indeed, the evidence establishes that Moustafa did not sign a great number of documents bearing his purported signature, relevantly including any of the impugned cheques drawn on the partnership’s bank account with CBA (the CBA Partnership Account) – see at [210] below).

17. [20]

    The construction of the retail shopping centre on the Broadway Site was completed in December 2013 and construction of the residential apartments was completed over the following year. The residential apartments were sold in November 2014 (see at [479]ff below). Following the sale, the Stage 2 Loan was repaid to CBA (leaving outstanding an amount due in respect of the Stage 1 Loan) (see at [483] below).

18. [21]

    Thereafter, a surplus was distributed out of the proceeds of sale of the residential units in the Broadway Development. Investments contends that Plaza’s share of the partnership distributions was paid to Plaza in accordance with Jamil’s instructions to Mr Deiri (as, it says, were the payments made to Plaza for the purchase of the Broadway Site). Plaza disputes this. Investments maintains that Jamil directed Investments to make each and every one of those payments and that Jamil received them on Plaza’s behalf. Investments points out that most payments were made by cheque drawn payable to the “Sayour Family Trust”, of which trust Plaza is the trustee; that almost all of the cheques were banked into two bank accounts designated as trust accounts for the Sayour Family Trust (one in the joint names of Moustafa and Jamil, and another solely in Moustafa’s name); and that Moustafa personally banked two of these cheques (totalling $5 million).

19. [22]

    Jamil died in October 2015. In November 2015 (see the chronology of events from [626]ff below), after the discovery by Moustafa of what he maintains amounted to fraud against Plaza and the Sayour Family Trust in relation to the Broadway Partnership, Moustafa asserted to Mr Deiri that Plaza had not received its share of the partnership profits (and that Jamil had no authority to distribute any partnership moneys).

20. [23]

    Plaza now seeks several million dollars in interest under an alleged loan agreement in connection with the purchase price for the Broadway Site under which (as adverted to above) the interest rate was specified at 9% per month (the proper construction of which term is here in dispute). Investments points out that neither Moustafa nor Jamil signed that loan agreement (and that, on Moustafa’s evidence, he knew nothing about it). Investments contends that it is not binding. There is also a claim for rectification of that loan agreement in the event that (contrary to Investments’ submissions) it is found to be binding on Investments.

21. [24]

    On 21 September 2016, Investments commenced the Broadway Proceedings by way of summons, seeking (among other relief) a declaration that the partnership had been dissolved and orders inter alia that the Broadway Partnership be wound up, that a receiver be appointed and that partnership accounts be taken.

22. [25]

    Pausing here, I note that Plaza has emphasised throughout its submissions that the constitution of the Broadway Proceedings, as commenced by Investments, was that of a partnership winding up proceeding (in which the taking of partnership accounts was indeed ordered – see at [26]). Plaza’s position is that this affects much of what is agitated in the various cross-claims in the proceedings. Nevertheless, as will be explained shortly, the Broadway Proceedings ultimately proceeded by way of points of claim and for practical purposes Plaza was the moving party on a number of those cross-claims.

23. [26]

    On 29 September 2016, Hallen J made a declaration as to the dissolution of the Broadway Partnership and orders appointing a receiver, Mr Brett Lord (the Receiver), to the Broadway Partnership’s assets and undertaking, and for partnership accounts to be taken. By note 6 to the orders made on that occasion, Hallen J noted that Plaza disputed the alleged liability of the partners to CBA. I interpose to note that this was before the payment out, in 2017, of the remaining CBA loan secured over the shopping centre (see below) and CBA was then claiming (and Plaza disputing) that CBA was a secured creditor in respect of a sum of about $34.4 million.

24. [27]

    Pursuant to the directions made by Hallen J on 29 September 2016 (as part of the partnership accounting process), Investments served on 25 November 2016 a verified list of transactions. Plaza notes that this is in the nature of a pleading, responding to the order of 29 September 2016, and standing as Investments’ case as to the transactions of the Broadway Partnership. Plaza points out that the said Exhibits essentially comprise MYOB accounting printouts and notes that they contain numerous items alleging advances to the Broadway Partnership by CBA. Thus, in the partnership accounting, there is in issue the validity of the liability which Investments alleges the Broadway Partnership owed to CBA.

25. [28]

    Plaza has maintained that many of the transactions asserted by Investments were unauthorised or otherwise improper. Plaza therefore proceeded by way of falsification and surcharge in the partnership accounting. Plaza also sought a number of declarations and directions as to how the partnership account should be taken in respect of specific items and transactions. Plaza notes, in this regard, that Investments did not make any claim for just allowances.

26. [29]

    On 24 October 2016, the Receiver filed a notice of motion seeking judicial advice as to whether he would be justified in paying amounts on account of the alleged liability to CBA. At that stage, the then current CBA loan facility was due to expire on 24 March 2017. The Receiver’s notice of motion concerned all payments alleged to be accruing due to CBA, including a final payment of approximately $34.3 million at the expiry of the facility, as well as intermediate line fees and other payments of, in aggregate, about $600,000.

27. [30]

    On 28 October 2016, Plaza filed a notice of motion seeking an order joining CBA as second defendant (the object of which, it is said, being to compel CBA to bring its claim into the partnership winding up).

28. [31]

    On 3 November 2016, on the basis of a concession by Investments (in effect to preserve Plaza’s position in relation to its dispute as to the validity of CBA’s claim to be a secured creditor), Plaza did not oppose the giving of judicial advice to the Receiver that he would be justified in making the intermediate payments to CBA. The general effect of the concession was to charge Investments’ share in the Broadway Partnership with those payments in the event that they were afterwards held to have been payments that were not liabilities of the Broadway Partnership. In that context, judicial advice was given to the Receiver that he would be justified in making the intermediate CBA payments (but not at that stage in relation to the making of the final payment of $34.3 million).

29. [32]

    On 7 December 2016, Pembroke J directed Plaza to file a cross-summons against CBA and to give notice of the transactions in Investments’ list of transactions which it contended were not authorised transactions of the Broadway Partnership or for which it contended the partnership was not liable to CBA. Pursuant to these orders, the first cross-summons was filed by Plaza against CBA and Investments on 19 December 2016.

30. [33]

    On 28 December 2016, the Receiver filed a further notice of motion for judicial advice (as to the completion of the sale of the shopping centre). On 27 January 2017, Lindsay J ordered that the Receiver would be justified in completing a particular contract for sale of the shopping centre, noting that Plaza’s consent was provided on the conditions set out in a letter dated 24 January 2017 from its solicitors, Adams & Partners, to K&L Gates. That letter included that: Plaza did not make any admissions; Plaza continued to dispute the liability accrued by the Broadway Partnership with CBA; and the contract of sale contained a number of contentious documents that Plaza was not able to confirm had been validly signed or executed.

31. [34]

    On 7 February 2017, an order was made in effect extending the time for compliance with Pembroke J’s order in respect of notice of the unauthorised transactions for which Plaza contended the Broadway Partnership was not liable to the CBA. Directions were also made as to the time within which Plaza was to request particulars in relation to certain loan repayments and for Investments to respond thereto.

32. [35]

    On 17 February 2017, the Receiver wrote to the solicitors for each of Investments, Plaza and CBA, noting Plaza’s dispute as to Broadway Partnership’s liability to CBA and proposing, notwithstanding that objection, to pay to CBA at completion “the amount secured by the mortgage” in order to “convey clear title in accordance with the Sale Contract”, as the Receiver needed to obtain a discharge of mortgage from CBA. The letter stated inter alia that:

33. [36]

    Prior to completion of the sale of the shopping centre, Plaza gave its written consent to the amount claimed by CBA being paid to CBA on completion of the sale of the shopping centre (without it being held or retained by CBA as a separate fund), and consented to that amount being dealt with as part of the general assets of CBA, upon the written undertaking of CBA to deal with the amount in accordance with any judgment or final order of the Court in the proceedings on the first cross-claim within 28 days after judgment or the expiry of the appeal period or after the conclusion of any appeal instituted by CBA. The agreement and the undertaking were expressly made without admissions on either side.

34. [37]

    On 27 March 2017, Investments moved for a direction that Plaza file and serve points of claim (rather than a list of falsifications and surcharges). Plaza then complained that Investments had not supplied an adequate list of transactions and that it did not know what the transactions on the CBA’s facilities had been because there were no account statements on those facilities. It also complained that Investments had not supplied adequate vouching.

35. [38]

    On 31 March 2017, Plaza moved in turn for: further particulars of Investments’ list of transactions; better vouching by Investments; and for CBA to plead the advances it alleged had been made to or at the direction of the partners and the debts that it alleged had become due to it by the partners.

36. [39]

    Those two motions came before Parker J, who directed: CBA to file and serve a statement of account in respect of the facilities (not including the Broadway Partnership bank account, for which statements were already available); and, following that, for Plaza to file and serve points of claim in respect of its case against CBA.

37. [40]

    Following the orders made by Parker J, CBA’s account was filed on 11 August 2017 (CBA’s Account) and Plaza filed the points of cross-claim on the first cross-summons. CBA’s Account lists the payments that CBA made and received, to which the points of cross-claim plead Plaza’s objections that various of the transactions were unauthorised.

38. [41]

    Meanwhile, following the judicial advice received from Lindsay J, the sale of the shopping centre settled in March 2017. I understand that the Receiver paid out $34.3 million under the loan to CBA (that payment being made under protest from Plaza, as noted by the Court on 27 January 2019). As adverted to above, CBA gave a written undertaking to disgorge that amount in the event that the Court determined the issue of its entitlement thereto unfavourably to CBA.

39. [42]

    I interpose to note that the only assets of the Broadway Partnership were the Broadway Development and its associated assets. Hence, by the time of the hearing before me, CBA no longer claimed to be a secured creditor (having been paid out in full). I understand that, as at August 2019, the Receiver held approximately $5 million of partnership funds.

40. [43]

    Broadly then, by way of overview, Plaza contends that Mr Deiri knew that Jamil was signing cheques (in his own name or in Moustafa’s name) and was not doing so under a power of attorney; that this was in breach of CBA’s mandate; that Mr Deiri prepared or was in charge of preparing forged accommodation notices under the respective construction facilities; that Mr Deiri was party to Jamil’s deception of Moustafa; that Mr Deiri bribed Jamil; that Mr Deiri was party to the misappropriation of Sayour Family Trust money into the (separate) Arncliffe Development (see below); and that Mr Deiri knew that Moustafa trusted him and cynically abused that confidence.

41. [44]

    To this, the Deiri Parties say that Plaza’s case in this regard is no more than a construct or reconstruction of events.

42. [45]

    The Deiri Parties’ adamant position is that: there were no forgeries; there were no bribes; events were not concealed; Mr Deiri was not a party to any misappropriation of Sayour Family Trust money into the Arncliffe Development; and Mr Deiri did not abuse any confidence reposed in him by Moustafa (noting that it does not seem to be disputed that Moustafa did repose confidence in Mr Deiri). The position of the Deiri Parties is that, in reality, Investments and Mr Deiri dealt with Plaza through Jamil and that Moustafa gave Jamil full authority and responsibility to do so (i.e., that Moustafa left Jamil in charge and relied on Jamil to do everything).

43. [46]

    The issues for determination in the Broadway Proceedings are framed by reference to the various cross-claims that have been filed in those proceedings. Those cross-claims are summarised below.

44. [47]

    The amended first cross-claim (the First Broadway Cross-claim) was filed on 12 October 2017 by Plaza against Investments and CBA.

45. [48]

    By this cross-claim, Plaza seeks sums from CBA. Plaza alleges that CBA breached its mandate, and is liable, in respect of payments made pursuant to forged signatures on facility agreements which funded the Broadway Development and cheques drawn on the CBA Partnership Account.

46. [49]

    Meanwhile, the cross-claim against Investments relates to the falsification and surcharge of the partnership accounts. Plaza says that, as Investments was not willing to join, as a partner, in the claims made against CBA, Investments was a necessary party to be joined as cross-defendant.

47. [50]

    Insofar as Investments asserts that various drawings on the CBA Partnership Account and on credit facilities were transactions of the Broadway Partnership, this is disputed by Plaza, which contends that, once those transactions are falsified, CBA is in fact a substantial debtor of the Broadway Partnership. Plaza says that it is the function of the first cross-claim to set out the basis for this contention.

48. [51]

    As noted above, Plaza has emphasised the above procedural history of the Broadway Proceedings as demonstrating that the First Broadway Cross-claim arose in the course of, and as a step in, the winding up of the partnership and the taking of partnership accounts (superseding in a pleaded form the previous particulars of disputed transactions that had been provided in the course of the accounting under the directions made by Pembroke J and Lindsay J).

49. [52]

    More particularly, Plaza notes, from a procedural perspective, that after a decree for general administration, a person claiming to be a creditor of a partnership must prosecute its claim in the proceedings in which the decree was made (referring to Collins v O’Reilly (1940) 41 SR (NSW) 281 at 283-284 per Roper J and also, in the context of appointment of a receiver, to In re Metropolitan Amalgamated Estates Ltd; Fairweather v the Company [1912] 2 Ch 497 at 502-503 per Swinfen Eady J; Randfield v Randfield (1860) 1 Dr & Sm 310; 62 ER 398 at 399 per Kindersley V-C; Ward v Swift (1848) 6 Hare 309; 67 ER 1184 at 1186 per Wigram V-C; and In re Maidstone Palace of Varieties Ltd; Blair v Maidstone Palace of Varieties Ltd [1909] 2 Ch 283 at 286; [1908–10] All ER Rep 678 per Neville J). Plaza says that this demonstrates the nature, in particular, of remedies sought on a subsequent cross-claim against the partners and, by implication, against the partnership assets.

50. [53]

    The second cross-claim (the Second Broadway Cross-claim) was filed on 4 June 2018 by Plaza against Investments. In this cross-claim, Plaza seeks the sum of $35.76 million, plus interest of $504,000 per month, from Investments. As adverted to above, of this claim, almost $30 million is comprised of interest alleged to be payable at an interest rate of 9% per month under the alleged loan agreement (to which I have referred above – see at [23] above).

51. [54]

    As adverted to above (see at [17] above), Plaza alleges that Investments has not paid the sum of $6 million in consideration for the purchase by Investments of the 50% interest in the Broadway Site; nor a further sum of $2 million payable pursuant to a further contract. The claims against Investments are brought under a collateral contract for sale of land, a collateral loan agreement and a further collateral agreement, each of which was entered into (or allegedly entered into) between Plaza and Investments at the time of entry into their partnership agreement.

52. [55]

    Prayers 11 and 12 of the Second Broadway Cross-claim also claim directions and orders in the partnership accounting arising by reason of the terms of the agreements between the partners under which they formed their partnership. Plaza says that these agreements are antecedent to the partnership, forming a basis for its inception, but that some of the provisions regulate the terms of the partnership association and thus govern the taking of accounts and the winding up. Plaza says that the Second Broadway Cross-claim thus has elements that are antecedent to, and outside of, the partnership relationship, as well as other elements that arise in the winding up.

53. [56]

    The third cross-claim (the Third Broadway Cross-claim) was filed on 13 June 2018 by Investments against Plaza. Investments seeks, inter alia, rectification of the contract of sale (and loan agreement) the subject of the Second Broadway Cross-claim, as well as introducing other causes of action (including breach of fiduciary duty).

54. [57]

    Insofar as the Third Broadway Cross-claim includes a claim for relief based on the assertion that the contract of sale and loan agreement were incidents of the fiduciary relation of partners, Plaza says this proposition is misconceived in that it seeks to attribute to agreements constituting the parties’ relations the character of an incident of their resulting partnership. Plaza points out that this claim does not arise in the partnership winding up.

55. [58]

    The fourth cross-claim (the Fourth Broadway Cross-claim) was filed on 26 June 2018 by Investments against the partners of HWL Ebsworth (HWLE), the lawyers who acted for Investments in relation to the contract for sale the subject of the Second Broadway Cross-claim. In the alternative to the Third Broadway Cross-claim, Investments alleges that if (which is denied) it is liable to Plaza in respect of the claim made in the Second Broadway Cross-claim, then HWLE is liable to Investments in respect of that liability (i.e., this is a claim for professional negligence).

56. [59]

    Again, Plaza points out that this claim does not strictly arise in the partnership winding up.

57. [60]

    The fifth cross-claim (the Fifth Broadway Cross-claim) was filed on 22 August 2018 by Plaza against eleven cross-defendants, including: Investments (the first cross-defendant), Mr Deiri (the third cross-defendant), Deiri Nominees (the fourth cross-defendant), and a number of Deicorp Group entities (as noted below, being the entities to which I will refer collectively, unless the context otherwise requires, as the Deicorp Entities). The Deicorp Entities are: Combined Projects (Gibbons) Pty Ltd (the fifth cross-defendant) (CP Gibbons); Combined Property Investments Pty Ltd (the sixth cross-defendant) (CP Investments); Combined Projects (Redfern) Pty Ltd (the seventh cross-defendant) (CP Redfern); Combined Projects Holdings Pty Ltd (the eighth cross-defendant) (CP Holdings); Deicorp (the tenth cross-defendant) and Combined Projects (Arncliffe) Pty Ltd (the eleventh cross-defendant) (Combined Projects Arncliffe).

58. [61]

    Plaza alleges that payments to the builder for the Broadway Development (Deicorp for Stage 1 and Deicorp Constructions for Stage 2) were not liable to be paid for various reasons, including a failure to issue payment certificates and invalid variations under the construction contracts.

59. [62]

    Plaza further alleges that certain payments by Investments or by various of the Deicorp Entities to Jamil (the making of which it is alleged was not disclosed to Plaza) constituted bribes and that, by virtue of those bribes (and the alleged non-disclosures), Jamil was induced to act in certain ways to the detriment of Plaza (including to place his own signature on cheques drawing funds from the CBA Partnership Account, to forge Moustafa’s signature on cheques drawing funds from that account and to fail to disclose a lower construction quote for the development (to which I refer as the Dyldam quote) – see below). It is alleged that each of the first, fourth to eighth and tenth cross-defendants has received a benefit as a result of the alleged bribes and breaches of fiduciary duty by the first and third cross-defendants and that the first, third to seventh, tenth and eleventh cross-defendants, by the said bribes paid by each, and by each of them not disclosing the same to Plaza, acted in concert to secure a mutual benefit, namely the enrichment of the Deicorp Group of companies by the several payments alleged. Plaza seeks declaratory and other relief, including equitable compensation.

60. [63]

    In their respective defences to the fifth cross-claim (filed on 22 February 2019), Deiri Nominees (whose defence is a joint defence with Mr Deiri and Investments) and the Deicorp Entities admit to the making of various alleged payments (although they deny that the payments constituted bribes and they deny the claims for relief made against them).

61. [64]

    In particular, the Deicorp Entities say that, in the Broadway Proceedings, Plaza’s approach to this litigation has been to make wide-ranging allegations, which have neither technical nor substantive merit behind them. The Deicorp Entities maintain that it is extraordinary that Plaza seeks reimbursement from Deicorp of the entirety of the moneys paid for the construction of the Broadway Development, notwithstanding that the Broadway Partnership (comprising Plaza and Investments) received more than $70 million worth of construction work from Deicorp (and noting the expert opinion of their expert witness, Mr Johnny Portelli, that it would have been reasonable for Deicorp (or another builder) to have charged anywhere in the vicinity of $3 million to $8 million more for the very same outcome – as to which, see my comments at [1070] below).

62. [65]

    The sixth cross-claim (the Sixth Broadway Cross-claim) was filed on 22 February 2019 by the builder, Deicorp, against Investments and Plaza, pleading a quantum meruit claim in the event that Plaza were to succeed on the allegations in the Fifth Broadway Cross-claim that payments made to Deicorp were not liable to be paid pursuant to the construction contracts. It is relevant here to note that, although the construction work was carried out by different Deiri entities for the two stages of the Broadway Development, (i.e., Deicorp and Deicorp Constructions respectively) the parties have here relevantly proceeded as if the relevant entity for both was Deicorp.

63. [66]

    The seventh cross-claim (the Seventh Broadway Cross-claim) was filed on 8 October 2019 by CBA against Investments and Mr Deiri, on the one hand, and the Deiri Entities, on the other, raising claims which are premised on the success of Plaza on its claims against CBA. Accordingly, if Plaza does not succeed against CBA on the First Broadway Cross-claim and the Fifth Broadway Cross-claim, CBA seeks no relief on the Seventh Broadway Cross-claim.

64. [67]

    In the Seventh Broadway Cross-claim, CBA raises: claims for moneys had and received; a claim for civil conspiracy; and a claim for misleading or deceptive conduct (alleging, inter alia, that representations were made that the cheques and payments signed by Mr Deiri were duly authorised, which representations are alleged to be false and misleading if Plaza’s claims succeed).

65. [68]

    I interpolate to note that, because of the lateness of the time (by reference to the then listed commencement date for the hearing) at which the Seventh Broadway Cross-claim was advanced (for the reasons explained in the course of submissions and I make clear that I make no criticism of CBA in this regard) and the concern not to delay the commencement of the hearing (which had by then been fixed for some time), the hearing proceeded on the basis that the change of position defence that the Deiri Entities foreshadowed to the Seventh Broadway Cross-claim as against them would be deferred (i.e., so that, if Plaza failed to make out its case against CBA, and hence there would be no need for CBA to press the Seventh Broadway Cross-claim, there would be no need for the Deiri Entities to agitate the change of position issues that the Deiri Entities would otherwise have wished to raise – see the debate before me on 3 and 4 October 2019). Thus, there has been a deferral of much of the issues arising under the Seventh Broadway Cross-claim pending the outcome of the claims made by Plaza against CBA.

66. [69]

    The eighth cross-claim (the Eighth Broadway Cross-claim) was filed on 15 October 2019 by Investments and Mr Deiri against Plaza, Moustafa and CBA, for misleading conduct in contravention of schedule 2 to the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law) in the event that the Fifth Broadway Cross-claim and/or Seventh Broadway Cross-claim were to succeed. Relevantly, the allegation against Plaza and Moustafa is in sum that they falsely represented that Jamil was a person who could be trusted to act honestly in his dealings with the Broadway Partnership and the allegation against CBA relates to it allegedly falsely representing to Investments that the payments from the CBA Partnership Account were paid in accordance with the bank’s mandate.

67. [70]

    As to the claims against the Sayour Parties, Plaza characterises these as “evidently seeking to place upon the victims liability for implied warranties of the character and authority of someone who, ex hypothesi was corrupted by the cross claimants”.

68. [71]

    Finally, the ninth cross-claim (the Broadway Ninth Cross-claim) against Plaza and Matthews Street Pty Ltd (Matthews Street Co) seeks the winding up of the company should Plaza’s claim that it has a constructive trust in respect of that company or its assets fail (as to which, see further below).

69. [72]

    The second set of proceedings, the Arncliffe Proceedings (it will be recalled, 2017/00180712), relates to dealings between Mr Deiri and Jamil in respect of a different property development (the timing of which overlapped to some extent with the Broadway Development), this development being in Arncliffe (the Arncliffe Development).

70. [73]

    In January 2014 (thus after the construction of the retail complex of the Broadway Development but before the completion of the residential apartments), Combined Projects Arncliffe (as noted at [60] above, the eleventh cross-defendant to the Fifth Broadway Cross-claim) was incorporated with two shareholders, Deiri Nominees and Sayour Holdings (see, for example, at [438] below) to develop a property at Arncliffe (the Arncliffe Property) into residential apartments and retail shops.

71. [74]

    I interpose to note that there are various issues and disputes as to the manner in which Combined Projects Arncliffe was incorporated and as to whether Sayour Holdings ever became a member of the company, but I deal with that below. For present purposes, I simply note that, on incorporation, the Australian Securities and Investments Commission (ASIC) records disclosed the members of the company as referred to above.

72. [75]

    Mr Deiri is recorded on the company register as the sole director of Combined Projects Arncliffe (though this is one of the issues in dispute in the proceedings). Mr Deiri’s dealings with Sayour Holdings, up to the time of Jamil’s death, were all through Jamil. Deicorp Constructions performed the construction work in relation to the Arncliffe Development pursuant to the Arncliffe Construction Contract (see below). The Arncliffe Development is now complete. The sale of the last of the residential apartments settled on 11 February 2019 (see at [711] below).

73. [76]

    In 2017, Sayour Holdings (as trustee for the Sayour 2 Family Trust) commenced the Arncliffe Proceedings, by way of originating process in the Corporations List, against Combined Projects Arncliffe, Deiri Nominees and Mr Deiri. Sayour Holdings (as 50% shareholder of Combined Projects Arncliffe) sought relief to redress the alleged oppressive conduct of the company’s affairs by Deiri Nominees (the other 50% shareholder) and Mr Deiri, and alleged breaches of director’s duties by Mr Deiri. Sayour Holdings sought relief pursuant to s 247A of the Corporations Act 2001 (Cth) (Corporations Act) for access to Combined Projects Arncliffe’s books and to appoint a director to its board. I interpose to observe that that aspect of the claimed relief is now otiose; as are other aspects of the relief initially sought by Sayour Holdings.

74. [77]

    Pursuant to leave granted on 9 May 2019 in the Arncliffe Proceedings, on 10 May 2019, Sayour Holdings filed an amended statement of first cross-claim in the name of Combined Projects Arncliffe as a derivative action under s 233 of the Corporations Act (leave for the bringing of a derivative suit subsequently being granted pursuant to s 237 of the Corporations Act – see In the matter of Combined Projects (Arncliffe) Pty Ltd [2019] NSWSC 1070).

75. [78]

    In that amended statement of first cross-claim (the First Arncliffe Cross-claim), claims are made by Sayour Holdings in the name of Combined Projects Arncliffe against the following parties: Mr Deiri and Deiri Nominees (the first and second cross-defendants); Konstructions Pty Ltd (the third cross-defendant) (Konstructions); Zapphire Investments Pty Ltd (the fourth cross-defendant) (Zapphire); Deicorp Properties (the fifth cross-defendant) and Deicorp Constructions (the sixth cross-defendant).

76. [79]

    Again, it is convenient to frame the issues for determination by reference to the various cross-claims.

77. [80]

    The First Arncliffe Cross-claim alleges that a “development management fee” charged by Deiri Nominees (the Development Management Fee) and “site identification fees” (the Site Identification Fee(s)) paid to each of Konstructions and Zapphire were unauthorised; and that Mr Deiri breached his duties as director of Combined Projects Arncliffe in causing those payments to be made.

78. [81]

    The relief sought in the name of Combined Projects Arncliffe in the First Arncliffe Cross-claim includes relief relating to a “Development Management Agreement” purportedly of 24 March 2016 (see at [653] below) between Combined Projects Arncliffe and Deiri Nominees as trustee for the F Deiri Family Trust (the Development Management Agreement), which it is alleged is void and of no effect, including a trust claim and other claims relating to: sums of $7,239,425.44 and $723,942.54 paid to Deiri Nominees on about 3 and 17 April 2018, respectively; a sum of $7.92 million paid to Konstructions on about 29 March 2018 and a sum of $7.898 million paid to Zapphire, as trustee for the Zapphire Investments Family Trust, also on or around 29 March 2018 (those payments being the subject of allegations under the heading “the purported Site Identification Fees” – and, see at [690] below); a sum of $5,299,704.23 paid to or for the benefit of Deiri Nominees on or around 28 February 2018; claims for equitable compensation or orders for compensation pursuant to s 1317H of the Corporations Act against the first cross-defendant (Mr Deiri); and other relief.

79. [82]

    On 24 June 2019, Deicorp Constructions, the sixth cross-defendant to the First Arncliffe Cross-Claim, filed its own cross-claim (the Second Arncliffe Cross-claim) in the Arncliffe Proceedings, seeking judgment against Combined Projects Arncliffe in the sum of $3,617,298.76, or such amounts as might be determined, upon a quantum meruit and/or quantum valebat basis, in relation to the goods and services that were allegedly provided by Deicorp Constructions to Combined Projects Arncliffe the subject of the provisional sum adjustment contained in a progress claim made in the course of the Arncliffe Development (being Progress Claim 24, to which I refer as PC 24).

80. [83]

    On 26 August 2019, Deiri Nominees and Mr Deiri (to whom I will refer in the context of the Arncliffe Proceedings as the Deiri Parties, although it should be noted that in relation to the Broadway Proceedings that term also includes Investments) filed the Third Arncliffe Cross-claim.

81. [84]

    The Third Arncliffe Cross-claim advances a primary case for relief to correct the company registers held by ASIC: to remove Sayour Holdings as a registered member of Combined Projects Arncliffe; and to remove Moustafa, Jamil and Ms Yesmine Sayour (Jamil’s sister, to whom I will refer as Yesmine) as registered members, secretaries or directors of Sayour Holdings. Alternatively, relief is sought to reflect the position that Jamil had authority to act for Sayour Holdings in relation to the Arncliffe Development and to bind it to the alleged Arncliffe Agreement and the transactions which Moustafa impugns in the First Arncliffe Cross-claim.

82. [85]

    By prayers 1 to 5, the Third Arncliffe Cross-claim seeks declarations to the effect that: Moustafa was never a member or director of Sayour Holdings; Yesmine was never a director of Sayour Holdings; Jamil was never a director of Sayour Holdings; and, since its incorporation, Sayour Holdings has had no directors.

83. [86]

    By prayer 6, an order is sought pursuant to s 175 of the Corporations Act or the Court’s inherent jurisdiction that Moustafa’s name be removed from Sayour Holdings’ register of members. By prayer 7, an order is sought pursuant to s 1322(4)(b) of the Corporations Act or the Court’s inherent jurisdiction, that the register kept by ASIC in respect of Sayour Holdings be rectified: by removing the record of Moustafa as a director, secretary and member since 16 December 2013; by removing the record of Yesmine as a director since 26 March 2018; and by removing the record of Jamil as a director from 21 August 2014 to 6 October 2016.

84. [87]

    By prayers 8 and 9, orders are sought dismissing Sayour Holdings’ leave to proceed in the name of Combined Projects Arncliffe, and dismissing the Arncliffe Proceedings, on the basis that Sayour Holdings had no authority to act, for want of directors.

85. [88]

    By prayers 10 and 11, a declaration is sought that Sayour Holdings has never been a member of Combined Projects Arncliffe. By prayer 12, an order is sought pursuant to s 1322(4)(b) of the Corporations Act or the Court’s inherent jurisdiction that the register kept by ASIC in respect of Combined Projects Arncliffe be rectified by removing the record of Sayour Holdings as a member since 29 January 2014.

86. [89]

    As an alternative case, the Deiri Parties seek, by prayers 14 and 15, a declaration that at all times from 21 August 2014 to 6 October 2015, Jamil was the sole director of Sayour Holdings; and an order under s1322(4)(b) of the Corporations Act or the Court’s inherent jurisdiction that the register kept by ASIC in respect of Sayour Holdings be rectified by recording Jamil as the sole director and secretary from 21 August 2014 to 6 October 2015.

87. [90]

    I now turn to a detailed chronology of the relevant events.

Chronology of events

1. [91]

   As noted, there was some overlap in the time frame for the Broadway Development and Arncliffe Development and related transactions (and this overlap is of relevance as setting the context for some of the transactions or dealings between the principal players). Accordingly, I have amalgamated within the following chronology the events in both sets of proceedings rather than setting out a separate chronology of events for each.

2. [92]

   Plaza was incorporated (under the name MJ Distributors Pty Ltd) on 1 December 2005. It changed its name to Sayour Investments on 3 August 2007. Moustafa’s evidence is that he intended Plaza to be a trustee of a family trust (see Moustafa’s affidavit sworn on 31 May 2019 at [25]-[29]).

3. [93]

   Jamil formally became a director of Plaza in or around November 2007. Jamil ceased to be a director of the company on or around 30 July 2008 (shortly after the Sayour Family Trust was established – see below).

4. [94]

   The Sayour Family Trust was established by trust deed with Plaza (then known as Sayour Investments) as its trustee (the Sayour Family Trust Deed). Under the Sayour Family Trust Deed, there were two classes of beneficiaries: “General Beneficiaries” as defined in cl 1.11; and “Specified Beneficiaries” as defined in cl 1.20. The “Specified Beneficiaries” (as identified in item 6 of the Schedule to the Sayour Family Trust Deed) included Moustafa’s wife, Fatima, and daughters, but not Jamil (although Jamil did fall within the class of General Beneficiaries, being a child of Fatima and the brother of the other Specified Beneficiaries).

5. [95]

   Accordingly, subject to events that might have led Jamil to fall within the definition of “excluded class” for the purposes of cl 1.10.4 of the Sayour Family Trust Deed, Jamil fell within the prescribed categories of relationship to those named so as to be eligible as an object of appointment under the Sayour Family Trust Deed). The explanation for his exclusion from the list of “Specified Beneficiaries” appears to be that Moustafa did not trust Jamil’s judgment (see Moustafa’s affidavit sworn on 27 October 2016 at [8]-[9]; see also T 314.25-T 315.45). I interpose to observe that Jamil’s exclusion from the class of Specified Beneficiaries (i.e., the primary beneficiaries of the Sayour Family Trust) may explain the suggestion that Jamil later wished to pursue the Arncliffe Development as a venture for “his family” (see below).

6. [96]

   As it becomes relevant in due course to consider the powers of the trustee of the Sayour Family Trust, I note that cl 7 of the Sayour Family Trust Deed conferred, in addition to the powers otherwise conferred upon trustees by law, a number of additional powers. It is relevant here particularly to note cll 7.20 and 7.49, which empowered the trustee:

7. [97]

   On or around 12 August 2008, an account was opened with Westpac (the Westpac #202 Account) in the names of Jamil and Moustafa, that account being designated as (and I have elsewhere held it to be – see Sayour v Elliott [2017] NSWSC 713, to which I refer as the Estate Proceedings Judgment) a trust account (i.e., the account was styled a trust account for the Sayour Family Trust).

8. [98]

   According to Moustafa, from 2008, Plaza pursued a programme of acquiring sites containing and adjacent to the Broadway Site, with a view to future development. The first such acquisition was the acquisition of the Punchbowl Returned and Services League (RSL) site, by contract dated 15 March 2008 (the contract being entered into prior to the establishment of the Sayour Family Trust but the purchaser there being described as “Sayour Investments Pty Limited as trustee for the SAYOUR FAMILY TRUST”). I note that, on the transfer, the words “as trustee for the Sayour Family Trust” were crossed out.

9. [99]

   By contract for sale dated 28 August 2009, Plaza (then known as Sayour Investments) (expressly as trustee for the Sayour Family Trust) acquired further property at Punchbowl (1-9 Broadway, Punchbowl). Again, the transfer did not specify that the transferee was acting as trustee of the Sayour Family Trust.

10. [100]

    By separate contracts each dated 13 November 2009, Plaza (again expressly as trustee for the Sayour Family Trust) acquired two further properties that subsequently became part of the Broadway Site (18 and 20 Matthews Street, Punchbowl). As I explain in due course, these properties are different from the Matthews Street Property in issue in the Broadway Proceedings (see, particularly, as defined at [125] below).

11. [101]

    On 30 May 2010, each of Moustafa and Plaza (as trustee for the Sayour Family Trust) executed powers of attorney in favour of Jamil (the 30 May 2010 Powers of Attorney). I interpose to note that the scope of the authority conferred on Jamil by those, and subsequent, powers of attorney is hotly in dispute in these proceedings and is dealt with in due course.

12. [102]

    The 30 May 2010 Powers of Attorney (and a subsequent Power of Attorney – see further below) provided, relevantly, that:

13. [103]

    On or around 26 July 2010, another Westpac account was opened (the Westpac #833 Account), again designated as a trustee account.

14. [104]

    By 2010, Plaza (then still known as Sayour Investments) was thus the owner of the various properties that ultimately comprised the Broadway Site (some at least of which had been acquired expressly in its capacity as trustee of the Sayour Family Trust). However, at that stage, the development of the Broadway Site which Moustafa then contemplated appears not to have been as extensive as it ultimately transpired to be. So, for example, a quote for demolition works at the Broadway Site was provided to Biomed (noting that it was expressed “attention: Jamil”) by a company (seemingly not associated with the Deiri interests) known as ACE Demolition & Excavation Pty Ltd (ACE Demolition), at a specified cost of $245,000 excluding GST (relevantly, this being much less than the ultimate excavation costs, which were in the order of several million dollars).

15. [105]

    On 9 August 2010, Jamil met Mr Deiri for the first time. I note that, although in Mr Deiri’s affidavit sworn on 26 June 2017, Mr Deiri placed his first introduction to Jamil as occurring around October 2010 (see at [5]), the contemporaneous documents show that this must be incorrect: on 10 August 2010, Jamil sent an email to Mr Deiri referring to a meeting the previous day and asking Mr Deiri to organise a meeting with the banks.

16. [106]

    In any event, Mr Deiri’s evidence is that Jamil expressed interest in Mr Deiri’s company, Deicorp, acting as the builder of a shopping centre and units on the Broadway Site; and that, by about the Christmas of 2010, he and Jamil had agreed to Deicorp carrying out design work for the Broadway Development (see, for example, Mr Deiri’s affidavit sworn 26 June 2017 at [6]).

17. [107]

    Meanwhile, according to Mr William (Bill) Zafiropoulos (the principal of Zapphire, to which company, much later, Mr Deiri caused an impugned site identification fee to be paid in relation to the Arncliffe Development – see below), in around 2010, Mr Zafiropoulos (a dentist by profession but who also had had involvement in various property developments) obtained knowledge of a change to the relevant Local Environment Plans (LEPs) for the Arncliffe area and became interested in potential Arncliffe developments. This is also when he says he met (as his patient) Mr Fadi Ibrahim (Jamil’s cousin), who he says later introduced him to Jamil (see Mr Zafiropoulos’ affidavit sworn 9 October 2019 at [21], [25]-[26]).

18. [108]

    I interpose to note that the eventual amendment to the relevant LEPs does not appear to have been gazetted until late 2011 (see at [195] below).

19. [109]

    It is not entirely clear when Moustafa was first introduced to Mr Deiri. Mr Deiri’s account is that this occurred, after several discussions with Jamil, in around early 2011. In his affidavit sworn on 22 August 2019 (at [25]-[26]), Mr Deiri places his first meeting with Moustafa as being in about January 2011.

20. [110]

    There is evidence that Moustafa returned to Australia from an overseas trip on 28 February 2011 (see the “Movements Details” document). However, it is not clear from that document when Moustafa had departed Australia. Self-evidently, if Moustafa was overseas in January and February 2011, any face to face meeting in early 2011 between the two could not have been until March 2011. However, nothing probably turns on this (other than insofar as it may point to some unreliability in Mr Deiri’s recollection of dates).

21. [111]

    Mr Deiri’s evidence is that Moustafa told him that Jamil “will be running the entire project from our side” and that Moustafa said that he (Moustafa) was “semi-retired” and that “Jamil runs everything” (see Mr Deiri’s affidavit sworn on 22 August 2019 at [25]-[26]). Mr Deiri also says that Moustafa said (several times during the project) that, “dealing with me is like dealing with Jamil” and “[d]ealing with Jamil is like dealing with me” (see his affidavit sworn on 22 August 2019 at [40]). Moustafa takes issue with this.

22. [112]

    Mr Deiri further says that Jamil asked him to send emails to his (Jamil’s) Biomed email address and that Moustafa did not have email (which the Deiri Parties rely upon as amounting to Jamil being the primary point of contact) (see, for example, Mr Deiri’s affidavit sworn on 22 August 2019 at [28]). At least in terms of email communications, it is clear that these were via Jamil’s email address; and I accept that Moustafa did not operate his own email account. However, what turns on this is another issue.

23. [113]

    The first “Punchbowl Plaza” Coordination Meeting occurred on 20 January 2011 (Broadway Coordination Meeting No 1) and was attended by Jamil.

24. [114]

    The minutes of this meeting (notably, on Deicorp Constructions’ letterhead) record, inter alia, Jamil’s attendance (on behalf of Biomed) and the attendance of Mr Deiri and Mr Tim Smith on behalf of Deicorp. I interpose to note that it is not until Coordination Meeting No 3 on 2 February 2011 (as to which, see below) that Jamil is recorded as being in attendance for “Sayour Investments”.

25. [115]

    The minutes also record that “HHMA” was to be the architect for the “Retail DA, CC and Construction documentation” and was to “review/comment on the current retail DA proposal”.

26. [116]

    Pausing here, the minutes of project coordination meetings in relation to the Broadway Development record that, together with Jamil, Moustafa attended these meetings from about March to July 2011. It appears that the first such meeting at which Moustafa is recorded as attending was Broadway Coordination Meeting No 6 on 9 March 2011 (again, as to which, see below). Jamil was also recorded as attending that meeting. Moustafa’s contact details are there recorded as “c/- Jamil” and Jamil’s details are listed as being his Biomed email address.

27. [117]

    Up until around mid-2011, it seems that the Deiri and Sayour interests were simply negotiating for Mr Deiri’s company (Deicorp) to be engaged by Plaza to design and construct the retail development (for around $40 million).

28. [118]

    Mr Deiri’s evidence is that, at some point in around mid-2011, Jamil suggested to Mr Deiri that he buy half the land and develop the project as a partner and that they agreed to leave responsibility for the design, construction and finance to Mr Deiri and that Jamil would handle the leasing (see Mr Deiri’s affidavit sworn on 22 August 2019 at [47]). Relevantly, Mr Deiri’s affidavit evidence is that he was approached by Jamil about the prospect of a joint venture and agreed upon the terms with him (see at [47]):

29. [119]

    Meanwhile, Moustafa’s evidence is that, in around mid-2011, he told Jamil that he did not want to do the development if it would cost $70 million; that Jamil then proposed that Mr Deiri be a partner and said he would try to lower the construction cost; that Jamil said the land was worth $12 million and Moustafa said it was worth more; that Jamil returned a few days later and said he had another valuation for $16 million; and that a few days after that Jamil told Moustafa that Mr Deiri was prepared to enter into a joint venture with them (see Moustafa’s affidavit sworn on 31 May 2019 at [90]-[94]):

30. [120]

    More specifically, Mr Deiri has deposed to discussions with Jamil about the purchase of 50% of the Broadway Site; that Jamil asked for $6 million and later said that they (i.e., the Sayour interests) wanted an additional $2 million to cover costs incurred so far; and that he (Mr Deiri) agreed to pay the $2 million progressively, after he paid the $6 million (see Mr Deiri’s affidavit sworn on 22 August 2019 at [49]-[51]). Mr Deiri says that they then agreed to proceed and to an equal (50%) profit split on the project.

31. [121]

    There is in evidence a document headed “’Broadway Plaza’ Retail Feasability [sic]”, date stamped 12 August 2011, (apparently prepared by Mr Deiri – see [127] below). This would seem to place the above discussions as taking place around August 2011 (and certainly before 12 August 2011).

32. [122]

    There is a dispute (which I will address in due course) as to who was to be liable for the excavation costs and, in particular, whether they were to be funded by the parties out of the construction facility. However, what does not appear to be disputed is that Moustafa met with Mr Deiri on a number of occasions in late 2011, that they discussed the overall price of the Broadway Development to be funded using loans from CBA and that they contemplated that CBA would be repaid as soon as the residential component of the Broadway Development was complete.

33. [123]

    Moustafa’s evidence, which the Deiri Parties say should not be accepted, is that in mid-2011 he had a conversation with Mr Deiri in which Mr Deiri said words to the following effect:

34. [124]

    Pausing here, as adverted to earlier, the purchase by Investments of a half share in the land comprising the Broadway Site is identified by Plaza as one of the agreements entered into at the time of entry into the Broadway Partnership. Plaza says that the parties also agreed to bring the land into the partnership as partnership property and on other terms. The agreement to bring the land in as partnership property is said by Plaza to be reflected in the partners’ equity shares in the statement of assets and liabilities prepared by Investments provided in accordance with the directions made by Hallen J for the partnership accounting.

35. [125]

    According to Mr Deiri (see Mr Deiri’s affidavit sworn on 22 August 2019 at [84]), in the second half of 2011 (i.e., before construction on the Broadway Development had commenced), Jamil suggested to him a new development of properties next to the Broadway Site, including buying a property at 14 Matthews Street (the Matthews Street Property). Mr Deiri says he agreed and that they decided to set up a special purpose vehicle (to which I have referred to above at [71] as Matthews Street Co) (and see at [164] below). It is relevant to note, as already adverted to at [100], that the Matthews Street Property the subject of this discussion (being the property at no 14) is distinct from the two other Matthews Street properties that ultimately became part of the Broadway Site (being the properties at no 18 and no 20).

36. [126]

    Meanwhile, Moustafa’s evidence is that, at some time in around 2011, Moustafa had negotiated the purchase of the Matthews Street Property with the vendor, Ms Riley, for an amount of $590,000. He says that he instructed a solicitor (Mr Naef) to act on the conveyance on behalf of Plaza and that he left it to Jamil to complete instructions for the mechanics of that purchase on behalf of Plaza (see, for example, Moustafa’s affidavit sworn on 31 May 2019 at [47]ff). There is in evidence a draft printed form contract, apparently prepared by the vendor’s solicitor, on which the purchaser’s name is shown as “Sayour Investments” (it will be recalled, the previous name of Plaza), albeit that the copy of the contract in evidence has the purchaser’s name crossed out by a hand drawn line). This is consistent with Moustafa’s evidence that the purchase of the Matthews Street Property was intended by him to be in Plaza’s name and that this was communicated at some stage to the vendor’s solicitor. I interpose to record that no evidence was adduced from Mr Naef in the proceedings.

37. [127]

    By September 2011, it appears that Mr Deiri was foreshadowing a need for further partnership contributions. On or around 16 September 2011, Mr Deiri sent an email to Jamil referring to a discussion the previous day in relation to, “the additional monies required”, and attaching the August 2011 feasibility document (see at [121] above), saying:

38. [128]

    There is also evidence that, in September 2011 (consistent with Moustafa’s account that Jamil had said to him in mid-2011 that he would try to lower the construction cost – see [119] above), Jamil approached another entity, Dyldam Developments Pty Ltd (Dyldam) to obtain a quote for the project.

39. [129]

    By reference to an email Jamil sent to Mr Sam Fayad of Dyldam on 16 September 2011, stating “[n]ice to meet you yesterday”, it appears that, on 15 September 2011, Jamil met Mr Fayad. Jamil’s email attached a “geo tech” report. On 18 September 2011, Mr Fayad responded by email to Jamil that he would provide, “the quote for your project by the end of the week max” (see Ex 15 at p 116).

40. [130]

    The following day, on 19 September 2011 at 11.25am, Jamil sent an email to Mr Deiri, as follows:

41. [131]

    Pausing here, there seems to be no documentary evidence to suggest that, at this stage, Jamil had any written quote from any other company (let alone from Dyldam). Indeed, Mr Fayad’s 18 September 2011 email referred to a quote that would be provided by the “end of the week max”. It is, of course, conceivable that Jamil was referring at paragraph 2 of the email to Mr Deiri to an oral quote, but that is not what the 19 September 2011 email to Mr Deiri on its face appears to convey; nor does there appear to have been any suggestion in the correspondence between Jamil and Mr Fayad of a joint venture with Dyldam at this stage. This would support the inference that Jamil was here trying to do no more than bargain down the construction cost (as he had indicated to Moustafa he would do); and not that there was a viable competing quote at that stage (which is reinforced by the later 23 September 2011 email from Mr Fayad – see at [134] below). Mr Deiri’s evidence is that that some time after this email, he telephoned Jamil and told him he was disappointed, and said “[i]f the other guy is offering you less, I can’t do it for that price” (see, for example, Mr Deiri’s affidavit sworn on 22 August 2019 at [30]). Thus, if this was indeed a negotiating tactic by Jamil and assuming Mr Deiri’s account is correct, it would seem that Mr Deiri was here calling Jamil’s bluff, so to speak.

42. [132]

    In any event, on 22 September 2011, Mr Deiri copied to Jamil an email sent by him to Colliers International (Colliers) and to Westpac (again, the then anticipated financier), advising that all costing for the project had been completed and setting out final feasibility figures. The email stated that, “Deicorp Constructions will be entering into two Australian Standards Design and Construct Lump Sum Contracts with the JV entity: the first contract will be for Stage One been [sic] the two Basement Levels and both Retail Levels, up to the Residential Podium Slab for a lump sum price of [$40 million]. The email went on, “Stage Two for the 152 apartments above the Podium Slab for a lump sum of [$24 million]”. The email advised that, based on the revised feasibility, the total development cost for the first stage would be $59.75 million; and for the second, $51.32 million. The email attached revised feasibility figures dated 22 August 2011 for both stages.

43. [133]

    Mr Deiri, therefore, clearly seems to have been proceeding on the basis that the joint venture was still going ahead, despite receipt of Jamil’s email on or around 19 September 2011 and whatever was said in the conversation which Mr Deiri says he then had with Jamil.

44. [134]

    On 23 September 2011 (a Friday), Mr Fayad (it will be recalled, of Dyldam) sent an email to Jamil asking for until 5 pm on 26 September 2011 (the Monday) to finalise a quote (see Ex 15 at p 122), saying that, “[a]bout the quote for your project can u please give me til Monday 5 pm to finalized [sic] it for you it’s a big project and we need to get it write [sic] for u”. Again, I note that this does not indicate that there had been any agreement nor does it reveal any suggestion at that stage of a joint venture with Dyldam.

45. [135]

    On 26 September 2011 (i.e., the following Monday), at 10.10 am, Jamil (apparently chasing the promised quote) sent an email to Mr Fayad, asking “[w]ill you be emailing the quote today?”. The email went on to ask (this seemingly being, at least by reference to the written documents, for the first time):

46. [136]

    Mr Fayad responded the same day (at 11.06 am) that:

47. [137]

    Jamil replied, “[y]es I will see you at 5pm thanks” (see Ex 15 at pp 120-121).

48. [138]

    Pausing here, again none of the above communications suggests that there was at that stage any competing joint venture proposal at all (let alone one that would have been capable of acceptance by the Broadway Partnership); nor even that Jamil was at that stage seriously considering such a proposal. This is relevant particularly in the context of Moustafa’s complaint in the Broadway Proceedings as to the non-disclosure to him of the competing quote and his contention that the making of bribes was intended or calculated to induce Jamil not to disclose the quote (and, indeed, to proceed with the partnership with Mr Deiri’s company).

49. [139]

    On the same day (26 September 2011), on the letterhead of “DeiCorp Construction Pty Ltd”, a tender was submitted to Plaza (addressed to Jamil) for the design and construction works of the “proposed retail/residential retail” development at a lump sum fixed price of $40 million plus GST. I note that the Australian Business Number (ABN) for the tendering entity is ABN 15 117 191 885 (i.e., that of Deicorp Constructions cf the party issuing the subsequent tender on 7 February 2012 – see at [234] below).

50. [140]

    The 26 September 2011 tender noted that it allowed for “complete Bulk Excavation and Detailed Excavation” (item 8) and that it allowed for construction up to the “Residential Podium Level”. The Deiri Parties note that the quote expressly allowed for excavation work as part of that price (inconsistent with Plaza’s assertion that Investments was to bear the cost of excavation). Moustafa says that Jamil gave the tender to him (see Moustafa’s affidavit sworn on 31 May 2019 at [100]).

51. [141]

    On 27 September 2011 at 3.42 pm, Dyldam sent an email to Jamil attaching a quote, addressed to Jamil at his Biomed email address, quoting the sum of $59.7 million plus GST for the Broadway Development, comprising $20.68 million plus GST for the basement; $21.7 million plus GST for the apartments; and $17.32 million plus GST for the retail (“Shell Only”); and excluding excavation works. As adverted to above, Moustafa and the Sayour Parties complain in the present proceedings that the Dyldam quote was not disclosed to him. I interpose to note that this quote is not on all fours with the prices to which reference was made in Jamil’s email on 19 September 2011 – see [130] above).

52. [142]

    On 28 September 2011, Plaza executed a “Formal Instrument of Agreement” (Australian Standard AS 4950-2006) with “Deicorp Constructions Pty Ltd ABN 15 117 191 885)” for the contract sum of $40 million (the Stage 1 Construction Contract).

53. [143]

    It is not disputed that this was the construction contract for Stage 1 of the Broadway Development (it will be recalled, being the retail component), nor that it was signed by Moustafa on behalf of Plaza as Principal and by Mr Deiri on behalf of Deicorp Constructions as Contractor (though the subsequent tender was confusingly by Deicorp, not Deicorp Constructions). It is also not disputed that Moustafa was not aware, when he signed the Stage 1 Construction Contract, of the Dyldam quote.

54. [144]

    The Stage 1 Construction Contract expressly incorporated the tender submission dated 26 September 2011 and referred to standard form “General conditions of contract for design and construct”.

55. [145]

    It would seem that agreement was later reached on a Deicorp Constructions’ tender to design and construct the residential development for $23.5 million. Plaza says that there was an agreed tender for Stage 2 (at $23.5 million) and that the subsequent change to $24.85 million was not agreed by Plaza (as to which, see at [356] below).

56. [146]

    As noted earlier, Investments’ case is that it purchased from Plaza a 50% interest in the Broadway Site for a total sum of $8 million (the $6 million contract price and an additional amount of $2 million). It says that it paid the purchase price in instalments over the period from 2011 to 2012; and it says that the first of those instalments was an amount paid by Mr Deiri in October 2011 of $400,000 (prior to the contract being signed), which Mr Deiri says was a deposit towards the purchase of the Broadway Site, as a sign of good faith, before the written contract of sale was executed.

57. [147]

    In that regard, Mr Deiri deposes (see Mr Deiri’s affidavit sworn on 22 August 2019 at [60]) to a conversation with Jamil that he says took place in early October 2011:

58. [148]

    Mr Deiri’s evidence in that respect is that, when he agreed to pay for a $400,000 deposit for the land (again, he says as a sign of good faith), he (Mr Deiri) said that it would have to be a deferred balance for the deposit, to which Jamil said “[t]hat’s fine” (see Mr Deiri’s affidavit sworn on 22 August 2019 at [60]-[63]). Mr Deiri’s evidence is that he and Jamil agreed that Investments would pay the balance of the ($8 million) purchase price progressively, and that no interest would be charged unless Investments “pulled out” of the purchase altogether.

59. [149]

    Relevantly, there is in evidence a copy of a cheque dated 10 October 2011 drawn on a bank account in the name of “Deiri Nominees Pty Limited ATF the F Deiri Family Trust” made payable to “Micheal [sic] Sayour” and signed by Mr Deiri. The Deiri Parties say that this was the first of the thirteen payments in respect of the land/costs (i.e., one of 13) and that it represented the deposit payable under the contract of sale for the Broadway Site. There is in evidence a bank statement showing that that amount was debited from Deiri Nominees’ bank account on 11 October 2011. At this stage, Investments had not yet been incorporated (see at [193] below).

60. [150]

    Plaza complains that this payment was not disclosed by Mr Deiri to Moustafa and maintains that it was a bribe (indeed Plaza says that, so far as is known, this is the first “bribe” that Mr Deiri paid to Jamil). Plaza says that this is an example of the price of a bribe being “loaded into” a contract (using the terminology to be found in one of the leading cases on bribes, Hovenden v Millhoff (1900) 83 LT 41 at 42; [1900-3] All ER Rep 848 (Hovenden v Millhoff) per Smith J (Williams and Romer JJ agreeing at 43), pointing to the fact that (in late September 2011) Plaza had engaged Deicorp as builder of the retail development for a price of $40 million, in circumstances where it emerges from Jamil’s emails that Jamil had been negotiating with Mr Deiri and another would-be-contractor (it will be recalled, Dyldam) for a lower price for the overall development but the $40 million “price tag” remained the price in the replacement contract for Stage 1 entered into by the partnership with Deicorp. Plaza also notes that $400,000 is “neatly 1% of this price”.

61. [151]

    In this regard, and furthermore, the Sayour Parties say that there is no evidence that the payment of $400,000 was received by or on behalf of Plaza; that there is no record of where the “Micheal Sayour” cheque was deposited; and that attempts to find any trace of the payment have been unsuccessful, including by subpoena issued to the National Australia Bank (NAB) on which the $400,000 cheque was drawn. It is said that Jamil’s “known” bank accounts have been interrogated and no cheque deposit has been found; and that Moustafa has given discovery of all his bank accounts, both in Australia and internationally (and nothing has been found). It is said that the only other person associated with people in this case whose name is or has been Michael Sayour, or Moustafa, is Jamil’s eldest son “Moustie” and that subpoenas seeking copies of Moustie’s bank accounts to the Newcastle Permanent Building Society (NPBS) and CBA, respectively, have uncovered nothing.

62. [152]

    Nevertheless, what is clear is that this amount was debited from Deiri Nominees’ account and it is not disputed that Moustafa was also known as “Michael” Sayour. The characterisation of the payment of $400,000 as a deposit for the land is consistent with, inter alia, the contract for sale of land itself (see below) and it is described as such in email communications between Mr Deiri and Jamil (see, for example, the reference to this payment in Jamil’s later email to Mr Deiri). The Sayour Parties accept that payment of $400,000 is stated on the contract for sale of land and asserted to be the deposit paid on the purchase but they point out that, in equity, a receipt for consideration contained in the body of a deed is not conclusive. To my mind, however, at the very least, the acknowledgment contained in the contract for sale would arguably amount to the retrospective appropriation of that payment by Investments to the debt, assuming the payment was received by Plaza in some way or by some manner.

63. [153]

    Plaza notes that, according to the records in evidence, Moustafa attended project co-ordination meetings on 5 and 26 October 2011, but not the meeting on 12 October 2011 (presumably to dispel any suggestion that the “Micheal Sayour” cheque could have been given to Moustafa at the 12 October 2011 project meeting, though no such suggestion has here been made).

64. [154]

    On or around 14 October 2011, notice of determination of development application was given to Deicorp Constructions in relation to the excavation and bulk earthworks for the Broadway Site.

65. [155]

    Mr Deiri has deposed (see Mr Deiri’s affidavit sworn on 22 August 2019 at [54]) that, in October or November 2011, he agreed with Jamil to pay him $10,000 a month. These $10,000 monthly payments are some of the payments here impugned by Plaza as “bribes”.

66. [156]

    There is some inconsistency in the evidence as to what those payments were said to represent. For example, an 18 November 2011 email from Mr Deiri to an internal company accountant, Mr Hon Leong (as to which, see at [159] below) referred to an agreement to pay $10,000 monthly “until we settle”, which Plaza contends connects the payments clearly to the land purchase (and meant that such payments should on this assumption have continued until the final payment of the purchase price in 2013). Meanwhile, Mr Deiri’s affidavit evidence refers to an agreement to pay this amount as relating to Jamil’s work in relation to the leasing of the retail centre.

67. [157]

    On 18 November 2011 at 10.32 am, Jamil sent an email to Mr Deiri, with the subject header “Monthly arrangement”, stating:

68. [158]

    It will be recalled (see at [97] above) that the Westpac #202 Account was styled as a trust account and hence Plaza has argued (not only in the Estate Proceedings but also in the present proceedings) that moneys deposited into that account became impressed as trust moneys. If so, then the $10,000 monthly payments were held on trust for Plaza and, in that sense, it did receive the impugned payments.

69. [159]

    Mr Deiri forwarded Jamil’s email of 18 November 2011 to Mr Leong at 11.19 am that day, copied to Jamil, stating:

70. [160]

    Pausing here, while Jamil’s email of 18 November 2011 refers to “my” account for monthly payments, it also is clear from the details contained in the email that the account was an account in joint names (“Mr M & J Sayour”). Moreover, the email from Mr Deiri to Mr Leong makes reference to a “partnership” with “Jamil and his father”, albeit referring to setting “Jamil” up in our system to ensure he received “his” payment(s). The reference to the payments being “until we settle” is, I accept, suggestive of the payments relating to the purchase of the half share of the land (at least in a temporal sense). There is no explicit reference in the contemporaneous emails to these payments being made as compensation for or by reference to Jamil’s leasing work.

71. [161]

    It is also convenient here to clarify that this series of payments is different from the land/costs payments.

72. [162]

    The first such monthly payment (of which there were nine in all) was made at the end of November 2011.

73. [163]

    It seems that what transpired in relation to the acquisition of the Matthews Street Property (and Plaza complains that this was by the intervention of Jamil and Mr Deiri) was that the Matthews Street Property was in fact purchased not by Plaza but in the name of a newly incorporated company, Matthews Street Co, as trustee of a newly created unit trust (the Matthews Street Unit Trust), of which Moustafa says he had no knowledge.

74. [164]

    Mr Deiri has deposed that, in the second half of 2011, he had a conversation with Jamil to the following effect (see Mr Deiri’s affidavit sworn on 22 August 2019 at [84]):

75. [165]

    It seems that, on 3 November 2011, an application for registration of the ninth defendant (it will be recalled, Matthews Street Co) was lodged, through Parras & Associates (Mr Deiri’s accountants), naming, inter alios, Jamil as a director and Deiri Nominees and Plaza as its shareholders. Jamil later resigned as a director. There is also in evidence a document purporting to be a consent by Moustafa to his appointment as a director of the company. I understand that Moustafa maintains that the signature on this document is a forgery.

76. [166]

    Also on 3 November 2011, a deed purportedly establishing the Matthews Street Unit Trust (the Matthews Street Unit Trust Deed) was executed and Deiri Nominees and Plaza were noted as the subscribers to all available units. Again, Moustafa says that the purported Moustafa signatures on behalf of Plaza and Matthews Street Co on those documents are forgeries. A subscription for units was purportedly also signed on behalf of Plaza.

77. [167]

    Also on 3 November 2011, at 11.00 am (by reference to what appears to be a handwritten note), it seems that Mr Naef (it will be recalled, Moustafa’s solicitor) was informed by Jamil that the name of the purchaser was to be changed to Matthews Street Co.

78. [168]

    Two cheques were drawn, each for $14,750, one by Biomed (signed by Jamil who was an authorised signatory on Biomed’s account) and the other by Deiri Nominees (signed by Mr Deiri). Both were drawn payable to the purchaser’s solicitor, Equity Lawyers. It seems that those cheques were not presented for payment. I interpolate to note that this may have been because Mr Naef’s firm did not have a trust account (which might explain why the cheques were not presented for payment).

79. [169]

    On 7 November 2011, two further cheques were made out to Equity Lawyers, in the same amounts by the same drawers. The four cheques together amounted to 10% of the purchase price. It seems that these cheques were also not presented.

80. [170]

    On 30 November 2011, two further cheques were drawn by the same drawers, each for $29,500, apparently superseding the earlier cheques. Notably, this was the same day as the making of the first $10,000 monthly payment (see at [162] above).

81. [171]

    On 2 December 2011, contracts for the sale of the Matthews Street Property were exchanged in the name of Matthews Street Co as purchaser (see, for example, Mr Deiri’s affidavit sworn on 22 August 2019 at [91]).

82. [172]

    On 16 December 2011, an ASIC Form 484 was signed by Mr Deiri, notifying the appointment of Moustafa as a director of Matthews Street Co on 3 November 2011.

83. [173]

    Later in December 2011, HWLE wrote to Deicorp, enclosing the originals of some of the above documents (see, for example, Mr Deiri’s affidavit sworn on 22 August 2019 at [89]).

84. [174]

    Returning then to the Broadway Site, it is apparent that, on or before 18 November 2011, Mr Deiri had sought advice from HWLE as to the structure of the proposed Broadway Plaza transaction.

85. [175]

    By letter dated 21 November 2011, Mr Ari Schachna (a partner of HWLE in Melbourne) wrote to Mr Deiri, providing advice as to the structure for the transaction. Pausing here, I note that the letter contained a section in it headed “Matthews Street”. The Deiri Parties say that this is consistent with Mr Deiri’s evidence that the Matthews Street Property was connected with the Broadway Partnership (although I note that it does not appear that it ultimately became part of the Broadway Development as such).

86. [176]

    Relevantly, as to the Broadway Site, Mr Schachna recorded, in his memorandum of advice, his instructions (presumably given to him by or on behalf of Mr Deiri) as to the background to the matter as including that: Sayour Investments (i.e., Plaza, as it later became known) as trustee of the Sayour Family Trust was the current registered proprietor of the land to be developed; it was proposed that a discretionary trust called the “Broadway Deiri Trust” would acquire a 50% interest in the land and another entity related to Deicorp would manage the “development and construct [sic]” of the building on the land; the development would consist of residential and commercial retail stratum; it was proposed to “[s]tratum subdivide” and sell the residential component of the development and retain the commercial retail component as an investment asset; and that Plaza and the Broadway Deiri Trust proposed to share in the profits and losses of the development on an equal (50%) basis.

87. [177]

    The letter noted, inter alia, the proposal that the name of the trustee of the Sayour Family Trust would be changed to “Broadway Plaza” (see at [2(a)]); that the sale of a 50% interest in the land would be by way of a contract of sale of land; and that the land would be developed through an unincorporated joint venture arrangement which should be treated as a partnership for tax purposes.

88. [178]

    The letter also recorded that the company, Matthews Street Co, had purchased a certain portion of the property in its capacity as trustee of the Matthews Street Unit Trust; that the unit holders in that unit trust were a discretionary trust associated with the Sayour family as to 50% and a discretionary trust associated with the Deiri family as to 50%; and that the unit trust would conduct a development of the property for the purpose of leasing and not to be sold off the plan.

89. [179]

    Mr Schachna later forwarded a copy of that memorandum (referring to a telephone conversation with Mr Deiri the previous Friday morning) to Mr Deiri and copied it to Mr Nicholas Parras (again, it will be recalled, Mr Deiri’s accountant) and to Ms Wendy Thornton (also Mr Deiri’s accountant) and Mr Elias Stephen (of HWLE).

90. [180]

    By email on 22 November 2011 to Mr Schachna and Mr Deiri, Mr Stephen responded that “[n]ow that the structure of the transaction is confirmed, as recorded in Ari’s note last night, we can proceed to finalising the property documentation”.

91. [181]

    This email also noted that Investments was to purchase one half of the property for $8 million (requesting confirmation of the price); that settlement of the acquisition transaction was to be effected on settlement of the Westpac financing (Westpac, at this stage, still being the contemplated financier, not CBA); and asking what portion of the price would be vendor financing. As to the latter, it was said that this would be documented by a simple loan agreement (asking what was the interest rate) and noting that the loan would be repayable on 30 June 2012 to allow completion of another project (referred to as the “Redfern RSL project”).

92. [182]

    Furthermore, the email from Mr Stephen raised the question whether the vendor finance was to be secured by caveat or second mortgage in favour of the Sayour Family Trust, noting that this would need to be disclosed to Westpac and advising that a caveat would be easier because a second mortgage would require a deed of priority, which would be time consuming and costly, and that banks “these days” generally did not allow mezzanine or second mortgage financing. As to the joint venture arrangement, the email noted that Mr Stephen needed to discuss further capital injections in the project and exit by the respective trusts.

93. [183]

    Pausing here, the then suggested price of $8 million is consistent with the parties (or at least the Sayour interests) proceeding, at that stage, on an understanding or assumption that the Broadway Site was valued at $16 million (see Moustafa’s evidence as to Jamil having referred to a valuation at $16 million at [119] above), so it is conceivable that this was the price discussed at some stage in relation to the purchase of a half interest in the site. Certainly, it is reasonable to infer that Mr Schachna obtained the understanding that a price of $8 million was being considered from Mr Deiri (since there is no suggestion that Moustafa had had any involvement with Mr Schachna and it is implausible that Mr Schachna came up with that figure of his own volition). Ultimately, however, the contract proceeded with the price as being $6 million and there was a collateral agreement in relation to the additional $2 million. The reason for this change is unclear. Moustafa’s explanation for it in his affidavit evidence seemed to relate to the excavation works, but this was not consistent with his oral evidence. It may well be referable to Moustafa’s apparent need for a $2 million payment to be made by 30 June 2012 for the purpose of the purchase of some other land in Lebanon.

94. [184]

    In any event, Mr Deiri’s evidence is that he telephoned Mr Stephen on about 23 November 2011 and asked him to prepare a contract of sale for the Broadway Site with a deferred settlement; that Mr Stephen said there needed to be a loan and suggested a 9% per annum interest rate (see Mr Deiri’s affidavit sworn on 22 August 2019 at [64]). Mr Deiri goes on to depose that he spoke to Jamil and told him that there would need to be a loan agreement with a 9% per annum rate; that Jamil agreed but that he said he would not actually charge interest unless Mr Deiri did not proceed (see Mr Deiri’s affidavit sworn on 22 August 2019 at [65]). Mr Deiri’s evidence is that he then telephoned Mr Stephen to instruct him to go ahead and draft the contract of sale and loan agreement with a purchase price of $6 million and 9% interest per annum (see Mr Deiri’s affidavit sworn on 22 August 2019 at [66]). That is consistent with the contemporaneous record by Mr Stephen of his instructions.

95. [185]

    By email on 23 November 2011, Mr Stephen wrote to Mr Schachna and Mr Deiri, referring to a conversation with Mr Deiri and advising that “[a]ll is agreed” by Mr Deiri with Mr Schachna’s letter, but for two things: that he (Mr Deiri) wanted his company to be Broadway Plaza (No 2) Pty Ltd and the Sayour group company to be Broadway Plaza (No 1) Pty Ltd; and that he was querying the ownership position for Mr Deiri in the Matthews Street Unit Trust. Specifically, the email noted:

96. [186]

    Mr Stephen advised Mr Deiri that his associate (Ms Gray) would work with him in respect of the property documents.

97. [187]

    Pausing here, this email is consistent with Mr Deiri’s understanding being that the sum of $400,000 had already been paid toward the purchase price; and it clearly records Mr Deiri’s instructions to HWLE that the interest rate would be 9% per annum (not 9% per month).

98. [188]

    By email sent at 2.41 pm on 23 November 2011, Mr Deiri instructed Mr Stephen and Mr Schachna that Jamil had “changed with [sic] mind” and requested him to change Sayour Investments to Broadway Plaza and to set up Mr Deiri’s company to be Broadway Plaza Investments Pty Ltd (i.e., Investments).

99. [189]

    The instructions given by Mr Stephen to Ms Gray at that stage were that the documents needed to be fairly simple; and that “there likely would be no negotiations but likely many telephone calls”. I interpose to observe that the basis on which Mr Stephen made that assumption is not made clear in the evidence (noting, for example, that some file notes were not admitted, over objection, while others were admitted with redactions – see, for example, at T 237.1-9).

100. [190]

     Mr Deiri has deposed that he had a conversation with Mr Stephen, relevantly as follows (see Mr Deiri’s affidavit sworn on 22 August 2019 at [64]):

101. [191]

     Furthermore, Mr Deiri has deposed to the following conversation with Jamil (see Mr Deiri’s affidavit sworn on 22 August 2019 at [65]):

102. [192]

     Inconsistently (at least on its face) with the instructions recorded by Mr Stephen, HWLE then prepared a loan agreement (based, by reference to its header, on a banking and finance precedent) which specified an interest rate of 9% per month. It is this which has led to the claims by and against HWLE in these proceedings.

103. [193]

     Consistently with the record of Mr Deiri’s instructions that I have outlined above, Investments was incorporated on or around 25 November 2011; and, on 29 November 2011, the name change from Sayour Investments to Plaza was registered.

104. [194]

     On 29 November 2011, Jamil sent an email to Mr Deiri saying:

105. [195]

     Returning to the Arncliffe Site, which is within the Rockdale Council area, it is relevant to note that the Rockdale LEP was amended in 2011 and gazetted in December 2011. Mr Zafiropoulos gives evidence that, by reason of that gazettal coming to his attention, he undertook research into the industrial buildings in the Arncliffe area (though, I observe here, that there seemed little in the way of work product arising from, or evidencing, any such research – see particularly at T 1350.16ff). Hence this rests largely on Mr Zafiropoulos’ assertions.

106. [196]

     Plaza (as trustee for the Sayour Family Trust) executed another Power of Attorney in favour of Jamil on 8 December 2011 (the 8 December 2011 Plaza Power of Attorney). It contained the same terms, relevantly, as the Power of Attorney of 30 May 2010 (as to which, see at [102] above).

107. [197]

     On 9 December 2011, Mr Deiri sent an email to Mr Bennett of CBA, copied to Jamil, organising a meeting with the bank, confirming a meeting with Mr Bennett and “my JV partner Jamil”.

108. [198]

     Consistently with the above email, it seems that, on 12 December 2011, there was a meeting at Biomed, attended by Moustafa, Jamil and two officers of the CBA (Mr Michael Bennett and Mr Nicholas Jackson). Moustafa deposes that he was given a list of documents that CBA needed from him and that he said he would get Jamil to send them. He says that he later told Jamil to get the documents together for CBA (see Moustafa’s affidavit sworn on 16 September 2019 at [202]-[209]; [212]).

109. [199]

     After the meeting on 12 December 2011, Jamil sent an email to Mr Bennett of CBA providing asset and financial information of Biomed and Moustafa. Plaza here notes that it would seem that no financial information of Jamil was either requested or provided.

110. [200]

     The email setting out the asset and financial information of Biomed and Moustafa stated:

111. [201]

     By letter dated 20 December 2011, Mr Bennett (of CBA) forwarded to each of Plaza and Investments a “Discussion Paper” (the CBA Discussion Paper) outlining broad terms and conditions for the construction funding and refinance at the Broadway Site. The facility limit for Stage 1 was up to $45.954 million, comprising Tranche A (up to $5.5 million for excavation and early works package) and Tranche B (up to $45.954 million, inclusive of Tranche A, for construction of parking spaces and two levels of retail facilities.

112. [202]

     Stage 2 involved the refinancing of those facilities. The Facility Limit was estimated at $34.3 million, subject to further due diligence.

113. [203]

     At about 4.45pm on 21 December 2011, the quantity surveyors appointed by CBA (Mr Hammond) prepared a file note of a telephone call that he had received from Mr Deiri which suggests that his quantity surveyor report was to be sent to CBA and that construction was planned to commence at the Broadway Site by 9 January 2012. Mr Hammond’s file note records that a construction certificate for early works was expected on 24 December 2011.

114. [204]

     By email on 21 December 2011 at 6.26 pm, Mr Deiri forwarded to Mr Bennett (copied to Mr Jackson and Jamil) a letter from the Broadway Partnership confirming acceptance of the Discussion Paper and attaching a signed “Mandate of the Discussion Paper” together with a copy of the construction certificate that Mr Deiri said had been issued that day for the excavation and shoring. It may be noted that this appears to be the first time that the Broadway Partnership letterhead was used. Moustafa says that the “Moustafa” signature on this document is not his signature (see T 377.27-42); and the forensic expert, Mr Dubedat, confirms that it is not a genuine signature.

115. [205]

     On 21 December 2011, Ms Gray of HWLE was asked by Mr Stephen of HWLE to print out the contract for sale and loan agreement so that he could take it to Mr Deiri (see Ms Gray’s affidavit sworn 9 October 2019 at [21]). Ms Gray also prepared a covering letter. Execution copies of the contract for sale were forwarded by courier to Mr Deiri. The execution copies of the contract for sale given to Mr Deiri, included the following information on the front page: the “Vendor” (Plaza); the property details (1-9 Broadway Punchbowl); the “Purchaser” (Investments); the purchaser’s solicitor’s details (HWLE); the “Price” ($6 million); the “Deposit” ($400,000); and the balance of the purchase price ($5.6 million). Annexed to the contract for sale was the loan agreement referred to in special condition 43 (see below). The letter dated 21 December 2011 from HWLE refers to enclosing execution copies of the contract for sale and the loan agreement. The contract for sale provided for the sale from Plaza to Investments of a half interest in the Broadway Site.

116. [206]

     Mr Deiri has deposed that he took the unsigned contract and loan agreement to Jamil and Moustafa at Biomed for signing a few days after Christmas 2011. Mr Deiri’s evidence is that he signed the contract and the loan agreement and handed the documents to Jamil; and that he does not recall Jamil providing to him an executed copy. Plaza’s counterpart of the contract for sale, signed by Moustafa, is in evidence. The copy put into evidence by Plaza did not contain a handwritten annotation that it is accepted was signed at the time of execution of the contract for sale.

117. [207]

     Also on 21 December 2011, the second monthly payment of $10,000 was paid to the Westpac #202 Account. As adverted to earlier (see at [162] above), there were nine such payments in total.

118. [208]

     On 22 December 2011, Moustafa (on behalf of Plaza) and Mr Deiri (on behalf of Investments) signed an “Application and Authority for Business Accounts” to open a partnership account with CBA. Moustafa does not dispute his signature on those documents.

119. [209]

     The terms of operation of the account were recorded in a series of emails commencing on 21 December 2011, when Mr Jackson (of CBA) sent an email to Mr Deiri in which he returned the account opening forms and gave instructions on the completion of those forms (Ex 15 p 150). In one of the emails in this chain of communication, Mr Jackson stated:

120. [210]

     The partnership bank account (#9176) (the CBA Partnership Account) was operative by at least 1 February 2012, since that was the date on which the first cheque was drawn on the account. I note that Plaza says it was opened by at least 4 January 2012 (see the communications from CBA in Ex 15 pp 149-151, which refer to the “new account”); but nothing relevantly turns on the exact date of opening of the account.

121. [211]

     The authorised signatories were Moustafa and Mr Deiri. Relevantly, the terms of the appointment of the signatories in this application form contained the following statement by the partners as to the method of operation of the account: “Any two of the authorised signatories specified in section 5 can operate on the above account(s)”.

122. [212]

     More specifically, Section 5 named Moustafa and Mr Deiri as the authorised signatories and contained their signature specimens. Section 6 contained the “declaration and acknowledgement” of the partners.

123. [213]

     According to Moustafa (see Moustafa’s affidavit sworn on 31 May 2019 at [116]), in late December 2011, he told Jamil that he needed $2 million to buy some land in Lebanon by June.

124. [214]

     Pausing here, this June 2012 date is consistent with the time frame put on the sunset date for completion of settlement of the purchase of the 50% interest in the Broadway Property as per Mr Stephen’s 23 November 2011 email (see [185] above), but that seems to be no more than a coincidence since Mr Stephen’s email recorded the 30 June 2012 sunset date as referable to the time for settlement of Westpac development finance (it will be recalled that, at that stage, Westpac was the proposed financier).

125. [215]

     On 27 December 2011, Investments and Plaza signed counterpart contracts for sale of land (the Law Society’s 2005 standard edition) at a purchase price of $6 million. The contract specified a deposit of $400,000, with the balance of $5.6 million payable on completion. Special Condition 42 contained an acknowledgement by the vendor that the purchaser had paid the deposit to the vendor prior to the date of the contract. Annexed to the contract for sale was a pro forma loan agreement, in effect providing for a loan to the purchaser (Investments) of the balance due on completion of the contract of sale ($5.6 million).

126. [216]

     Special condition 43 of the contract of sale (headed “Condition precedent”) provided as follows:

127. [217]

     The contract of sale was signed by Mr Deiri on behalf of Investments and by Moustafa on behalf of Plaza. I understand that Moustafa does not dispute his signature on this document. The contracts were stamped as being exchanged on 20 January 2012.

128. [218]

     Mr Deiri’s copy of the contract for sale (as annexed to his affidavit sworn on 22 August 2019) included a handwritten addendum, signed by Mr Deiri, to the annexed pro forma loan agreement in the following terms:

129. [219]

     Curiously, it appears that the copy of the contract for sale exhibited to Moustafa’s sworn on 31 May 2019 did not contain that handwritten clause (see Mr Deiri’s affidavit sworn on 22 August 2019 at [72]-[73] as to this additional clause) – rather, page 9 of the draft loan agreement as exhibited to Moustafa’s affidavit is blank. Plaza nevertheless accepts that the handwritten cl 8.8 in the pro forma loan agreement was evidently to be read with the contract for sale of land.

130. [220]

     Investments executed the pro forma loan agreement on 27 December 2011. Relevantly, Plaza did not. There was also a handwritten note signed by Mr Deiri and Moustafa, and dated 27 December 2011, which provided:

131. [221]

     Plaza here emphasises that the contract for sale documents were presented to Moustafa (not Jamil) for execution and that the handwritten changes were made on the occasion of execution of the documents by negotiation with Moustafa.

132. [222]

     The Broadway Partnership was registered on the Australian Business Register on 18 January 2012.

133. [223]

     I interpose to note that, in the Broadway Proceedings, the Deiri Parties contend for a factual finding that this partnership came into existence earlier than January 2012 when it was formally registered (see at [1413]ff below).

134. [224]

     On 23 January 2012, a document entitled “Approved Commercial Terms and Conditions”, prepared by CBA, was signed by Moustafa, Mr Deiri and Mr Bennett of CBA in relation to “Construct and hold of Shopping Centre located at 1 The Broadway, Punchbowl”. The document contained a term sheet setting out a summary of approved terms and conditions (of the kind that had been contemplated in the CBA Discussion Paper – see at [201] above) but did not purport to specify or summarise all the provisions that were to be contained in the financing documents. The document stated that, except for the provisions in relation to confidentiality and the borrower’s obligation to pay CBA’s legal and other costs and expenses, “no party will be bound unless and until final terms are agreed and formal documentation is signed”.

135. [225]

     The Approved Commercial Terms and Conditions involved a construction loan advanced by way of a facility of $45,597,000 for a term of 26 months for the Stage 1 construction of the retail complex and car park, following which that facility was to be converted to an investment facility of $34,300,000 for a 36 month term. Investments notes that the description of Tranche B of the Stage 1 amount (which included a funding table allocating amounts in respect of client contribution and bank funding to particular tasks) did not include a contribution for excavation works in the funding table (but I note that the purpose of Tranche A of Stage 1 was noted as being for bulk excavation and early works).

136. [226]

     On page 2 of that document, there is a summary of the amounts involved for the facilities, which includes the following summary of Stage 1:

137. [227]

     On page 3 of the approved terms and conditions, the purpose of the facility was described, in relation to Stage 1, as follows:

138. [228]

     There was also an acknowledgement by the borrower in terms that:

139. [229]

     I will return to consider this in due course.

140. [230]

     As noted (see at [210] above), the CBA Partnership Account was opened by 1 February 2012.

141. [231]

     I note that, where reference is made in these reasons to numbered cheques, it is a reference to the cheques as enumerated in the lists of cheques prepared for the purposes of these proceedings.

142. [232]

     The first cheque drawn on the CBA Partnership Account (cheque #101), was for the sum of $19,250.00 and was drawn payable to the real estate agents, Colliers, in respect of advertising connected to the Broadway Development. Cheque #104 (which CBA notes is omitted from Plaza’s list of cheques in Schedule A to its points of cross-claim) was in the sum of $77,234.50 and paid to Biomed (it is said by way of reimbursement for expenses incurred with respect to the Broadway Development).

143. [233]

     On 1 February 2012, Plaza changed the address of its registered office to that of Parras & Associates (it will be recalled, Mr Deiri’s accountants) and appointed that firm as its registered agent. The minute recording the resolution for the address change was signed by Jamil (dated 1 February 2012) and the ASIC form recording the appointment of the registered agent was in the name of Moustafa but signed by Jamil.

144. [234]

     On 7 February 2012, the tender for the design and construction of the proposed retail/residential development (see at [139] above) appears to have been re-submitted (this time on slightly different letterhead and in the name of “DeiCorp Constructions (NSW) Pty Ltd” with a different ABN (ABN 55 138 180 337) – that being the ABN for the entity now known as Deicorp), addressed to “Broad Way Plaza Punchbowl Plaza” and marked to the attention of Jamil. The tender price was the lump sum of $40 million excluding GST.

145. [235]

     Pausing here, the seeming lack of attention to detail on the tender submissions (in that no one seems to have suggested that there was to be a new building company responsible for the design and construction but a different corporate entity was there named) is perhaps indicative of the manner in which documentation was prepared in the Deicorp office (or the Deicorp Entities’ offices). This is an issue that is not irrelevant when it comes to the vexed question of cheque preparation (as to which I say more in due course). I say this because the two tender submissions (of 26 September 2011 and 7 February 2012, respectively), other than for the letterhead logo, addressee and entity disclosed as the tenderer, were relevantly identical even down to the typographical error in the lump sum price (“fourty million dollars”). Similarly, there was seeming inattention to detail in the names typed on the various progress claims (the first dozen or so being “Broad Plaza” or “Broad Plaza Investments”, not “Broadway”, and Moustafa’s name being printed as “Mustafa”, not “Moustafa”).

146. [236]

     Annexure A to the “Australian Standard General Conditions of Contract for Design and Construct” signed by Plaza, on acceptance of the 7 February 2012 tender, refers to the “Contractor” as “Deicorp Constructions (NSW) Pty Ltd” with an ACN corresponding to the ABN for the 2012 tendering entity (ACN 138 180 337) (i.e., Deicorp, not Deicorp Constructions as here defined – see at [11] above).

147. [237]

     In any event, the 7 February 2012 tender submission for construction of Stage 1 of the Broadway Development (issued to the partnership entity and not simply to Plaza) was accepted on 8 February 2012. On that date, a new construction contract was executed by Mr Deiri on behalf of Investments and Moustafa on behalf of Plaza, for the car park and shopping centre component (the Stage 1 Construction and Design Contract). It is noted that this contract replicated the terms of the initial construction contract, but was with the partnership entity “Broadway Plaza Punchbowl” (ABN 19 494 808 795) with a re-executed “Formal Instrument of Agreement” referring to the 7 February 2012 tender submission. Again, I understand that Moustafa accepts that his signature on this document is genuine.

148. [238]

     Investments notes that the letter from Moustafa to Deicorp Constructions advising that the tender is accepted by Plaza refers to the tender of 26 September 2011 and says that this appears to be an error and that it should read 7 February 2012.

149. [239]

     Plaza also points out that the Stage 1 Construction and Design Contract of 8 February 2012 included the sum of $4,559,472 for groundworks and shoring, exclusive of GST. Plaza says that, under the partnership terms as between the partners, it was the responsibility of Investments to procure this work and therefore, it says, to pay for it.

150. [240]

     As I have just adverted to, the Stage 1 Construction and Design Contract between the Broadway Partnership and Deicorp is constituted by a formal instrument of agreement to the contract dated 8 February 2012, which provides that the contract sum is $40 million. The formal instrument of agreement does not stipulate whether this price is inclusive or exclusive of GST. Meanwhile, the tender submission stipulates that the lump sum price is exclusive of GST. Relevantly, Item 11 of Part A of Stage 1 Construction and Design Contract provides that the project requirements are set out in that tender submission dated 7 February 2012.

151. [241]

     By that tender submission, Deicorp offered to carry out the Stage 1 design and construction works for the retail shopping centre and car park at the Broadway Site for the lump sum price of $40 million, comprised of “Construction Cost” ($38,547,305.00) and “Provisional Sums Allowance” ($1,452,695.00). That $1,452,695.00 allowance for provisional sums as contemplated by the Stage 1 Construction and Design Contract is specified in an attachment to the tender.

152. [242]

     It is relevant to note various of the provisions of the general conditions accepted by the parties in connection with the Stage 1 Construction and Design Contract.

153. [243]

     “Contract Sum” was there defined as meaning:

154. [244]

     For the Deicorp Entities, it is said that these are lump sum contracts but that the lump sum is plus variations. Meanwhile, for Plaza it is said that the cap on quantum means that the rates cannot be exceeded.

155. [245]

     There are also different definitions of “Date for Practical Completion” and “Date of Practical Completion” as contained in those general conditions:

156. [246]

     Relevantly, “direction” is defined as including “agreement, approval, authorisation, certificate, decision, demand, determination, explanation, instruction, notice, order, permission, rejection, request or requirement”.

157. [247]

     “Practical Completion” is defined as:

158. [248]

     “Superintendent” and “Superintendent’s Representative” are defined as follows:

159. [249]

     Clause 11 (headed “Provisional Sums”) provides:

160. [250]

     The Deicorp Entities point to this clause as meaning that, in respect of a provisional sum which was included in the contract, there is an entitlement on the part of Deicorp Constructions to be paid the amount that it (i.e., Deicorp Constructions) paid to that sub-contractor or supplier plus 15% (being the additional percentage set out in Item 45 of Annexure Part A to the contract).

161. [251]

     Clause 12, headed “Latent conditions”, includes within it cl 12.3:

162. [252]

     Clause 23 expressly contemplates that the Superintendent may give a direction orally (except where the contract otherwise provides), but provides that the Superintendent shall as soon as practicable confirm it in writing. As noted at [246] above, the definition of “direction” in cl 2 is expressed in broad terms.

163. [253]

     As adverted to, cl 24 permits the Superintendent (being, on this contract, Mr Deiri himself) to appoint a “Superintendent’s Representative”, to whom could be delegated the power to exercise any functions (but that not more than one Superintendent’s Representative shall be delegated the same function at the same time). The Deiri Entities refer to this as relevant to the validity of the role played by Mr Hammond (CBA’s quantity surveyor) in relation to the Stage 1 and Stage 2 construction contracts on the Broadway Development; and they say that it illustrates the width of the power and discretion conferred upon the Superintendent.

164. [254]

     Clause 35.5 of the Stage 1 Construction and Design Contract, which contains a number of relevant sub-paragraphs, deals with the extension of time for “Practical Completion”.

165. [255]

     Clause 35.6 provides for liquidated damages for delay in reaching practical completion (at the rate stated in Annexure Part A). Relevantly, the liability of the Contractor under cl 35.6 is limited to the amount stated in Annexure A Part A (per cl 35.7). Clause 35.8 provides for a bonus for “Early Practical Completion”.

166. [256]

     Clause 40 deals with variations. Clause 40.1 gives the power to direct variations to the Superintendent but does not mandate that any such direction must be in writing. The clause sets out provisions for the pricing of the variation (cl 40.3), variations for the convenience of the Contractor (cl 40.4) and for the valuation of variations (cl 40.5).

167. [257]

     Clause 42 deals with certificates and payments:

168. [258]

     Clause 42.3 (headed “Certificate of Practical Completion”) provides that:

169. [259]

     Clause 42.4 (headed “Effect of Certificate”) provides that”

170. [260]

     Clause 42.5 (headed “Final Payment Claim”) provides that:

171. [261]

     On 15 February 2012, officers of the CBA met with Moustafa and Mr Deiri, explained the terms of the funding, and finance for the first stage of the development (comprising the car park and shopping centre) in the amount of $45.6 million (under a “Cash Advance Facility Agreement” – to which I will refer as the First Facility Agreement). Moustafa accepts that he signed the First Facility Agreement on behalf of Plaza.

172. [262]

     Clause 13 of the First Facility Agreement authorised CBA to debit all fees and interest payable on the First Facility Agreement to the CBA Partnership Account (as defined at [210] above).

173. [263]

     As part of the funding requirements, Mr Hammond of Napier & Blakeley was appointed as a quantity surveyor to approve progress claims before CBA would pay drawdowns under the facility.

174. [264]

     Clause 13(b) of the First Facility Agreement provided for “Line Fees” of 1.59% per annum monthly in advance on the “Accommodation Limit” for Tranche A. The Accommodation Limit for Tranche A was defined in cl 1.1 as $5.5 million.

175. [265]

     It was also a term of the First Facility Agreement that payments were only to be made pursuant to “Accommodation Notices” in the form prescribed in the schedule to that agreement and conforming with cl 3.2, which prescribed various requirements (including that each such notice had to be signed by one nominated authorised officer on behalf of each of Plaza and Investments, or by a director or secretary of each). More specifically, cl 3.2 relevantly provided:

176. [266]

     “Borrower” is defined under the “Parties” section of the First Facility Agreement to mean Plaza and Investments. The initial notice given to CBA authorising accommodation notices contained the specimen signatures of Mr Deiri and Moustafa and then provided:

177. [267]

     On 20 February 2012, Mr Deiri (on behalf of Investments) and Moustafa (on behalf of Plaza) executed a number of other instruments, including mortgages, company charges and deeds of guarantee. One of those instruments dated 20 February 2012 was a “Business Loan Authority (Borrowers)” directing CBA to pay any amount drawn on the facility only into the CBA Partnership Account.

178. [268]

     Earlier, on 15 February 2012, a CBA “Authority to Accept Facsimile Instructions” form was executed by the partners.

179. [269]

     On 22 February 2012, template “Accommodation Notice” on Plaza letterhead was signed by Moustafa and Mr Deiri. Pausing here, there was therefore at all relevant times (as the Deiri Parties emphasise) a signed template for accommodation (or drawdown) notices to the CBA in relation to the Broadway Development. However, as things turned out, that template was in fact not used. There were at least two (perhaps more) versions of the template used for the accommodation notices and progress claims (see below).

180. [270]

     By letter dated 23 February 2012, the first progress certificate was issued by Napier & Blakeley certifying Progress Claim 1 (PC 1).

181. [271]

     On 29 February 2012, the first drawdown on the First Facility Agreement, in an amount of $1,240,165.00, was paid to Deicorp on account of building costs for Stage 1 of the Broadway Development. There appears to be no copy of the accommodation notice issued for this payment.

182. [272]

     Also, on 29 February 2012, Mr Deiri sent an email to Landerer & Company, copied to Jamil, apparently referring to a discussion on that day (and, relevantly placing the agreement between the partners as occurring back in early November 2011):

183. [273]

     On 7 March 2012, Moustafa attended what seems to have been the fortieth coordination meeting (Broadway Coordination Meeting No 40). Plaza points out that Moustafa received reports from Jamil from time to time as to progress of the construction and ongoing costs; and that Moustafa also attended the building site from time to time, in the company of Jamil and (at least at times) Mr Deiri.

184. [274]

     On 20 March 2012, Jamil received advice from a solicitor (Mr David Malouf of Landerer & Company) raising a query as to whether the Power of Attorney that was held by Jamil authorised him to execute agreements for lease or leases. Mr Malouf advised that a fresh power of attorney should be granted to make this clear (see Ex 15 at p 197). Mr Malouf in that email stated:

185. [275]

     On 23 March 2012, Plaza formally revoked the 8 December 2011 Plaza Power of Attorney (referred to at [196] above) that had been granted to Jamil.

186. [276]

     On 26 March 2012, further Powers of Attorney were executed in favour of Jamil, expressly authorising leasing. It seems that Plaza’s Power of Attorney was registered on 30 March 2012 (the 26 March 2012 Plaza Power of Attorney).

187. [277]

     The 26 March 2012 Plaza Power of Attorney (as did the later Power of Attorney of 4 February 2013 – see at [333] below) referred in terms to leasing (but the Deiri Parties point out that they do so in inclusive terms), adding to the text of the earlier Powers of Attorney the following:

188. [278]

     Around this time, according to Mr Deiri, Jamil telephoned him and told him that Moustafa had given him a “full” power of attorney. Mr Deiri said that Jamil gave him a copy of this a month later (see Mr Deiri’s affidavit sworn on 22 August 2019 at [113]-[114]). I note that Mr Deiri, in cross-examination disavowed having relied on the power of attorney (see, for example, at T 859.45).

189. [279]

     It appears that the completion of the purchase of the Matthews Street Property took place on 4 April 2012 (after, apparently, the vendor had issued a notice to complete). Equity Lawyers sent a facsimile transmission with cheque directions on 30 March 2012. The balance of the purchase money was supplied in the form of bank cheques and some small cheques drawn on the account of Biomed. The bank cheques were supplied by the Bank of Sydney. It seems that Jamil had transferred over $141,000 between February and April 2012 into an account in his name with the Bank of Sydney. The sum of $130,000 was withdrawn from Biomed’s account on 2 April 2012 with the entry “payment 14 Matthews Street”. This money covered in part the issue of the bank cheques; the balance was obtained from a term deposit (which Jamil terminated before the expiry of its term) that had been held with the Bank of Sydney since at least February 2011.

190. [280]

     Also on 4 April 2012, there was an email exchange between Jamil and Mr Deiri (and Mr Leong) as to the monthly payments. Jamil sent an email on that date to Mr Deiri asking that Mr Leong be reminded to effect the monthly payment “tomorrow”. Mr Deiri, shortly after this, sent an email to Mr Leong (which the Sayour Parties say is indicative that the payment was for Jamil’s benefit), stating, “[h]i Hon, can you please stay on top of the monthly payments for Jamil” (my emphasis).

191. [281]

     As noted above (at [279]), 4 April 2012 was the day of completion of the Matthews Street Property purchase.

192. [282]

     Mr Deiri’s evidence (as adverted to at [17] above) is that, from about 1 May 2012 to 25 September 2013, he paid the balance of the purchase price for Investments’ 50% interest in the Broadway Site in instalments. He says that some payments were by cheque and some by domestic or international transfer, including to Moustafa’s overseas account in Lebanon. Mr Deiri’s evidence is that he made each payment in accordance with Jamil’s instructions.

193. [283]

     Relevantly, Mr Deiri also says that, after the final payment in September 2013, Moustafa never complained of any money owing until Plaza filed its second cross-claim in December 2017.

194. [284]

     On 28 April 2012, Moustafa departed Australia for a trip to Lebanon. While he was overseas, a number of payments were made to his bank accounts in Lebanon (see below).

195. [285]

     On 1 May 2012, Deicorp Constructions sent Moustafa the sum of $500,000 via international telegraphic transfer to Blom Bank in Lebanon. Mr Deiri’s evidence is that he told Jamil he wanted to make a payment of that amount towards the purchase price and that Jamil directed him to transfer it to the Lebanon bank account (see Mr Deiri’s affidavit sworn on 22 August 2019 at [118]-[119]). Investments says that this represented the second of thirteen payments towards the land and the additional costs that it had agreed to pay (i.e., two of 13).

196. [286]

     Moustafa’s evidence is that, between April and August 2012, while he was overseas, Jamil telephoned him and said that Mr Deiri had sent $500,000 (see Moustafa’s affidavit sworn on16 September 2019 at [67]).

197. [287]

     On 15 June 2012 (two weeks before the payment for the full purchase price for the Broadway Site was due under the Contract for Sale), Jamil sent an email to Mr Deiri, stating:

198. [288]

     Pausing here, this relatively contemporaneous email corroborates Mr Deiri’s evidence that the sum of $400,000 was paid towards the price for the land and is consistent with the acknowledgement in the contract of sale (see at [215] above) that a deposit of $400,000 had been paid; and confirms that the $500,000 payment to Lebanon was also a payment relating to the acquisition of the land. The email stated that the balance was $7.1 million and requested that Mr Deiri transfer $1.5 million to Moustafa’s overseas account and $200,000 to “my acc” (specifying Jamil’s Bank of Beirut, now Bank of Sydney #414 Account). Jamil further stated that:

199. [289]

     On 9 July 2012, Mr Deiri drew a cheque on CP Redfern’s account payable to Jamil in the sum of $200,000. This was deposited to the Westpac #202 Account with a small addition on 10 July 2012.

200. [290]

     Investments says that this is the third of the land/costs payments (i.e., three out of 13).

201. [291]

     Meanwhile, on 3 July 2012 (before the ninth monthly payment for August 2012) was due, Jamil sent Mr Leong an email asking him, “please advise when you will make this month’s payment thanks?”. The Sayour Parties submit that the apparent urgency of, or solicitude for, these payments strongly reinforces the probability that they were important in Jamil’s mind.

202. [292]

     On 11 July 2012, Mr Deiri transferred the sum of $500,000 by international telegraphic transfer to Moustafa’s Blom Bank account in Lebanon.

203. [293]

     Investments says that this is another land/costs payment (i.e., four of 13).

204. [294]

     On 30 July 2012, there were further emails from Jamil and Mr Deiri to Mr Leong regarding the $10,000 monthly payments. Relevantly, these included, for example: “Hi Hon, Please advise when you will make this months [sic] payment thanks”.

205. [295]

     On 1 August 2012, it appears that the last of the $10,000 monthly payments was made. On 4 August 2012, Moustafa returned to Australia.

206. [296]

     On 10 August 2012, Mr Deiri transferred the sum of $1 million to the Westpac #202 Account.

207. [297]

     Investments says that this is another land/costs payment (i.e., five out of 13). Meanwhile, in their submissions, the Sayour Parties suggest that this was a “balloon” payment for Jamil’s benefit. (That, however, seems to be no more than suspicion, particularly since the money was deposited into an account that Plaza has accepted was a trust account.)

208. [298]

     In his affidavit evidence (see [57] of his affidavit sworn 22 August 2019), Mr Deiri has deposed that, at around the time of the 1 August 2012 payment, he told Jamil that:

209. [299]

     Plaza says that this evidence should not be accepted (see further below).

210. [300]

     On 17 August 2012, Mr Deiri drew a cheque for $150,000 from CP Redfern made payable to Jamil.

211. [301]

     Investments says that this is another land/costs payment (i.e., six of 13).

212. [302]

     On the same day, Mr Deiri drew a cheque for $3.25 million made payable to “Moustafa & Jamil Sayour Trustee for Sayour Family Trust”.

213. [303]

     Investments says that this is a further land/costs payment (i.e., seven out of 13).

214. [304]

     Mr Deiri’s evidence is that he had a conversation with Jamil in which he said, “I’ve now paid the $6 million. We’re all done and dusted” and Jamil said “That’s fine. Its all good” (see Mr Deiri’s affidavit sworn on 22 August 2019 at [128]). (That, however, does not take into account the additional $2 million sum that the Deiri interests accept was agreed to be paid towards the land acquisition costs.)

215. [305]

     On 27 August 2012, another account was opened with Westpac in Moustafa’s name (the Westpac #238 Account), again designated as a trust account (i.e., “ATF SAYOUR FAMILY TRUST”). Mr Kieran Turner of Westpac emailed Jamil in relation to the newly opened Westpac #238 Account on 27 August 2012, stating:

216. [306]

     Jamil responded by email thereto, providing Moustafa’s tax file number.

217. [307]

     On the same day, amounts totalling about $4 million (by way of numerous transfers of $100,000 each) were paid into the Westpac #238 Account.

218. [308]

     I interpose to note that an aide memoire handed up by Counsel for Plaza during the course of submissions illustrates the flow of funds between accounts (by reference to documents in the Court Book) and was generally not the subject of criticism (though there was some debate about certain entries thereon).

219. [309]

     On 17 September 2012, a notice of determination of development application was issued by the City of Canterbury.

220. [310]

     Mr Zafiropoulos’ evidence is that, in October 2012, he obtained a loan from Mr Fadi Ibrahim for development costs at “Belmore” (see his affidavit sworn on 9 October 2019 at [27]).

221. [311]

     On 2 October 2012 at 3.40 pm, Ms Dahdal sent an email (Ex 12) (the 2 October 2012 email), forwarding to Mr Deiri and Jamil a request by Mr Kanellopoulos (a real estate agent at Ray White) that, “Fouad [Mr Deiri] and Jamil” sign a cheque in payment of his firm’s invoice. Mr Kanellopoulos’ email to Ms Dahdal had attached an invoice and stated: “Can you please process and have Fouad and Jamil sign”. Ms Dahdal forwarded this email to Mr Deiri and Jamil, and wrote:

222. [312]

     Pausing here, I note that CBA points out that in this email Ms Dahdal asked Mr Deiri and Jamil to note that she was currently writing out cheques “that require your signatures”. It is submitted by CBA that Ms Dahdal’s use of the plural was not accidental; but deliberate; and that Ms Dahdal knew very well that the cheque for Mr Kanellopoulos was to be signed by Mr Deiri and Jamil. It is said that, in light of her assumption that Jamil would be signing the cheques referred to in her email, Ms Dahdal had no reason to give Jamil a folder containing cheques for him to take away and have signed by anyone else. This is relevant to the disputed evidence as to cheque signing practices, to which I refer in due course below.

223. [313]

     On 9 October 2012, an application was made for a loan (the Westpac #802 loan) for $480,000. Relevantly, it appears that Jamil completed the loan application for the Westpac #802 Loan Account (see Ex 15 at p 232), Moustafa denying that the signatures on the loan application form are his signatures, but accepting that he did in fact take out the loan in that amount (see at T 426.6-428.22) (and he appears also to have accepted that he signed the subsequent formal Westpac loan offer – see at T 427.17-35).

224. [314]

     On 29 October 2012, Mr Deiri drew a cheque on Deiri Nominees’ account made out to the Sayour Family Trust for $250,000. It was deposited into the Westpac #202 Account on 30 October 2012. Investments says this is another land/costs payment (i.e., eight out of 13).

225. [315]

     On 31 October 2012, there was an exchange of emails between Mr Deiri and Jamil, copied to Ms Dahdal, in relation to the partnership’s cheque book, on which both CBA and Plaza place some significance. Relevantly, on 31 October 2012, Mr Deiri sent an email to Jamil (the 31 October 2012 email), saying:

226. [316]

     Jamil’s email of 31 October 2012 in response to Mr Deiri, copied to Ms Dahdal, was, “I am thrilled, so excited, Nola can you make sure we have some cheques to write out by Friday thanks”.

227. [317]

     On 23 November 2012, Mr Deiri transferred $500,000 from CP Redfern to Moustafa’s Blom Bank account in Lebanon (the payment being received on 24 November 2012).

228. [318]

     Again, Investments says this is another land/costs payment (i.e., nine out of 13).

229. [319]

     On 17 December 2012, Mr Deiri transferred a further $500,000 from CP Redfern to Moustafa’s Blom Bank account in Lebanon. This was received on 18 December 2012.

230. [320]

     Investments says this is another land/costs payment (i.e., 10 out of 13).

231. [321]

     According to Moustafa, at the end of 2012, Jamil told him that Mr Deiri had paid $2 million; and he later said that Mr Deiri had paid $3 million (all up $5 million) (see Moustafa’s affidavit sworn on 31 May 2019 at [118]-[119]).

232. [322]

     Meanwhile, on 17 December 2012 (see Ex 13 p 80), Mr Kanellopoulos sent an email to Jamil asking Jamil to, “sign the 2 cheques in Fouad’s office” so that he could meet staff payments. I interpose to observe that this may, or may not, have been Mr Kanellopoulos chasing up the cheque referred to by Ms Dahdal in the 2 October 2012 email – see at [311] above).

233. [323]

     There is much contention as to the precise timing and circumstances of Jamil’s discovery of the Arncliffe Site (which I will deal with in due course).

234. [324]

     I have already noted above (see at [195] above) Mr Zafiropoulos’ evidence as to his research into sites in Arncliffe. Mr Zafiropoulos has deposed that he attended the Arncliffe Site (a company named AFCO Pty Ltd) to have a sign fabricated and that he had a conversation with Mr Zac Bazzi (a lessee at the site) in which Mr Bazzi told Mr Zafiropoulos about demolition clauses in the leases (the significance of which being as to the ability of a purchaser to obtain vacant possession, even though the site was then tenanted – a matter clearly regarded by Mr Zafiropoulos as being of some value).

235. [325]

     Pausing here, there is some discrepancy as to references to the Arncliffe Site (some witnesses referring to it as, for example, the “AFCO site” some to the “EFCO site”). So, for example, Mr Dale, the then owner, referred to the site as “EFCO”; Mr Zafiropoulos referred to it as “AFCO” (which was the name of a metalworking business operated or owned by Mr Bazzi, that business being the biggest tenancy on the Arncliffe Site at the time); and Mr Kanj, the principal of Konstructions, referred to it as the “EFCO site”. Nothing turns on this (other than, for example, that the discrepancy of itself is relied on by Konstructions as pointing against collusion between the witnesses). Relevantly for present purposes, it is not disputed that the Arncliffe Site had formerly been used as the EFCO lock factory and that there remained a large sign still on the building in that name, despite the departure by then of that company from the site.

236. [326]

     According to Mr Zafiropoulos, at some stage in 2012, he and Mr Fadi Ibrahim had a discussion about Rockdale Council LEPs and Mr Ibrahim suggested that Mr Zafiropoulos speak to Jamil (see Mr Zafiropoulos’ affidavit sworn on 9 October 2019 at [28]-[35]). Mr Zafiropoulos has deposed that he then had an initial meeting with Mr Fadi Ibrahim and Jamil at the Sake Restaurant (in about December 2012) (the First Sake Restaurant meeting). It seems that it was at this meeting that, according to Zapphire, Mr Zafiropoulos told Jamil about the Arncliffe Site (see Zapphire’s defence at [57]).

237. [327]

     Moustafa’s evidence is that Jamil first mentioned the Arncliffe Site (or project) to him in 2012 (see Moustafa’s affidavit sworn on 27 October 2016 at [39]-[40]) that:

238. [328]

     In his affidavit sworn on 16 September 2019, Moustafa deposed (at [192]):

239. [329]

     Moustafa confirmed in cross-examination the 2012 timing of the discussion in relation to the Arncliffe Site (see, for example, at T 652.10-12).

240. [330]

     On 1 February 2013, the Westpac #295 Account was opened in the names of Moustafa and Jamil (see Ex 15 at p 295).

241. [331]

     On 1 February 2013, the sum of $4 million was withdrawn (by 40 transfers of $100,000 each) from the Westpac #238 Account and deposited into the Westpac #295 Account.

242. [332]

     I interpose to observe that the explanation for such a series of transfers is unclear and this has no doubt fuelled (perhaps not unreasonable) suspicion by Moustafa as to the transfer of those funds.

243. [333]

     On or about 4 February 2013, Moustafa and Plaza (as trustee for the Sayour Family Trust) gave further Powers of Attorney to Jamil.

244. [334]

     On 5 February 2013, Moustafa left Australia for overseas (returning 22 May 2013).

245. [335]

     On the same day, the sum of $3 million was withdrawn from the Westpac #295 Account at the bank’s Pennant Hills branch. The following day, 6 February 2013, the sum of $3 million was received into Moustafa’s Blom Bank account in Lebanon.

246. [336]

     According to Mr Deiri, in February 2013, he told Jamil that he had another $400,000 to pay, which Jamil directed be paid by cheque to Plaza (see Mr Deiri’s affidavit sworn on 22 August 2019 at [143]-[144]).

247. [337]

     On 8 February 2013, Mr Deiri drew a cheque for $400,000 on the CP Redfern account made out to “Sayour Investments Pty Ltd” (i.e., Plaza) (see Ex 15 at p 280). Investments says that this cheque was deposited on 13 February 2013. Plaza says that this was deposited into the Westpac #295 Account. Investments says that this is another land/costs payment (i.e., 11 out of 13).

248. [338]

     On 19 February 2013, Jamil sent an email to Mr Deiri saying, “Fouad whos [sic] gonna visit us in jail”.

249. [339]

     On 21 February 2013 (i.e., at a time when Moustafa was still overseas), Westpac made an offer of a home loan following an application in the names of Moustafa and his wife, Fatima (for $864,000) (see Ex 15 at p 281). This is the Westpac #111 Loan Account, which was an offer accepted by Jamil while Moustafa was ovserseas, and discharged in November 2014 from funds applied from the Westpac #202 Account (see at [1338] below) as was an earlier loan account (the Westpac #980 Loan Account).

250. [340]

     At 9.15 am on 8 March 2013, Ms Sue Marven (of CBA’s Operations Officer, Payment Exceptions Processing Services) sent an email to Mr Stephen Small of CBA, with a request to “action the large cheque verification attached and advise this office … with an answer by 3 pm”, extracting a copy of cheque #226 dated 26 February 2013 (which was for the sum of $202,720 in favour of Deicorp Constructions). The cheque bore a “Jamil” signature and the signature of Mr Deiri. The email noted that the cheque had been “presented to your client’s account yesterday” (i.e., on 7 March 2013). The email stated that the cheque was referred because “[s]ignatures unlike specimen held” and called for branch action to verify the cheque or direct its dishonour.

251. [341]

     Plaza says that Mr Small undoubtedly knew that Mr Deiri, as well as being the director of Investments, was the sole director of Deicorp Constructions because CBA had entered into a “Builders’ Side Deed” with Deicorp Constructions (and Plaza), and Mr Small usually received the construction progress reports from CBA’s quantity surveyors, Napier & Blakeley. It is noted that Mr Small was the CBA relationship executive responsible for CBA’s relationship with the Broadway Partnership.

252. [342]

     At 9.34 am on 8 March 2013, Mr Small forwarded that email to Ms Samantha Schucroft (Account Manager, Property Corporate Financial Services Business and Private Bank), requesting her to, “… check these signatures to the Authority. They do not look right to me, I am sure they are OK but”.

253. [343]

     At 9.50 am that day, Ms Schucroft sent an email to Ms Jennifer (Mengjie) Luo, of Deicorp, with a copy of the bank’s signature specimen for Moustafa and a copy of the bank’s internal request for verification, extracting the cheque. It is noted that the email does not contain any direction or request for information.

254. [344]

     At 9.58 am, Ms Schucroft forwarded the same email to Mr Deiri. Plaza notes that Mr Deiri did not refer to this in his affidavit evidence.

255. [345]

     At 10.00 am, Ms Schucroft sent an email to the Core Large Transactions email address, copied to Mr Small, stating, “[d]ear Team, Confirmed with the client approved to proceed”. Plaza notes that the relevant bank statement shows that cheque #226 was debited to the account as at 7 March 2013.

256. [346]

     On 11 March 2013, Mr Deiri forwarded the 8 March 2013 email from Ms Schucroft to Jamil at 9.39 am. There does not appear to have been any response by Jamil thereto.

257. [347]

     I refer to this query by CBA as to the signature on this cheque as the 2013 CBA cheque query. There does not appear to have been any other such query.

258. [348]

     On 30 April 2013, there was another exchange of emails in relation to the signing of cheques on which Plaza places reliance.

259. [349]

     Relevantly, an email was sent on 30 April 2013 to Jamil (the 30 April 2013 email), which referred to Jamil attending Mr Deiri’s office the following day and included:

260. [350]

     Jamil replied, “[d]epends if its [sic] a lot not coming”.

261. [351]

     There were three cheques dated 30 April 2013, those being cheques #234, #235 and #236. Crucially, each bears an “imitation” (that is, a signature purporting to be that of Moustafa but which the authenticity of which is disputed or has otherwise been proven to not be Moustafa’s hand – see below) Moustafa signature as well as the signature of Mr Deiri. Hence, unsurprisingly, Plaza submits that it should be concluded that Jamil in fact attended Mr Deiri’s office, as requested, the day after to sign cheques #234, #235 and #236; and that he signed them and left them there to be dispatched by Mr Deiri’s staff.

262. [352]

     Relevantly, the email corroborates at least part of Mr Deiri’s account as to the cheque signing practice within the Deicorp offices, in that it refers to cheques being left in a folder on Mr Deiri’s desk. Further, I consider that if Ms Dahdal was arranging for cheques (on their face dated 30 April 2013) to be signed according to her email the “following day”, this strongly suggests that some cheques, at least, were dated in advance of their signing by one or both of the signatories thereto.

263. [353]

     On 10 May 2013, Deicorp Properties obtained a licence to operate under the Property, Stock and Business Agents Act 2002 (NSW).

264. [354]

     On 14 May 2013, a letter of tender was issued from Deicorp Constructions to the Broadway Partnership for the design and construction of the Stage 2 residential development. The letter was addressed to the attention of Jamil. The sum quoted was a lump sum price of $24.85 million.

265. [355]

     This sum comprised of: “Construction Cost” ($22,570,033.00); and “Provisional Sums Allowance” ($2,279,967.00). This Stage 2 tender submission provided that, for that lump sum price, 148 units would be constructed.

266. [356]

     Jamil (as “Development Manager”) signed a letter dated 15 May 2013, on Broadway Partnership letterhead, accepting the tender. As noted earlier, Moustafa’s evidence is that Plaza did not agree to the increase from $23.5 million to $24.85 million.

267. [357]

     On 15 May 2013, a “Formal Instrument of Agreement” for the Stage 2 construction contract (again, the residential units) was signed by Jamil (on behalf of Plaza) and Mr Deiri for $24.85 million (the Stage 2 Construction Contract).

268. [358]

     I note that the contract in question was as between the Broadway Partnership and “Deicorp Construction Pty Ltd” (whereas on the Fifth Broadway Cross-claim, Plaza has pleaded its claim against “Deicorp Pty Ltd” – see at [60] above). I understand that the relevant parties have accepted that this was a pleading error and they were content to proceed upon the basis that, insofar as the Stage 2 Construction Contract is concerned, the Fifth Broadway Cross-claim and the Sixth Broadway Cross-claim each permits the liabilities and the entitlements of Deicorp Construction Pty Ltd to be pursued.

269. [359]

     On 16 May 2013, Jamil sent Mr Deiri an email (the 16 May 2013 email) in relation to the pricing of the Stage 2 Construction Contract. In that email (which the Sayour Parties note was sent the day after the Stage 2 “replacement” contract was signed, increasing the price from $23.5 million to $24 million) (as to which, see earlier, where the cost of the apartments was $21.1 million plus GST), and on which they placed no little weight as showing that Jamil knew he was to account to his father), Jamil wrote that:

270. [360]

     Specifically, the Sayour Parties place weight on the statement in the above email that “[a]s you know anything you ask me to sign I do it straight away” as an admission by Jamil that he would sign whatever Mr Deiri asked him to sign. It is, of course, not implausible that this was not intended as a serious statement in the sense here pressed by the Sayour Parties; indeed, for example, it might simply have been Jamil trying to placate Mr Deiri and assuring him that he was on top of things, so to speak (it is certainly redolent of hyperbole in my opinion).

271. [361]

     On 22 May 2013, Moustafa returned to Australia.

272. [362]

     On 31 May 2013, approved terms and conditions were executed for a new CBA loan to fund Stage 2 of the Broadway Development comprising the 148 residential units. Moustafa disputes that he signed this document.

273. [363]

     On 20 June 2013, the Stage 2 facility documents were signed. As I have adverted to at [19] above, the Stage 1 Loan was reinstated as an investment facility and the balance of the loan became part of a separate facility (and, defined above as the Second Facility Agreement) for Stage 2 of the Broadway Development (Stage 2 Loan). A “Deed of Variation and Restatement No. 1” dated 20 June 2013 was purportedly executed and an “Amended and Restated Cash Advance and Facility Agreement” dated 20 June 2013 was purportedly executed. Again, Moustafa’s evidence is that he did not sign any of these documents (and the forensic examiner has given evidence that the “Moustafa” signatures on these documents were not genuine).

274. [364]

     Clause 13 of the Second Facility Agreement again authorised CBA to debit to the CBA Partnership Account of all fees and interest. Under the Second Facility Agreement, funds were made available for the construction of Stage 2 of the Broadway Development. The First Facility Agreement was amended to reduce the facility limit to $34.3 million.

275. [365]

     On 25 June 2013, a Deed of Guarantee entitled “Commercial Deed of Guarantee – Limited” was purportedly executed by Moustafa. Again, Moustafa denies signing the document and the forensic examiner has given evidence that it is not his signature. Relevantly, this “Moustafa” signature was purportedly attested by Ms Dahdal (a matter about which Ms Dahdal was cross-examined – as to which see at [995] below).

276. [366]

     There was a further exchange of emails to which both CBA and Plaza point on 27 June 2013 in relation to the signing of cheques.

277. [367]

     First, at 10.57 am, Ms Dahdal sent an email to Mr Deiri and Jamil in which she said, “Jamil I need you to come in & sign another chq thanks”. I note that it is said by CBA that Ms Dahdal asked this because there was an invoice which had to be paid, which CBA says meant that she had to get Mr Deiri and Jamil to sign the cheque; and that Mr Deiri, to whom the email had also been sent, made no protest of any kind to Ms Dahdal to the effect that Jamil did not sign cheques.

278. [368]

     Then, at 4.34 pm, Ms Dahdal emailed Jamil, saying, “the chq is for blackstone water house, I thought you signed me enough chq’s also I have another inv for Napier too”. I note that CBA says (and, I agree) that this is indicative of a practice whereby Jamil signed blank cheques in advance.

279. [369]

     Jamil replied, “Nola, give the cheque book to Fouad make sure he brings it with him on Sunday” (and Ms Dahdal responds that an event is to take place on Saturday).

280. [370]

     As to this last email exchange, Mr Deiri proffered the explanation that Moustafa was also attending the Mayoral Ball to which this email refers (see T 904.10-30).

281. [371]

     On 12 August 2013, Mr Kanellopoulos (it will be recalled, the real estate agent) sent an email expressing dissatisfaction and alleging that he had assisted Mr Deiri and Jamil with fabricating “false leases” to meet bank funding requirements. Mr Deiri responded (not, I might add, disputing such an occurrence or expressing any complaint at such a suggestion) rather, by asking Mr Kanellopoulos and Jamil to stop sending emails (which rather suggests dissatisfaction with there being any paper trail of such assertions).

282. [372]

     On 14 August 2013, Mr Deiri drew a cheque on CP Gibbons account for $150,000 made payable to Jamil. It was deposited to an unknown account on 15 August 2013.

283. [373]

     As above, Investments says this was another land/costs payment (i.e., 12 out of 13).

284. [374]

     It appears that construction of the residential units began in August 2013.

285. [375]

     There is a dispute as to when (and how) Jamil first discovered the Arncliffe Site (which is relevant in the context of the claim made against Zapphire, in respect of the so-called a Site Identification Fee(s) in respect of the site (see at [81] above); and, indirectly, to the claim against Konstructions, which was also paid a substantial amount in relation to the site – originally also claimed as a site identification fee, for reasons that Mr Kanj explained in his evidence.

286. [376]

     Mr Rodney Dale, the proprietor of Purnell Motors (a high end luxury car dealership), gave evidence (see Mr Dale’s affidavit sworn on 9 August 2019 at [15]-[16]) that he was introduced to Jamil in the second half of 2013 by one of his sales staff.

287. [377]

     Pausing here, it is relevant to note that (as set out at [327] above) Moustafa’s evidence is that Jamil first mentioned the Arncliffe Site (or project) to him in 2012 and that, according to Mr Zafiropoulos, Mr Zafiropoulos had already by this time had a conversation about the site with Jamil and Mr Fadi Ibrahim at the First Sake Restaurant meeting (as set out at [326] above).

288. [378]

     Mr Dale’s evidence was that in about 2012 or 2013, he came to the view that it would be a good time to sell the Arncliffe Site (which was owned by his company, Brano Pty Ltd (Brano)); he then asked his employees to keep a look out among Purnell Motors’ high-end, wealthy customers for someone who might be interested in acquiring the site; at some time in the second half of 2013, Mr Dale was introduced to Jamil through one of his sales staff, who told Mr Dale of a customer involved in real estate development who had recently purchased a Range Rover from Purnell Motors; the salesman told Mr Dale that he had mentioned the Arncliffe Site to the customer and the customer expressed an interest in meeting Mr Dale; and that, shortly thereafter, Mr Dale met Jamil at the Purnell Motors showroom (i.e., not at the Arncliffe Site itself). Mr Dale’s evidence is that Jamil told Mr Dale that one of Mr Dale’s employees had told him (Jamil) that he (Mr Dale) had a site for development that he was looking to sell, and that he (Mr Dale) responded, “[y]es, it’s a block of land on the Princes Highway at Arncliffe…” (see Mr Dale’s affidavit sworn on 9 August 2019 at [16]).

289. [379]

     Mr Dale’s evidence is that, in that initial meeting (which he recalled was some time in the second half of 2013), Jamil also told him that Jamil represented his family businesses and investments, including in property development and that there was someone Jamil would like Mr Dale to meet; and that Jamil suggested that they “grab a bite for lunch to eat sometime” (see Mr Dale’s affidavit sworn on 9 August 2019 at [19]).

290. [380]

     The Sayour Parties say (and, I accept) that the date of this initial meeting can be fixed with reasonable certainty by reference to an email exchange between Jamil and Mr Dale. On 14 October 2013, Mr Dale sent an email to Jamil with a survey of the Arncliffe Site (see Annexure A to Mr’s Dale affidavit sworn on 9 August 2019), stating inter alia:

291. [381]

     Jamil sent an email to Mr Dale, copied to Mr Deiri, on the same day (14 October 2013) in which Jamil said:

292. [382]

     Mr Dale’s evidence is that, about two weeks after he first met Jamil, he had lunch with Jamil and Mr Deiri to discuss the Arncliffe Site (see Mr Dale’s affidavit sworn on 9 August 2019 at [23]-[27]).

293. [383]

     Relevantly, the Sayour Parties submit (and, again, I accept) that Jamil’s reference to “this Thursday” in his email of 14 October 2013 suggests that this meeting happened on 17 October 2013.

294. [384]

     Mr Dale’s evidence is that, at the lunch meeting with Mr Deiri and Jamil (i.e., the meeting that followed this 14 October 2013 email), Mr Deiri told him that he owned Deicorp, a building and property development company. Mr Dale’s evidence is that Mr Deiri and Jamil gave him the impression that they got along well and worked well together, with Mr Deiri as “senior partner” (see Mr Dale’s affidavit sworn on 9 August 2019 at [26]).

295. [385]

     Mr Dale’s evidence is that, after the initial lunch meeting, he continued to liaise directly with Mr Deiri, and that they started to discuss a purchase price for the Arncliffe Site. He gave evidence that he and Mr Deiri had “maybe one or two more lunches together to discuss the details of the purchase of the Site” and that neither Jamil nor anyone else attended those lunches (see Mr Dale’s affidavit sworn on 9 August 2019 at [30]).

296. [386]

     There are emails between Mr Deiri and Mr Dale over the following months that make reference to their ongoing discussions (including further lunch meetings).

297. [387]

     According to Mr Deiri (see Mr Deiri’s affidavit sworn on 16 October 2019 at [7]), in around November 2013, Jamil approached Mr Deiri and told him that he had found a development site at Arncliffe (being the Arncliffe Site) and suggested that they develop it into residential apartments and shops.

298. [388]

     In his affidavit sworn on 26 June 2017 (at [19]), Mr Deiri deposes (consistently with Mr Dale’s account of the conversation with Jamil, though not as to the precise month – see at [378] above) that Jamil told him in or around November 2013 that:

299. [389]

     Further, in Mr Deiri’s affidavit sworn on 16 October 2019 (I note, sworn after Mr Kanj and Mr Zafiropoulos had filed and served their initial affidavits setting out their versions of the identification of the Arncliffe site), Mr Deiri gives evidence that Jamil said that, “I’ve found a development site at Arncliffe” but there was no reference to Jamil buying a car.

300. [390]

     Accordingly, although on 16 October 2019 put this initial conversation as around November 2013, it must have been earlier than that (around September or October) by reference to the 14 October email referred to at [381] above.

301. [391]

     Mr Deiri’s evidence is that he had not been looking for development sites in the Arncliffe area prior to this meeting with Jamil.

302. [392]

     According to Mr Deiri, about a week after his initial conversation with Jamil, he had another conversation in which Jamil said, “if you are interested in the Arncliffe Site, we can go 50/50 just like we did at Punchbowl” (see at [7]-[9] of Mr Deiri’s affidavit sworn on 16 October 2019); and that Jamil said to him, “I’m bringing this to you because you’re my brother and I’d like to do the project with you”.

303. [393]

     Pausing here, references to the Broadway Development in the context of the proposal to develop the Arncliffe Site would make it more likely that the first conversations between Jamil and Mr Deiri took place closer to the time Mr Dale has suggested.

304. [394]

     Mr Deiri also gave evidence that the two visited the Arncliffe Site and met with Mr Dale (see, for example, at T 824.6-22).

305. [395]

     According to Mr Kanj (the principal of Konstructions and who was also employed as a finishing foreman at various of the Deiri Group’s projects), Jamil told him of Jamil’s interest in the Arncliffe Development some time in the period from January to June 2013 (i.e., placing this before the 14 October 2013 email from Jamil to Mr Dale and the subsequent lunch meeting between Mr Dale, Mr Deiri and Jamil).

306. [396]

     Mr Kanj says (see Mr Kanj’s affidavit sworn on 20 September 2019 at [20]-[27]) that he met with Jamil in mid to late 2013 and Jamil told him (see at [22]):

307. [397]

     Mr Kanj ‘s evidence is that he wanted to become involved in the management of the Arncliffe Development at a rate of cost plus 15% and a share of the profit. Mr Kanj says that Jamil engaged him on those terms (see Konstructions’ defence at [14A]ff).

308. [398]

     Mr Kanj then says (see Mr Kanj’s affidavit sworn on 20 September 2019 at [33]-[35]) that he met with Jamil in mid to late 2013 and Jamil said (see at [34]-[35[):

309. [399]

     Mr Kanj says that he had a further conversation a short time later (see Mr Kanj’s affidavit sworn on 20 September 2019 at [36]-[42]) where Jamil said (at [37]-[38]):

310. [400]

     Pausing here, the time frame placed by Mr Kanj on these conversations is not consistent with Mr Deiri’s recollection (see at [387] above) that he first heard about the Arncliffe Site in either November 2013 or (as seems more likely having regard to the contemporaneous documents) in about September or October 2013). Moreover, the suggestion that Jamil was able to put a fixed price ($7.2 million plus GST) at this stage seems inherently unlikely.

311. [401]

     Indeed, the Sayour Parties say that a fatal flaw in Mr Kanj’s “story” is his assertion (in his affidavit sworn on 20 September 2019 at [37]-[39]) that Jamil told him in 2013 that he had “done the deal with Fouad” and that Mr Deiri would, at the end of the Arncliffe Development, pay him exactly $7.2 million plus GST.

312. [402]

     It is noted that $7.2 million happens to be exactly half of the uplift amount identified by reference to a valuation prepared in October 2015 (see at [564] below). The Sayour Parties say that it is simply impossible that Jamil could have known to nominate that $7.2 million figure to Mr Kanj in 2013. It is said that this is enough reason to reject Mr Kanj’s account of his dealings, and his alleged agreement, with Jamil.

313. [403]

     Further, the Sayour Parties say that, contrary to Konstructions’ submission, Mr Kanj has had ample opportunity to explain the circumstances in which Jamil nominated the $7.2 million figure. More specifically, the Sayour Parties point to the following: first, the letter from the solicitors for Sayour Holdings to Konstructions of 12 November 2018, where Konstructions was asked to detail what services were performed in exchange for the $7.2 million plus GST and to provide all relevant documentation; second, that Konstructions admitted (at [12] of its amended defence) that Sayour Holdings sent it the letter, and that it never responded thereto; and third, further, that Mr Kanj gave clear and unambiguous affidavit evidence that Jamil nominated that precise figure of $7.2 million plus GST to him in 2013 (see at [37]-[39] of his affidavit sworn on 20 September 2019), and he confirmed the evidence in cross examination (see at T 1286).

314. [404]

     In this regard, I note that, in cross-examination, Mr Kanj was repeatedly pressed to explain exactly what words Jamil used in the conversation in which Jamil supposedly told him that he had “done the deal” with Mr Deiri (see T 1285.23 – T 1287.30), culminating in the following exchange (at T 1287.21-30):

315. [405]

     The Sayour Parties say that Konstructions’ submission that Mr Kanj was denied an opportunity to explain why Jamil nominated the precise sum of $7.2 million plus GST ought to be rejected and that Mr Kanj said quite clearly that he did not know what Jamil was thinking when he nominated that sum.

316. [406]

     Mr Kanj also gave affidavit evidence (see his affidavit sworn on 20 September 2019 at [50]-[56]) that, in around January 2018, he approached Mr Deiri and Mr Gav to provide the invoice for $7.2 million plus GST. Mr Kanj says he prepared an invoice “for the amount Jamil had told me” (i.e., $7.2 million plus GST). Again, it is noted that this happened to amount to exactly half of the sum said to have been nominated by Jamil to Mr Deiri in the “deathbed” conversation of 30 September 2015 (see at [268] below), allegedly derived from a valuation report prepared in late 2015 (see at [564]; [608] below).

317. [407]

     Mr Zafiropoulos (see his affidavit sworn on 9 October 2019 at [37]) says that, in mid to late 2013, he had a further meeting with Jamil and Mr Fadi Ibrahim at the Sake Restaurant (the Second Sake Restaurant meeting); and that Jamil said:

318. [408]

     Meanwhile, Mr Deiri has deposed (see his affidavit sworn on 16 October 2019 at [12]) to a conversation with Jamil in around December 2013 to the following effect:

319. [409]

     I note that there have been different versions of this conversation.

320. [410]

     Returning to the Broadway Development, in September 2013, a “Deed of Variation and Restatement No. 1” dated 3 September 2013 and an “Amended and Restated Cash Advance and Facility Agreement” dated 3 September 2013 were signed. The documents reduced the number of qualifying apartment presales prior to obtaining funding under the Stage 2 Loan and enabled structural works to start earlier.

321. [411]

     Again, Moustafa says the “Moustafa” signatures on these documents are not genuine (and the forensic examiner supports this conclusion).

322. [412]

     On 24 September 2013, a letter was sent to CBA in relation to the facility payout, requesting CBA to arrange to pay-out the early works facility in the sum of $5,513,308.49. The letter was addressed to Ms Schucroft (of CBA) and signed by Mr Deiri under his printed name, with a non-genuine Moustafa signature above the name “Mustafa [sic] Sayour”.

323. [413]

     On 25 September 2013, it appears that Mr Deiri gave Jamil a cheque for $200,000 and a letter stating that the payment was in full and final settlement in relation to the purchase price and confirming that all of the $8 million was now paid and no other moneys were owing.

324. [414]

     More specifically, this 25 September 2013 letter stated:

325. [415]

     Investments says that this was the final land/costs payment (i.e., 13 out of 13).

326. [416]

     I note that, also on 25 September 2013, Mr Deiri sent an email attaching a scanned copy of a cheque drawn on the account of Combined Property Investments Pty Ltd (CPI) addressed to Plaza in the sum of $200,000.

327. [417]

     It appears that this cheque was deposited to an unknown account. (Note: following publication of these reasons the Deiri Parties have informed the Court that, insofar as their submissions recorded as unknown the destination of the said amount or amounts, this was incorrect - see subsequent reasons.)

328. [418]

     On 25 September 2013, it seems that Mr Kon Gramelis was appointed as the Sayour family’s new accountant (see Ex 15 at p 318).

329. [419]

     Meanwhile, on 10 November 2013, presumably in the context of the 3 September 2013 variation to the CBA facilities (see at [410] above), Jamil sent an email to Mr Deiri, as follows:

330. [420]

     I interpose to note that the Sayour Parties place no little weight on this email, not least because of the statement by Jamil in the email that he had “lied” to his father.

331. [421]

     The completion of the Broadway Plaza shopping centre occurred by 3 December 2013. There was an opening ceremony on 5 December 2013 which Mr Deiri, Jamil, Moustafa, CBA representatives, and the Mayor of Canterbury attended. It appears that an agreement for McKenzie Hall to manage the shopping centre was signed by Jamil and Mr Deiri in December 2013.

332. [422]

     On or about 16 December 2013, documents were signed by Moustafa for the incorporation of Sayour Holdings and another entity, Moulikyah Pty Ltd (Moulikyah); and for the establishment of the Sayour 2 Family Trust.

333. [423]

     On 17 December 2013, Mr Gramelis emailed Jamil advising that, for the purposes of acquiring 50% of the shares in the new (Arncliffe) development, a new discretionary trust had been created for Moustafa, the trustee being Sayour Holdings (see Ex 15 at p 349):

334. [424]

     Mr Dale sent an email to Mr Deiri on 13 January 2014, stating that it would take Mr Dale some time to review the cost file and suggesting that he and Mr Deiri meet on 28 January 2014 in order to give Mr Deiri enough time to “do the work”. Mr Dale stated in that email that, “the exclusivity will remain throughout that period from my end”. Mr Deiri agreed to that proposal and noted that that would, “give [him] a bit more time finalise costings from [his] end”. Mr Deiri forwarded that email chain to Jamil with the message, “FYI”.

335. [425]

     Mr Deiri’s evidence is that, in January 2014, he and Mr Dale had a meeting and that, at either this meeting or an earlier one, they spoke about getting the site rezoned. Mr Deiri says that he explained to Mr Dale that Deicorp had the expertise to get the site rezoned itself, without needing to wait for the new draft planning controls for the Arncliffe Site to be gazetted. Mr Deiri’s evidence is that Mr Dale offered to sell the site for $18.1 million, to which Mr Deiri agreed on condition that the sale be effected through a put and call option contingent upon Deicorp succeeding in having the site rezoned within 12 months (and that Mr Dale agreed thereto) (see, for example, Mr Deiri’s affidavit sworn on 16 October 2019 at [15]ff).

336. [426]

     More specifically, in his affidavit sworn on 26 June 2017, Mr Deiri says that he and Jamil met with the owner of the Arncliffe Site (it will be recalled, Mr Dale) and negotiated a price of $18.1 million (see at [21]); and his later affidavit sworn on 16 October 2019, Mr Deiri has deposed that he and Jamil had lunch with Mr Dale in around January 2014 and agreed to purchase the site for $18.1 million subject to a put and call option to complete the purchase within 12 months in order to have the property rezoned (see at [14]-[15]; and see, for example, email of 29 January 2014).

337. [427]

     Mr Deiri’s evidence is that, following further discussions with Jamil in January 2014, he and Jamil came to an understanding in January 2014 that: they would incorporate a company as the special purpose vehicle for the venture to be named Combined Projects (Arncliffe) Pty Ltd (i.e., the company referred to in these reasons as Combined Projects Arncliffe); the company would have two equal shareholders, being one entity nominated by Mr Deiri and one entity nominated by Jamil; any profits would be distributed proportionately to the loan contributions made by each shareholder as a percentage of total shareholder contributions; Mr Deiri would be the sole director and secretary of the company and Jamil would be a “passive investor”; and Mr Deiri’s company, Deicorp Constructions, would be the builder (see, for example, Mr Deiri’s affidavit sworn on 26 June 2017 at [22]).

338. [428]

     Furthermore, Mr Deiri deposes (in his affidavit sworn on 16 October 2019 at [13]) that in January 2014 there was a conversation with Jamil at Deicorp’s office to the following effect:

339. [429]

     Mr Deiri’s evidence is thus that he told Jamil, inter alia, that any profits would be based on what Jamil contributed.

340. [430]

     On 28 January 2014, Jamil emailed Mr Deiri, forwarding an email from Mr Gramelis stating that the “legal name is SAYOUR HOLDINGS PTY LTD ATF SAYOUR 2 FAMILY TRUST”) (and see also, for example, Mr Deiri’s affidavit sworn on 16 October 2019 at [17]).

341. [431]

     Mr Deiri nominated Deiri Nominees as his shareholding entity. Mr Deiri instructed his accountants to incorporate Combined Projects Arncliffe with Sayour Holdings as a 50% shareholder (see at [17]).

342. [432]

     On the same day (being 29 January 2014), Mr Deiri sent an email to his accountant (it will be recalled, Ms Thornton), copied to Mr Vamvakaris, stating that:

343. [433]

     On 29 January 2014, Mr Deiri emailed Mr Dale (copied to Jamil) a draft “Heads of Agreement” for the sale of the Arncliffe Site, stating:

344. [434]

     Mr Deiri has deposed that he told Jamil that there was no need for Sayour Holdings to be a party to this Heads of Agreement in respect of the purchase of the Arncliffe Site because Combined Projects Arncliffe (of which Sayour Holdings was a shareholder) was to be the purchaser of the Arncliffe Site and thus, “[t]here was no need for [Combined Project Arncliffe’s shareholders] to be party to the agreement” (see at [23] of Mr Deiri’s affidavit sworn on 16 October 2019).

345. [435]

     Mr Deiri has further deposed that Jamil had told Mr Deiri, “that he [Jamil] wanted to do something for his family” (see at [32] of Mr Deiri’s affidavit sworn on 16 October 2019) and that he (Mr Deiri) assumed that that was the reason Jamil wanted to be involved in the Arncliffe development. Mr Deiri says that he did not ask Jamil who owned Sayour Holdings and that he “was not concerned about the details of the company [Jamil] nominated, which was a matter for him [Jamil]” see at [32] of Mr Deiri’s affidavit sworn on 16 October 2019).

346. [436]

     Meanwhile, on Mr Zafiropoulos’ account of events (see his affidavit sworn on 9 October 2019 at [38]), in early 2014, Mr Fadi Ibrahim called him and said:

347. [437]

     Mr Zafiropoulos’s evidence is (see his affidavit sworn on 9 October 2019 affidavit at [39]) that, also in early 2014, Jamil called him and said:

348. [438]

     As adverted to (see at [73] above), on 29 January 2014, Combined Projects Arncliffe was incorporated with two equal shareholders, Sayour Holdings and Deiri Nominees, with Mr Deiri as sole director and company secretary. The company was set up by an incorporation agent.

349. [439]

     It is necessary here to detail the sequence of events relating to the incorporation of Combined Projects Arncliffe (relevant particularly in the context of the Eighth Broadway Cross-claim and in the Arncliffe Proceedings). The sequence of those events was as follows.

350. [440]

     An interim constitution was signed prior to registration of the company. Clause 4 of that interim constitution provided that: members may appoint any director to the office of managing director and confer all of the powers of the directors upon that person; and may authorise the managing director to exercise those powers alone and without conferring or meeting with the other directors of the company.

351. [441]

     On 29 January 2014, an application to register Combined Projects Arncliffe was lodged with ASIC, and the company was registered (the interim constitution taking effect on registration under s 136(a) of the Corporations Act). Mr Maurice Howe and Ms Marea Howe were named as directors and Subscriber 1 Pty Ltd was named as the sole shareholder.

352. [442]

     It appears that there was a meeting of members at which the sole member, Subscriber 1 Pty Ltd, resolved to appoint Ms Howe as managing director. A special resolution was then passed by Subscriber 1 Pty Ltd that Combined Projects Arncliffe adopt a new constitution. The new constitution was adopted and took effect pursuant to s 136(b) of the Corporations Act.

353. [443]

     There was a meeting of directors at which Ms Howe, as managing director (exercising the powers of the directors), resolved that Mr Deiri be appointed as director and secretary, that shares be issued to Deiri Nominees and Sayour Holdings, that the share in Subscriber 1 Pty Ltd be redeemed and that the resignations of Ms Howe and Mr Howe as directors be accepted. For the Deiri Parties, it is said that the appointment of Mr Deiri was made under cl 8.2 of the adopted constitution, which provides for the directors to appoint a director and that Mr Deiri was thereby appointed sole director and company secretary of Combined Projects Arncliffe.

354. [444]

     On or about 31 January 2014, Mr Deiri (on behalf of Combined Projects Arncliffe) and Mr Dale (on behalf of Brano) signed the Heads of Agreement (as to which, see at [433] above) for the purchase of the Arncliffe Site at a price of $18.1 million, with a 5% deposit payable on exchange and with settlement to occur on the earlier of 12 months from the date of the contract or 12 weeks after development approval. The Heads of Agreement noted that, “[p]ut and call option to be discussed”.

355. [445]

     On 7 February 2014 (by a letter misdated 7 February 2013), a request was made to CBA that the authorisation on the CBA Partnership Account be changed so as to permit only one signatory to sign (the Cheque Authorisation Alteration Instruction). Mr Deiri’s evidence is that Jamil had complained of constantly “running around” obtaining Moustafa’s signature. He says that he provided the letter to Jamil to obtain his father’s signature and that Jamil returned the letter apparently signed by Moustafa. The letter was sent by Mr Deiri to Ms Schucroft via email (see, for example, Mr Deiri’s affidavit sworn on 2 November 2016 at [48]).

356. [446]

     Moustafa alleges that his signature on that letter was forged. The forensic examiner’s opinion is that it is not a genuine Moustafa signature.

357. [447]

     Mr Deiri says that, on 17 February 2014, Jamil lent the sum of $300,000 to Combined Projects Arncliffe (see Mr Deiri’s affidavit sworn on 16 October 2019 at [54]). This is also evidenced by a NAB bank statement, evidencing a transaction on that date with the narrative “RTGS (LBA 002897) Jamil Sayour Australia”.

358. [448]

     Relevantly, there is an email between Jamil and Ms Luo (copied to Mr Deiri) on 17 February (see Ex 15 at p 549):

359. [449]

     As to the put and call option to which reference has been made (see at [444] above), on 21 February 2014, $620,000 was deposited into the account.

360. [450]

     On or about 24 February 2014, Combined Projects Arncliffe entered into a put and call option deed to purchase the Arncliffe Site.

361. [451]

     The contract for sale provided that settlement would not occur until after approval for the proposed development by consent authorities.

362. [452]

     The Sayour Parties note that, according to Mr Deiri’s evidence, by around this time Mr Deiri was contemplating in his discussions with Jamil that the value of the Arncliffe Site, once rezoned and with a development approval for around 200 units, would be over $30 million.

363. [453]

     Mr Kyrikos of Momentum Project Group Pty Ltd (Momentum) met with Mr Deiri in March 2014 to discuss the Arncliffe Development (see Mr Kyrikos’ affidavit affirmed on 8 October 2019 at [12]).

364. [454]

     In March 2014, Combined Projects Arncliffe lodged a rezoning proposal for the Arncliffe Site (see, for example, Mr Deiri’s affidavit sworn on 26 June 2017 at [24]).

365. [455]

     On 18 March 2014, a letter was sent to CBA regarding an accommodation notice for the $34.3 million facility. The letter contains a “forged” signature of Moustafa. The letter authorised the final draw down of $420,000 to be paid into the CBA Partnership Account on 19 March 2014.

366. [456]

     On 7 April 2014, Jamil sent an email to Mr Deiri, “[r]egarding monthly payments from centre” and stating, “we need to start collecting our profit [sic] I need some money at the moment” and suggested each take $40,000.

367. [457]

     On 19 April 2014, Moustafa travelled overseas (returning 25 June 2014).

368. [458]

     On or about 6 May 2014, Momentum entered into a services agreement in respect of development and project management services for the Arncliffe Development (the Momentum Agreement).

369. [459]

     The Momentum Agreement identified the “Client” as “Deicorp Constructions Pty Ltd/Combined Projects Arncliffe Pty Ltd”. The document was signed by Mr Deiri in his capacity as “Director”. The Momentum Agreement provided, inter alia, for Momentum to superintend the Construction Contract for the Arncliffe Development.

370. [460]

     The Momentum Agreement was entered into under cover of a letter from Mr Kyrikos (director of Momentum) addressed to Mr Deiri, “Managing Director of Deicorp Constructions”, in which letter Mr Kyrikos stated that he, “look[s] forward to the opportunity to further assisting Deicorp/Combined Projects Arncliffe with delivering successful and profitable projects”.

371. [461]

     Pursuant to cl 1.1 of the Momentum Agreement, Momentum agreed to perform the services agreed upon and to exercise all skill and care in a manner generally accepted as competent development/project management. Pursuant to cl 2.1, Momentum was to be given “instructions adequate to define your requirements and to perform the services agreed, including making decisions required by you throughout the course of the project”.

372. [462]

     A “fee structure” in relation to the provision of service by Momentum under the Momentum Agreement was set out in the contract, which provided that Momentum was to receive a fee of $300,000 upon achievement of a development approval for the Arncliffe Development, and a further $300,000 upon achievement of the “Interim Occupation Certificate”. That fee structure provided that Momentum reserved the right for the total amount of $600,000 (exclusive of GST) to be offset against the purchase price of a completed apartment in the Arncliffe Development.

373. [463]

     At that stage, the Arncliffe Construction Contract (see at [642] below) had not been signed. However, it is relevant to note that when it was signed (see below), cl 23 of the Arncliffe Construction Contract provided, inter alia, that the “Principal” shall ensure that at all times there is a “Superintendent” and that, in the exercise of the functions of the Superintendent under the contract, the Superintendent must act honestly and fairly, and arrive at a reasonable measure or value of work, quantities or time. Clause 23 also provided that if the Superintendent gives a direction pursuant to the contract, the “Contractor” shall comply with the direction and, except where the Contract otherwise provides, a direction may be given orally but the Superintendent shall as soon as practicable confirm it in writing.

374. [464]

     In May 2014, Combined Projects Holdings Pty Ltd (defined at [60] above as CP Holdings) was incorporated.

375. [465]

     It appears that, at around this time, Jamil caused JS75 Pty Ltd (JS75) to be incorporated, with himself as the sole director and shareholder of this company.

376. [466]

     Pausing here, and for reasons that will become relevant in due course, the Deiri Parties pose, rhetorically, the question why, if Jamil had set up Sayour Holdings without Moustafa’s knowledge or consent (again, as to which, see further below), he arranged to have Moustafa listed as shareholder or director, rather than simply listing himself as a director and shareholder as he did with JS75.

377. [467]

     As noted at [457] above, on 25 June 2014, Moustafa returned to Australia.

378. [468]

     In July 2014, Jamil was diagnosed with advanced lung cancer (see Moustafa’s affidavit sworn on 27 October 2016 at [14]). It appears that Jamil took a period of leave (see, for example, the email from Mr Z Salah at Biomed of 31 July 2014, stating that Jamil was “away on leave until the end of August 2014” – see Ex 15 at p 572).

379. [469]

     On 21 August 2014, Mr Gramelis recorded a file note in which he made reference to a conversation with Jamil the previous evening about changing the structure of Sayour Holdings to appoint Jamil as a director and equal shareholder (see Ex 15 at p 615). Mr Gramelis recorded in this file note that he said he would only do this if Moustafa agreed.

380. [470]

     On 21 August 2014 at 6.50 am, Mr Gramelis sent an email to Mr Salah (at Biomed), copied to Jamil, saying that the entity set up for the Arncliffe project was Sayour Holdings as trustee for the Sayour 2 Family Trust, the director and shareholding of which company was solely Moustafa who was also the trust’s appointer but that Moustafa could distribute to himself and to Jamil. The email noted that Moulikyah was a, “deposit (tax minimisation) entity for trust distributions resulting from the profits earnt and for asset protection in the event of a liquidation” and that Moustafa was also the director (see Ex 15 at p 580).

381. [471]

     On 21 August 2014 at 7.40am, Jamil emailed Mr Gramelis saying that his instructions were that he (Jamil) was still a director (of Sayour Holdings) and that his father was now a director (see Ex 15 at p 577). At 7.52 am, Mr Gramelis emailed Jamil, copied to Mr Salah and Mr Gramelis’ assistant (Roni Kumar), asking his assistant to, “prepare and submit [sic] 484 form to ensure Jamil is Director and equal shareholder of Moulikyah and Sayour holdings [sic]” and to provide to Mr Salah the forms for Moustafa to sign (see Ex 15 at p 577).

382. [472]

     On 21 August 2014 at 9.53 am, Mr Kumar emailed Mr Salah (of Biomed) attaching ASIC forms signed by Moustafa at the meeting, notifying the appointment of Jamil as director of Sayour Holdings and as transferee of 50% of its shares (see Ex 15 at p 596). The email also attached a print-out from ASIC’s “Forms Manager” page for registered agents, showing that these two ASIC forms had been received that day and were “Processed – awaiting imaging”. That page recorded both Moustafa and Jamil as directors and shareholders of Sayour Holdings from 21 August 2014 onwards. The page also indicated that Moustafa had been a director since 16 December 2013.

383. [473]

     As adverted to above, Mr Gramelis prepared a file note dated 21 August 2014 of a meeting with Jamil and Moustafa at Biomed (see Ex 15 at p 615). I understand that it is not disputed that Jamil was overseas at this time, so Investments says his attendance at the meeting must have been by phone or Skype. The file note records a discussion of the ASIC Form 484 (“change to company details”) and structure changes, and outstanding business activity statements (BAS) for Moulikyah (noting that it had no activity and it was agreed to lodge a nil return). The file note records that Mr Gramelis encouraged Jamil and Moustafa to ensure that they were both happy with the arrangements because the prior evening (again, as adverted to above) Jamil had contacted Mr Gramelis wishing to make changes to the structure and that Mr Gramelis said he would only do this if Moustafa agreed and had organised to meet both the next day (i.e., 21 August 2014).

384. [474]

     On 5 September 2014, Moustafa signed account opening forms (see Ex 4 and Ex 5) with Westpac, signing in the names of Sayour Holdings and Moulikyah (those being Sayour Holdings’ Westpac #332 Account and Moulikyah’s Westpac #340 Account), both of which, it seems, were opened at the Lakemba branch.

385. [475]

     As to the Westpac #340 Account, the Deiri Parties point to the following features of these forms: the registered address and mailing address for the company is listed as the address of Biomed’s offices in Belmore; the account designator is “The Trustee for Sayour 2 Family Trust”; the form was signed by Moustafa, described as “Manager Director” (two lines below the organisation name, “Sayour Holdings Pty Ltd”); the account holder name was listed as “Sayour Holdings Pty Ltd”, followed by the “Trading Name OR Account Designator” of “The Trustee for Sayour 2 Family Trust”; the form then provided the details of the two authorised persons “to operate and sign on behalf of the account holder” (those being Moustafa and Jamil, Moustafa’s residential address there being listed and Jamil’s residential address being listed as the Biomed offices in Belmore); and the final signing page contains Moustafa’s signature, and records him describing both himself and Jamil as “Manager Director” of the account holder.

386. [476]

     It is noted that Ex 4 includes signed forms and declarations by Moustafa in relation to the trust, in which he is repeatedly described as “Manager Director”; and also contains a materially similar set of forms in relation to the opening of a second account for Sayour Holdings, a cheque account numbered #332. Relevantly, again, each of Moustafa and Jamil is there described as “Manager Director” throughout.

387. [477]

     The Deiri Parties note that a difference between the forms opening the Westpac #340 Account and the forms opening the Westpac #332 Account is that the latter included a “Business Debit MasterCard Application”. It is noted that that form described the “Company Name” as “Sayour Holdings Pty Ltd”, the “Contact Name” as “Jamil” and his “Job Title” as “Manager Director”.

388. [478]

     On 5 September 2014, the Westpac #316 Account was opened in the name of Moulikyah (see Ex 15 at p 896).

389. [479]

     In late September 2014, Moustafa and Mr Deiri met to discuss the possibility of selling the retail complex at Broadway Plaza. Moustafa’s evidence is that, by November 2014, Moustafa believed that CBA had been fully repaid from the proceeds of the sale of residential units (see his affidavit sworn on 27 October 2016 at [60]). Moustafa signed a Power of Attorney to enable solicitors, Blackstone Waterhouse, to deal with settlement of the units.

390. [480]

     By letter dated 30 October 2014 a final accommodation notice was issued on the CBA facility (for the sum of $1.076 million to be paid to Deicorp Constructions. The letter contains a “non-genuine” Moustafa signature.

391. [481]

     On 13 November 2014, Mr Deiri signed a cheque drawn on the CBA Partnership Account (cheque #507) made payable to “Sayour Family Trust” in the sum of $2.19 million. The cheque bore a “non-genuine” Moustafa signature. It was deposited into the Westpac #202 Account.

392. [482]

     Investments says this is the first of seven partnership distributions (i.e., one of 7).

393. [483]

     Also by that date, the Stage 2 Loan of $42,031,226 was repaid to CBA in discharge of the amount owing under the Second Facility Agreement (with a sum of approximately $5.78 million paid to the ATO by way of GST). Mr Deiri deposes that, after payment of expenses, $19.28 million was left for distribution (see Mr Deiri’s affidavit sworn on 22 August 2019 at [211]-[212]). Following these payments, it is said that an amount of $34.3 million remained owing on the loan facilities, being the balance under the First Facility Agreement.

394. [484]

     On 17 November 2014, a series of transfers was made out of the Westpac #202 Account to Moustafa’s accounts (see Ex 15 at p 734ff).

395. [485]

     On 14 November 2014, an exclusive agency agreement was signed between Combined Projects Arncliffe and Aust Sunshine Marketing Pty Ltd trading as Home789 (Home789) (the Home789 Agreement). It specified a commission of 4.4%.

396. [486]

     Mr Deiri’s evidence is that, following repayment of the loan to CBA and payment of expenses and GST, there was $19.28 million available for distribution; and that, from mid-November 2014 to January 2015, Mr Deiri distributed this surplus to Investments and Plaza. Mr Deiri’s evidence is that each payment was made in accordance with Jamil’s instructions (see, for example, Mr Deiri’s affidavit sworn on 22 August 2019 at [228]).

397. [487]

     Moustafa accepts that he himself banked two of these cheques (one for $3.35 million and another for $1.65 million) (see, for example, Moustafa’s affidavit sworn on 16 September 2019 at [143]ff).

398. [488]

     On 19 November 2014, cheque #513 was drawn on the CBA Partnership Account for $1.75 million in favour of the “Sayour Family Trust”, signed by Mr Deiri.

399. [489]

     Again, Investments says that this is partnership distribution (i.e., two out of 7).

400. [490]

     The cheque was deposited into the Westpac #202 Account and subsequently that amount was transferred to an account in the name of Moulikyah.

401. [491]

     The same amount was withdrawn from Moulikyah and paid to Combined Projects Arncliffe. Mr Deiri’s evidence is that Jamil gave him a cheque for this amount and said it was a contribution to the Arncliffe project, “towards my share of the Arncliffe Development” (see Mr Deiri’s affidavit sworn on 16 October 2019 at [61]). Mr Deiri’s evidence is that, after Jamil left, Mr Deiri instructed Ms Jennifer Luo to bank the cheque in Combined Projects Arncliffe’s bank account (see Mr Deiri’s affidavit sworn on 16 October 2019 at [62]). Combined Projects Arncliffe’s bank account statement records that a cheque for $1.75 million was deposited on 21 November 2014.

402. [492]

     On 20 November 2014, cheque #514 was drawn on the CBA Partnership Account, signed by Mr Deiri, in favour of CP Redfern for $1.75 million. The cheque was given to Mr Deiri.

403. [493]

     Mr Deiri’s evidence is that, on or around 24 November 2014, Jamil returned to the Deicorp offices and told Mr Deiri that he needed the money back; that Mr Deiri asked “the whole lot?”, to which Jamil replied, “why don’t you give me $1.56 million”; and that Mr Deiri drew a cheque made out to Jamil in the amount of $1.56 million (see Mr Deiri’s affidavit sworn on 16 October 2019 at [64]-[66]). Combined Projects Arncliffe’s bank account statement records a deduction of $1.56 million upon the deposit of a cheque on 24 November 2014.

404. [494]

     On 24 November 2014, cheque # 517 was drawn on the CBA Partnership Account in favour of the Sayour Family Trust in the amount of $3.35 million.

405. [495]

     Investments says this is a partnership distribution (i.e., three out of 7).

406. [496]

     It appears that the cheque was deposited into the Westpac #238 Account by Moustafa on 25 November 2014 at the Lakemba branch. The cheque was signed only by Mr Deiri. According to Moustafa, he was told that this was for settlement from units (see Moustafa’s affidavit sworn on 27 October 2016 at [88]-[93]).

407. [497]

     On 25 November 2014, Westpac advised that the loan in the name of Moustafa and Fatima had been repaid and the security documents were available for collection (see Ex 15 at p 742). It appears that, on 27 November 2014, Moustafa attended the Westpac branch and collected the title documents acknowledging that he had collected them following the discharge of loans (see Ex 15 at p 743).

408. [498]

     Meanwhile, on 26 November 2014, LandMark White provided what appears to be the first valuation of the Arncliffe Site (at $31 million) (see Ex 19).

409. [499]

     On 28 November 2014, Mr Deiri drew a cheque (cheque #522) on the CBA Partnership Account made out to “Sayour Family Trust” for $1.65 million. The cheque was signed only by Mr Deiri. It was deposited into the Westpac #238 Account by Moustafa on 1 December 2014.

410. [500]

     Investments says this is a partnership distribution (i.e., four out of 7).

411. [501]

     On 1 December 2014, according to Moustafa, Jamil gave Moustafa the $1.65 million cheque saying that it was more settlement funds and asking Moustafa to deposit it (see Moustafa’s affidavit sworn on 27 October 2016 at [96]). As noted (see at [499] above), it was signed only by Mr Deiri. Moustafa banked the cheque at the Lakemba branch (see Moustafa’s affidavit sworn on 27 October 2016 at [96]).

412. [502]

     On 11 December 2014, according to Mr Deiri, Jamil asked Mr Deiri to make a distribution from the partnership of $100,000 by payment of a cheque to Combined Projects Arncliffe as a contribution, along with $300,000 to the Sayour Family Trust. On 11 December 2014, Mr Deiri drew a cheque (#527) on the CBA Partnership account in favour of Combined Projects Arncliffe for $100,000. On the same day, a cheque for $300,000 drawn from the CBA Partnership Account was deposited into Westpac #238 Account.

413. [503]

     Investments says these are partnership distributions (i.e., five and six of 7) (see, for example, Mr Deiri’s affidavit sworn on 16 October 2019 at [70]-[71]; and sworn on 22 August 2019 at [217]-[227]).

414. [504]

     Mr Deiri’s evidence is that, in or around late December 2014, Jamil attended the Deicorp offices and handed Mr Deiri a cheque for $5 million (as Sayour Holdings’ contribution to the Arncliffe Development); that Jamil told Mr Deiri that the cheque was for his loan contribution, and asked him to wait until the new year to bank the cheque (see at [74] of Mr Deiri’s affidavit sworn on 16 October 2019).

415. [505]

     Between 2 and 5 January 2015, a total of $4.45 million was transferred from the Westpac #238 Account to the Westpac #833 Account, and then transferred to (Moulikyah’s) Westpac #316 Account (see Ex 15 at pp 785, 1436-9). The transfer from the Westpac #238 Account to the Westpac #833 Account was by five transfers of $100,000 on 2 January 2015 and thirty nine transfers of $100,000 plus one transfer of $50,000 on 5 January 2015. Each of these transfers appears as a debit in the relevant Westpac #238 Account statement. A record of the 2 January 2015 transfers shows the Westpac #833 Account as the receiving account.

416. [506]

     In addition, sums of $13,000, $250,000, and $80,000 were deposited or transferred into the Westpac #316 Account on 5 January 2015 (bringing the total to $4,793,000), and further sums of $50,000, $20,000, $50,000 and $80,000 were deposited on 8 and 9 January 2015 (bringing the total to $4,993,000).

417. [507]

     Therefore, the total transferred or deposited into the Westpac #316 Account in the period 2 to 9 January 2015 was $4,993,000, taking the account balance in that account to $5,020,074. The final payment to the account was entitled “Jamil loan Arncliffe”.

418. [508]

     On 5 January 2015, Mr Deiri drew a cheque (#530) for $250,000 on the CBA Partnership Account, made payable to Moulikyah). Investments says this is the last partnership distribution (i.e., seven out of 7).

419. [509]

     The Deiri Parties say that Jamil’s request for the cheque not to be banked until the new year is consistent with the evidence of the above bank transactions around that time, as it was not until 9 January 2015 that there was enough money in the Westpac #316 Account to clear the payment of a $5 million cheque. Indeed, according to Mr Deiri’s evidence, the cheque was given to Ms Luo, to be banked in the new year.

420. [510]

     The Deiri Parties say that, on the morning of 8 January 2015, Mr Gramelis telephoned Ms Luo, demanding that Jamil be appointed a director of Combined Projects Arncliffe. Mr Gramelis emailed Ms Luo on 8 January 2015 at 11.30 am reiterating that request in the following terms:

421. [511]

     The Deiri Parties note that this email ultimatum is consistent with Mr Deiri’s own account of the events of that morning. Mr Deiri has deposed (see Mr Deiri’s affidavit sworn on 26 June 2017 at [27]; and sworn on 16 October 2019 at [77]) that, after Ms Luo received the phone call from Mr Gramelis, she called him, when he was in Tripoli (Lebanon) (as were Jamil and his family), and they had a conversation to the following effect:

422. [512]

     Mr Deiri’s evidence is that, later that day, he met with Jamil in Lebanon. He says that Jamil told him that he wanted to be a director of Combined Projects Arncliffe, and that this was a condition of his contributing a $5 million loan to the company (see his affidavit sworn on 16 October 2019 at [78]ff).

423. [513]

     It is noted that this account is consistent with what is recorded in Mr Gramelis’ email of the same day.

424. [514]

     Furthermore, Mr Deiri has deposed that he refused this demand and, instead, reiterated his and Jamil’s original agreement (see Mr Deiri’s affidavit sworn on 16 October 2019 at [78]ff). Mr Deiri’s evidence is that this was a departure from the Arncliffe Agreement (under which Jamil was to be a “passive investor” only); and that he told Jamil that he could do the development without Jamil, if need be, and would give back his contributions. Mr Deiri gives evidence that Jamil agreed that Mr Deiri would remain as the sole director (as, again, Mr Deiri says they had originally agreed). Mr Deiri says he said that he would instruct Ms Luo to tear up the cheque and that Ms Luo then did so deposed (see, for example, Mr Deiri’s affidavit sworn on 16 October 2019 at [78]ff).

425. [515]

     Thus, it is said by the Deiri Parties that Jamil never contributed any more than $670,000 in loans to Combined Projects Arncliffe; and Mr Deiri maintains that those loans have all been repaid.

426. [516]

     More specifically, Mr Deiri’s evidence is that, at the meeting with Jamil in Tripoli, he said (see, for example, Mr Deiri’s affidavit sworn on 26 June 2017 at [28]):

427. [517]

     Mr Deiri’s evidence is that, on his return to Australia, he documented the meeting with Jamil in a minute (the Tripoli Minute), stated to be a minute of the meeting of the shareholders of Combined Projects Arncliffe held on 8 January 2015, at which Mr Deiri and Jamil were present (as to which there was much debate – see further below) (see Mr Deiri’s affidavit sworn on 16 October 2019 at [78]-[82]).

428. [518]

     In cross-examination, Mr Deiri confirmed that his evidence is that he prepared the Tripoli Minute on his return to Sydney (see T 968.10). He could not recall if he had typed it up himself (and said that he may have got his assistant at that time to sit down with him) (see T 968.16-17). Mr Deiri said that he used some notes that he had prepared that night when he got back to the hotel and which he had brought back to Australia with him, but that he had not kept those notes (see T 968.21-27). The Tripoli Minute bears a hard copy signature.

429. [519]

     The Sayour Parties challenge the contemporaneity of this document, and allege it was created later in time. However, the Deiri Parties point out that the Tripoli Minute cannot have been created any later than 1 May 2017 because a copy of it was provided to Sayour Holdings’ solicitors on that date. The Tripoli Minute (drafted, self-evidently, in the third person) is as follows:

430. [520]

     The Sayour Parties in their submissions point to a number of features of this document that they maintain are “oddities” (see at [3666]ff below).

431. [521]

     Mr Deiri has given evidence that, in early January 2015, he received a telephone call from Moustafa in which Moustafa asked whether he had given Jamil the cheques and Mr Deiri says that he said, “[y]es he came to pick them all up. We wrote them out in accordance with his instructions. There was about $9 million in total and I told Jamil that we need to leave about $6 million in the account to pay the GST” (see Mr Deiri’s affidavit sworn on 22 August 2019 at [228]).

432. [522]

     On 2 February 2015, Moustafa departed Australia on another overseas trip (returning on 16 April 2015).

433. [523]

     On 9 February 2015, two bank cheques (one for $3 million and one for $2 million) payable to Jamil were purchased from the Lakemba branch of Westpac.

434. [524]

     The Sayour Parties note that, in cross-examination, Mr Deiri gave evidence (the Sayour Parties say that this was volunteered by him) that he was aware, as early as November 2014, that Jamil was going to use the profits generated by the Broadway Development to invest in the project at Arncliffe. In particular, reference is made to the following exchange (at T 892.30-50):

435. [525]

     The Sayour Parties say that Jamil’s “recycling” of funds was not limited to his “rebuffed attempt” to contribute $5 million to Combined Projects Arncliffe. It is said that he was also involved with Mr Deiri in the early stages of development in other Arncliffe sites (including two sites which were immediately adjacent to the Arncliffe Development). The Sayour Parties refer to the following answer in cross-examination as to the events after the 8 January 2015 meeting and Mr Deiri’s evidence that Jamil brought other sites to him (see T 962.37-49):

436. [526]

     It is submitted that the evidence by Mr Deiri that he and Jamil were to “option up some sites” and “offload them and pick up a quick buck or two” under stated the extent of both Jamil’s financial commitment and Mr Deiri’s long-term involvement. In this regard, reference is also made to Ex P (which contains a series of emails, agreements, cheque vouchers, bank statements, reports, maps, caveats, transfers title searches and cadastral maps in respect of other sites at Princes Highway in Arncliffe). It is noted that Mr Deiri conceded that he, through a series of similarly named companies, had obtained options to purchase those other sites and that the option fees were paid by Jamil. It is said that, subsequent to Jamil’s death, the options were either transferred to other companies controlled by Mr Deiri or the land sold by the owners to one of Mr Deiri’s companies.

437. [527]

     The Sayour Parties submit that (relying on Mr Deiri’s evidence, Ex P and Ex 18) the following amounts were paid.

438. [528]

     First, with respect to the property at 132-138 and 140 Princes Highway, it is said that Jamil paid a total of $1.2 million in two amounts ($560,000 and $640,000) in April 2015.

439. [529]

     It appears that copy of the first of those cheques was sent in an email by Mr Deiri. Furthermore, a Heads of Agreement was signed by Mr Deiri and Jamil (both signatures purportedly being witnessed by Ms Dahdal) and an option was granted in favour of Combined Projects (Arncliffe) No 2 Pty Ltd (Combined Projects Arncliffe No 2, a company whose shareholders were CP Holdings and JS75). It is said that Ex 18 shows that, in about April 2018, another of Mr Deiri’s companies, Combined Projects (Wickham St) Pty Ltd (which had been incorporated shortly after Jamil’s death), purchased the site and the property was transferred to it on 24 April 2018. It is said that the source of the funds used to pay for this option were the funds Jamil had “taken” from Plaza through a series of transfers from multiple bank accounts, eventually being deposited into his Bank of Sydney #590 Account (the Bank of Sydney #590 Account).

440. [530]

     The Sayour Parties say that Mr Deiri attempted to explain the transactions by tendering a cheque for $640,000; and appeared to suggest, in re-examination, that Ms Catharine Sayour (Elliot) or “Jamil’s Estate” had been reimbursed for this amount. The Sayour Parties say that there is no proof of this. It is said that the all-moneys mortgage granted by Ms Sayour (Elliot) to Mr Deiri in May 2017 (as to which, see at [665] below) contradicts that evidence. The Sayour Parties note that, when asked about the mortgage, Mr Deiri responded that he had loaned Ms Sayour (Elliot) nearly $800,000 but, despite being re-examined at length and in detail, his evidence to explain where Jamil’s payments finally ended up was expressed at its highest in the following terms (see T 1119.22-27):

441. [531]

     Second, with respect to the property at 172-182 Princes Highway, it is said that, in April 2015, Jamil paid a total of over $1.692 million in two amounts ($200,000 and $1,492,670); and that an option was granted in favour of Combined Projects (Arncliffe) No 3 Pty Ltd (Combined Projects Arncliffe No 3, a company whose shareholders were Combined Projects Holdings and JS75). As above, it is said that the source of the funds used to pay for this option were the funds Jamil had “taken” from Plaza, again through a series of transfers from multiple bank accounts, eventually being deposited into his Bank of Sydney #590 Account. It is said that Ex 18 shows that the option granted to Combined Projects Arncliffe No 3 was rescinded and a new option granted. The deed of revocation states at cl 3(b) that “the Option Fee paid under the Option will be applied to and treated as if it was the Option fee paid under the New Option”. Hence, the Sayour Parties say that the option fee paid under the original April 2015 agreement was to be transferred and stand as the option fee under the newly-granted option in favour of another of Mr Deiri’s companies, Combined Projects (Arncliffe) No 3 Pty Ltd (Combined Projects Arncliffe No 3).

442. [532]

     It is also noted that Ex 18 also includes a cheque payable in December 2016, of Combined Projects Arncliffe No 1. The Sayour Parties say that no explanation as to the source of those funds has been provided (“merely a heavily redacted bank statement” and Mr Deiri’s “rather circumspect explanation” that there was only ever a single amount of $1,692,670 paid and no amount of that money was “recycled” or “flushed” or otherwise paid to Jamil or Ms Sayour (Elliot)).

443. [533]

     Third, with respect to the property at 70-6 Princes Highway, it is said that Jamil paid $280,000 in about July or August 2015. The Sayour Parties say that it appears that a contract for sale was entered into between Combined Projects (Arncliffe) No 4 Pty Ltd (Combined Projects Arncliffe No 4, a company whose shareholders were Deicorp Projects (Arncliffe) No 4 Pty Ltd and JS75) and the owner of the land, Ms Ng. A caveat was lodged on the title. As above, the Sayour Parties say that the source of the funds used to pay for this deposit were the funds Jamil had “taken” from Plaza, again through a series of transfers from multiple bank accounts, eventually being deposited into his Bank of Sydney #590 Account.

444. [534]

     The Sayour Parties note that, in November 2015, just weeks after Jamil’s death and before Mr Deiri proffered the draft deeds to Moustafa and Ms Catharine Sayour (Elliot), the caveat secured by the option was withdrawn and a new caveat registered against the title in favour by another Deiri company, Combined Projects (Princes Hwy) Pty Ltd (Combined Projects Princes Hwy).

445. [535]

     Relevantly, Ex 18 shows that the contract for sale entered into by Combined Projects Arncliffe No 4 was rescinded on condition that a new contract for sale be entered into with Combined Projects Princes Hwy). In similar terms to the deed of rescission with respect to the property at 172-182 Princes Highway, the deed of rescission states at cl 3(b) that, “the deposit paid under the Contract will be applied as the deposit under the New Contract”, hence the deposit paid under the original August 2015 agreement was to be transferred and stand as the deposit under the newly-granted contract in favour of Combined Projects Princes Hwy.

446. [536]

     In re-examination, Mr Deiri asserted that he had paid $280,000 to Ms Sayour (Elliot) and that this was a reimbursement to the estate of the option fee paid by Jamil (see, for example, at T 1116). The Sayour Parties say that there is no evidence to support this assertion. It is submitted that the all-moneys mortgage granted to Mr Deiri over Ms Sayour (Elliot)’s property (see at [665] below) tends to suggest that there was no such reimbursement.

447. [537]

     The Sayour Parties say that the significance of the above to the pleaded cases is as follows: first, that Mr Deiri knew of Jamil’s intention to use profits from the Broadway Development to invest in sites, including the Arncliffe Site, with Mr Deiri; second, that Mr Deiri did not tell Moustafa and, on his evidence, considered that the money was family money or sourced from within the Sayour family (cf his assertion that the investment by Jamil in the sites at Arncliffe, including the Arncliffe Site, was in favour of Jamil alone); third, that the destination of the balance of the remainder of the moneys taken by Jamil is established (namely, that it went into the other Arncliffe sites and has not been returned to Plaza; fourth, that the proposition that Mr Deiri “shut [Jamil] out” of Arncliffe “because of petulance or that he had had enough of him” is inconsistent with their continued and close involvement together in respect of adjacent sites. I interpose to note that Mr Deiri cavils with this suggestion that there was much ongoing involvement – talking simply about “optioning” up sites.

448. [538]

     Meanwhile, on 20 February 2015, an Australia and New Zealand Banking Group (ANZ) facility with Combined Projects Arncliffe to fund the Arncliffe Development was executed (for $98 million, representing 80% of the development costs). Mr Deiri provided guarantees from Deiri Nominees and personally as part of the security (see Mr Deiri’s affidavit sworn on 16 October 2019 at [34]-[38]). Relevantly, I interpose to note also that Mr Deiri’s evidence is that Jamil and Sayour Holdings played no part in obtaining the funding and put up no security (see Mr Deiri’s affidavit sworn on 16 October 2019 at [39]).

449. [539]

     The remaining 20% of development cost was funded by loans from Combined Projects Arncliffe’s shareholders. The Deiri Parties say that, ultimately, Deiri Nominees contributed approximately $21.7 million in shareholder loans to Combined Projects Arncliffe and Jamil contributed $670,000 in shareholder loans. Thus, as a percentage of total shareholder loan contributions, the Deiri Parties say that Deiri Nominees contributed 97% and Jamil contributed 3%.

450. [540]

     ANZ later commissioned a valuation report for the Arncliffe Site from LandMark White (Mr Wiltshire). The report valued the Arncliffe Site at approximately $32.58 million subject to development consent being approved. ANZ also appointed a quantity surveyor to the project, Mr Hammond of Napier & Blakeley, to approve payment claims from Deicorp Constructions (the builder for the payment). An external superintendent, Mr Alex Kyrikos of Momentum, was appointed for the purposes of the Arncliffe Construction Contract (as to which, see at [458]-[460] below).

451. [541]

     On 24 February 2015, a document (the “Arncliffe Loan Agreement”) headed “Arncliffe Loan Agreement” between Deiri Nominees as lender and Combined Projects Arncliffe as borrower was signed by Mr Deiri (for both entities) (and see Mr Deiri’s affidavit sworn on 16 October 2019 at [43]).

452. [542]

     The completion of the Arncliffe Site purchase took place on 24 February 2015 at a purchase price of $18.1 million. I understand that Mr Deiri says that interest started accruing at that time on Deiri Nominee’s loan to Combined Projects Arncliffe. I interpose to note that the Sayour Parties dispute this.

453. [543]

     More particularly, as to the allegation that, on the same date as the settlement of the purchase (being 24 February 2015) of the Arncliffe Site from Brano, there was a loan agreement entered into between Combined Projects Arncliffe and Deiri Nominees providing for compound interest to accrue at 15% on all further advances from Deiri Nominees to Combined Projects Arncliffe, the Sayour Parties say that there is no evidence of any such agreement or acknowledgment by Jamil (or anyone representing the Sayour interests) that Deiri Nominees would be entitled to 15% compound interest on moneys advanced to Combined Projects Arncliffe in addition to Deiri Nominees earning an enhanced profit share on all such moneys, or that Sayour Holdings would not receive any interest on the funds it had advanced to Combined Projects Arncliffe.

454. [544]

     On 10 March 2015, Combined Projects Arncliffe No 2 was incorporated and registered.

455. [545]

     On 11 March 2015, a “Heads of Agreement & Sales Proposal” for the Arncliffe Site was signed by Mr Deiri and Jamil (relating to Combined Projects Arncliffe No 3) (see Ex P). Then, on 23 March 2015, Combined Projects Arncliffe No 3 was incorporated and registered.

456. [546]

     In late March or early April 2015, according to Mr Zafiropoulos, Mr Fadi Ibrahim called Mr Zafiropoulos to invite him to Jamil’s 40th birthday party and said, “[Jamil] mentioned to me [Mr Fadi Ibrahim] that the money for the Arncliffe Development required from you will be needed soon. You should think about getting your money ready as soon as possible” (see Mr Zafiropoulos’ affidavit sworn on 9 October 2019 at [40]).

457. [547]

     Mr Zafiropoulos says that he subsequently attended Jamil’s 40th birthday party in or around April 2015 and Jamil introduced Mr Deiri as “my business partner” (see Mr Zafiropoulos’ affidavit sworn on 9 October 2019 at [43]-[45]). He says that Jamil said that, “you should get your money ready within the next few weeks”.

458. [548]

     On or around 10 April 2015, according to Mr Zafiropoulos, he received approval in principle for a loan in the sum of $1.2 million from CEG Direct Securities to Zapphire (see Mr Zafiropoulos’ affidavit sworn on 9 October 2019 at [2]).

459. [549]

     On 13 April 2015, Mr Gramelis prepared a file note recording having met Jamil and “Moe” at the Broadway Site, having discussed further (via telephone conversation with Jamil) the Moulikyah and Sayour 2 Family Trust activity, and noting that there had been no activity and the nil returns had been agreed to be lodged (see Ex 15 at p 863).

460. [550]

     As noted above, on 16 April 2015, Moustafa returned to Australia.

461. [551]

     On 27 April 2015, Combined Projects Arncliffe entered into a construction contract with Deicorp Constructions in respect of the Arncliffe Development. (the Arncliffe Construction Contract) (see Mr Deiri’s affidavit sworn on 16 October 2019 at [84]).

462. [552]

     According to Mr Zafiropoulos, in May 2015, Jamil called him and said that, “[t]he Arncliffe project is proceeding. I need the agreed investment amount of [$1 million] fast. I will prepare the paperwork for it” (see Mr Zafiropoulos’ affidavit sworn on 9 October 2019 at [46]).

463. [553]

     Mr Zafiropoulos’ evidence is that he transferred moneys to Jamil by electronic funds transfer over the period 31 May 2015 to 8 June 2015 (see Mr Zafiropoulos’ affidavit sworn on 9 October 2019 at [48]). Mr Zafiropoulos says that, on 15 June 2015, he paid Jamil the sum of $169,500 in cash (see Mr Zafiropoulos’ affidavit sworn on 9 October 2019 at [49]). I here note that there was also evidence from a concrete contractor that he observed a bag of cash being given to Jamil, though he could not verify the amount.

464. [554]

     Mr Zafiropoulos says that Jamil told him that he did not have the written agreement for the Arncliffe deal but he would prepare it (see Mr Zafiropoulos’ affidavit sworn on 9 October 2019 at [49]-[52]).

465. [555]

     By letter dated 16 June 2015, CEG Direct Securities confirmed loan approval.

466. [556]

     Mr Zafiropoulos also gives evidence that he called Jamil in late June 2015 telling him that, “[a]s previously requested the agreement needs to be in writing. Have you prepared it or should I prepare it”. He says that Jamil later called him and told him that he had prepared “the written agreement” (see Mr Zafiropoulos’ affidavit sworn on 9 October 2019 at [54]-[63]).

467. [557]

     Mr Zafiropoulos’ evidence is that he attended Biomed’s offices in late June and that Jamil gave him a one page written agreement. Mr Zafiropoulos says that this agreement stated that Mr Zafiropoulos had identified and introduced the Arncliffe site, that Mr Zafiropoulos or his nominee company “would invest” $1 million in the development of Arncliffe and that, in return, Mr Zafiropoulos or his nominee company would receive 50% of the uplift value to be paid from the proceeds at completion. Mr Zafiropoulos says that he insisted that the name of Combined Projects Arncliffe be added to the document and that this was written on the document and he and Jamil initialled it. He says that he took the signed agreement and placed it in his gun safe (see Mr Zafiropoulos’ affidavit sworn on 9 October 2019 at [54]-[63]). Mr Zafiropoulos’ evidence is that he no longer has a copy of the document (following a robbery at his home).

468. [558]

     I interpose to note that no written or electronic copy of any such document has been produced, but for Konstructions it is said that not all of Jamil’s computer records were accessible after his death (and Zapphire points to Mr Zafiropoulos’ evidence of a robbery at his home in which he says his copy of the agreement was stolen as adverted to at [557] above).

469. [559]

     On or around 13 July 2015, Combined Projects Arncliffe submitted a development approval application for the Arncliffe Site to Rockdale City Council (see Mr Deiri’s affidavit sworn on 16 October 2019 at [87]). Development approval was granted in November 2015, in relation to the Arncliffe Development. Mr Deiri says that Jamil had “no meaningful involvement” with the approval process (see Mr Deiri’s affidavit sworn on 16 October 2019 at [89]).

470. [560]

     Mr Zafiropoulos’ evidence is that, in July 2015, he and Jamil had dinner and Jamil told him that, once Arncliffe was complete and “you get paid your fee”, they could redevelop some other sites (see Mr Zafiropoulos’ affidavit sworn on 9 October 2019 at [64]). I interpolate to observe that such a conversation seems somewhat implausible (i.e. about the redevelopment of other sites) moot since, by this time (see at [468] above), Jamil had been diagnosed with stage four lung cancer.

471. [561]

     On 28 August 2015, a valuer, Mr Peter Wiltshire was engaged by ANZ to do an “as is” and “as if complete” valuation of the Arncliffe Site and the Arncliffe project (and see at [564] below).

472. [562]

     Mr Zafiropoulos’ evidence is that, in August or September 2015, he contacted Mr Fadi Ibrahim and asked him. “[h]as Jamil got the bank valuation? I need a copy for my records as our deal relies on it” and that Mr Ibrahim said he was not sure but would ask (see Mr Zafiropoulos’ affidavit sworn on 9 October 2019 at [65]). (I note that no evidence was adduced from Mr Fadi Ibrahim as to this or any of the other conversations to which Mr Zafiropoulos deposes that included him or were allegedly in his presence.)

473. [563]

     In late August or September 2015, Jamil was admitted to Royal North Shore Hospital (see, for example, Moustafa’s affidavit sworn on 8 November 2019 at [49]). Later, in mid-September 2015, Jamil was admitted to St Vincent’s Hospital (see, for example, Moustafa’s affidavit sworn on 8 November 2019 at [49] and [53]-[54]).

474. [564]

     The final valuation report issued for the Arncliffe Site was dated 28 September 2015. That, however, was the date of Mr Wiltshire’s inspection of the Arncliffe Site. His evidence is that the valuation report dated 28 September 2015 was issued to ANZ on about 5 October 2015.

475. [565]

     By the end of September 2015, it appears that Jamil was gravely ill and was to leave Australia for Europe for medical treatment.

476. [566]

     On 29 September 2015, a doctor in Tasmania (Dr Reinheard Hemm) came to Sydney (staying at the Meriton Serviced Apartments in Waterloo from 29 September though to 3 October 2015) for the purpose of providing treatment to Jamil.

477. [567]

     On 30 September 2015, Jamil discharged himself from St Vincent’s Hospital. On his way home from the hospital, he visited the Meriton Serviced Apartments to receive treatment from Dr Hemm (see Dr Hemm’s notes – Ex 8; and see Moustafa’s cross-examination at, for example, T 486.8 – T 487.10; T 622.33-36; T 664.39-665.24).

478. [568]

     Mr Deiri’s evidence is that, while in hospital, he visited Jamil daily (see Mr Deiri’s affidavit sworn on 16 October 2019 at [92]-[93]). Crucially, Mr Deiri also gives evidence that he visited Jamil at the Meriton Serviced Apartments on the day that Jamil left for Germany. Mr Deiri’s account of the conversation on that occasion is that Jamil told Mr Deiri that the Arncliffe Site had been introduced to him through a couple of people, and that Jamil had agreed to pay them a site identification fee (referred to above as the Site Identification Fee(s) – see at [81] above) in the amount of the difference between the valuation of the site and the purchase price, being about $14.4 million. Mr Deiri says, in effect, that Jamil begged him to ensure that Combined Projects Arncliffe paid the Site Identification Fee(s) (see at [94]ff of his affidavit sworn on 16 October 2019).

479. [569]

     Mr Deiri’s mobile telephone records from that month (see Ex 9, and again see, for example, Mr Deiri’s affidavit sworn on 16 October 2019 at [93]ff) show four very short calls between Mr Deiri and Jamil in the morning of the alleged meeting. Mr Deiri says that these were calls asking what apartment number Jamil was in and letting Jamil know he was on his way. The Deiri Parties submit that this itself is corroborative of Mr Deiri’s evidence, as the most logical explanation for there being a flurry of four separate phone calls in such short succession is that the parties to those calls were about to meet and were liaising about logistics, so to speak.

480. [570]

     Additionally, the Deiri Parties say that the progression of locations from which these calls were originating (Kings Cross, Waterloo and Moore Park) shows: first, that Mr Deiri was “on the move”; and second, that by 8.44 am, he was exactly in the area where the meeting is said to have taken place (noting that Moore Park is adjacent to Waterloo and Zetland across the Eastern Distributor). The Deiri Parties note that, from 8.44 am onwards (which Mr Deiri says is the final call before the meeting with Jamil), there was a period of about half an hour without any telephone calls at all. It is said that this is consistent with Mr Deiri being in a meeting with Jamil at this time.

481. [571]

     At 10.01 am, there is a final call between Mr Deiri and Jamil which lasted for one minute and 23 seconds. Mr Deiri says that, in this call, he (Mr Deiri) vented his frustration about Jamil’s imprudent actions, but confirmed he would keep to their “deal”. There then seems to have been no further telephone calls between Mr Deiri and Jamil for the rest of the day.

482. [572]

     It is noted by the Deiri Parties that these telephone records were not obtained until 20 November 2019 (that is, after Mr Deiri swore his 16 October 2019 affidavit setting out the terms of the conversation). It is said that there is no possibility, therefore, that Mr Deiri tailored his evidence by reference to those records and that those records further corroborate Mr Deiri’s recollection of the events of that morning.

483. [573]

     The Deiri Parties say that the fact that Jamil was at the Meriton Serviced Apartments on 30 September 2015 is consistent with Dr Hemm’s notes of the treatments that he gave Jamil while he was in Sydney. The notes relevantly show that Dr Hemm administered treatments to Jamil first on 29 September 2015 and then on 30 September 2015.

484. [574]

     The Deiri Parties say that it is clear from the notes that Dr Hemm administered the very same treatments and/or medications on each of 29 and 30 September 2015, namely: “IUC 30, illy [?], Zinc x 2 – B DOSE, Glut +B12 → 360”. It is noted that the reference to this treatment on 30 September 2015 starts with the word “repeat”, suggesting that it was a repeat of the previous day’s treatment (which the identical description of the treatment already suggests). The treatment was described by Yesmine as “vitamin infusion therapy”. It is noted that it also appears that Dr Hemm took Jamil’s blood pressure, obtaining readings of 132/82 and 118/78.

485. [575]

     The Deiri Parties say that it follows that this appointment of 30 September 2015 occurred face-to-face (rather than, for example, by teleconference) and that there can therefore be no question that Jamil attended upon Dr Hemm on 30 September 2015 for a medical appointment.

486. [576]

     Next, it is noted that the Meriton reservation confirmation records show that Dr Hemm was originally booked to stay at the Meriton Serviced Apartments at 30 Danks Street, Waterloo from 29 September 2015 to 3 October 2015 but that he ultimately stayed from 8.24 pm on 29 September 2015 to 9.20 am on 1 October 2015.

487. [577]

     It is noted that there are two links between the Meriton records and Dr Hemm’s own notes from this period. Relevantly, Dr Hemm’s notes contain these notations:

488. [578]

     It is said that the notes in Dr Hemm’s diary were a record of his disbursements, presumably as a reminder for him to “add” these to his invoice to the Sayours ($990 for the two days’ accommodation, and $20 for the swipe card that he evidently lost). It is submitted that this further confirms that Dr Hemm was staying at the Meriton Serviced Apartments and that these notes relate to that period of time.

489. [579]

     The Deiri Parties say that there is also corroboration in Moustafa’s evidence that Jamil went to the Meriton Serviced Apartments at Waterloo on his discharge from hospital, referring to the fact that Moustafa (asked about Jamil’s self-discharge on 30 September 2015 and about his affidavit evidence that Jamil then went straight home) confirmed that Jamil did go to see Dr Hemm at the Meriton Serviced Apartments in Waterloo to receive injections.

490. [580]

     It is noted that, in re-examination, the Sayour Parties suggested that this line of questioning was ambiguous as to dates, and that Moustafa’s confirmation that Jamil went to receive treatment from Dr Hemm at the Meriton Serviced Apartments in Waterloo was not necessarily a confirmation that this occurred on 30 September 2015 (as opposed to 29 September 2015). However, I note that, in clarification by me, Moustafa confirmed that his answers were about 30 September 2015 (see at T 664 – T 665). The Deiri Parties contend that Moustafa expressly confirmed in cross-examination what was already suggested by Dr Hemm’s records: that there was a visit by Jamil to Dr Hemm at the Meriton Serviced Apartments in Waterloo on 30 September 2015. They say that this further corroborates Mr Deiri’s account of the events of that morning.

491. [581]

     Insofar as Yesmine and her husband (Mr Assad), in their respective affidavits, each give evidence of Jamil’s movements and whereabouts in the final days of September 2015 (said by the Deiri Parties to be with the evident purpose of contradicting Mr Deiri’s evidence that he met with Jamil on 30 September 2015, since each refers to the relevant paragraphs of Mr Deiri’s affidavit sworn on 16 October 2019), the Deiri Parties say that neither affidavit is focussed on the correct day.

492. [582]

     More particularly, the Deiri Parties note that Yesmine gives an account of Jamil’s visit to Dr Hemm at the Meriton Serviced Apartments on 29 September 2015; that she recounts that the Meriton Serviced Apartments was the location chosen for the treatments because St Vincent’s Hospital would not allow Dr Hemm to provide the vitamin infusion therapy to Jamil at the hospital; that Yesmine took Jamil to see Dr Hemm at the serviced apartments, along with her husband, and her sisters’ husbands; that the treatment did not take too long; and that, after it was done, Jamil returned to St Vincent’s Hospital. Mr Assad corroborates this evidence, recording that he was one of the parties who took Jamil to the Meriton Serviced Apartments at Waterloo on 29 September 2015. He records that the visit took no more than two hours. Mr Assad’s affidavit adds that, during this 29 September 2015 visit to Dr Hemm, Jamil did not have any visitors.

493. [583]

     The Deiri Parties emphasise that Mr Deiri has never claimed that he visited Jamil on 29 September 2015: his evidence is that he visited Jamil on 30 September 2015.

494. [584]

     As to the 30 September 2015 date, the Deiri Parties note that Mr Assad says nothing about what occurred on 30 September 2015. They accept that it may well be that Mr Assad was not with Jamil on that date. However, they contend that Yesmine’s affidavit is misleading in this regard, noting that (at [71]-[74] of her affidavit sworn on 8 November 2019) Yesmine deposes as follows:

495. [585]

     It is submitted that this evidence (again, said to be clearly intended to be responsive to Mr Deiri’s evidence that he had a meeting with Jamil on 30 September 2015) is calculated to undermine or contradict Mr Deiri’s evidence and is apt to suggest that Jamil was taken straight home from St Vincent’s Hospital and, thence, straight to the airport. The Deiri Parties say that it is clear from Dr Hemm’s notes that Jamil was taken to the Meriton Serviced Apartments in Waterloo a second time to see Dr Hemm; yet Yesmine did not mention this second visit. It is conceded that one possibility is that Yesmine was not with Jamil that morning (which it is said “might explain the careful and conspicuous absence of any references to her own involvement that morning until the farewell at the airport”, referring to statements such as, “the family took him home”, “an ambulance took Jamil to the airport” and “Dr Serge met Jamil and the family at the airport”. However, it is submitted that, if Yesmine was not with Jamil during those hours that morning before Jamil arrived at the airport, then the drafting of these paragraphs “suggests that Yesmine was at pains to conceal this”, and to leave instead the impression created by her earlier evidence (at [56] of her affidavit sworn on 8 November 2019) that:

496. [586]

     It is submitted that, if Yesmine was not with Jamil in those hours before the airport, then her evidence on this topic is “worthless”; on the other hand, if Yesmine was with Jamil, the omission of any reference to the second visit to the Meriton Serviced Apartment in Waterloo that morning is said “even more damning”. It is said that, if Yesmine was with him, then she must have known that Jamil went to see Dr Hemm that morning, and yet she deliberately refrained from making any mention of it (despite her detailed account of the visit of the earlier day, and despite her appreciation of the importance of the issue of whether Jamil was at the serviced apartments that morning, as Mr Deiri had deposed).

497. [587]

     The Deiri Parties say that the motive for concealing the fact that Yesmine went with Jamil to visit Dr Hemm a second time is obvious: that she was there when Mr Deiri visited Jamil, and that she is not putting forward her recollection of their conversation. It is submitted that that conversation must necessarily have been adverse to interest, otherwise she would have simply given her account of it.

498. [588]

     In these circumstances, the Deiri Parties submit that an inference of the kind described by Handley JA in Commercial Union Insurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 (Ferrcom) at 418E-419G (with whom Kirby P (as his Honour then was) agreed) should here be drawn (i.e., that, because the Sayour Parties could have adduced evidence about Jamil’s whereabouts on the morning of 30 September 2015 and have failed to do so, inferences adverse to their case can more confidently be drawn; as to which, see below). It is said that somebody in the Sayour family helped Jamil to discharge himself from St Vincent’s Hospital on the morning of 30 September 2015 and then took him to the serviced apartments, and yet that someone has not given evidence about this.

499. [589]

     The Deiri Parties further contend that the evidence here goes beyond a Fercomm inference. It is submitted that Yesmine’s affidavit supplies an affirmative basis for an adverse inference. It is said that, whether Yesmine was with Jamil on the morning of 30 September 2015 prior to the airport or not, the drafting of her affidavit makes clear that she has sought to conceal something (either her absence from the morning’s events, or Jamil’s second visit to Dr Hemm) and that, either way, this was done with a view of leading to a conclusion (which the Deiri Parties say is contrary to the fact), that Jamil was not at the Meriton Serviced Apartments on the morning of 30 September 2015 and was not visited by Mr Deiri.

500. [590]

     As to which members of Jamil’s family were with him at the Meriton Serviced Apartments, insofar as the Sayour Parties submit that Mr Deiri has given evidence that Jamil had no family members with him at the Meriton apartment (and argue that Mr Deiri’s account is improbable, because some family must have been with Jamil), the Deiri Parties say that the submission by the Sayour Parties is simply wrong. More specifically, the Deiri Parties note (see particular at T 1009fff) that what Mr Deiri said, when asked who opened the door to the apartment, was “I can’t recall”; and that, in the course of answering a question about what he saw when he went inside, he said “I think someone had opened the door and there was someone lying on the floor”; when asked whether he recognised the person on the floor, he said “No”; and when asked whether he spoke to the person who opened the door, he answered “I can’t remember who I spoke to but obviously I would have said ‘Hello’ to someone”.

501. [591]

     It is noted that Mr Deiri was not asked whether the person who opened the door could have been a member of Jamil’s family nor was he asked whether the person on the floor could have been a member of Jamil’s family, or as to the extent to which he was able to recognise every such member. It is submitted that, “[b]oth the person who opened the door and the person lying on the floor are candidates to be members of Jamil’s family” and that the Sayour Parties’ submission is therefore based on a false factual premise.

502. [592]

     The Deiri Parties say that the Sayour parties’ failure to call Dr Hemm also enables the inference more confidently to be drawn that his evidence in relation to the events of 30 January 2015 would not have assisted. It is noted that Dr Hemm is the only person from whom there exists objective documentary evidence showing that he was at the meeting with Jamil at Meriton Serviced Apartments on 30 January 2015; and that Dr Hemm could have given evidence about what treatments he administered to Jamil, how long the appointment lasted, how many people were in the room, whether any of them left came or went and what conversations took place. As Dr Hemm was not called as a witness, it is submitted that it should be inferred that the evidence that he would have given on these matters would not have assisted the Sayour Parties.

503. [593]

     Pausing here, I note that, on 3 July 2019, Mr Deiri and Deiri Nominees filed their third cross-claim in the Arncliffe Proceedings (again, the Third Arncliffe Cross-claim) (see at [56] above), in which it was alleged that, at this 30 September 2015 meeting, Jamil told Mr Deiri: that the Arncliffe Site was introduced to him by Mr William Zafiropoulos (see [47](a)); that Jamil had agreed to pay Mr Zafiropoulos a fee for introducing the site, assessed by the difference between the valuation of the site with an approved development consent for the construction of residential apartments, on the one hand, and the purchase price of the site, on the other hand (see [47](b)); that the Arncliffe Agreement was then varied to the effect that Combined Projects Arncliffe would pay the Site Identification Fees (as I have defined above) that Jamil had agreed with Mr Zafiropoulos (see [48]); that, on about 28 March 2018, Mr Deiri received two invoices from Mr Zafiropoulos which directed payment in respect of the Site Identification Fees (see [61]); and that, on about 29 March 2018, Mr Deiri caused Combined Projects Arncliffe to pay the amounts invoiced to the entities nominated by Mr Zafiropoulos (see [62]).

504. [594]

     Furthermore, the Sayour Parties note that: on 19 July 2019, Konstructions filed a defence in the proceedings, in which it pleaded (at [16]) that the payment of to it of $7,920,000 “was moneys owed to Konstructions as a fee for site assistance”; on 22 July 2013, Zapphire filed its defence to Combined Projects Arncliffe’s first cross-claim, in which Zapphire pleaded that Mr Zafiropoulos agreed with Jamil that he would receive one half of the uplifted value amount (at [59]) and that Combined Projects Arncliffe then ratified the agreement by paying the sum of $7,898,000 to Zapphire in March 2018 (at [63]); and on 29 August 2019, Konstructions filed and served an amended defence which no longer pleaded that the fee paid to Konstructions was “a fee for site assistance”, and instead alleged (at [14B]-[14S]) that the fee was for various other services rendered by Mr Kanj to Jamil after the site had already been identified, and in consideration for the cancellation of Jamil’s alleged agreement to engage Mr Sam Kanj as manager of the Arncliffe Site at the rate of cost plus 15% plus a share of profit.

505. [595]

     The Sayour Parties say that the problem then faced by Mr Deiri, after the recipients of the “site fees” had filed and served their defences, was that they “had not got their stories straight”, noting that Mr Deiri had originally pleaded that only Mr Zafiropoulos had assisted with identifying the site, and that 100% of the uplift amount was paid to, or at the direction of, Mr Zafiropoulos.

506. [596]

     The Sayour Parties place significance on the fact that, when Mr Deiri made swore his affidavit of 16 October 2019, he recounted his alleged conversation with Jamil of 30 September 2015 without mentioning Mr Zafiropoulos’ name. It is noted that (at [96] of that affidavit) Mr Deiri says that Jamil told him that, “the Arncliffe site was introduced to me through a couple of people”, and that Jamil had agreed to pay “them” the difference between the valuation and the purchase price. The Sayour Parties say that, having resiled from his initial story (that Jamil told him that Mr Zafiropoulos had identified the site), Mr Deiri was “now left with a story where Jamil does not tell him, and he does not ask, who identified the site”. It is submitted (and I agree) that it strains credulity that Mr Deiri would not seek to find out from Jamil the persons to whom this very substantial fee would have to be paid. The Sayour Parties point to the fact that it was not until well after the hearing of this matter had commenced that Mr Deiri gave “a definitive account” of that meeting.

507. [597]

     The Sayour Parties also say that fatal to the credibility of Mr Deiri’s account of the 30 September 2015 meeting is his statement that Jamil told him (see at [96] of Mr Deiri’s affidavit sworn on 16 October 2019) that:

508. [598]

     I discuss in due course the significance of the timing of the valuation evidence in light of the specificity of what Mr Deiri says Jamil told him at this meeting about the quantum of the fee. Mr Deiri’s evidence is that he was alarmed and upset at the disclosure of the agreement to pay Site Identification Fee(s). However, he has deposed that he was concerned that if he did not agree that Combined Projects Arncliffe would make the payments, Combined Projects Arncliffe could be pursued for payment or a caveat might be lodged in respect of it; and that this could disrupt the Arncliffe project and cause ANZ to withdraw its funding. His evidence is that, at the time, there was a significant number of pre-sales of residential apartments for the development (and, if the funding was withdrawn, it is said that those purchasers would be left aggrieved) and also that various of the Deicorp Entities had facilities with lenders of over $400 million and he was concerned that, if ANZ withdrew its funding, other lenders would do the same, disrupting those other projects.

509. [599]

     Mr Deiri’s evidence is that he agreed with Jamil that Combined Projects Arncliffe would pay the $14.4 million site fee but also that Deiri Nominees would charge a development management fee of about 7% of overall costs of the development.

510. [600]

     Mr Deiri’s evidence is that when he got back to the office after the meeting with Jamil, he asked an employee (Mr John Vamvakaris) to prepare a development management agreement to document the Development Management Fee and Site Identification Fee(s).

511. [601]

     In particular, the Sayour Parties note that Mr Deiri’s evidence is that, when he got back to the Deicorp office after his meeting with Jamil, he went “straight to John Vamvakaris’ office”, where they had a conversation where Mr Deiri says he told Mr Vamvakaris: that Jamil told him he had “made some deal with some people who introduced the site to pay him [sic] an uplift fee”; that the fee was “around $14.4 million”; and that Jamil told Mr Deiri that that figure was “the difference between the purchase price of the land and the valuation of the site with approvals” (again, see at [100] of Mr Deiri’s affidavit sworn on 16 October 2019).

512. [602]

     Mr Vamvakaris (who says he was overloaded with work at the time) says he did not prepare the agreement until March 2016. Mr Vamvakaris also deposes to a conversation broadly consistent with Mr Deiri’s account, though relevantly, Mr Vamvakaris did not depose to a figure of around $14.4 million being the fee or as to how exactly the difference between the valuation and the purchase price was to be used to work out the site fee (see Mr Vamvakaris’ affidavit sworn on 5 November 2019 at [21]-[23]).

513. [603]

     In that regard, Mr Deiri has deposed to the conversation specifically as follows (see Mr Deiri’s affidavit sworn on 16 October 2019 at [100]):

514. [604]

     The Sayour Parties say that there is a compelling Allen v Tobias (1958) 98 CLR 367; [1958] HCA 13 inference against Mr Vamvakaris’ evidence, he being “firmly tied economically” to Mr Deiri. It is noted that Mr Vamvakaris says that he only kept the draft agreement on a USB stick (and “momentarily” on a laptop of which he has since disposed). It is said that Mr Vamvakaris’ account of the valuation fee conversation cannot be true because the valuation was not available at that time. The Sayour Parties say that Mr Deiri and Mr Vamvakaris have not been frank about how and when they obtained the valuation figure, and say that, as a consequence, their only explanation is one that is not the truth; and they have withheld the true explanation. The Sayour Parties say that Mr Vamvakaris’ testimony should not be accepted as truthful.

515. [605]

     I deal with credibility issues and other contested factual findings in due course.

516. [606]

     With the preceding in mind, it is convenient here briefly to make some further observations regarding the impugned Site Identification Fees.

517. [607]

     As to the Development Management Agreement (defined at [81] above), the definition of “Site Identification Fee” is that:

518. [608]

     As adverted to (at [564] above) Mr Wiltshire (of Landmark White) prepared the Landmark White valuation from which the $32.58 million figure is derived. The valuation date is stated to be 28 September 2015.

519. [609]

     I understand that the Sayour Parties accept that if the Landmark White valuation had been given to Mr Deiri or to Jamil or to Combined Projects Arncliffe, on the valuation date of 28 September 2015, it would have been possible: for Jamil to have referred to a figure derived from that valuation of “about $14.4 million” in his 30 September 2015 conversation with Mr Deiri; and for Mr Deiri then to have immediately told Mr Vamvakaris that the fee was around $14.4 million, based on the difference between the Landmark White valuation and the purchase price for the site. (I interpose here to note that, by September 2015, Jamil was by all accounts gravely ill. He had been admitted to hospital in September 2015. On 29 and 30 September 2015 he was receiving treatment from Dr Hemm in preparation for his flight to Germany for further (as I understood it radical) treatment. It seems implausible that Mr Wiltshire’s valuation report would have been central to Jamil’s mind even if it was provided to him at that time which is unlikely since it was not formally issued to ANZ until 5 October 2015 (see below).

520. [610]

     The Sayour Parties point to Mr Wiltshire’s evidence (in his affidavit affirmed on 14 October 2019) to the effect that: he is a certified practising valuer and was, in 2015, a director of Landmark White (at [4]-[5]); Landmark White was engaged by ANZ on about 28 August 2015 to prepare an “as is” valuation of the Arncliffe Site (at [11]); on about 28 September 2015, he inspected the Arncliffe Site for the purpose of carrying out the valuation for ANZ; and on or around 5 October 2015, he issued the valuation report for the Arncliffe Site dated 28 September 2015 to ANZ (at [16]). Further, they note that Mr Wiltshire’s engagement letter from ANZ provides that the “contents and purpose of the report and the value estimate must not be revealed by you to anyone including the customer other than ANZ”.

521. [611]

     It is noted that Mr Wiltshire said in cross-examination (see T 1156.42 – T 1157.5) that he would have read ANZ’s engagement letter; that it is not his practice to disregard an instruction from his principal such as that; and that he has no recollection of having disclosed his value estimate to anyone other than ANZ.

522. [612]

     The Sayour Parties say that Mr Deiri has not given evidence to explain how Jamil supposedly knew, as of 30 September 2015, what valuation amount would be stated in a valuation report that was not issued until after that date; and they submit that his evidence that he remembered that he had received the valuation figures while the report was still being prepared (which they say would require a finding that Mr Wiltshire disregarded his instructions) is a “transparent ruse”.

523. [613]

     The Sayour Parties say that the inference that the reference to the $14.4 million figure is a concoction devised after Jamil’s death is strengthened by Mr Kanj’s evidence, in his affidavit sworn on 20 September 2019 (see at [37]), that Jamil told him in mid to late 2013 or possibly “[a] short time later (maybe weeks)”, that Jamil had “done the deal with Fouad” and that Jamil assured Mr Kanj that “[a]t the end of the project, he’ll pay you $7.2 million plus GST”. It is noted that in cross-examination Mr Kanj said (see T 1284.12-13) that his initial conversation with Jamil regarding the Arncliffe Site “would have been July or June or something”, which the Sayour Parties say would place the conversation in which Jamil adverted to the $7.2 million plus GST figure some time well before the end of 2013.

524. [614]

     The Sayour Parties regard as suspicious the fact that the $7.2 million figure that Jamil is said to have nominated to Mr Kanj sometime in 2013 is exactly half of the $14.4 million figure that Jamil allegedly nominated to Mr Deiri on 30 September 2015. It is said that, even if one assumes that Mr Wiltshire (in breach of his duty to his principal) told Mr Deiri (or Mr Vamvakaris) before 5 October 2015 that the valuation amount would be $32.58 million, it is not possible that Jamil knew in 2013 that half of the uplift amount would be $7.2 million because not only had no valuation been conducted as of 2013, but the purchase price had not yet been agreed with Mr Dale. It is noted that it is common ground that the purchase price for Arncliffe of $18.1 million was not agreed between Mr Deiri and Mr Dale until January 2014.

525. [615]

     The Sayour Parties say that Mr Kanj’s assertion that Jamil happened precisely to identify in 2013 half of the uplift amount of the Arncliffe Site as $7.2 million is preposterous, and they say that Mr Deiri’s corresponding assertion that Jamil identified the full amount of the uplift as $14.4 million several days before the valuation report was even issued to ANZ bank is “only slightly less so”.

526. [616]

     The Sayour Parties say that there are other discrepancies and incongruities in Mr Deiri’s account of how the alleged site identification fee arrangement came to be.

527. [617]

     First, insofar as Mr Deiri says that Jamil had no family members with him (as to which, see at [590] above) at the Meriton Serviced Apartments (again, see T 1009ff), the Sayour Parties say that it seems inherently improbable that Jamil (dying of cancer and about to fly to the airport and leave Australia for the last time) would abandon (or be abandoned by) all of his family members after having discharged himself from hospital to receive treatment to give him the strength to fly to Europe. It is noted that Jamil left the hospital around 6.00 am, and yet was at the Meriton Serviced Apartments at 8.20 am (again, the Sayour Parties say that, according to Mr Deiri’s account, this was with no family support but the Deiri Parties dispute this). It is also noted that, on Mr Deiri’s evidence, Mr Deiri drove through peak hour traffic, parked the car, got to the Meriton Serviced Apartments and found the room, only then to have “a 15-minute meeting with his dear friend whom he is seeing for the last time, before leaving”. (Pausing there, while it transpired that this was the last time that Mr Deiri would have seen Jamil, there is nothing to say that it was necessarily understood by Mr Deiri, or others, at the time that Jamil would not return alive to Australia. Presumably, the trip to Germany was with a view to prolonging Jamil’s life). Nevertheless, it is submitted by the Sayour Parties that the “story” had to fit the meeting between the phone calls in the Telstra record; and that it is nonsense. The Sayour Parties say that all that happened that day were “a few phone calls”. It is also said that it is fiction to suggest that there was a Combined Projects Arncliffe shareholders’ meeting of the same day (notwithstanding that Mr Deiri was unwilling to concede this).

528. [618]

     Second, that Mr Deiri says that he sought no legal advice in respect of the Development Management Agreement, despite Mr Vamvakaris having expressed incredulity to Mr Deiri regarding Jamil’s insistence that site fees were payable and that, despite Mr Deiri being so worried about a possible caveat, he “did not bother” to consult one of his lawyers.

529. [619]

     Jamil left Australia for Germany on 30 September 2015. Jamil died in Germany on 5 October 2015.

530. [620]

     Jamil’s funeral was held on or around 9 October 2015. Moustafa says that on or around that date he had a discussion with Mr Deiri in which Mr Deiri told him that Jamil had more than $5 million in his bank accounts (see Moustafa’s affidavit sworn on 27 October 2016 at [27]). Meanwhile, Mr Deiri’s account is that, some time in October 2015, Moustafa called him to ask for help in retrieving money that Jamil had left in the Bank of Sydney account (see Mr Deiri’s affidavit sworn on 22 August 2019 at [243]ff).

531. [621]

     In or around early October 2015, ANZ asked Mr Peter Hammond of Napier & Blakeley to provide a quote for an independent quantity surveyor’s report on Arncliffe (see Mr Hammond’s affidavit sworn on 12 September 2019 at [6]).

532. [622]

     On 9 November 2015, Moustafa signed a tax return for the Sayour Family Trust declaring partnership income of some $12 million from the Broadway Development (see Ex 15 at p 1071). (This is highly relevant as gainsaying Moustafa’s claim that Plaza did not receive partnership distributions).

533. [623]

     Mr Deiri’s evidence is that, some time after Jamil’s death, he received a telephone call from an acquaintance, Mr Greg Gav (a property developer with whom Mr Deiri had worked previously) and had a conversation in which Mr Gav told him that he had received a telephone call from a dentist named “Bill”, who had said he “has done some deal with [Jamil] at Arncliffe property”. Mr Deiri says that he replied that “I know about the deal. Jamil spoke to me before he went to Germany. [Moustafa] is accusing me of all these things. Arncliffe has years to go before completion, I just need to get the project completed. I will talk to Bill later”. The “Bill” to which this conversation referred is understood to be Mr Zafiropoulos (and see Mr Deiri’s affidavit sworn on 16 October 2019 at [103]).

534. [624]

     Mr Zafiropoulos has given evidence that when Jamil died he (Mr Zafiropoulos) wanted to contact Mr Deiri but did not have his number; that about two weeks after Jamil’s death he contacted Mr Gav who he knew had a close relationship with Mr Deiri and asked him to contact Mr Deiri about “a fee that my company Zapphire is to be paid in relation to a development site in Arncliffe” and that he needed to discuss it with Mr Deiri. He says that Mr Gav responded to him a week later and said that Mr Deiri “knows who you are and how much is to be paid to you but he will deal with it once the site is completed” (see Mr Zafiropoulos’ sworn on 9 October 2019 affidavit at [72]-[74]).

535. [625]

     Mr Gav’s evidence is that (see his affidavit affirmed on 25 October 2019 at [11]):

536. [626]

     Mr Deiri has deposed that, in early October 2015 (after Jamil had died and his body had been returned to Australia but before a meeting which took place on 14 October 2015 – see at [627] below), he spoke to Ms Sayour (Elliott), Jamil’s partner and the mother of their three children, and that: Ms Sayour (Elliott) told him that she was aware of a project at Arncliffe; Mr Deiri confirmed his involvement; Mr Deiri told her that when the project was finished and the units sold, she would receive some of the proceeds of the sale; and that this, “should be enough for you and your kids to get back on your feet” (see Mr Deiri’s affidavit sworn on 2 November 2016 at [22]).

537. [627]

     At around this time, there was a dispute between Moustafa and Ms Sayour (Elliott) in relation to the moneys held in Jamil’s Bank of Sydney account. Mr Deiri gave evidence that a meeting took place between Moustafa and Ms Sayour (Elliott) at Mr Deiri’s office on or around 14 October 2015 (see Mr Deiri’s affidavit sworn on 2 November 2015 at [24]); and that a further meeting took place some days later at Mr Deiri’s office (on which occasion it seems that a lawyer was present (see Mr Deiri’s affidavit sworn on 2 November 2016 at [27]).

538. [628]

     On 8 December 2015, Mr Deiri sent an email to Moustafa, via Jamil’s email account, attaching two draft settlement deeds providing for a resolution of the dispute with Moustafa and Ms Sayour (Elliott), with a note by Mr Deiri that “I’ve made sure they stayed [sic] simple, which is better for everyone”. The proposed deeds were between Moustafa and his related entities, on the one hand, and Ms Sayour (Elliott).

539. [629]

     The first deed set out (at cl 2) that:

540. [630]

     The second deed was drafted as a loan agreement. Clause 2 of that draft sets out that:

541. [631]

     As to the draft deeds prepared in December 2015, the Sayour Parties note that, in cross-examination of Mr Deiri, there was the following exchange (see T 956.46 – T 957.7):

542. [632]

     Mr Deiri admitted in cross-examination that deeds were prepared regarding the proposed settlement (see, for example, at T 1076.38ff). (Pausing there, a hallmark of Mr Deiri’s approach at least in documentation the subject of these proceedings seems to have been to “keep them simple” – see for example at T 1046.41-42.)

543. [633]

     The Sayour Parties point out that the first draft deed acknowledges that Moustafa has an interest in the “Arncliffe Project” as defined and the deed seeks to assign that interest to the “Jamil Family Trust”. They say that there is no evidence that a trust known as the “Jamil Family Trust” existed at the time or exists now.

544. [634]

     Clause 3 contains a definition of “Moustafa Sayour” and his “Related Entities” and it is noted that it would encompass both Plaza and Sayour Holdings as well as the Sayour Family Trust and the Sayour 2 Family Trust.

545. [635]

     The Sayour Parties also note that there is no mention in the draft deeds of Jamil’s contributions (by payment of option fees) in respect of three other properties at Arncliffe, although (by the time of his death) Jamil had paid sums of $1.2 million, $280,000 and $1,692,000 in options fees from his personal accounts at the Bank of Sydney (it is said for the benefit of companies of which Mr Deiri was sole director and which other of Mr Deiri’s companies would eventually “pick up” after his death).

546. [636]

     The Sayour Parties say that the proposal in the deed assumes that Ms Sayour (Elliot) would be in a position to recover from the Arncliffe Development an amount of at least $2 million. It is said that, were this not the case, she would have been placed (by lawyers retained on her behalf) in a position where she was being advanced a sum which she could not hope to repay beyond the possible receipt of $670,000. It is noted that, in circumstances where the shareholder debts were subordinate to the bank, even this sum was not certain to be paid to her.

547. [637]

     It is noted that Mr Deiri in cross-examination said the following in relation to this issue (see at T 1027.6-22):

548. [638]

     Pausing here, I note that the Sayour Parties say that the draft deeds presented to Moustafa and Ms Sayour (Elliot) are evidence that in December 2015: Mr Deiri knew that Moustafa was a director of Sayour Holdings or that Plaza’s profits from the Broadway Development had been applied to the development carried out by Combined Projects Arncliffe (in that, if this were not the case, the first “release” deed would not have been necessary); Mr Deiri believed that the Sayour family was likely to receive a substantial profit from the Arncliffe Development (it is said that this belief is evidenced by the proposal predicated upon more than $2 million profits from Combined Projects Arncliffe; Mr Deiri was unaware of the alleged claims of Mr Kanj (and Konstructions) and Mr Zafiropoulos (and Zapphire) and there was no Development Management Fee agreement and nor was there an agreement to pay substantial interest (since those arrangements have the practical effect of giving no assurance that there would be any amount of profit available to the shareholders of Combined Projects Arncliffe); and there was no concern that Moustafa or Ms Sayour (Elliot) was likely to assert or protect an interest in the Arncliffe Site by way of caveat.

549. [639]

     The Sayour Parties say that these conclusions are reinforced by the “total silence” concerning any of the Development Management Agreement, Site Identification Fees, Arncliffe Agreement and interest agreement.

550. [640]

     It is noted that, on receiving the proposed deeds, Moustafa contacted Mr Deiri; told him the proposed deeds did not reflect his understanding; and threatened to take Mr Deiri to court. The Sayour Parties place emphasis on the fact that Mr Deiri accepted in the course of cross-examination that Mr Sayour threatened legal action against Mr Deiri after receipt of the proposed deeds. It is said that Moustafa’s threat to sue occurred only after he was presented with the proposed deeds, the subject matter of which was entirely directed towards releasing any interest Sayour Holdings had in Combined Projects Arncliffe. It is submitted that it follows that Mr Sayour did not abandon Sayour Holdings’ interest in Arncliffe; rather, when that proposal was proffered to him in the draft deeds, he threated (and then commenced) legal action to enforce Sayour Holdings’ rights.

551. [641]

     The Sayour Parties say that this episode was an attempt “to get Moustafa out of Arncliffe” and that, by this conduct, Mr Deiri implicitly recognised that Moustafa had a real and substantial interest in the Arncliffe Development.

552. [642]

     On or about 27 April 2015, the Arncliffe Construction Contract was entered into between Deicorp Constructions (i.e., Deicorp Constructions as here defined, not Deicorp – see at [11] above).

553. [643]

     Clause 40 of the Contract, entitled “Variations”, provided (see cl 40.1) that the “Superintendent” may direct the “Contractor” inter alia: to increase or decrease any part of the work under the Contract; to change the character or quality of any material or work; and/or to execute additional work.

554. [644]

     Clause 40.2 provided that, upon receipt of a notice from the Superintendent notifying the Contractor of a proposed variation under cl 40, the Contractor shall notify the Superintendent whether the proposed variation can be effected and, if the variation can be effected, the Contractor shall: notify the Superintendent of the effect which the Contractor anticipates that the variation will have on the “Contractor's Program” and time for “Practical Completion”; and provide an estimate of the cost (including delay or disruption costs, if any, and the cost or effect on any applicable warranty) of the proposed variation.

555. [645]

     Clause 42, entitled “Certificates and Payments”, contained cl 42.1 (entitled “Payment Claims, Certificates, Calculations and Time for Payment”), which provided, inter alia, that:

556. [646]

     Pausing here, I note that the Sayour Parties submit that a purported payment certificate of the Superintendent under cl 42.1 of the Arncliffe Construction Contract is not given in accordance with the requirements of that contract unless: it is supported by evidence and information (as required by cl 42.1); and the Superintendent, in exercising his functions under cl 42.1, honestly and fairly arrived at a reasonable measure or value of the work as required (by cl 23). That, however, does not take into account that it was for the Superintendent to determine what evidence and information was reasonably required and any breach by the Superintendent of his duties would not necessarily invalidate the payment certificate.

557. [647]

     Further, cl 42.1 of the Arncliffe Construction Contract provided that:

558. [648]

     Clause 11 of the Arncliffe Construction Contract (entitled “Provisional Sums”) provided:

559. [649]

     The relevant amount for profit and attendance under “Part A” of the Arncliffe Construction Contract is 15%.

560. [650]

     In about December 2015, construction works began at Arncliffe (see Mr Deiri’s affidavit sworn on 16 October 2019 at [90]). As noted (at [551] above), the building contract with Deicorp Constructions was signed on 27 April 2015.

561. [651]

     In around November 2015, Moustafa allegedly accused Mr Deiri of assisting Jamil to defraud him of moneys belonging to Moustafa’s partnership entity in the Broadway Development (see Mr Deiri’s affidavit sworn on 22 August 2019 at [271]ff). More specifically, Mr Deiri says that Moustafa asserted to Mr Deiri that Plaza did not receive its share of partnership profits and that Jamil had no authority to receive any partnership moneys on behalf of Plaza.

562. [652]

     Ms Yesmine Sayour (as noted above, Jamil’s sister and now a director of Sayour Holdings) gives evidence (see, for example, her affidavit sworn on 8 November 2019 at [9] and [12]) that, after Jamil’s death, she started looking, in about January and February 2016, into Jamil’s affairs and determined that Sayour Holdings had been incorporated, with her father (Moustafa) as its director and shareholder.

563. [653]

     In March 2016, Mr Vamvakaris provided Mr Deiri with the Development Management Agreement (as referred to at [81] above) between Combined Projects Arncliffe and Deiri Nominees, which Mr Deiri signed on behalf of both entities.

564. [654]

     As to the Development Management Agreement, the definition of “Site Identification Fee” is that:

565. [655]

     It is noted that the difference is $14.48 million.

566. [656]

     As will be recalled (see, for example, at [564] above), Mr Wiltshire of Landmark White prepared the Landmark White valuation, and the valuation date is there stated to be 28 September 2015. As to various of the submissions in relation to this, I refer to what I have recorded above (see, for example, at [402]).

567. [657]

     By letter dated 20 September 2016, Investments notified Plaza that the Broadway Partnership was dissolved.

568. [658]

     As noted above, on 29 September 2016, Hallen J made a declaration to that effect and ordered the taking of accounts.

569. [659]

     The sale of the Broadway Plaza shopping centre settled in March 2017 (see, for example, Mr Deiri’s affidavit sworn on 22 August 2019 at [308]).

570. [660]

     As alluded to above (see at [41]), on 30 March 2017, the Receiver paid $34,345,783.45 to CBA from the proceeds of the sale of the land on which the Broadway Development was situated, in discharge of the Broadway Partnership’s obligations under the First Facility Agreement (see, for example, Mr Deiri’s affidavit sworn on 22 August 2019 at [308]-[310]).

571. [661]

     On 23 March 2017, Sayour Holdings (by its solicitors) wrote to Combined Projects Arncliffe and its solicitors, regarding, inter alia, Sayour Holdings’ shareholding in Combined Projects Arncliffe, its access to Combined Projects Arncliffe’s books and records (along with information regarding the progress of the Arncliffe development) and requesting that Sayour Holdings be entitled to appoint a representative to Combined Projects Arncliffe’s board.

572. [662]

     On 31 March 2017, Sayour Holdings’ solicitors sent a further letter reiterating these requests.

573. [663]

     On 1 May 2017, the solicitors then acting for Combined Projects Arncliffe (Corrs Chambers Westgarth) responded to the two March 2017 letters from Sayour Holdings’ solicitors, and provided a number of documents, including “a copy of the minutes of a meeting of Combined Projects Arncliffe’s members held on 8 January 2015”. Notably, the Tripoli Minute (see at [519] above) was attached to that letter. Corrs Chambers Westgarth declined to provide any further material and denied any obligation to do so. There was no mention in the letter of any site fees or development management fee or development management agreement.

574. [664]

     Meanwhile, in or around April 2017, Mr Deiri says that, having observed a “slow down” in the market and sales for Arncliffe, he told Mr Vamvakaris on behalf of Deicorp Properties to complete a standard form agency agreement (see Mr Deiri’s affidavit sworn on 16 October 2019 at [180]-[182]). I interpose to note that there appears to be no copy of any such document in evidence.

575. [665]

     On 8 May 2017, Mr Deiri registered a mortgage (the Deiri Mortgage) over property owned by Ms Sayour (Elliott) allegedly in relation to moneys that he had lent to her.

576. [666]

     On 15 May 2017, Sayour Holdings gave a formal notice pursuant to s 293 of the Corporations Act, inter alia, requiring annual financial statements to be provided and audited; and a notice convening a general meeting of Combined Projects Arncliffe.

577. [667]

     It appears that Combined Projects Arncliffe subsequently disputed the entitlement of Sayour Holdings to access Combined Projects Arncliffe’s books and records (other than its Constitution and the Tripoli Minute, said to be a minutes of a general meeting held on 8 January 2015 at Tripoli, attended by Mr Deiri and Jamil).

578. [668]

     Furthermore, it appears that Combined Project Arncliffe’s position at that time was that Sayour Holdings had no general entitlement to access the company’s books and records or information regarding the development and that Sayour Holdings would not be given any board representation.

579. [669]

     Finally, it appears that Combined Project Arncliffe also then asserted that Sayour Holdings was bound by an agreement between shareholders constituted by the discussions recorded in the Tripoli Minute.

580. [670]

     On 6 June 2017, I published my reasons for judgment in the Estate Proceedings.

581. [671]

     On or about 23 June 2017, Combined Projects Arncliffe provided unaudited financial statements for financial year ending June 2016.

582. [672]

     Later, it also agreed to supply a number of other documents to Sayour Holdings.

583. [673]

     It is relevant at this point to note the changing stance taken by the Deiri Parties in relation to the Tripoli Minute, as well as the communications between the legal representations in relation to the Site Identification Fees and provenance of the Development Management Agreement. In that regard, the Sayour Parities say that Mr Deiri, “caused his solicitors to make a series of affirmatively misleading representations to Sayour Holdings regarding its financial position and obligations”.

584. [674]

     It will be recalled that, after the correspondence in April 2017 from Corrs Chambers Westgarth on 22 May 2017, Minter Ellison (acting for Combined Projects Arncliffe) wrote to Adams & Partners, advising that the Arncliffe project was “subject to arrangements with the lender which would prevent any profits or distributions to shareholders being made until such time as the lender's security is discharged in full” and that, “our client maintains that the agreement recorded in the minutes of the meeting of the shareholders held on 8 January 2015 accurately records the arrangements between the parties as to the distribution of profit in due course”. It is said by the Sayour Parties that that statement was not true if the Tripoli Minute “arrangements” had by then been qualified by the “site fee” deal.

585. [675]

     On 6 June 2017, Adams & Partners wrote to Minter Ellison, advising: that Mr Deiri and Deiri Nominees had “by the 8 January 2015 minute [the Tripoli Minute] threatened to dispose of the Company’s assets in a manner contrary to the interest of Combined Projects (Arncliffe) Pty Ltd and the rights of its members”; and that “[o]ur client is gravely concerned that the assets of Combined Projects (Arncliffe) Pty Ltd are at risk. No information, undertaking or other comfort has been offered by your real clients”.

586. [676]

     On 8 June 2017, Minter Ellison replied:

587. [677]

     The Sayour Parties note that by this point there was still no mention of the Site Identification Fees, Development Management Fee or Development Management Agreement.

588. [678]

     On that same day (8 June 2017), Adams & Partners replied to Minter Ellison that:

589. [679]

     On 14 June 2017, Adams & Partners wrote again to Minter Ellison, stating that:

590. [680]

     On 16 June 2017, Sayour Holdings commenced the Arncliffe Proceedings (see at [76] above) by way of filing an originating process seeking, inter alia, access to various documents of Combined Projects Arncliffe and other relief, including a winding up.

591. [681]

     On that day, Minter Ellison wrote to Adams & Partners to propose, inter alia, that Combined Projects Arncliffe undertake, on the basis that Sayour Holdings discontinue the proceedings: not to pay to Deiri Nominees more than 50% of any dividend declared or distribution of profit made by the company; and to retain the other 50% of any dividend declared or distribution of profit made by the company until and in accordance with any agreement between the shareholders or order of the court (provided that such other 50% of any dividend declared or distribution of profit made by the company must not be paid to Deiri Nominees or any entity related to Mr Deiri). Minter Ellison added that, “[f]or the avoidance of any doubt, there is no intention to wind up the Company or otherwise transfer assets out of the Company” and that “[t]he undertaking referred to above should be sufficient to allay what we understand to be your client's concerns about the conduct of the Company's business”. It is noted by the Sayour Parties that there was still no mention of any Site Identification Fees, Development Management Fee or Development Management Agreement in that letter.

592. [682]

     On 23 June 2017, Ms Caitlin Murray of Minter Ellison swore an affidavit in which she deposed on information and belief that, as at the date of the affidavit, the total expected gross realisation for the Arncliffe project was approximately $150 million (see at [18]); and that no profit would flow from the Arncliffe project to any shareholder until such time as at least the following matters had been dealt with: one, that practical completion had been obtained; two, that occupancy certificates had been issued; three, that all sales had been completed; four, that the ANZ facility had been repaid in full; and five, that all shareholder loans had been repaid in full (see at [29]). The Sayour Parties note that there was no reference in Ms Murray’s affidavit to the, or any other, Site Identification Fees, Development Management Fee, or the Development Management Agreement.

593. [683]

     It is also noted that the Arncliffe Proceedings were part-heard before Robb J on 28 June 2017; that Combined Projects Arncliffe, Mr Deiri and Deiri Nominees were represented on that occasion by Counsel; and that there was no mention at that time of the Site Identification Fees, Development Management Fee or the Development Management Agreement.

594. [684]

     On 27 June 2017, Minter Ellison wrote to Adams & Partners, stating inter alia that:

595. [685]

     By letter dated 27 July 2017, Corrs Chambers Westgarth (in their capacity as Deiri Nominees’ then solicitors) wrote to Adams & Partners that:

596. [686]

     It is noted that there was still no reference to any obligation to pay any Site Identification Fees, or a Development Management Fee or of the Development Management Agreement; and that, by this letter, Deiri Nominees appears to have disclaimed an entitlement to a greater than 50% share of profits.

597. [687]

     On 23 March 2018, Minter Ellison wrote to Adams & Partners, stating inter alia that:

598. [688]

     Again, it is noted that there still seems to have been nothing to put Sayour Holdings on notice of the claimed Site Identification Fees, Development Management Fee or the Development Management Agreement.

599. [689]

     On 26 March 2018, Adams & Partners wrote to Minter Ellison, stating inter alia that:

600. [690]

     I interpose to observe that this apprehension was clearly not unfounded because, two days later on 28 March 2018, Combined Projects Arncliffe paid almost $8 million of settlement funds to Konstructions on account of an invoice prepared by Mr Kanj; and, on the next day (29 March 2018), Combined Projects Arncliffe paid almost $8 million to Zapphire on account of an invoice prepared by Mr Zafiropoulos (as to which, see from [719] below).

601. [691]

     Minter Ellison later wrote to Adams & Partners, stating inter alia that:

602. [692]

     The Sayour Parties say (and I agree, though I am not suggesting that the lawyers realised this at the time) that this was misleading. The Sayour Parties note that there was no mention in this letter of the fact that Combined Projects Arncliffe had just paid out nearly $16 million in settlement funds as site fees to Mr Zafiropoulos and Mr Kanj (payments that it is said could not by the “most tortured argumentation” be described as in “the ordinary course of business” – i.e., as not calling for remark). They note that Minter Ellison ceased to act for the Deiri Parties shortly after this.

603. [693]

     It is further noted that, on 3 April 2018, Combined Projects Arncliffe received $7,868,000 in “residual stock finance” from Alceon Finance (see, for example, Mr Deiri’s affidavit sworn 16 October 2019 at [126]) and Combined Projects Arncliffe paid the Development Management Fee of approximately $7.2 million to Deiri Nominees (see, for example, Mr Deiri’s affidavit sworn 16 October 2019 at [160]).

604. [694]

     On 10 April 2018, Adams & Partners (unaware it would seem that all of the profits of Combined Projects Arncliffe had already been disposed of in site fees and the Development Management Fee) wrote again to Minter Ellison, stating:

605. [695]

     On 30 April 2018, Combined Projects Arncliffe wrote directly to Adams & Partners, asserting that:

606. [696]

     On 3 May 2018, Combined Projects Arncliffe’s new solicitors, Kreisson Legal, wrote to Adams & Partners that:

607. [697]

     The Sayour Parties note, again, that there was at this stage still no mention of any site fees or the Development Management Fee or the Development Management Agreement; nor of the fact that, by then, $21.7 million of settlement proceeds had just been paid out on account of these fees (and it was virtually certain that there would be no dividend or profit to distribute from the Arncliffe Development). They say that it was therefore “somewhat misleading” to imply that it was still too early to ascertain the likely financial outcome of the venture.

608. [698]

     On 4 May 2018, Corrs Chambers Westgarth wrote to Adams & Partners (apparently abandoning any reliance in the Arncliffe Proceedings on the Tripoli Minute) in the following terms:

609. [699]

     On or about 28 September 2018, Combined Projects Arncliffe provided a copy of its MYOB records to Sayour Holdings pursuant to orders made by this Court on 12 September 2018.

610. [700]

     On 18 October 2018, Adams & Partners wrote to Minter Ellison and Kreisson Legal about a payment of “management fees” to Deiri Nominees that was disclosed in the MYOB records, as follows:

611. [701]

     On 7 November 2018, Combined Projects Arncliffe and the Deiri Parties disclosed to Sayour Holdings for the first time the existence of the Development Management Agreement, and the asserted obligations thereunder, by an email from Kreisson Legal to Adams & Partners, in the following terms:

612. [702]

     On the next day, 8 November 2018, Corrs Chambers Westgarth wrote to Adams & Partners disclosing (for the first time) the alleged agreement with Jamil for payment of the Site Identification Fees to Zapphire and Konstructions, in the following terms:

613. [703]

     The Sayour Parties submit that the persistent and wilful refusal of Combined Projects Arncliffe, or the Deiri Parties, to disclose their intention to pay the Site Identification Fees and the Development Management Fee, or the existence of the Development Management Agreement, until some months after those fees were paid (and the settlement proceeds from the Arncliffe Development “wiped out”), in the face of persistent questioning from Sayour Holdings as to what would happen to those settlement proceeds, can only be explained as showing consciousness of the impropriety of those intended payments and deliberate and calculated deception in the repeated representations that nothing untoward was afoot and that all was being done “in the ordinary course of business” (a proposition which, it is said, no reasonable person with the knowledge of Mr Deiri could have believed).

614. [704]

     It is submitted that, if Mr Deiri thought those payments were properly made, he would have certainly disclosed them to Sayour Holdings well before November 2018. The Sayour Parties say that, if these were proper payments for Combined Projects Arncliffe to make, and if they were incurred pursuant to a genuine agreement or arrangements with Jamil, it is impossible to understand why Mr Deiri did not disclose them to someone within the Sayour camp at or around the time of Jamil’s death, even if only to put them on notice that there would be no settlement proceeds or profit to distribute from Combined Projects Arncliffe and “that in any litigation over those proceeds the game would not be worth the candle”.

615. [705]

     The Sayour Parties maintain that the amounts paid to Konstructions and Zapphire Investments were not owed by Combined Projects Arncliffe and that Mr Deiri did not believe that they were owed. They further maintain that the concomitant Development Management Fee was also not owed; and that Mr Deiri had no view that any of these fees was genuinely owed. It is submitted that Mr Deiri undertook no proper investigations and he obtained millions in the form of the Development Management Fee.

616. [706]

     Meanwhile, and as adverted to at [680] above, in June 2017, while the Arncliffe Development was still in progress, Sayour Holdings (under the then control of Moustafa) commenced the Arncliffe Proceedings by originating process seeking, inter alia, an order that Combined Projects Arncliffe be wound up.

617. [707]

     It was then asserted by the Deiri Parties that the seeking of a winding up order put Combined Projects Arncliffe into default under the loan facility with ANZ, which had been personally guaranteed by Mr Deiri. At the interlocutory hearing on 28 June 2017, Robb J made certain comments as to the adverse consequences of creating an event of default. Ultimately, Sayour Holdings withdrew its prayer for a winding up order.

618. [708]

     On 15 August 2017, Combined Projects Arncliffe provided audited financial statements for the financial year ending 2016 to Sayour Holdings’ solicitors. On 30 August 2017, Combined Projects Arncliffe supplied further audited accounts. Later, Combined Projects Arncliffe also supplied audited accounts for the financial year ending 2017.

619. [709]

     Mr Kanj says that, in mid-January 2018, he advised Mr Deiri that he was owed money for his work at the Arncliffe Site (see Mr Kanj’s affidavit sworn on 20 September 2019 at [50]-[56]; and Mr Deiri’s affidavit sworn on 16 October 2019 at [137]-[141]).

620. [710]

     I interpose to observe that it is difficult to see that Mr Kanji had by then performed any “work” as such in relation to the Arncliffe Site (as opposed to providing some “assistance” to Jamil by accompanying him to site inspections and/or by offering his opinions or advice), a point that I return to in due course.

621. [711]

     The Arncliffe Development was completed on or around 8 February 2018 (see Mr Deiri’s affidavit sworn on 16 October 2019 at [116]-[118]). The sale of the last of the residential apartments was completed a year later in February 2019 (see Mr Deiri’s affidavit sworn on 16 October 2019 at [188]).

622. [712]

     Also on or around 8 February 2018, Mr Deiri emailed Deicorp Constructions’ final progress claim (it will be recalled, PC 24) to Mr Kyrikos (see Mr Deiri’s affidavit sworn on 16 October 2019 at [117]). On 9 February 2018, Mr Kyrikos issued PC 24.

623. [713]

     On 10 February 2018, a certificate of practical completion was issued.

624. [714]

     It seems that Mr Hammond attended the Arncliffe Site to assess PC 24.

625. [715]

     On or around 16 February 2018, Mr Hammond emailed Napier & Blakeley’s progress claim report in relation to PC 24 to Mr Deiri (see Mr Deiri’s affidavit sworn on 16 October 2019 at [120]).

626. [716]

     Also on or around 16 February 2018, Mr Deiri caused Combined Projects Arncliffe to pay out the ANZ construction facility loan (see Mr Deiri’s affidavit sworn on 16 October 2019 at [125]).

627. [717]

     It appears that, on 27 February 2018, Konstructions was incorporated and registered.

628. [718]

     I have already referred above to the (impugned) payments made to Zapphire and Konstructions. However, it is necessary here to record in some greater detail the circumstances leading up to those payments.

629. [719]

     In March 2018, Mr Deiri met with Mr Zafiropoulos and Mr Gav in Mr Gav’s boardroom. According to Mr Deiri, Mr Zafiropoulos said that he had identified the Arncliffe Site and that he and another person were owed fees (see Mr Deiri’s affidavit sworn on 16 October 2019 at [144]-[145]). Mr Deiri’s evidence is that Mr Zafiropoulos confirmed that his share of the fee was $7.18 million plus GST and the other person’s fee was $7.2 million plus GST (see, for example, Mr Deiri’s affidavit sworn on 16 October 2019 at [147]). Mr Deiri says he asked Mr Zafiropoulos to provide him with proper invoices recording the purpose, date, GST and billing entity. He gives evidence that, a few days later, Mr Gav called him and told him that he had envelopes for Mr Deiri to collect for Arncliffe (see Mr Deiri’s affidavit sworn on 16 October 2019 at [149] -[151]).

630. [720]

     Ultimately, it seems that Mr Deiri was provided with two invoices, delivered through Mr Gav: one was in the amount of $7.2 million plus GST issued by Konstructions; and another invoice for $7.18 million plus GST from Zapphire Investments Family Trust, of which Zapphire is trustee (see, for example, Mr Deiri’s affidavit sworn on 16 October 2019 at [152]). Mr Deiri then caused these invoices to be paid, as he says he had agreed with Jamil he would do.

631. [721]

     On 28 March 2018, Combined Projects Arncliffe issued a “Recipient Created Tax Invoice” to Konstructions for payment of $7.92 million and to Zapphire re payment of $7.898 million. Each of Konstructions and Zapphire issued tax invoices to Combined Projects Arncliffe also on that date.

632. [722]

     Combined Projects Arncliffe had also issued a remittance advice for a loan repayment to Deiri Nominees.

633. [723]

     On or around 28 March 2018, Mr Deiri arranged for a financier (Alceon) to provide a residual stock loan (of $8 million) for the Arncliffe project (see Mr Deiri’s affidavit sworn on 16 October 2019 at [126]-[127]) (to finance the expenses associated with the remaining unsold units, the payment of GST and agent commissions in relation to the Arncliffe Development).

634. [724]

     As I have alluded to, Combined Projects Arncliffe paid the “site identification fees” to Konstructions and Zapphire (see, for example, Mr Deiri’s affidavit sworn on 16 October 2019 at [152]-[154]).

635. [725]

     It is submitted by the Sayour Parties that Mr Deiri’s justifications for having agreed to pay the fees do not withstand scrutiny. Relevantly, it is noted that in his affidavit of 31 October 2019, Mr Deiri advances three such justifications.

636. [726]

     First, Mr Deiri has deposed that he was concerned that, if he did not agree with Jamil to pay the Site Identification Fees, Combined Projects Arncliffe could be pursued for payment of it or a caveat would be lodged. The Sayour Parties note that in cross-examination (see at T 1064.46), Mr Deiri was not able to identify any basis for thinking that anything that Jamil had told him amounted to a caveatable interest (noting that Mr Deiri said, “I didn’t know what to think ‘cause I didn’t really know what was going on”). It is submitted that it strains credulity to think that “a tough, experienced businessman such as Mr Deiri” would agree to sign away $14.4 million plus GST to unknown persons, without obtaining legal advice, simply because he “didn’t really know what was going on”; or that he would nonetheless make the payment when, some years later, he found out that the recipient of some $7.2 million plus GST, to be taken out of the profits of his project at Arncliffe, was Mr Kanj (a finishing foreman for Deicorp). It is noted that Mr Deiri’s evidence is that when Mr Kanj approached him about payment of the fee, his reaction was to say “Sam. Stop. I don’t want to talk about this with you anymore” (see Mr Deiri’s affidavit sworn 16 October 2019 at [139]).

637. [727]

     Second, Mr Deiri has deposed, in his affidavit of 31 October 2019, that he was worried that non-payment of the site fees could “potentially cause ANZ to withdraw its finance”, and that “if ANZ withdrew its funding, then the development would not be able to proceed” (see at [31]-[32]). The Sayour Parties point out that Mr Deiri caused Combined Projects Arncliffe to pay out the ANZ finance facility on or around 16 February 2018 (as I have noted at [716] above), but it was not until the next month (March 2018) when, on Mr Deiri’s evidence, he met with Mr Zafiropoulos at Mr Gav’s office and acknowledged any obligation to pay Mr Zafiropoulos. It is submitted that Mr Deiri could easily have resisted paying any money to Mr Kanj or Mr Zafiropoulos without threatening the ANZ facility (the Sayour Parties suggest that, for example, he could have said that he was in a court case with a co-shareholder and he would have to clear it with the co-shareholder first).

638. [728]

     Third, Mr Deiri gave evidence (see his affidavit sworn on 31 October 2019 at [33]) that:

639. [729]

     It is submitted that Mr Deiri’s concern about the effect on other Deicorp entities is not a proper basis for him to cause Combined Projects Arncliffe to pay out some $14 million without justification, especially after the “supposed danger” had passed.

640. [730]

     On 19 March 2018, Sayour Holdings’ solicitors asked Combined Projects Arncliffe’s solicitors about the status of the project, whether settlements had occurred and how funds were being utilised (see, for example, Yesmine’s affidavit sworn on 12 April 2018 at [17]).

641. [731]

     On 22 March 2018, Combined Projects Arncliffe gave Sayour Holdings a copy of Progress Report No 18 (for December 2017) (see Yesmine’s affidavit sworn on 12 April 2018 at [18]).

642. [732]

     On 3 April 2018, as adverted to above, Mr Deiri caused Combined Projects Arncliffe to pay Deiri Nominees the Development Management Fee of $7,239,425.44. This is evidenced by, inter alia, an NAB bank statement..

643. [733]

     By letter dated 23 May 2018, Combined Projects Arncliffe supplied audited financial statements to Sayour Holdings, along with two cheques totalling the sum of $432,000.

644. [734]

     By letter dated 6 June 2018, Combined Projects Arncliffe sent a cheque in the sum of $238,000 to Sayour Holdings.

645. [735]

     By letters dated 12 November 2018, Sayour Holdings’ solicitors queried with each of Konstructions and Zapphire the basis for payment to them.

Deferred, provisional and other evidentiary rulings

1. [736]

   With the above background and chronology in mind, I now turn to consider and to dispose of various deferred, provisional and other evidentiary rulings. Also, I address a number of inferences that were urged upon me by the respective parties.

2. [737]

   At the outset, I need say little as to the basis of the rule in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, and cognate rules and other such authorities (see particularly Payne v Parker [1976] 1 NSWLR 191 at 201-202 (Payne v Parker) per Glass JA and more recently RHG Mortgage Ltd v Rosario Ianni [2015] NSWCA 56 at [75], [76], [78] and [79] per McColl JA). In this regard, I note that reference was also made in submissions to the explanation given of the rule by Barker J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293; [2010] FCA 784 at [47].

3. [738]

   The rule in Jones v Dunkel (which is by no means a mandatory rule) applies where there is an unexplained failure by a party to adduce evidence (for example, by calling witnesses or tendering documents or other evidence) in order to contradict a matter which arises upon the issues in the proceedings. In appropriate circumstances, this may lead to an inference that the uncalled evidence would not have assisted the party. Importantly, the Court may only draw an inference in appropriate circumstances, for example, where an uncalled witness is some who could reasonably be expected to shed light on the facts relied on by a party as the basis for the contended inference; and, an unfavourable inference may not be made solely because a witness was not called, rather the evidence must support the inference.

4. [739]

   The Deiri Parties have submitted that adverse Jones v Dunkel inferences should be drawn as a result of the Sayour Parties’ failure to call Dr Hemm as a witness. The Deiri Parties say that the evidence of Dr Hemm could be expected to shed light on relevant issues and that the absence of Dr Hemm as witness is unexplained (there being no evidence, for example, as to any breakdown in the Sayour Parties’ relations with Dr Hemm).

5. [740]

   More particularly, it is noted that Dr Hemm was a doctor he was associated with the Hallwang Clinic, where Jamil received treatment; whom the Sayour family had met while in Germany and that, not only did Dr Hemm treat Jamil in his final days, but the family arranged for him to be flown from Tasmania to Sydney for that purpose. As to whether Dr Hemm would have been expected to be called by one party rather than the other, the Deiri Parties say that Dr Hemm would be a witness that would be expected to have been called by the Sayour Parties, rather than by other parties. In this regard, reference is made to O’Donnell v Reichard [1975] VR 916, where the Court of Appeal in Victoria held that a Jones v Dunkel inference should be drawn in respect of a plaintiff’s failure to call her former treating doctors (see particularly at 921 per Gillard J, Newton and Norris JJ agreeing at 292-230).

6. [741]

   I note here what was said by Glass JA in Payne v Parker (see at 200-202), where his Honour referred to circumstances including where “it would be natural for one party to produce the witness” or the witness would be expected to be available to one party rather than the other, or where the circumstances excuse one party from calling the witness, but require the other party to call the witness, or where the witness “might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him”. In this regard, reference is also made to the principle identified in Blatch v Archer (1774) 1 Cowp 63 (at 65 per Lord Mansfield) to the effect that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted (see also J D Heydon, Cross on Evidence (8th ed, 2010, LexisNexis Butterworths) at [1215] (Cross on Evidence)).

7. [742]

   I consider that an adverse inference should be drawn from the fact that the Sayour Parties did not adduce evidence from Dr Hemm. He was one of Jamil’s treating doctors at the relevant time and it was at the serviced apartment occupied by him that Mr Deiri says he visited Jamil on 30 September 2015. It might be expected that Dr Hemm could have confirmed whether Jamil had received a visit from Mr Deiri, as Mr Deiri alleges (assuming Dr Hemm was in the apartment that morning as his notes suggest he must have been for at least some part of the day), or at the very least had received a visit from someone on that morning. Thus, I can comfortably draw the inference, otherwise available from Mr Deiri’s mobile telephone records (that place him in the vicinity at the time) and from Mr Vamvakaris’ account of Mr Deiri’s conversation with him on 30 September 2015, that Mr Deiri did visit the Meriton Serviced Apartments on 30 September 2015. However, what was said on that occasion is another matter.

8. [743]

   I also note that Yesmine’s account of the events on 30 September 2015 is troubling insofar as it appears studiously to avoid any reference to Jamil’s treatment on 30 September 2015 (about which there can be no doubt by reference to Dr Hemm’s notes).

9. [744]

   Similarly to the Sayour Parties’ failure to call Dr Hemm, the Deiri Parties say that the evidence of Mr Gramelis could be expected to shed light on relevant issues and that the absence of Mr Gramelis as a witness is unexplained (again, it is submitted that there is no evidence, for example, as to any breakdown in the Sayour Parties’ relations with Mr Gramelis).

10. [745]

    In Mr Gramelis’ case, the Deiri Parties point to the fact that he was the Sayour Parties’ accountant for several years and that he played a primary role in incorporating, and making changes to, various of Moustafa’s corporate entities. It is said that, not only did he oversee the Sayours Parties’ accounts, but he also on occasion acted as an agent for the Sayour Parties in their communications with the Deiri Parties. It is submitted that it can be inferred (although the Deiri Parties say that this is not necessary in order for the Jones v Dunkel inference they seek to be drawn) that Mr Gramelis stood high in the Sayour Parties’ confidence.

11. [746]

    More specifically, it is noted by the Deiri Parties, in the context of the submissions as to Moustafa’s knowledge of the receipt of partnership distributions, that Mr Gramelis was the accountant who prepared the partnership’s 2015 tax return. It is submitted that Mr Gramelis was evidently available to corroborate Moustafa’s version of those events (and other matters), having answered several subpoenas issued by Investments in the proceedings. In these circumstances, it is said that the inference can more confidently be drawn that Moustafa knew the contents of that tax return. At the least, it is said that it should be inferred that the evidence Mr Gramelis would have given in relation to Moustafa’s reading of the tax returns, had it been given, would not have assisted Plaza.

12. [747]

    Pausing there, I accept that a Jones v Dunkel inference can be drawn from the fact that Mr Gramelis was not called to give evidence – he being a person who was the Sayour Parties’ former accountant and there being no evidence as to a falling out between them such as might explain a failure to call him – as to Moustafa’s signing of the tax returns. However, I do not think such an inference can be drawn to establish actual knowledge on Moustafa’s part of the content of the tax return. A Jones v Dunkel inference does not permit the drawing of a positive inference damaging to a party’s case; it merely enables an available inference from other evidence more confidently to be drawn. As to Moustafa’s knowledge of the contents of his (admittedly signed) tax returns, there is his adamant evidence that he did not ever read his tax returns (evidence to which I will revert in due course). Suffice it for the moment to say that the most I would infer on this issue is that Mr Gramelis’ evidence would not have assisted Moustafa – in that it would not have supported his denial of knowledge of the tax returns; not what his knowledge actually was.

13. [748]

    The Deiri Parties identify three other matters on which they say Mr Gramelis might have given evidence. As to those matters, the Sayour Parties say as follows.

14. [749]

    First, as to whether Moustafa had signed the relevant consents in respect of Sayour Holdings in December 2013 (as to which, see at [422] above). The Sayour Parties say in response that this would not be evidence adverse to the Sayour Parties’ position in the Arncliffe Proceedings (and they say that the Deiri Parties do not dispute that the consents were signed at the latest in August 2014). Second, as to the email sent by Mr Gramelis to Ms Luo (it will be recalled, Mr Deiri’s assistant) on 8 January 2015 referring to a telephone conversation in which Jamil had “formally requested that he be a director on the Arncliffe Project” (as to which, see at [570] above). The Sayour Parties say in response to this that Mr Deiri’s own evidence (see his affidavit sworn on 16 October 2019 at [79]) is that Jamil told Mr Deiri that he (Jamil) wanted to be a director of Combined Projects Arncliffe, and the Deiri Parties submit that Jamil told Mr Deiri that this was a condition of his contributing a $5 million loan to the company. It is said by the Sayour Parties that there is no reason for even suspecting that Mr Gramelis would, if called to give evidence, depart from what he told Ms Luo in his email of 8 January 2015: namely that it was Jamil who had formally requested that he be a director on the Arncliffe project. Third, as to what happened on that call or in that meeting. In response the Sayour Parties’ say that there is no reason, beyond mere speculation, to believe that Mr Gramelis would have elucidated what happened.

15. [750]

    In any event, it is said by the Sayour Parties that Mr Gramelis is no longer the Sayour Parties’ accountant and is not in the Sayour Parties’ camp, so to speak.

16. [751]

    I have indicated above that I consider that it is open to draw a Jones v Dunkel inference from the fact that the Sayour Parties did not call Mr Gramelis (who was clearly available to give evidence because he answered various subpoenas issued in the proceedings). Mr Gramelis was the Sayour Parties’ accountant at the relevant time. The fact that he is no longer their accountant does not change that. There was no evidence as to any falling out that might explain a failure to call him to give evidence. Even if he were unwilling to assist he could have been subpoenaed to do so.

17. [752]

    I consider that the fact that Mr Gramelis was not called to give evidence enables me more confidently conclude that Moustafa signed the relevant consents for the incorporation of Sayour Holdings on the date notified to ASIC in the returns signed by Mr Gramelis (i.e., on 16 December 2013) and that he signed the tax returns prepared by Mr Gramelis accepting their contents to be true or being prepared without knowing of the contents to accept them as true. It is not necessary to draw any adverse Jones v Dunkel inference in relation to the January 2015 conversation about directorships, since that is adequately established by the evidence of the contemporaneous email communications.

18. [753]

    The Sayour Parties have sought a Jones v Dunkel inference as to the absence of any evidence from Mr Fadi Ibrahim (i.e., that it should be inferred that his evidence would not have assisted Mr Zafiropoulos). Indeed, I interpose to observe that Mr Ibrahim’s name cropped up, so to speak, a number of times throughout the course of proceedings (often accompanied by objections from Counsel) but he gave no evidence.

19. [754]

    As to the specific submissions made by the Sayour Parties in this regard, Zapphire’s response is as follows: first, that this is a submission that ought to have been made in chief (not in reply); second, that Mr Zafiropoulos gave evidence explaining why Mr Ibrahim was not called (that being because Mr Ibrahim told Mr Zafiropoulos that if he gave a statement it would create a “lot of problems” for Mr Ibrahim’s family); third, that Mr Zafiropoulos was not cross examined as to the reasonableness or otherwise of his evidence as to the reason that Mr Ibrahim was not called; and, fourth, that there is no explanation from the Sayour Parties as to why they did not call Mr Ibrahim themselves, noting that the evidence showed that Mr Ibrahim is the nephew of Moustafa and the cousin of Jamil (see T 657.48 – T 658.2) and was very close to Jamil.

20. [755]

    As to the “missing” Mr Ibrahim, I consider that he was certainly a person that one might have expected Zapphire to have called to give evidence (since Mr Zafiropoulos places him as being present at a number of relevant conversations for his case). I do not accept that Mr Ibrahim’s reported (and cryptic) unwillingness to give evidence (because it would cause a lot of problems for his family) “excuse” Mr Zafiropoulos from not calling him – it was perfectly feasible for Zapphire to have issued a subpoena to require Mr Ibrahim’s attendance. By the same token, I cannot accept that Mr Ibrahim was someone in Mr Zafiropoulos’ “camp” such that it would have been unrealistic to have expected the Sayour Parties themselves to have called him (those being the two converse aspects of the rule as explained by Glass JA in Payne v Parker - see above). I therefore draw no adverse Jones v Dunkel inference as such but simply note that it was in the ability of both sides (Zapphire and the Sayour Parties) to have called Mr Ibrahim to enlighten me as to the relevant events. No one did so.

21. [756]

    The Sayour Parties also seek a Jones v Dunkel inference against CBA by reference to the fact that there was no evidence called from any of its officers (including Mr Small, who raised the initial 8 March 2013 query as to the authenticity of the Jamil signature – as to which, see at [340] above).

22. [757]

    More particularly, the Sayour Parties say that, in circumstances where CBA has elected not to call the witnesses who had sworn affidavits in the proceedings, the inference should be drawn that their evidence could not have assisted CBA. In this regard, it is said that CBA offers no explanation as to any other inquiries that Mr Small and his staff made in the 45 minutes it took from being alerted to an irregularity in the cheque signature to the point at which confirmation was received from the processing area that they had confirmed this and had obtained approval to proceed (as to which, see at [345] above); why Moustafa was not contacted immediately about his signature not appearing on a cheque; why Mr Small and Ms Schucroft appear only to have enquired of the payee of the cheque when the queried signature was that of the director of Plaza; and (in circumstances where CBA relies on conventional estoppel or acquiescence) why CBA was making enquiries about the signatures on the cheque at all.

23. [758]

    CBA’s position in this regard is that there is no issue between the parties to which any such evidence would have gone. It is noted that, in relation to the opening or operation of the cheque and loan accounts, there is no allegation of negligence nor of breach of fiduciary duty or unconscionable conduct. Thus, it is said that the issues raised on the pleadings do not call for evidence from CBA of such matters. It is said that what is alleged instead is a breach of CBA’s mandate and lack of authorisation of Jamil to sign for Moustafa; and it is said that there is no evidence of any bank officer which could be adduced as to those issues.

24. [759]

    Accordingly, CBA maintains that there was nothing which called on it to lead evidence in respect of the authenticity of the signatures or the Broadway Partnership’s purposes in making payments; and therefore its failure to call evidence “had no probative significance and could not assist the drawing of any inference in favour of [Plaza or any other party in the proceedings]”.

25. [760]

    The Sayour Parties cavil with this. In particular, they refer to CBA’s mutual duty of disclosure and say that it cannot be confidently inferred that Moustafa would not have taken issue had CBA referred any of these irregularities to Plaza.

26. [761]

    I do not draw a Jones v Dunkel inference from the fact that no CBA bank officers were called to give evidence. The fact is that the relevant query was raised. It can readily be inferred that it was raised because of a consciousness that the bank mandate required two signatures (one of those being required to be a valid signature of Moustafa), since that is the query that was raised. I agree that this tells against CBA’s conventional estoppel case but I think that is a matter of submission.

27. [762]

    Similarly, the fact that the query confirmation was not sought from Moustafa (only from Mr Deiri) and no explanation has been advanced by CBA for that are matters for submission.

28. [763]

    Where there was perhaps more of an issue arising from the absence of evidence from its bank officers was as to whether CBA could establish reliance on the representations alleged to have been made to it by presentation of the cheques (see the Seventh Broadway Cross-claim) in the outset of such evidence. I refer to this in due course. However, I consider that this does not give rise to a Jones v Dunkel evidence – rather it goes to the sufficiency or otherwise of the evidence called by to prove reliance.

29. [764]

    The Sayour Parties emphasise that Mr Deiri had considerable access to advice and counsel at the time of his entry into the Broadway Partnership venture, and that he has called none of his advisers (legal or otherwise) to corroborate aspects of the transaction – for example, his denial that funding the excavation was in his mind and part of his bargain at the outset. Indeed, it is noted that there were several people who were likely to have witnessed Mr Deiri’s account of his dealings with Moustafa, noting that Mr Deiri retained HWLE (and in particular Mr Stephen, Mr Sterling and Mr Schachna) to advise on the structure of the partnership and the purchase of the 50% share of the land and that Mr Deiri also relied on his accountant (it will be recalled, Mr Nick Parras). The Sayour Parties point out that none of these persons was called to give evidence which might shed light on the controversy of what had been agreed between Mr Deiri and Plaza prior to the incorporation of Investments. It is submitted that Mr Deiri’s denial that Investments agreed to bear the excavation costs should be weighed in that light.

30. [765]

    The fact that Mr Deiri did not call the lawyers who advised in relation to the structure of the transaction to corroborate his account of the transaction seems to me readily explicable by reference to the Third Broadway Cross-claim. The Deiri interests are suing HWLE for negligence in relation to the documentation of part of that transaction. The lawyers can hardly be said to be in the Deiri interests’ camp in that regard. Moreover, the lawyers’ understanding of their instructions in relation to the transaction should be readily apparent from their contemporaneous file notes and memoranda of advice.

31. [766]

    I draw no adverse Jones v Dunkel inference in this regard from the fact that the Deiri interests did not call their lawyers to give evidence as to their instructions in relation to, for example, who was to bear the excavation costs, not least because it is not apparent from the evidence that the lawyers gave or were asked to give any evidence on that aspect of the transaction.

32. [767]

    As to Mr Parras, it is not apparent to me what evidence he might have been expected to give other than to confirm the signing of accounting documentation and in that regard I rely on the documents themselves.

33. [768]

    It will be recalled (for example, see at [126] above) that Mr Naef is the solicitor who drafted the early Powers of Attorney and was involved in the documentation of other matters (such as the initial draft of the contract for sale of the Matthews Street Property). Mr Naef was not called to give evidence.

34. [769]

    The Deiri Parties say that it may be concluded that Mr Naef’s evidence would not have assisted Plaza on the issue as to the advice Moustafa says was given to him by Mr Naef that the Power of Attorney drafted in March 2012 would not permit Jamil to sign cheques and would only allow Jamil to carry out leasing (see, for example, at T 342.27 – T 343.9; and see at [277] above). It is said that the inference (already available from the instruments themselves) may more readily be drawn that Mr Naef did not advise Moustafa as such.

35. [770]

    I would accept, for similar reasons to these advanced in relation to Mr Gramelis and Dr Hemm, that one might readily expect that the Sayour Parties would have called Mr Naef to give evidence had there been an issue on which it might have been expected his evidence would be adduced. I would have thought that the issue on where Mr Naef’s evidence might have been expected to be called was more likely as to (the suggestion by Moustafa in the witness box that what he had been given to sign by Mr Naef in December 2011 was a blank contract for sale – a proposition that seems to me inherently implausible) or the circumstances in which the purchase contracts for Matthews Street Property came to be in the name of Matthews Street Co as purchaser than as to Moustafa’s understanding of the powers of attorney. In any event, the construction of the powers of attorney is not assisted by exploration of Moustafa’s understanding thereof. I do not draw any adverse inference in this regard.

36. [771]

    Where I do draw an adverse inference from the failure to call Mr Naef is as to the issue whether what Moustafa signed in December 2011 was a blank contract for sale. The absence of corroboration from Mr Naef on this issue leads me more comfortably to conclude that Moustafa’s recollection in this regard cannot be correct. It is inherently implausible, as noted above.

37. [772]

    The Deiri Parties point out that there is no expert evidence that Moustafa did not sign the Westpac #238 Account opening form (as to which, see at [305] above). The Deiri Parties say this is no doubt because it would not have assisted Plaza’s case.

38. [773]

    I refer to Mr Dubedat’s evidence, as necessary, in due course. At this juncture, it is sufficient to observe that, it appears, Mr Dubedat was not asked to examine the Westpac #238 Account opening form. That may well have been an oversight. In any event, I draw no Jones v Dunkel inference from this. It was open to both parties to question Mr Dubedat on this or other matters – since his evidence was admitted as expert evidence in the case. They did not do so.

39. [774]

    The issue as to absence of documentary evidence arose in respect of the cases brought against Konstructions and Zapphire, respectively, in the Arncliffe Proceedings.

40. [775]

    As to Konstructions, the Sayour Parties emphasise that Mr Kanj cannot produce a single document evidencing any work or services performed by him on behalf of (or at the direction) of Jamil;, or any agreement with Jamil in relation to the payment to Konstructions of the $7.2 million plus GST.

41. [776]

    Insofar as Konstructions raised in its submissions that, inter alia, there is an iCloud account of Jamil’s which has not been accessed because of inability to obtain the password, and there has been no production of text messages from Jamil’s mobile telephone; the Sayour Parties say that this does not assist Konstructions’ case, if it is intended to imply that there might exist emails or text messages between Mr Kanj and Jamil that support Konstructions’ case. It is noted that Mr Kanj and Konstructions have not produced any such emails or text messages (and it is said that presumably Mr Kanj would have been party to any such conversations) nor have they issued any notices to produce or subpoenas in relation to Jamil’s text messages.

42. [777]

    It is said by the Sayour Parties that this suggests that neither Mr Kanj nor Konstructions possesses any emails or text messages with Jamil which support Konstructions’ case, and nor does he or it have any reason to believe that production of Jamil’s text messages would have assisted Konstructions’ case.

43. [778]

    The Sayour Parties say that Combined Projects Arncliffe’s submission is a simple one, namely that one would expect “in the second decade of the twenty-first century” for there to be some documentary or electronic record of commercial dealings and arrangements that conclude with an agreement to pay $7.2 million plus GST on account of services rendered. It is noted Mr Zafiropoulos has suffered “a similar misfortune”. The Sayour Parties say that it is inherently improbable that the alleged arrangement between Mr Kanj and Jamil would not leave any trace of documentary or electronic evidence.

44. [779]

    Insofar as Konstructions also submits that, in the absence of documentary evidence that “one can look to independent corroboration from independent witnesses”, the Sayour Parties say that there is no witness (independent or otherwise) who corroborates Mr Kanj’s account of the services he supposedly provided to Jamil, or the fee arrangement they supposedly agreed.

45. [780]

    Konstructions in response on this issue is to emphasise that the reason it cannot produce documentation is because Mr Kanj's computer was stolen from his car prior to these proceedings. Furthermore, Konstructions points to Mr Kanj’s evidence that he gave all his documents to Jamil. I interpose to note that it is also said that Mr Kanj was not cross-examined on this latter point; and that Moustafa gave evidence that, before he died, Jamil took large numbers of files from the office. I return to this shortly when considering the rule in Browne v Dunn (1894) 6 R 67 (Browne v Dunn).

46. [781]

    It is not necessary to make any particular finding at this stage as to the absence of documentary evidence. It may well be that both Mr Kanj and Mr Zafiropoulos have suffered a similar misfortune in not being able to produce any documentary record of the alleged agreement(s) with Jamil due to two separate robberies. So be it. That is their misfortune. I must deal with the case on the material before me. Assertions by Mr Kanj and Mr Zafiropoulos of the existence of content of documentation that cannot now be produced (even if for reasons beyond their control) can rise no higher than assertions and must be tested against all the evidence that there is (and the inherent plausibility or implausibility of those assertions).Ferrcom inference re Sayour Parties and “deathbed” meeting

47. [782]

    I have referred above (see at [588] above) to the Ferrcom inference urged upon me vis-a-vis the supposed failure of the Sayour Parties to adduce evidence about Jamil’s whereabouts on the morning of 30 November 2015 and the events around the alleged meeting with Mr Deiri at the Meriton Serviced Apartments (the “deathbed” conversation). It is unnecessary here to recite again the extensive submissions made in this regard.

48. [783]

    It is sufficient to record, again, that it is said that somebody in “the family” helped Jamil to discharge himself from St Vincent’s Hospital on the morning of 30 September 2015 and then took him to the serviced apartments, and yet that someone has not given evidence about this. Furthermore, it was submitted that Yesmine’s affidavit supplies an affirmative basis for the adverse inference (being, it is said, intentionally incomplete). Again, the course of Mr Deiri’s cross-examination and the Sayour Parties’ failure to call Dr Hemm are here relevant to note.

49. [784]

    I have also referred above to the absence of any evidence from Dr Hemm. I have also recorded my concern that the evidence from Yesmine appears to have been less than wholly forthcoming as to the events of 30 September 2015. I do not draw from that inference that Yesmine was in fact present and witnessed Mr Deiri at the Meriton Serviced Apartments on 30 September 2015. Mr Deiri himself does not say that he saw Yesmine there (he simply refers to seeing a “body” on the floor – presumably sleeping or resting since it was not suggested that there was anything untoward in this). Suffice it simply to say that any suggestion by Yesmine that Mr Deiri was not there on 30 September 2015 cannot be accepted at face value due to the seemingly incomplete nature of her account of events that day.

50. [785]

    In addition, numerous complaints were made by the respective parties as to whether there had been adherence by their opponents to the rule in Browne v Dunn.

51. [786]

    In particular, substantial complaint was made in relation to the submissions made to the effect that the arrangements pursuant to which the impugned fees were paid where no more than a “sham” (vis-à-vis Konstructions and Mr Kanj).

52. [787]

    To set the context of these complaints, Konstructions points out that Mr Kanj gave evidence in his affidavit that he had three arrangements with Jamil. As to the first of those (namely, that he was to provide assistance to Jamil), Konstructions says that it was not suggested in cross examination that Mr Kanj did not visit the Arncliffe Site, nor that he did not provide information and other documents referable to the site to Jamil, nor that he did not provide opinions to Jamil on the likely scale of the development. As to the second (that Jamil would appoint Mr Kanj to coordinate the building works), it is said that this was not the subject of challenge in cross-examination (except to ridicule Mr Kanj’s technical capacity to deliver on his promise). As to the third (after Jamil decided to proceed with the development with Mr Deiri, that Jamil would pay the relevant fee to Mr Kanj), it is said that the relevant question in cross-examination suggested one arrangement between Mr Kanj and Jamil, in the face of clear evidence that there were three such arrangements at different times and that it did not identify which of the three agreements that Mr Kanj says he had with Jamil was said to be a “complete fabrication”.

53. [788]

    Konstructions says that the factual underpinnings for the “rolled-up” allegation of fabrication were not established and that there was no proper basis to put the allegation of fabrication given the failure to cross-examine on the underlying events and conversations that were established by Mr Kanj’s affidavit. Konstructions says that mere suspicion and allegation is not enough.

54. [789]

    Insofar as it was put to Mr Kanj that the whole arrangement was fabricated “for this case” (see at T 1287.41), it is said that this places a temporal connection of a decision by Mr Kanj to fabricate with the issue of proceedings, noting that it was not suggested to Mr Kanj that the decision to fabricate was referable to the claim for payment. Thus, it is submitted that the fabrication of the evidence is suggested to have occurred some time after proceedings were commenced in May 2019. It is submitted that if there is any evidence of any aspect of the arrangement (including any process or event that would have naturally followed from the arrangement) that pre-dates the issue of proceedings, then it wholly undermines the postulate put in cross-examination, and the remaining evidence of Mr Kanj is effectively unchallenged.

55. [790]

    It is also noted that there was no evidence adduced in reply to each factual allegation in Mr Kanj’s affidavit and thus there was no argument available that such evidence challenged Mr Kanj so that it was not necessary to challenge the witness in cross examination. It is submitted that it is not a sufficient challenge or proposition for the purpose of an action under either limb of Barnes v Addy (1874) LR 9 Ch App 244; 22 WR 505 (Barnes v Addy). Again, Konstructions says that this leaves many of the conversations of Mr Kanj in his statement unchallenged, when, as a matter of procedural fairness they should have been.

56. [791]

    Furthermore, complaint is made that the allegation that the arrangement was a complete fiction is one that has serious consequences for the witness. In this respect, it is noted that it was put as a clear allegation of fabrication, for an ulterior purpose, which is tantamount to fraud or an attempt to pervert the course of justice. It is said that the allegation that the arrangement derived from fabrication or fraud was not pleaded by the Sayour Parties (on behalf of Combined Projects Arncliffe) in reply to the defence. It is said that, given the serious nature of the allegations, and the potential ramifications for Mr Kanj and, indeed, other witnesses (as they would have had to have been complicit either in providing false evidence or attempting to procure a financial advantage or inflict economic harm) against whom an adverse finding is made, any such allegation must be founded on a proper factual analysis and not be advanced as some “global rolled up postulate”. In particular, it is said that the Sayour Parties have to be able to “explain away” any evidence from other witnesses that corroborates Mr Kanj directly or by necessary implication. It is said that the slightest corroboration extinguishes the allegation of fabrication, absent any suggestion of collusion or circumstances that could give rise to pollution of the evidence.

57. [792]

    Konstructions also notes that, by the time Mr Kanj gave evidence, most of the other witnesses had been called to give evidence, including Mr Vamvakaris, Mr Gav and Mr Deiri. It says that these witnesses gave evidence that was inferentially corroborative of the transaction described by Mr Kanj (and were not cross-examined thereon). Konstructions says that, because of the Sayour Parties’ disavowal of a “sham” transaction, and the failure to cross-examine Mr Gav and Mr Vamvakaris, Konstructions was entitled to proceed in the hearing on the basis that a “sham” transaction was not alleged and would not be alleged.

58. [793]

    Insofar as the Sayour Parties submit there was a sufficient challenge to Mr Kanj’s evidence by putting the proposition that “you have just made all this up for the purpose of this case”, Konstructions repeats its submission that this is insufficient to discharge the obligation of procedural fairness to Mr Kanj. It is said that it is not clear whether this question in cross-examination was for the purpose of challenging credit or making an allegation tantamount to fraud. Konstructions emphasises the need for clear and precise cross-examination of any witnesses on each and every event and conversation that gave rise to the alleged fabrication if such an allegation is to be put (adverting by way of illustration to the position where defamatory accusations are made out of court or where allegations of this kind are made in criminal proceedings or alleging a sham in civil proceedings). Again, the complaint is made that for such an allegation of fraud, sham or fabrication it would not be sufficient to assert the “rolled up” conclusion.

59. [794]

    Konstructions says that it is against this background that the sufficiency of the cross-examination in the present case needs to be assessed. It submits that the failure to cross-examine clearly and precisely is not limited to the questioning of Mr Kanj (as adverted to above), but also those witnesses (namely, Mr Vamvakaris and Mr Gav who were called before Mr Kanj) who describe events that Konstructions says were highly corroborative of Mr Kanj’s accounts. It is said that if Mr Kanj had fabricated a story for the purpose of the case then, by necessary implication, so too did those witness; and that, if a finding were to be made as sought by the Sayour Parties, then it would affect the reputations of at least Mr Gav and Mr Vamvakaris, yet this was never put to those witnesses in cross-examination. Konstructions contends that Mr Kanj’s account of his claim to the fee is corroborated by these other witnesses.

60. [795]

    Konstructions says that the present case is almost identical to the situation that applied in Browne v Dunn. It is said that Mr Gav and Mr Vamvakaris gave “implicitly supportive evidence” and were not cross examined on any relevant issue. It is submitted that that is sufficient to reject the allegation of a sham; and, further, that as their evidence is corroborative of Mr Kanj a finding should be made to that effect.

61. [796]

    In response to those complaints, the Sayour Parties have pointed to what was said in Oneflare Pty Ltd v Chernih [2017] NSWCA 195 (Oneflare), namely that (at 42 per Meagher JA, with whom Gleeson and Leeming JJA agreed):

62. [797]

    This led to Konstructions, in supplementary submissions, raising what it described as an important matter of principle in relation to the rule (in the context of the submission by the Sayour Parties that the account of events given by Mr Kanj was a fabrication and that the transactions were in the nature of a “sham”).

63. [798]

    Konstructions poses the issue of principle thus arising as being: whether, in light of Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 (Kuhl), the statement in Oneflare is a complete statement of the law. In Kuhl, the High Court made clear (see at [68]-[73]; [75], per Heydon, Crennan and Bell JJ) that the rule of Browne v Dunn is a relief fairness which is especially the case where a judge is being asked to impeach a witness’ credit (see also Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 at [42] per Allsop P (as his Honour then was) Giles JA and Tobias AJA); and the discussion as to the qualifications to the ambit of the rule in Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 at [105] per Campbell JA (with whom Allsop P and Basten JA agreed); Bradley v Matloob [2015] NSWCA 239 at [7] per McColl JA. Konstructions says the issue is whether, if the case advanced is that the transaction is a fabrication by a party; and if independent witnesses give unchallenged evidence that is inferentially corroborative of that party’s account; there is an obligation to put the relevant proposition to the party and to the independent witnesses.

64. [799]

    The context in which this complaint is made is said to be that it is a feature of the case that the Sayour Parties have repeatedly changed their position as to claims of a “sham” transaction in relation to Mr Kanj’s claims. It is noted that the Sayour Parties did not allege fraud in their pleadings but that, in their submissions in reply, the Sayour Parties have alleged that the account of the events was a fabrication. Konstructions submits that this repeated change in position takes the Sayour Parties outside the proviso identified in Oneflare.

65. [800]

    Konstructions maintains that, because of the serious nature of the allegation, a single “rolled up” proposition to one witness (such as appears at T 1287.37-43) is insufficient to afford procedural fairness without addressing the underlying events, noting that the greater the seriousness of the allegation, the greater precision is required in cross-examination. It is submitted that the cross-examination needed to address each and every element that gives rise to the allegation of falsification, “fabrication” or “sham”, that the independent witnesses needed to be challenged on it (as did Mr Kanj) and that, insofar as Mr Kanj was concerned, an independent key issue is the state of mind at the time the invoice was submitted and payment received (if a “sham” or “fabrication” is to be established). Critically, Konstructions says that, at least the last of these propositions, was not the subject of a single question.

66. [801]

    As to these and other submissions by Konstructions as to matters in which Mr Kanj was not questioned or where it was said that the questions that were put to him were unfair, the Sayour Parties say that Mr Kanj's credibility and truthfulness were squarely put in question in the course of his cross-examination and that it was always clear that Combined Project Arncliffe’s case against Mr Kanj was that his account of the events was a fabrication. It is said that this was known to Konstructions.

67. [802]

    In that context, it is said that it was not necessary to cross-examine Mr Kanj by “chapter and verse”. In any event, it is said that Mr Kanj was challenged on the crucial aspects of his account, including when he first spoke to Jamil about the Arncliffe Site (and by his account, that this could not have happened in 2012) (see T 1279.45 – T 1284.20), whether he supposedly did the work that he alleges he did (see, for example, at T 1282.40ff), his qualifications to do the work (see, for example, at T 1278.35ff), and that he was directly challenged as to whether he had fabricated the entire story (see, for example, at T 1314.30ff).

68. [803]

    I will first consider the issues raised concerning the decision of the Court of Appeal in Oneflare.

69. [804]

    It is submitted by Konstructions that the Sayour Parties’ reliance on cases such as Oneflare is misplaced. It is said that Oneflare does not address the procedural fairness issue; rather, it deals only with the capacity to making findings of fact absent a challenge to the witnesses. It is said that if the rule in Browne v Dunn is a matter of procedural fairness (see Kuhl), then the statement in Oneflare to which the Sayour Parties refer in their submissions, as a matter of principle, is incomplete and does not resolve the problem now identified. Rather, it is said that one needs to identify what the “particular subject” is for the particular effect; and to identify the evidence to which is the “particular effect”. More particularly, it is said that Oneflare is not a complete statement of principle as to the need to cross-examine and put the contrary case to the witness; that the exception or proviso to which the Sayour Parties rely is limited to fact finding and not to procedural fairness to the witness or the party; and that the extent to which the proviso operates is significantly dependent upon the circumstances of each case.

70. [805]

    It is said that, in the event an allegation of fabrication, fraud or sham is to be made, then this is unable to be addressed in cross-examination of one witness by way of broad allegations that do not direct themselves to the elements of the sham and, instead, the only proper way to provide procedural fairness is properly to plead the case alleging the sham, or fabrication, and clearly and precisely to challenge that witness (and any corroborative witnesses) in cross-examination on the events or transactions that are said to constitute it.

71. [806]

    Further, it is said that if the issue of sham is not made clear on the pleadings or the opening, then even applying Oneflare, by implication there is a mandatory obligation to challenge in cross examination each witness who gives direct or indirect evidence inconsistent with the allegation of fabrication. It is said that, if the proviso referred to in Oneflare does apply, then it only does so if the challenge is clear; and that, if it is not (for example, where the opening submissions disavow a sham), then the witnesses must be challenged.

72. [807]

    In this connection, Konstructions emphasises that, in their opening statement at the commencement of the hearing, the Sayour Parties disavowed any reliance on fabrication or a sham transaction. It maintains that, in those circumstances, it was entitled to proceed on the basis that a submission would not be made at the end of the hearing (and the Court would not be called upon to make a finding) to that effect. Thus, again, it is submitted that the proviso identified by Meagher JA in Oneflare does not apply in this case.

73. [808]

    I do not consider it necessary (or appropriate at this level of the judicial hierarchy) here to entertain in any detail the point of principle sought to be raised as to whether the decision in Oneflare is a complete statement of principles (much less the suggestion that it may be incorrect).

74. [809]

    Suffice it to note that there is no doubt that the rule is one of procedural fairness or “fair dealing”. There is also no doubt that the rule is not one that obliges the Court to accept evidence that has not been challenged (say, where the evidence is inherently illogical or unreliable) or which prevents the court from rejecting such evidence.

75. [810]

    Alternatively, Konstructions says that even if the Oneflare proviso to which the Sayour Parties refer is a complete statement of principle, then a very close examination of the circumstances of the case is required and that the appropriate findings in this case to be made are that: the pleadings were ambivalent as to any allegation of fabrication; the pleadings were not articulated with the sufficiency required in a fraud case; the Sayour Parties expressly disavowed any reliance on fraud or dishonesty during the opening (see at T 261.36ff); neither Mr Gav was nor Mr Vamvakaris was not cross-examined on conversations that provided indirect corroboration of Mr Kanj’s evidence; Mr Kanj was not cross-examined on this state of mind at the time he submitted the invoice and received payment of the events leading up to it; Mr Kanj’s state of mind at the time he was joined to proceedings or thereafter was irrelevant; and it was not suggested that relevant conversations with Jamil or others did not take place.

76. [811]

    Further, and by way of contrast to the present case, it is said that on the facts in Oneflare: there were competing accounts of a specified conversation in affidavits that was central to the dispute which put the party on the relevant notice; Counsel did not raise during the course of the trial that credit issues had not been apparent or unexpected or that the primary judge should not entertain them (see at [38]); and the affidavit evidence exchanged before the hearing, the parties’ opening statements and the cross-examination of each of the two witnesses in question made it plain that the truthfulness, not merely the reliability, of their evidence was challenged. It is noted that in Oneflare the following finding was made (see at [45]):

77. [812]

    Konstructions thus submits that “unqualified” reliance by the Sayour Parties on the proviso contained in cases such as Oneflare is misplaced.

78. [813]

    It is noted that there has been no allegation in the pleadings or in cross-examination of collusion between Mr Deiri, Mr Kanj, Mr Vamvakaris, Mr Gav or Mr Zafiropoulos. In this regard, reference is made to Brown v Tavern Operator Pty Ltd (2018) 98 NSWLR 586; [2018] NSWSC 1290 and it is submitted that, without putting it to the witnesses, collusion between witnesses cannot be advanced in final address and that the Sayour Parties cannot explain away the independent corroboration of the basic sequence of events. It is said that the probability that each witness is mistaken or wrong about his recollection is substantially reduced.

79. [814]

    Konstructions points to two particular incidents (that are not directly referable to Mr Kanj and on which its defence does not directly rely), which it is said demonstrate the problems of the failure to cross examine.

80. [815]

    First, the November/December 2015 conversations between Mr Zafiropoulos and Mr Gav. It is noted that Mr Zafiropoulos and Mr Deiri depose to a series of conversations with Mr Gav in 2015: the first, in about November 2015 between Mr Zafiropoulos and Mr Gav, in which Mr Zafiropoulos asked about being paid his site assistance fee (which Mr Zafiropoulos recalls, but Mr Gav does not); the second (to which Mr Zafiropoulos was not a party but which it is said it must have taken place for the following conversation to have occurred) between Mr Gav and Mr Deiri (which Mr Gav did not recall, but Mr Deiri did); the third, when Mr Gav telephoned Mr Zafiropoulos and reported his conversation with Mr Deiri (which Mr Gav did not recall, but Mr Zafiropoulos did). Thus, it is said that Mr Deiri corroborates Mr Zafiropoulos, through Mr Gav. Konstructions contends that this series of conversations is corroborative of the occurrence of the September 2015 conversation between Mr Deiri and Jamil.

81. [816]

    Following the above, Konstructions says that it was never put to Mr Zafiropoulos or Mr Deiri that no such conversation took place in November to December 2015; and that the question (at T 1027.24-26) is not sufficient to address the occurrence of these conversations between Mr Zafiropoulos and Mr Gav, Mr Gav and Mr Deiri and then Mr Gav and Mr Zafiropoulos. Konstructions submits that it would be accepted that there was a conversation in about November or December 2015 as deposed by Mr Zafiropoulos with Mr Gav and Mr Deiri with Mr Gav (albeit that Mr Gav did not recall it, while the others did). It is said that the discrepancies between Mr Zafiropoulos, Mr Gav and Mr Deiri tell strongly against collusion between the witnesses. It is said that, if there were collusion between witnesses, one would not expect the variations in what was recounted and that the existence of the variations makes the corroborative effect of the consistencies of the accounts all the stronger.

82. [817]

    Konstructions says that the Sayour Parties fail to address the point that, when Mr Gav spoke to Mr Deiri in 2017, Mr Deiri advised Mr Gav he already knew who Mr Zafiropoulos was. It is said that this also has the tendency to corroborate the evidence of both Mr Deiri and Mr Zafiropoulos that they already had contact through Mr Gav earlier in 2015.

83. [818]

    Second, Konstructions refers to the issue of Mr Deiri’s knowledge of the valuation amount as at 30 September 2015. Mr Deiri gave evidence that, by the time he had his last meeting with Jamil, he was aware of the valuation amount. He thought he had “draft numbers” before he received the final report. Mr Deiri said he discussed the figures with Mr Vamvakaris.

84. [819]

    It will be recalled (see at [561] above) that the retainer with LandMark White was 28 August 2015. After that, there was a request for further information. A site inspection took place on 28 September 2015 (see at [564] above). It is said that conversations would have taken place between Mr Wiltshire and Mr Vamvakaris. Konstructions says it was possible that Mr Wiltshire provided a draft figure in conversations and notes his evidence that he has done so on other occasions, despite any constraint in the letter of engagement.

85. [820]

    Meanwhile, Mr Vamvakaris’ evidence was that the final version of the report came out in late September or early October 2015, and that he had the report before the time Jamil died. This was challenged in cross-examination and Mr Vamvakaris rejected that proposition. Konstructions says that no evidence was adduced by the Sayour Parties to demonstrate that Mr Vamvakaris could not have had the report before Jamil died. It is further noted that Mr Vamvakaris said he had the report before he prepared the Development Management Agreement.

86. [821]

    Oneflare concerned a contract for “search engine optimisation” for the plaintiff’s website. At issue before the trial judge was whether the defendant was instructed to employ an “aggressive” strategy; and whether the plaintiff was wholly relying on the defendant for advice, with no real understanding of the nature of the strategies involved and possible penalties that might be visited on the plaintiffs for the use of such strategies. The primary judge made dishonesty findings concerning the plaintiff’s witnesses. On appeal those findings were put in issue on the basis that procedural fairness was not accorded to the two witnesses. Specifically, it was said for the plaintiff that those witnesses had not been challenged or put on sufficient notice of the allegations of dishonesty such that they could proffer their own explanations in response to the allegations (so breaching the rule in Browne v Dunn).

87. [822]

    Meagher JA, with whom Gleeson and Leeming JJA agreed, held (see at [45]-[57]) that, in that instance, no breach of the rule in Browne v Dunn had occurred because the plaintiff had been put on notice through the exchange of affidavit evidence before the hearing, the parties’ opening statements, and the cross-examination of the witnesses concerned, that it was the truthfulness, not merely the reliability, of the witnesses’ evidence that was being challenged. His Honour noted that (at [40]) that:

88. [823]

    In the present case, Konstructions (as does Zapphire and each of the Deiri Parties) seeks to rely on the rule in Browne v Dunn to preclude findings of fabrication being made about the evidence of Mr Kanj and Mr Zafiropoulos, especially where that evidence may affect findings concerning the truthfulness (as opposed to only the reliability) of Mr Deiri, Mr Vamvakaris, and Mr Gav. They say that it was not put to any of Mr Deiri, Mr Vamvakaris, or Mr Gav that his evidence about the site identification and management fees was fabricated, or that he had colluded with Mr Kanj and Mr Zafiropoulos to give false accounts. Without having been challenged on these points, the Deiri Parties, Konstructions and Zapphire say that it is now impermissible for the Sayour Parties to allege that the evidence given about the site identification and management fees was a fabrication; rather that the (unchallenged) accounts of Mr Deiri, Mr Vamvakaris and Mr Gav should be viewed as corroborative of Mr Kanj and Mr Zafiropoulos’ accounts.

89. [824]

    In the present case, while there was a dispute in the pleadings and affidavit evidence as to the purposes of the payments of moneys to Konstructions and Zapphire and it was denied that the payments were legitimate, I accept there was no positive pleading or allegation that the arrangements for the payments were shams or had been fabricated (see, for example, defence to third cross-claim filed 5 September 2019 at [44]-[46]).

90. [825]

    In opening submissions, the Sayour Parties noted that Konstructions and Zapphire had pleaded that they had legitimate contracts for the payments (T 63.32ff). When the issue of the payments was raised during the reading of the evidence and the evidentiary tenders the Sayour Parties discovered that their case was that the payments were a sham (T 261.36ff).

91. [826]

    I accept that denial in the pleading that the contracts were “legitimate” must have put the relevant parties on notice that the legitimacy of the arrangements underlying the impugned payments was in issue. However, no allegation was made (or is now made as I understand it) as to collusion between witnesses to give false accounts.

92. [827]

    The line of questioning sought to be put to Mr Deiri (and which I disallowed) (was as to whether the “site identification fees” were “cooked up” to disguise payments to Mr Ibrahim (or for his benefit) (see T 1029ff).

93. [828]

    I accept that the rule in Browne v Dunn prevents the submission now being put (and that findings should not here be made) that the alleged agreements for the impugned payments were “shams”, in the sense of a fraudulent attempt to extract money known not to be the subject of a legitimate claim.

94. [829]

    However, it does not follow from this that the Sayour Parties cannot argue that it should not be found, on the whole of the evidence, that there was no binding agreement obliging the making of the payments in the amounts claimed (even if Mr Kanj and Mr Zafiropoulos genuinely considered themselves entitled to those amounts).

95. [830]

    In that regard, the two examples relied upon by Konstructions (see above) seem to me not to take the matter very far. All that the conversations to which Mr Gav and Mr Vamvakaris depose corroborate is that Mr Deiri was on notice of a claim of some kind to site identification fees of the like. Quite how it is suggested that Mr Deiri knew of the person making the claim (when there is no evidence that he was told this at any point prior to the conversation with Mr Gav well after the relevant events is unexplained.

96. [831]

    As to the evidence of Mr Vamvakaris and whether the valuation figure was ever made known to Jamil (and hence could ever have been conveyed by Jamil to Mr Deiri in the so-called “deathbed” conversation) this is another point, which I consider in due course.

97. [832]

    Suffice it here to note that, if allegations of sham or fraud or collusion of evidence are not pressed, then I see no unfairness in the cross-examination of Mr Kanj or any of the other witnesses on the issue of the impugned payments.

98. [833]

    During the course of argument, there was also argument as to whether the rule in Browne v Dunn was one that could be dispensed with in the event that the evidence of the witness was “glaringly improbable”.

99. [834]

    Konstructions makes the following submissions on this point: the claimant has previously disavowed any suggestion that the agreements between Mr Kanj and Jamil were a sham; in this case, there was a clear forensic decision not to cross examine on many of the events, conversations and observations described by Mr Kanj, and several other witnesses (this, it is said, was made in the context of disavowing any case that the transactions were a sham); there were (it is said) numerous failures to challenge these witnesses; in the ordinary course, the litigant is bound by those forensic decisions; if there is an exception to the rule in Browne v Dunn based on “glaring improbability” or inherent illogicality then the counter argument is that if there is any possibility that the witness’ evidence could be correct, then the witness must be challenged on that matter.

100. [835]

     Konstructions submits that, in all of the circumstances, the arrangements reached with Jamil described by Mr Kanj are entirely possible when one takes the other evidence (including corroborative evidence from other witnesses) into account. It says that if this finding is made, then the rule in Browne v Dunn should have been discharged and was not; if the witness is not challenged, then the adverse finding is not available.

101. [836]

     In this regard, Konstructions says that “glaring improbability” or inherent illogicality is a very high state of satisfaction, and that it probably requires the assessment of evidence along the lines required in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. It is noted that it is an imprecise concept, and it needs to be assessed against all of the evidence, but in particular against the evidence given by the witness and any corroborative witnesses. Konstructions says it is difficult to make such an assessment unless the primary and corroborative witnesses have been challenged on the conversations, events and observations described by them. Konstructions emphasises (as adverted to above) that the requirement to challenge the witness is properly a matter of procedural fairness.

102. [837]

     Furthermore, it is submitted that any exception to the rule in Browne v Dunn based on inherent improbability needs to be assessed with caution. Konstructions submits that the adverse findings against it cannot be sustained given the failure of the claimant to cross examine Mr Kanj and other relevant corroborative witnesses on many of the primary conversations, events and observations deposed to in their affidavits.

103. [838]

     It is not useful here to explore the question as to the glaring improbability or inherent illogicality or otherwise about the agreements said to have been reached with Jamil (since I do not here make any findings of sham). I consider in due course the aspects of the evidence that make entering into such agreements inherently implausible to my mind (not least the suggestion that Mr Kanj would be paid a sum of over $7 million for the “assistance” or work he provided or to compensate him for not being able to proceed in a joint venture that on any view would seem to have been well beyond his skill set at the time). Suffice it simply to note that persons not uncommonly enter into glaringly uncommercial or objectively improvident or surprising agreements. The fact that such an agreement might show abysmal commercial judgment on Jamil’s part (or otherwise) is not here to the point (though such matters are relevant when considering the claims made for recovery of those amounts as moneys had and received – which I consider in due course).

104. [839]

     It is convenient now to deal seriatim with various of the specific factual points, inferences and/or the like.

105. [840]

     Insofar as the Sayour Parties submit that Mr Kanj did no work at all for the moneys agreed to be or paid to him, Konstructions says that should be rejected. It is noted that Mr Kanj gave evidence that he did work for Jamil and that Mr Kanj was not challenged about whether he did work at all (and, instead, he was only challenged on whether that work was of commensurate value to the amount he was paid).

106. [841]

     Konstructions submit that the failure to challenge the performance of any work at all in cross-examination was an acceptance of that evidence and that Konstructions was entitled to proceed with the case that the Sayour Parties accepted that work was performed, but that the issue was whether it was disproportionate to the amount received. It is submitted that it would be in error for a finding to be made that Mr Kanj did not perform any work for Jamil between 2012 and August 2013, given the failure to cross examine on the topic.

107. [842]

     It is also submitted that this also affects the assessment of the question that was put that Mr Kanj “had made it all up”. It is said that that question was directed in part at Mr Kanj’s assertion that he thought the amount was commensurate with the work he performed, not that he did not do any work. It is said that it was an insufficient challenge to Mr Kanj and, again, that Konstructions was entitled to proceed on the basis the Sayour Parties accepted that he did perform work for Jamil.

108. [843]

     Furthermore, Mr Kanj says Jamil nominated $7.2 million but he does not know what Jamil was thinking. It is said that Mr Kanj was entitled to accept that amount, even though it was a compromise on the figure he thought he would be entitled to had the previous arrangement proceeded; and that Mr Kanj does not have to explain any alleged coincidence between that event and events that occurred some years later. It is said that the figure Jamil offered was the one Mr Kanj was paid.

109. [844]

     More specifically, it is also submitted that the Sayour Parties disavowed a sham transaction during a direct question during the opening; and that they did not cross examine about Mr Kanj’s state of mind at the time he submitted the invoice and the time he received payment. It is said that this is the relevant issue if the allegation is going to be made that the transaction was a “sham” or a fabrication. It is submitted that to suggest that the test is the state of mind of the witness at the time of being joined to proceedings or any time thereafter is incorrect.

110. [845]

     The Sayour parties say that , insofar as Konstructions submits that Mr Kanj was not cross-examined as to his entitlement to payment, or the reasonableness of the amount Konstructions was paid relative to the work he performed for Jamil (and that consequently Combined Projects Arncliffe cannot argue that Mr Kanj took the payment from Combined Projects Arncliffe as a volunteer), this is not an accurate reflection of Mr Kanj’s cross-examination. It is noted that Mr Kanj was directly asked whether he was serious in telling the Court that Jamil had promised him $7.2 million plus GST for the work he had supposedly performed (see, particularlym, at T 1287.21-24) and it was put to him that his whole story about the arrangement with Jamil was a complete fiction (see T 1287.37-39). Similarly, the Sayour Parties say that Konstructions’ contention that Combined Projects Arncliffe has disavowed any suggestion that the agreements between Kanj and Jamil were a sham ought to be rejected.

111. [846]

     I make no finding that Mr Kanj did not provide any assistance at all to Jamil between 2012 and August 2013. I simply note that the monetary value of any such assistance as Mr Kanj did give Jamil in relation to the Arncliffe Site is unable here to be assessed and I am not persuaded that the figure of $7.2million was one that is likely to have been known to Jamil (or put by him to Mr Kanj) back in 2012 or 2013. Otherwise, I deal with the issues in relation to the moneys paid to Mr Kanj and Konstructions in due course.

112. [847]

     Insofar as Konstructions further submitted that the tenor of the questioning put to Mr Kanj appeared to be in relation to the extent of the work performed and not with respect to the discovery of the Arncliffe Site, the Sayour Parties say that Mr Kanj did not need to be cross-examined on this topic since his defence only pleads that he did work and does not make any reference to discovering the Arncliffe Site (see at [14A]-[14S], [20]). It is said that, given he did not plead he discovered the Arncliffe Site, there was no need to cross-examine him on that topic.

113. [848]

     In fact Mr Kanj made quite clear in his evidence that he disavowed any suggestion that he had discovered the Arncliffe Site so a failure to cross-examine him on this issue takes the matter nowhere. He admitted it.

114. [849]

     As to the issue raised in the course of the hearing as to what Mr Kanj did with the money after he received it and the submission made that Mr Kanj’s use of the proceeds that he received “tends to indicate that he was merely a channel for putting those funds in the hand of a third party”, Konstructions’ complaint is that these are extremely serious allegations to make and that this proposition was not put in cross-examination.

115. [850]

     It is noted that Mr Kanj indicated that he was intending to go into business in relation to the Permaform product (as to which, see below), but that he took no further steps because of the dispute that had erupted.

116. [851]

     Konstructions says that there was evidence that Mr Kanj made the payments to Pasloc Pty Ltd (Pasloc) but no evidence of it being funds directed to a third party. It is said that the suggestion that this occurred is mere speculation, which required actual proof of evidence; and that an alternative explanation is that this was just a poor business decision (which it says is not uncommon). As to the fact that Mr Kanj expressed surprise to discover that Pasloc had gone into liquidation (as to which, see below), Konstructions’ position is that this is not remarkable since the liquidation had happened on 20 November 2019, shortly before Mr Kanj was called to give evidence. It is said that it is not insignificant that the liquidation occurred, not through the intervention of any “shadowy” third party, but the Deputy Commissioner of Taxation.

117. [852]

     I make no finding as to what use was made of the money received by Mr Kanj. (I simply comment that the fate of those moneys, if Mr Kanj’s evidence is to be believed, amply reinforces my view that a joint venture of the kind that ultimately proceeded in relation to the Arncliffe Development would be likely to have been well beyond Mr Kanj’s skill set or commercial acumen).

118. [853]

     As to the proposition that the sum of $7.2 million allegedly discussed with Jamil is exactly half of the $14.4 million figure that Jamil nominated to Mr Deiri on 30 September 2015 and the suggestion that in order for that figure to be derived it had to be referable to the valuation, Konstructions says: first, that this allegation was never brought to the attention of Mr Kanj to give him the opportunity to answer it; and second, that the figure of $7.2 million is a fraction of the fee Mr Kanj had been working on to assist with the development (and that he gave evidence that it was about half of the $15 million fee he was working on).

119. [854]

     As to this complaint, I consider that Mr Kanj had ample opportunity to explain how he had reached the alleged agreement with Jamil as to the $7.2 million fee and his evidence went no higher than to say that Jamil had nominated that sum and he did not know what Jamil was thinking. As to how Mr Kanj had calculated that the development might result in a project of $15 million (half of which would be “about” $7.2, noting that half would in fact be $7.5 million), there was no evidence other than Mr Kanj’s assertion to suggest that he had any considered basis for such a calculation at the time (and it seems to me inherently implausible that he did).

120. [855]

     As noted above regarding Jones v Dunkel and such inferences, the Sayour Parties emphasised that Mr Kanj cannot produce a single document evidencing any work or services performed by him on behalf of (or at the direction) of Jamil, or any agreement with Jamil in relation to the payment to Konstructions of the $7.2 million plus GST.

121. [856]

     It will be recalled that Konstructions submits that it cannot produce documentation because Mr Kanj's computer was stolen from his car prior to these proceedings.

122. [857]

     As adverted to above, as to the absence of documentation, Konstructions points to Mr Kanj’s evidence that he gave all his documents to Jamil. Again, it is said that he was not cross-examined on this; and that Moustafa gave evidence that before he died, Jamil took large numbers of files from the office.

123. [858]

     Relevantly, Konstructions also submits that, because Mr Kanj was not specifically cross-examined regarding the alleged theft, he was denied the opportunity to submit further evidence on this and they are entitled to “cut their case accordingly”. More particularly, it is said that, to suggest in submissions that his evidence on this point should be very much doubted, in the absence of cross examination of Mr Kanj on the point, “verges on the improper”. It is said that, by failing to cross-examine on this evidence, the Sayour Parties are taken to have accepted that evidence, and Konstructions is then capable of proceeding in the trial on the basis that the evidence is accepted. It is said that had it been challenged Mr Kanj could have called evidence in reply, which he did not, because he did not need to do so. It is said that for the Sayour Parties then to raise that direct issue in submissions amounts to a change in position which should not be permitted.

124. [859]

     Furthermore, as to the proposition that there is a remarkable coincidence arising from the fact that Mr Kanj could not produce any documents, Mr Vamvakaris could not produce the original of the Development Management Agreement and that Mr Zafiropoulos had lost his documents, it is similarly said that this was a significant forensic matter that should have been put to all witnesses in cross-examination but it was not.

125. [860]

     Further, it is noted that Mr Kanj was not cross examined on his statement that he provided the documents he had to Jamil; and it is noted that Moustafa gave evidence that Jamil had taken documents before his death. Konstructions says that the submission of coincidence is not made good (and it also notes that there was no coincidence notice served and no suggestion of collusion).

126. [861]

     To this, the Sayour Parties say that Mr Kanj was sufficiently cross examined on this issue. They say that Mr Kanj having lost his computer does not answer the question of whether he did the work or not; it simply means that other than his bare assertion, there is no way of evaluating whether he did the work or not.

127. [862]

     It is submitted that these are all matters for Mr Kanj to prove, and not for the Sayour Parties to disprove. It is said that even if Mr Kanj’s computer was stolen (which the Sayour Parties very much doubt), that does not amount to corroboration of Mr Kanj’s account as to the work he supposedly performed for Jamil, and nor does the alleged theft of his computer provide a sufficient or satisfactory explanation for Mr Kanj’s inability to provide any documentary evidence whatsoever confirming that he had a business relationship with Jamil, or that he provided any services to Jamil, or that he struck a deal with Jamil to the effect that Mr Deiri would pay him $7.2m plus GST for those supposed services.

128. [863]

     I have considered this issue already above.

129. [864]

     Insofar as Zapphire has complained that Mr Zafiropoulos was not questioned on some matters concerning whether the First Sake Restaurant meeting happened at all, the Sayour Parties say that it was not necessary to cross-examine Mr Zafiropoulos on every collateral fact. It is said that it was sufficiently put to Mr Zafiropoulos that his story was untrue and that his version of events could not have happened as he alleged.

130. [865]

     The Sayour Parties say that Mr Zafiropoulos was not a witness of credit and that his evidence is inherently incredible (as to which, see below). It is also noted that Mr Zafiropoulos’ general credit and the truthfulness of his account were squarely put in question. In particular, it is noted that, inter alia, Mr Zafiropoulous was directly questioned in relation to the research he supposedly performed (see, for example, T 1350-1353; T 1366.27-50), when the alleged First Sake Restaurant meeting took place (see, for example, at T 1369.21-22), why Bronson Management Pty Ltd (Bronson Management) rendered a tax invoice for work that he asserts he did (see T 1383-1384), and that there was no agreement between him and Jamil (see, particularly, at T 1389.35-38). It is said that there was no doubt that Sayour Holdings’ case was based on the premise that both Mr Kanj's and Mr Zafiropoulous' accounts in relation to the site fees and related matters were fabrications.

131. [866]

     I accept that the Sayour Parties’ case that there was not a legitimate agreement in relation to the payment made to Zapphire was squarely and sufficiently put to Mr Zafiropoulos and simply repeat my above conclusions in relation to the lack of documentary evidence.

132. [867]

     The Deiri Parties submitted that it was not put to Mr Deiri that he knew, at the time of signing the Stage 2 Construction Contract on 15 May 2013 (see at [357] above), that Moustafa did not know or approve of the increases in the construction cost (and that the Sayour Parties therefore could not make the submission that he was so aware).

133. [868]

     The Sayour Parties in response to this say that it was sufficiently put to Mr Deiri that he knew that Moustafa did not know of the price increase. It is also noted that Mr Deiri himself said that Jamil had appointed himself as development manager (see T 882.15-16).

134. [869]

     Furthermore, the Sayour Parties say that the fact Moustafa that did not know or approve the increase in the price in the Stage 2 Construction Contract was expressly pleaded by Plaza (see the Fifth Broadway Cross-claim at [433] and [435]) and denied by the Deiri Parties. It is noted that it was expressly pleaded that the contract was void for want of authority.

135. [870]

     The Sayour Parties note that it was also pleaded that this was a consequence of bribery; and that Mr Deiri and his alter egos are expressly charged with this corruption (in [534] of the Fifth Broadway Cross-claim). It is said that, even if the cross examination did not proceed for a fifth day so as to include every possible permutation of this charge, the allegation was nonetheless sufficiently put to Mr Deiri through the pleading or affidavits (again, see Oneflare at [42]).

136. [871]

     In any event, the Sayour Parties say that Mr Deiri was cross-examined at some length about these matters, in terms that leave no room for misapprehension that it was being put to him that he ought to have disclosed to Moustafa this fact that he knew Moustafa did not know, because he had been told in emails from Jamil that he had “lied” to his father and that his father was ignorant of that matter. It is noted that an extract from those emails stands at the very head of Plaza’s opening submissions. Hence the Browne v Dunn criticism in this respect is said to be misplaced.

137. [872]

     It is also noted that the Deiri Parties led no evidence about whether Mr Deiri knew (or did not know) of this matter.

138. [873]

     In addition to the preceding, various submissions concerning adverse credibility findings (as to which, see below) trespass onto issues concerning Browne v Dunn. I have in mind those submissions, and it is unnecessary here to recite them.

139. [874]

     I consider that the pleadings adequately put in issues that the Stage 2 Construction Contract was not duly authorised. Having regard to the pleadings and the lengthy cross-examination of Mr Deiri I consider that the Brown v Dunn complaint on this issue is misplaced.

140. [875]

     Finally, the Sayour Parties say that it was not put to Moustafa that his denial of any knowledge about the Westpac #238 Account was, evidently a strategy to avoid the fact that much of the money Plaza here claims that it never received was paid into that account (which was solely in Moustafa’s name) (about which a Browne v Dunn point is here taken).

141. [876]

     I see no unfairness in the submission here made. Moustafa can have been under no misapprehension that the issue of payments into and out of the respective accounts, and his knowledge of the respective accounts, was in play. Indeed the Sayour Parties’ case involved a comprehensive examination of payments in and due of the respective accounts.

142. [877]

     Related to the above issues concerning Browne v Dunn and Oneflare, as part of its complaint as to the submissions made by the Sayour Parties in light of the extent or nature of cross-examination on particular issues, Konstructions submits that there have been a number of concessions made by implication arising from the cross-examination of Mr Kanj.

143. [878]

     As noted above, it is said by Konstructions that, although the Sayour Parties have positively asserted there was no agreement between Jamil and Mr Kanj which obliged the making of the impugned payments to Konstructions, it was not suggested in cross-examination that Mr Kanj did not provide any assistance to Jamil (as Mr Kanj had attested in his affidavit and in his oral evidence). It is said that the highest the cross-examination reached was that the assistance was minimal and was disproportionate to the payment he received.

144. [879]

     Following the above, Konstructions submits that, by the form of the questioning, the cross-examiner implicitly accepted that (some) assistance was provided (and it is said that the same implicit concession is made in the Sayour Parties’ submissions). Konstructions contends that, for the Sayour Parties now to depart from this, is a change in the case and that it cannot now be argued that such consideration was not valuable. Konstructions maintains that establishing that assistance was provided by Mr Kanj establishes one of the elements that grounded the case here made (namely, that consideration was provided by Mr Kanj to Jamil).

145. [880]

     Konstructions says that, if the Sayour Parties wished to challenge the issue of consideration for the alleged agreement, then they had the obligation to do so in a manner that would provide the witness with an opportunity to respond thereto. It is said that it is not addressed, “simply by alleging in a rolled up assertion that the arrangement was a fabrication”.

146. [881]

     Insofar as it was suggested in cross examination that the amount of work performed did not justify the fee, Konstructions says that this amounts to implicit acceptance that assistance was given. It is noted that Mr Kanj’s evidence was that the arrangement was reached not only for the work performed but also for the promise of proceeding to a development on a profitable contract with Jamil and it is said that Jamil’s change of plan deprived him of that opportunity.

147. [882]

     Konstructions maintains that the remaining element of the agreement is whether Jamil made any promise of payment to Mr Kanj; and it is said that Mr Kanj gave unchallenged evidence that he did; and that there is no direct evidence to the contrary as to the existence of the agreement.

148. [883]

     Konstructions also here points to the evidence of witnesses who gave unchallenged evidence that, as at 2018, they were aware of the fact that Mr Zafiropoulos asserted an entitlement to payments (those witnesses said to be Mr Gav; Mr Vamvakaris; and Mr Deiri). It says that Mr Deiri has no incentive to lie about the conversation between Jamil and Mr Deiri regarding the agreements between Jamil and Mr Zafiropoulos or Jamil and Mr Kanj (since Mr Deiri was entitled to surplus profits from the development on either an equal basis, as asserted by the Sayour interests, or as to a 97% share, as asserted the Deiri interests).

149. [884]

     It is said that the honouring of these payments incurred by Jamil is directly inconsistent with Mr Deiri’s financial interests; that (in broad terms) were he to have refused to pay on his agreement with Jamil then he would be financially better off to the extent of $7.5 million (on an equal basis) or $14,551,500 (on the basis of a 97% share, again, as asserted by the Deiri interests). Konstructions says that Mr Deiri’s version being against his own financial self-interest is said to be a highly important factor that supports the existence of the conversation he said he had with Jamil.

150. [885]

     Meanwhile, the Sayour Parties maintain to the contrary that Mr Deiri’s honouring of the payments was not against his financial interests, in that Mr Deiri at the same time extracted the Development Management Fee.

151. [886]

     Konstructions says that there is no evidence (and no suggestion or question posed in cross-examination) that any payment made to Mr Kanj or Mr Zafiropoulos was meant for other third parties or was to be returned to Mr Deiri so as to negate any argument that he had no financial interest in the outcome (and it is said that it is too late now to raise this issue against Mr Kanj in submissions).

152. [887]

     Furthermore, Konstructions submits that any variations in the conversations between Mr Kanj and Mr Deiri and Mr Kanj and Mr Gav are of no particular moment. It says that they are the sort of variations that occur of events that occurred months ago between witnesses who have their own recollections and perceptions and are endeavouring to tell the truth. As such, it is submitted that the knowledge of Jamil to which Mr Deiri has given evidence, indirectly corroborates the evidence of Mr Zafiropoulos.

153. [888]

     I have considered much of the above issues already. Those observations are sufficient for present purposes. I consider the case for and against Mr Kanj and his interests in due course.

154. [889]

     Finally, there were two matters on which I ruled during the course of the hearing and said I would provide reasons in my final judgment. These are those matters (and reasons).

155. [890]

     First, I disallowed cross-examination on the topic of what were colloquially referred to as the “cooked up” allegations (see for example at T 1031) (i.e., that the Site Identification Fee(s) had been “cooked up” by Mr Deiri; and by inference, by others such as Mr Kanj and Mr Zafiropoulos) “in order to disguise” payments going to the benefit of Mr Fadi Ibrahim (that particular line of questioning focussing on reported payments of a $2 million surety for bail in favour of Mr Fadi Ibrahim).

156. [891]

     There was vehement objection from many about this line of questioning (relevantly, from the Deiri interests of Konstructions and Zapphire’s witnesses) and much debate as to whether it raised unpleaded allegations of sham (disavowed by the Sayour Parties, who draw a distinction between recent inventions and shams – their position being that there was no agreement and hence could be no sham – see at T 1033). Earlier objection had been raised on the same issue in relation to debate as to the use of the funds received by Konstructions (see at T 260/261) as to whether this was a real transaction. Written submissions were provided on the issue (the Sayour Parties relying on Simon v NRMA Insurance Ltd [1991] NSWCA 247. The debate was as to whether the line of questioning could be supported as relevant to issues going to unpleaded fraud (i.e., beyond a sham argument – see at T 1035).

157. [892]

     It is not necessary here to recount or summarise those submissions. Ultimately, I disallowed questions on the “cooked up” issue. I did so because I considered that the Sayour Parties’ allegation was that there was no agreement (as had been alleged against by the relevant cross-defendants) not that there was an agreement but it was a sham. I considered that an allegation that the parties had “cooked up” or fabricated such agreement, would amount to an allegation of fraud, where none was pleaded. That remains my view. Therefore, in the absence of an allegation of fraud, or of a concoction between the relevant parties’ arrangements in relation to the impugned payments in order to disguise other payments, I disallowed questioning on that topic.

158. [893]

     The second matter on which I said I would provide reasons in my final judgment related to questioning sought to be put by the Sayour Parties to Mr Deiri in relation to two file notes that had been produced on subpoena by HWLE – file notes of 27 September 2011 and around that time.

159. [894]

     The Sayour Parties sought to test the reliance placed by the Deiri interests on other (business) records from the subpoenaed HWLE file by reference to two file notes that had been produced on subpoena from the file. The difficulty I had with those (and particularly the first of those) file notes was that it was not clear on the fact of the file note(s) who had made the note or what was there recorded.

160. [895]

     In this regard, reliance was placed by the Deiri Parties on the reasoning of Vickery J in Hodgson v Amcor; Amcor v Barnes [2012] VSC 94 (Hodgson). It was submitted that, for similar reasons, the questioning should not be permitted. Ultimately, I accepted that submission.

161. [896]

     The first file note seemed to be relied upon to test the proposition that Moustafa was understood to be commercially naïve (“simple and not technical”).

162. [897]

     The second file note, which appeared to have two unidentified authors was relied upon to test the proposition that there had been an earlier conference on 27 September 2011 attended by Jamil with the lawyers and /or accountant. Insofar as the second note recorded words spoken by Mr Parras, the accountant, the Deiri Parties’ position was that there was no evidence that the accountant (Mr Parras) had personal knowledge of the matters there set out and had the note was not a business record within the relevant exception (see s 69(2)(a) of the Evidence Act 1995 (NSW) (“Evidence Act”)).

163. [898]

     Complaint was made (see T 1059.38) there it was not clear on the face of the second file note whether it recorded a conference with the client or a conference between solicitors to discuss the transaction and to what is related. It was submitted that it could simply be “somebody’s jottings” (see T 1059.44) adopting the terminology used by Vickery J. Complaint was made that the danger of prejudice to Mr Deiri being cross-examined on such a document substantially outweighed the probative value of the document and that it should be rejected pursuant to s 135 of the Evidence Act (reliance again being placed on what was said by Vickery J in Hodgson).

164. [899]

     Although I was initially inclined to permit cross-examination on the second of the two file notes, ultimately I formed the view that this should be excluded pursuant to s 135 of the Evidence Act for the reasons put forward by the Deiri Parties. Insofar as the second file note was being relied upon to test the likelihood that Mr Deiri attended a meeting and had a conversation earlier on 27 September 2011 to give instructions for preparation for that meeting, I consider that its probation force is substantially outweighed by the danger of prejudice to the witness (in terms of confusion and the like) (see T 1060.)

Credibility of witnesses

1. [900]

   I now turn to consider the credibility of various witnesses, including consideration of submissions that adverse credit findings should be made.

2. [901]

   At the outset, I note (and accept) the emphasis placed by the Sayour Parties on the well-recognised need for careful scrutiny of evidence in respect of transactions depending on conversations with a deceased person.

3. [902]

   In this regard, the Sayour Parties referred to the observations of Hallen J in Blendell v Byrne; The Estate of Noeline Joan Blendell [2019] NSWSC 583 (Blendell v Byrne) (at [189]), his Honour there citing Plunkett v Bull (1915) 19 CLR 544 at 548-9; [1915] HCA 14 per Isaacs J (Plunkett v Bull) and noting that, though there be no absolute legal requirement for it, the Court should look for some corroboration of such evidence (his Honour citing Re Hodgson (1886) 31 Ch D 177; [1881-85] All ER Rep 931 at 931; Day v Couch [2000] NSWSC 230; Weeks v Hrubala [2008] NSWSC 162 at [20] per Young CJ in Eq). Hallen J also referred in Blendell v Byrne (at [190]-[191]) to statements made by McLelland CJ in Eq in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 (see at 789) as to the considerable caution with which uncorroborated evidence of claims based on communications with a deceased person will be treated, and by Whelan J in Webb v Ryan [2012] VSC 377 (at [22]) as to the difficulties in assessing evidence concerning things allegedly said by someone who is dead.

4. [903]

   In their submissions, the Deiri Parties say that the authorities summarised in the relevant passage of Blendell v Byrne are exclusively concerned with the situation in which a plaintiff’s case depends upon conversations that have taken place with a deceased person (noting that all but one of the authorities cited arose in the context of estate litigation, in which, it is said, the intent of the deceased necessarily plays a central and decisive role and necessarily falls to be considered with the utmost of caution, not least because the deceased is not able to defend himself or herself). The Deiri Parties say that the situation is very different where it is a defendant that seeks to rely upon conversations with a person now deceased, on the basis that a defendant has little choice but to defend the litigation. It is said that the litigation is not of the defendant’s making, and the defendant cannot help it if one of its key witnesses has passed away. The Deiri Parties maintain, in this regard, that their third cross-claim is in substance defensive in nature (as to which, see my summary of the claim at [56] above).

5. [904]

   Further, insofar as the Sayour Parties place reliance on Plunkett v Bull, the Deiri Parties say that that case requires a nuanced approach than simply that of subjecting all evidence of conversations with a deceased person to careful scrutiny, referring to what was said by Isaacs J (see at 549).

6. [905]

   The Deiri Parties say that a defendant’s reliance upon conversations with a person who is now deceased does not require the application of any special or higher standard of proof or persuasion to the assessment of that evidence.

7. [906]

   Pausing here, I do not understand the Sayour Parties to be submitting that a higher standard or proof or persuasion is required when assessing the evidence of conversations with deceased persons, be that in an estate litigation context or otherwise. Nor, however, do I consider the circumstance that it is a defendant (rather than a plaintiff) relying on that evidence to be of any great moment for present purposes. In that connection, I note that each of the parties is in the position of a cross-defendant to various of the cross-claims. The fact remains (unfortunate as it may be for a defendant forced to defend itself against allegations that turn on conversations with a deceased person) that careful scrutiny of the evidence is required for the very reason that the deceased is not here to give his or her account of the relevant events.

8. [907]

   Further, where there is a lack of contemporaneous documentary evidence, it has been said (and, I accept) that the primary emphasis is ordinarily on objective factual surrounding material and the inherent commercial, and other, probabilities (see, for example, Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599 at [15] per Gleeson CJ, Gaudron, Kirby and Hayne JJ, with whom Callinan J agreed).

9. [908]

   With that in mind, I turn to the submissions made as to the credibility of the various principal witnesses.

10. [909]

    The Deiri Parties submit that Moustafa was not a truthful witness. They say that he was frequently evasive, gave conflicting evidence, was argumentative and gave answers that were obviously dishonest.

11. [910]

    More particularly, the Deiri Parties say that Moustafa gave dishonest evidence in relation to the following five topics.

12. [911]

    First, that Moustafa’s solicitor prepared and presented him with a blank contract for sale for the Broadway Site. It is said that this was a deliberate strategy to avoid the fact that the contract recorded a deposit of $400,000 on its front page which Plaza claims it never received.

13. [912]

    Second, Moustafa’s assertion that he had no knowledge of the Westpac #202 Account. It is noted that Moustafa repeated that evidence despite having signed the opening form for that account, large sums that could only have come from him having been put into that account, funds from that account having been used to pay for a variety of properties throughout 2009 (including the Broadway Site), having signed an accommodation notice on that account, having paid down his personal home loans with funds from that account and having declared the account on his tax returns. It is said that his motive for distancing himself, so to speak, from the Westpac #202 Account was again obvious: that much of the moneys Plaza now says it did not receive were paid into that account.

14. [913]

    Third, Moustafa’s assertion that all of the Powers of Attorney that Plaza gave to Jamil were only ever given for leasing purposes, and that his solicitor told him Jamil could not sign any cheques with them. It is noted that Moustafa gave that evidence despite the fact that the first two Powers of Attorney (as to which, see at [102]; [196] above) made no reference to leasing, despite the clear wording of the instruments showing leasing was an expansion of the powers and despite the contemporaneous material showing the true purpose of referring to leasing was to ensure Jamil was not impeded by the prohibition on encumbering real estate. The Deiri Parties make reference to the cross examination of Moustafa on this topic.

15. [914]

    Fourth, Moustafa’s claim that he did not know that Deicorp Constructions was making claims on CBA for payment. It is noted that he gave that evidence despite accepting that he knew the building was being built, and that CBA would not pay the builder without a request for payment.

16. [915]

    Fifth, Moustafa’s assertion that he never read any bank statements, never read any tax returns in his 45 years of lodging returns, never read the tax return for the financial year ending 2015 for the Sayour Family Trust (declaring over $12 million income in partnership distributions), never read the cash facility, never read the documents he was asked to sign when he deposited two cheques for $5 million in partnership distributions into the Westpac #238 Account in his name and never read the authority sent to the bank concerning signatures on the partnership account. The Deiri Parties say that this evidence amounts to Moustafa “never having read anything that did not suit his case”. It is said that either this account of “blindly wandering through the world signing important documents without reading anything” is false, or his denial that he left the project to Jamil to run is false.

17. [916]

    The Deiri Parties submit that, given the above, there should be a high degree of scepticism and wariness as to the acceptance of any of Moustafa’s evidence, unless it is against interest or unless it is clearly corroborated by (and not merely consistent with) a contemporaneous document.

18. [917]

    Further, and quite apart from the alleged dishonesty in his evidence, the Deiri Parties say that Moustafa was not a reliable witness and there cannot be confidence in the accuracy of the accounts he gave in his affidavits (again, at least not without clear corroborating documentary evidence). It is noted that Moustafa gave evidence which suggested he did not understand his own affidavits, referring to the transcript of the cross-examination by Senior Counsel for CBA (see, for example, at T 524) as to Moustafa’s understanding of matters contained in his own affidavit (such as the reference to the affairs of Biomed being “complex”).

19. [918]

    Similarly, it is said that when Moustafa’s assertion that he did not understand the relevant parts of the approved terms and conditions was tested under cross-examination, he denied understanding basic words of English, some of which he used in his own affidavits. Moustafa’s evidence in that regard was that he explained to another person what he wanted to say, and that person then put it into an affidavit, and Moustafa swore it. It is said that there evidently were differences between what the draftsperson wrote and what Moustafa intended. In these circumstances, it is submitted that one could not be confident that Moustafa actually understood what he deposes in his affidavits (nor, it follows, that the accounts given in them are accurate).

20. [919]

    For its part, Konstructions similarly contends that great care should be taken in accepting aspects of Moustafa’s evidence (unless corroborated by contemporaneous documentary evidence or by oral evidence of other persons who were present and involved in the relevant transactions at the time). Konstructions also points to the evidence in cross-examination (see above) that suggests that Moustafa could not be sure if his affidavits were correct and that he did not have his affidavit translated nor was there any use of interpreters. It is said that this is particularly important when Moustafa sets out the conversations he said he had with various people; and to the extent that there are any subtleties of expression that are evident from competing accounts of the same conversation.

21. [920]

    Konstructions also submits that Moustafa’s evidence is open to considerable doubt on several issues. It is said that Moustafa had a strong tendency to advocate his own position, rather than to answer questions; that he placed issues in dispute that are unarguably contrary to his position; and that he engaged in speculation. Konstructions says that Moustafa has a very strong belief in his own position; that he was apt to construe the events of the past through the prism of litigation; and that he demonstrated on several occasions that he was wrong but still did not display any doubt. It is said that he had an absolute certainty of his position on some issues despite other material to the contrary of it.

22. [921]

    Konstructions also points to inconsistencies between Moustafa’s evidence as to his perception of Jamil and his conduct vis̀-a-vis̀ Jamil in the context of the findings Konstructions seeks as to Jamil’s authority (to which, see below). It submits that some of the inconsistencies in Moustafa’s evidence are irreconcilable.

23. [922]

    Konstructions says that, in weighing Moustafa’s evidence, it should be noted that a central feature of his evidence is that Moustafa was concerned that he had been “robbed”. It is said (and I accept the force of this submission) that this “infects his perception of all the activities to which he has given evidence, even when objectively, there was an explanation that extinguished any evidence of moral turpitude by another person”.

24. [923]

    I accept that Moustafa’s evidence as to matters such as the dates of conversations and the like was not wholly reliable (although, I would add, the same can be said of other witnesses, not least Mr Deiri).

25. [924]

    Similarly, I accept that Moustafa’s evidence as to his understanding of the words used in his own affidavits suggests that caution is needed before attaching weight to the manner in which he has there expressed himself (not to mention that the semantic differences may mean that what is set out is not his best recollection of events). Although, I must add that this not uncommon with witnesses whose first language is not English.

26. [925]

    I also accept that, over the course of a lengthy cross-examination, there were occasions when Moustafa was argumentative and sought to advocate his own case. Further, there were aspects of his evidence that were not plausible (such as his evidence, to which he firmly adhered, that when he had signed the contract for sale of land in respect of the Broadway Site the cover sheet was blank – which to my mind, if correct, would mean that Moustafa showed almost blind trust in his legal adviser, and which I have great difficulty accepting in the absence of corroboration from the solicitor in question).

27. [926]

    That said, I did not regard Moustafa as an evasive witness and I do not accept that a finding of dishonesty would here be appropriate to make. Rather, my observation of his evidence was that, on a number of matters, Moustafa had a fixed view of events and would not be shaken from that view, even when the evidence squarely pointed otherwise (such as the date on which the tender for the Stage 2 Construction Contract was signed).

28. [927]

    True it is that, on Moustafa’s account of events, Moustafa signed many (often important) documents (such as tax returns) without reading them and seems to have taken little interest in monitoring bank statements and the like. That is so despite accepting that he was careful with his money.

29. [928]

    However, Moustafa’s evidence that he left tax or financial matters to his accountants or advisers to deal with seemed to me to be not implausible, particularly given that English is not his first language.

30. [929]

    Furthermore, his apparent stubbornness in accepting propositions put to him seemed to me more likely to be attributable to his personality and status within the family than to any lack of truthfulness.

31. [930]

    That, however, is consistent with (and makes it more plausible) Moustafa being prepared to leave the day-to-day management of the Broadway Development to others. Most relevantly, to my mind, it makes it more plausible that Moustafa was prepared to leave Jamil to run things and him (Moustafa) being prepared to sign (and be bound by) documents put before him by Jamil and others (such as the Westpac #202 Account opening forms and the documents relating to the incorporation of Sayour Holdings), without a comprehensive (or, perhaps, any real) understanding of their contents.

32. [931]

    I also accept CBA’s submission to the effect that Moustafa’s evidence appears to have been infected by his perception (and obviously strongly held view) that Mr Deiri has acted fraudulently in his dealings with him. No doubt it must also have been painful for him to discover, after Jamil’s death, that (as seems undoubtedly the case) Jamil concealed things from him in relation to both the Broadway Development and the Arncliffe Development.

33. [932]

    Overall, as I have said, I do not consider that the complaints here made as to Moustafa’s evidence warrant any finding of dishonesty. I bear in mind that there is an important distinction to be drawn between not accepting a witness’ evidence, or finding it implausible, and a finding of actual dishonesty (see Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 126 (Royal Guardian Mortgage Management)). However, I do place considerable caution on accepting Moustafa’s recollection of events and conversations, influenced as they no doubt have been with hindsight and having regard to the caution in Watson v Foxman (1995) 49 NSWLR 315 at 318-319 per McLelland CJ in Eq (Watson v Foxman), as necessarily reliable accounts. Rather (and, as I do with the respective lay witnesses), I place greater weight on the contemporaneous documents, to the extent that there are any, in relation to particular events or conversations and I consider them against the background of the objective circumstances at the relevant times.

34. [933]

    I note that the Sayour Parties maintain that these proceedings turn largely on the credit and commercial probity of Mr Deiri. In this regard, the Sayour Parties say that: Mr Deiri knew that Jamil was signing cheques; Mr Deiri, by his own admission, had no view at the time that Jamil was doing this under power of attorney; Mr Deiri prepared or was in charge of preparing forged drawdown notices; Mr Deiri was party to Jamil’s deception of Moustafa; Mr Deiri bribed Jamil; Mr Deiri was party to the misappropriation of Sayour family trust moneys into the project at Arncliffe; and Mr Deiri knew that Moustafa trusted him and cynically abused that confidence. The Sayour Parties accept that those allegations (and, particularly the allegations of forgery and bribery) are serious allegations, not lightly to be made, but stand by those allegations. Insofar as these submissions turn on the factual findings that are ultimately made, I will deal with them later in these reasons. For present purposes, I am only considering credibility findings in relation to Mr Deiri.

35. [934]

    The Sayour Parties say that Mr Deiri was a “poor historian” and that his explanations of a large variety of transactions have been “thoroughly discredited”, that he has failed to provide credible answers to charges of dishonesty and that his explanations have generally been self-serving and marked by a lack of candour in the giving of his evidence. The Sayour Parties point to the contrast between Mr Deiri’s oral evidence, where he was unable to recall details on many matters (and to recall important aspects of conversations on which he relies when asked to set them out in his own words) with his affidavit evidence in which he set out the details of a number of conversations. By way of example, the Sayour Parties contrast Mr Deiri’s recollection of alleged conversations in relation to the Arncliffe Agreement with what they say was his lack of accurate recall of procedures in his own office.

36. [935]

    In particular, criticism was made by the Sayour Parties against Mr Deiri as to his evidence in respect of the preparation of accommodation notices, his evidence in relation to the procedure for signing cheques relating to the Broadway Development (similar criticism in this regard also being levelled by CBA) and his evidence in relation to the preparation of the Cheque Authorisation Alteration Instruction. It is convenient here briefly to consider the submissions, in this regard.

37. [936]

    Plaza and the Sayour Parties say that the evidence of Mr Deiri and Ms Dahdal about the procedure for preparing and drawing cheques on the CBA Partnership Account conflicted on some points and submit that the evidence they gave (regarding the delivery of cheques to Jamil, the taking of a manila folder of cheques by Jamil from the office to be signed and then the return of the folder with signed cheques) was not persuasive. The Sayour Parties contend that any finding that Jamil was not taking away the manila folder, must seriously affect the credit of both Ms Dahdal and Mr Deiri.

38. [937]

    It is noted that both Mr Deiri and Ms Dahdal were insistent that they could not identify the normal signature of Jamil (even in circumstances where Mr Deiri’s signature appears in the same pen immediately next to Jamil’s signature and where Ms Dahdal had witnessed both signatures – referring to Ex P at 63; Mr Deiri’s evidence at T 989.30-45; and Ms Dahdal’s evidence at T 1204.30-T 1205.20).

39. [938]

    The Sayour Parties say that Mr Deiri gave, successively, two incorrect explanations for the signing of the early accommodation notices; and no explanation for the presence of Jamil signatures on accommodation notices nos 2, 3 and 4.

40. [939]

    As to the Cheque Authorisation Alteration Instruction, for the reasons I explore in due course, the Sayour Parties say that it is not possible that it was otherwise than a “cut and paste” production. The Sayour Parties say that it is clear that Mr Deiri had access to, or some contact with, the Cheque Authorisation Alteration Instruction (since he emailed it to Mr Small and Ms Schucroft of CBA). The Sayour Parties say that, while Mr Deiri admitted in cross-examination that there had been the use of “pro formas”, he was unable to explain how the Cheque Authorisation Alteration Instruction came into existence or why the signature of Moustafa had been copied onto a document which had the effect of changing the operation of the CBA Partnership Account allowing either Mr Deiri or Moustafa to sign cheques alone (see, for example, at T 867.45 – T 868.32).

41. [940]

    The Sayour Parties submit that Mr Deiri is (and was) clearly a man of considerable abilities and understanding; and that he accepted the ordinary norm of a properly formed conscience that lying is improper and unacceptable. The Sayour Parties say that, insofar as Mr Deiri’s defence is that he did not know that Jamil was not “upfront with his father”, the emails had told him this “in black and white”. It is noted that, when pressed on his evidence about Jamil recycling the Sayour Family Trust’s money, his answer was “I don’t know what arrangements are in one’s family” and that “It’s not for me to be completely concerned about it. If someone’s partnering with us they either have money or they don’t have money” (see at T 893.3-15).

42. [941]

    It is submitted that, in those answers, Mr Deiri distinguished between situations where there is and is not an obligation to be “concerned” and asserted that he was in the latter position. It is noted that, when pressed with the point that he had been recently told by Jamil that Jamil had been lying to his father about matters of financial importance and was now being told that Jamil was going to take the trust money to put into what Mr Deiri in oral evidence said he thought was Jamil’s own company, Mr Deiri’s answer was “I don’t know what’s his money and what’s his father’s money” (at T 893.15-16) but that he then agreed with the proposition that “[i]f you don’t know, you find out, don’t you, before you commit yourself to a venture of this magnitude” (see at T 893.19-21). It is noted that when, when pressed on what he did to find out, Mr Deiri’s answer was that, “I just assumed” and that “It’s not my business to get involved in a family matter business” (see T 893.32-33).

43. [942]

    The Sayour Parties say that Mr Deiri was not entitled wilfully to shut his eyes to the truth in this way. It is submitted that Mr Deiri’s affirmative answer to the proposition that if “you don’t know, you find out before committing yourself to a venture of his magnitude” demonstrates that Mr Deiri did “know better”. It is said that, in [30]-[32] of his affidavit sworn on 16 October 2019, Mr Deiri sought to convey that he did not know who was interested in Sayour Holdings (cf his oral evidence that he thought and was told by Jamil that it was owned by Jamil – see at T 891).

44. [943]

    The Sayour Parties say that if Moustafa owned Sayour Holdings then it was incumbent upon Mr Deiri to deal with him in respect of the Arncliffe project, especially as he knew that Sayour Family Trust funds were to be used for Arncliffe. It is said, in this regard, that the Broadway Partnership needed to obtain a valid receipt for any funds paid into the Arncliffe venture from distributions to the Sayour Family Trust. Furthermore, the Sayour Parties say that, even if this were not a matter of obligation, there was no reason at all for Mr Deiri to refrain from dealing with Moustafa or discussing the subject of the Arncliffe development with Moustafa if the situation was that dealing with Moustafa was like dealing with Jamil, and vice versa.

45. [944]

    As to the assertion that Moustafa told Mr Deiri that “dealing with Jamil is like dealing with me”, the Sayour Parties say that, if this is to be believed, it spoke of trust and confidence in a son (not a statement of plenipotentiary authority) and, insofar as Mr Deiri also puts the converse into the mouth of Jamil, it is said that it means that Jamil is not acting for himself, but rather for the benefit of his parents and sisters (or, at least his father).

46. [945]

    Further, it is said that, if Moustafa knew all about the Arncliffe development, then there was no reason not to speak of it with Moustafa “openly and frequently”, especially when Jamil was dying and there would inevitably be need for some form of handover.

47. [946]

    The Sayour Parties say that Mr Deiri’s evidence in cross-examination (that he viewed Sayour Holdings as something owned by Jamil) was a “recourse to avoid the embarrassment of being pressed on his failures”, even to discuss its affairs with Moustafa. It is noted that, according to Mr Deiri, it was not a subject for discussion with Moustafa because it was Jamil’s company.

48. [947]

    Following from this, the Sayour Parties say that, if Sayour Holdings was Jamil’s company, and contributions by way of loan to Combined Projects Arncliffe were contemporaneously recorded (as they were) to Sayour Holdings’ loan account, then there was no reason retrospectively to reallocate part of that loan account to Jamil in 2017. On the other hand, they say that, if Sayour Holdings was Jamil’s company, then Sayour Family Trust money ought not to have been credited to Sayour Holdings’ loan account in the first place, without the permission of Moustafa. It is said that a man of Mr Deiri’s experience could not seriously have thought that $10 million was to come from the Sayour Family Trust with Moustafa’s permission and yet never have mentioned it to Moustafa, nor questioned in his own mind the ownership of Sayour Holdings.

49. [948]

    The Sayour Parties say that the objective evidence of the Sayour 2 Family Trust deed (as to which, see at [422]-[423] above), in comparison with the Sayour Family Trust deed (as to which, see at [94] above), demonstrates that, in late 2013, Jamil was seeking to advance himself “whilst not yet bold enough to cut out his father entirely”. It is said that that “bolder course” did not ensue until JS75 and its accompanying family trust were established by Jamil (as to which, see at [465] above), in connection with the next Arncliffe venture but noting also that Jamil, in August 2014, gave instructions to Mr Gramelis to alter the ownership and directorship of Sayour Holdings, without making any change to the Sayour 2 Family Trust deed.

50. [949]

    The Sayour Parties say that, in February 2014, the establishment of Combined Projects Arncliffe and Sayour Holdings, and the intention to “recycle” Sayour Family Trust money, were concealed from Moustafa; and, at the same time, Moustafa was, by a forgery, purportedly removed from being a necessary signatory to the CBA Partnership Account (see at [445] above).

51. [950]

    It is said that this is a pattern of behaviour inconsistent with any view that the change in cheque signatories was because Jamil was tired of going back and forth to get Moustafa’s signatures on cheques. The Sayour Parties say that Mr Deiri’s evidence in that respect (at [175]-[177] of his affidavit sworn on 22 August 2019) should be rejected as false (it being noted that in that affidavit, and seemingly contrary to [11(b)] of Investments’ defence to the First Broadway Cross-claim, Mr Deiri placed the conversation in around early February 2013). The Sayour Parties point out that this was asserted in circumstances where Jamil had been signing the cheques in his own usual signature for about a year. It is said that Mr Deiri’s evidence that he was unaware of this defies credulity and that it was discredited in cross examination (by reference to the various emails that were shown to him in cross examination by CBA and Plaza in relation to cheque signing procedures).

52. [951]

    In this connection, the Sayour Parties point to a “corrective” affidavit serviced during the trial in which it is said that Mr Deiri reverted to the position that the conversation took place in February 2014. The Sayour Parties say that this change does not cure the difficulties arising out of the conversation on the cheque signing procedures (i.e., that Jamil was never running to and fro for his father’s signature) but that it introduces the additional difficulty that, by February 2014, Jamil had clearly been lying to his father “for the benefit of Mr Deiri” (and it is asserted that Mr Deiri knew it).

53. [952]

    In addition, reference is also made to the circumstances surrounding the preparation and signing of the Stage 2 Construction Contract in May 2013 (which it is noted was not even purportedly signed in the name of Moustafa), which increased the price (from that which it is said had been agreed with Moustafa under the tender of 27 December 2011) by $1.35 million to $24.850 million (see at [357] above).

54. [953]

    The Sayour Parties say that the evidence of Mr Deiri in cross-examination (see T 856ff) that he “did not need” Moustafa’s signature on draw down notices (on the basis that Jamil had complete authority and a complete power of attorney to obtain Moustafa’s signature on a blank form and to authorise Mr Deiri to use that form) and that Mr Deiri said “I had no reason to question” this (see T 856ff) ought not be accepted. More particularly, the Sayour Parties say that the proposition that Mr Deiri had no reason to question this cannot be accepted in circumstances where the blank forms clearly changed from time to time; and the latest “makes its first appearance” in January 2014 (after Mr Deiri had been told Jamil was lying to Moustafa, and at a time when Mr Deiri knew of Jamil’s intention to “recycle” Sayour Family Trust money). It is submitted that Mr Deiri “had every reason to question” and did question Jamil. The Sayour Parties say that his evidence in that respect was not convincing. It is noted that Mr Deiri had earlier had the 2013 CBA cheque query (see at [340] above) which he did not even refer to Jamil (let alone Moustafa) until after he had instructed CBA to pay the cheque. It is again submitted that a man of Mr Deiri’s experience must have understood that a power of attorney does not confer power to make gifts or to benefit oneself unless specially authorised.

55. [954]

    The Sayour Parties say that acceptance of Mr Deiri’s evidence would require acceptance: that the Moustafa signature simulations were obtained on successive blank templates via the manila folder procedure, without knowledge that Jamil was signing Moustafa’s name (involving consideration of the whole cheque signing procedure); that Jamil told Mr Deiri that he could use the blank forms with the “blessing” of Moustafa (said to be inherently improbable in circumstances where the evidence of the manila folder procedure should not be accepted, and where Mr Deiri had been told that Jamil was lying to his father); and that, believing Jamil was authorised to sign, Mr Deiri nonetheless used (without need) pre-signed templates by Moustafa, when he could simply have had Jamil sign each time on an open basis.

56. [955]

    The Sayour Parties say that Mr Deiri’s evidence (see, for example, at T 856.7-8) that he believed he had a genuine Moustafa template which he understood he was authorised to use should not be accepted. It is submitted that Jamil was not authorised to sign for the partnership and was not authorised to sign for the partnership using simulations of Moustafa’s signature, or even using his own usual signature in Moustafa’s name.

57. [956]

    Following from this, the Sayour Parties thus maintain that Mr Deiri is a witness whose evidence requires corroboration by reliable objective evidence (by which they do not include the evidence of witnesses such as Mr Kanj and Mr Zafiropoulos, of whose evidence the Sayour Parties are also highly critical – see below).

58. [957]

    Meanwhile, the Deiri Parties submit, to the contrary that, Mr Deiri gave frank answers, answered the questions asked and was not evasive; and they say (and on this point, I accept) that only rarely did he engage in any sort of argument beyond attempting to explain his answer.

59. [958]

    It is said that, on the few occasions when he was shown a document that suggested his account might not be accurate, Mr Deiri was not defensive (rather, that he was open to the possibility that his recollection might not be correct) and that his answers were generally consistent with the contemporaneous documents. Overall, it is submitted that Mr Deiri was a witness of truth who was doing his best to remember events that took place up to eight years ago.

60. [959]

    It is said that, even if certain aspects of Mr Deiri’s evidence are not accepted on the balance of probabilities, it would not be appropriate to make a “blanket” adverse finding in relation to Mr Deiri’s credibility. Rather, it is submitted that, insofar as Mr Deiri’s evidence is not consistent with contemporaneous documents and those documents show error in Mr Deiri’s account of events, it should be concluded that Mr Deiri was simply mistaken.

61. [960]

    As to the criticism made of Mr Deiri’s evidence about the preparation of accommodation notices, the Deiri Parties complain that questions were put to him in a confusing way and they say that the events the subject of the topic (dating back many years) were themselves confusing (referring to the questioning and evidence as to the existence of a pro forma or template notice). Indeed, similar complaint is made as to the criticism made of Mr Deiri’s evidence in relation to cheque signing procedures.

62. [961]

    Furthermore, and as adverted to above in relation to Jones v Dunkel and otherwise, complaint is made that serious and unpleaded allegations were made against Mr Deiri for the first time in cross-examination. The Deiri Parties say that it was not alleged that Mr Deiri fabricated or forged accommodation notices (or that he did so with an intent to deceive Moustafa or conceal matters from him), nor that he fabricated the Cheque Authorisation Alternation Instruction; and hence that it is not now open to Plaza to make submissions (as it has done) to the effect that, in relation to the accommodation notices, Mr Deiri must have “cut and paste” Moustafa’s signature without his knowledge; or that the drawdown procedure was “calculated to keep Moustafa from seeing them and from having an opportunity to object to any specific notice”; or that the Cheque Authorisation Alteration Instruction was also the product of such a cut and paste exercise.

63. [962]

    The Deiri Parties point to r 14.14 of the UCPR in this regard, noting that fraud is a serious matter which must be pleaded specifically and with particularity (see r 14.14(3), (4); Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 573; [1995] HCA 68 per Brennan, Dean, Gaudron and McHugh JJ); and that a fraudulent intention must be pleaded and particularised (see r 15.4(1), (2)). In this regard, it is also noted that Plaza was put on notice in opening submissions that it would be held strictly to its pleaded case.

64. [963]

    Relevantly here, what was pleaded by Plaza in relation to the accommodation notices (see [134]-[139] of the First Broadway Cross-claim) was that each of the payments listed in Schedule G was made without any accommodation notice; none of those payments was paid into the CBA Partnership Account; each of the payments was made after CBA sighted a letter purportedly signed by Moustafa and Mr Deiri; and that Moustafa did not sign any of those letters to CBA (see the particulars to [138] asserting that all of those letters are forgeries). The Deiri Parties further note that, in the Fifth Broadway Cross-claim, Plaza pleaded (at [536] in an allegation premised on acceptance of its “bribes case”) that Jamil was induced to sign correspondence to CBA which purported to be accommodation or draw down notices; and particularised that allegation as follows:

65. [964]

    Similarly, it is noted that there is no pleading as to fabrication by Mr Deiri (through cutting and pasting) of the Cheque Authorisation Alteration Instruction, noting that the allegation in the Fifth Broadway Cross-claim (at [539]) is that Jamil forged the signature of Moustafa on that document.

66. [965]

    The Deiri Parties therefore say that it is not open to Plaza now to allege that Mr Deiri knowingly fabricated or forged or deceptively “cut and paste” signatures on those documents; and that the only relevant allegation Plaza is permitted to advance concerning the genuineness of the signatures purporting to be those of Moustafa on the accommodation notices or Cheque Authorisation Alteration Instruction is that Moustafa did not sign them.

67. [966]

    As has also been adverted to, a procedural fairness issue is here raised (namely, that Investments and Mr Deiri did not come prepared to meet the allegation that they had forged or fabricated accommodation notices, or that they intended to deceive or conceal the accommodation notices from Moustafa). Thus it is said that no findings adverse to Mr Deiri’s credibility should be drawn based upon allegations about these matters. Further, it is submitted (by reference to the existence of a signed template accommodation notice) that inconsistency or confusion in Mr Deiri’s evidence on that topic is explicable (having regard to the variety of means apparently used for such documents).

68. [967]

    Furthermore, the Deiri Parties say that the fact that there was a genuine pro forma template signed by Moustafa shows there was no need for deliberate deception. It is said that there could be no motive for deliberately fabricating the notices to deceive Plaza because Investments already had a pro forma signed by Moustafa. Thus, it is said that the evidence points rather to an administrative “mix-up” (in the Deicorp offices) of some kind. The Deiri Parties say that Mr Deiri was “upfront” about the fact that a pro forma document was simply filled in with the amounts and then sent to CBA and that he said it did not need to be signed.

69. [968]

    The Deiri Parties again emphasise that these events took place seven to eight years ago; that Mr Deiri was a busy director of a development business with many ongoing projects at the time; and that much of the administration and paperwork at his companies was carried out by his staff. It is submitted that it is not realistic to expect that Mr Deiri would “have at his fingertips in the witness box years later” the details of the preparation of all of these forms (especially since Investments was not properly put on notice that it was to be alleged that Mr Deiri had engaged in some deliberate deception involving applying Moustafa’s signature on accommodation notices). The Deiri Parties further say that the evidence Mr Deiri gave on this issue was co-operative (noting that he accepted that some notices were prepared from copies of earlier notices). It is submitted that Mr Deiri gave his view of what the documents to which he was taken in cross-examination appeared to show; that he gave no evidence that he positively remembered the matters being put to him; but that they were direct and honest answers (and the Deiri Parties say that Mr Deiri’s evidence that he did not discuss with Moustafa the setting up of the pro forma between 25 June 2012 and 20 September 2012 is consistent with Moustafa having signed the original pro forma on 22 February 2012).

70. [969]

    Again, I note, for example, that when asked whether he obtained Moustafa’s permission to get his signature on a blank form of progress claim, Mr Deiri said “I did not need to, it was discussed with Jamil who had complete authority and complete power of attorney. I had no reason to question” (see T 856.7-8).

71. [970]

    Relevantly here, the Deiri Parties say that the reference to “progress claim” in the question which was answered by the above answer is important, because all of the accommodation notices were headed “progress claim”. It is noted that the original pro forma template signed by Moustafa dated 22 February 2012 was not a progress claim, nor was it entitled as such. Thus, it is submitted that the above question does not relate to that original pro forma document.

72. [971]

    The Deiri Parties further say that there is no reason why (if Mr Deiri had intended to conceal the accommodation notices from Moustafa), Mr Deiri would cause some accommodation notices to be copied and some to be prepared “bespoke” (and left for Jamil to collect and take for his father). In the Deiri Parties’ submission, Plaza’s case theory makes no sense and the only theory that makes sense (given there was always a genuine pro forma signed by Moustafa), is that there was an administrative error in the preparation of the accommodation notices.

73. [972]

    Insofar as Plaza also criticised Mr Deiri’s account of the drawdown procedure as inconsistent with the cheque signing procedure, under which (supposedly) each payment was referred to Moustafa for his specific approval by signature, the Deiri Parties argue that there is no reason why the procedure needed to be the same (and that there are good reasons why Mr Deiri would not have regarded it as necessary, pointing to Mr Deiri’s evidence was that he regarded the quantity surveyor report as the document that was important).

74. [973]

    The Deiri Parties say that, insofar as Mr Deiri gave evidence that the cheque procedure was followed for the Cheque Authorisation Alteration Instruction (by leaving it Jamil for the purpose of obtaining Moustafa’s signature), Mr Deiri was obviously mistaken about that, but that this does not make him dishonest. It is said that the mistake can be understood in circumstances where the pleaded allegation (to which it is said Mr Deiri’s affidavit evidence responded) was that it was Jamil who had signed his father’s signature.

75. [974]

    As to the attack by Plaza and CBA on Mr Deiri’s credibility in relation to the evidence he gave about the procedure for signing cheques relating to the Broadway Development, again the Deiri Parties emphasise that Mr Deiri is occupied with running the businesses. It is said that it can be seen that Mr Deiri was not a “details person” in relation to administrative tasks – it is noted his evidence is that he knew that two signatures were required, and that he believed the second signature required was Moustafa’s signature. It is submitted that it is Mr Deiri’s belief that is relevant here to his credit and that his belief was that the cheques were being countersigned by Moustafa.

76. [975]

    In reply, as to the credibility of Mr Deiri, the Sayour Parties make the following submissions.

77. [976]

    Insofar as the Deiri Parties have complained that there was no pleading as to Mr Deiri’s knowledge and involvement in the cheque signing and draw notice signature simulations (and hence that the submissions as to fabrication by Mr Deiri of those signatures raised an issue of procedural unfairness), the Sayour Parties point out that the Deiri Parties themselves raised the question of Jamil’s authority in defence to charges of want of mandate, pleaded defences of payment (relying on the authority of Jamil to receive and direct payment) and affirmatively asserted (see [11](b) of their defence to the First Broadway Cross-claim) that Mr Deiri signed the Cheque Authorisation Alteration Instruction and gave it to Jamil to obtain Moustafa Sayour’s signature (a defence that they maintain Mr Deiri knew to be false).

78. [977]

    Further, it is noted that the Deiri Parties themselves led evidence from Mr Deiri that he assumed that CBA was complying with the terms of operation of both the cheque account and the finance facility (see, for example, [217]-[218] of his affidavit sworn on 22 August 2019); that he was ignorant of Jamil’s simulations (see, for example, [328] of his affidavit sworn on 22 August 2019); and that, had he known that Jamil had committed any fraud or misappropriation, he would have told Moustafa and the CBA and ceased dealing with Jamil (see, for example, [327]-[329] of his affidavit sworn on 22 August 2019). They say that (at [328] of Mr Deiri’s affidavit sworn on 22 August 2019) Mr Deiri makes clear that he is answering Moustafa’s allegation that he (Mr Deiri) knew Jamil was signing documents and cheques in Moustafa’s name.

79. [978]

    It is further noted that in Mr Deiri’s primary affidavit concerning the Arncliffe Proceedings, he also included a section in relation to the Broadway Proceedings in which he dealt with matters in support of the defence of payment on the Second Broadway Cross-claim and as to authority in respect of payments, signatures and drawings. In this regard, reference is made to the evidence as to the cheque signing procedures and as to the accommodation notices (on which Mr Deiri was cross-examined by Counsel for CBA and Plaza, respectively). It is also noted that Mr Dubedat’s report was served well over 12 months before the hearing.

80. [979]

    The Sayour Parties say that the primary case of Plaza in the first cross-claim was one of want of mandate and, in respect of the second construction facility, that it was a forgery. They say that it was not necessary for Plaza to plead (and that it did not plead) who was the author of the forgeries (see, for example, National Australia Bank v Dionys atf the Angel Family Trust [2016] NSWCA 242 (NAB v Dionys)) and note that the Deiri Parties were the ones who alleged that these instruments were signed by Jamil and that he was authorised to sign.

81. [980]

    It is submitted that the Deiri Parties, in making these complaints, have failed to take into account that Plaza’s reply to the defences to the first cross-claim denied Investments’ allegations in its defence (see the reply at [297]) and expressly alleged that Mr Deiri and Investments well knew that Jamil was signing cheques on the CBA Partnership Account (see at [292](d)) (and following, it could be said, that it is implicit in the assertions of an improper purpose for the Cheque Authorisation Alteration Instruction and as to the alleged deliberate abstention by Mr Deiri from referring that letter to Moustafa for fear of learning that he would not authorise it).

82. [981]

    It is noted that Investments pleaded that the accommodation notices, and payments thereunder, were authorised (at [128]-[139] of the defence to the First Broadway Cross-claim and specifically, at [139](a), that “if, which is not admitted, Moustafa Sayour did not sign the letters, then Jamil Sayour had actual authority to sign the letters in Moustafa’s name” and, at [139](b), that Investments “authorised the payment and in so doing bound the defendant and the partnership with respect to CBA” (referring in particular to s 5 of the Partnership Act 1892 (NSW) (Partnership Act)).

83. [982]

    Thus, the Sayour Parties say that the Deiri Parties themselves asserted Jamil’s authority (or, if not him, that Mr Deiri’s signature was sufficient) and raised expressly the question of the usual way of conducting the business of the partnership and Mr Deiri’s understanding of the procedures established for carrying on the business of the partnership (reference being made in this context to Seiwa Australia Pty Ltd v Beard (2009) 75 NSWLR 74; [2009] NSWCA 240, although noting that the Deiri Parties and CBA did not ultimately press in closing address any case based on s 5 of the Partnership Act).

84. [983]

    Accordingly, it is submitted that the Deiri Parties raised as an issue on the pleadings (and led evidence inviting contradiction as to the extent of Jamil’s involvement, authority and honesty) Mr Deiri’s innocence and ignorance of any wrongdoing, as well as Mr Deiri’s authority to act alone, which in turn depended on showing that his conduct was properly part of the usual way of the partnership conducting its ordinary business.

85. [984]

    In that connection, it is noted that [139] of Investments’ defence to the First Broadway Cross-claim was denied (by [297] of the reply) and that (see at [300] of the reply) it was expressly alleged that, by the terms of the facility agreement, accommodation notices could only be signed by Moustafa and Mr Deiri while each remained respectively the only director of Plaza and Investments. It is noted that [300](g) further alleged, by reason of the foregoing, that both Investments and CBA knew that Mr Deiri was not authorised to sign on his own and without counter signature of Moustafa any accommodation notices or the alleged non-conforming payment authorities (referring also to [301]).

86. [985]

    Thus, the Sayour Parties take issue with the proposition that the Deiri Parties were (or could have been) taken by surprise; and submit that the cross-examination about which complaint is made was well within the scope of the issues and dealt with Mr Deiri’s own assertions in his evidence in chief. It is submitted that there is no basis for “salvaging Mr Deiri’s credit” by suggesting that the cross-examination was confusing; rather, that the position is that Mr Deiri was confronted in detail with problems to which he did not have credible answers and ultimately resorted to bald denials of any wrongdoing without proferring any credible explanation.

87. [986]

    As with Moustafa, I do not consider that any finding of dishonesty is necessary or justifiable in relation to Mr Deiri’s evidence. I observed that Mr Deiri was less argumentative and dogmatic than Moustafa in the witness box and more matter of fact about matters (including, relevantly, as to the day-to-day running of a large scale development of the kind the subject of the Broadway Proceedings). Mr Deiri displayed a pragmatic attitude to various aspects of the proceedings (including in his explanation as to why he agreed with Jamil to make payments to unknown third parties in relation to the Arncliffe Development) and he was credible in his explanation of matters such as why he did not get involved in the family arrangements between Jamil and Moustafa.

88. [987]

    Mr Deiri also to my observation displayed genuine emotion in the witness box when speaking of Jamil and I have no hesitation in accepting that there was a genuine friendship between the two.

89. [988]

    With this said, I accept that the evidence as to the method by which cheques and accommodation notices were signed was not consistent (and, in particular, that the use of a template signature block – as must surely have occurred in the preparation of a number of the accommodation notices – is inconsistent with the so-called manila folder signing procedures) and in some instances must surely be incorrect (such as in relation to the drawing of the cheques and the preparation of the Cheque Authorisation Alteration Instruction). However, my impression of Mr Deiri’s evidence in the witness box as to the preparation of the accommodation notices being by use of a template struck me as being Mr Deiri’s honest attempt to recall, some years later, how from an administrative point of view the various kinds of documents were prepared in his office, and it is consistent both with the fact that there was a pro forma document that Moustafa had indeed signed at the outset (even though it does not appear ever to have been used) and with Mr Deiri’s obvious focus on the commercial imperatives for the development to be completed (rather than on the detail as to what was to be done to achieve that). It seemed to me that Mr Deiri adopted a pragmatic approach to the business decisions at hand, which makes more plausible his account of conversations such as the conversation he says he had with Jamil about the Dyldam quote (as to which, see at [131] above).

90. [989]

    Ultimately, it seemed to me not implausible that Mr Deiri simply did not trouble to enquire how cheques or other documents were signed (at least up until the 2013 CBA cheque query – see at [340] above – as to the Jamil signature) as long as the expenses were being met, and that the explanation for the Cheque Authorisation Alteration Instruction was at least equally as likely to be one of expedience as one calculated to deceive Moustafa.

91. [990]

    That said, again, I place more weight on contemporaneous documentary evidence than Mr Deiri’s recollection of events, accepting as I do that (as does Moustafa) Mr Deiri has a clear personal interest in portraying conversations or events in a light favourable to his companies (and, in that regard, I consider that the drafting of the so-called Tripoli Minute – see at [519] above – was self-serving, even if accurate as a record of the conversation Mr Deiri says took place with Jamil in Tripoli).

92. [991]

    Plaza makes various attacks on Ms Dahdal’s evidence. In considering the credibility of Ms Dahdal, it is convenient to consider the Deiri Parties’ responses to Plaza’s submissions, in this regard.

93. [992]

    First, in relation to the signing of cheques, insofar as Plaza attacks Ms Dahdal’s explanation as a departure from her earlier affidavit in which she said she was not aware who was signing cheques, the Deiri Parties say that this is neither an accurate nor a fair characterisation of her evidence; and that it fails to take into account the context in which her second affidavit was made, namely, that the emails of 2 October 2012 and 27 June 2013 (see at [367]-[369] above) were not included in the Court Book, but were first raised when they were put to Mr Deiri in cross-examination by counsel for CBA, noting that this was after Ms Dahdal’s first affidavit was sworn. Hence, it is said that Ms Dahdal’s second affidavit was responsive to new evidence in the trial.

94. [993]

    The Deiri Parties submit that Ms Dahdal’s evidence (that she assumed Jamil was signing cheques, but she never actually saw Jamil do so) is consistent with her position in her first affidavit, in that (in her first affidavit) Ms Dahdal was not speculating or giving evidence about what she assumed; rather, she was speaking about the extent of what she knew to be true (and that what she assumed was a different question to what she knew). It is said that Ms Dahdal’s assumption (as an administrative assistant) that Jamil was signing cheques only became necessary for her to address in order to put in context the email adduced by CBA in evidence for the first time during the cross-examination.

95. [994]

    Second, as to Plaza’s attack (by reference to the contention that Ms Dahdal had witnessed Jamil’s signature) on Ms Dahdal’s evidence that she did not recognise Jamil’s signature, the Deiri Parties note that Ms Dahdal gave evidence that she did not review the cheques once they had been returned and signed and that the accounts staff mailed out the cheques. It is said that there is only one document relied upon by Plaza in respect of which there is any evidence that Ms Dahdal had actual contact with the document (namely, the “Commercial Deed of Guarantee” that she purported to sign as witness – see above at [365]).

96. [995]

    More specifically, Ms Dahdal’s evidence as to the witnessing of Ex P was that she did not remember the document and that she had no recollection of signing it. The Deiri Parties say that it was not established (nor was it put to Ms Dahdal) that, at the time of signing the document, she knew that she was purporting to witness Moustafa’s signature. The Deiri Parties speculate that Jamil may well have approached her and asked to witness his signature and sign the document, and that Ms Dahdal may have signed without reading it; and that she may also have signed without actually seeing the signature being applied. It is submitted that while this “might not be desirable or satisfactory, or meet the standards of behaviour required and expected of a legal professional, [but] in the real world lay persons do not always adhere to such standards”. It is submitted that, on the evidence and the way in which the questioning proceeded, it would not be concluded that Ms Dahdal knew what she was purporting to sign. Moreover, it is said that, even Ms Dahdal had witnessed Jamil’s signature on that occasion, it is entirely unrealistic to suggest that doing so on a single occasion meant that she would thereafter recognise it forever. It is submitted that it would be highly surprising if, having seen a signature once seven years ago, she could now recognise that signature.

97. [996]

    I do not here need to devote much time to Ms Dahdal’s performance as a witness. With all due respect to her, I doubt that she had much appreciation of the transactions or documents in question. She certainly had no understanding of what was required when witnessing someone’s signature on a document. Nevertheless, I accept that she was honestly endeavouring to recall events at the relevant time, and I accept that her overall description of office procedure accords with the email communication of 30 April 2013 in which she referred to leaving cheques in a folder on Mr Deiri’s desk (see at [349] above).

98. [997]

    As noted above, Mr Kanj worked on the Arncliffe Site as a finishing foreman. After making an approach to Mr Deiri in about January 2018 about the alleged agreement in relation to a fee for the Arncliffe Site, Mr Kanj was transferred to a site in Hurstville.

99. [998]

    It is relevant here to note, by way of family background, that Jamil was a cousin of Mr Kanj’s wife. Konstructions says that Jamil formed a strong friendship with Mr Kanj; noting that Jamil attended Mr Kanj’s engagement party, that Mr Kanj visited Jamil in hospital and that Mr Kanj attended both Jamil’s funeral and the wake.

100. [999]

     The Sayour Parties submit that Mr Kanj’s evidence regarding his receipt of $7.2 million plus GST from Combined Projects Arncliffe is not credible for a number of reasons. I address those reasons in due course.

101. [1000]

     Suffice it at this stage to say that the criticism made of Mr Kanj’s evidence, insofar as it relates to his performance in the witness box, is that he was unable to give a coherent or plausible account of basic things, such as the year in which he became engaged to his wife. As to that particular matter, I would not be inclined to draw anything adverse to his credibility generally from Mr Kanj’s inability to recall when he became engaged. It would, I think, be an exercise in pure speculation to surmise how many men (or women for that matter) have a precise recall of dates even in respect of momentous occasions in their personal lives.

102. [1001]

     More relevantly, it is said that Mr Kanj was unable to give a coherent or plausible account of even address.

103. [1002]

     Furthermore, it is noted by the Sayour Parties that Mr Kanj did not even obtain his builder’s licence until 2018 and has never conducted a property development, made a rezoning application or applied to a local council for a development consent (see T 1274ff), yet the premise of his account of his dealings with Jamil in relation to the Arncliffe project is that Jamil considered Mr Kanj to be somebody that Jamil could “go with” instead of Mr Deiri and Deicorp.

104. [1003]

     It is also emphasised that Mr Kanj has not retained a single piece of paper or documentation that evidences any of his dealings with Jamil (rather, he says his computer and laptop bag were stolen); and, likewise, that Mr Kanj has not identified any information or thing of value he contributed to Jamil’s work on the Arncliffe Site (other than, it would seem, the fact he told Jamil that Jamil could get 200 units on the site, the demolition would be simple, excavation did not look too difficult and Arncliffe is close to the airport and might be subject to height restrictions).

105. [1004]

     The Sayour Parties say that the notion that Jamil would agree to pay Mr Kanj $7.2 million plus GST for the work he says he did is “preposterous”. It is submitted that that work amounted to about ten site visits for a maximum of two hours each, and assisting Jamil with his “opinions” and “research”.

106. [1005]

     It is also noted that while, on the one hand, Mr Kanj says that he trusted Jamil and would not have asked him for any agreement regarding the site fee to be given in writing, at the same time it was his evidence that if Jamil had not offered him money then he would have been very offended and “would have gone and seen a lawyer about what to do about it” (see Mr Kanj’s affidavit sworn on 20 September 2019 at [41]).

107. [1006]

     The Sayour Parties also say that Mr Kanj’s chronology does not fit with the evidence of any other witness. For example, it is noted that Mr Dale says that he first met Jamil in October 2013 and that within about two weeks Jamil had introduced him to his “partner” (Mr Deiri). It is submitted that the notion that Mr Kanj had performed $7.2 million worth of work for Jamil in that period is “absurd”.

108. [1007]

     Moreover, in their closing submissions, the Sayour Parties contended that Mr Kanj’s use of the proceeds that he received from Combined Projects Arncliffe tended to indicate that he was merely a channel for putting those funds in the hands of a third party. This issue (and the evidence sought to be adduced in relation to this issue) was the subject of heated debate in the course of the hearing.

109. [1008]

     Mr Kanj accepted in cross-examination (see T 1310) that, upon receiving the site fee from Combined Projects Arncliffe, he made two payments of $546,029 and $6.05 million to Pasloc to acquire “Permaform”, which Mr Kanj described as a “structural wall system” or type of formwork (see T 1306.38-44). Mr Kanj described Mr Pasloc as “a guy that could have, could have got the Permaform cheap” because “he had some connections to Permaform” (see T 1306.47-T 1307.4). He said that he found “Peter”, the principal of Pasloc, through “word of mouth”, and he agreed that he thought it would be a good idea to pay him six and a half million dollars for Permaform (see T 1312). It is noted that Mr Kanj never received any delivery of Permaform (see T 1311.15). The Sayour Parties say that, having received a site fee of $7.2 million plus GST, he (apparently) paid over six and a half million dollars for Permaform that is in storage in China, and he did not receive delivery of a single square metre of the product (see T 1311). It is noted that Mr Kanj expressed some surprise in the witness box to discover that Pasloc had gone into liquidation; and stated his intention to seek legal advice on how to get his money back (see at T 1312.4-5): “I found out this morning. My lawyer broke the news to me and now I’m going to try to seek legal advice on how, how to obtain that money back”.

110. [1009]

     The Sayour Parties say that Mr Kanj’s story does not pass the credibility test. They maintain that Konstructions had no contractual relationship with Combined Projects Arncliffe and that Mr Kanj had no right to be paid by Combined Projects Arncliffe.

111. [1010]

     As to Mr Kanj’s credibility and truthfulness, Konstructions says as follows.

112. [1011]

     First, that his memory was challenged insofar as the conversations with Jamil were concerned, but that this was not necessarily a question of credibility or truthfulness (though, I note, it could reflect on his reliability as an historian of the relevant events). Second, that, insofar as his credibility or truthfulness was challenged as to the work he performed, the substance of the cross examination accepted that the work was performed, and the challenge was whether that work was commensurate to the return. It is said that a finding cannot be made that Mr Kanj did not perform work for Jamil.

113. [1012]

     Otherwise, findings are sought by Konstructions to the effect that: Mr Kanj was a young site foreman on the Broadway Site and that the Broadway Development on that site was a very large development; that he had previously worked at a large site at Canterbury; that he had experience in large developments with Mr Deiri; that he had a business relationship with Mr Deiri, rather than a social one; and that he had obviously impressed Mr Deiri (having been offered a cadetship and been made site foreman). It is submitted that it can be inferred that this conferral of responsibility indicates Mr Deiri’s (or Deicorp’s) view that Mr Kanj was skilled and responsible. Konstructions says that Jamil’s subsequent conduct in approaching Mr Kanj (which is itself a matter of some dispute) is evidence of Jamil forming that view. It is submitted that, as Jamil had developed a close friendship with Mr Deiri, such a position held by Mr Kanj is likely to have held considerable weight with Jamil (and findings are sought to this effect).

114. [1013]

     As adverted to above, it is noted that Mr Kanj came to meet Jamil at the Broadway Site and a friendship developed; that during that friendship, Mr Kanj’s relationship with the woman he came to marry (Jamil’s cousin) became stronger; that he asked his wife to marry him some time in about 2012, and the expectation was the couple would proceed to marry; and that at some time Jamil became more interested in Mr Kanj. It is noted that there was extensive cross examination of Mr Kanj as to the dates on which he announced his engagement to Jamil’s cousin. Konstructions says that this cross-examination ultimately went nowhere. It says that it is clear that cultural issues played a great part in the courting process, and that Mr Kanj formed a view very early on that he was intending to marry, but the formalisation of the courtship took a considerable period. Thus, it is said, the formal announcement of the engagement to the community did not prevent discussion of it between family members. Again, findings to this effect are sought.

115. [1014]

     As to the submissions made by the Sayour Parties as to Mr Kanj’s credit by reference to the limited documentary evidence of any agreement between Mr Kanj and Jamil or a subsequent agreement between Mr Deiri and Jamil on 30 September 2015, Konstructions maintains that that there is a range of documents that were, but are no longer, available.

116. [1015]

     In this regard, Konstructions notes that: both Mr Deiri and Mr Kanj said that they had seen that Jamil had notebooks or folders (none of which is now available); Mr Kanj’s evidence is that he gave all relevant documents to Jamil once the arrangement between the two of them came to an end (evidence said not to have been challenged in cross-examination); and Mr Kanj gave evidence that he had his computer and a bag stolen from his car (again, it is said that this evidence was not challenged in cross-examination). Konstructions complain that the suggestion in the Sayour Parties’ submissions that such a theft is “convenient” is not pleaded or founded on fact, but instead is mere suspicion without any factual basis.

117. [1016]

     Furthermore, Konstructions points to Moustafa’s evidence that Jamil took documents from the business as extremely important corroborative evidence of the existence of documents prior to their removal and their subsequent disappearance. It is noted that access has not been able to be obtained to a Gmail account of Jamil’s (because of the inability to obtain the passwords for access) and that there has been no production of any text messages from Jamil’s telephone. It is said that, in those circumstances, to submit that the absence of documents favours an inference against the existence of (or does not assist in establishing) an agreement between Mr Kanj and Jamil or subsequently Jamil and Mr Deiri is fallacious. Konstructions maintains that there is independent corroboration from independent witnesses (as to the existence of documents – though I interpose to note that the content of any such documents cannot now be determined).

118. [1017]

     Konstructions says that there is no similarity between the facts in this case and those considered in Allen v Tobias (at 375) to which the Sayour Parties have referred (see, for example, in relation to Mr Vamvakaris’ evidence). In particular, it is said that there is no inference available that any documents that existed were destroyed by the act of Mr Kanj (noting that he has given unchallenged evidence of what has become of them). It is said that the documents were either taken or destroyed by Jamil or not produced when the opportunity to obtain them was in the full control of the Sayour family members.

119. [1018]

     Insofar as it was put to Mr Kanj in cross-examination that he had made up the whole arrangement with Jamil and had made it up for the purpose of this case (which was denied by Mr Kanj), vociferous complaint was made by Konstructions (to which I have referred above). Konstructions submits that the issue cannot be resolved against Mr Kanj by suspicion or demeanour. It is said that there was a forensic decision not to cross-examine on each aspect of Mr Kanj’s evidence in circumstances where fabrication was not pleaded nor was it raised with affidavits or evidence in reply.

120. [1019]

     It is also noted that there was no evidence led from any of the main witnesses on this issue (identified as being Mr Kanj, Mr Deiri, Mr Gav, Mr Vamvakaris and Mr Zafiropoulos) that they spoke to the other witnesses about the case, or the claims here made by the Sayour Parties on behalf of Combined Projects Arncliffe that could give the opportunity for unintended pollution of their evidence; no suggestion was put to Mr Kanj that he had engaged in collusion with other witnesses in advancing this agreement for the purpose of proceedings; and the Sayour Parties served no relevant evidence on this topic in chief until after Mr Kanj had sworn, filed and served his affidavit.

121. [1020]

     Thus, it is said that the evidence of Mr Kanj needs to be assessed as against the evidence of all the other witnesses that gave evidence in the proceedings and that the decision by the cross examiner not to challenge those witnesses on this issue compounds the procedural unfairness of not challenging Mr Kanj on his account set out in his affidavit; it is said that if there is corroborative evidence for Mr Kanj then it affects the capacity to make a finding that the transaction is inherently unlikely or inherently improbable (the Court being constrained in rejecting the unchallenged evidence of the witness).

122. [1021]

     At the outset, I make clear that I do not make any findings of fabrication or collusion in respect of Mr Kanj’s evidence; and there is certainly no basis on which I could properly conclude that Mr Kanj was merely a channel for putting funds into the hands of a third party (as the Sayour Parties believe or, at least, suspect).

123. [1022]

     That said, there are aspects of Mr Kanj’s evidence that are (frankly) quite implausible. The suggestion that Mr Kanj was a credible competitor to Mr Deiri as a joint venture participant in a development of the kind that was carried out in respect of the Arncliffe Site, or that he would be paid some $7.2 million for the kind of assistance he rendered prior to Mr Deiri’s involvement in the project, is farcical (and that is so, in my opinion, however highly Mr Deiri might have thought of Mr Kanj’s abilities as a finishing foreman). This is illustrated by the evidence given by Mr Kanj as to the assistance he had provided to Jamil (that being of a very basic nature, to say the least).

124. [1023]

     I consider in due course the evidence as to whether there was any contractual entitlement on the part of Mr Kanj (and, through Mr Kanj or at his direction, Konstructions). In so doing, and mindful of the caution urged upon me, I will certainly not be basing my findings on mere suspicion or demeanour; and I will be taking into account the evidence to which Konstructions points as corroborative. For present purposes, however, I simply note that Mr Kanj struck me in the witness box as being a relatively young and unsophisticated witness with not much understanding of what would have been involved in a project of the kind the subject of the Arncliffe Development (albeit with seeming confidence in his ability to do whatever was needed).

125. [1024]

     I accept that Mr Kanj may genuinely believe that he was promised by Jamil that he would receive a payment out of the Arncliffe Development. I could even accept that Mr Kanj may genuinely believe that this payment would amount to a percentage of the value of the development (in which he was not able to participate once Jamil decided to proceed with Mr Deiri), although it is hard to believe that Mr Kanj could have seriously considered that appropriate compensation for that loss of opportunity would translate to a payment of the sum he ultimately received.

126. [1025]

     Indeed, again, what I have great difficulty accepting as plausible is that there was an arrangement at the relevant time (i.e., by no later than the time of the so-called “deathbed” conversation) that Mr Kanj would receive the particular amount ultimately invoiced by Konstructions to Combined Projects Arncliffe (for the reasons that I set out in due course) and that then leads to the question as to how to view the subsequent agreement by Mr Deiri to pay that amount on behalf of Combined Projects Arncliffe.

127. [1026]

     For present purposes, I should also record that I do not rely upon the absence of documentary evidence in reaching my conclusion as to the implausibility of the arrangement. I accept that there is evidence that Jamil kept notes and papers; that it is possible that in those notes and papers there was a record of the alleged arrangement; and that there is contemporaneous evidence of a theft of Mr Kanj’s belongings. Rather, all I here note is that the sequence of events in relation to the missing documents has the unfortunate consequence for Mr Kanj that he cannot point to documents in support of his claim (not that it gives rise to an adverse inference of any kind against his claim).

128. [1027]

     Nevertheless, and even accommodating that unfortunate reality for Mr Kanj, the fact remains that key aspects of Mr Kanj’s evidence, and account, are quite astonishing.

129. [1028]

     The Sayour Parties similarly decry the credibility of Mr Zafiropoulos’ account of events.

130. [1029]

     The Sayour Parties say that the bulk of the proceeds that Mr Zafiropoulos received by way of the site fee, “ended up in the hands of a third party in short order”. I interpose to note the fact of this disbursement does not seem to be denied by Mr Zafiropoulos, but there being opposition to this being raised in cross-examination on the same basis as opposition was taken to this kind of evidence in relation to Mr Kanj (see above). More specifically, Mr Zafiropoulos agreed in cross-examination that he paid approximately $5.45 million on 22 May 2018 to Bronson Properties (see T 1383.19-26). The Sayour Parties tendered ASIC search documents in respect of two entities (Bronson Properties and Bronson Management Pty Ltd (Bronson Management)), showing that the sole director and shareholder of those companies is a Mr Ben Scott; as well as an ASIC search for a company named D.I. Developments Pty Ltd (whose sole director is disclosed as being Mr Fadi Ibrahim and whose shareholders are recorded as Mr Ibrahim and Mr Scott). Furthermore, documents were also tendered showing that the registered office of the last of those companies is “c/- Fadi Ibrahim” at an address shown as Mr Fadi Ibrahim’s residential address.

131. [1030]

     The submission was made that, shortly after receiving the site fee from Combined Projects Arncliffe, Mr Zafiropoulos transferred approximately $5.45 million to a company owned by Mr Ben Scott, who also owns half of the shares in the corporate entity that owns Mr Fadi Ibrahim’s house.

132. [1031]

     Additionally, reference was made to documents produced under subpoena by Bronson Management, including an invoice from Bronson Management to Zapphire Investments Family Trust by which Bronson Management sought payment on account of “[s]ervices rendered in the consolidation and procurement of residential development site” at the Arncliffe address.

133. [1032]

     The Sayour Parties say that it is significant that, on Mr Zafiropoulos’ account as set out in his affidavit sworn on 9 October 2019, Mr Fadi Ibrahim was present at virtually every stage of Mr Zafiropoulos’ involvement with Jamil in relation to the Arncliffe Development, it being noted that: in October 2010, Mr Zafiropoulos (a dentist) met Mr Ibrahim as a patient (see at [25]); in 2010, Mr Ibrahim introduced Mr Zafiropoulos to Jamil (see at [26]); in October 2012, Mr Ibrahim lent Mr Zafiropoulos money to fund a property development; in December 2012, Mr Ibrahim set up a meeting between Mr Zafiropoulos and Jamil to discuss doing a development together (see at [28]); in December 2012, Mr Ibrahim, Mr Zafiropoulos and Jamil met at the Sake restaurant (as to which, see at [326] above) to discuss development sites in Arncliffe, including the Arncliffe Site and at that meeting Mr Zafiropoulos told Mr Ibrahim and Jamil that “if we move fast now, there will be significant profits to be made” (see at [35]); in mid to late 2013, Mr Ibrahim, Jamil and Mr Zafiropoulos had another meeting at which Jamil told Mr Zafiropoulos that he was progressing the Arncliffe Development (see at [37]); in early 2014, Mr Ibrahim called Mr Zafiropoulos to tell him that Jamil and Mr Deiri were in negotiations in relation to the Arncliffe site (see at [38]); in late March to early April 2015, Mr Ibrahim called Mr Zafiropoulos to tell him that the money for the Arncliffe Development would be needed soon (see at [40]); in April 2015, Mr Zafiropoulos met again with Mr Ibrahim and Jamil to discuss the Arncliffe Development, and at that meeting Mr Ibrahim told Mr Zafiropoulos that he would have to “take us all to Lebanon for a trip as you will have a big pay day coming” (see at [44]); in May 2015, Mr Zafiropoulos attended Mr Ibrahim’s birthday party and discussed the Arncliffe Site (see at [45]); in August or September 2015, Mr Zafiropoulos asked Mr Ibrahim for a copy of the Landmark White valuation report that was supposedly to be used to calculate the uplift amount on the Arncliffe Development and thus the site fees (see at [65]); and at some point, Mr Ibrahim introduced Mr Zafiropoulos to Mr Kanj (see his affidavit sworn on 8 November 2019 at [21]).

134. [1033]

     The Sayour Parties say, in summary, that Mr Ibrahim introduced Mr Zafiropoulos to Jamil, and brokered every step of Mr Zafiropoulos’ dealings with Jamil, and then Mr Scott (who, as noted, owns a half interest in Mr Ibrahim’s home) “ended up with nearly $5.5 million of the proceeds” of the Site Identification Fee(s) for previously undisclosed services rendered in “consolidating” the Arncliffe Site. It is submitted that this casts serious doubt on Mr Zafiropoulos’ evidence that Jamil had offered to pay Mr Zafiropoulos half of the uplift value of the Arncliffe Site.

135. [1034]

     As to the transfer of $5.45 million from Zapphire to Bronson Properties (again, an entity controlled by the co-owner of Mr Ibrahim’s home), Zapphire has submitted that the identity of the shareholders of Bronson Properties and officeholders of Bronson Properties is not relevant to whether the money ought to have been paid in the first place and whether it is recoverable. In response to that submission, the Sayour Parties says that the fact that such a very substantial sum of money was paid to an entity that invoiced Zapphire on account of “[s]ervices rendered in the consolidation and procurement of residential development site at 108 Prince Highway Arncliffe” goes directly to the question whether Mr Zafiropoulos and Zapphire have given a credible account of the origins of the Arncliffe Development. Indeed, they question Mr Zafiropoulos’ evidence regarding the provenance of the project at the Arncliffe Site, his dealings with Jamil and Combined Projects Arncliffe, and Zapphire’s claimed entitlement to receive payment of the so-called “site identification fees” from Combined Projects Arncliffe.

136. [1035]

     Other aspects of Mr Zafiropoulos’ evidence that the Sayour Parties say (with some force) are not credible, are as follows.

137. [1036]

     First, Mr Zafiropoulos’ evidence that he contributed $1 million towards the Arncliffe Development in 2015, noting that it is inconsistent with other evidence (for example, Mr Deiri’s evidence that no moneys were contributed by or on behalf of Jamil after December 2014).

138. [1037]

     Second, Mr Zafiropoulos’ insistence in cross-examination that he did not find out that Mr Deiri was involved in Combined Projects Arncliffe until after Jamil’s death (cf, for example, Mr Zafiropoulos’ evidence at [38]-[39] of his affidavit sworn on 9 October 2019 that he well knew before Jamil’s death that Mr Deiri was Jamil’s partner in the Arncliffe Development).

139. [1038]

     Third, Mr Zafiropoulos’ claim that he found out about the Arncliffe Site from Mr Zouheir Bazzi (who was called to give evidence in support of Mr Zafiropoulos’ version of events). The Sayour Parties point out that Mr Bazzi, when asked in cross-examination, said that he had not spoken to Mr Zafiropoulos “[b]efore today, for about six, seven years” (see T 1400.18-19) (cf Mr Zafiropoulos’ affidavit sworn on 7 November 2019 at [16], in which he says that he had a face to face conversation with Mr Bazzi on 7 November 2019).

140. [1039]

     In this regard, the Sayour Parties submit that Mr Bazzi is not a witness of truth and that his account of any conversations with Mr Zafiropoulos six or seven years ago (among hundreds of customers) is not to be credited.

141. [1040]

     Fourth, it is said that it is a remarkable coincidence that Mr Zafiropoulos thought to reach out to Mr Deiri, after Jamil had passed away, through Mr Gav. It is noted that Mr Zafiropoulos barely knew Mr Gav (indeed his evidence was that he thought he was an accountant from Earlwood) yet he happened to locate the one person to whom Mr Deiri chose to delegate the task of organising collection of the site fee invoices. It is submitted that such a coincidence is too much to credit.

142. [1041]

     The Sayour Parties say that both Mr Zafiropoulos and Mr Deiri were squarely contradicted by Mr Gav as to the timing of these encounters (which Mr Gav placed in late 2017, long after Jamil’s death), leaving unexplained the long delay in Mr Zafiropoulos reaching out to Mr Deiri. It is also noted that Mr Zafiropoulos “did not have a single piece of paper” that recorded his agreement with Jamil (Mr Zafiropoulos deposing to his computer also having been stolen).

143. [1042]

     In amplification of the preceding, the Sayour Parties also point to the following matters: that both Mr Zafiropoulos and Mr Kanj say that their computers were stolen (with no backups of any data there stored); that Mr Vamvakaris says he disposed of his computer (with no backups and no notes of his 30 September 2015 meeting with Mr Deiri); and that Mr Deiri kept no other notes of the Tripoli meeting or any record of any of the alleged adjustments to his dealings with Sayour Holdings and Jamil). The Sayour Parties say that it “defies belief” that “in this day and age, so many sophisticated men of business would all lose every trace of documentation recording such critical details of major business transactions with a dead man”.

144. [1043]

     In response to the submission by the Sayour Parties to the effect that Mr Zafiropoulos’ evidence ought not be considered credible because: $5.45 million was paid by Zapphire to Bronson Properties on 22 May 2019 (more than a month and a half after receipt of the Zapphire Payments); Ben Scott, the director and shareholder of Bronson Properties and Bronson Management is also a shareholder and director of D.I. Developments; Mr Fadi Ibrahim is a director and a current shareholder of D.I. Investments; D.I. Developments owns a particular property at, Dover Heights, which property is identified in company searches as being the residential address of Fadi Ibrahim. Zapphire complains that the submissions do not identify why, in the light of the matters raised, Mr Zafiropoulos’ evidence should not be considered credible. Zapphire says those submissions should be rejected for the following reasons.

145. [1044]

     It is said that the payment to Bronson Properties was made, not in short order, but about 49 days after receipt of the Zapphire Payments, from accounts operated by Zapphire. It is said that what Zapphire did with the money it received by way of the Zapphire Payments is not relevant to whether the money ought to have been paid in the first place and is recoverable.

146. [1045]

     It is noted that Mr Zafiropoulos’ evidence was: that the payment of $5.45 million was for building services provided to him to build a property at Belmore Street Arncliffe (T 1383.25); and that he never received and had no knowledge of the invoice referred to at [564] of Sayour Holdings’ Submissions and agreed that Bronson Properties did not render any services in respect of the site of the Arncliffe Site (T 1383.36, T 1384.20-25).

147. [1046]

     Zapphire says that it was not put to Mr Zafiropoulos that the payment going to Bronson Properties meant that the Arncliffe Site had not been introduced to Jamil or that there was no deal.

148. [1047]

     Zapphire says that the tender of the D.I. Developments Pty Ltd company search, real property transfer and map searches (referred to at [562(c)] to [(e)] of the Sayour Holdings submissions) that were part of exhibit AJ and AK should be rejected (I understand, on the basis of relevance or, alternatively, that the documents were not put to Mr Zafiropoulos, though there was some confusion about this in oral submissions – see T 1473; T 1793.30ff). To the extent such an objection was and is still pressed, I consider that an objection on the basis of relevance should not be upheld; and, in relation to Mr Zafirpoulos’ cross-examination, I consider that it was not necessary for the purposes of admissibility that the documents be put to Mr Zafirpoulos (and, in any event, nothing turns on this).

149. [1048]

     In any event, Zapphire says that evidence as to the office holders, shareholders and property opened by a company of which the director and shareholder of Bronson Properties is also a director and shareholder is not relevant to whether the money ought to have been paid in the first place and whether it is recoverable.

150. [1049]

     It is noted that the documents in exhibit AF were not put to Mr Zafiropoulos; nor was it put to him that the shareholding and landownership of D.I. Developments somehow meant that he did not introduce the Arncliffe Site to Jamil or make a deal with Jamil for the payment of a fee.

151. [1050]

     Further, Zapphire points out that there was no evidence of who controlled Bronson Properties; and that there was no evidence that the invoice in question (dated 7 April 2020) was sent to or received by Zapphire and that Mr Zafiropoulos gave evidence that he never received the invoice dated 7 April 2020.

152. [1051]

     Leaving aside the incredulity expressed by the Sayour Parties as to the lack of documentation in general (as to which, see above), I make the same observation here in relation to Mr Zafiropoulos as I did in relation to Mr Kanj: I do not base my findings as to his credit (nor as to his claim as such) on the absence of documentation to support his assertions (although, again, Mr Zafiropoulos is disadvantaged by the lack of such documentation just as any claimant would be who no longer has documentary evidence of what is alleged to have been a written agreement).

153. [1052]

     That aside, I observed that Mr Zafiropoulos was much more experienced and less naïve, at least in a business sense, than Mr Kanj. Notwithstanding the comments that I have made in the preceding paragraph (and without seeking to detract therefrom), this makes it somewhat surprising that he would have been prepared to pay so much money on the faith of an alleged single piece of (now lost) paper, and including the alleged delivery of a not insubstantial amount of cash in a paper bag with no receipt obtained for any of those amounts. There are, however, no doubt many kinds of business dealings across the commercial world and there is little point here engaging in speculation as to the commercial wisdom of this particular enterprise.

154. [1053]

     Again, I make no findings of dishonesty against Mr Zafiropoulos. I simply note that there are elements of his account of the relevant dealings with Jamil that are implausible and I note again the distinction between non-acceptance of evidence as not credible and a finding of actual dishonesty (see again Royal Guardian Mortgage Management).

155. [1054]

     Zapphire takes issue with the proposition by the Sayour Parties that Mr Dale was “crystal clear”, both in his affidavit evidence and his evidence in cross examination, that, as far as Mr Dale was aware, Jamil did not know about the Arncliffe Site until it was mentioned to Jamil by one of Mr Dale’s sales staff; that Mr Dale’s evidence is that his salesman mentioned the Arncliffe Site to Jamil; and that Mr Dale’s evidence in cross-examination was in all substantial respects entirely consistent with his affidavit evidence.

156. [1055]

     Zapphire says that, when looked at in the light of Mr Dale’s evidence in cross examination (see at T 689.18 – T 690.5), those submissions are incorrect. It is said that Mr Dale’s evidence in cross examination was in several respects, but in particular as to the timing of his meeting with Jamil, different to his affidavit evidence. Zapphire submits that because of the differences between Mr Dale’s affidavit evidence (see his affidavit sworn on 9 August 2019) and his evidence in cross- examination (see T 685ff), in particular as to whether he spoke with Jamil on the same day as he spoke with the employee (as he said in his cross-examination) rather than some time later (as he stated in his affidavit), Mr Dale’s evidence as to the detail of his meeting (not that the meeting occurred) with Jamil is not reliable. It is noted that Mr Dale’s affidavit evidence as to what his staff member said to him was admitted only as evidence of the words that were said, not as to the truth of what was said (cf the Sayour Parties’ submissions at [925]).

157. [1056]

     I considered Mr Dale to be a genuine and co-operative witness. His recollection was broadly consistent with the contemporaneous documents.

158. [1057]

     Konstructions says that no criticism should be made of Mr Vamvakaris’ incomplete recollection of what must have been a much longer conversation. It is said that his professed lack of recollection, and his reluctance to “fill in the gaps” by speculation or usual practice, are the hallmarks of an honest witness who is attempting to give his best evidence to the Court and that he avoided speculation, hearsay material or conjecture or reliance on usual practice to “fill in” the evidence.

159. [1058]

     I found Mr Vamvakaris to be a credible witness. In particular, I accept his evidence as to the conversation he had with Mr Deiri after the so-called “deathbed” conversation and the creation of the Development Management Agreement. I do not accept the implicit suggestion in the course of cross-examination that Mr Vamvakaris backdated the creation of any documents; nor do I accept that there is anything inherently suspicious about a draft document being on a USB stick “momentarily” which was then disposed of by Mr Vamvakaris at some stage. Relevantly, however, I consider that his evidence only goes to a limited extent in corroborating Mr Deiri’s evidence or that of the other witnesses who invoked Mr Vamvakaris as corroborating their accounts. At best, Mr Vamvakaris knows what Mr Deiri told him at the time and there is no suggestion, on Mr Vamvakaris’ account of the events, that he was told the precise figures (just vague details as to the method of calculation).

160. [1059]

     I now turn to the expert evidence; such evidence was given by expert witnesses on a number of issues.

161. [1060]

     Mr Dubedat gave unchallenged evidence as to his findings in relation to a comparison of the handwriting on various documents. I accept that evidence. It is not necessary here to summarise those findings.

162. [1061]

     Expert evidence was given by Mr David Milton, the managing director of CBRE, with extensive experience in marketing and sale of residential properties, for the Deicorp Entities; and by Mr Yorgo Kapouris, a real estate agent with experience mainly in the Arncliffe area and surrounds, for the Sayour Parties.

163. [1062]

     Mr Milton tended to be a didactic in the witness box but clearly had a wealth of experience in marketing of large scale residential developments including to overseas purchasers and through the use of what he deferred to as “channel agents”, a term with which Mr Kapouris was unfamiliar but which in essence Mr Milton explained as meaning third party agents acting in conjunction with a principal agent in relation to sales.

164. [1063]

     Ultimately, Mr Kapouris’ evidence relevantly came down to the proposition that he considered the fees charged under the impugned agency commission agreement to be unreasonable by reference to the fees he would ordinarily have charged. However, when pressed on the issue as to conjunction fees, it seems that the difference in overall commission fee was not great – some 1.1% between the two positions.

165. [1064]

     Mr Milton, whose experience in the area was evident from this explanation of matters during the concurrent evidence, also confirmed that Home789 to whom the agency agreement related was regarded as a reputable company (see, for example, at T 1414) in the industry.

166. [1065]

     Mr Kapouris, somewhat counter-intuitively to my mind, suggested that an agent would be more “incentivised” by a lower rate of commission than a higher rate. This seemed to be based on an understanding that a lower commission rate indicated that sales would be more readily achieved and that a higher commission rate would reflect the likelihood of more differently in effecting sales. Mr Milton’s explanation of this I found more in accordance with common sense but ultimately nothing turns on this. On the evidence of both experts, I cannot find that the agency commission was unreasonable.

167. [1066]

     Further, I considered it telling that Mr Kapouris seemed to suggest that he would “grab” an opportunity to enter into commission arrangements of the kind that Mr Milton suggested would commonly be available.

168. [1067]

     Expert evidence was also given by two expert quantity surveyors – Mr Portelli for the Deicorp Entities and Mr Sanig for the Sayour Parties.

169. [1068]

     In general, I found both experts to be cooperative and helpful. Mr Sanig struck me as somewhat pedantic and a bit confrontational (see at T 1444.37). Nevertheless, he accepted that at the end of the day the “mixing up” of variations and provisional sums to which he had deposed would not have an effect on the overall cost and he accepted that, when he had been critical of acceptances of variations and the like (based on them simply having been accepted), it could have been that they reflected a negotiated outcome.

170. [1069]

     Insofar as criticism was made of the use by Mr Portelli of the “Rawlinsons” guide as a benchmark, I accept Mr Sanig’s explanation that he regarded it as a conservative benchmark and that he had applied a discounted rate in any event.

171. [1070]

     On the whole, I consider that Mr Portelli’s opinion reflects a genuine opinion of the amounts that might reasonably have been charged in relation to the relevant development. This is not relied upon to establish a quantum meruit figure but rather, as I understood it, to demonstrate that the amounts as provided for under the contracts in the present case were not unreasonable (and to demonstrate that the Sayour Parties have in fact obtained the benefit of a building that would have cost around the sum actually paid for it had they utilised the services of another construction company).

Broadway Proceedings

1. [1071]

   I turn (finally) to the various cross-claims made in the Broadway Proceedings. It is convenient first to consider, and to determine, various key factual findings that are sought and on which those various cross-claims are to be determined.

Key factual findings sought in the Broadway Proceedings

1. [1072]

   Before turning to the issues raised for determination on the respective cross-claims in the Broadway Proceedings, it is convenient at this stage to deal with various of the factual findings that parties have urged me to make, since those were helpfully chronicled in various of the parties’ submissions.

2. [1073]

   On the first and fifth cross-claims brought by Plaza against CBA (see above), CBA contends for the following factual findings (as to a number of which, there does not appear to be any dispute).

3. [1074]

   As to the relevant corporate entities, CBA seeks a number of findings.

4. [1075]

   First, as to Moustafa, that, in and between 2011 and 2014, Moustafa was the sole director and shareholder of Plaza and the sole director and a shareholder of Biomed; that both Plaza and Biomed were Moustafa’s companies; and that Moustafa was the controlling mind and hand of both companies.

5. [1076]

   Second, in relation to Mr Deiri, that, between 2011 and 2014, Mr Deiri was the sole director and (through Deiri Nominees) a shareholder of Investments; and that Mr Deiri was the controlling mind and hand of both companies.

6. [1077]

   Those matters are not disputed by any of the parties and I so find (though an issue does arise, to which I will come in due course, as to the scope of the authority given to Jamil in relation to Plaza).

7. [1078]

   As to the arrangements for the funding of the Broadway Development, CBA contends for a finding that, on 1 February 2012, to facilitate the construction of the two stages of the Broadway Development, Plaza and Investments opened the CBA Partnership Account; and that, by their application and authority signed on that date (as to which, see at [208] above), Moustafa and Mr Deiri were authorised jointly to sign cheques on the CBA Partnership Account.

8. [1079]

   The Sayour Parties point out that the CBA Partnership Account was opened by at least 4 January 2012 (again, see the relevant chronology at [208]ff above). Leaving aside the precise date on which the account was opened, it is not disputed that the CBA Partnership Account was opened by an application dated 22 December 2011 signed by both Moustafa and Mr Deiri, and I so find.

9. [1080]

   Meanwhile, CBA accepts that its mandate required the signature of both Moustafa and Mr Deiri on cheques drawn on the CBA Partnership Account, and I so find (though, it contends for a finding that Moustafa authorised Jamil to operate the account).

10. [1081]

    CBA next contends for a finding (and again this is not disputed) that, on 15 February 2012 (see at [261]ff above), Plaza and Investments entered into the First Facility Agreement to borrow from CBA $45,597,000 to fund the Stage 1 construction, upon terms that: first, the borrowing limit would be $45,597,000, of which short-term finance of $5.5 million would be repaid after eight months of the date of first drawdown, the balance to be refinanced after a further 18 months (i.e., 26 months from first drawdown); second, by that refinancing, $11,297,000 was to be paid down, leaving a balance of approximately $34.3 million to be repaid after a further 36 months; third, Plaza and Investments would pay into the CBA Partnership Account revenue from the Broadway Development, which revenue would be available to CBA to apply towards sums due to CBA under or in relation to the First Facility Agreement; fourth, Plaza and Investments would provide to CBA a first and last right of refusal to fund the construction of the residential apartments; and fifth, CBA would be entitled to debit to the CBA Partnership Account of fees and interest due on the loan for Stage 1. Further, CBA contends for a finding that the first drawdown under the First Facility Agreement was on 29 February 2012.

11. [1082]

    As to those matters, Moustafa admits that he signed the First Facility Agreement on behalf of Plaza and entry by Plaza into that agreement on terms including those set out above is not disputed. Accordingly, I make that finding.

12. [1083]

    As to the first drawdown, there is a dispute as to whether various of the accommodation notices (as they are described in that facility agreement) were authorised (and, for example, there is not a copy in evidence of the first of those accommodation notices). Nevertheless, it does not appear to be disputed that the first drawdown of funds under the First Facility Agreement in fact occurred on 29 February 2012; and I so find.

13. [1084]

    CBA then contends for a finding that, on 20 June 2013, two further agreements were entered into: the Amended and Restated Cash Advance Facility Agreement (see at [363] above) which reduced the limit under the First Facility Agreement to $34.3 million (reflecting, it is said, the arrangement embodied in the First Facility Agreement); and the Second Facility Agreement to fund the Stage 2 residential construction (see at [33] above), which provided an Accommodation Limit of $42,037,000. Crucially, Plaza maintains that these documents are forgeries.

14. [1085]

    Suffice it for present purposes to note that I accept that those documents were signed by Mr Deiri on or around the dates they bear, but that the evidence of the forensic expert (Mr Dubedat) comfortably establishes that it is not Moustafa’s genuine signature on these documents. I address in due course the significance of that finding, including as to what is meant by a finding of forgery at common law and the opposing contentions as to Jamil’s authority to sign such documents on behalf of Moustafa or Plaza.

15. [1086]

    Next, CBA contends for a finding that the first drawdown under the Second Facility Agreement occurred on 1 October 2013. Plaza disputes the validity of this agreement (and it says that the second accommodation notice is not authorised). However, it is not disputed that moneys were in fact drawn down, purportedly under the Second Facility Agreement, on this date. Accordingly, I so find.

16. [1087]

    Next, CBA contends that cheques totalling $39,909,946.93 were drawn and paid on the CBA Partnership Account between 1 February 2012 and 16 December 2015; and that, during the same period, the total amount drawn down under the First Facility Agreement and Second Facility Agreement was $69,567,528.30 (in addition, that fees, charges and interest were in part debited to the CBA Partnership Account and in part capitalised). The fact of payment of these amounts out of the CBA Partnership Account (and that interest charges and the like were debited to the account or in part capitalised) is not disputed and I so find. However, what is disputed is that the payments were authorised and as to the nature of those payments. I deal with this in due course.

17. [1088]

    The next finding for which CBA contends is that, as contemplated under the First Facility Agreement, the balance owing on 1 October 2013 was reduced by $11,297,000 drawn down from the Stage 2 Loan. It does not appear to be disputed that (as a matter of accounting, at least) this occurred and I so find.

18. [1089]

    Next, as to the construction of the Broadway Development, CBA contends for a finding that Moustafa received from Deicorp Constructions two quotations, one for $40 million plus GST for Stage 1 and one for $23.5 million plus GST for Stage 2; and that the Construction Contract for Stage 1 was signed on 8 February 2012 and for Stage 2 on 15 May 2013.

19. [1090]

    In this regard, CBA says that Moustafa’s evidence that he initially signed a construction contract for Stage 2 early in 2012 (which was denied by Mr Deiri) is unsupported by any documentary or other evidence (and should not be accepted).

20. [1091]

    I accept that the evidence establishes the receipt of separate tenders for each of Stage 1 and Stage 2 of the construction (see at [139]; [234]; [354] above). I have already noted the discrepancy in the letterhead and corporate entities referred to in the respective quotations (see at [234] above). Further, it is not clear why the first tender was re-submitted in February 2012 (see at [234] above), unless it was thought necessary to do so after the partnership had been formally registered.

21. [1092]

    I also accept that the evidence establishes the signing of the respective construction contracts on or about 8 February 2012 and or about 15 May 2013, respectively (albeit that the Stage 2 Construction Contract was not personally signed by Moustafa, who was overseas at the time – see at [334] above).

22. [1093]

    As noted by CBA, Moustafa’s evidence that he signed a construction contract for Stage 2 at an earlier time (in early 2012) is unsupported by any documentary evidence; and I reject it as implausible. It is not readily apparent why a construction contract for Stage 2 would have needed to be signed at that earlier time. It seems far more likely to me that Moustafa was simply mistaken in what he thought he had signed in relation to the Stage 2 Construction Contract. In any event, I place weight on the contemporaneous signed documents over Moustafa’s recollection of events insofar as his recollection is unsupported by any documentary evidence.

23. [1094]

    As to Moustafa’s involvement in the Broadway Development, CBA contends for a series of findings. It is convenient to consider each in turn.

24. [1095]

    First, that, although Moustafa had a direct involvement in the acquisition of the site and design of the building, from the time construction began until Stage 1 and Stage 2 were completed, Moustafa took virtually no part in the Broadway Development; instead, he delegated this to Jamil, who had practical everyday control of the Broadway Development on behalf of Plaza; that Moustafa stopped attending project coordination meetings in about August 2011; that Moustafa “stood back” in this fashion because he did not think he needed to be heavily involved in the construction as he was inexperienced with construction works; that Moustafa relied upon Jamil to provide reports as to progress and as to the moneys being paid; that Jamil “had checked the amounts and was happy” with them; and that their discussions were never “very in-depth”.

25. [1096]

    Pausing here, the Sayour Parties say that the evidence of attendances at project coordination meetings shows that Moustafa attended project co-ordination meetings on a regular basis until late November 2011 and attended further meetings (albeit infrequently) until April 2013. It is said that Moustafa’s attendance is about as frequent as that of Mr Deiri and Jamil; and that nothing turns on Moustafa’s attendance (or non-attendance) at the meetings, noting that the admitted responsibility for construction in the Broadway Partnership belonged to Investments (referring to Ex A for Mr Deiri’s admission to that effect). Further, it is submitted that, in circumstances where Moustafa understood the construction was to be (with the exception of excavation, which he says was to be procured by Investments) entirely funded by a loan to pay a fixed price construction contract, his level of enquiry is understandable, and that it does not give rise to a finding that he stood back and left everything to Jamil.

26. [1097]

    I here observe that Moustafa’s level of attendance at project coordination meetings over the period, as recorded in the meeting minutes, was sporadic. True it is that the attendance of others at such meetings (including Jamil and Mr Deiri) also varied over the course of the development. Nevertheless, it cannot seriously be disputed that Jamil had the practical day-to-day dealings with Mr Deiri and others in relation to the project and that Jamil’s email was the email address used for communications in relation to the project. On Moustafa’s own evidence, he (Moustafa) was inexperienced in construction works. It is not implausible that Moustafa effectively left it to Jamil to deal with the day-to-day aspects of the project (and, as the Sayour Parties themselves accept, his level of enquiry as to construction and other details is understandable). Although there is obviously room for dispute as to Jamil’s level of authority and the role that was delegated to him, as to which I will deal in due course, I find that Moustafa did, as a practical matter, leave it to Jamil to deal with others (including Mr Deiri and, to the extent necessary, CBA) in relation to the day-to-day aspects of the Broadway Development. Thus, at a general level, so to speak, I make the findings sought, though with the qualifications made above.

27. [1098]

    Second, in this regard, that Moustafa left it to Jamil to engage on Plaza’s behalf in all facets of the construction and in Plaza’s dealings with Investments, Mr Deiri and Deicorp Constructions. Again, this is supported both by Moustafa’s own evidence and the documentary evidence, and I so find. Again, however, the extent of his authority in so doing is another matter, to which I turn in due course.

28. [1099]

    Third, that Jamil visited the offices of Investments and Deicorp Constructions several times a week during the course of construction of the Broadway Development; and Moustafa did not. That is consistent with the documentary evidence, and with Moustafa’s evidence, and I so find.

29. [1100]

    Fourth, that Moustafa left Plaza’s involvement in the construction to Jamil; that Moustafa was not concerned about payments being made in the course of construction as long as Jamil was satisfied about those, as Jamil was looking after the Broadway Development; that Moustafa was happy with the amounts being paid because Jamil was happy; and that Moustafa never pressed Jamil for a detailed explanation of the costs or expenses of construction.

30. [1101]

    I note that conclusions of that kind are said to be consistent with Moustafa’s evidence (though, I interpose here to note that it is evident at least from the email communications between Jamil and Mr Deiri that what Jamil was conveying to Mr Deiri was that he, Jamil, was being called upon from time to time to explain project costs or details to Moustafa – see, for example, the email of 10 November 2013 considered at [419] above). Leaving aside whatever level of interaction there was (and the precise nature of those interactions) as between Jamil and Moustafa themselves, what is apparent is that Moustafa did not involve himself in the practical day-to-day administrative tasks in relation to the payment of construction expenses of the like (so, for example, it is not disputed that Moustafa never operated a cheque book or drew cheques for the payment of construction expenses). Indeed, on his own evidence, it seems to have been a mystery to Moustafa as to how those expenses were being paid without his signature on cheques (his assumption in evidence being that the expenses were being funded through Biomed, but even then he had no direct role in that occurring). Broadly, therefore, I accept that the findings described at [1095], [1098]-[1100] should be made, but I would qualify the last by noting that there is evidence to suggest that, from time to time, Jamil was, or felt, called upon to explain questions of costs to Moustafa.

31. [1102]

    Next, CBA contends for a finding that Plaza and Moustafa granted to Jamil Powers of Attorney relevantly dated 30 May 2010, 8 December 2011, 26 March 2012 and 4 February 2013 (which is not disputed); and that there was always at least one Power of Attorney from each of Plaza and Moustafa extant at all relevant times (that also does not appear to be in dispute). I so find, though again I note that there is a dispute as to the scope of the authority thereby granted to Jamil (which I will turn to in due course).

32. [1103]

    CBA next contends for a finding (not disputed and, indeed, confirmed by the photographic evidence before me) that Moustafa attended the “Grand Opening” of the Stage 1 carpark/retail complex, at which time there were six residential levels under construction. I so find. Further, Moustafa (having been referred in cross-examination to the photograph on the first page of the Napier & Blakeley report for the respective progress claim) accepted that he had been aware that a great deal of work had already been done on Stage 2 of the Broadway Development and that, by that time, a lot of money had obviously gone into the Stage 2 construction. I so find.

33. [1104]

    As to various of the cheques drawn on the CBA Partnership Account, the findings sought by CBA are more contentious.

34. [1105]

    First, CBA seeks a finding that, on 1 February 2012 and 1 May 2014, cheques #104 and #462 drawn on the CBA Partnership Account, for $77,234.50 and $45,000 respectively, repaid to Biomed amounts previously advanced by it; that neither cheque was signed by Moustafa yet Biomed received the funds into its general account and spent them in the ordinary course of business; that Moustafa did not cause Biomed to repay such amounts to the Broadway Partnership or its Receiver; and that no claim is made for those funds in these proceedings.

35. [1106]

    It is contended by CBA that Moustafa, and thus Plaza, willingly accepted that, although the cheques were not signed in accordance with the bank’s mandate, they were nonetheless efficacious to discharge liabilities in relation to the Broadway Development. I will deal in due course with Plaza’s answer to this contention. For present purposes, suffice it to make (and I do here make) the findings that these cheques (which were not signed by Moustafa) were deposited into Biomed’s general account and that Moustafa has not caused those funds to be repaid to the Broadway Partnership or the Receiver (and does not make any claim for those funds in these proceedings). As to whether these cheque payments constituted repayments of loans, I accept that the cheque details suggest that these were repayments of loans advanced by Biomed, but there is little detail about this (and nothing turns on any such finding so it is not appropriate here to make it).

36. [1107]

    Second, that, at the conclusion of construction and after sale of the apartments, Moustafa personally received two cheques (#517 and #522) drawn on the CBA Partnership Account for $3.35 million and $1.65 million, respectively; and that (although CBA maintains that the destination of the proceeds after they were deposited is immaterial in the dispute between Plaza and CBA) Moustafa deposited these cheques into an account of the Sayour Family Trust (of which Plaza was the trustee). There is no dispute as to those matters (although Moustafa’s evidence as to the deposit of the cheques was that he followed Jamil’s instructions – see, for example, at T 471) and I so find.

37. [1108]

    Pausing here, emphasis is placed by CBA on the fact that in the Estate Proceedings, Plaza averred (and Moustafa verified) that these cheques were the property of Plaza. It is said by CBA that Moustafa understood these to be distributions of profit; and that Plaza retained them and has not offered to reimburse them to the Broadway Partnership or its Receiver, even though the cheques were not signed by Moustafa. I deal with Plaza’s explanation for this in due course.

38. [1109]

    Third, as to cheques (#526, #530, #507, #513 and #527) for $300,000, $250,000, $2.19 million, $1.75 million and $100,000, respectively, that these were all asserted and verified to be the property of Plaza, for which Plaza sued Jamil’s executor in the Estate Proceedings; and, again, that these moneys have not been reimbursed or offered to the Broadway Partnership or Receiver. Again, this does not appear to be disputed and I so find.

39. [1110]

    Fourth, that payments were made by cheques drawn on the CBA Partnership Account for, inter alia, land tax, Council rates, water rates, real estate agency services, preparation of the subdivision plan and GST, all of which Moustafa acknowledged were payable by (and were paid by) the Broadway Partnership although these cheques were not signed by Moustafa. That is supported by the evidence (to which I refer in due course) and Plaza (for, it says, pragmatic purposes) did not ultimately dispute that a number of payments of this kind were for partnership expenses. Accordingly, again, I so find.

40. [1111]

    Next, CBA contends for a finding that Moustafa accepted that CBA had provided the funds required to enable the Broadway Development, although he had not signed any documents after the initial documents in February 2012.

41. [1112]

    This is supported by Moustafa’s own evidence, and I so find.

42. [1113]

    Next, that Moustafa also accepted that (just as Plaza had received its share of distributions totalling approximately $9.5 million) Mr Deiri/Investments received its share of distributions totalling approximately $9.5 million and that this was appropriate even though none of the cheques had been signed by him.

43. [1114]

    Again, this accords with Moustafa’s evidence, albeit that he may have queried how it was that cheques could be made without his signature. I so find.

44. [1115]

    Next, CBA seeks a finding that Moustafa knew that the cost of construction would be (and was, with the addition of GST and CBA’s fees, charges and interest) well above $70 million (it is said Moustafa knowing that construction of the carpark and retail complex of Stage 1 would cost “upwards of” $40 million, having observed the construction of the Stage 2 apartments and knowing that the construction costs for both Stage 1 and Stage 2 would, and did come, from CBA).

45. [1116]

    CBA says that Moustafa’s disavowal of knowledge of a second component to the borrowings from CBA ought to be rejected. It is noted in this regard that Moustafa received building quotes totalling $63.5 million (as to which, see my findings at [1528]ff above). CBA emphasises that Moustafa, on his own evidence, signed no cheques and no accommodation notices and did not sign the Second Facility Agreement, yet he knew that construction was occurring (at a cost of above $70 million).

46. [1117]

    In addition to the fact that Moustafa received the quotations totalling $63.5 million (plus GST), it I also not disputed that Moustafa signed the First Facility Agreement (as to which, see my finding at [1081]ff above) and, therefore, was aware of the existence of bank charges, interest and the like, to be added to the cost of the development.

47. [1118]

    I find that Moustafa was aware that the cost of the overall development (including GST and other charges) would be in the order of in excess of $63.5 million (indeed, in the witness box, Moustafa accepted that it would come to around at least $70 million – see T 546.19). Whether or not Moustafa appreciated that he knew that the construction costs would be “well above” $70 million is a moot point. Suffice it to note that I accept he was aware that the construction costs of both stages were being funded by CBA.

48. [1119]

    Next, CBA contends that the evidence supports a finding that Moustafa considered the original cheque-signing authority as a “mere formality”, noting that Moustafa never asked anyone at CBA about the cheque-signing authority or the CBA Partnership Account and knew that CBA had issued cheque books for use on the CBA Partnership Account before the apartments were sold and that Mr Deiri kept the cheque books. It is said that Moustafa was not concerned with the use made of the cheque books during the course of construction. CBA contends that Moustafa’s evidence (attributing his lack of concern as to the drawing of cheques to his belief that all cheques would require his signature) ought to be rejected. CBA submits that if, in truth, Moustafa had had a genuine belief that cheques could not be issued (or processed) without his signature then, upon his receipt of the two cheques for $3.35 million and $1.65 million (those being the only two cheques he says he ever saw), he would have either signed the cheques himself (before depositing them) or refrained from depositing them (and it is noted that Moustafa did neither – as to which, see the chronology of events set out earlier).

49. [1120]

    As to CBA’s submission that Moustafa considered that cheque and signature authorisations was a mere formality and that he never asked anyone at the CBA about the cheque-signing authority or the CBA Partnership Account, the Sayour Parties respond that it is unclear what Moustafa needed to ask.

50. [1121]

    In any event, insofar as CBA has sought a finding that Moustafa was not concerned about the use of cheque books during the course of construction, that is, to my mind, amply borne out by the evidence. I cannot accept that Moustafa believed that day-to-day cheques for construction costs (as opposed to partnership distributions, say) required his signature. This is not least so given that he was already aware that construction was occurring and, therefore, that he must have appreciated that construction costs were being paid (since it is unlikely it would be built for nothing) and he knew that he was not signing any cheques.

51. [1122]

    As to the submission by CBA, relying on the two cheques that Moustafa banked in November 2014, that Moustafa did not have a genuine belief that cheques could not be issued or processed without his signature, the Sayour Parties say that, at best, the implication can only be put against Moustafa from November 2014 but that there is in any event a difficulty in suggesting that a general implication can be drawn from Plaza (through Moustafa) banking (as it thought) its own funds, of which it was the payee. It is submitted that it would be apparent, from that, that Plaza specifically authorised the two particular cheques.

52. [1123]

    The Sayour Parties note that, in cross-examination, it was put to Moustafa that he knew of cheque books being issued for the CBA Partnership Account. It is submitted that Moustafa’s evidence concerning his knowledge of a Broadway Partnership cheque book and the fact that it was kept by Mr Deiri is of little moment. The Sayour Parties say that the email exchanges between Mr Deiri and the CBA employees concerning the opening of the account and the need for cheque books to be issued “ASAP” show plainly that it was Mr Deiri who was insistent on having a cheque book (see, for example, Ex 15 pp 149–151). The Sayour Parties point out that neither Jamil nor Moustafa was included in these exchanges; rather, that Mr Deiri merely forwarded the exchange afterwards to Jamil for his information.

53. [1124]

    As to this, I accept that Moustafa never asked anyone at CBA about the cheque signing authority or the CBA Partnership Account (that much is not disputed by him) and that he did not concern himself with the mechanics of how cheques were being drawn for the project. I consider it telling that, although Moustafa queried Mr Deiri as to how payments could be made without his signature (in relation to the later partnership distribution cheques), he did not even then raise an issue with CBA as to this (although I accept that this was at a time when Moustafa was no doubt. and understandably, pre-occupied with other issues – not least his son’s terminal illness diagnosis). Nevertheless, what the banking of the two November 2014 cheques clearly shows is that Moustafa was prepared to accept at least some cheques drawn without his signature; and he did not then raise an issue with CBA when he found out that at least those two cheques had been drawn without either his signature of reference to him (and he did not refund those amounts).

54. [1125]

    Following from the preceding, CBA contends for a finding that Moustafa recognised that construction costs (again, those funds being obtained from CBA) were being incurred without his signature on documents and that he thought this “strange”, because he could see that money was being spent even though he was not being asked to sign any documents; yet Moustafa did not contact CBA to enquire how payments were being made without his signature. It is said that this is consistent with Moustafa’s own evidence. In that regard, CBA attaches great significance to Moustafa’s acceptance that all of the funds advanced by CBA were to be repaid to it, including the construction costs for the apartments, together with interest and charges, even though Moustafa had not signed cheques or other documents.

55. [1126]

    As to the above submission, the Sayour Parties point to Moustafa’s further evidence (said not to be challenged in cross-examination) that he would ask Mr Deiri if his signature was needed, particularly when he was about to go overseas (see his affidavit sworn on 16 September 2019 at [102]). The Sayour Parties say that it is understandable that Moustafa did not make enquiries of CBA when he consulted Mr Deiri whom he knew and trusted (as to which, see also the internal bank file notes in relation to the approval of the initial facility agreement). .

56. [1127]

    Again, and as adverted to above, I accept that Moustafa must have been aware that money was being spent on the construction of the Broadway Development (and his evidence does not suggest otherwise, albeit that he says he thought the expenses were being paid out of Biomed). As I have found, he was aware that the construction was to be financed by CBA and must be taken to have been aware (having signed the First Facility Agreement) that the construction costs of at least Stage 1 of the development were to be funded by CBA over the course of the development (although I note in his evidence that he was not taken in detail through the terms of the agreement). Likewise, he accepted that the funds provided by CBA were to be repaid to it together with interest and charges. And again, he must also be taken to have been aware at the time that those costs were being paid without him having signed any cheques – since his evidence was that he did not sign any of the cheques.

57. [1128]

    Pausing here, Moustafa’s evidence that he would ask Mr Deiri when he was going overseas if his signature was needed sits somewhat uncomfortably with his apparent practice (of which he also gave evidence) of granting powers of attorney when he was going to go overseas. Moreover, accepting for present purposes that Moustafa did make such enquiries of Mr Deiri, it is by no means clear that this related to (or would have been understood by Mr Deiri as relating to) what might be described as day-to-day construction payments (for which Moustafa was not signing cheques even when he was in the country). It seems more likely that any such enquiry would have been understood as relating to the signing of documents for the purpose of major decisions in relation to the Broadway Development (although I accept that this involves a degree of speculation on my part).

58. [1129]

    I accept that the evidence establishes that Moustafa did not contact CBA at any time to enquire as to how payments were being made. I am not persuaded that Moustafa’s evidence establishes that he thought it was “strange” at the time that construction was occurring without him being asked to sign any cheques. It seems to me that his evidence is equally consistent with him now thinking it to be strange but not having turned his mind to it at the time. However, even if he did think it strange at the time, Moustafa does not appear to have considered it necessary or prudent to check with CBA what was happening.

59. [1130]

    Finally, CBA says that the evidence of Mr Deiri and Ms Dahdal as to a practice in Mr Deiri’s office whereby (for two years, from 2012 until February 2014) cheques and accommodation notices were: prepared (first, by Ms Dahdal and, later, by her accounts team); signed by Mr Deiri; placed in a manila folder; left for Jamil’s collection to be taken to Moustafa for his signature; taken away by Jamil; returned to the office; and then dispatched to pay accounts, should not be accepted. CBA says that such a cheque-signing practice is both inherently improbable and is inconsistent with the objective contemporaneous materials. I interpose to observe that Plaza adopts those submissions to the extent that it urges a finding that the evidence of Investments’ asserted practice for the signing of cheques and notices to operate the CBA Partnership Account and the loan facility should not be accepted.)

60. [1131]

    As this issue has assumed no little significance in the context of these proceedings, I consider this proposed factual finding separately in due course below. For present purposes, however, I note in summary that I accept that a cheque signing practice involving a manila folder (and, not dissimilar to that practice which I have just outlined) is not inherently implausible and it is supported by the contemporaneous email from Ms Dahdal to Jamil about leaving cheques in a folder on Mr Deiri’s desk, to which I have referred above (see at [349] above). However, I cannot accept that the practice of Jamil taking such a folder away for Moustafa to sign cheques has been established (not least because the evidence of Mr Dubedat makes clear that Moustafa did not in fact sign any of the cheques and, also, the findings that I have just made in relation to Moustafa’s own evidence and knowledge). That said, what does remain possible is that from time to time Jamil may have taken the folder away (perhaps to enable him to review expenses with Moustafa – as is suggested occurred by reference to Jamil’s email to Mr Deiri in which he referred to reviewing expenses with his father – see at [359] above).

61. [1132]

    In this connection, I should here record that I do not accept that the evidence establishes that Mr Deiri had any particular belief at the time as to how the cheques were initially being signed. The evidence does not show that he was familiar with Jamil’s (or Moustafa’s) usual signature at the outset of the project. However, what is telling is that, not long after the CBA query as to the authenticity of he “Jamil” signature, Mr Deiri took steps (using, it appears, a template signature block) to alter the bank’s mandate to allow for the signing of cheques by only one of the partners. By that time, therefore, Mr Deiri must have been well aware that Jamil’s signature (or at least a dubious Moustafa signature appended by someone other than Moustafa) had been appended to at least one of the cheques (and must have appreciated that this was not authorised under CBA’s then existing mandate).

62. [1133]

    I now turn to determine the factual findings sought by the Deiri Parties in the Broadway Proceedings.

63. [1134]

    The Deiri Parties have similarly sought a series of factual findings in the Broadway Proceedings. Again, it is convenient to consider seriatim each of those contended for findings.

64. [1135]

    The Deiri Parties contend for a finding that Jamil was authorised and empowered to run the business of Plaza, including: being the point of contact with Investments and CBA; negotiating terms and agreements with Investments; managing Plaza’s finances and bank accounts; directing Investments where and how to make payments related to the Broadway Partnership, and receiving such payments on Plaza’s behalf; monitoring and making decisions about the construction; and reviewing and approving expenses related to the Broadway Partnership, including how much money was being spent on construction and paid to the builder.

65. [1136]

    The Deiri Parties identify this issue as to the nature and extent of the authority Jamil had to act for Plaza and Moustafa as relevant primarily to three areas of controversy. These are as follows: first, Plaza’s claims in the Second Broadway Cross-claim that it did not receive payments promised by Investments in respect of the Broadway Site and its claims pleaded in the Fifth Broadway Cross-claim that it did not receive partnership distributions (the Deiri Parties submitting that Jamil was authorised to direct and receive those payments on Plaza’s behalf, and that Plaza did receive those payments); second, Plaza’s claims in the Fifth Broadway Cross-claim that the payments by Investments to Jamil (it is said, an agent for Plaza) were not disclosed to Plaza and hence constituted bribes (the Deiri Parties submitting against this that Jamil had the authority to direct and receive the payments on behalf of Plaza and, by reason of that authority, the payments were not made to Jamil himself or for his personal benefit, and did not constitute bribes); and third, Plaza’s claims against CBA for breach of mandate in respect of the cheques and transactions on the CBA Partnership Account and the drawdowns on the facility paid to the builder (the Deiri Parties again submitting that Jamil had authority to authorise those transactions).

66. [1137]

    The Sayour Parties say that the Deiri Parties’ submissions as to this factual finding exaggerate the position of Jamil. They say that it is not necessary for Plaza to suggest that Jamil did not have a substantial role in management but that the Deiri Parties unfairly deprecate the role of Moustafa and extend the role of Jamil.

67. [1138]

    For the purposes of this contended for factual finding, the Deiri Parties rely upon a succession of matters as demonstrating that Plaza (through its director, Moustafa) conferred that authority upon Jamil. Those matters (and the Sayour Parties’ responses thereto) are as follows.

68. [1139]

    I consider in due course the efficacy and scope of the Powers of Attorney granted to Jamil. However, for the purposes of this factual finding sought, the Deiri Parties simply rely upon the fact of execution of these instruments (which, as will be considered in due course, they also maintain were not confined only to the exercise of leasing functions) as evidence that Jamil was in fact given the authority to run the business of Plaza, including its role in the Broadway Development. They contend that, from late March or early April 2012, Mr Deiri knew that Jamil had a full power of attorney (limited only in that it precluded the encumbering or disposing of real estate), noting that Mr Deiri gave evidence that, at about that time, he was told by Jamil that Jamil had been given a “full power of attorney” and was given a copy of the 26 March 2012 Plaza Power of Attorney (as defined and considered in the chronology at [276]ff above). Although, I note that Mr Deiri, however, does not contend that he in fact relied upon this Power of Attorney at the time.

69. [1140]

    The Deiri Parties say that, regardless of their legal efficacy, the execution of instruments which purported to give full authority to Jamil to do everything Plaza could do is highly probative evidence that Jamil was in fact given authority to run the business of Plaza (including its role in the Broadway Development). They maintain that it evidences actual authority arising independently of the Powers of Attorney themselves.

70. [1141]

    The Deiri Parties say that the explanation given by Moustafa (that the Powers of Attorney were executed only to permit Jamil to perform leasing functions) does not withstand scrutiny, noting that the first two Powers of Attorney granted by Plaza dated 30 May 2010 and 8 December 2011 (see at [101]-[196] above) make no mention of leasing (simply conferring full authority, with an exception for encumbering or disposing of real estate), though accepting that there is additional wording in the later Powers of Attorney. It is submitted by the Deiri Parties that the additional wording, objectively construed, is not a limitation; rather, that, in effect, the reference to leasing expanded the powers previously conferred, by ensuring that the prohibition on disposing or encumbering real estate did not preclude leasing.

71. [1142]

    The Deiri Parties say that, apart from the objective construction, the circumstances leading to the 26 March 2012 Plaza Power of Attorney show that the actual intention behind the wording relating to leasing was not to confine Jamil’s powers to leasing; rather, the intended purpose was to expand the existing powers to ensure that the prohibition on disposing and encumbering real estate did not impede Jamil from carrying out leasing responsibilities (referring to the email sent on 20 March 2012 by Mr Malouf – see at [274] above). It is submitted (and this is said to be supported by the contemporaneous documents) that the new wording in the 26 March 2012 Plaza Power of Attorney (making express reference to leasing) was added because of the leasing concerns identified by Mr Malouf.

72. [1143]

    The Deiri Parties say that Moustafa’s evidence that the Powers of Attorney were given only for leasing purposes is therefore wrong (and that Moustafa must have known that evidence was wrong when he gave it). It is submitted that, if the Powers of Attorney had truly been intended to confine Jamil’s powers to leasing, the solicitor preparing the documents would have drafted them that way.

73. [1144]

    The Deiri Parties also refer to the cross-examination of Moustafa on this topic and say that he gave conflicting and implausible answers. In particular, it is noted, first, that Moustafa gave evidence that the powers of attorney were only for leases and did not permit Jamil to sign cheques (the Deiri Parties here pointing out that the Powers of Attorney do not refer to cheques, and the first two versions make no mention of leases) (see, for example, at T 342.16-25); and second, that Moustafa admitted that he instructed his solicitor, Mr Ziad Naef, to draft the limitations which appear in cl 8 in the Powers of Attorney (see, for example, at T 342.32), but he said that Mr Naef advised him that the instrument did not permit Jamil to sign cheques and would only allow Jamil to carry out leasing (see at T 342.27 – T 343.9). The Deiri Parties submit that it is inherently implausible that the solicitor who prepared the Powers of Attorney, particularly the 2010 and 2011 versions, would have given Moustafa such advice (pointing out that it is contrary to the plain wording in the Powers of Attorney and the first two versions do not refer to leasing at all) and (as noted earlier, they emphasise that Mr Zaef was not called as a witness.

74. [1145]

    It is also noted that, when it was pointed out in cross-examination that the earlier Powers of Attorney did not refer to leasing, Moustafa offered another explanation, namely that the earlier Powers of Attorney were given to Jamil to enable him to demolish the structures on the Broadway Site because Moustafa was going overseas (see at T 343.42 – T 344.33). The Deiri Parties say that the above explanation was not in any of Moustafa’s affidavits and that it contradicts the evidence in his affidavit sworn on 31 May 2019, in which all four Powers of Attorney are listed and it is said that the purpose of each was to carry out leasing (see at [146]; [147]). It is further submitted that it makes no sense, in that one would expect a power of attorney specifically prepared to allow Jamil to carry out demolition works while Moustafa was overseas to be drafted to say as much (and that it would then be revoked once Moustafa returned from overseas), yet that was not the case.

75. [1146]

    The Deiri Parties submit that it is evident from the cross-examination that Moustafa “invented” an alternative purpose of the Powers of Attorney, in an attempt to downplay the plenary authority granted to Jamil to act on Plaza’s behalf, for the obvious reason that if he admitted he let Jamil run Plaza then he could not complain of Jamil’s conduct because it was thereby authorised. The Deiri Parties contend that Moustafa was not truthful in his account of the purpose of the Powers of Attorney and that this reflects adversely on Moustafa’s credibility as a witness.

76. [1147]

    Meanwhile, the Sayour Parties say that the submission by the Deiri Parties that the mere execution of the Powers of Attorney was evidence of actual authority which arose independently of the instruments themselves proceeds on the following unstated syllogism. That postulated, (said to be faulty) syllogism is as follows: that, even if the Powers of Attorney do not confer plenary authority, they would be understood by the ordinary reader as doing so; and therefore, Moustafa would have so understood them and did so; and therefore it is likely that he did other acts that conferred equivalent authority on Jamil, or knowingly allowed him to exercise that authority.

77. [1148]

    The Sayour Parties ask, rhetorically, why, if even Mr Malouf thought that the Powers of Attorney were “terribly restrictive”, Moustafa should think differently. Pausing here, one might postulate a world of difference between what a lay person might think and what a lawyer would think as to the scope of such documents – and, hence, I gain no assistance from engaging in such an exercise – and why, if Moustafa believed that they were extensive and continuing in force, he would keep making fresh ones when travelling. This seems, at least in part, to be an argument to the effect that there was an implied revocation of earlier powers of attorney when later ones were granted, which is a, again, moot point: the fact is that the earlier Powers of Attorney were not expressly revoked other than in one instance.

78. [1149]

    It is said that for the Powers of Attorney to be relied on as evidence of a general course of conduct, it is of the essence that they bring home to Moustafa a subjective understanding that the Powers of Attorney had unlimited effect; and that the evidence fails to establish this.

79. [1150]

    In that regard, the Sayour Parties say, first, that the Powers of Attorney of May 2010, December 2011, March 2012 and February 2013 did not give Jamil “full authority to Jamil to do everything Plaza could do” (cf the Deiri Parties’ submissions at [33]). It is noted that Plaza’s business was, at least in the beginning, to be an investment vehicle to acquire and hold land for the Sayour Family Trust and subsequently to develop it (originally on its own, and later in partnership); that each power prevented Jamil from encumbering or selling any part or interest in property and contained additional restrictions; and that the terms of each of the 30 May 2010 Powers of Attorney (see at [101] above) and 8 December 2011 Plaza Power of Attorney (see at [196] above) were, in the context of Plaza’s business, heavily prescribed. I interpose to record that I accept that submission.

80. [1151]

    Furthermore, reference is made to the opinion expressed by Mr Malouf, in March 2012, that cl 8 of the December 2011 instrument was so restrictive as to be incapable of allowing Jamil even to grant a lease on behalf of Plaza (see Ex 15 at p 197). The Sayour Parties accept that this opinion does not influence the objective construction of the instrument, but they say that it does provide some insight into how people viewed it at the time (and thus has significance for the submission that the Powers of Attorney have a secondary significance as evidence of a general course of conduct). As to this submission, I draw nothing from the way Mr Malouf construed the Powers of Attorney, as to how someone in Moustafa’s position would have understood them.

81. [1152]

    It is noted by the Sayour Parties that Jamil had been a director of Plaza for about six months from late 2007 until 20 July 2008 (see the chronology of events above); and that he had resigned as a director shortly after the purchase of the first parcel of the Broadway Plaza land. Moustafa’s affidavit evidence was to the effect that he did not trust Jamil’s judgment and that both he and Jamil had thought (albeit mistakenly) that Jamil had been excluded from being a primary beneficiary of the Sayour Family Trust (see Moustafa’s affidavit sworn on 27 October 2016 at [8]-[9]). The Sayour Parties say that the tenor of this evidence in chief (which they say was relevantly unchallenged in cross-examination) was that Moustafa had sought to distance Jamil from Plaza and the Sayour Family Trust.

82. [1153]

    The Sayour Parties say that it is fair to infer that, had Moustafa or Plaza wished Jamil to act with unlimited actual authority, Moustafa would have continued Jamil’s appointment as director of Plaza and stepped back by resigning himself, so that Jamil could carry on as sole director. They ask, again rhetorically, why, if that were Moustafa’s intention, Jamil was not also added as a named primary beneficiary of the Sayour Family Trust and added as an appointor under the trust instrument. I interpose here to note, again, that I draw little assistance from engaging in speculation as to the steps taken or not take in relation to the trust instrument, when considering the import of the grant of the Powers of Attorney.

83. [1154]

    Insofar as the Deiri Parties refer to Moustafa’s evidence that each of the Power of Attorney of 30 May 2010 and 8 December 2011 Plaza Power of Attorney was granted in respect of leasing (yet neither make specific mention of leasing), the Sayour Parties say that Moustafa’s evidence (see Moustafa’s affidavit sworn on 31 May 2019 at [146]) referred to the four Powers of Attorney granted by Plaza on 30 May 2010, 8 December 2011, 26 March 2012 and 4 February 2013.

84. [1155]

    As to the submission by the Deiri Parties that there is no support in the plain text of the instruments for Moustafa’s evidence that the earlier powers of attorney were conferred for leasing purposes, the Sayour Parties refer to the 20 March 2012 email from Mr Malouf to Jamil (see at [274] above) which they say makes clear that contemporaneous attention was given to the 8 December 2011 Plaza Power of Attorney as a basis for Jamil to execute leases. I agree that this sets the context for the revocation of that 8 December 2011 Plaza Power of Attorney and its apparent replacement but, to my mind, that says nothing about the initial purpose for which the earlier powers of attorney were granted.

85. [1156]

    The Sayour Parties say that there is not even a secure basis to criticise Moustafa as being confused in his recollection of his understanding of the earlier Power of Attorney with the later Powers of Attorney. It is noted that the evidence discloses that Jamil purported to represent Plaza with respect to leasing while the 30 May 2010 Powers of Attorney was in effect (referring to Ex 15 at p 35, in relation to a requisition raised in respect of a leasing agreement with Woolworths); and that a lease was granted by Plaza to Moecco Plumbing on 1 February 2011, using the Power of Attorney.

86. [1157]

    As to the criticism made by the Deiri Parties in relation to Moustafa’s evidence concerning the 6 March 2012 Plaza Power of Attorney as well as the earlier Powers of Attorney); the Sayour Parties complain that serious allegations of dishonesty are here made against Moustafa in respect of his evidence with respect to the scope of each of those powers in circumstances where the instruments were not drafted by him and where it is said to have been apparent from his evidence in chief and his responses to cross-examination that Moustafa had a limited understanding of how such instruments operate. I here note that I accept that this evidence does disclose that Moustafa had a limited understanding of how such instruments operate.

87. [1158]

    In particular, the Sayour Parties say that the accusation by the Deiri Parties (that Moustafa knew that his evidence was wrong when he gave it) is founded on syllogistic reasoning, namely that the earlier Powers of Attorney were not confined to leasing, and neither were the later Powers of Attorney; if intended to be confined to leasing, the solicitor would have drafted the Powers of Attorney that way; therefore, Moustafa cannot have intended that at the time; that Moustafa knew this when giving evidence; and, therefore, that Moustafa was lying in the witness box.

88. [1159]

    The Sayour Parties say that this is not a reasonable criticism of Moustafa’s evidence. Again, I accept this submission. The Sayour Parties submit that it assumes both that the Powers of Attorney were unconfined and that Mr Naef’s drafting was subjectively so to be understood at the times involved. It is submitted that Mr Naef’s drafting “is not easy even for a lawyer to follow”; and that, whether or not he succeeded, it seems tolerably clear that Mr Naef was trying to narrow the scope. Next, it is said that it does not follow that, if a person wants to grant a power for a certain purpose, the power will not be drawn more broadly. It is said that it does not follow that the donor expects that the donee will exercise all of the powers formally given, or that the full panoply of enumerated powers reflects a practical purpose in the mind of the donor that each and every power will be carried into practice; rather, that the protection lies in the choice of a trusted donee. Further to that, it is noted that the Deiri Parties did not even concede that leasing was the practical purpose lying behind the 26 March 2012 Plaza Power of Attorney (notwithstanding Mr Malouf’s involvement) and it is said that their submissions ignore the power given to Blackstone Waterhouse to facilitate sales. It is said that that Power of Attorney is even more broad and yet it was given, subjectively speaking, only with a view to facilitating sales. The Sayour Parties point out that the Power of Attorney granted in 2010 was in fact used for leasing and that no other actual use of it has been identified by the Deiri Parties in their submissions.

89. [1160]

    The Sayour Parties also submit that the Deiri Parties’ submission on this issue far exceeds the “maximum limit of reasonable criticism” (i.e., that Moustafa may have mixed up the earlier with the later Powers of Attorney). It is noted that Moustafa is accused of inventing evidence, “in an attempt to downplay the plenary authority granted to Jamil to act on Plaza’s behalf” and that a finding of lack of truthfulness is sought (i.e., that Moustafa was “not truthful in his account of the purpose of the powers of attorney”). As adverted to above, complaint is made that this allegation (of dishonesty and recent invention) was not put to Moustafa in cross-examination (see Browne v Dunn). The Sayour Parties further say that the Deiri Parties’ submission does not even become relevant unless the Deiri Parties are wrong in their contention that the Power of Attorney did, as a matter of construction and legal effect, confer plenary authority, so that they are “thrown back” on to a case that seeks to attribute to Moustafa a wrong understanding in aid of a case of parol authority.

90. [1161]

    As to the Deiri Parties’ submission that that Mr Deiri knew that Jamil had a “full” power of attorney and that this fact is relevant to ostensible authority, the Sayour Parties say that Mr Deiri’s evidence about this topic does not assist any submission concerning actual or ostensible authority. It is submitted that it is not credible that Mr Deiri acted on this knowledge without ever once asking Jamil to execute a non-leasing document or instrument expressed to be executed under the Power of Attorney; and where, when CBA enquired as to the signature on 8 March 2013, Mr Deiri did not reply to the effect that it was Jamil’s signature under a Power of Attorney.

91. [1162]

    The Sayour Parties say that there is evidence that, while Mr Deiri at times sought to exclude Moustafa from participation and referred to Jamil as his partner (see, by way of example, to Mr Deiri’s email to Mr Bennett of the CBA confirming a meeting at Biomed’s offices in Belmore in which Mr Deiri refers only to Jamil as “my JV partner”), Mr Deiri was nonetheless aware throughout the Broadway Development of the fact that Moustafa was the sole director of Plaza; and it is noted that there has been no suggestion that Mr Deiri sought to have Jamil act for Plaza pursuant to the Power of Attorney on matters of partnership business.

92. [1163]

    In support of this contention, examples to which the Sayour Parties point in the evidence of Mr Deiri’s knowledge on these issues include that: in November 2011, Mr Deiri requested that the forms to change Plaza’s name be signed by Moustafa as the sole director of Plaza (see Ex 15 at p 133); Mr Deiri was advised directly by Mr Malouf that Moustafa was the sole director of Plaza by email dated 16 March 2012 (Ex 15 at 195); and, in September 2014, Mr Deiri signed as sole director of Investments and Moustafa signed as sole director of Plaza on the “Strata Plan Administration Sheet” (which Mr Small from CBA had signed on behalf of the mortgagee) and then sent the signed copy to Mr Hammond and the CBA officers. The Sayour Parties point out that Mr Deiri was able to obtain, and did obtain, Moustafa’s signature for that document.

93. [1164]

    Furthermore, it is noted that Mr Deiri was cross-examined about his knowledge of a Power of Attorney granted by Plaza and Investments to Blackstone Waterhouse (the solicitors engaged to conduct the sale of the residential apartments); and that both Moustafa and Mr Deiri signed that Power of Attorney. It is also noted that Mr Deiri provides no explanation in his evidence in chief as to why, in February 2012, Moustafa’s signature was required for sales (the Sayour Parties saying that presumably it was needed for sales off the plan).

94. [1165]

    Reference is also made to Mr Deiri’s evidence that he was told by Jamil that he had a “blanket” Power of Attorney by late March 2012. The Sayour Parties say that it cannot be known what Jamil told Mr Deiri. I interpose to observe that there is force to that submission but, of course, it applies equally to conversations that Moustafa deposes to having had with Jamil. It is further noted that Mr Deiri, in cross-examination also said he had been told by Jamil “I have full power of attorney” and denied that he looked at the document when it was supplied to him (see at T 1089.30-33). The Sayour Parties say that this evidence does not assist Mr Deiri’s ostensible authority case, because a party relying on ostensible authority believed to be conferred by a power of attorney is bound to examine the power to see whether it does confer that authority (citing Jacobs v Morris [1902] 1 Ch 816). It is noted that Mr Deiri expressed his belief that it was a “blanket” power based on a conversation with Jamil (see at T 1089.19 – T 1090.30); and that, when asked to consider Mr Malouf’s email, which was addressed to him directly and which expressed doubts about the extent of the grant of power to Jamil, particularly with respect to granting leases, Mr Deiri reiterated that he relied only on what he had been told by Jamil and nothing else (i.e., say the Sayour Parties, not the document, nor his solicitor’s advice as to the extent of the Power of Attorney).

95. [1166]

    The Sayour Parties say that such an answer is difficult to reconcile with Mr Deiri’s obvious experience, his attention to detail and his reliance on legal advisors in the course of his day-to-day business. It is noted that Mr Deiri accepted that it was his understanding “particularly with the leases” (see at T 1086.28) that quite careful attention was given to the formalities in using a Power of Attorney (see T 1086.28).

96. [1167]

    The Sayour Parties also point to Mr Deiri’s evidence (at T 1092.19ff) where he first accepted that, in all his dealings with Jamil, he understood that Jamil was not authorised by any power of attorney to sign cheques on behalf of Plaza from the CBA Partnership Account (referring to his evidence that “I knew he wasn’t a, a signatory on the cheque account, yes” – T 1092.23), albeit noting that he changed that evidence three questions later (after, it is pointed out, an objection to the question).

97. [1168]

    I do not rely on the fact of execution of the various Powers of Attorney (leaving aside the dispute as to their efficacy at all) as evidence that Jamil was given authority to run the business of Plaza. I accept the force of the submissions by the Sayour Parties that the Powers of Attorney were not unlimited in their terms and, relevantly, not co-extensive with the functions and powers of Plaza. That said, I do not construe the earlier Powers of Attorney as limited to leasing (there being no reference to such a limitation in their terms); nor do they expressly relate to the demolition works (as Moustafa suggested).

98. [1169]

    For present purposes, it is sufficient to observe that the most that the giving of successive powers of attorney (both by Plaza and Moustafa) seems to me to establish is that Moustafa reposed sufficient trust and confidence in Jamil (despite his concerns as to Jamil’s past experience and character, including that Jamil could be influenced by others or make decisions not in his own interests) to authorise him to do certain things in relation to the business of Plaza and for Moustafa personally. Again, the precise scope and effect of the Powers of Attorney is a different issue and one I turn to below.

99. [1170]

    Next, in support of their contend for finding that Jamil was authorised and empowered to run the business of Plaza, the Deiri Parties point to the role Jamil played in relation to Biomed (the principal day-to-day trading entity of the Sayour family) as demonstrating Moustafa’s trust in Jamil and his willingness to allow Jamil to hold a position of significant responsibility to manage family business interests. It is submitted that if Moustafa was willing to stand back and let Jamil manage Biomed, the long-term family business, then it is likely that he was similarly willing to allow Jamil to run Plaza (which the Deiri Parties describe as a “one-off business project”).

100. [1171]

     In this regard, the Deiri Parties point to the following: that Moustafa deposed to Jamil’s authority to pay Biomed’s creditors and employees (see Moustafa’s affidavit sworn on 31 May 2019 at [20], in which he deposed that Jamil was authorised to issue cheques from Biomed’s Westpac bank account to make payments to creditors, suppliers, contractors and employees of Biomed); that Moustafa, in cross-examination, described Jamil’s responsibilities as doing marketing, business, accounting and management (see at T 345.48 – T 346.3); that Jamil also had a business card which identified him as “General Manager”; that Jamil used an email signature which designated him as “Managing Director”; that Moustafa in cross-examination accepted that he placed trust in Jamil when signing documents for Biomed (see, for example, at T 508.36 – T 509.17); and that on the Westpac #980 Loan Account (for the opening of which it is not disputed that Moustafa signed the relevant documents in May 2007) Moustafa’s current occupation was listed as “retired”.

101. [1172]

     The Deiri Parties say that this is consistent with Mr Deiri’s evidence that Jamil said to him when they first met that he had “been running Biomed since the early 1990s” and that Jamil introduced his father to him as “semi-retired”. They submit that the above shows that Jamil was running the family business as his father took a passive role and that Moustafa retained ownership of the company but he was retired or at least semi-retired. It is said that it is not surprising (as Jamil was the eldest child) that Moustafa “effectively passed the management torch” to Jamil. The Deiri Parties contend for a finding that Jamil was authorised to run the business of Biomed in all respects.

102. [1173]

     Pausing here, I am not persuaded that I know enough about the business operations of Biomed to make such a finding but, in any event, if I did, I would not conclude that this was relevant to a finding of authority in relation to Plaza, not least because that was a very different entity undertaking a very different venture.

103. [1174]

     As to the proposition that Jamil’s role in Biomed is a material factor to show his authority to act on behalf of Plaza (and that Jamil was authorised to run Biomed in all respects), the Sayour Parties emphasise that: Biomed was a different company and that Jamil had a particular and substantial role in Biomed. It is submitted (and I accept) that authority to act in relation to Biomed was not authority to act in relation to Plaza.

104. [1175]

     It is noted that Plaza: was a trustee of a family trust of which Jamil was not a specified beneficiary and was not named as an Appointor or Guardian, (and that Jamil was not named in the Sayour Family Trust deed in any capacity); that Plaza purchased and held land (being first a passive investor and then developer); that Jamil was a director of Plaza for a period of about six months from 12 November 2007 until 20 July 2008 (and that any suggestion that it was intended that Jamil should act as a director of Plaza is answered by the fact that he ceased to be a director; and that, in his email of 12 December 2011, Jamil confirmed to the CBA that Moustafa was the sole director of Plaza and provided information about Moustafa’s assets. It is noted that Jamil was not asked nor expected to provide a statement of his assets and it is said that Jamil had no role beyond being a manager and assisting his father.

105. [1176]

     By contrast, it is said that: Biomed was not a trustee company; Biomed operated an established business with employees, stock, premises and a single customer; Biomed employed Jamil and, while his role was (it is said apparently so self-nominated) as “Managing Director” (although in his December 2011 email to Mr Bennett Jamil disclosed that he was not a director), this was nonetheless a description apt to infer senior management and no more. It is said that Jamil considered his position in Biomed as that of a manager answerable to his father; that he was clear with third parties about his position at Biomed; and that this is demonstrated by the April 2013 email (which Investments tendered) in which Jamil wrote to a bank officer at Blom Bank in Lebanon, confirming both his and Moustafa’s positions with Biomed being, respectively, manager and owner:

106. [1177]

     It is noted that Biomed expressly authorised Jamil to operate and transact on bank accounts, including the signing of cheques and payment of day-to-day expenses; that Biomed had bank accounts which featured a large volume of transactions; and that Jamil’s importance in terms of Biomed was considered by the CBA to be so insignificant that he is referred to only once in the bank’s internal paper (see Exhibit 15 p 5) (and, even then, his name is misspelt, as “Jamir”). (Pausing there, although some weight is placed on the misspelling of Jami’s name in this document, I think it is equally explicable as a mere typographical error and I draw nothing of any significance from this.)

107. [1178]

     As to Jamil’s role in relation to Biomed, I do not consider that this establishes anything about Moustafa’s willingness to allow Jamil to assume a position of responsibility in relation to another company or the Broadway Development. Indeed, to my mind, this is hardly an occasion to make conclusions as to tendency (and it was not adduced as tendency evidence). Accordingly, while it might be said that the evidence in relation to Biomed establishes a tendency or willingness on Moustafa’s part to leave Jamil to run certain business endeavours and the like, I prefer not to reason in that way. Additionally, as I have said, the very limited evidence before me in relation to Biomed fortifies my conclusion that I should not reason in this way.

108. [1179]

     Following then, the Deiri Parties contend that Moustafa knew of the Westpac #202 Account (an account opened in the name of Jamil and Moustafa and designated as a general trust account – see at [97] above) and allowed Jamil to operate Plaza’s finances (noting that a large portion of the funds paid by Investments for the Broadway Site, and paid from the CBA Partnership Account for partnership distributions, was paid into that account).

109. [1180]

     The Deiri Parties point to the following in this respect. First, that Moustafa signed the account opening form (Ex 15 at p 21), in respect of which any one of the two account holders (Jamil and Moustafa) was authorised to sign. Second, and as adverted to, that considerable sums were deposited into the Westpac #202 Account in 2009, which it is said (noting Moustafa’s evidence in cross-examination as to Jamil having no independent source of wealth – T 325.45 – T 326.6) could only have come from Moustafa, with his knowledge. Third, and by reference to the relevant bank statements and contract documents, that funds from the Westpac #202 Account were used to pay for Plaza’s purchase of various properties (including the Punchbowl RSL site – see at [99] above – and the properties at 18 and 20 Matthews Street – see at [100] above) and that funds from the account were used by Moustafa to pay down his personal loan accounts (the Westpac #980 Loan Account and the Westpac #111 Loan Account) (pointing also in this regard to a direct debit request signed by Moustafa in relation to the Westpac #202 Account in relation to periodic repayment of a loan account Moustafa had with the bank).

110. [1181]

     Insofar as Moustafa gave evidence in cross-examination that he did not know about the Westpac #202 Account, the Deiri Parties submit that this evidence was evasive, conflicting and implausible (and that it should not be accepted). The Deiri Parties note that much of the money that Plaza claims it never received was paid into the Westpac #202 Account and they say that Moustafa’s denial of knowledge of the account was motivated by a need to distance himself from the account, so to speak, and the fact he left Jamil to manage Plaza’s finances. In this connection, reference was also made to the cross-examination of Moustafa about the large deposits made into the Westpac #202 Account in 2009 (see, for example, at T 325.22 – T 326.15; T 509.46 – T 510.20).

111. [1182]

     The Deiri Parties submit that it is inherently implausible that Moustafa: had no idea where his money was or where it was going; never read his bank statements; and never took steps to check on his money. It is noted that Plaza did not call any accountant to corroborate the explanation that Moustafa left all financial details to the accountants, nor was any explanation given for the failure to do so. The Deiri Parties submit that it can be concluded that the accountants’ evidence would not have assisted Plaza; and that it may more readily be inferred, in light of the above matters which are said to provide an independent basis for the inference, that the accounts were not left entirely to the accountants.

112. [1183]

     The Deiri Parties further say that Moustafa’s explanation for the large deposits into the Westpac #202 Account (i.e., that perhaps Jamil had not followed Moustafa’s instructions to transfer money into a Biomed account or a “personal account” and had deposited funds instead into the Westpac #202 Account – see T 326.17-28), or that Jamil could have deposited those funds without his knowledge (see T 331.3-9), was not credible. They say that, if Moustafa had given instructions to Jamil to deposit moneys into specific accounts, then he was “evidently alive” to the accounts into which he wanted the funds deposited; and one would therefore expect him to question Jamil as to where the money was if it did not appear as directed. Further, it is noted that Moustafa admitted drawing a cheque on the Westpac #202 Account to pay the balance of the purchase of the Broadway Site (see, for example, at T 327.23-35 as to his denial that he knew the deposits into the Westpac #202 Account of over $1.85 million came from him, though he confirmed that the deposits into that account for the purchase of the Broadway Site came from Lebanon). It is said that, when Moustafa drew that cheque, he would have seen that it was on an account in the joint names of Moustafa and Jamil (not in the name of Biomed or Moustafa only).

113. [1184]

     Alternatively, the Deiri Parties say that, if Moustafa did not give specific instructions to Jamil as to which accounts the moneys were to be deposited into and simply left Jamil to work out what to do with the funds to be transferred, then Moustafa gave Jamil the authority and responsibility for managing the funds (which they say supports their case that Jamil was authorised to run the business of Plaza).

114. [1185]

     The Deiri Parties say that the answers Moustafa gave in cross-examination are inherently implausible and not supported by the documentary evidence; that, despite having signed the account opening form for the Westpac #202 Account and despite large funds being used from that account to pay for properties and pay down Moustafa’s personal loans, Moustafa claimed not to know anything about it; and that, despite admitting he was careful with his money and that he “[kept] an eye on [it]” (see T 329.1-10), Moustafa claimed he had no idea where Jamil transferred the money from Lebanon, never asked him about it, never read any bank statements and nor apparently took any other steps to check where the money had been deposited at any time; and could not explain how Jamil obtained the money, despite saying that Jamil had no independent source of wealth.

115. [1186]

     Accordingly, the Deiri Parties contend for a finding that Moustafa was aware of the Westpac #202 Account from the time he opened it, that he authorised and allowed Jamil to operate the account (and the funds deposited into it) and that he was aware of the transactions taking place on that account. It is said that, insofar as Moustafa did not control or supervise the transactions that were taking place on the Westpac #202 Account, that supports Investments’ submission that Jamil was empowered and authorised to run the business of Plaza. It is noted that Moustafa opened the account with Jamil as a joint account holder and nominated an authorisation that enabled Jamil to operate the account unilaterally. It is said that, if he left Jamil to organise and manage deposits and transactions upon the account, and did not have day-to-day control and knowledge of the account, then he gave that responsibility to Jamil.

116. [1187]

     As to the submission that Moustafa knew of the Westpac #202 Account and the further submissions to the effect that Jamil ran Plaza’s finances and was organising and managing bank accounts for Plaza and Moustafa, including Westpac account #238, and that Jamil opened Westpac #295 account in his and Moustafa’s name (along with the more general factual finding sought by the Deiri Parties that Moustafa knew of each of the Westpac #202, Westpac #238 and Westpac #295 accounts) to support the claim that Jamil had actual authority to “run the business” and to receive payments from the Deiri Parties or authorise the other transactions of which complaint is here made, the Sayour Parties point to several matters. Those matters are as follows: first, the actual mode of operation of the account at the times when the payments that are in issue in these proceedings occurred (namely between October 2011 and 2015); second, the known conduct of Jamil “in fraud of” the Sayour Family Trust, his father and other family members; third, the known communications between Jamil and Mr Deiri and between Jamil and Ms Dahdal.

117. [1188]

     In particular, as to the Westpac #202 Account, it is noted that it was opened in mid-2008 (see at [97] above), shortly after Jamil ceased to be a director of Plaza. The Sayour Parties say that, although reliance is placed by the Deiri Parties on the fact that, in 2008, Moustafa was apparently involved in the opening of the account, there is no evidence that Moustafa actually operated or transacted on this account after the land purchases which took place in 2008 to about 2009 were completed, nor is it demonstrated that such assistance as Jamil gave in 2008 and 2009 exceeded specific instructions in respect of the particular purchases (it being said that, to prove a general authority to act without reference to the principal, it does not suffice to point to instances of specific authorisation); and it is noted that the 2008 and 2009 transactions include “RTGS” transfers and significant over the counter transactions (see Ex 15 at pp 1196-1197), not all being internet banking.

118. [1189]

     It is noted that Moustafa’s evidence in chief was that this was not the “original” Sayour Family Trust account that he described in evidence; and that he became aware of this account after Jamil’s death. It is submitted that it could well be that Moustafa failed to realise, at the time it was opened, that the name of “Sayour Investments Pty Ltd” was not used for the account. It is noted that Moustafa’s evidence that he was not good at using computers and relied on assistance (see his affidavit sworn on16 September 2019 at [14]-[15]) was not challenged.

119. [1190]

     The Sayour Parties say that the bank statements for the Westpac #202 Account (Ex 15 at pp 1196-1231) show that the transactions from August 2008 to around April 2011 almost exclusively consisted of the receipt of large sums of money from overseas which were then applied to purchase parcels of the land at Punchbowl; that, from 11 April until 18 August 2011, there was no activity transacted on the account; and that, in the period between September 2011 and 24 September 2015, the bank statements for the account show hundreds of deposits and withdrawals, seemingly only two of those withdrawals in the period being conducted other than via internet banking (a withdrawal of $5,000 on 18 June 2012 – Ex 15 at p 1243 – and a withdrawal of $250,000 by way of a bank cheque on 19 November 2014 – Ex 15 at p 1278). It is submitted that the pattern of transactions is not consistent with regular businesslike and honest dealing, nor is it consistent with Moustafa using the account.

120. [1191]

     It is noted that, in the “monthly arrangement” email dated 18 November 2011 (see at [157] above), Jamil refers to the Westpac #202 Account as “my account for monthly payment”. Thus, it is submitted that, at least by this time, Jamil was using the account for his own purposes. Furthermore it is said that Mr Deiri’s words are clear as to the intended recipient of the payments being Jamil when he wrote: “please set Jamil up in our system to ensure he receives his payment at the end of each month” (my emphasis). It is said that, in their submissions, the Deiri Parties attempt to minimise the plain wording of these emails insofar as they argue that it was natural for Mr Deiri and Jamil to refer to each other in this manner.

121. [1192]

     The Sayour Parties point out that, in cross-examination, Moustafa denied that he operated on the Westpac #202 Account (see, for example, at T 336.25ff). It is noted that the only particular transactions about which Moustafa was cross-examined in respect of that account were its opening and early operations; and that, thereafter, he was only asked about his current (i.e., at the time of trial) awareness that the $10,000 per month payments made into that same account (see T 369.15ff).

122. [1193]

     More particularly, it is noted that Moustafa was not asked about: his knowledge of the operation of the Westpac #202 Account in the period from when the Deiri Parties allege the partnership was formed (being November 2011) until 2015; whether he knew or was told at the time that $10,000 each month was being paid into that account between November 2011 and August 2012, or the destination of the withdrawals of between $7,000 and $10,000 which took place immediately after each $10,000 payment was made; whether he knew any of the “so-called” payments to Plaza for the Broadway Site were received into this account; or about the use of this account as a “siphon” for partnership distributions of 14 and 19 November 2014 that were then moved through various other accounts (in this regard, I refer to the aide memoire document as a summary of the respective transfers).

123. [1194]

     The Sayour Parties say that the Deiri Parties do not attempt to explain these uses of the Westpac #202 Account and that they are consistent only with a view that Jamil was acting to benefit himself; that he was taking trust money; and that he was doing so surreptitiously. It is submitted that there is no convincing explanation for Jamil cycling the funds through the series of accounts and entities involved, initially to the Arncliffe Development, and then retrieving and redirecting $1.56 million on 24 November 2014 (to a destination that it is said no one has been able to identify).

124. [1195]

     The Sayour Parties say that it was not suggested, alleged or put to Moustafa that he received this money or that he has it; and that it is probable that Jamil “indulged in chicanery in order to put knowledge beyond his father’s ability to reach”. It is submitted that Moustafa relied on assistance, advantage was taken of this and Moustafa did not know, because it was beyond him to know.

125. [1196]

     Further, it is submitted that it does not follow from the events of 2008, or later, that Moustafa was aware “on any meaningful level” that this account continued to be used by Jamil to receive payments and thereafter disburse them.

126. [1197]

     As to the Westpac #202 Account, Moustafa must be taken to have known about the opening of that account, since he signed the account opening form (see at [97] above).

127. [1198]

     Further, Moustafa clearly authorised Jamil to operate this account, since the account opening form permitted Jamil to do exactly that. I accept that the likelihood is that, since most of the transactions on that account were internet transfers, Moustafa did not personally operate that account on a regular basis. However, to the extent that he allowed Jamil to operate the account and left it to Jamil to arrange for the transfer of moneys (at least in relation to the sale of the Punchbowl properties and to pay down Moustafa’s personal loans and transfer moneys to Lebanon), I accept that this supports a finding that he gave responsibility to Jamil for the day-to-day running of that account.

128. [1199]

     Insofar as Moustafa’s evidence in cross-examination was that he left it to his accountants to deal with financial matters, and did not read bank statements or the like, that to my mind supports the conclusion that Moustafa relied upon Jamil to operate the Westpac #202 Account (which, significantly, was operated as a general trust account).

129. [1200]

     I hasten to add that that does not mean that Moustafa authorised the payments into and out of the Westpac #202 Account of the substantial sums of money that appear to have been cycled through that account. No plausible explanation has been advanced as to why Moustafa would have moved money around in the way that was done. Nor does the evidence establish that Moustafa knew what was happening in relation to the receipt and disbursement of funds into and out of the Westpac #202 Account. The most likely explanation, in my opinion, is that Jamil was taking advantage of his ability to operate the account in order to channel funds through it. That does not mean, however, that Mr Deiri was aware of, or complicit in, any fraud that Jamil may have perpetrated in relation to the funds in the Westpac #202 Account (and there is more than a hint of Moustafa seeking to visit upon a range of defendants the fraudulent conduct of his deceased son). At least for present purposes, it is unnecessary to say anything more about this at this stage.

130. [1201]

     The Deiri Parties note that the Canterbury City Council ordinary agenda for the City Development Committee records that the development application to demolish structures on the Broadway Site was approved and identified the applicant as “Jamil”. It is noted that the quotation from the demolition company (it will be recalled, ACE Demolition – see at [104] above) was also addressed to Jamil. It is submitted that the logical inference to be drawn is that Jamil had the approval and authority to apply for that consent on Plaza’s behalf.

131. [1202]

     As to this submission, the Sayour Parties note that the development application was not in evidence, but accept that there is evidence (Ex 15 at p 48) that Jamil was the applicant for development consent for the demolition work, that document being part of the agenda papers dated 9 September 2010 for a Canterbury City Council Development Committee meeting. It is noted that all that is shown in this document is a list of the applications that were before the Council and that Jamil’s name is given as the “Applicant” on the relevant applications.

132. [1203]

     The Sayour Parties say that since, as a matter of law, a development application has to be consented to by the owner, it is a reasonable inference that Plaza consented to the making of the application. They say that there is no doubt that Moustafa knew and approved of the demolition proposal (referring to Moustafa’s attendance as recorded in the various project minutes throughout 2011). It is noted that such an application can be made by various persons (including owners, builders, consultants and prospective purchasers) and that the list of development applications which includes Jamil’s name (Ex 15 at pp 45ff) discloses that individuals, architectural firms and building companies were also applicants in the various applications that were then before the Council. The Sayour Parties point out that anyone can make a development application as long as he or she has the consent of the owner (pointing out by, way of illustration, that the “Notice of Determination of Development Consent” is addressed to an architectural firm yet no one has suggested that this firm or its principal, Mr Theo Lucas, had been granted plenary authority over the affairs of the partners).

133. [1204]

     As to the quotation from ACE Demolition which was obtained by Jamil on behalf of Plaza for demolition works (before Jamil had met Mr Deiri), the Sayour Parties say that this goes nowhere, since one does not need authority to obtain a quote for the benefit of another; nor does authority to do a particular task confer authority to undertake another task (or general authority).

134. [1205]

     As to the steps taken in relation to the demolition works, even accepting that Jamil had an involvement (prior to Mr Deiri becoming involved) in the obtaining of a quotation for the demolition works and (apparently after Mr Deiri was involved in the project) being noted as applicant in relation to the application for a development consent, I consider that little can be drawn from this insofar as Jamil’s overall level of authority is concerned in relation to the Broadway Development. I make the same observation in relation to those other matters identified vis-à-vis Jamil having organised the demolition works.

135. [1206]

     Next, the Deiri Parties point to Mr Deiri’s evidence as to the involvement of Jamil in the negotiations with Mr Deiri in relation to the Broadway Development, namely that: Jamil first contacted Mr Deiri about the project to see whether he would be interested in being the builder (see at [106] above); Jamil emailed Mr Deiri on 10 August 2010 (thanking him for taking the time to explain things to Jamil the day before) and asking Mr Deiri to organise a meeting with the banks (see at [105] above); Jamil proposed that Deicorp carry out the design work for the project and later be appointed the builder, and proposed that Mr Michael Metcalf be the architect (see at [117] above); Jamil proposed the partnership and negotiated the purchase price for the land (see at [118] above); and Jamil negotiated the additional $2 million that Investments was to pay in connection with the land on account of costs incurred by Plaza (see at [120] above).

136. [1207]

     It is submitted that, from the inception of the Broadway Development, Jamil was the “driver” of Plaza’s activity and the point of contact through which Plaza communicated with Investments.

137. [1208]

     As to the reliance by the Deiri Parties on the fact that Jamil contacted Deicorp and negotiated the partnership and the purchase price, the Sayour Parties say that Jamil’s involvement in negotiation of some of the terms of the partnership and the purchase of a half-share of the Broadway Site does not make Jamil the “driver of Plaza’s activity” (and that it is a fallacy to argue from the particular to the universal). It is said that the authority of a negotiator is not authority to commit the principal; and that this submission confuses influence with control. The Sayour Parties say that it is not suggested that Moustafa was not involved in these negotiations; rather, it is said by them that Moustafa had the final say. It is said that the scope of Jamil’s role in these matters was limited to presenting matters to Moustafa and putting positions to Mr Deiri (and they maintain that this is the extent of Mr Deiri’s evidence in his affidavit sworn on 22 August 2019 at [47]-[53]).

138. [1209]

     It is submitted that the Deiri Parties’ submission would need to rise to the proposition that Jamil alone spoke for Plaza and decided the terms of the partnership and sale; and that such a proposition is contrary to the evidence, which (it is said) showed that Moustafa spoke directly to Mr Deiri on several occasions (see, for example, to Moustafa’s affidavit sworn on 31 May 2019 at [96]-[99]; [106]), attended numerous meetings with him, had to approve the matter proceeding at all and signed the contractual documents involved in the sale, bank account and the First Facility Agreement (as to which, see at [261] above). It is noted that, of the 36 meetings which took place up to 30 November 2011, Moustafa had attended 19 (i.e., more than half). The Sayour Parties say that it would be “staggeringly unlikely” that, in the course of those or proximate to those 19 meetings, Mr Deiri never once spoke to Moustafa directly about the partnership, the sale of the land or the cost of development. It is submitted that Moustafa’s account of his interactions with Mr Deiri in this period is more likely.

139. [1210]

     Further, it is said that any authority of Jamil to act for Plaza in this period is negated by the circumstance that Mr Deiri knew that Jamil was in receipt of payments from his company, Deicorp.

140. [1211]

     As to the submission that Jamil was the “driver” of the partnership on Plaza’s side (and leaving aside the submission as to the receipt of payments by Jamil – i.e., the bribery allegations that I deal with in due course), I draw little from the fact that Jamil was the person who contacted Mr Deiri and negotiated terms with him in relation to the correspondence. While, it is clear that Jamil was discussing matters with Moustafa at the relevant times and conveying Moustafa’s position to Mr Deiri, to my mind, this may equally indicate that Jamil was a conduit for Moustafa, not that he had authority alone to run the project (and, further still, to run the business of Plaza).

141. [1212]

     Next, reliance is placed on the fact that Moustafa did not attend regular project coordination meetings. It is noted that (as just adverted to) project coordination meetings began from about 20 January 2011; that, commencing on 9 March 2011, Moustafa attended a number of these meetings in 2011 and early 2012 together with Jamil; but that he rarely attended any meetings after 7 March 2012 (only once in September 2012 and once in April 2013). It is submitted for the Deiri Parties that this shows that Moustafa was content for Jamil to monitor the progress of the development, be Plaza’s point of contact (with Investments and the development team) and to ventilate Plaza’s perspective at these meetings.

142. [1213]

     As to the submission that Moustafa did not attend regular project coordination meetings, the Sayour Parties say that the reduction in Moustafa’s day-to-day involvement with the construction of the project is matched by Mr Deiri’s reduced level of day-to-day involvement. Accordingly, the Sayour Parties say that this does not support a case that Jamil obtained plenary authority. They further say that this factor runs counter to the Deiri Parties’ case that Jamil always had plenary authority. It is said that if Jamil’s authority arose in conjunction with Moustafa “stepping back”, it is incumbent upon the Deiri Parties to identify when and how this progressed to a point that Jamil was invested with the suggested plenary authority.

143. [1214]

     The Sayour Parties note that, in the period between 7 December 2011 and 31 July 2013, there were 59 project coordination meetings convened for the project. Of those meetings, it is noted that Mr Deiri attended two, and Moustafa attended and Jamil attended eight meetings in that same period. It is submitted that the pattern shows that Jamil had a role, but at its highest that role was one of management.

144. [1215]

     As to the reliance placed on the fact that Moustafa’s involvement in the project coordination meetings reduced over time, or was sporadic, I accept that this indicates that Moustafa was prepared to allow Jamil to be the Plaza point of contact during the course of the project. The fact that Mr Deiri’s involvement in such meetings may also have varied is not to the point.

145. [1216]

     However, I also accept that this does not show that Jamil had “plenary authority”; nor does the Deiri Parties’ submission make clear when it is said that there was a stepping back by Moustafa (though, I do not consider that necessary to determine).

146. [1217]

     The relevance of this factor, as I see it, is that, from a day-to-day perspective, Jamil was, for a large part of the project, the relevant point of contact in relation to the development on Plaza’s side.

147. [1218]

     The Deiri Parties also point to Mr Deiri’s evidence that Moustafa told him that Jamil would be “running the entire project [from Plaza’s side]” and would be the primary contact; and that dealing with Jamil is like dealing with Moustafa. They say that this evidence should be accepted. It is submitted that this is consistent with the objective circumstances, namely that Jamil was running everything and Moustafa was semi-retired.

148. [1219]

     In particular it is submitted that Plaza had executed Powers of Attorney in favour of Jamil, such that Jamil had the legal capacity effectively to run Plaza’s involvement in the development, Jamil had responsibility for managing the family business of Biomed, that Jamil in fact was Plaza’s point of contact with Investments during the initiation of the project and its development into a partnership and that Jamil in fact did have responsibility for Plaza’s involvement throughout the development, as evidenced by the role and activities he performed for Plaza. It is submitted that Moustafa’s evidence that he never said that Jamil would be running the project on Plaza’s behalf, and that he never made any statement to the effect that dealing with Jamil was like dealing with Moustafa, is inconsistent with those matters.

149. [1220]

     Meanwhile, the Sayour Parties say that Mr Deiri’s evidence that Jamil had said to him “dealing with me is like dealing with [my father]” (see Mr Deiri’s affidavit sworn on 22 August 2019 at [47]) and that Moustafa said “dealing with me is like dealing with Jamil” (see Mr Deiri’s affidavit sworn on 22 August 2019 at [40]) is self-serving and not corroborated. It is submitted that both statements would be treated with the reserve recommended noted by McLelland CJ in Eq in Watson v Foxman. Moreover, the Sayour Parties say that there would not be confidence in Mr Deiri as a witness of truth (though, I note that I have already rejected that submission).

150. [1221]

     It is noted by the Sayour Parties that Mr Deiri said these statements were made to him on several occasions, including at his place of business where there must have been employees and contractors present; yet he produced no other witness (“not even his sister who worked as his office manager”) to corroborate this evidence. The Sayour Parties note that Mr Deiri’s evidence (see Mr Deiri’s affidavit sworn on 22 August 2019 at [121]) is that it was this understanding (and not the fact that he was contractually obliged) that formed the basis for his payment to Moustafa of $500,000 by way of telegraphic transfer to Lebanon (a transaction for which, the Sayour Parties note, credit has been given). It is also noted that it was Moustafa who initially communicated directly that he required $2 million to be paid in Lebanon.

151. [1222]

     The Sayour Parties say that these statements carry, “not only the suggested intimation of authority, but also one of confidence and the concomitant duty of loyalty, that was so signally betrayed”. It is submitted that Mr Deiri cannot use such a statement “to justify sacrificing the interest” of Plaza at the behest of Jamil and “still less for encouraging Jamil to prefer Mr Deiri’s interest to the prejudice of Plaza”.

152. [1223]

     It is noted that Mr Deiri asserted, for the first time in cross-examination (see T 914.15-35), that the cultural practice of referring to fathers by reference to their eldest sons (by way of the term of “Abu Jamil”) was of such significance that, by dint of their respect for familial positions, Jamil was recognised as an agent of Plaza and authorised to appropriate Plaza’s money (see, for example, T 913.50-T 914.10). The Sayour Parties say that this was not, and cannot be, the case; and nor could such an assumption be binding on Plaza, since Mr Deiri’s reliance on such a practice would not be reasonable reliance caused by any act or omission of Plaza.

153. [1224]

     Further, it is submitted that, if this assumption was adopted, it only highlights the absurdity and internal contradictions of the position that Mr Deiri has taken in the Arncliffe Proceedings, of asserting that he dealt with Jamil only, but that Moustafa was the Sayour Parties’ true principal in the Arncliffe project and was fully aware from the outset of everything that Jamil did in relation to Arncliffe. The Sayour Parties ask, again rhetorically, why (if Mr Deiri did sincerely believe that Moustafa was, in effect, the alter ego of Jamil) did Mr Deiri not disclose to Moustafa the supposed “site fee” obligations until well after they were paid out by Combined Projects Arncliffe?

154. [1225]

     The Sayour Parties further say that it is apparent, once regard is had to the fact that Jamil is not among specified beneficiaries in the Sayour Family Trust, that Moustafa rejected the said “cultural” practice, noting that his reasons for so doing were set out in his earliest affidavit (that being his affidavit sworn on 27 October 2016 at [8]-[9]).

155. [1226]

     As to these matters (and leaving aside the criticism made by the Sayour Parties as to the perceived inconsistent stance taken in relation to the Arncliffe Proceedings), I do not place weight on the contested evidence by Mr Deiri as to the “dealing with me is like dealing with my father” statements by Jamil (who is not here to corroborate them) and I am sceptical of the similar statements attributed to Moustafa (on the basis that they are denied by him and do not appear consistent with his demeanour in the witness box – he presenting not as someone likely to be deprecatory of his role in relation to the project or subservient to his son). Nor do I place weight on the cultural practices referred to by Mr Deiri (not least because that is not a matter of which I consider that I could take judicial notice and there was no sociological or anthropological evidence adduced in this regard). With that said, I accept that Mr Deiri may well have such an understanding about cultural practices in his ethnic community and I have no reason to doubt that understanding. Nevertheless, it is clear in the present case that Moustafa did not consistently display such an attitude (if he did at all) given that he removed Jamil as a principal beneficiary of the family trust. For these reasons, again, I do not place weight on this.

156. [1227]

     As to the email communications specifically, the Deiri Parties point to Mr Deiri’s evidence that Jamil asked Mr Deiri to send correspondence to Jamil’s email address, because his father did not have an email address. It is noted that, in cross-examination, Moustafa accepted that he knew much business was done by email at that time, and that he could not use email because he did not have an email address (see at T 347.10-20).

157. [1228]

     It is submitted that Moustafa’s denial that he knew communications concerning partnership matters were taking place by email (see at T 347.22-43) is not credible. The Deiri Parties say that Moustafa must have known Jamil was communicating with Investments by email and that he was therefore evidently content for Jamil to do so (and in so doing to act as the point of contact for day-to-day business communications).

158. [1229]

     As to the reliance placed by the Deiri Parties on the fact that Moustafa did not have an email account, the Sayour Parties say that this rises only to a submission that Jamil was the “messenger boy”.

159. [1230]

     I draw little from that fact that the email communications were with Jamil, given that Moustafa had little experience with emails, other than to note that it shows a level of trust and confidence on Moustafa’s part in his son. However, I do consider it significant that Jamil was thereby held out to others as the person who was authorised to convey Moustafa’s decisions in relation to the project.

160. [1231]

     The Deiri Parties next point to Moustafa’s affidavit sworn on 31 May 2019 (see at [53]) in which Moustafa deposes that he “had Jamil help [him] with the purchase of the Matthews St Property on behalf of Plaza” and that he thought this was not a complicated task (the purchase of a single property using funds from Biomed) that he could leave for Jamil to undertake. The Deiri Parties note that, on Moustafa’s evidence, he instructed Jamil that Plaza was to be the purchaser and must have contemplated that Jamil would have needed to execute the contract, noting that Moustafa has deposed (see at [51]) that he provided a draft contract to Jamil which he told his solicitor to finalise.

161. [1232]

     It is also noted that Moustafa gave no evidence that he signed any contract himself; rather, that he deposed that he provided a draft contract to Jamil, which he told his solicitor to finalise (again, see at [51]). The Deiri Parties say that, if Moustafa had expected to sign the contract himself, one would have expected him to question Jamil as to why a final contract was never presented for signing; and therefore Moustafa must have expected Jamil would sign on Plaza’s behalf. It is said that Jamil had the power to do so by reference to the Power of Attorney that Plaza had granted (the only limitation on which was encumbering or disposing of real estate; i.e., that it did not prohibit acquiring real estate without a mortgage).

162. [1233]

     The Sayour Parties understand by this submission that the Deiri Parties contend that Moustafa left Jamil with authority to do “whatever he liked” about the purchase (including changing the purchaser and entering into whatever deal he liked with Mr Deiri) and permitted him to simulate Moustafa’s signature “without telling anyone that it was actually being signed as amanuensis or otherwise under delegation”.

163. [1234]

     The Sayour Parties say that the Matthews Street issue is a “comparatively small thing in the overall scheme of this case” but that “the smallness of it, the lack of any real necessity for things to be done as they were, the lack of any need for dissimulation if Moustafa was genuinely knowing and consenting to what was done, and the evident fit with Jamil’s personal programme of building a business relationship with Mr Deiri all tend to show, at a critical time in the formation of the relationship, that Jamil was pursuing his own agenda and not Moustafa’s and that he was not dealing honestly and openly with his father”.

164. [1235]

     It is said that Moustafa’s evidence (that he negotiated the purchase price with the vendor – see T 310.35ff) was not subject to any challenge by any of the cross-defendants; nor was Moustafa cross-examined about whether he in fact knew anything of Matthews Street Co or the Matthews Street Unit Trust before the purchase of the Matthews Street property. It is noted that the cross-examination on the subject of the Matthews Street Property was limited to Moustafa s knowledge of the use to which the property was put during construction and the ownership of the property as recorded on the certificate of title (see T 373.29-50).

165. [1236]

     It is said that, having negotiated the sale and the purchase price with the vendor, Moustafa appointed a solicitor to prepare the contract of sale, and delegated to his son the ministerial task of directing the solicitor to carry into execution a purchase that Moustafa had decided upon. It is said that there is no evidence that Moustafa ever gave either Jamil or his solicitor permission to depart from this instruction. It is said that the “interposition of forgeries” to establish a new entity as purchaser in place of Plaza corroborates this. The Sayour Parties say that if Moustafa was consenting to this change then nothing was easier than to obtain his signature.

166. [1237]

     It is said that the ministerial task of directing the company’s solicitor to complete the purchase of this property is not a matter which demonstrates Jamil’s alleged universal authority with respect to the property or to Plaza generally.

167. [1238]

     The Sayour Parties further say that, notwithstanding their non-admission in the pleadings that the instruments are forgeries, the Deiri Parties (having chosen not to challenge Mr Dubedat’s evidence) appear to assert that Jamil did simulate his father’s signature (given their submissions relying on the execution of the “Matthews Street Joint Venture Documents”). The Sayour Parties say that Moustafa could not have left it to Jamil to cause the property to be purchased in the name of an entity – and for a unit trust – about which he knew nothing. Again, it is said that what was left to Jamil was faithfully to adhere to Moustafa’s direction that it be purchased on behalf of Plaza; and that what happened instead was that “Jamil went off on a frolic of his own, pursuing his enthusiasm for developing a business relationship with Mr Deiri”.

168. [1239]

     The Sayour Parties say that there is no (or no adequate) explanation by the Deiri Parties as to how Mr Deiri came to be in possession of the Matthews Street documents which contain those forgeries. It is said that the Deiri Parties’ equivocation in their ultimate position on the unit trust leaves their position confusing, because (if that trust is accepted not to be valid) they cannot maintain the submission that Moustafa left it to Jamil to complete the purchase in any way he saw fit.

169. [1240]

     The reliance placed by the Deiri Parties on the Matthews Street Property purchase is problematic because that transaction is itself the subject of complaint by the Sayour Parties. Moustafa says, in effect, that Jamil and Mr Deiri intervened and changed the arrangements that he, Moustafa, had put in place for the acquisition of that property. The fact that there is a draft contract for sale showing the name of the purchaser as Plaza supports that contention.

170. [1241]

     For present purposes, I simply note that the fact that Moustafa accepts that he had Jamil “help” with the purchase of the Matthews Street Property tells me little, if anything, about Jamil’s role in the Broadway Development itself (because that property was not part of the Broadway Development itself, although it is said that it was made use of during the course of construction for car-parking).

171. [1242]

     The Deiri Parties point to the evidence that Moustafa: knew that construction was taking place in relation to the Broadway Development; attended two on-site progress meetings later in the development; attended the opening launch of the shopping centre in December 2013 and had his photo taken with Mr Deiri and the Mayor; knew that CBA had agreed to fund the development; and had signed the Stage 1 Loan (as to which, see at [261] above).

172. [1243]

     As they have submitted in relation to other factual matters here under consideration, the Deiri Parties submit that a businessperson in Moustafa’s position could not have thought that the building “would pay for itself”; that Moustafa obviously knew that moneys had been spent and the builder had been paid; and yet Moustafa never raised any concerns with Mr Deiri. It is submitted that the only available inference is that Moustafa left the construction, payment and expenses to Jamil to manage.

173. [1244]

     The Deiri Parties note that, on his own evidence, Moustafa said that he spoke with Jamil from time to time about the progress of construction and whether Jamil was happy with the amount of money being paid (see, for example, Moustafa’s affidavit sworn on 31 May 2019 at [139]), as to Jamil giving him verbal updates in relation to the progress of the construction works, “whenever [Jamil] met [Moustafa] at the Biomed offices or when [Moustafa] asked [Jamil] about how things were progressing with the construction”; about the discussions always being “quite general or broad”, as to Moustafa talking with Jamil about things like whether Jamil was “happy with the amount of money being paid” and “[h]ow the progress of construction was going”.

174. [1245]

     The Deiri Parties say that it is evident on Moustafa’s own evidence that Moustafa knew that development was underway and that moneys were being paid and left it to Jamil to determine that what was being paid was appropriate (referring also to Moustafa’s evidence that he did not press for a more detailed explanation from Jamil because he, Moustafa, was inexperienced with construction works at that scale and did not know what to ask or how much things really cost).

175. [1246]

     The Deiri Parties submit that the fact that Moustafa left decisions about construction to Jamil (because he did not feel he had the experience and knowledge to do so himself) is consistent with Moustafa being happy for Jamil to run Plaza’s involvement in the project.

176. [1247]

     It is again said that, in cross-examination, Moustafa sought to “distance himself” from the fact that moneys were required to be paid to meet partnership expenses, in that he gave evidence that he thought Biomed was paying the partnership expenses (see at T 398.10 – T 399.49). The Deiri Parties say that the assertion that partnership expenses were being paid by Biomed is unsubstantiated by any document. It is said that Moustafa would have no possible basis to believe as much, nor could he identify any such reason; and that the answers Moustafa gave show he was not a credible witness and was attempting to sidestep the fact that he knew expenses were being paid and that he simply left the project to Jamil to run.

177. [1248]

     In any event, it is submitted that, even if Biomed was paying the partnership expenses, Moustafa had authorised Jamil to deal with Biomed expenses and, as such, the fact that Jamil was authorised to deal with Biomed expenses meant he was also authorised to deal with what would otherwise be partnership expenses.

178. [1249]

     As to Moustafa’s evidence in cross-examination that nobody told him that Deicorp was making claims on CBA for payment (see particularly at T 595.11-48), the Deiri Parties say that this evidence is also not credible. It is submitted that it is evident that Moustafa knew that CBA was paying money to Deicorp Constructions, and that it would not do so without a request for payment. It is said that, as a “matter of basic logic”, that could only mean that Deicorp Constructions was requesting payments, yet Moustafa never complained. It is said that that is evidently because he left it entirely to Jamil to manage and make decisions about approvals and drawdowns.

179. [1250]

     To this, the Sayour Parties disavow any contention that Moustafa did not know of the construction works. They say that he was “up front” with this, both in his affidavit evidence (see, for example, his affidavit sworn on 27 October 2016 at [57] and his affidavit sworn on 31 May 2019 at [137]-[145]) and in cross-examination. Rather, they say that what has always been in contention was the extent of Moustafa’s knowledge. The Sayour Parties say that Moustafa’s knowledge of what was going on, what expenses were being incurred and payments pursuant to the First Facility Agreement was “skin deep”; that nobody had taken him through these matters (or the First Facility Agreement itself) in any great detail; and that he was misled.

180. [1251]

     In this regard, reference is made to Moustafa’s evidence that he did not have any experience with construction works of the scale undertaken by the Broadway Partnership (see, for example, his affidavit sworn on 31 May 2019 at [140]) and that he relied on Mr Deiri to guide him through the process of applying for the construction loan (see his affidavit sworn on 16 September 2019 at [56]; and, for example, T 381.39ff). It is noted that there is no evidence that Mr Deiri explained to Moustafa at any time what was needed, what was being done and what needed to happen next in terms of the construction works. It is said that, instead, Mr Deiri dealt with Jamil “whom he had already compromised by paying to him the secret commissions”.

181. [1252]

     Similarly, the Sayour Parties say that there is no evidence that anyone from CBA explained to Moustafa how the construction loan would operate, nor that they explained to Moustafa the processes and procedures that would need to be complied with in order for funds to be released. It is noted that Moustafa was not questioned on this topic. It is said that, at its highest, Moustafa’s evidence in this regard is that, in December 2011, he had a meeting at Mr Deiri’s offices with two officers from CBA, who “broadly explained” the terms of the loan (referring to his affidavit sworn on 16 September 2019 at [202]-[204]).

182. [1253]

     It is also here noted that CBA knew that Moustafa was inexperienced in construction projects of this scale (referring to the CBA risk assessment paper – as to which, see Ex F). The Sayour Parties emphasise that CBA did not explain to Moustafa crucial information needed for him to understand the nature of the construction loan and the processes required to draw down on the loan.

183. [1254]

     The Sayour Parties say that this does not put CBA into a good position to draw inferences from the absence of complaint or other omissions by Moustafa, or to make the assumptions that might be justified if CBA had been dealing with a customer who was experienced in dealing with this sophisticated product.

184. [1255]

     There is no dispute that Moustafa knew of the construction works taking place and that he knew that construction was to be funded with finance from CBA. Accepting that there is no evidence to suggest that Moustafa was taken through the facility agreement in any detail, he nevertheless accepts that he understood that construction was to be funded by CBA. His evidence in cross-examination is that he thought the partnership expenses were being funding by Biomed. That explanation seemed to me to have the hallmarks of something proffered more as a possible explanation for the source of funds than an actual recollection or belief that Biomed was the source of the funds expended on construction (and it does not seem to me to make sense that Biomed would be funding the construction expenses when Plaza was the entity that had entered into the partnership). Be that as it may, even if Moustafa thought that the moneys were coming from Biomed, it is obvious that he left it to Jamil to manage the day-to-day expenditure in the running of the Broadway Development since he was not himself signing cheques or making payments.

185. [1256]

     Next, the Deiri Parties note that Moustafa was overseas during the following periods: from 28 April 2012 to 4 August 2012 (see at [284]; [295] above); from 5 February 2013 to 22 May 2013 (see at [334]; [361] above); and from 19 April 2014 to 25 June 2014 (see at [457]; [467] above). It is submitted that, during that period (approximately eight and a half months in all), Plaza’s business must have been entrusted to someone to supervise and manage it during this time; and this is consistent with Moustafa having authorised and empowered Jamil to run the business of Plaza.

186. [1257]

     As to the reliance placed by the Deiri Parties on the fact that Moustafa was overseas for extended periods of time and thus that Jamil was “authorised and empowered to run Plaza”, the Sayour Parties point to Moustafa’s evidence in cross-examination by Senior Counsel for CBA that, on each of the occasions when he was overseas, he left Jamil in charge of the day-to-day running of Biomed and Plaza’s involvement in the Broadway Development (see T 543.5-17). It is said that the execution of the different powers of attorney in 2012 and 2013, in particular, was precipitated by these overseas trips. The Sayour Parties maintain that the issue is whether this meant that Jamil was given total authority and they say that the fact that Moustafa took the deliberate step of granting powers of attorney each time he left the country suggests he considered that Jamil was only empowered in his absence and that, when Moustafa was present, Jamil’s role was more limited.

187. [1258]

     As to the first of the periods that Moustafa was overseas (28 April 2012 to 4 August 2012), it is noted that before his departure in late April 2012, under Moustafa’s hand, Plaza had: established a partnership with Investments; sold a half share in the Broadway Site; signed the building contract for the Stage 1; received the tender for Stage 2; obtained the facility from the CBA by which the construction could take place; commenced excavation of the Broadway Site; and (Moustafa thought) completed the purchase of the Matthews Street Property.

188. [1259]

     It is noted that Moustafa had planned to be overseas in June 2012. He required a written additional agreement that he would receive payment of $2 million of the proceeds overseas by that month. It is said that, by the time Moustafa left for overseas, there were no critical events for the establishment of the partnership business that were set to occur in the period while Moustafa was overseas; and the only matters which required attention from Plaza with respect to the development were the agreements for lease and the leasing negotiations. The Sayour Parties say that Moustafa executed a Power of Attorney at the behest of Mr Deiri’s lawyers to ensure that Jamil could negotiate leases on behalf of Plaza and the partnership as he had intended that Power of Attorney to operate. It is said that Mr Deiri appears to have been closely involved on an ongoing basis in that task (and that his lack of adherence to appropriate witnessing of documents is manifest in his email pertaining to the witnessing of Jamil’s signature on agreements to lease). Reference is made in that regard to the email sent by Mr Deiri to Mr Malouf on 16 June 2012 at 8.45 am:

189. [1260]

     The Sayour Parties also note that, even though Plaza’s main task in the Broadway Partnership was the leasing of the retail shopping centre, Jamil was absent from Australia for nearly three weeks in this period.

190. [1261]

     As to the second period (5 February 2013 to 22 May 2013), the Sayour Parties say that Moustafa’s evidence, unchallenged in cross-examination, was that Mr Deiri knew that he was leaving for overseas in about February 2013 and that Mr Deiri attended the Sayour family home and urged Moustafa to give Jamil a new Power of Attorney with the widest possible grant. It is noted that Moustafa’s evidence (see, for example, his affidavit sworn on 16 September 2019 at [107]) is that he expressly rejected that. It is said that, arising from this exchange between Mr Deiri and Moustafa, Mr Deiri was on express notice that Jamil’s powers pursuant to the Powers of Attorney were limited to leasing and intended only to operate while Moustafa was out of the country.

191. [1262]

     The Sayour Parties refer in this regard to two matters which arose in the period between 5 February and 22 May 2013.

192. [1263]

     First, on 8 February 2013, three days after Moustafa had left Australia, Mr Deiri presented a cheque made out to cash at the CBA. It is noted that the signature is one of the first which bears simulations of Moustafa’s signature and not Jamil’s regular signature. The Sayour Parties say that Mr Deiri was cross-examined on this cheque and could not explain why, when the preponderance of cheques prior to this date bore Jamil’s regular signature, this cash cheque “with a forgery of Moustafa’s signature and a further endorsement purportedly initialled by Moustafa” was brought into existence. It is noted that Mr Deiri’s evidence was to the effect that he knew of bank procedures and requirements for cash cheques and that he believed the cheque had been properly signed by Moustafa having been, all in one day, collected by Jamil, returned and presented at the bank (see at T 875.10 – T 876.27).

193. [1264]

     In circumstances where Mr Deiri knew that Moustafa was leaving the country at this time, it is said that Mr Deiri’s account of cheque signing procedures (see particularly at T 791.15ff) would require that Jamil was able to “run back and forth across town” in order to obtain his father’s signature on the same day that the cheque was then presented for cashing and that this is not credible. It is submitted that Mr Deiri’s lack of concern supports the view that he knew that Jamil was operating outside of the authorisation conferred by Moustafa and Plaza.

194. [1265]

     Second, the Sayour Parties place significance on the fact that, a week before Moustafa’s return, Jamil accepted a new tender and purported to execute a building contract for the Stage 2 Construction Contract (as to which, see at [357] above. It is submitted that there was no reason why this contract needed to be entered into before Moustafa’s return, other than to conceal the alteration of the price from that which had previously been agreed at inception of the Broadway Partnership. It is noted that Mr Deiri knew that Moustafa was not in Australia at the time and was aware, given his conversation with Moustafa in about early February 2013, that Jamil had not been (and would not be) granted power beyond leasing. It is said that this supports the view that, so far from authorisation being needed when Moustafa was overseas, it was rather the case that his absence was used as an opportunity to take improper advantage (in respect of matters that could have waited for his return).

195. [1266]

     As to the final period (it will be recalled, between 19 April 2014 to 25 June 2014), the Sayour Parties say that there were no significant events which took place in this period. It is noted that Moustafa left Australia well prior to any settlement of the residential units which was to take place in late 2014 and that it was shortly after Moustafa’s return from this trip that Jamil was diagnosed with cancer. It is noted that Jamil was absent from the country for periods throughout 2014 (see, for example, Yesmine’s affidavit sworn on 8 November 2019). It is said that, despite this, and the fact that Mr Deiri was personally aware of Jamil’s diagnosis and travel intentions, the Deiri Parties give no explanation as to why he “continued to sideline Moustafa” in this period.

196. [1267]

     There is no dispute as to the periods during which Moustafa was overseas during the course of the Broadway Development. Nor can it be disputed that Moustafa put in place arrangements (via the Powers of Attorney) for Jamil to carry out functions in relation to Plaza’s business and on behalf of Moustafa while he was away (limited though those Powers of Attorney were).

197. [1268]

     Beyond that, I accept that it is obvious that someone must have been authorised to run the business while Moustafa was overseas and that the most likely person in this regard, noting the contemporaneous documents and general context disclosed from the totality of the evidence, was Jamil. However, I do not draw from this that Jamil had complete authority to commit Plaza to business decisions or the like. I also consider that there is some basis for suspicion of the circumstances in which the two transactions referred to above occurred. That said, I do not accept that this establishes knowledge on the part of Mr Deiri that Jamil was operating outside the authority conferred by Moustafa and Plaza (an issue that I will return to in due course).

198. [1269]

     The Deiri Parties also rely upon the fact that Jamil organised payments of money to Moustafa, at Moustafa’s request and with his knowledge, as powerful evidence that Jamil was authorised to give directions to Mr Deiri about how and where Investments was to make payments to Plaza.

199. [1270]

     The Deiri Parties refer in this regard to the following payments: the payment of $500,000 in May 2012 towards the purchase of the Broadway Site (see at 285] above) made to Moustafa’s Blom Bank Lebanon account (receipt of which, together with the $400,000 “deposit”, was confirmed by Jamil by email, with a further request for payment of $1.5 million overseas); the second payment of $500,000 made in July 2012 to Moustafa’s overseas account (see at [292] above); the third payment of $500,000 made on 23 November 2012 (I understand said by Mr Deiri to be made at Jamil’s direction); the fourth payment (see at [317]above) of $500,000 made on 17 December 2012 (again, I understand said by Mr Deiri to be at Jamil’s direction).

200. [1271]

     It is noted that, in cross-examination, Moustafa accepted that Jamil communicated to Moustafa that $2 million had been paid by Mr Deiri to Moustafa’s Lebanon account.

201. [1272]

     The Deiri Parties say that the facts that Jamil directed Investments to make the four $500,000 payments to Moustafa’s Lebanon Blom Bank account, Mr Deiri then caused those payments to be made, Moustafa accepts that he received them and Jamil then reported to Moustafa that the payments had been made, demonstrate that Moustafa was “entirely happy” for Jamil to direct Investments on how and where to make payments without direct communications with Mr Deiri.

202. [1273]

     It is noted that Plaza does not sue in these proceedings on the four $500,000 payments (which it accepts it received), though it maintains that Jamil was not authorised to make all the other directions of payment. The Deiri Parties say that this amounts to Plaza now seeking to “pick and choose” which directions it accepts that Jamil was authorised to make. It is submitted that it is not plausible that Jamil was only authorised to give directions to Investments as to where to pay some amounts but not others. The Deiri Parties maintain that Moustafa was happy for Jamil to give directions to Investments about payment generally; and that it is only now (where Plaza claims it did not receive some payments) that it wishes to say that those directions were never authorised.

203. [1274]

     As to this, the Sayour Parties say as follows.

204. [1275]

     As to the reliance placed by the Deiri Parties on the fact that Jamil organised payments of money to Moustafa to Moustafa’s knowledge, the Sayour Parties say that Moustafa negotiated directly with Mr Deiri for the payment of the sum of $2 million to Lebanon by four instalments of $500,000; and that Jamil supplied the account details to Mr Deiri who made the deposits himself. It is submitted that this is not a case of Jamil giving directions to pay; nor did these funds pass through his hands. It is noted that the email of 15 June 2012, so far as it referred to $1.5 million to be sent overseas, dealt with the same subject (only the first $500,000 having been deposited to the account in Lebanon at that stage) and hence that the direction to pay $2 million to Lebanon had already been given by Moustafa.

205. [1276]

     The Sayour Parties say that the submission that Mr Deiri gave evidence that Jamil directed these payments to be made turns on acceptance of Mr Deiri’s “self-serving” evidence in the face of the above facts.

206. [1277]

     I do not accept the submission for the Sayour Parties that Jamil directing the relevant payments to be made relies only on Mr Deiri’s evidence (self-serving as the Sayour Parties criticise it as being or otherwise). That is because it is clear that at least one of the payments was made pursuant to an email direction from Jamil (see at [292] above) and because Moustafa’s own evidence deposes to conversations with Jamil about payments to be organised and to be made while he was overseas.

207. [1278]

     I consider it more likely than not that payments made to Moustafa’s bank account in Lebanon were made at Jamil’s direction (with Moustafa’s knowledge and approval) and that this does support the conclusion that Jamil was authorised by Moustafa (at least on some occasions) to direct Mr Deiri as to how payments were to be made. I also consider that the lack of complaint by Moustafa at the time would have suggested to Mr Deiri that Moustafa was content for Jamil to give such directions (and is a strong factor in leading to the conclusion that he had implied actual and/or ostensible authority so to do). This is all that need be said of this matter at this point, though it will be necessary to return to such evidence in due course (particularly in relation to the claims predicated on ostensible authority, and the like).

208. [1279]

     The Deiri Parties say that it is significant that Jamil opened the Westpac #238 Account in the name of Moustafa (see at [305] above). They say this principally for two reasons. Those reasons are as follows: first, because it shows that Jamil was organising and managing bank accounts for Plaza and Moustafa; and, second, because substantial payments that were made from the CBA Partnership Account as partnership distributions (which Plaza claims it never received) were in fact paid into this account. It is submitted that Moustafa knew of this account and that his knowledge of the account undermines the suggestion that Plaza did not receive the funds, or that Investments paid the partnership distributions to Jamil (rather than Plaza).

209. [1280]

     The Deiri Parties note that the account opening form (Ex 15 at pp 222-227) bears Moustafa’s own signature.

210. [1281]

     Furthermore, in his affidavit sworn on 16 September 2019, Moustafa accepted that he signed the Westpac #238 Account opening form, though he said he did not remember signing it (see at [228]). The Deiri Parties point out that in cross-examination on 22 November 2019 Moustafa initially confirmed that the signature on the form was his own (see at T 338.32-47), though later suggested that he had never signed the Westpac #238 Account opening form (see at T 420.23-421.27) before saying, when I sought to clarify his evidence on this issue, “[o]nly my signature, only when I, I opened the Sayour Investment Trust, this is only my signature, no one with me” (at T 421.25-27).

211. [1282]

     The Deiri Parties submit that, if Moustafa’s evidence in cross-examination amounted to a denial that Moustafa signed the Westpac #238 Account opening form, then that evidence should not be accepted, noting that it is contrary to Moustafa’s earlier affidavit evidence and the earlier answers he gave in cross-examination and that there is no expert evidence suggesting that Moustafa did not sign the Westpac #238 Account opening form (they say this is no doubt because it would not have assisted Plaza’s case).

212. [1283]

     The Deiri Parties point out that the Westpac #238 Account is also recorded in Moustafa’s 2013 tax return, in which there is a declaration as to interest earned on that account of $85,000 in that year; and that Moustafa personally attended the Westpac branch in Lakemba to bank two cheques into the account. The Deiri Parties also note that the bank account statements were addressed to Moustafa’s home address. It is submitted that Moustafa must have known about the Westpac #238 Account and there should be a finding as such.

213. [1284]

     It is also said that, just as Moustafa “sought to distance himself” from the Westpac #202 Account, his denial of any knowledge about the Westpac #238 Account was for the purpose of seeking to avoid the fact that much of the money Plaza claims it never received was paid into that account, which was solely in Moustafa’s name. It is said that Moustafa’s explanation “of signing documents without ever apparently knowing what he was signing” is not credible, and should not be accepted. It is said that, even if Moustafa’s evidence that he did not know about the Westpac #238 Account were to be accepted, it would only further demonstrate that Moustafa authorised and empowered Jamil to manage Plaza’s and Moustafa’s financial affairs.

214. [1285]

     The Deiri Parties say that Moustafa cannot “both claim total ignorance about every document he signed and, on the other hand, disclaim the authority he placed in Jamil by signing documents Jamil put before him”. It is submitted that the absurdity of such a position speaks to the improbability of an experienced businessperson such as Moustafa repeatedly signing documents without reading them or taking steps to ascertain what he was signing.

215. [1286]

     The Deiri Parties note that Jamil organised the opening of the Westpac #238 Account and presented the account opening form to Moustafa to sign; and point to the evidence that Jamil was in communication with Westpac in relation to several accounts, including the Westpac #238 Account (referring in particular to the 27 August 2012 communication from Mr Turner of Westpac to Jamil in relation to the then newly opened Westpac #238 Account – see at [305] above – and to Jamil’s response thereto). It is said that this again shows that Jamil was handling the family’s finances.

216. [1287]

     As to the Westpac #238 Account, the Sayour Parties say that the submission made by the Deiri Parties as to the receipt by Plaza of the partnership distributions that passed through that account involves an element of circularity in that the receipt with knowledge is prayed in aid of a conclusion of general authority.

217. [1288]

     The Sayour Parties emphasise that the Westpac #238 Account was not Plaza’s bank account and they say that the Deiri Parties’ submissions ignore the rule established in National Commercial Banking Corporation of Australia Ltd v Batty (1986) 160 CLR 251; [1986] HCA 21 (National Commercial Banking Corporation v Batty) that, when money goes in and out of an account by a misappropriation, there is no receipt before the recipient knows of it (see also, for example, Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505; (2018) 13 BPR 25,343 (Vella v Permanent Mortgages); SCEGS Redlands v Barbour [2008] NSWSC 928, where, in each case, the relevant account was an account to which the defendant was actually a legal party).

218. [1289]

     The Sayour Parties note that the Westpac #238 Account was opened on or about 27 August 2012 (again, see at [305] above). They say that there is no obvious explanation for this account being opened at that time, except that it was immediately used (see Ex 15 at pp 1249-1252) by Jamil to extract $4 million from the Westpac #202 Account (that amount having been deposited into Westpac #202 Account on 10 and 20 August 2012 – see Ex 15 at pp 1245, 1248). It is noted that the $4 million remained in the Westpac #238 Account until 1 February 2013, then was withdrawn (see Ex 15 at pp 1340-1343) and seemingly deposited into the Westpac #295 Account (see Ex 1 p 2), from which account the sum of $3 million was then withdrawn on 5 February 2013 by a cash withdrawal. It is noted that there is in evidence the Blom Bank receipt of $3 million in February 2013 (the “ordering customer” being Jamil and the “beneficiary customer” being Moustafa).

219. [1290]

     I note that the remaining $1 million in the Westpac #295 Account was the subject of a number of withdrawals over the next few months, leaving about $920,000 which was drawn out in early June 2013. The destination of this money has not been identified.

220. [1291]

     It is noted that, from 5 February 2013, the Westpac #238 Account was dormant (see Ex 15 at pp 1343-1429) until November 2014 when it was used to receive cheque #517 and subsequent cheques in December 2014 (all of which the Sayour Parties say were misappropriated). In this connection, reference was made to the diagrams handed up as aides memoire in this context to show the transfers of funds between the respective accounts.

221. [1292]

     The Sayour Parties say that there could be no reason for Moustafa to open a trust account to receive from another trust account money to be held on trust for the Sayour Family Trust. It is said that the only actual use the account had was as a “conduit pipe” for money ($3 million of which was eventually accounted for but the majority of which the Sayour Parties say was misappropriated). The Sayour Parties say that this use of the account suggests that the Westpac #238 Account had no legitimate purpose and thus was not “recognised” by Moustafa.

222. [1293]

     Insofar as the Deiri Parties say that Moustafa’s drivers licence accompanied the account opening form for the Westpac #238 Account, the Sayour Parties say (as I have adverted to at [1280] above) that this is factually incorrect.

223. [1294]

     As to the submission impugning Moustafa’s credit as a witness by reference to a denial under cross-examination that his signature appeared on the account opening form for the Westpac #238 Account, the Sayour Parties say that a comparison of the extracts of transcript and the account opening form (see Ex 15 at p 226) demonstrates that Moustafa did not attempt to deny his own signature.

224. [1295]

     The Sayour Parties note that there were three partnership distribution cheques that were paid into Westpac #238 Account. It is noted that the payments from the CBA Partnership Account of cheques #517, #522 and #526 are pleaded by Plaza in its reply to the First Broadway Cross-claim (see at [208]-[245]) and in the Fifth Broadway Cross-claim (see at [211]-[248]). It is said that their significance in these proceedings is to demonstrate that these funds were paid by Mr Deiri to Jamil and had originally been intended by both of them to be invested in the Arncliffe Project. The Sayour Parties also point to Mr Deiri’s evidence (see at T 892.5-40) that he was told by Jamil of his intention to recycle money from Punchbowl and they say that this is in accord with that allegation.

225. [1296]

     As to the three matters said to establish that Moustafa must have known about the Westpac #238 Account (as considered above, those matters being that interest earned on the account was included in Moustafa’s tax return; that he attended the Lakemba branch of Westpac to deposit two cheques which were deposited into this account; and that the statements were sent to Moustafa’s home address), the Sayour Parties say as follows.

226. [1297]

     First, as to the inclusion of interest in his tax return, that the documents tendered in Ex 15 readily establish that, prior to Jamil’s death, Moustafa’s tax affairs were managed by Mr Gramelis’ accounting firm and Mr Zahi Salah, a Biomed employee. It is accepted that the document relied upon (Ex 15 at p 1074) concerns the 2013 financial year, but it is noted that the return itself was prepared (as disclosed on the document) on 26 April 2016 when Moustafa in fact knew of the Westpac #238 Account. It is said that Moustafa was cross-examined about this document apparently on the basis that that it was prepared shortly after the end of the 2013 financial year, and not three years later (see T 421.32-T 422.36). It is said that, given the date of preparation of the returns, Moustafa’s responses under cross-examination about returning the bank interest on this account are consistent with the documentary record and his evidence of when he became aware of this account.

227. [1298]

     As to Moustafa’s attendance for the deposit of the cheques, it is said that Moustafa’s evidence about the deposits was not significantly challenged (see, for example, his affidavit sworn on 27 October 2016 at [88]-[94]) – namely that, at the urging of Jamil, he had attended the bank and had seen the manager and handed the bank manager the cheques for deposit into what he thought were the bank accounts of the Sayour Family Trust (see T 472.23-43).

228. [1299]

     As to the sending of bank statements to Moustafa’s home address, it is noted that Moustafa explained that he would not receive bank statements even when they were addressed to his home address.

229. [1300]

     The Sayour Parties say that it was not put to Moustafa that his denial of any knowledge about the Westpac #238 Account was a strategy to avoid the fact that much of the money Plaza here claims it never received was paid into that account which was solely in Moustafa’s name (again, about which a Browne v Dunn point is here taken). In any event, the Sayour Parties say the submission is misconceived.

230. [1301]

     The Sayour Parties say that the Deiri Parties’ submission that Moustafa, “knew about” the Westpac #238 Account, or that Moustafa authorised Jamil to manage his and Plaza’s affairs including the setting up and operation of this account, is not borne out by the “extraordinary journey” that the funds then took after they were deposited into the Westpac #238 Account (again, I refer here to the aide memoire handed up in opening submissions for Plaza, about which it is said there has been no challenge).

231. [1302]

     Specifically, it is noted that, between 2 and 5 January 2015, Jamil transferred $4.52 million from the Westpac #238 Account to another account, the Westpac #833 Account, which was styled as “J & M Sayour trustee for the Sayour Family Trust”. Those moneys were then, in the period from 2 to 5 January 2015, transferred from the Westpac #833 Account and deposited into an account in the name of Moulikyah (the Moulikyah #316 Account). Also, on 5 January 2015 and at Jamil’s express direction, a further cheque from the CBA Partnership Account was drawn and deposited into the Moulikyah #316 Account in the sum of $250,000. The Sayour Parties say that it seems likely, given the timing of the deposits into the Moulikyah #316 Account, that those funds were then intended to be paid as Sayour Holdings’ contribution to the Arncliffe Development but that transaction did not take place in connection with Mr Deiri and Jamil having a disagreement over Jamil’s demand to be appointed a director of Combined Projects Arncliffe.

232. [1303]

     The Sayour Parties say that the only possible explanation as to why these funds were “funnelled through” these accounts in this way is that Jamil was attempting to conceal from Moustafa and Plaza the ultimate destination of those funds. Pausing here, I accept that there has been no logical explanation for such a circuitous transfer of funds.

233. [1304]

     As an initial matter here, I find that the account opening form for the Westpac #238 Account bears Moustafa’s genuine signature. Moustafa must therefore be taken to have known about the opening of the Westpac #238 Account (albeit that he says he did not remember signing it and even though he may not have understood at the time that it was to be a separate account).

234. [1305]

     I do not accept that Moustafa’s evidence, taken as a whole, amounted to a denial of that being his signature (and it is not necessary here to engage with the debate as to whether there was a breach of the rule in Browne v Dunn, as here submitted). Accordingly, I find that Moustafa must be taken to have known about the Westpac #238 Account.

235. [1306]

     That said, I accept that the reference to it, or inclusion of it, in Moustafa’s tax return is not of much assistance given Moustafa’s evidence that he left the preparation of such documents to his accountants and the tax return was prepared at a later stage (relevantly, by which time Moustafa was certainly on notice of the Westpac #238 Account in any event). I have already noted Moustafa’s evidence about the two transactions in which he banked cheques personally (elements of which were implausible insofar as it must have been arranged by Jamil in advance).

236. [1307]

     To the extent that the account opening forms permitted Jamil to sign and operate the Westpac #238 Account, it must be accepted that Moustafa gave Jamil authority and responsibility in respect of the Westpac #238 Account. However, I draw little from this in relation to Jamil’s authority in respect of the project and business of Plaza overall. Moreover, I do not accept that the evidence points to a conclusion that Moustafa knew about the circuitous transfer of funds into and from the Westpac #238 Account. That seems to me to be wholly implausible (and inconsistent with Moustafa’s reaction when he learnt of the moneys in Jamil’s account after his death).

237. [1308]

     The Deiri Parties also rely on the evidence as to the application made for a loan (the Westpac #802 loan) for $480,000, as showing that Jamil was entrusted to attend to the family finances generally, including the personal finances of Moustafa.

238. [1309]

     It is noted that Jamil appears to have completed the loan application for the Westpac #802 Loan Account (see Ex 15 at p 232). The Deiri Parties point out that Moustafa denied that the signatures on the loan application form (see Ex 15 at pp 233 and 239) were his signatures, but that he accepted that he did in fact take out the loan in that amount (see at T 426.6-428.22) and appears to have accepted that he signed the formal Westpac loan offer that Westpac had prepared (see at T 427.17-35).

239. [1310]

     The Deiri Parties submit that, by this, Moustafa should be taken to have accepted that he applied for the Westpac #802 Loan Account for $408,000 and signed the relevant loan offer; but, in any event, they say that his denial that he signed that loan application only supports the case that Jamil was entrusted and empowered to operate the family finances and communicate with banks. It is said that Jamil evidently prepared the original loan application; and that Moustafa was content for Jamil to communicate with the bank and prepare the application and was simply presented with the final loan offer to sign.

240. [1311]

     As to the reliance placed by the Deiri Parties on the fact that Jamil dealt with Westpac in relation to this loan application, where it would seem that Jamil signed both his father’s and his sister’s signatures on the loan application (as support for the contention that Jamil “dealt with the bank in relation to a loan application”), the Sayour Parties say that this does not involve Plaza as a party or in any other way (and was not the subject of any pleading, particulars or other notice).

241. [1312]

     It is noted that the stated “predominant purpose” of this loan offer is to the purchase of an established dwelling (see Ex 15 at p 247). The Sayour Parties say that this submission conflates a loan application with a loan offer.

242. [1313]

     It is noted that the offer appears (see at Ex 15 at p 250) to bear Moustafa’s genuine signature; and, again, that the application is seemingly completed by Jamil (including the forging of both his father’s signature and that of his sister, Lamia). It is said that it was not put to Moustafa that he knew this; rather (see, for example, at T 426), Moustafa’s attention was drawn to the signatures which he denied were his. It is noted that Moustafa said that he did make a loan application but this was not the document and he accepted that he signed the loan offer. It is said that the fact that Ms Lamia Sayour’s signature was applied without her authorisation or knowledge was a matter of unchallenged evidence (see the affidavit of Ms Lamia Sayour sworn 26 November 2019). The Sayour Parties say that Jamil was not authorised by her, and nor was he authorised by Moustafa, to apply his signature to that application. It is noted that on the document Lamia’s name and purported signature are crossed out.

243. [1314]

     The Sayour Parties say that, assuming that it was Jamil who filled out and signed the application presented in evidence, Moustafa did not accept that he was authorised to do so, and there is no other evidence that he was. It is said that, even if Jamil was authorised, this did not commit Moustafa to proceed, and that position was reached by Moustafa signing the loan offer himself. It is submitted that none of this goes to the issue of authority to act for Plaza.

244. [1315]

     Given the uncertainty in the evidence as to these particular events and this transaction, I draw nothing from it. To my mind, at best, it supports the view that from time to time Moustafa authorised Jamil to represent him in relation to personal loan applications and such matters.

245. [1316]

     Next, the Deiri Parties note that Moustafa deposed to a number of occasions when Jamil told him that moneys had been paid by Mr Deiri; and that, in cross-examination, Moustafa clarified that the $3 million that he had deposed that Jamil reported to him as having been paid to the account in Lebanon by Mr Deiri was in addition to the earlier $2 million that Jamil had reported in an earlier conversation (see at T 441.29-35) (i.e., $5 million overall).

246. [1317]

     The Deiri Parties note that Moustafa therefore accepted that Jamil had reported to him that Mr Deiri had paid to Moustafa’s Blom Bank account a total of $5 million. It is said that there is no dispute that there were no communications between Mr Deiri and Moustafa directly about those payments; nor is there any suggestion there was any direct communication between Moustafa and Mr Deiri about payments of any moneys for the land or for the partnership distributions, until January 2015 when Mr Deiri says he told Moustafa that he had given Jamil the final cheques for partnership distributions. As such, the Deiri Parties submit that there can be no doubt that Moustafa relied on Jamil to communicate with Mr Deiri about the payments that Plaza received, and when they were received.

247. [1318]

     The Deiri Parties submit that this is significant because it shows that Moustafa was content not to receive direct communications from Mr Deiri about when payments were made; that he authorised Jamil to undertake the task of giving directions to Mr Deiri and reporting on payments; and that this further evinces Jamil’s authority to run Plaza’s business.

248. [1319]

     As to the reliance placed by the Deiri Parties on the evidence that Moustafa was told by Jamil when Mr Deiri made payments to him, the Sayour Parties submit that it is of no moment that Jamil acted as a messenger to inform his father that Mr Deiri had made or was making any particular payment. Moreover, they note that these communications were neither timely nor accurate as to what had been paid (or, indeed, when) and that they did not disclose that large payments were made to Jamil himself by Mr Deiri and his companies, nor that Jamil had kept large sums.

249. [1320]

     The significance of this, in my opinion, goes to the fact that Moustafa was content to allow Jamil to arrange with Mr Deiri the accounts to which payments were to be made.

250. [1321]

     The Deiri Parties note that the relevant account statements show that the Westpac #295 Account was in the names of Moustafa and Jamil; that the statements were addressed to Moustafa’s home address in Greenacre; and that the Westpac #295 Account is declared in Moustafa’s 2013, 2014 and 2015 tax returns, which Moustafa signed. The opening of this account by Jamil (in his and Moustafa’s name) in early 2013 is relied upon to show that Jamil was managing the family finances on Moustafa’s behalf. Moustafa denied, when cross-examined about this account, knowing about it and claimed he never saw the bank statements (see, for example, at T 434.16-35).

251. [1322]

     The Deiri Parties note that, unlike the Westpac #202 Account and the Westpac #238 Account (which show Moustafa’s signature on the account opening forms), the account opening forms for the Westpac #295 Account are not in evidence. However, it is submitted that, given Moustafa signed the account opening forms for the other two bank accounts which Jamil organised to be opened (and about which it is said Moustafa must have known) and given the bank statements for the Westpac #295 Account were sent to his home, it should be inferred that Moustafa also knew about the Westpac #295 Account.

252. [1323]

     It is noted that Moustafa accepted that the bank statements were delivered to his home, but that he claimed that Jamil took them from his home (see at T 447.34 – T 448.9). As to that evidence, the Deiri Parties say: first, that it is not credible that a businessperson in Moustafa’s position took no interest in the state of his accounts (again, as with other factual matters here being considered, pointing to his earlier evidence in cross-examination in which he agreed that he was careful with and kept an eye on his money); and, second, that the explanation that he did not read his bank statements because Jamil took them from his home was a departure from the earlier evidence he gave in cross-examination (which it is said was implausible in any event) to the effect that Moustafa had left it to his accountants to manage (and in which he made no mention of Jamil) (see at T 325.22-27). It is noted that later, under cross-examination by CBA, Moustafa added that he left the account statements for Jamil, and he assumed Jamil would take them to his accountant (see at T 509.19-44).

253. [1324]

     The Deiri Parties say that the suggestion Moustafa gave (that no-one from his business but the accountant(s) apparently was tasked with responsibility for managing and reviewing the state of the accounts) is “obviously wrong”. While, it is accepted that the accountants may have maintained records and advised when instructed, it is said that they plainly would not have managed the Sayours’ businesses, made financial decisions and satisfied themselves about the “financial health and status of the family finances”. It is submitted that these are all matters which Moustafa as the head of the family would have been very much interested in and about which he obviously knew. It is further said that Moustafa’s attempt to distance himself from any knowledge about the state of the finances of any of the businesses which he created and managed is implausible and bears poorly on his credibility generally.

254. [1325]

     It is also said that, even if Jamil was taking the bank statements and Moustafa was never reviewing them, that must have meant Jamil was tasked with responsibility for overseeing and managing the state of the accounts (and that only supports the proposition that Jamil was authorised and was entrusted with the responsibility of managing the business of Plaza).

255. [1326]

     As to the Westpac #295 Account, it is noted by the Sayour Parties that this account was opened on 1 February 2013 (again, see at [330] above) and was held in the names of Moustafa and Jamil; and that it was not designated as a trust account.

256. [1327]

     Insofar as it is submitted by the Deiri Parties that it should be inferred that Moustafa “knew about” this account, the Sayour Parties point out that Moustafa deposed that he had no knowledge or involvement in the opening of this account (see his affidavit sworn on 16 September 2019 at [230]) and he was not challenged directly about what he knew about this account in cross-examination. The Sayour Parties say that it was put to Moustafa “with some imprecision” that he was “familiar with and involved in the opening” of the account (see at T 434.29-31); and that he was later asked merely whether he agreed that he had been paid $3 million from that account into his account in Lebanon (again, see, for example, T 447.45 – T 449.40).

257. [1328]

     The Sayour Parties say that the inference that Moustafa knew about the Westpac #295 Account is sought to be made solely on the basis that the bank statements for that account were addressed to his home address. It is noted that Moustafa explained in his affidavit (and it is said that this was not challenged) that Jamil lived next door to him and that he saw Jamil at least daily either when Jamil collected his car from Moustafa’s garage or when he attended meals with the family (see his affidavit sworn on 16 September 2019 at [100]) and that in cross-examination he said that he left bank statements for Jamil to take.

258. [1329]

     The Sayour Parties note that (as I have adverted to above) the account opening forms are not in evidence for this account. It is said that the Deiri Parties rely, untenably, on the fact that Moustafa has signed account opening forms for other bank accounts (i.e., the Westpac #202 Account and the Westpac #238 Account). The Sayour Parties say that this reliance cannot be maintained when regard is had to the fact that this account, unlike the others (which were opened at the Lakemba branch), was opened at the Pennant Hills Branch of Westpac and that the first page of Ex 1 shows that Moustafa’s signature was only “captured” on 3 November 2015 (a month after Jamil had died).

259. [1330]

     Further, the Sayour Parties say that the Deiri Parties have failed to address the fact that this was the account into which Jamil “corralled funds” on two occasions: first, an aggregation of funds shortly after the account was opened, in February 2013, of $4 million from a series of transfers from the Westpac #238 Account, which were in turn derived in August 2012 from the Westpac #202 Account; the second, an aggregation of funds in February 2015.

260. [1331]

     As to the first aggregation of funds, it is noted that, on 20 August 2012, the sum of $3.25 million was deposited into the Westpac #202 Account from a cheque drawn on the account of CP Redfern and, on 10 August 2012, there was an electronic transfer of $1 million from Deicorp. The Sayour Parties say there has not been accounted for the difference between $4.25 million and $3 million. Of this amount, $3 million was then transferred from the Westpac #295 Account to Moustafa’s accounts overseas (see Ex 2). It is to be noted Moustafa’s departure from Australia at this time. The Sayour Parties say that there is no apparent reason why those funds were dealt with in this way and not simply transferred directly from the Westpac #202 Account.

261. [1332]

     As to the second aggregation of funds, it is noted that this occurred after the rejection by Mr Deiri of Jamil’s offer to contribute $5 million to the Arncliffe Development. On 6 February 2015, there are fifty deposits via internet transfers of $100,000 each. On 9 February 2015, Jamil then purchased two bank cheques of $3 million and $2 million, which he then deposited into accounts in his name alone at the Bank of Sydney (those moneys since being substantially recovered from the estate of Jamil in the Estate Proceedings to which I have referred above). The Sayour Parties say that this second occasion was the most egregious of the many misappropriations of Plaza’s money by Jamil, “though perhaps closely rivalled by the former occasion”. It is submitted that if Moustafa “knew about” the Westpac #295 Account, it seems inconceivable that Jamil would have used it to “effect that theft”.

262. [1333]

     I cannot, particularly In the absence of the account opening form, be satisfied that Moustafa knew about the opening of the Westpac #295 Account. I would not draw from the fact that bank statements were sent to Moustafa’s home that Moustafa permitted Jamil to manage the family finances on his behalf. As to the reference to the accounts in the tax returns, that would equally be consistent with the account having been opened (without Moustafa’s knowledge) by Jamil and then the bank details being provided to Moustafa’s accountant. Moustafa’s evidence, which I accept as consistent given his overall apparent lack of attention to (and day-to-day involvement in) business matters, was that he left this to his accountants.

263. [1334]

     Moreover, the opening of numerous accounts (and transfer of moneys from account to account) seems to have no logical explanation (other than if this was to hide the transactions from Moustafa).

264. [1335]

     Having said that, I do see patent circularity in any suggestion to the effect that, if Moustafa “knew about” the Westpac #295 Account, then it is hard to accept the likelihood that Jamil would have used it to effect his alleged misappropriations: those misappropriations being a principal matter in dispute between the parties.

265. [1336]

     The Deiri Parties next point to the application for, and acceptance by Jamil on 21 February 2013 of, a loan in the name of Moustafa and Fatima (the Westpac #111 Loan Account) as further evidence of the trust which Moustafa placed in Jamil to manage financial matters and is (it is submitted) consistent with Jamil being trusted to run Plaza’s business generally (see Ex 15 at p 281). Again, it appears that the loan offer was accepted by Jamil (see Ex 15 at p 287), by signing his name and stating he signed on behalf of Moustafa pursuant to power of attorney. Moustafa in cross-examination did not remember this loan (see at T 435.23ff).

266. [1337]

     The Deiri Parties say that it should be found that Jamil applied for this loan in Moustafa and his wife’s name at their direction.

267. [1338]

     On 17 November 2014, $700,000 from the Westpac #202 Account was paid into the Westpac #111 Loan Account, reducing the loan balance to zero. That same day, $600,000 was paid from the Westpac #202 Account into Moustafa’s Westpac #980 Loan Account, reducing the loan balance of that loan to zero as well; and Moustafa accepts he applied for that loan. It is submitted that there is no reason to doubt that Moustafa applied for both loans and authorised Jamil to do so.

268. [1339]

     As to the reliance placed by the Deiri Parties on the fact that Jamil accepted the loan offer for the Westpac #111 Loan Account, the Sayour Parties say that this involves an act said to have been undertaken by Jamil in February 2013 in the names of his mother and father. They say that the Deiri Parties do not suggest that it was a transaction that had any connection with the business or affairs of Plaza; and they maintain that it is not relevant. The Sayour Parties say that this is remote from the issues in this case, was not the subject of any pleading or particulars identifying it as a basis for finding that Jamil had authority to bind Plaza and was not the subject of any other form of notice before Moustafa was cross-examined on a document of which he had no memory. Indeed, they say that it is not surprising that Moustafa had no memory of it, because his signature is not on the document. It is noted that the signatures (at Ex 15 at p 287) are those of Jamil expressly acting under registered Power of Attorney for Moustafa and a signature purporting to be that of Fatima, which she gave unchallenged affidavit evidence was not her signature (see her affidavit sworn on 26 November 2019).

269. [1340]

     It is said that the Deiri Parties offered no evidence that these circumstances were known to Moustafa or Fatima; noting that they did not ask Fatima any question about this transaction and that Moustafa was asked only a few questions about it. The Sayour Parties point to the fact that Moustafa was shown (see at T 435) the loan application and denied that it bore his signature (which denial, they note, is plainly correct); that he was presented only with the application and loan offer; and that he did not remember borrowing the amount. It is said that a specific finding cannot be made from an absence of recollection. It is said that the Deiri Parties undertook no exposition or investigation in evidence of the circumstances.

270. [1341]

     As to the Deiri Parties’ submission that Jamil’s acceptance of this and an earlier loan for another purpose was evidence of Moustafa’s trust in Jamil “to manage financial matters” and that this was consistent with Jamil being trusted to run the business of Plaza generally, the Sayour Parties cavil with this.

271. [1342]

     It is noted that the stated purpose in the latter loan application was to purchase a property at Connells Point (see Ex 15 at p 294); that it was a home loan, not a business loan; and that, “rightly or wrongly”, Jamil executed an acceptance of the loan offer in the name of Moustafa pursuant to a Power of Attorney by placing his usual signature and identifying the Power of Attorney under which he was so acting. It is submitted that the exercise of a Power of Attorney to act on behalf of Moustafa in relation to a personal loan offered to Moustafa does not assist the Deiri Parties in their submission that Jamil therefore had authority to run Plaza’s business (and that it is fallacious to argue from the particular to the general, here citing David Hume).

272. [1343]

     Insofar as reference is made to the earlier loan in Moustafa’s name and it is submitted that, since Moustafa accepts he applied for that loan, there is no reason to doubt that Moustafa applied for both loans and authorised Jamil to do so, the Sayour Parties again say that this is a fallacious submission that conflates Moustafa’s application for a different loan (it is contended a business/investment loan for which he directly applied) with a personal loan applied for by Jamil nearly seven years later. It is submitted that there is no evidence that Jamil was involved at all in the application for the Westpac #980 Loan Account and that the two loans have no connection with each other, but for the fact that some funds from the partnership distributions were applied to repay them.

273. [1344]

     I accept the submissions made by the Sayour Parties in relation to this matter. I do not accept that the involvement of Jamil here has been established but, in any event, it does not relevantly assist in relation to the issue of his authority in relation to the Broadway Development.

274. [1345]

     The Deiri Parties point to the fact that, on 8 March 2013, Mr Turner of Westpac emailed Jamil referring to two new trust accounts being opened, that would be accessible through the online banking platform under the heading “Broadway Plaza Pty Ltd”. The Deiri Parties note that there is a letter addressed to Plaza identifying these two accounts in Plaza’s name as trust accounts for the Sayour Family Trust (and, I interpose to note, say that these appear to be the first bank accounts opened in Plaza’s name, rather than in the names of Moustafa and Jamil). It is noted that, on 11 March 2013, Mr Turner communicated further with Jamil, asking whether the Westpac #202 Account and the Westpac #238 Account could be closed.

275. [1346]

     As to the reliance placed by the Deiri Parties on the fact that Jamil operated internet banking accounts for Plaza (pointing also to the abode described email correspondence), the Sayour Parties point out that: Moustafa was not copied into that email correspondence; Moustafa was not in Australia in March 2013; there is no evidence to suggest that Moustafa knew that Jamil applied to or did set up new accounts, nor that Jamil had access to these bank accounts (let alone that Moustafa had knowledge sufficient to acquiesce in Jamil’s operation of them); and that Moustafa did not operate any accounts via internet banking.

276. [1347]

     Again, I accept the submissions of the Sayour Parties in this regard.

277. [1348]

     Next, reference is made to the 12 December 2011 meeting attended by Mr Bennett of CBA at Biomed’s offices (see at [198] above), following which, Jamil forwarded by email on the same day Biomed’s financial asset information and tax returns for 2009 and 2010. Relevantly, in cross-examination, Moustafa confirmed that he asked Jamil to prepare a list of assets and to provide it to CBA, and that he did not see Jamil’s email to CBA (see T 376.38-49).

278. [1349]

     The Deiri Parties say that it is therefore evident that Moustafa was happy for Jamil to communicate with CBA on his behalf, and on behalf of Biomed and Plaza; and that Moustafa also never apparently asked Jamil to see the communication he sent to CBA. It is said that Moustafa was obviously content for Jamil to handle the line of communication and trusted him to do so and it is noted that Jamil concluded the 12 December 2011 email by saying that if CBA required anything further then they should contact him (with no mention of Moustafa). It is said that this is consistent with Jamil having an important role in the family finances, and that it supports a finding that he was authorised to operate the business of Plaza.

279. [1350]

     As to the reliance placed by the Deiri Parties on the fact that Jamil provided financial information to CBA on behalf of Moustafa and Biomed, it is noted by the Sayour Parties that the evidence discloses simply that Jamil sent an email on behalf of his father, at his father’s request, responding to a request by Mr Bennett of CBA (who they note did not give evidence). It is noted that this was the email in which Jamil told Mr Bennett that Moustafa was the sole director of both Plaza and Biomed, and by implication that Jamil was not a director of either. It is said that nothing was asked of Jamil’s financial position and nothing was provided in relation thereto.

280. [1351]

     The Sayour Parties say that the fact that Moustafa charged his son with the task of following up on providing information to the CBA after Mr Bennett and Mr Jackson had met with him cannot lead to a conclusion that it was Jamil who was engaging with the CBA in relation to the loan applications (cf the Deiri Parties’ oral submissions).

281. [1352]

     Further, it is said that the Deiri Parties have impermissibly sought to rely on material from an unread affidavit of Mr Bennett from CBA. In any event, it is accepted that the fact that Moustafa met with Mr Bennett at a meeting at which Mr Bennett asked Moustafa to supply financial information about Moustafa was otherwise in evidence. It is said that “ferrying documents and information to a bank via a single email” is an administrative or ministerial task; that it connotes a very minor amount of authority; and that this incident establishes that Moustafa alone, as sole shareholder and director of Plaza, was the only person authorised to conduct its affairs.

282. [1353]

     I interpose to note that it is submitted that the CBA considered Jamil’s role to be so insignificant that the CBA staff did not attend to the correct spelling of his name. Pausing here, I record that I draw nothing as to the significance placed by CBA on Jamil’s role from what seems to me likely to be a typographical error from the person who prepared the internal bank document.

283. [1354]

     That aside, the Sayour Parties say that Moustafa’s unchallenged evidence was that Mr Bennett of the CBA met with him in a face to face meeting (see his affidavit sworn on 16 September 2019 at [204]-[212]); that CBA required Moustafa’s signature; and that when the Broadway Partnership had the opportunity to include Jamil as an authorised signatory on the account, that course was not taken (again referring to an email from Mr Deiri to Mr Malouf of 16 June 2012 at 8.45 am).

284. [1355]

     It is also noted that CBA required Moustafa’s personal guarantees (being the Deed of Guarantee granted by Moustafa of 20 February 2012 – see at [267] above; Deed of Guarantee granted by Biomed of 20 February 2012; Commercial Deed of Guarantee “purportedly” granted by Moustafa on 25 June 2013 see at [365] above; and the grant of a company charge by Biomed).

285. [1356]

     It is said that Jamil’s role as a “messenger” gave him no authority other than to be a “messenger”.

286. [1357]

     Again, I agree that Jamil’s involvement in the provision of financial information of Moustafa to CBA says little, if anything, about his authority in relation to the business of Plaza.

287. [1358]

     The Deiri Parties also place weight on the fact that there was no complaint by Moustafa as to the alleged failure to pay for the land for over five years on the basis it demonstrates that Moustafa was content to rely on Jamil to direct and oversee the payment, and to be the point of communication between Plaza and Investments about payments generally.

288. [1359]

     It is noted that Plaza claims that Investments was in default of obligations to make payments under the land contract and what it alleges was an associated loan for the purchase price as at 1 July 2012 (noting that the Second Broadway Cross-claim alleging a failure to pay the purchase price for the Broadway land was filed for the first time on 22 December 2017). It is said that this was the first time Plaza ever complained that it did not receive payments in respect of the land; and hence Plaza made no complaint about these sums said to be owed for approximately five and half years.

289. [1360]

     Similarly, it is noted that Moustafa made no complaint about the additional $2 million which Investments promised to pay on top of the $6 million specified in the contract of sale (again until the Second Broadway Cross-claim was filed on 22 December 2017).

290. [1361]

     It is said that, in the circumstances of that delay, the only inference to be drawn is that Moustafa knew that the $6 million in payments for the purchase price of the land and the additional $2 million had been made (and had no cause to complain). It is submitted that it is implausible that a businessperson in Moustafa’s position, expecting to receive a total of $8 million for this aspect of the transaction, would have made no enquiries and taken no steps to check that the money had been paid. It is noted that Moustafa gave evidence that Jamil informed him that $5 million had been paid. It is said that there is every reason to conclude that he would have enquired of the balance.

291. [1362]

     The Deiri Parties say that, even if and insofar as Moustafa did not enquire about the balance of the moneys that he expected to be paid, he left the matter for Jamil to sort out with Investments; and that, in giving Jamil that authority and responsibility, that again only supports the finding that Jamil was authorised to manage and run Plaza. It is said that this demonstrates the “absurdity and unreality” of the parties proceeding on some basis that Mr Deiri was required to communicate each instalment of the purchase price to Moustafa directly.

292. [1363]

     It is convenient to consider the submissions for the Sayour Parties, and my determination thereof, after considering the Deiri Parties’ submissions concerning Moustafa’s delay in complaint about non-receipt of partnership distributions.

293. [1364]

     The Deiri Parties also point to the fact that a number of payments were made from the CBA Partnership Account in payment of partnership distributions of the proceeds of the unit sales, the last of which was a payment of $250,000 on 5 January 2015; yet the first time Moustafa complained about not receiving any distributions was after Jamil’s death. It is noted that, on Moustafa’s evidence, the first time he raised any issue about Jamil and money being taken from accounts was in his affidavit sworn on 31 May 2019 (see at [155]-[157]).

294. [1365]

     It is said that Moustafa knew that partnership distributions were being made, because he banked two of the cheques himself; and, in those circumstances, the failure to raise any issue about distributions during this period of eleven months after the last was made suggests Moustafa knew that the distributions were being paid and that he left it to Jamil to direct where Investments was to pay the money. It is said that this further supports the finding that Jamil was entrusted with the authority and responsibility of running Plaza’s business, including the management of payments.

295. [1366]

     As to the submission that Moustafa did not complain of the alleged misappropriations, the Sayour Parties note that in these proceedings Moustafa complained in his first affidavit. It is said that it was not put to Moustafa in cross-examination that he had not complained previously. It is also said that Moustafa had “plenty on his plate” from the time Jamil fell ill (his cancer being diagnosed in mid-2014), “not least all the obfuscation that was thrown in his way after Jamil died, and the distraction of the litigation with Catharine [Ms Elliott, Jamil’s executor], who was being financed by Mr Deiri during that process”. I interpose to note that it is not clear that Mr Deiri was “financing” that litigation, as such – rather he gave evidence as to helping Catharine to get back on her feet, so to speak.

296. [1367]

     Similarly, in relation to the submission that Moustafa did not complain about the distribution payments for 11 months, it is noted that the uncontested evidence is that when Moustafa learned that $5 million was in Jamil’s accounts with Bank of Sydney he complained immediately (and that this became a source of contention between Moustafa, Mr Deiri and Ms Elliott). It is said that the hypothesis of a lack of complaint is knowledge. As to the 11 months from November 2014 to October 2015, it is noted that, in November 2014 to December 2015, Moustafa was worried about his son having stage 4 lung cancer.

297. [1368]

     The Sayour Parties say (and I can readily accept this) that it could not have been easy for Moustafa to function at that time. Pausing here, Moustafa appeared to me to be genuine in his expression of grief in the witness box (to the effect that his mind was blank at the time). The Sayour Parties also say (and, again, I agree) that it cannot seriously be suggested that Moustafa at that time knew or suspected the actual amounts of the distributions or that he knew “about all the money spinning around through the accounts”.

298. [1369]

     As noted, I accept that there seems to be no logical explanation for the series of payments that went through the respective accounts. While that does not of itself belie Moustafa having knowledge of the payments, there is certainly nothing to suggest that he did know about the payments at the time and it seems highly unlikely that he would have done nothing at the time had he in fact known about them, given the course he took when he did become aware of the moneys held in Jamil’s Bank of Sydney accounts after Jamil’s death.

299. [1370]

     The lack of complaint about the non-payment of partnership distributions or other amounts while Jamil was alive is explicable by reference to Moustafa leaving administrative matters largely in Jamil’s hands; meanwhile, after his death it is explicable by the delay occasioned in investigating the financial affairs and accounts in question. There seems no reason to doubt that, after Jamil’s death, it later became apparent that a large sum of money was in Jamil’s Bank of Sydney account(s) and Moustafa reacted to that discovery by making complaint to Mr Deiri.

300. [1371]

     At this juncture, I emphasise again that leaving Jamil with responsibility for administrative and such tasks over specific matters is quite a different proposition to Jamil having been left with unfettered authority to conduct the affairs and business of Plaza.

301. [1372]

     Finally, the Deiri Parties say that the fact that Moustafa allowed Jamil to be the point of communication with Mr Deiri in relation to the Arncliffe Development without involving himself in the business shows a consistent pattern of behaviour on the part of Moustafa of funding these businesses but “stepping back and allowing Jamil to run the projects as he thought appropriate”. It is said that, as a retired or semi-retired businessperson, Moustafa was in effect handing control over the family’s enterprises to his eldest and only son. The Deiri Parties say that the fact that Moustafa was willing to sit back in the Arncliffe Development and allow Jamil to run that project without any direct involvement makes it more likely that he did the same for the Broadway Development.

302. [1373]

     Meanwhile, the Sayour Parties say that this proposition relies wholly on submissions by the Deiri Parties to the effect that Moustafa was at all times aware of Sayour Holdings and its purpose and allowed Jamil to control the company. The Sayour Parties maintain that there is no evidence of this other than the consent forms signed by Moustafa in either 2013 or August 2014. They say that Moustafa’s awareness that the company existed and that he was a director of it does not translate to him ratifying or acquiescing to actions taken by Jamil. It is noted that Moustafa’s evidence was that he understood that Jamil was engaged in a venture with Mr Deiri and that Jamil had loan funding through his (recently divorced) accountant (Mr Marwan).

303. [1374]

     The Deiri Parties’ submission in this regard appears to be premised on Moustafa knowing of the incorporation of Sayour Holdings and the purpose of that company. In this regard, there is an inconsistency with the position taken by the Deiri Parties (although, as I understand it, this is in the alternative) in relation to the Arncliffe Proceedings.

304. [1375]

     The inconsistency I see is that, in relation to the Arncliffe Proceedings, the first key finding of fact for which the Deiri Parties contend is that Moustafa was aware of and agreed to be the sole director and shareholder of Sayour Holdings in December 2013 (cf the submissions that Moustafa did not consent to be a member or director of that company prior to, or at the time of, its registration).

305. [1376]

     Suffice it here to say that even if Moustafa knowingly allowed Jamil to run Sayour Holdings that would not (as I also considered in relation to Biomed) lead me to conclude that he did so in relation to Plaza.

306. [1377]

     With the preceding in mind, the Sayour Parties submit that the factual finding sought by the Deiri Parties here amounts to no more than the authority of a general manager (and hence that the subsidiary findings here sought by the Deiri Parties are not important).

307. [1378]

     It is noted that, in oral submissions, the Deiri Parties advanced this finding on two primary platforms: first, that Jamil was authorised to receive and direct payments pursuant to the Powers of Attorney (see at T 1532.28-30); and, second, that Moustafa “stood back” (see at T 1532.36) from the operation of both Plaza and Biomed and allowed Jamil to stand in his stead in the operation of both companies and to operate Biomed in all respects.

308. [1379]

     I have referred above to the submissions made by the Sayour Parties as to the significance of the grant of the various Powers of Attorney.

309. [1380]

     Insofar as the Deiri Parties contend that there was a “complete abdication” of Moustafa’s role, so that Jamil was elevated beyond a management role to a position of complete authority to act as principal, the Sayour Parties say that the Powers of Attorney do not assist the making of the finding here sought; but, rather, are an obstacle for it. In any event, they say that authority as a general manager: would not be a basis for entering into major financing commitments and drawings; would not authorise departures from the basis on which the principal had established the business (neither departures from the Stage 1 Construction Contract by variations, extensions and the like substantially affecting the price, nor the Stage 2 Construction Contract differing from the price agreed by the principal with further variations or the like); would not authorise direction of and receipts for payments in respect of the sale of Plaza’s land (a transaction that established the business, rather than merely for carrying it on) and nor to receive distributions of the fruits of the enterprise; and would not authorise the bypass of the procedures established by legal contracts entered into by his principal at the outset of the partnership. The Sayour Parties point out in this regard that a manager is not a plenipotentiary.

310. [1381]

     The Sayour Parties make the following submissions, in addition to the responses already noted above.

311. [1382]

     First, as to Jamil being the point of contact with Investments and CBA, the Sayour Parties accept that Jamil was authorised to be “a point of contact for routine matters” with Investments and to receive email correspondence. They also say that he was supposed to convey information to Moustafa. The Sayour Parties say that these things are consistent with the authority of a secretary or personal assistant and do not by themselves rise even to management authority. They say that there is no evidence that Jamil was authorised or made the point of contact with CBA. They accept that, after Moustafa’s meeting with CBA in early December 2011, Jamil sent his father’s financial details to Mr Bennett, but they say that this single email does not make good the proposition that he was a “point of contact” with CBA. It is noted that in this email Jamil pointed out to Mr Bennet that his father was the sole director of Biomed and the sole director of the Sayour Family Trust trading under Plaza (and hence that he, Jamil, was not a director).

312. [1383]

     Second, as to Jamil negotiating terms and agreements with Investments, the Sayour Parties submit that: an agent to negotiate is not a manager, nor authorised to conclude a contract; Jamil took it upon himself to negotiate in respect of the terms of entry into the Broadway Partnership and some terms of the land purchase with Investments, but he needed Moustafa’s approval for the final deal (and, consistent with the practice for sale of land in New South Wales, there was no deal until there was a binding contract in writing); Jamil was expressly authorised to negotiate leases for the shopping centre on behalf of the Broadway Partnership (and it is said that this fell within Plaza’s remit); with respect to concluded terms and the execution of agreements on behalf of Plaza other than retail leases and licences, Moustafa was the only person properly authorised (noting that with few exceptions – in particular, the Stage 2 Construction Contract and the second, third and fourth accommodation notices – all relevant formal instruments and authorities were either signed by Moustafa or were forgeries purportedly signed by Moustafa, and hence it is said that the author or authors of those simulations clearly recognised the need for Moustafa’s signature).

313. [1384]

     It is said that the Stage 2 Construction Contract (which was entered into without Moustafa’s knowledge or permission just days before he returned to Australia and which departed from the price he had agreed) was “concealed” from Moustafa by both Jamil and Mr Deiri and was “purportedly signed” on behalf of the partnership by Jamil using his own signature and the unauthorised title of “Development Manager” (a role which Plaza notes was, under the terms of the partnership, supposed to be fulfilled by Investments). The Sayour Parties say that Jamil was not appointed by the partnership to that role but, in any event, it was not within the authority of a manager to depart from the terms that had been negotiated by the partners for the Stage 2 Construction Contract. The Sayour Parties say that Moustafa’s signature was required on this contract and that there was no basis for increasing the price of $23.5 million agreed at the inception of the Broadway Partnership.

314. [1385]

     Third, as to Jamil managing Plaza’s finances and bank accounts, the Sayour Parties submit that a conclusion (which they do not appear to accept should be made in any event) that Jamil had such authority would not support the further conclusions that: Jamil was authorised to receive and direct the payments for land for which he failed to account; Jamil was authorised to sign draw down notices and approve contract terms, variations, extensions and the like that committed the Broadway Partnership and Plaza (to greater financial payment to the builder than had been approved by Moustafa) or to the particular payments by CBA and from the CBA Partnership Account that it is contended gave effect to and discharged these commitments or to the drawings for those payments on a finance facility secured against the Broadway Site; and Jamil was authorised to receive and direct the proceeds of partnership distributions for which he failed to account.

315. [1386]

     It is further submitted that a conclusion that Jamil did have authority to manage Plaza’s finances and bank accounts (even of a quite extensive nature) would not authorise Jamil to take money for himself. It is submitted that it “goes way beyond the scope of financial management for the manager to take money for himself” and it is said that it is clear that Mr Deiri knew that Jamil was doing that. Thus, it is said that the submission that Jamil was authorised to manage Plaza’s finances does not support a conclusion that he was authorised to receive or direct the payment of money at all; nor would such authority confer authority to receive it into an account in his own name, or otherwise than in clear funds to the credit of Plaza, nor to extend times for payment, give credit or the like.

316. [1387]

     Further, it is submitted that Jamil’s role in financial management was “self-aggrandising” (similar to Jamil having appointed himself, according to Mr Deiri, as “Development Manager”).

317. [1388]

     As to the submission based on ostensible authority (namely, that Plaza, by its acquiescence, held out Jamil to be authorised), the Sayour Parties note that acquiescence requires full knowledge of all material circumstances. The Sayour Parties say that the Deiri Parties had express written notice from Jamil himself through the emails sent to him of the following matters: Jamil using the Westpac #202 Account for his personal remuneration (describing it as “my account …” for the $10,000 per month payments); Jamil directing part of the land payments expressly to himself, distinguishing the destination of other payments; and Jamil authorising construction payments of which he knew his father would not approve.

318. [1389]

     It is noted that the Deiri Parties also believed (through Mr Deiri – that is, as Mr Deiri said in his oral evidence) that Jamil was using Sayour Family Trust funds to fund his involvement in the Arncliffe Development, which Mr Deiri says he believed was for the benefit of Jamil himself. The Sayour Parties say that Mr Deiri chose not to speak to Moustafa about these matters and had an interest in not bringing them to Moustafa’s attention; and that he cannot be heard to rely on acquiescence in matters that he ought fairly have brought to Moustafa’s attention, both because he was paying an agent and because his company was in partnership with Plaza, as well as because of the ordinary requirement of full knowledge.

319. [1390]

     The Sayour Parties submit that it follows that the Deiri Parties proceeded at their own risk in not complying strictly with the obligation of the debtor to seek out and pay the creditor and to obtain a valid receipt for payments to Plaza, and (at least so far as payments to the builder were concerned) in not obtaining formal certification and approval in accordance with the Stage 1 Construction Contract (and other such instruments).

320. [1391]

     It is submitted that it was not the case that Jamil had complete financial authority; that Jamil’s authority in respect of Biomed’s financial affairs was not authority in respect of Plaza; that Jamil was required to report in respect of the affairs of the partnership, and it was known that he was not reporting honestly; that Jamil was required to convey information, including bank statements, to the company accountant (see, for example, at T 509.41ff); and that Moustafa relied on accountants to prepare the tax returns of Plaza, and had done so ever since he came to Australia (due to his limited English and need for professional assistance with such matters) and it was part of Jamil’s role to communicate information to the accountants.

321. [1392]

     It is submitted that the Deiri Parties’ submission ignores the above matters, and overlooks the fact that the 2014 tax returns were signed on 9 November 2014, soon after the death of Jamil. It is further said that the submission that Moustafa had no coherent explanation for not reading the tax return is not correct. The Sayour Parties point out that Moustafa’s evidence was that he did not consider it an important event (see particularly at T 494.44); and they say that he had abilities but that he also had limitations and clearly relied heavily on assistance (see, for example, at T 510).

322. [1393]

     It is said by the Sayour Parties that it was apparent that, in connection with the purchase of parcels of the land commencing in 2008 (as to which, the chronology above), Moustafa did expect Jamil’s assistance in communicating directions to carry out transfers of funds from his own accounts in Lebanon (see, for example, at T 326.20ff).

323. [1394]

     In this regard, the Sayour Parties say that: particular authority, even where on more than one occasion, does not imply particular authority on other occasions, and particularly where those other occasions are considerably later in time and concern transactions of a quite different character; particular authority does not imply general authority; requests for assistance in communication do not imply general authority to make financial decisions; there is no suggestion that Jamil made any of the decisions to purchase the land, or about the prices or ultimate destinations of the purchase money nor that any of it was ultimately paid other than as directed by the vendors; it was not suggested that Jamil conducted the negotiations with the vendors; and it was not shown that funds being applied to pay the purchase money from Moustafa’s personal resources in Lebanon became funds of Plaza until the point at which they were applied to pay the vendors. Accordingly, it is said that Jamil’s involvement in these transactions does not imply any general authority to deal with funds of Plaza.

324. [1395]

     Fourth, as to Jamil directing Investments where (and how) to make payments and receiving payments on Plaza’s behalf, the Sayour Parties submit that: there is no evidence that Jamil was authorised by Plaza to direct Investments to make payments directly to him nor to receive such payments; authority to undertake particular acts does not imply authority to receive payment in connection with those acts (in this regard, it is said that the Deiri Parties’ submissions really assumes the thing that they are trying to prove); and, in respect of the transfers to Lebanon, Moustafa himself had communicated to Mr Deiri that he required $2 million to be paid to Lebanon (and, Jamil merely communicated the account details to the Deiri Parties).

325. [1396]

     Fifth, as to Jamil monitoring and making decisions about the construction, the Sayour Parties submit that monitoring was a day-to-day task which Jamil was authorised to undertake and that “making decisions” is a “loose term without specific content”. The Sayour Parties say that, if it is suggested that Jamil was authorised to alter the negotiated price, or steps that would affect that price, such as variations, extensions and the like, then the submission must be rejected.

326. [1397]

     Sixth, as to reviewing and approving expenses of the partnership including payments to Deicorp, the Sayour Parties submit that: Jamil was not authorised to approve expenses incurred in the progress of construction; Moustafa was relying on Mr Deiri for advice about the method and timing of payment for construction; and the November 2013 email (see particularly at [419] above) shows that Jamil understood that he was to report to his father about the cost of construction (and that Mr Deiri had written notice that Jamil was not doing this honestly).

327. [1398]

     In reply to the submission that Moustafa “stood back” (and had stood back for a while) from the operations of Plaza and from the operations of Biomed, and entrusted his son to run those operations for the respective companies and to stand in his stead, the Sayour Parties say that the effect of the finding contended for would be to place Jamil as the plenary agent of Plaza. They say that Moustafa did not abdicate to his son all responsibility for the operation of Plaza, including its participation in the Broadway Partnership, nor was Jamil authorised to act as “Development Manager”. It is said that Jamil understood that he was always answerable to Moustafa; and that Mr Deiri knew this. The Sayour Parties say that it is equally clear from the correspondence that Jamil was not fully and faithfully discharging this obligation (referring to the emails of May 2013 and November 2013 – see, for example, at [359]; [419] above).

328. [1399]

     The Sayour Parties say that the balance of the evidence showed that Moustafa was an active participant in the business of Plaza and in the formation of the partnership and commencement of the development. It is said that this involvement is revealed from: the constitution of the trust in 2008; his actions on behalf of Plaza to purchase land from 2008; his attendance at more than 20 project coordination meetings held at the offices of Deicorp; the consideration of construction tender documents which are addressed to him; his insistence on various aspects of the design of the centre (which the Sayour Parties say were a cause of some controversy, referring to the email dated 12 August 2013 from the real estate agent, Mr Bill Kannellopoulos to Jamil, Mr Deiri and others – see at [371] above); his execution of contacts, including for the sale of land to Investments; his participation in the opening of the partnership bank account and attendance on the CBA officers with respect to finance; and his giving of his personal guarantee in respect of the Stage 1 Construction Facility.

329. [1400]

     The Sayour Parties say that Moustafa’s case is that he trusted his son to assist him and this confidence was abused. They say that the Deiri Parties’ case is that Moustafa knew all about what was being done throughout (which it is said must involve a suggestion that Moustafa was dissimulating in his evidence). The Sayour Parties point to contemporaneous evidence (from the HWLE file and from Ex F) for the proposition that others who were dealing with Moustafa at the time regarded him as relatively simple and unsophisticated in respect of matters that were complex or outside his experience. They note that Moustafa referred in cross examination to his need for professional assistance in accounting and tax matters since he came to Australia, in part because of his limitations in the use of English.

330. [1401]

     The Sayour Parties say that Moustafa was wise enough to seek assistance but (and presumably they say this with hindsight having regard to the matters alleged in the present proceedings) not always wise in choosing how to seek it. It is submitted that one obvious example of this was in choosing a builder as his partner because he needed an experienced partner to guide him in the complexities of a development and construction project outside the scale of his experience; but, in doing so, leaving himself without protection in any question on which his partner’s interest conflicted with his own. It is said that, to engage his builder as his partner was not wise unless he had someone else to protect his interest; and to allow the builder also to be the contract superintendent was again not wise. It is submitted that Moustafa was plainly out of his depth.

331. [1402]

     The Sayour Parties ask that it be accepted that, in matters of documentary detail, Moustafa would generally look for assistance from an appropriate person. It is submitted that it is likely that such explanations as he received were succinct. It is further submitted that, in the case of opening bank accounts, it is likely that Jamil took this role and that it is likely that Jamil “was not too fastidious” in such explanations as he gave.

332. [1403]

     Pausing here, I have not separately included this in the list of factual rulings sought, but will deal with it here. While I accept that Moustafa may well have looked to Jamil to assist him in explaining documents or to fulfil administrative documentary tasks, I see no basis on which I could rule that Jamil “was not too fastidious” in the explanations that he gave in that regard. I see this as a separate issue to whether Jamil gave complete information as to matters such as the increase in construction costs or the like (and, where there is material in the documentary evidence that would support a conclusion that he may well have been prepared to put a gloss on what he told his father).

333. [1404]

     The Sayour Parties say (and, I agree) that it does not follow from the fact that Moustafa required assistance that he gave carte blanche to those who assisted him, including Jamil. The Sayour Parties caution against drawing an inference as to Moustafa’s full knowledge of transactions in which Moustafa was assisted by someone who is alleged to have betrayed his interest and, from that inferred knowledge, drawing an inference as to a carelessness on the part of Moustafa for his own interest (demonstrated by knowingly allowing the agent to prefer his own interests) and then, from this, drawing an inference to a general willingness by Moustafa to let the agent (Jamil) do as he pleased.

334. [1405]

     The Sayour Parties say that it is more likely – given the correspondence from Jamil admitting to deception, the many forgeries and the evident pattern of concealment – that Jamil was not openly and with his father’s consent taking the benefits complained of in these proceedings but, rather, was abusing the confidence of his father (I deal with this issue in due course).

335. [1406]

     As to the inference sought to be drawn of full knowledge, the Sayour Parties say that this cannot be drawn from a signature on, for example, an account opening form unless it is also demonstrated that Moustafa himself prepared the form, or that it was carefully explained to him, and that it had a continuing significance down to the time of the relevant transactions. They say that the difficulty for the Deiri Parties’ submission that Moustafa knew about the transactions is that the pattern of operations on these accounts in the relevant periods of time strongly indicates that Jamil was using them for his own benefit and misappropriating trust funds; and they maintain that this is confirmed by Mr Deiri’s acceptance that Jamil was recycling Plaza’s money into the Arncliffe Development with the intention of benefiting himself.

336. [1407]

     Thus, it is submitted that the suggested finding that Moustafa “knew of the bank accounts” does not go very far and that it lacks precision as to when and what Moustafa knew about these accounts. The Sayour Parties also point to the cross-examination of Moustafa on the respective accounts.

337. [1408]

     Pausing here, I note that [132]-[171] of the Fifth Broadway Cross-claim plead various matters concerning the establishment of Combined Projects Arncliffe and the initial stages of the Arncliffe Development. The Deicorp Entities say that this part of the pleading (though not directly relevant to any claims against them) identifies and acknowledges an important element that is relevant to an understanding and analysis of the claims by the Sayour family, both in the Broadway Proceedings and also the Arncliffe Proceedings – namely that it is acknowledged by Plaza in this portion of these pleadings that Jamil was more than a “mere” agent with limited authority; rather, in terms of beneficial interests, he was essentially a principal and the directing mind and will of Sayour Holdings (reference here being made to the Fifth Broadway Cross-claim at [134]­[137], [139] and [145]). The Deicorp Entities say that, although the factual circumstances of each of the respective developments were different, a consistent element was the “extensive involvement of Jamil with the apparent approval and authorisation of Plaza and Sayour Holdings, respectively”.

338. [1409]

     Plaza submits that the Powers of Attorney do not support the factual findings sought by the Deiri Parties. Rather, it is said that they demonstrate that Moustafa was prepared to let Jamil have some scope for action, but within constraints. It is submitted that this is consistent with Jamil’s own emails, namely that he was obliged to report to Moustafa, and with the evidence that Moustafa lacked the confidence to undertake this project until Mr Deiri came into it (and that he trusted Mr Deiri as his partner and a man of great experience in development and construction to protect his position and provide guidance).

339. [1410]

     I do not accept that Jamil was given sole authority to conduct the business of Plaza. However, I accept that he was given a level of authority and was held out as someone with whom Investments could deal on behalf of Plaza in some context.

340. [1411]

     More specifically, and taking into consideration all of the matters to which the respective parties have pointed (and the conclusions and findings set out above), my conclusion is that Moustafa did indeed permit (and thereby impliedly authorised) Jamil to manage the day-to-day activities and business of Plaza in relation to the Broadway Development. He was the principal point of contact for the project as between both Investments and CBA (not least, for example, noting that his email details were the contact point and it was he who was left to arrange administrative matters relating to payments and the like).

341. [1412]

     Nevertheless, I do not accept that the evidence establishes that Jamil was authorised to make decisions such as committing Plaza to the construction contracts, without reference to Moustafa (such matters being quite outside the scope of the day-to-day activities in relation to the Broadway Development). Nor do I accept that he was authorised to sign cheques on behalf of Plaza (leaving aside for the moment the issue as to the scope of the Powers of Attorney – see below) – this being inconsistent with the cheque signing authority. Though, I do consider, however, that the evidence establishes that Jamil was authorised to communicate with Mr Deiri and to give directions as to payment of moneys due to Plaza (subject to some further observations below).

342. [1413]

     The second key finding of fact which the Deiri Parties say should be made is that the Broadway Partnership was formed by no later than 29 November 2011, that being the date that Plaza changed its name from Sayour Investments to Plaza (which it is said was the last step in the process of a series of discussions culminating in an agreement as to how the venture would proceed).

343. [1414]

     The Deiri Parties rely upon various matters to support this factual finding, as follows. It is convenient first to consider each of those matters, before turning to consider the submissions of the Sayour Parties.

344. [1415]

     The first matter relied upon in support of this factual finding is that, on Moustafa’s evidence, he was having discussions with Jamil about a joint venture in about August 2011. In this contention, reference is here made to Moustafa’s affidavit sworn on 31 May 2019, in which (at [92]) Moustafa deposes that he had a conversation with Jamil (and it is said that it is clear from [90] of that affidavit, which refers to the time he became worried about construction costs, that he places the time of that conversation in about August 2011).

345. [1416]

     It is noted that Moustafa goes on to say (see at [95]) that he had a conversation with Jamil in which Jamil said: “Father, I’ve talked to Fouad and he says that he’s prepared to enter into a joint venture with us”. The Deiri Parties say that it is evident from the events (in [96] of the affidavit, referring to late August or September 2011) that Moustafa places this conversation with Jamil at around this time.

346. [1417]

     The next matter said to be of relevance is that there were no direct discussions between Moustafa and Mr Deiri concerning the formation of the Broadway Partnership.

347. [1418]

     It is noted that Mr Deiri has deposed that he did not have any conversations with Moustafa about the purchase price; and that all his dealings with Plaza were through Jamil in this respect.

348. [1419]

     The Deiri Parties say that, insofar as Moustafa (in his affidavit sworn on 31 May 2019 at [96]-[99]) has deposed to having had a conversation or conversations with Mr Deiri in August or September 2011 in relation to the price for the constructions works, that evidence should not be accepted.

349. [1420]

     Specifically, the Deiri Parties say that Moustafa’s evidence as to this conversation is inconsistent with the evidence Moustafa gave about his inexperience with constructions works of this scale (see Moustafa’s affidavit sworn on 31 May 2019 at [139]-[140], where inter alia he deposed that he did not know how much things really cost). It is submitted that it is unlikely (and, I accept that it is implausible) that, in light of Moustafa’s acknowledged inexperience in construction works, Moustafa would have had the knowledge at that stage to be able to negotiate the cost price of individual apartments from $160,000 per unit to $153,000 per unit on the basis that it was “fairer”.

350. [1421]

     Similarly, it is said by the Deiri Parties that the notion that Mr Deiri, as a result of Moustafa’s comments, spontaneously offered a price of $40 million is not credible; on the basis that a construction contract of this scale has many complex variables which require careful estimation. I interpose to observe that that may or may not be the case – it might, for example, depend on what consideration Mr Deiri had given by that stage to the construction costs (and I note that there was a feasibility document date stamped August 2011 which suggests that he had indeed given some consideration to construction costs by this time). However, it is not necessary to explore this issue further. I accept that the notion that Moustafa was in a position to negotiate “fair” construction prices at that stage seems unlikely and I would regard Mr Deiri’s evidence as the more plausible on that issue. I make it clear that I do not reach that conclusion on the basis of any view as to the credibility of Moustafa as a witness (cf the Deiri Parties’ submission on this issue).

351. [1422]

     The next matter relied upon by the Deiri Parties as showing that the Broadway Partnership had formed by the end of November 2011 was that, on 10 October 2011, Investments paid the $400,000 deposit towards the purchase price of the Broadway Site (this being a reference to the cheque drawn payable to “Micheal [sic] Sayour”, said by Mr Deiri to be at Jamil’s request – see at [149] in the above chronology).

352. [1423]

     Mr Deiri gave evidence that, by this stage, Deicorp had already embarked on the design process and incurred significant costs, and he did not see a risk paying the deposit prior to executing the contract of sale. The Deiri Parties say that the commitment to purchase an interest in the Broadway Site indicates the transition to a partnership.

353. [1424]

     A further matter said to demonstrate that the Broadway Partnership was formed by the end of November 2011 is said to be the execution on 3 November 2011 of documents for the purposes of the joint purchase of the Matthews Street Property (see at [163] in the above chronology). The Deiri Parties say that this was with the aim of using that property for Broadway construction purposes. As noted in the chronology (see at [171] above), on 2 December 2011, Matthews Street Co entered into a contract for sale of land with the vendor of the Matthews Street Property.

354. [1425]

     The Deiri Parties also rely upon the email correspondence in November 2011 regarding the $10,000 payments that they say Investments agreed to pay in respect of Jamil’s leasing work as further supporting the fact that the Broadway Partnership had formed by the end of November 2011 (see at [159] above). (Pausing here, the characterisation of those payments as payments in respect of “leasing work” is moot, as to which I say more in due course.)

355. [1426]

     It is said that, by 18 November 2011, Mr Deiri’s understanding was that there was a partnership. It is noted that the $10,000 payments themselves commenced from the end of November 2011 (the first of the payments being made to the Westpac #202 Account on 30 November 2011 – again, see at [162] above). Reference is also made to Mr Deiri’s email of 29 February 2012 to Landerer solicitors (see at [272] above) indicating that Mr Deiri’s understanding was that the partnership had formed in November 2011.

356. [1427]

     The Deiri Parties say that, by November 2011, the parties were simply dealing with formal documentation insofar as the sale of the interest in the Broadway Site was concerned. It is said that they had already agreed to form a partnership, and the parties did not put their partnership agreement in writing. The Deiri Parties say this is evident from the communications with Mr Elias Stephen of HWLE during the period 23 to 25 November 2011 (see at [172]ff above).

357. [1428]

     Next, it is noted that Investments was registered on 25 November 2011 (see at [193] above). It is said by the Deiri Parties that this was only for the purpose of the Broadway Partnership.

358. [1429]

     Next, it is noted that Plaza changed its name from Sayour Investments to Broadway Plaza on 29 November 2011 (see at [193] above).

359. [1430]

     Furthermore, various other matters said to show that the parties were in a partnership prior to the registration of the partnership on the Australian Business Register on 18 January 2012 (see at [222] above) are as follows. First, the 9 December 2011 email from Mr Deiri to Mr Bennett of CBA, copied to Jamil, organising a meeting with the bank, in which reference is made to Jamil as “my JV partner” (see at [197] above). Second, that Moustafa deposed that when he met with CBA in December 2011 he understood that “Fouad was not just my partner, but he was also the builder” (see affidavit references at [198] above) (relied upon as indicating that, in Moustafa’s understanding as at December 2011, there was a partnership by that time). Third, that the parties were using partnership letterhead from at least 21 December 2011 (referring to the letter of that date to CBA that Mr Deiri emailed to Mr Bennett, copied to Jamil – see at [253] above). Fourth, that on 22 December 2011, a bank account was opened with CBA as a partnership bank account (see the account opening form – and, see at [208] above). Fifth, that Investments and Plaza, on 27 December 2011, executed the contract of sale for the Broadway Site (see at [215] above). Last, that CBA emailed Mr Deiri, on 4 January 2012, and referred to the new bank account in the name of Investments and Plaza (Ex 15 at pp 149-151 – and, see at [210] above).

360. [1431]

     The Broadway Partnership was registered in the Australian Business Register on 18 January 2012, as noted in the letters dated 28 February 2012 from the Registrar of the Register.

361. [1432]

     In reply to the Deiri Parties’ submissions as to this contested factual finding (i.e., that the partnership or joint venture between Plaza and Investments commenced no later than 29 November 2011 – see also at T 1557.1), Plaza submits that it is not necessary to resolve this question. Insofar as it might be suggested that it could affect the characterisation of the $10,000 per month payments if those were commenced after the formation of the, Plaza says that the commencement date is of no significance to that for the following reasons.

362. [1433]

     First, Plaza says that, even on the case that the Broadway Partnership commenced before the first payment of $10,000 on 30 November 2011, there is no doubt that the agreement to pay Jamil was made before the suggested date of commencement of the partnership.

363. [1434]

     Second, Plaza says that suggesting an early date for commencement of the Broadway Partnership does not mean that there were not still questions open between Plaza and Mr Deiri or his companies after that time, noting that: the contract for sale of land had yet to be entered into; the additional handwritten notes of 27 December 2011 had not yet been agreed and executed; and other matters were raised (including subsequent building contracts, variations, extension, financing arrangements and the like) after the commencement of the Broadway Partnership.

364. [1435]

     Third, Plaza says that it is no answer to say that, in carrying out leasing responsibilities (and assuming, for present purposes, that this was in fact the reason for the payments), Jamil was carrying out Plaza’s responsibilities. The Sayour Parties maintain that Deicorp Constructions was, at the instigation of Mr Deiri, secretly paying their agent (Jamil) remuneration for work that he was doing that was Plaza’s work. They say that there was no agreement or request that Plaza be paid for this by the partnership; and that it was not paid for by the partnership (nor has it been brought into the partnership accounts as an expense); rather, they say it was paid for by Deicorp without disclosure to the principal.

365. [1436]

     Plaza submits that to say that money was paid to the principal because it was paid to the principal’s agent is inconsistent with the proposition that a third party is not entitled to rely on the agent to tell the principal about the arrangement (citing Grant v Gold Exploration and Development Syndicate Ltd [1900] 1 QB 233 (Grant v Gold Exploration and Development Syndicate) at 249-250 per [Collins LJ, with whom Smith and Vaughan Williams LJJ agreed]; Logicrose Ltd v Southend United FC [1988] 1 WLR 1256 (Logicrose v Southend United Football Club) at 1262 per [Millett J] (as his Lordship then was); Sydney Water Corporation v Makucha [2010] NSWSC 114 (SWC v Makucha) at [60] per White J (as his Honour then was)). Plaza maintains that Mr Deiri was not entitled to pay secret rewards to Plaza’s agent without telling the principal directly (and not merely through Jamil); and that is so irrespective of any supposed agreement with Deicorp Constructions to remunerate Plaza for work that Plaza had agreed to perform for the Broadway Partnership. Nor, it is said, does it matter whether Plaza agreed with Investments to do this work for a fee, for any other consideration or for free.

366. [1437]

     In the event (which is contested) that there is some relevance to this contested factual finding, the Sayour Parties make the following submissions.

367. [1438]

     First, they say that the admissions made by Investments (see at [1] and [7] of its defence and amended defence to the fifth cross-claim (verified by Mr Deiri)) that, from about 27 December 2011 until about 26 September 2016, Plaza and Investments operated in partnership (see the Fifth Broaway Cross-claim at [3]) and that, at or about the same time as the contract of sale, Plaza agreed to enter into the Broadway Partnership (alleged at [3]) with Investments to develop the property (see the Fifth Broaway Cross-claim at [20]) stand in the way of this contested factual finding.

368. [1439]

     The Sayour Parties say that the last step in the process of forming the Broadway Partnership was not the change of name from Sayour Investments to Plaza, nor was it the application for a bank account at CBA. They say that the first step of partnership, which bound Plaza and Investments, was the introduction of the land as a result of the (conceptually) antecedent step of entry into the contract for the sale which would give Investments a 50% share. They say that, before that step, the arrangement was merely a proposal from which either Plaza or Investments could have withdrawn but that, after that step, the partners were bound to each other as co-owners of the land held for partnership purposes (and that basis ensured that Deicorp would be the only builder considered to undertake the works proposed as they had agreed in the terms of their partnership association).

369. [1440]

     The Sayour Parties say that an “agreement to proceed” is not the recognised indicator by which the existence of a partnership is determined (referring to s 1 of the Partnership Act, which defines a partnership as “the relation which exists between persons carrying on a business in common with a view of profit”). It is noted that the rules for determination of the existence of a partnership, set out in s 2 of the Partnership Act, provide that even common ownership of property does not alone determine the existence of a partnership. The Sayour Parties say that the commencement of business established by the transfer by Plaza of a half-share in its land and the commitment to definite steps to prosecute the development venture, including the building contract and finance facility, are what show an intention by Plaza and Investments to carry on business in common with a view to profit.

370. [1441]

     The Sayour Parties say that the correspondence between Mr Deiri and HWLE, and the correspondence from HWLE to the partners of 21 December 2011, show that the negotiation of terms and commitment to binding instruments was still “in play” at that stage. The Sayour Parties note that, on or around 27 December 2011, the terms were further revised by hand written instruments and they say that it was not until that point that the terms could be considered settled (noting that even then the contract of sale was still to be completed).

371. [1442]

     Further, it is said that an agreement between Mr Deiri and Jamil (a “mere agent” of Plaza with a limited Power of Attorney) makes this proposition even less likely. It is noted that, on Mr Deiri’s contemporaneous account, even the change of name required agreement by Moustafa, insofar as Mr Deiri sent a note to Jamil asking, “can you get your father to sign forms…” (see Ex 15 at p 133).

372. [1443]

     Insofar as the Deiri Parties’ submissions suggest that the formation of the Matthews Street Co structure is probative of the commencement date for the Broadway Partnership, the Sayour Parties note that the documents to which reference is made are the Matthews Street Unit Trust Deed and documents to establish the trustee company, on which Moustafa’s signature is not a genuine signature (which documents the Sayour Parties say were forgeries).

373. [1444]

     Insofar as the suggestion is that the execution of those documents on 3 November 2011 was a step in anticipation of the Broadway Partnership, the Sayour Parties seem to accept that the evidence suggests that Mr Deiri regarded the Matthews Street Property (though not as an asset of or directly involved in the Broadway Partnership) as being connected incidentally with the partnership. However, they note that Mr Deiri could not remember how forged Moustafa signatures came to be on the constituent documents for the Matthews Street structure on the same day that his signature came to be on the same documents.

374. [1445]

     The Sayour Parties say that, far from demonstrating that the partnership was formed at an early date, the “fraudulent erection of the Matthews Street structure” shows that Moustafa was being “surreptitiously sidelined” from an early stage. They say that steps of which Moustafa was kept ignorant cannot be used to demonstrate his participation and do not support any contention as to the date on which the Broadway Partnership commenced.

375. [1446]

     I accept that the contemporaneous documents indicate that, by November 2011, Mr Deiri regarded the arrangements then contemplated by the respective parties as amounting to a partnership arrangement or joint venture of some kind. The communications Mr Deiri had with HWLE and with CBA make that clear insofar as there is reference in the latter to Jamil as a “JV partner” and there is reference in the former to an agreement of that kind. Moreover, the relatively contemporaneous correspondence with Landerer solicitors in February 2012 confirms this. Nor do I consider that much weight should be placed on the admission in the pleading of a partnership from “about” 27 December 2011. The qualification “about” may hide a multitude of sins, so to speak.

376. [1447]

     That said, if this contested factual finding is intended as a finding as to the date at which a binding partnership agreement was concluded then I would have some difficulty accepting that this was at any time before the arrangements by which the Deiri interests were to acquire an interest in the Broadway Site had been finalised (irrespective of the fact that this was after the payment of a sum that was characterised as made in good faith in advance and treated as the deposit for the land). That is because, up until then, I consider that it would have been difficult for the Sayour interests to have asserted that there was any breach of a partnership agreement had Mr Deiri or the Deiri interests then chosen not to proceed with the arrangement (or that there would have been any liability had the parties been unable, ultimately, to agree the terms of their partnership agreement – oral, as it turned out to be).

377. [1448]

     With all this said, I agree with the Sayour Parties that nothing really turns on the precise time at which a binding partnership agreement came into existence. Were it necessary to determine that issue, I would have concluded that it was at the time that the arrangements for the purchase of a half share in the Broadway Site were concluded – which was when the contract was executed on 27 December 2011 (see at [215] of the above chronology).

378. [1449]

     The fact that steps were taken in anticipation of the partnership arrangements being concluded (such as the opening of the CBA Partnership Account) is not, in my opinion, inconsistent with such a conclusion (nor does the incorporation or registration at a slightly earlier date of Investments as a step taken in anticipation of the partnership arrangement proceeding affect my conclusion). The Matthews Street Property arrangements are problematic in a different sense because there is the issue as to who was intended to be the purchaser; but in any event the proposition that there was an intention at that time that it might be used in connection with the construction of the Broadway Development in some way does not mean that there was already by then a binding partnership agreement or partnership. It, too, is readily explicable as a step taken in anticipation of such an arrangement being concluded.

379. [1450]

     The third key factual finding for which the Deiri Parties contend is that there was no agreement that Investments and Plaza would each pay an additional $2 million for excavation works (as Plaza contends); rather, the Deiri Parties maintain that the arrangement was that the entirety of the excavation work on the Broadway Site was to be funded by the CBA facilities. In this regard, the Deiri Parties say the following.

380. [1451]

     First, that there is no documentary evidence referring to an agreement that each of the partners would contribute an additional $2 million for excavation (noting also that Mr Deiri denies that there was any such agreement). Further, it is said that there is no evidence at all of any contribution by Plaza of $2 million for construction.

381. [1452]

     Second, that Plaza’s contention is contrary to the respective construction contracts and tenders for Stage 1 of the Broadway Development. It is noted that the initial contract, signed on 28 September 2011, between Plaza and Deicorp Constructions (see at [142] above) expressly incorporated the tender submission dated 26 September 2011 by Deicorp Constructions, which in its terms provided that excavation work was part of the construction price and included the statement, “[w]e have allowed for the complete Bulk Excavation and Detailed Excavation”. It is further noted that the replacement contract on 8 February 2012 (entered into this time between Deicorp, Plaza and Investments – see at [240] above), which was also signed by Moustafa, incorporated the replacement Deicorp tender of 7 February 2012. It is noted that the tender itself was also accepted by a letter signed by Moustafa.

382. [1453]

     Third, it is said that Plaza’s claim about excavation costs is contrary to the terms and conditions for the CBA facilities, which made clear that the excavation works were to be funded by the bank loans, and not by the partners as contributions, referring to the CBA Approved Commercial Terms and Conditions for the project which were signed by Moustafa on 24 January 2012) (see at [224] above).

383. [1454]

     The Deiri Parties draw from this that: CBA was proposing to fund $5.5 million for Tranche A of the Stage 1 Loan specifically for the purposes of excavation and early works; and the client contributions listed in the table included acquisition costs of approximately $12 million, representing the value of the land that Investments and Plaza purchased. It is noted that there was no amount specified under partner contributions for construction costs. It is submitted that, if each of the partners was to contribute costs towards the construction (for excavation), that figure would have been identified in the approved terms.

384. [1455]

     It is noted that Moustafa has admitted signing the CBA Commercial Approved Terms and Conditions. The Deiri Parties say that Moustafa must have known that CBA was funding the excavation (referring to Moustafa’s evidence in cross-examination on this point) but that, even if Moustafa did not read the CBA Commercial Approved Terms and Conditions, the very fact that there was no provision in the document for contribution by the partners towards excavation costs is evidence of what both CBA and Investments understood to be the arrangement. Thus, it is said, the contemporaneous documents do not accord with Moustafa’s uncorroborated assertions.

385. [1456]

     Fourth, the Deiri Parties refer to earlier discussions about contributions. Insofar as Plaza relies (as being consistent with an agreement for each partner to contribute $2 million towards excavation) on the email dated 16 September 2011 from Mr Deiri to Jamil (see above at [127]), which attached the August 2011 retail feasibility figures, the Deiri Parties say: one, that it shows that the parties had thought from the beginning, up until shortly before that email, that “no additional funds” in contributions would be required and that the relevant financier would fund the construction; and, two, that the email was referring to the fact that, as at 16 September 2011, additional partner contributions were thought to be required because a valuation did not come in as high as expected (and, therefore, the financier would not provide all of the funding that they had hoped). It is said that the need for additional contributions that was discussed was entirely to do with the limitations on funding and that the email provides no evidence that those discussions about further contributions had to do with excavation.

386. [1457]

     Moreover, it is noted that, at this early stage in September 2011, there were also discussions with Westpac on foot about financing the development. Mr Deiri explained that the feasibility summary in relation to costs was sent to Westpac in September 2011 (i.e., before CBA was approached to fund the project in December 2011 – see at [197]ff in the chronology above). The Deiri Parties note that an email from Mr Stephen (it will be recalled, of HWLE) to Mr Deiri and others on 23 November 2011 about the contract for sale still referred to Westpac as the financier of the development.

387. [1458]

     As such, it is said that, whatever limitations on funding Westpac or other financiers may have stipulated (which might have resulted in discussions about additional partnership contributions in September 2011), that does not demonstrate that those discussions continued to have any relevance to the funding ultimately agreed with CBA. It is submitted that, even if there were earlier discussions about potential contributions at some earlier time, the cash facility and construction tender referred to above demonstrate what the parties ultimately agreed. The position of the Deiri Parties is therefore that there is no evidence that the 16 September 2011 email had anything to do with an agreement that each of the partners would contribute $2 million in excavation costs.

388. [1459]

     The Deiri Parties further submit that Moustafa’s evidence as to a conversation in mid-2011 with Mr Deiri in relation to excavation costs should not be accepted.

389. [1460]

     The Deiri Parties point to Mr Deiri’s evidence that Jamil told him that the Sayours had incurred expenses in relation to the demolition of structures on the Broadway Site and other costs; and that he agreed to pay a discrete additional sum of $2 million on top of the $6 million purchase price. Mr Deiri says that the $2 million had nothing to do with a contribution for excavation. The Deiri Parties say that Moustafa’s evidence is clearly wrong in light of the documents referred to above and they submit that Mr Deiri would never have said that it was not necessary to borrow money for the excavation from the bank (since that is precisely what he signed up to do). Further, as noted above, the Deiri Parties say there is no evidence that Plaza ever contributed a share of $2 million (as Moustafa alleges was the arrangement).

390. [1461]

     The Deiri Parties also note that, when Moustafa was questioned in cross-examination about the Approved Commercial Terms and Conditions that he signed, he admitted reading the document (but not all of it). It is noted that Moustafa claimed he did not read the figures in the summary on page 2; said he did not understand all of it; and said, “because I have my builder with me as a partnership, I left everything for him” (see at T 382.40-41).

391. [1462]

     It is submitted that, while Mr Deiri may have facilitated the loans from CBA (and provided the brand and credibility to obtain the loans), it is not credible to suggest that an experienced businessperson such as Moustafa paid no regard at all to the essential figures of what was to be loaned and for what purpose. It is noted that Moustafa accepted in cross-examination that this was a substantial project for him which involved him putting his entire wealth on the line, so to speak, as security; and that, in the course of cross-examination, Moustafa emphasised that he trusted Mr Deiri (see, for example, at T 383).

392. [1463]

     The Deiri Parties accept that Moustafa may have trusted Mr Deiri’s experience in the construction industry but say that the evidence Moustafa gave that he took no interest in the structure of the borrowing, how it was organised and what it was for, is implausible and should not be accepted.

393. [1464]

     It is noted that, when Moustafa’s assertion that he did not understand the relevant parts of the Approved Commercial Terms and Conditions was tested under cross-examination, he denied understanding basic words of the English language (the use of which it is said he must have encountered as a businessperson operating in Australia for 30 years), some of which he used in his own affidavits (such as “acquisition”, “total acquisition cost”, “client contribution” – though he then clarified that he understood the words “client” and “contributed” – see at T 383.4ff). It is said that Moustafa’s response was that he did not read anything, was not told anything, and just signed the document.

394. [1465]

     I here note that Moustafa was taken to [33] of his affidavit sworn on 8 November 2019 (written in English and not, on its face, it would appear, translated to him at the time) which contained the statement that, “It is my belief that the majority of the [moneys[ that were allegedly contributed by Jamil to CP Arncliffe were moneys that were misappropriated by Jamil”.

395. [1466]

     In this context, the Deiri Parties emphasise Moustafa’s denial of knowing what “client contribution” meant, despite accepting that he knew what “client” meant, knowing that the clients referred to Plaza and Investments and despite understanding the use of the word “contributed” in a sentence in his own affidavit (in this regard, I note also other aspects of the cross-examination on this issue, much of which it is here unnecessary to excerpt).

396. [1467]

     It is noted that, when it was pointed out to Moustafa in cross-examination that the CBA Approved Commercial Terms and Conditions provided for CBA to fund the excavation works, Moustafa’s explanation (said to be “incoherent”) was that Mr Deiri had suggested that the contract price would be $44 million, not $40 million, and had said that the additional cost was due to excavation (see, for example, at T 389.3ff).

397. [1468]

     Again, the Deiri Parties say that Moustafa’s evidence is not plausible. Further, it is noted that Moustafa made no mention of there being an agreement that each partner would contribute $2 million for excavation costs in his earlier affidavit sworn on 27 October 2016 (the only reference in that affidavit about excavation being that Investments would procure excavation – nothing about who would pay for it).

398. [1469]

     It is submitted that, in light of the contemporaneous documents, Moustafa’s insistence of an entire conversation with Mr Deiri about each party paying $2 million for excavation was invented, was not truthful evidence and bears poorly on his credibility generally. It is submitted that, at best, Moustafa is confused about the purpose of the $2 million but, in either case, it should not be found that there was an agreement that Plaza and Investments were each to pay $2 million for excavation costs.

399. [1470]

     As to the reliance placed by Plaza on Ex A (that being a paragraph, specifically [34], of a previous unread affidavit of Mr Deiri sworn on 2 November 2016), in which Mr Deiri had deposed that:

400. [1471]

     The Deiri Parties say that there is no acceptance or admission by Mr Deiri in the passage of his earlier (unread though here relied upon by Plaza) affidavit that Investments agreed that it would pay for the excavation. They say that, merely because Investments was to “procure” the excavation, does not necessarily say anything about who was to pay for it. It is submitted that the plain and ordinary meaning of the word “procure” (about which Mr Deiri was not questioned) is to obtain or bring about something (or to “obtain (something), especially with care or effort”). Further, it is noted that the word “procure” was not used by Mr Deiri; it was used by Moustafa in his affidavit (Mr Deiri simply referring to the summary and deposing that it reflected his understanding).

401. [1472]

     It is submitted that it is not fair or realistic for the Sayour Parties to “latch upon” the word “procure” in another person’s affidavit (particularly an affidavit prepared early in the proceedings and for the purposes of an interlocutory application) and impute to Mr Deiri that he meant that Investments had agreed to contribute $2 million for excavation costs. It is, again, noted that Moustafa’s affidavit made no mention of any such matter and that it is contrary to what Moustafa said was the arrangement (in that he said the partners were each to contribute $4 million). It is submitted that the notion that Investments was to pay for the excavation is inconsistent with Moustafa’s own account of what was supposedly agreed.

402. [1473]

     Last, insofar as Plaza submits that Mr Deiri has not called any of his advisers to corroborate his denial that funding the excavation was on his mind and part of his bargain and that his evidence “should be weighed in that light”, the Deiri Parties say that, insofar as this is a suggestion that a Jones v Dunkel inference should be drawn, that submission would need to be articulated openly and with precision so that it was capable of a proper response. In this connection, it is noted that there is not even an identification of who those advisors are. In any event, it is said that the submission would be equally applicable to Plaza, noting that Moustafa has not called any of his advisors to show that Investments paying for excavation was on his mind as part of the bargain.

403. [1474]

     Thus, the Deiri Parties submit that Ex A is of no assistance and that the most probative evidence on this question is the contemporaneous documentary material (all of which it is said is at odds with Moustafa’s evidence on this point).

404. [1475]

     As to the contested factual finding that there was no separate amount agreed of $2 million for excavation works, the Sayour Parties’ response commences by pointing to Mr Deiri’s “rather exceptional tone” in denying this arrangement (at T 1046).

405. [1476]

     Pausing here, I must observe that I did not form the impression that Mr Deiri was speaking in an “exceptional” tone at this point in his (and I made no such note of this at the time).

406. [1477]

     The Sayour Parties further say that the submission that the excavation work was to be entirely funded from the CBA loan facility would give no content to the obligation of Investments to procure the excavation works. I interpose to observe that this, of course, assumes that there was an obligation to procure the said works and that it includes the payment of the costs.

407. [1478]

     Insofar as one of the matters to which the Deiri Parties point is the lack of written documentation on the subject matter, the Sayour Parties say that the lack of documentation on the partnership agreement between Investments and Plaza is consistent with the instructions that Mr Deiri gave to his (and Investments’) lawyers on 23 November 2011 as reflected in the note made by Mr Stephen in his email of his date (see at [185] above) as to the relationship being one of “trust and handshake”.

408. [1479]

     It is not disputed that the terms of the partnership remained a parol agreement. The Sayour Parties say that the paragraph of the previous (unread) affidavit of Mr Deiri sworn on 2 November 2016 (again, Ex A) admitted both the obligation of Investments to procure the excavation works and that that obligation was a term of the partnership.

409. [1480]

     As to the finding that should be made in respect of the precise content of that parol agreement (as to which the Sayour Parties accept that ordinarily a measure of caution would be exercised), the Sayour Parties emphasise that it was admitted that it was a term of the partnership agreement that Investments should procure this work and they say that it is Plaza which here may be deprived of the benefit and effect of an admitted contractual promise.

410. [1481]

     As to the admitted term, the Sayour Parties say that Mr Deiri's account on this topic is inconsistent. Specifically, it is noted that, initially, Mr Deiri admitted that Investments was to procure the excavation work (again, see Ex A at [34]) but that Investments now takes issue with the word “procure” and distinguishes between procuring something and paying for it. The Sayour Parties say that the ordinary meaning of “procure” in respect of goods or services is to cause it to be obtained and provided to, or as agreed with, the promise; and, in respect of an event, it means to cause the event to happen. They say that, considered in either way, it is meaningless if this term adds nothing to an agreement by the partners to prosecute a development business that necessarily involved this work. It is submitted that it would be like saying that the partners had to pay for Jamil’s services in working on leasing, or for Mr Deiri’s services in arranging finance.

411. [1482]

     The Sayour Parties say that a promise to procure would normally entail that the promisee is entitled to insist that the promised thing be provided without payment or performance of consideration beyond the performance of the other terms of the contract.

412. [1483]

     The Sayour Parties say that Mr Deiri had at least three years to clarify what he meant when he admitted to this allegation; and that he “offers essentially no exposition or evidence of the factual circumstances of this promise”, having called no evidence from the solicitors who were taking his instructions at the time to corroborate his position and having objected to the tender of certain file notes they produced (see at T 1060.40).

413. [1484]

     The Sayour Parties say that the position of Mr Deiri now is, in effect, that the term meant nothing. They say to the contrary, that the term is a promise by one partner to the other that, as a term of their partnership association, the promisor would procure for the partners the excavation work.

414. [1485]

     The Sayour Parties submit that this promise cannot be seen in any other way than that it was a thing of substance; and they contend that it should be seen as Mr Deiri’s contribution and part of the agreed cost of Investments’ entry into the Broadway Partnership. It is noted that Plaza had, by December 2011: negotiated for and purchased the land; consolidated the title (see Moustafa’s affidavit sworn on 31 May 2019 at [40]ff); attended to demolition (see his affidavit at [46]); applied for a development consent to conduct earthworks (see his affidavit at [107]); and commenced negotiations with Woolworths as the proposed anchor tenant (see also, for example, the email at Ex 15 at p 35). Thus, it is said that Plaza had incurred significant costs prior to the partnership.

415. [1486]

     Further, it is said that Plaza did not have to proceed with Mr Deiri and Deicorp; that Moustafa was ready to go back to a simpler project; and that both Mr Deiri and Jamil were keen to persuade Moustafa to continue with the project. Indeed, the Sayour Parties say that, “Mr Deiri was so keen that he commenced making secret payments to Jamil as well as making what he himself says was a $400,000 payment to show good faith without getting so much as a receipt for it”.

416. [1487]

     It is noted that the handwritten documents recorded additional terms favourable to Plaza that were negotiated at the last moment on or around 27 December 2011. From this, the Sayour Parties assert that the Deiri Parties were “keen to get Plaza across the line”. The Sayour Parties say that, in those circumstances, it strains belief that the parties did not agree that this promise was a substantial element of the terms for entry into the Broadway Partnership and that Plaza agreed to little more than half the value of its land for making this opportunity available.

417. [1488]

     Again, the Sayour Parties say that Mr Deiri’s evidence in regard to the excavation works is inconsistent with Ex A and should not be accepted; and that his explanation that the additional $2 million that Investments paid to Plaza had nothing to do with the contribution to excavation costs is not corroborated.

418. [1489]

     As to the inclusion of excavation works in the tender, the Sayour Parties submit that this is not contrary to Plaza’s claim. They say that the parties’ respective contribution towards the excavation works was a term of the partnership between Plaza and Investments, not a term of the construction contract; and that it is not disputed that Deicorp was to do that work. They say that it is therefore not surprising that Deicorp’s tender of February 2012 (see at [234] in the above chronology), addressed to Jamil, would contain a description of that work, just as the earlier pre-partnership contract of September 2011 had done.

419. [1490]

     It is noted that arrangements for construction finance had already gone through a change of bank and a quantity surveyor’s report to Westpac, the benefit of which was then transferred to CBA. The Sayour Parties say that it was not necessary to alter the terms of the proposed construction contract except as to parties, when the agreement was a term of the Broadway Partnership, rather than a term of the construction contract(s).

420. [1491]

     For these reasons, the Sayour Parties maintain that the inclusion of the cost of the excavation works in the CBA Facility Agreement is not contrary to Plaza’s claim. They emphasise that, on Moustafa’s account of the conversation (see his affidavit sworn on 31 May 2019 at [106]); Mr Deiri said that they did not then have to borrow money from the bank; and, rather, could use their own funds at that time and then borrow from the bank when development approval had been obtained and that, “[y]ou put in 2 million now and when that is used up, I will put in 2 million. We will put on the contract [of sale land] 6 million dollars. After the project finishes, we can get this money back”.

421. [1492]

     At the outset I note that an admission or acknowledgment as to the state of the parties’ rights (say, whether they are bound by a particular agreement, as contemplated in Sasson v Fahevu [1999] NSWCA 400 at [31], [32], [33], [34] per Beazley JA (as her Excellency then was)) may involve an admission as to matters of mixed law and fact; and that there is a dispute as to whether such admissions are admissible in evidence (see Pitcher v Langford (1991) 23 NSWLR 142 at 160 per Handley JA and the authorities there cited of the discussion in Cross on Evidence as to admissions as to matters such as breaches of duty of care or the like (see Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 at [66]-[71] per Gummow J, with whom McHugh J (at [40]) and Gleeson CJ (at [25]) agreed, for example). Moreover, in Film Bars Pty Ltd v Pacific Film Investments Pty Ltd (1979) 1 BPR 9251 (at 9255-9256), McLelland J (as his Honour then was) in the context of considering the force of subsequent communications as an admission by conduct (of the existence or non-existence of a subsisting contract) noted that such admissions of a fact relevant to that issue will usually vary inversely with the quantity of the available direct evidence of the matter in question.

422. [1493]

     As an initial matter, I do not regard the statement in Mr Deiri’s unread affidavit as an unequivocal admission that there was an agreement by him to pay $2 million in construction costs over and above the amounts provided in the contract for sale and the additional $2 million agreed at the time of entry into the sale. This is not least because, as the Deiri Parties here submit, there seem many possible meanings of what Mr Deiri there said, including whether “procure” was intended to mean only to organise the works (so to speak) or, instead, to fund them. Moreover, since the affidavit was not read in Mr Deiri’s case, all the service of the affidavit shows in my opinion is that, at that particular stage, Mr Deiri had deposed to the fact of what was there confirmed. It would be necessary to test the understanding or belief of Mr Deiri on which that affidavit was sworn at the time.

423. [1494]

     It has been said that admissions made otherwise than in the formal course of proceedings, have merely an evidentiary significance and that the “admitting” party is entitled to dispute the accuracy of the “admission” by evidence that it was made by mistake or misunderstanding or indeed that it is otherwise inaccurate or unreliable (see Nominal Defendant v Gabriel (2007) 71 NSWLR 150; [2007] NSWCA 52 at [113], [144] per Campbell JA, Hodgson JA agreeing).

424. [1495]

     Furthermore, I consider that weight should be placed on the contemporaneous signed documents and other documents; and that it is inconsistent with those documents that the excavation costs were not to be borne from the construction facility. Those documents included, but are not necessarily limited to, the following. First, I note the respective construction contracts and tenders for Stage 1 and the initial contract (signed on 28 September 2011 and between Plaza and Deicorp Constructions), which expressly incorporated the tender submission dated 26 September 2011 by Deicorp Constructions, which in its terms (did provide that excavation works were part of the construction price (including the statement, “[w]e have allowed for the complete Bulk Excavation and Detailed Excavation”). Second, there is also the replacement contract on 8 February 2012, also signed by Moustafa, which incorporated the replacement Deicorp tender of 7 February 2012. Third, the CBA facilities, and particularly the CBA Approved Commercial Terms and Conditions (signed by Moustafa on 24 January 2012), which made clear that the excavation works were to be funded by the bank loans.

425. [1496]

     Accordingly, I make the factual finding here sought, on the balance of probabilities, that there was no agreement that Investments and Plaza would each pay an additional $2 million for excavation works.

426. [1497]

     The fourth key factual finding sought by the Deiri Parties is that Deiri Nominees contributed moneys totalling 50% of the purchase price and deposit by way of payment to Plaza, or alternatively to Jamil, for the purpose of the purchase of the Matthews Street Property. It is said that Plaza has not established that only its funds, or indeed only Biomed’s funds, were used to purchase the Matthews Street Property. It is said that this is wholly determinative of any relief sought by Plaza over the Matthews Street Property.

427. [1498]

     In his affidavit sworn on 22 August 2019, Mr Deiri sets out (at [83]-[95]) his account of the background leading up to the purchase of the Matthews Street Property (see the chronology of events set out above). The Deiri Parties say that Deiri Nominees contributed 50% of the purchase price (which was $590,000) and deposit (which was $59,000) (see, for example, Mr Deiri’s affidavit sworn on 10 November 2019 at [15], [20]-[23]). Mr Deiri has deposed that he drew a cheque for $29,500, which was 50% of the deposit (see, for example, Mr Deiri’s affidavit sworn on 10 November 2019 at [15]). As noted, settlement was in April 2012 (see at [279] above). According to Mr Deiri, a cheque was drawn on a Deiri Nominees bank account in the sum of $266,700 (being half of the balance of the purchase price) and given to Jamil (see, for example, Mr Deiri’s affidavit sworn on 10 November 2019 at [22]). It is not disputed that bank statements show that this amount was deducted from Deiri Nominees’ bank account on 4 April 2012 (the day of settlement) and deposited into Jamil’s Bank of Sydney #414 Account on the same day.

428. [1499]

     The Deiri Parties accept that it is not clear on the evidence whether the bank cheques used to pay for the settlement were sourced from the funds paid by Deiri Nominees. I interpose to note that this is an admission that the Sayour Parties say means that the Deiri Parties have failed to prove their case that Investments or Deiri Nominees contributed to the purchase money; whereas the Deiri Parties say that, equally, Plaza cannot show that its funds were used to fund some or all of the purchase price.

429. [1500]

     The Deiri Parties also accept that it may be (as Plaza asserts) that some of Biomed’s funds were used to purchase 50% of the Matthews Street Property, but they say that this affords no basis for the relief sought by Plaza in these proceedings (noting that Biomed is not a party to the proceedings so that whether or not it might have a claim is immaterial). In any event, they say that any relief would go no further than a 50% interest in the property or Matthews Street Co, because Plaza and Biomed cannot trace more than 50% of their funds into moneys used to purchase the property (and that Plaza has not attempted to do so).

430. [1501]

     In this context, it is submitted by the Deiri Parties that the Sayour Parties have not identified any basis or legal principle which would entitle Plaza to the relief it seeks (and that even if, as he claims, Moustafa asked Jamil to purchase the Matthews Street Property in the name of Plaza, the fact that ultimately Jamil did not do so offers no basis for the relief sought by Plaza).

431. [1502]

     The Deiri Parties therefore say that: Matthews Street Co is the registered proprietor of the property; each of Deiri Nominees and Plaza is a 50% shareholder of that company; and there is no basis for the company’s title as registered proprietor to be disturbed or for a trust to be declared over any part of the Matthews Street Property or of Matthews Street Co.

432. [1503]

     Meanwhile, the Sayour Parties note that the only evidence of the 4 April 2012 payment is Jamil’s bank statement and a Deiri Nominees cheque; and that no written communication about this payment or its purpose was put into evidence. Indeed, the Sayour Parties say that no explanation was given as to why it was not paid into the control of Matthews Street Co, by subscription for units, loan or otherwise. In that regard, it is noted that the applications subscribing for units in the unit trust state subscription amounts of $60 each. The Sayour Parties ask, rhetorically, why such a structure would be established if the required capital funds were not put through that structure.

433. [1504]

     The Sayour Parties say that it is clear that the bank cheques used to pay for the settlement were not sourced from the payment made by Deiri Nominees to Jamil. It is noted that the bank cheques presented to the vendor, in accordance with the settlement sheet, are numbered sequentially from 158744 to 158754. The purchaser’s solicitor’s correspondence to Jamil, providing cheque directions, bears a handwritten figure of “531,360.42” (which equates to the sum of items 7 to 17 in the cheque directions). The Sayour Parties point out that items 1 to 6 in the cheque directions are noted “personal cheque”; and that these six cheques were drawn on the Biomed account and signed by Jamil (who was an authorised signatory on that account).

434. [1505]

     The Sayour Parties say that the bank cheques presented to the vendor were paid for from a term deposit account (ending #760) at the Bank of Sydney and maintained in the name of Jamil. In that regard, they refer to the two-page Bank of Sydney form entitled “Term Deposit Withdrawal/Change/Additional Deposit”, which is dated 4 April 2012 (the date of settlement of the purchase of the Matthews Street Property) and is signed by Jamil. It is noted that the form requests the disbursement of funds held on the Bank of Sydney term deposit account (again, ending #760) in the sum of $531,360.42 – the precise sum for the 11 bank cheques (again, items 7 to 17) requested by the purchaser’s solicitor in the cheque directions given by facsimile transmission dated 3 April 2012.

435. [1506]

     It is noted that, on the second page of the form, the instructions given for the disbursement of funds show that bank cheques #744 to #754 were to be purchased. It is further noted that the account opening form shows that the term deposit was applied for by Jamil on or about 4 January 2012, with an instruction to establish the deposit in the sum of $800,000 by debiting the Bank of Sydney #414 Account.

436. [1507]

     The Sayour Parties therefore say that the source of the funds used to open the said term deposit (#760) was the Bank of Sydney #414 Account; and that the proximate source of those funds was an earlier deposit, made on 5 August 2011, of $956,097.30 from another of Jamil’s accounts at the Bank of Sydney (the Bank of Sydney #1931 Account – the bank statement for which shows a corresponding withdrawal on 8 August 2011). The Sayour Parties submit that it is likely that these funds came from Biomed or Moustafa, noting that in the period 2008 to 2011, Jamil had no substantial funds of his own (referring to the uncontradicted evidence of Moustafa and to Mr Deiri’s evidence in cross-examination at T 324.35; T 325. 48). I interpose to note that the Sayour Parties also say that, as late as November 2011, Jamil was “interested in taking $10,000 per month from Deicorp whilst still working for his father and not telling him” and that this is characterisable as not the actions of a wealthy man (it is said also that Jamil’s emails in 2012 pressing for prompt payment reinforce that conclusion).

437. [1508]

     The Sayour Parties point out that Jamil did not assert any personal claim to the funds so contributed and, so far as he was involved, the only interest of the Sayour family in the Matthews Street Property was through Plaza. It is said that it was also the intention of Moustafa that the Sayour family interest be through Plaza, here pointing to the original instruction to his solicitor to purchase in the name of Sayour Investments (the previous name of Plaza) and which was printed into the original form of contract that was drawn (but then crossed out).

438. [1509]

     Thus, the Sayour Parties say that this evidence shows, contrary to the Deiri Parties’ submission, that the funds which were paid to the vendor for the Matthews Street Property were not the funds identified by the Deiri Parties (and that the Deiri Parties in fact contributed nothing to the balance of the purchase money).

439. [1510]

     Following, the Sayour Parties contend that the funds actually applied to pay the balance of purchase money at completion were Sayour family funds contributed on behalf of Plaza and not, as the Deiri Parties submit, co-contributed funds.

440. [1511]

     As to the Deiri Parties’ submission that there is no basis or legal principle relied upon which would entitle Plaza to the relief sought with respect to the Matthews Street Property, the Sayour Parties note that the relief claimed by them includes a declaration of trust and an order for the transfer of that property to Plaza, or alternatively a vesting order.

441. [1512]

     It is said that the consequence of the actions taken by Jamil and Mr Deiri are that the intended purchase on trust fails, leaving a resulting trust in favour of Plaza and Deiri Nominees in the shares as to 95% and 5%, respectively.

442. [1513]

     In this context, reference is made to Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060 (Black Uhlans) per Campbell J, as his Honour then was, at [129]-[130] (noted in Tonna v Mendonca [2019] NSWSC 1849 (Tonna v Mendonca)). The Sayour Parties say that the third of the situations there identified by his Honour (i.e., where one person provides the purchase price for property which is conveyed into the name of another person) is that which gives rise to the presumption of a resulting trust in the present case. As noted above, it is said that the original contract proposed by the purchaser shows that the sale was intended to be to Sayour Investments; and reference is made to Moustafa’s evidence that settlement occurred while he was overseas and that Jamil had reported to him that settlement had taken place in April 2012 (see T 373.25).

443. [1514]

     It is noted that, when the presumption of a resulting trust arises, the burden falls on the party disputing the existence of a resulting trust to rebut the presumed fact on the balance of probabilities (see Tonna v Mendonca at [465], citing Ryan v Ryan [2012] NSWSC 636 at [57]; Weige v Cupton Pty Ltd [2012] NSWCA 414 at [46]).

444. [1515]

     The Sayour Parties say that the Deiri Parties have conceded that the evidence does not affirmatively establish that any funds they paid to Jamil (apart from half of the deposit) were actually used to pay the purchase money and the Sayour Parties maintain that they have established that the rest of the purchase money was contributed on behalf of Plaza.

445. [1516]

     The Sayour Parties also say that it was Plaza who engaged Mr Naef to carry out the conveyance and for Jamil to attend to organising cheques for payment of the purchase price and point out that the Deiri Parties do not submit that either Investments or the Broadway Partnership had appointed Jamil as agent to carry out those tasks. The Sayour Parties say that Jamil’s intervention on behalf of Deiri Nominees was to apply funds for half of the deposit required to exchange contracts on the property; and that Plaza and Moustafa had no knowledge of this having occurred. It is said that Jamil’s knowledge cannot be imparted to Plaza or Moustafa in circumstances where he was in receipt of bribes (again noting that the very day he applied Deiri Nominees funds to fund half the deposit of the property, he received his first monthly $10,000 payment, having previously received $400,000).

446. [1517]

     The Sayour Parties say that the Deiri Parties have failed to rebut the presumption of a resulting trust in respect of the Matthews Street Property.

447. [1518]

     Finally, it is noted that Moustafa expressly denied any knowledge that the Matthews Street Property was “purchased by a company which was 50% owned by Plaza … and 50% owned by a company in which Mr Deiri had an interest” (see T 373.44-49), and it is said that this was never his intention, nor was it Plaza’s intention.

448. [1519]

     The finding here contended for is, as noted above, that Deiri Nominees contributed moneys totalling 50% of the purchase price and deposit by way of payments to Plaza or alternatively to Jamil for the purchase of the Matthews Street Property.

449. [1520]

     The evidence establishes in my opinion that the bank cheques provided on settlement were drawn from funds out of a term deposit (in the amount of $800,000) in Jamil’s name at the Bank of Sydney. The term deposit had been applied for on 4 January 2012 by debiting Jamil’s Bank of Sydney #414 Account.

450. [1521]

     I accept that the likely source of the funds in the Bank of Sydney #414 Account was an earlier deposit from a different Bank of Sydney account (the Bank of Sydney #1931 Account). Indeed, what appears is that moneys from Jamil’s Bank of Sydney #414 Account were transferred in January 2012 to the term deposit, and that term deposit was then used to draw the bank cheques for the purchase.

451. [1522]

     However, critically, on the same day, a sum of $266,700 was deposited into the Bank of Sydney #414 Account from an account held by Deiri Nominees; and that amount is half of the balance of the purchase price due on settlement.

452. [1523]

     If the payment from Deiri Nominees was related to the settlement of the purchase price then there was payment to Jamil from Deiri Nominees in reimbursement of, or contribution for, a half share of the purchase price. There is no documentation that directly links the two payments such that (arguably) this remains an assumption or conjecture. However, Mr Deiri’s evidence that this represented the Deiri Interests’ half share of the balance of the purchase price is consistent with the fact that the payment is of precisely that amount.

453. [1524]

     I find, on the balance of probabilities, that the original intention of Plaza, through Moustafa, was that the property was to be acquired in its name. That seems to be the only explanation for the draft contract showing “Sayour Investments” as the purchaser. Furthermore, in the absence of knowledge by Moustafa as to Matthews Street Co being substituted as purchaser, it is difficult to see how Sayour Holdings agreement to “substitute” a new purchaser would be said to have been authorised by Moustafa.

454. [1525]

     I have referred above to the principles in relation to the imposition of a resulting trust, where the contribution to the purchase price does not reflect the legal ownership. As to the purchase price, it is clear that of the deposit, a contribution of 5% (i.e., half) came from Deiri Nominees and the balance from Jamil’s account. On the basis that it seems otherwise highly coincidental that an exact amount of half the balance of the purchase price was paid by Deiri Nominees to Jamil at that time for anything else, I have concluded on the balance of probabilities that the contribution was equally by Jamil and Deiri Nominees.

455. [1526]

     I accept that the intention of Moustafa (and through him, Plaza) was to purchase the property in Plaza’s name but, insofar as a resulting trust claim is concerned, it has not been shown that moneys contributed were to the purchase price by Plaza or Biomed.

456. [1527]

     Therefore, while I accept that the circumstances would establish a resulting trust it is not the one for which the Sayour Parties here contend, in all the circumstances, if the holding of shares in Matthews Street Co equally as between Deiri Nominees and Sayour Holdings is maintained, then there may as a practical matter be no need for any relief on the resulting trust issue.

457. [1528]

     The next factual finding for which the Deiri Parties contend is that there was no comparable competitor quote for construction and a joint venture; and that the Dyldam quote (see at [141] in the above chronology) that was received was never in serious contemplation.

458. [1529]

     It will be recalled that, in the Fifth Broadway Cross-Claim, Plaza alleges: that Dyldam offered a cheaper construction price than Deicorp; that Jamil did not disclose this to Moustafa; and that “bribes” paid by Investments induced Jamil to refrain from disclosing the Dyldam quote.

459. [1530]

     The Deiri Parties say, referring to the email on 19 September 2011 from Jamil to Mr Deiri (which referred to a better quote from another “reputable company” – see at [130] above), that it should be inferred that, on or around 15 September 2011 and prior to 18 September 2011, Jamil had requested Dyldam to provide a quote for the construction of the Broadway Development.

460. [1531]

     I interpose to note that I would draw that inference from the communications between Jamil and Mr Fayad (to which reference has been made in the chronology of events set out earlier (see at [129]ff).

461. [1532]

     More specifically, the Deiri Parties say that in the 19 September 2011 email what Jamil was telling Mr Deiri was that he had received a quote for construction of $55 million (which he asserted was lower than Deicorp’s indicated cost of $62.4 million) and that the developer was willing to enter a joint venture with Plaza. The Deiri Parties say that this was not true, in that Jamil had not by then received any quote from Dyldam nor had Jamil by then received any confirmation that Dyldam would agree to a joint venture. Again, I interpose to note that I agree with this submission.

462. [1533]

     As to the quote, insofar as the email was conveying that there was a written quote, there is no documentary evidence of any such quote (and even, as at 23 September 2011, Mr Fayad was seeking more time to provide one – see at [134] above). As to a proposed joint venture, it was only on 26 September 2011 that Mr Fayad replied on that topic, and even then he did not confirm Dyldam would commit to a joint venture, he simply said a deal would need to be worked out (again, see at [136] above). The Deiri Parties also note that when Jamil ultimately received the quote from Dyldam, the quote was not for $55 million – it was for $59.7 million (again, see at [141] above).

463. [1534]

     The Deiri Parties thus maintain that there was no true competing quote for construction and a joint venture. They make the following specific submissions as to this issue.

464. [1535]

     First, they say that it is unlikely that Jamil had any intention of considering a different builder; rather, they submit it is more likely that Jamil was attempting to negotiate a lower price for construction. It is noted that Jamil did not wait to receive the quote from Dyldam before making these representations, and that he had by then been in discussions and had attended coordination meetings with Mr Deiri for almost a year.

465. [1536]

     Second, that Jamil was not induced to accept the Deicorp offer (and to refrain from disclosing the Dyldam offer to Moustafa); rather, that Jamil had “attempted to drive a hard bargain with Mr Deiri, by lying to him” (which the Deiri Parties say backfired, having regard to Mr Deiri’s evidence that he told Jamil in effect to “take it or leave it”).

466. [1537]

     Third, that there was no comparable quote because Dyldam had not confirmed it would proceed with a joint venture; rather, the Dyldam quote was predicated only it Dyldam being the builder. The Deiri Parties say that this is significant because Moustafa could not proceed with the project on his own. It is said that Moustafa was not able to finance a project of this size to pay the Dyldam construction price and therefore that a joint venture was critical for the project to proceed at all.

467. [1538]

     Fourth, that the quote was subject to contract. It is said that Plaza bears the onus of proving loss caused by Investments and that it has not proven that Dyldam would actually have proceeded with a construction contract on the terms and at the price it quoted. It is noted that Plaza called no-one from Dyldam to make good the counterfactual it has postulated (i.e., of a joint venture with Dyldam as the builder and joint venture partner) nor did Moustafa give evidence as to what he would have done had he been shown the Dyldam quote. In this connection, reference is made to Gore v Montague Mining Pty Ltd [2000] FCA 1214, where causation was not established because it could not there be concluded that the venture in that case would have proceeded. The Deiri Parties say that, here, there is similarly insufficient evidence to conclude what would have happened had Jamil shown the Dyldam quote to Moustafa.

468. [1539]

     Fifth, that Plaza has not established that the Dyldam quote actually proposed a more favourable offer than Deicorp Constructions. In particular, it is said that: the Dyldam quote did not include any costs for excavation (noting that, if the $3,067,477 allowed in the Deicorp tender for excavation costs is removed from the Deicorp’s total tender price of $63.5 million, then Deicorp (and Deicorp Constructions) tender price would be $60,432,523 – very close to the Dyldam quote); the Dyldam quote only covered the “shell” of the shopping centre, which was not a limitation of the Deicorp Constructions tender; and the Dyldam quote did not break down the construction cost as the Deicorp/Deicorp Constructions tenders did. It is said that there is therefore no way of scrutinising the accuracy or reliability of the quote Dyldam submitted, nor of comparing the extent to which contingencies were considered.

469. [1540]

     As to this contended factual finding, the Sayour Parties say that the evidence supports the conclusion that Dyldam was interested in submitting a quote and that a comparison shows that its quote was competitive. Further, they say that equity presumes that Deicorp Constructions profited therefrom (citing Burdick v Garrick (1870) LR 5 Ch App 233 at 243 per Giffard J; Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298 at 367-369 [2003] NSWCA 10 per Heydon JA, as his Honour then was (Harris v Digital Pulse)) and that the quote is therefore significant.

470. [1541]

     Insofar as reference is made by the Sayour Parties to Harris v Digital Pulse for the proposition that equity presumes a profit, the Deicorp Entities and Deicorp Properties say that (at 367-369), Heydon JA (as his Honour then was), with whom Spigelman CJ largely agreed, was referring to the presumption that profit is derived (as in the ordinary course of trade) from access to moneys improperly obtained in breach of trust or in breach of fiduciary duty, thus justifying an award of interest on a compounding basis. It is said by the Deicorp Entities (and Deicorp Properties) that the authorities do not support the conclusion that a profit is presumed; and that the Sayour Parties bear the onus of establishing the quantum of their asserted relief, whether by way of equitable compensation or an account of profits. Furthermore, this aspect of Sayour Parties’ submissions is criticised as an incomplete submission, including because it fails to recognise that the Sayour Parties had the opportunity to lead expert evidence on the topic of reasonable building costs, but chose not to do so.

471. [1542]

     The evidence does not establish that, as at the relevant point in time, Jamil had any actual competing quote (let alone one that was under serious consideration).

472. [1543]

     It seems to me clear that what Jamil was trying to do (as it turned out unsuccessfully – perhaps due to the obvious disparity in commercial experience between the two) was to negotiate with Mr Deiri a lower price for construction (just as he had told his father in August that he would do) by representing to Mr Deiri that he had obtained a competing quote. True it is that Jamil then did obtain a Dyldam quote; and I accept Moustafa’s evidence that Jamil did not disclose it to Moustafa. However, the Dyldam quote was not a comparable quote in the sense of one that was on all fours with the Deicorp tender (as the Deicorp Entities submit). Indeed, a significant point of distinction was that it did not involve a joint venture. I also accept the difficulty of assessing the accuracy or reliability of the Dyldam quote.

473. [1544]

     The significance of this issue, as will become apparent in due course, is principally whether the non-disclosure of the existence of the Dyldam quote should be treated as some kind of conduct induced by the alleged bribes and, if so, whether there is a relevant assumption as to the profit that would have been obtained as a result, which is relevant to the allegations of bribery (again, discussed below in due course).

474. [1545]

     For present purposes, simply addressing the factual finding that has here been sought, I find that there was no comparable competing quote for the construction works (or, indeed, for a joint venture) as at the time that the Stage 1 Construction Contract was signed. Furthermore, I consider it doubtful (if that be relevant) that Jamil was seriously considering the Dyldam quote as a competing quote in any event (which seems to me the most likely explanation for the fact that Jamil did not defer acceptance of the Deicorp tender in order to progress consideration of the Dyldam quote).

475. [1546]

     The next factual finding sought by the Deiri Parties is that the payments of $10,000 by Investments per month were not bribes paid to Jamil but, rather, were payments to Plaza. Leaving aside, for the moment, the principles concerning bribery on which the Sayour Parties rely and to which I refer in due course, the Deiri Parties dispute the character of the payments as payments made to Jamil personally (i.e., for his benefit alone). The Deiri Parties say that the payments were part of the overall partnership arrangements (which they say were negotiated in their entirety by Jamil on behalf of Plaza).

476. [1547]

     The Deiri Parties say that it was as part of the overall partnership arrangements that Investments agreed to pay $10,000 monthly until the contract for sale settled, referring to the email sent by Mr Deiri to his internal accountant on 18 November 2011 (see above at [159]).

477. [1548]

     It is said that, in effect, Investments agreed to compensate Plaza for the leasing work it was performing while Plaza was out of its money for the purchase price until June 2012. The Deiri Parties contend that, although the Broadway Partnership had already been formed by then (though see my finding as to factual finding #1), the purchase price had not yet been paid at the time the monthly payments commenced on 30 November 2011. It is said that it was not Jamil personally who was responsible for leasing; it was Plaza; and that, in carrying out leasing responsibilities, Jamil was carrying out Plaza’s responsibilities. The Deiri Parties say that the compensation makes commercial sense given that, under the terms of the partnership, Plaza was responsible for leasing and it needed to carry out those responsibilities before the settlement was secured.

478. [1549]

     The Deiri Parties point to examples of the work Jamil was carrying out in respect of leasing tasks by reference to an email sent by Jamil to Mr Hammond and CBA on 24 April 2012 in which Jamil set out a lengthy status update on the progress of his endeavours to secure tenants for the Broadway shopping centre.

479. [1550]

     Further, the Deiri Parties emphasise that all nine of the $10,000 payments were paid into the Westpac #202 Account (which was in the name of Moustafa and Jamil), in accordance it is said with Jamil’s email instructions. It is noted that the Westpac #202 Account was designated as a trust account for the Sayour Family Trust (of which Plaza was the trustee). The Deiri Parties say that Moustafa knew about that account and empowered Jamil to operate it; and that Plaza had no bank account of its own. The Deiri Parties say that the payments were thereby paid in fact to Plaza and that Moustafa should be taken to know of the $10,000 payments.

480. [1551]

     Insofar as the Sayour Parties place weight on the description by Jamil in his 18 November 2011 email to Mr Deiri of the Westpac #202 Account as “my” account for monthly payment (as showing that Mr Deiri knew that the account was for Jamil’s personal benefit), the Deiri Parties refer to the email as it appeared in full (see above at [157]), noting that it included that the account name was “M & J Sayour”. The Deiri Parties submit that this contradicts the suggestion that Mr Deiri would have read the email and assumed the Westpac #202 Account was for Jamil’s personal benefit only. The Deiri Parties say that the focus on the words “my account” (again, my emphasis), to suggest that Jamil conveyed it was for his exclusive benefit, fails to take into account the context of the transaction and ordinary human uses of language. It is noted that Jamil was Moustafa’s son, and it is said that Mr Deiri associated them together as one family unit (emphasising his evidence that he had been told that dealing with one was like dealing with the other and that Jamil had been held out as running Plaza’s side of the business). It is submitted that the fact that Jamil identified a bank account in his and his father’s joint names could only have reaffirmed that the payment was not for Jamil’s exclusive benefit, but for Plaza’s benefit.

481. [1552]

     The Deiri Parties say that, in circumstances where Jamil had approached Mr Deiri, Jamil drove the project from Plaza’s side and Jamil was the primary point of contact for Plaza, it is only natural that Jamil would refer to accounts or even the project itself as “his”. It is also noted that Yesmine gave evidence that, between 2011 and 2015, she heard Jamil, when speaking to business partners, friends or family in relation to the Broadway shopping centre, say things such as “[i]t’s my centre”, “[i]t belongs to me” and “[t]he shopping centre is mine”. The Deiri Parties say that, in this context, the words “my account” do not necessarily imply exclusive legal ownership. It is said that common sense and experience show that, in the real world, people do not use precise language to differentiate themselves from the corporate entities with which they are associated.

482. [1553]

     The same point is made in response to the Sayour Parties’ submission about Mr Deiri’s email to Ms Lou (it will be recalled, the internal Deicorp accountant) of 18 November 2011 (in which Mr Deiri said “can you please set Jamil up in our system to ensure that he receives his payment at the end of each month” – see at [159] above); that is, that common sense about the way people speak undercuts the suggestion that, by the use of this language, Mr Deiri was intending in this context to mean Jamil strictly in the personal sense.

483. [1554]

     The Deiri Parties say that nothing can be drawn from the fact that the parties may have referred to each other individually, rather than by their corporate names. Again, it is submitted that this is natural and consistent with the agreement being between Investments and Plaza. It is noted that, at the time the arrangement was agreed (around mid-November 2011), Investments was not yet registered and Plaza had not yet been renamed. It is submitted that, as a matter of “commercial reality”, the partners were operating through people and that what is ultimately important is the substance of the transaction.

484. [1555]

     Insofar as Plaza says that the payments were not disclosed to it and that the only way that could be done was to communicate the payments to Moustafa, the Deiri Parties say that there was disclosure of the payment through Jamil. They say that this is not a simple case where a payment is made to an agent without the knowledge of the principal; rather, that, here, Jamil was the “embodiment” of the principal in that he negotiated the terms of the partnership and was authorised to direct payments and manage Plaza’s business; that all the dealings concerning the partnership terms were negotiated with Jamil as representative of Plaza; and Moustafa held out Jamil as having authority to do so.

485. [1556]

     It is said that Mr Deiri was not dealing with Plaza through Jamil; rather, that Jamil was in effect Plaza’s “embodiment”, and that he was in fact authorised to be that point of contact and to operate Plaza’s business generally.

486. [1557]

     The Deiri Parties note that the last $10,000 payment was made on 1 August 2012 (for the month of August 2012 – see at [295] above) and that, by the end of that month, the final instalment of the purchase price was made (noting that Investments was “slightly late” in making the final instalment towards the land contract, having made payment of $3.25 million on 20 August 2012, instead of by June 2012 as expected – see at [302] above). It is submitted that this is consistent with the original arrangement reflected in Mr Deiri’s email of 18 November 2011, in which it was contemplated that the payments would run until settlement (which the email stated would be in June 2012). It is said that, as the settlement date drew out to August 2012, so too did the $10,000 payments to align with that date.

487. [1558]

     Insofar as the Sayour Parties submit that it can be inferred that Jamil “expected to receive substantial funds” once settlement occurred so that the $10,000 per month would not be necessary and that Jamil received $1 million (described as a “balloon payment”) paid to the same account at the time the payments terminated, the Deiri Parties say that the insinuation of some sort of “unpleaded conspiracy or corrupt motive” is baseless and ignores the fact that Investments had been making substantial payments towards the balance of the purchase price since 1 May 2012.

488. [1559]

     As to the submission by the Sayour Parties that the email sent by Mr Deiri to the internal Deicorp accountant (it will be recalled, Mr Leong – and, see at [159] above) also indicates that the $10,000 payments were for Jamil’s benefit, the Deiri Parties again say this submission pays no regard to ordinary uses of language.

489. [1560]

     As to the reliance by the Sayour Parties on Jamil’s email on 3 July 2012 to Mr Leong, asking, “please advise when you will make this months [sic] payment thanks?” (and the submission that this shows “apparent urgency or solicitude for these payments”), the Deiri Parties say that this was a simple email chasing for a payment. They submit that the evidence shows that Jamil “very much kept on top of expenses during the Broadway project” and that all this email shows is that Jamil was “staying on top” of outstanding moneys.

490. [1561]

     Thus, the Deiri Parties say that the $10,000 payments are properly characterised as payments made to Plaza pending the completion of the land transaction and were made as part of the overall partnership agreement, which Jamil negotiated and which he was empowered to agree on Plaza’s behalf. Insofar as Plaza points to the fact that the $10,000 payments were never disclosed as partnership expenses, the Deiri Parties say that the payments were not “partnership expenses”; rather, that they were part of the overall transaction as part of the joint venture. More specifically, Investments’ submission is that the agreement was that Investments would pay these amounts to Plaza (not that the partnership would pay them, or that Investments would have some entitlement to be credited for them by reason of being a partner). It is said that, had they been partnership expenses as such, then Plaza and Investments would in effect have been paying $5,000 per month each.

491. [1562]

     The Sayour Parties, apart from noting that it is unclear what the Deiri Parties mean by “overall partnership arrangements”, say the following in respect of this contest factual finding.

492. [1563]

     First, they say that it is a departure from the pleadings, admissions and evidence of the Deiri Parties (and the Deiri Entities represented by Kreisson Lawyers, whose defence was verified by Mr Deiri himself), where it was affirmatively asserted that these payments were by Deicorp Constructions to Jamil as remuneration for his personal benefit for his personal exertions in respect of leasing work. The Sayour Parties say that, inherent in the pleading and evidence of the Deiri Parties and Deicorp, is the admission that the payments were sought, and paid into an account directed, by Jamil and that Jamil received those payments.

493. [1564]

     It is noted that, in his affidavit sworn on 22 August 2019 (see at [56]), Mr Deiri deposed that, “I directed Deicorp Construction to make monthly payments of $10,000 to Jamil”; that Mr Deiri alleged that he and Jamil agreed that the payments were for Jamil personally in respect of either leasing work that he had performed or possibly in respect of settlement; that neither Mr Deiri nor either of Deicorp or Investments disclosed to Moustafa the making of the payments to Jamil; and that Jamil was an agent of Plaza and Moustafa at the time he received the payments.

494. [1565]

     The Sayour Parties submit that the elements of a bribe are established, by matters pleaded in the defences of Deicorp Constructions and the Deiri Parties and by admissions in Mr Deiri’s affidavits; that no leave has been sought to withdraw that material (as would be required by r 12.6(2) of the UCPR); and that Deicorp Constructions and the Deiri Parties remain bound to their pleaded and evidentiary case.

495. [1566]

     Second, the Sayour Parties say that Mr Deiri’s evidence that he agreed with Jamil that the payments were in connection with leasing work should not be accepted. It is noted that no contemporaneous record has been produced identifying the payments as made for that purpose. It is said that the failure contemporaneously to make and disclose to Plaza (not Jamil) a record of this agreement and its purpose is itself a highly significant fact.

496. [1567]

     The Sayour Parties say that the only “clue” to the purpose of the payments is in the words “until we settle” in one of the emails. They say that this involves no connection with leasing and that it is inconsistent with that concept because the intention was to retain the shopping centre and thus leasing work was always going to continue. They further say that the submission that Jamil was being paid because Plaza needed to carry out those responsibilities before the settlement was secured is wrong. The Sayour Parties also note that there is no condition in the contract for sale or in the admitted terms of the partnership that tied Plaza’s leasing responsibilities in the Broadway Partnership with settlement, or made settlement conditional upon same. It is noted that the transfer was registered in February 2012 but that the payments continued until August 2012. It is submitted that the reference to settlement in the email appears to mean repayment of the vendor finance loan and that this had no connection with leasing.

497. [1568]

     The Sayour Parties point out that leasing work was going on before there was any deal with Mr Deiri and that it continued well after August 2012, when (as noted) the last of the $10,000 monthly payments was made. It is further noted that, on the Deiri Parties’ own case, the $8 million was not paid in full until September 2013, yet the monthly payments stopped 13 months before this.

498. [1569]

     Pausing here, I interpose to note that, as I understand it, the Deiri Parties here draw a distinction between the $6 million contract price and the additional $2 million sum agreed to be paid, in terms of the timing of the payments.

499. [1570]

     Third, it is said that the proposition that these payments were for leasing work does not assist the Deiri Parties; and that it does not matter whether the payments were for work, or gratuities, or whether they were for one consideration or several.

500. [1571]

     The Sayour Parties say that it may be accepted that Plaza was attending to leasing work pursuant to an allocation of roles agreed between the partners. However, they say that there is no view on which the addition of these “surreptitious” payments to the arrangements agreed between the partners can be considered as part of the overall arrangements for the partnership.

501. [1572]

     The Sayour Parties maintain that there can be no reliance on the bribed agent to advise the principal, pointing to what was said by Millett J (as his Lordship then was) in Logicrose v Southend United Football Club at 1262 (referred to in SWC v Makucha at [60]). The Sayour Parties submit that it does not matter how much authority Jamil had; that he could not, as a matter of law, have authority to negotiate this as a term of the partnership agreement unless full disclosure was made to the principal and specific consent given to it. It is said that, having failed to disclose it himself to Moustafa, it is not open to Mr Deiri to impute the knowledge of the agent to the principal, nor to assert that the agent was authorised to make the arrangement.

502. [1573]

     The Sayour Parties say that these commissions actually detracted from Plaza’s work and role in leasing, as well as prejudicing its position generally. It is said that, instead of Plaza contributing Jamil to do this work, Deicorp was now contributing his services, and thus dividing the loyalty he owed to Plaza (in circumstances where it is said many questions lay open or opened up between the Broadway Partnership and Deicorp itself). The Sayour Parties say that (adopting the description of the conduct in Fouche v The Superannuation Fund Board (1952) 88 CLR 609 at 630; [1952] HCA 1 per Dixon, McTiernan and Fullerton JJ (Fouche)), the gross impropriety and illegality of this course is obvious.

503. [1574]

     The Sayour Parties say that there is no dispute that leasing was work Jamil was doing initially for Plaza and, after the partnership was formed, for Plaza in its role as the partner involved in prosecuting leasing opportunities for the Broadway Development; and that there is no dispute that these payments were an additional payment to an agent of Plaza for work that he was doing on Plaza’s behalf. They also note that there is no dispute that it was secret. It is noted that it was not put or suggested (whether in the pleading, in evidence or in cross-examination of Moustafa) that Moustafa knew of these payments at the time.

504. [1575]

     The Sayour Parties say that, regardless of whether or not it undertook the development of the Broadway Site in partnership with Investments, Plaza had intended that the retail shopping centre was to be built and would require tenanted shops. To that end, it is noted that Plaza had already entered into extensive negotiations with Woolworths by August 2010 (before Jamil’s first meeting with Mr Deiri) (referring to Ex 15 at p 35, being the email dated 9 August 2010 from Mr Carroll of Woolworths to Jamil, which refers to negotiatons towards a binding agreement from the lessor (i.e., Plaza)). Therefore, the Sayour Parties say that the work undertaken to secure the primary tenant in the retail centre was substantially in progress more than six months before the first coordination meetings took place at Deicorp’s offices (and that the leasing work continued).

505. [1576]

     The Sayour Parties say that the rationale for the $2 million payment on top of the $6 million land price was to reflect Plaza’s costs quantified and agreed in a lump sum. In that context, they ask, once more rhetorically, why leasing responsibilities would not also be the subject of a lump sum if that were to be a payment to Plaza and not to Jamil.

506. [1577]

     Fourth, for the same reasons, it is said that it is not open to the Deiri Parties or the Deiri Group to contend that the payments were payments to Plaza, rather than to Jamil. It is said that, having initially alleged that the payments were to Jamil, the Deiri Parties’ case has “metamorphosed” into a case that they were paid to Plaza by its agent Jamil. The Sayour Parties submit that the law does not admit of such a possibility.

507. [1578]

     Insofar as the Deiri Parties emphasise that the payments were made into the Westpac #202 Account, the Sayour Parties submit that this does not lead to the conclusion that the payments were not paid to Jamil (and consequently were not bribes) for the following reasons. They point to the (asserted) admissions that the payments were for Jamil personally, and the contemporaneous evidence (from the emails) supporting those (asserted) admissions, as showing that the Westpac #202 Account was in fact at this time being used by Jamil for his own purposes. The Sayour Parties say that, ultimately, it is sufficient to say that, because the $10,000 per month payments were for Jamil, it is of no moment that they were paid into the Westpac #202 Account; but that once this use of the Westpac #202 Account is established, it has significance for the characterisation of other payments into that account which were not expressly marked as being for Jamil. Next, it is said that the conclusion in respect of the $10,000 payments is supported by looking at what Jamil then did with the moneys. It is noted that each and every deposit of $10,000 in the Westpac #202 Account by Deicorp was almost immediately followed by a withdrawal, via internet transfer, of the whole or most of the deposit. It is noted that Moustafa’s unchallenged evidence (see his affidavit sworn on 27 October 2016 at [20] and his affidavit sworn on 16 September 2019 at [14]-[15]) was that he did not know he had, nor had he used, internet banking and is not adept with computers; and that Jamil referred to the account as “my account for payment”. It is said that Jamil transferred those funds out of the Westpac #202 Account and that the money was used by Jamil for his own purposes “as was always intended by him and Mr Deiri”.

508. [1579]

     I cannot accept that the $10,000 monthly payments were part of the overall partnership arrangements. On Mr Deiri’s own evidence they were the subject of an arrangement at the time that the partnership arrangements were being negotiated, but they seem to have been outside the scope of the partnership there being contemplated (in which Plaza was to be responsible for the leasing work as part of its contribution to the partnership).

509. [1580]

     The objective evidence does not link the payments to the leasing work and the fact that the payments were to be made “until we settle” indicates a clear temporal link to the acquisition of the land. I do not accept as plausible Mr Deiri’s explanation that the payments were for Jamil’s leasing work.

510. [1581]

     As to the reference to setting up Jamil in the system for payment of “his” money, I am prepared to accept that the language in which the email communications were framed is not conclusive (not least because of the informal tone of much of the communications and because I am not persuaded that there was much attention to detail generally in terms of the terminology in which communications were couched). In this connection, I can accept the Deiri Parties’ submissions in relation to the impression often found in general, day-to-day usage of language. Email communications in particular (as evident in some of the communications in evidence in the present case) are often expressed in colloquial terms (not to mention including spelling and grammatical errors) that distinguish them from formal, more considered, communications.

511. [1582]

     It is of relevance that the pleaded case of the Deiri Parties (see, for example, at [17] of the amended defence to the fifth cross-claim, verified by Mr Deiri) was that the payments were to Jamil as remuneration for his personal work in respect of leasing. That does seem to me to amount to an admission that the payments were intended to be for Jamil personally.

512. [1583]

     However, what I find more significant is that the moneys were paid into an account in both Jamil and Moustafa’s names and which was styled as a trust account and thus (as was argued by the Sayour Parties in the Estate Proceedings – see, for example, the Estate Proceedings Judgment at [79]), those moneys became impressed as trust moneys when paid into the account – the only relevant trust being the Sayour Family Trust.

513. [1584]

     Ultimately, I have concluded that the monthly $10,000 payments were payments made to (in the sense of being received into an account styled as a trust account on behalf of the Sayour Family Trust) Plaza, though not disclosed to Moustafa at the time; and that whether or not intended to be for compensation to Jamil they were in fact received by Plaza. Significantly, for the reasons I set out below, I have concluded that those payments did not amount, at law, to bribes.

514. [1585]

     The next factual finding for which the Deiri Parties contend is that Moustafa signed the contract for sale for the Broadway Site knowing that: the price was $6 million; $400,000 had been paid as a deposit; and $2 million of the $6 million purchase price was required to be paid to Moustafa’s overseas bank account by 30 June 2012.

515. [1586]

     As to the receipt of the $400,000 deposit, reference is made to the cheque drawn on 10 October 2011 made out to “Micheal Sayour”, allegedly at Jamil’s request (see at [149] above). The Deiri Parties say that it is not known where the cheque was deposited but they point to special condition 42.1 of the contract for sale which acknowledged receipt of the deposit (see at [216] above).

516. [1587]

     The Deiri Parties maintain that the fact that there is no stipulation in the contract for sale as to the “place of payment” is not to the point. They say that Investments had been informed by Plaza, through Jamil, how to make the deposit payment; and that Mr Deiri followed Jamil’s instructions.

517. [1588]

     The Deiri Parties further say that it is not correct to say (as asserts the Sayour Parties) that there is “no evidence that the payment of $400,000 was received by or on behalf of Plaza”. It is noted in respect of the receipt that: first, the bank records show that the sum was debited from the payor account on 11 October 2011 (therefore that the cheque was presented); second, Jamil acknowledged receipt of the $400,000 in his email of 15 June 2012; and, third, Moustafa knew about the $400,000 deposit written on the contract for sale and never complained of not having receiving. (It is said that Plaza presumably does not dispute that the cheque was deposited somewhere; otherwise it could not allege that the payment constituted a bribe.)

518. [1589]

     The Deiri Parties submit that the real question is whether Jamil had authority to direct how to make the payment and physically to receive the cheque on Plaza’s behalf; and they contend that Jamil plainly did have that authority (as to which, I note my earlier factual finding as to Jamil’s authority).

519. [1590]

     As to the signing of the contract for sale, it is noted that Mr Deiri’s evidence is that he gave the unsigned contract to Jamil and it is not disputed that Moustafa signed the contract for sale (see at [217] above) (however, there is no evidence that Moustafa signed the relevant loan agreement – see at [220] above). It is noted that Moustafa does not refer to that loan agreement in his evidence; and that Plaza accepts that Moustafa did not sign it.

520. [1591]

     The Deiri Parties say that the fact that Plaza “never bothered” to sign this loan agreement may be explicable because Jamil told Mr Deiri that he was not interested in charging interest, referring to Mr Deiri’s evidence of the conversation with Jamil (set out at [191] above; and see [65] of his affidavit sworn on 22 August 2019). The Deiri Parties say that, even if he was aware of the loan agreement, Moustafa may not have bothered to sign it, noting Moustafa’s evidence (at T 331.28-331.32) that he was not interested in interest for religious reasons (“that’s why I’m not worried about the interest, because we’re not taking that interest” – evidence that is wholly inconsistent, I interpose to note, with the phenomenal claim for interest here made by Plaza).

521. [1592]

     The Deiri Parties say that the genesis of the loan agreement was the advice given by HWLE that a deferred settlement would not be possible without it. The Deiri Parties say that the parties effectively treated the loan agreement as if it was not there; that no-one ever mentioned it, complained about a default or proposed to enforce it; and that Plaza’s attempt to do so over five years after the alleged default is “another example of an approach to the fact that seeks to rewrite history”. The Deiri Parties also raise a claim of estoppel in this regard (see below).

522. [1593]

     The Deiri Parties also point to the terms of special condition 43 of the contract for sale (see above at [217]). They say that the fact that it was a condition precedent to completion that the parties enter into the loan agreement has two consequences: first, that the loan agreement was a distinct contract which had not been entered into simply by signing the contract for sale; second, that fulfilment of the condition precedent was waived by both parties (since completion took place and the last instalment of the purchase price was paid, without Plaza having signed the loan agreement); and, third, that the loan agreement was never entered into and its terms were never binding upon the parties. Thus it is submitted that Plaza’s claims for relief by reason of breaches of this loan agreement fail at the outset.

523. [1594]

     The Deiri Parties submit therefore that there should be a finding that Moustafa knew that Investments had paid a deposit of $400,000 at least by the time he signed the contract for sale on or about 27 December 2011. It is submitted that this is clear from the fact that it was written on the front page of the contract, and it is said that it is not plausible that Moustafa paid no attention to the purchase price figures. In this regard, the Deiri Parties say that Moustafa’s evidence in cross-examination on this topic was manifestly untruthful (i.e., his evidence that the contract he signed did not have any of the details filled in on the front page; that his solicitor, Mr Ziad Naef, prepared the contract and gave it to him to sign with none of the details completed; and that he signed it before it was prepared and sent it to his solicitor).

524. [1595]

     The Deiri Parties say that this evidence is obviously implausible; that no solicitor would, in the ordinary course, prepare a contract for the sale of land with no details about the parties, the property or the purchase price, and ask a client to sign it, particularly for it later to be amended without the client seeing it.

525. [1596]

     Further, it is noted, as adverted to previously, that Plaza called no evidence from Mr Naef to corroborate Moustafa’s account. In this connection, it is also noted that Moustafa accepted that Mr Naef was still his solicitor. It is said that Mr Naef is in Plaza’s “camp” and there is no reason to doubt he was available to give evidence. It is submitted that, given that the contract prepared for signing was put into evidence by Ms Gray of HWLE, there is an available inference that Moustafa did not receive a blank contract from his solicitor; and that such an inference can more confidently be drawn by reason of the unexplained failure to call Mr Naef.

526. [1597]

     The Deiri Parties also point to the evidence of Moustafa in cross-examination (see at T 358.1-21), where he accepted at first that when he checked the contract (after he sent it to his solicitor) he saw that the purchase price was $6 million but then said that he did not see that the deposit was $400,000 and the contract was blank (see at T 358.23-36); and then (at T 365.48 – T 366.19) he insisted that when he signed the contract the first page was blank. The Deiri Parties emphasise that none of the evidence about signing a blank contract for sale was in any of Moustafa’s affidavits (and they say, I would add with some justification, that Moustafa’s evidence in cross-examination on this topic was argumentative).

527. [1598]

     Finally, as to the finding here sought that the parties agreed for $2 million of the $6 million to be paid overseas by 30 June 2012, the Deiri Parties point to the handwritten note of 27 December 2011, signed by Moustafa and Mr Deiri, to that effect (see at [220] above). The Deiri Parties say that the genesis of that note is that Jamil told Mr Deiri that his father wished to have $2 million of the purchase price paid to his overseas account by 30 June 2012 because it was needed in Lebanon. The Deiri Parties also point to Moustafa’s affidavit evidence that, around the time he signed the contract for sale, he had a conversation with Jamil to the effect that he needed $2 million by June to buy some land in Lebanon.

528. [1599]

     The Deiri Parties say that the handwritten note was not a promise to pay the additional $2 million that Investments had agreed to pay for costs Plaza had already incurred (on top of the $6 million purchase price). Rather, they say that (as accepted, it is said, by Moustafa in cross-examination) the handwritten note was a promise that, of the $6 million purchase price under the contract, $2 million of this was to be paid by 30 June 2012. It is noted, in this regard, in cross-examination (see at T 363.14 – T 364.23), Moustafa said inter alia that he signed that handwritten document before 27 December 2011 and that Mr Deiri was not with him when he signed the contract for sale, but Moustafa did there accept that, of the $6 million contract sum, $2 million was to be paid by 30 June to a place overseas.

529. [1600]

     The Deiri Parties submit that this significant because it goes to the timing of payment by Investments of the amounts due under the contract for sale. They say that there was never a promise to pay $8 million by 30 June 2012; only ever a promise to pay $2 million by 30 June 2012.

530. [1601]

     As to this contended for factual finding, and the Deiri Parties’ reliance on the provision in the contract of sale acknowledging payment of the $400,000 deposit, the Sayour Parties say that the simple answer to this is that proof of obligation does not prove performance. As to the Deiri Parties’ submission about the loan agreement in this context, the Sayour Parties say that the loan agreement is not relevant to this issue (rather, it supplies vendor finance only for the balance).

531. [1602]

     The Sayour Parties say that special condition 42 is not conclusive, noting that even such an acknowledgement in a transfer or deed of conveyance is rebuttable (referring to Petersen v Moloney (1951) 84 CLR 91; [1951] HCA 57, where the High Court found (see at 98 per Dixon, Fullagar and Kitto JJ) there was “no evidence” of payment, despite such an acknowledgement, where the agent had received and absconded with the money). The Sayour Parties note that it was not suggested that any deposit was paid on 27 December 2011 (or at any other time unless, as the Deiri Parties assert, it was by payment of the $400,000 cheque paid on 10 October 2011).

532. [1603]

     The Sayour Parties say that it is “striking” that the cross examination of Moustafa that was relied on in submissions on this factual finding was about his knowledge of the contractual provision for a deposit – not that he knew of the $400,000 payment at the time that it was made, nor that he received it or directed its destination (which, again, it seems no one has located – see T 1544.42ff).

533. [1604]

     The Sayour Parties say that it does not seem to be seriously disputed that Jamil failed to disclose and account for the $400,000. They say that, in light of that, it is not clear what the Deiri Parties seek to draw from Moustafa’s failure to mention this matter (noting that the Limitations Act 1969 (NSW) gives him six years to complain). Pausing here, insofar as the Deiri Parties in their submissions have posed the question as to whether Jamil had authority to direct how to make the payment and to receive physically the cheque on Plaza’s behalf, the Sayour Parties rely on their submissions about Jamil’s authority generally (as to which, see above).

534. [1605]

     It is said that the oral submission that Moustafa tried to “distance himself” from the front page of the contract (because it states there that there is a deposit of $400,000) was made without regard to the fact that Moustafa did not sign or mark the front page of the contract for sale (as the Sayour Parties say would be expected to have occurred in the normal course). The Sayour Parties emphasise that Moustafa did not sign the front page of the contract for sale. It is submitted that, given that Jamil had failed to account for $400,000, it is not surprising that Jamil would not be anxious for Moustafa to dwell on the front page (assuming he presented the document to Moustafa in the form supplied to him). It is further noted that Moustafa had been informed that there would be vendor finance. It is said that these are circumstances which take the case of the usual circumstances of a sale of land where a vendor would be expecting to take a deposit on exchange.

535. [1606]

     The Sayour Parties note that Mr Deiri’s version of events concerning the execution of the contract for sale differs from that of Moustafa. On Mr Deiri’s account, this contract was signed in his presence when he attended on Moustafa and Jamil at the Biomed office in Belmore. It is noted that Mr Deiri does not assert that there was any discussion on that occasion mentioning the payment on 10 October 2011 or any other arrangements about payment of the deposit, though he does mention (see, for example, at [72]-[74] of his affidavit sworn on 22 August 2019) the discussion that led to cl 8.8 being drafted on the spot (in which there was incidental reference to the deposit) but that even that did not indicate when the deposit was to be paid, or that it had been paid or how much it was.

536. [1607]

     It is also noted that Mr Deiri expressly stated in his affidavit that on that occasion they checked the purchase price in the contract “but did not otherwise read the documents in detail” (see at [71] of his affidavit sworn on 22 August 2019). The Sayour Parties say that in lengthy cross examination, although Moustafa was taken to various pages of the contract for sale, it was not put to him that he gained any particular information from any of its provisions and he was not asked a single question about payment of the deposit; nor as to why it was set at that percentage of the purchase price (roughly 6.66%).

537. [1608]

     The Sayour Parties reiterate, in this context, their submissions that: an agent to negotiate is not authorised to bind his principal to a contract, nor to receive payment; Jamil did not have plenary authority; Jamil did not have general authority to receive and direct payments or give receipts therefor on behalf of Plaza; and that contentions to the contrary need to address the particular circumstances of each payment to determine whether particular acts of Jamil were authorised and constituted acts of Plaza and whether they constituted a valid receipt.

538. [1609]

     It is submitted that the first important circumstance about the $400,000 payment, so far as the sale is concerned, is that it was made well in advance of the formation of the contract for sale and for a different purpose. It is noted that Mr Deiri’s own evidence was that, in early October 2011, Jamil solicited it “as a sign of good faith” in respect of intention “to proceed as partners” and attributed it to “the $8 million” (see his affidavit sworn on 22 August 2019 at [60]).

539. [1610]

     It is also noted that, on 5 October 2011, Mr Deiri knew that Canterbury Council would determine the Development Application to conduct the excavation and early works on the site at Punchbowl by 14 October 2011 (see Minute of Project Meeting Item 1.1.1); that Investments was not incorporated for another month; and the contracts were not exchanged for another two months and three weeks. It is again emphasised that Mr Deiri was an experienced property developer.

540. [1611]

     In this context, the Sayour Parties emphasise that, on 10 October 2011, Mr Deiri: drew a cheque for $400,000 to a person who was not the principal, “or bearer”; drew it on the account of Deicorp; did so at a time when Deicorp had recently entered into a substantial contract with Plaza, that would involve continued dealings for a long period; did so at a time when there were open questions with the principal as to the formation of a partnership and sale of land; gave this bearer cheque to an agent who was involved in those negotiations; did not obtain a receipt for the payment from the principal or even from the agent; did not make or keep any record, or “do so much as write an email”, to identify its purpose; and did not inform of the principal of the payment.

541. [1612]

     It is noted that Mr Deiri thereafter attended the project meeting on 26 October 2011 which Moustafa also attended (see at [153] in the above chronology), and did not mention any of this to Moustafa on that occasion (nor on any other occasion) and after this, he commenced paying $10,000 per month to Jamil, again without telling Moustafa.

542. [1613]

     It is said that, subsequently, without enquiring of Moustafa whether the payment had been received, Mr Deiri sought to appropriate it to the deposit payable under the contract of sale of 27 December 2011, but again did not mention this to Moustafa, even though it was potentially refundable if the contract “went off” or was later rescinded under cl 8.8 of the loan agreement. The Sayour Parties note that Mr Deiri did not ever afterwards mention to Moustafa that this was the deposit or enquire whether he had received it.

543. [1614]

     It is submitted that Mr Deiri did not advance any convincing reason for not telling Moustafa at any time about this payment “notwithstanding that there was supposed to be no reserve as he claims to have been told that dealing with one was like dealing with the other”; nor did the commencement of the $10,000 per month payments “induce Mr Deiri to think that he ought to tell Moustafa about the $400,000 payment”. In this context, emphasis is also placed on the fact that Mr Deiri told his solicitor at the time that Moustafa was a trusting character.

544. [1615]

     The Sayour Parties say that, even if the $400,000 payment was not held to be a bribe, it would not follow that Jamil was authorised to receive it. In this connection, reliance is placed on the authorities showing that the authority to receive payment will not be readily implied and that, even when it is implied, it is not readily implied that it is authority to receive otherwise than in cash and at the usual place of business or in the usual way. It is said that here there was no usual place and means of receiving such payments (this being “extremely unusual and irregular”) and that this emphasises the difficulty in finding any basis for implication that Jamil was authorised to receive this payment at the time it was paid and in the way it was paid.

545. [1616]

     It is submitted that Mr Deiri was not entitled to think that Jamil was authorised to receive this payment at the time he received it and that, even if he was entitled to think that, then by the time the contract of sale was about to be signed, he was not entitled to think that Jamil was authorised to accept its appropriation as the deposit under that contract. It is said that Mr Deiri was bound to enquire of the principal whether it had been received and he was not entitled to think, without specific enquiry of Moustafa, that he had a valid receipt for it by having paid it to Jamil.

546. [1617]

     The Sayour Parties say that this remained a payment to a third party (the agent) and therefore was not capable of appropriation to Investments’ liability to Plaza under the contract of sale.

547. [1618]

     It is submitted that the position is not improved by Jamil’s email of 15 June 2012 (as to which, see at [287] above). It is noted that, by the time that email was sent, Jamil had caused Deicorp to pay to Jamil many further payments of $10,000 per month for his personal use and benefit, as Mr Deiri knew or believed (having conceded as much in his pleadings and affidavit), without Mr Deiri disclosing them to Moustafa. Further, it is noted that the very same email solicited a personal payment to Jamil of $200,000; and that Mr Deiri disclosed none of these further developments to Moustafa.

548. [1619]

     It is submitted that the Deiri Parties cannot in those circumstances suggest that the email of 15 June 2012 constituted an authorised direction on which Mr Deiri and his companies could rely as acknowledgement of receipt by Plaza of the $400,000 (referring to Lysaght Bros & Co Ltd v Falk 2 CLR 421 at 431; [1905] HCA 7 per Griffith CJ; Australia and New Zealand Banking Group Ltd v Frenmast Pty Ltd [2013] NSWCA 459 at [36] per Meagher JA (with whom Macfarlan and Barrett JJA agreed)).

549. [1620]

     Rather, it is said that Mr Deiri was bound to communicate with Moustafa in person in order to obtain a valid receipt. It is noted that the Deiri Parties did not adduce evidence of any enquiries to ascertain the destination of those funds; and that (after an unsuccessful attempt to issue a more wide-ranging subpoena – see Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410 at [4]), a (narrower) subpoena issued to National Australia Bank (NAB) which produced a “no documents” response. Plaza says it has done what it can to investigate the destination of the payment.

550. [1621]

     To my mind, the evidence by Moustafa that he signed a contract with a completely blank cover page is inherently implausible; and whether he saw reference to the $400,000 deposit or not is immaterial since he would be bound by what he has signed (see Toll (FGCT) Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [42], [46]-[47], per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ)).

551. [1622]

     I find that Moustafa signed the contract for sale agreeing to be bound by its terms and that those terms included an acknowledgement as to the receipt of a $400,000 deposit. Whether knowledge of a promise is relevantly the same as knowledge of performance is not of present relevance – the point is that I am satisfied on the evidence that Moustafa signed a document acknowledging payment of the deposit and was thereby on notice of this.

552. [1623]

     As to the $2 million payment, I return to this in due course.

553. [1624]

     The next factual finding sought by the Deiri Parties is that the CBA facility did not require Moustafa to sign the accommodation notices. The significance of that finding is said to be that: first, there was no breach of contract by CBA in paying the builder; and, second, whether or not Moustafa actually signed the accommodation notices is irrelevant.

554. [1625]

     The principal submission by the Deiri Parties is that under the 15 February 2012 authority (see at [266] above) it was only necessary for there to be one signatory on the accommodation notices (and that, since Mr Deiri was a director of Investments, there was no difficulty with him signing the accommodation notices on its behalf and this was sufficient).

555. [1626]

     That submission turns on the fact that under the CBA cash advance facility pursuant to which moneys were drawn down and paid by CBA to Deicorp Constructions none of the methods listed under “Method of Operation [delete as appropriate]” (see at [266] above) was struck through. Thus, it is submitted by the Deiri Parties that the method “any to sign” applies as equally as any of the other methods.

556. [1627]

     The Deiri Parties accept that this means there is a prima facie inconsistency between the options but they say that because the parties chose not to delete the broadest signing option (allowing either Investments or Plaza to sign) they opted not to limit the methods of signing. It is submitted that, objectively construed, the best construction of the parties’ intention is that either could sign; and therefore that it was sufficient for Mr Deiri to have signed the accommodation notices and Moustafa’s signature was not required.

557. [1628]

     Insofar as Plaza refers to the fact that ensuing accommodation notices purport to bear the signatures of both Mr Deiri and Moustafa (as support for the argument that two signatures were required), it is submitted by the Deiri Parties that this submission is contrary to the rule that post-contractual conduct cannot be used as an aid to construction.

558. [1629]

     Alternatively, in the event that the 15 February 2012 authority is not accepted as a valid notice authorising any one of the parties to sign, then it is said that Jamil was in any event permitted under the terms of the facility to sign for Plaza. In this regard, the Deiri Parties point to the definition under cl 1.1(a) of the First Facility Agreement of “Authorised Officer” and to the definition of “Officer” in s 9 the Corporations Act as including, relevantly, (b)(i) and b(iii).

559. [1630]

     It is submitted that Jamil amply meets the definition set out in s 9(b)(i), namely that: he was empowered to run Plaza’s business and in fact did so; and he made, and participated in making, decisions that affected the whole, or a substantial part, of Plaza’s business.

560. [1631]

     It is submitted that Jamil also meets the definition of an officer in s 9(b)(iii), of a de facto director. The Deiri Parties note that, on his own affidavit evidence, Moustafa said that he asked Jamil whether Jamil was happy with the expenses of the construction; that Jamil told him he was; and that Moustafa accepted it (in part because he did not have the knowledge to be able to make such assessments himself). It is said that Jamil also ran the day-to-day business of Plaza and Moustafa stood back and let Jamil do so (as to which, see my disposition of the earlier factual finding in relation to this). Thus, the Sayour Parties say that Moustafa was accustomed to act in accordance with Jamil’s instructions or wishes (because he deferred the management of the operation to Jamil and took no active role himself).

561. [1632]

     Insofar as the Sayour Parties contend that the cash advance facility required Jamil to be authorised to sign accommodation notices on behalf of “the partnership” and not simply on behalf of Plaza, the Deiri Parties say that this confuses the question of the authority of a partner to sign for another partner, with the question of the contractual requirements under the facility for signing. It is submitted that, to say that the borrowers were partners, is not determinative of that issue one way or the other.

562. [1633]

     The Deiri Parties note that “Borrower” is defined under the “Parties” section of the facility documentation to mean Plaza and Investments. It is submitted that that does not mean that the borrower was “the partnership” (though that may be said to be a convenient shorthand). It is noted that an unincorporated partnership is not a separate legal entity – it is a legal relationship. Thus, it is submitted that the borrowers were the partners.

563. [1634]

     As such, it is submitted that when cl 3.2 speaks of an “Authorised Officer” or “Director of the Borrower” being required to sign, such a person from each of Plaza and Investments is required to sign but there is no additional requirement that each of the persons signing on behalf of Investments and Plaza must also be signing on behalf of the partnership. It is submitted that the clause does not say this and it would be a “nonsensical” construction; it is said that if all of the partners are required to sign, there is no reason why there would be a requirement that they also purport to sign on behalf of each other.

564. [1635]

     It is submitted that, insofar as there is a difference between the form of the pro forma accommodation notice annexed to the facility agreement documentation and the notices that were provided on the partnership letterhead, that difference is immaterial and does not invalidate the drawdowns, which it is said still complied substantially with the facility; there was a contractual variation to permit such notices; or CBA waived such requirements.

565. [1636]

     In this regard, the Deiri Parties say that the differences were immaterial, and it is said that it cannot be the case that the funds were not payable unless the strictures of the notice form were complied with absolutely. The Deiri Parties say that the parties were evidently proceeding on the basis that the form of notice submitted was sufficient and the language was in similar enough form. They say that this is not surprising because the accommodation notices were really a formality; and that what was important was that the quantity surveyor checked the payment claims that were submitted. In these circumstances, the Deiri Parties submit that the parties should be taken to have varied the requirements of the notice form annexed to the facility, to permit accommodation notices of the kind submitted throughout the project.

566. [1637]

     Alternatively, it is submitted that the requirements of the accommodation notices in cl 3.2 were for CBA’s benefit; that CBA was entitled to waive compliance; and that, in the circumstances, CBA clearly did so.

567. [1638]

     The Deiri Parties maintain that the absence of Moustafa’s signature on any particular accommodation notice did not affect the validity of the drawdown, where CBA’s quantity surveyor verified the claim and Plaza was kept informed as to the amounts of the claim.

568. [1639]

     As noted above, it is said that (construed having regard to business common sense and commercial context) the accommodation notice procedure under the facility was “really a mechanical exercise and a formality”; that there was a lump sum construction contract and a facility in place to cover that amount; and that, when drawdowns were to occur, what was important was that the quantity surveyor verified the development was progressing and issued a report so that each party was kept informed.

569. [1640]

     As to the submission that Plaza was kept informed, reference is made to Ex 17 as evidence that Jamil received almost every communication with the quantity surveyor, Mr Hammond. The Deiri Parties note that each of these communications contained the amount being claimed. It is said that the process involved Jamil being sent the relevant claim information twice: first, when Mr Deiri emailed the quantity surveyor, copied to CBA and Jamil; and, second, when the quantity surveyor would send an email in reply to CBA, which was copied to Jamil and Mr Deiri on most occasions. It is said that the only occasions when Jamil was not copied into the reply email by the quantity surveyor were when Mr Deiri had asked Mr Hammond not to do so because he was ill, but even after that there were instances where Jamil subsequently asked Mr Hammond for those reports (and was provided with them).

570. [1641]

     Further, it is said that there was nothing that Plaza could do in the event that the quantity surveyor verified the claim; rather, the time for Plaza to object was during the review.

571. [1642]

     Insofar as Plaza has contended in its written submissions that the authority executed on 20 February 2012, signed by Mr Deiri and Moustafa on behalf of Investments and Plaza, respectively, “required advances under the facility to be deposited into the partnership bank account” (and that the accommodation notices therefore served a purpose of exempting the bank, in each instance of payment to the builder, from the requirement that advances be deposited only to the CBA Partnership Account), the Deiri Parties say that the authority contains no stipulation that would require CBA to pay sums into the CBA Partnership Account in instances where there was no accommodation notice.

572. [1643]

     It is noted that the authority provides that “I authorise the Bank to pay the proceeds of the above loan in the following manner”, and then specifies the CBA Partnership Account. It is submitted that the instrument does not provide any restriction at all; it is merely a positive conferral of authority. It is said that the facility executed on 15 February 2012 provided in cl 3.1 for the Borrower to direct the bank to pay the advance in accordance with the accommodation notice; and that, clearly, it was always the intention that CBA would pay directly to the builder.

573. [1644]

     The Deiri Parties argue that, even if CBA had paid the sum into the CBA Partnership Account, that sum would then immediately have been paid out to the builder; otherwise, the development could not have been built. Accordingly, it is submitted that the proposition that there was a breach of mandate by not paying the funds first into the CBA Partnership account goes nowhere and that there can be no loss arising from any such (asserted) breach.

574. [1645]

     In any event, it is said that causation is not established in that Plaza has adduced no evidence that Moustafa would not have signed the accommodation notices had they been presented to him. It is submitted that, given he did sign a blank accommodation notice pro forma, the logical inference is that he would have signed them. As such, it is said that any claim for damages or that the drawdowns were ineffective based upon Moustafa having failed to sign the accommodation notices fails for want of causation.

575. [1646]

     As to this contended for factual finding, the Sayour Parties submit that the form appointing “Authorised Officers” for the purpose of the contract (dated 15 February 2012), which the Deiri Parties contend allowed either of Mr Deiri and Moustafa to sign, is not part of the contract and does not affect the construction of the contract. Thus, it is said that it follows that this submission does not provide an answer to the Sayour Parties’ contention that the effect of the contract provisions (pleaded at [120]-[127] of the First Broadway Cross-claim) was to require the “Authorised Officers” of each of Plaza and Investments to sign the relevant accommodation notices.

576. [1647]

     Insofar as the Deiri Parties say that the method of operation nominated by the partners did not prescribe two signatories and that (even if it did) Jamil could sign for Plaza (because he was an “Authorised Officer” within the meaning of the facility), the Sayour Parties say that the fact that Jamil was authorised to sign on behalf of Moustafa is not relevant, because none of the acts complained of purported to be an act of Moustafa; rather the acts purported to be acts of either the Broadway Partnership (of which Moustafa was not a partner) or (in the case of the signatures on agreements or deeds) acts of execution by Plaza.

577. [1648]

     The Sayour Parties further say that, because the Broadway Partnership contracted to require a signature of Moustafa on behalf of the partnership, this required his personal signature. In this regard, reliance is placed on the maxim delegatus non potest delegare. It is said, in the case of Plaza, that where an act of its director or secretary or “Authorised Officer” was required, that was not satisfied by the signature of a person who was not a director or secretary or “Authorised Officer” of the company, but who was merely the donee of power to act for his father. In other words, it is said that the grant of a Power of Attorney to Jamil to act for his father was not a donation of power to act for the company and hence the Powers of Attorney granted by Moustafa are not relevant and the attempt to rely on them is misconceived.

578. [1649]

     The Sayour Parties point to cll 3.1 and 3.2 of the First Facility Agreement, which required an accommodation notice “signed by or on behalf of the Borrower by one Authorised Officer, or a Director or Secretary of the Borrower” to be given in accordance with cl 20 (which also required signature by an “Authorised Officer”). It is noted, as I have also noted above, that Plaza and Investments were identified as the “Borrower”. Accordingly, the Sayour Parties maintain that, as any accommodation notice had to be signed by or on behalf of the Borrower, it was required to be signed by or on behalf of both of them; and that a notice signed on behalf of one only would not be signed by the “Borrower”.

579. [1650]

     It is said (and, I interpose to note that I agree) that the natural construction of this provision is that, where there are two borrowers, there must be signature by an authorised officer, director or secretary of each Borrower.

580. [1651]

     As to the Deiri Parties’ submission based on the nomination form, apart from noting that the contract did not require such a method of operation form to be provided and that the nomination form is not part of the contract, the Sayour Parties say that: not being completed, that section in the form has no effect; that it was not apt in any event, because there was only one nominated officer for each company (so there was no occasion to select between “any”, “joint”, or the like; such a specification only being necessary if one of the borrowers were appointing two or more authorised officers); and that it does not prevail over the contract and, in any event, was not necessary because the contract required signature by or on behalf of each borrower.

581. [1652]

     The Sayour Parties say that the Deiri Parties (rightly) did not submit that the nomination purported to appoint Mr Deiri and Moustafa as “Authorised Officers” for each other’s company, noting the recitals on the form. It is noted that the form named both Mr Deiri and Moustafa as “Authorised Officers” (each being again designated as director) without going further to state that each was appointed to both companies. It is said that the qualification “director” under each name makes this plain, as all parties knew that each was the sole director of his company. The Sayour Parties say that it would require more to go further and establish an appointment to both companies.

582. [1653]

     Next, insofar as the Deiri Parties submit that Jamil was an officer within the meaning of the Corporations Act and so fell within the default provision in the definition of “Authorised Officer”, the Sayour Parties point out that this was not pleaded. It is noted that the contention was said to be supported by the proposed factual finding #1 (again, as to which, see above) and by a further contention that Jamil was a de facto director. The Sayour Parties say that these contentions needed to be pleaded but, in any event, that this argument fails because the parties nominated “Authorised Officers” and so the default provision in the definition was not operative.

583. [1654]

     As to the various other submissions that are made in support of this finding, the Sayour Parties submit that none of them is an answer to the fact that the accommodation notices were not signed as required. Insofar as a submission about causation was made; the Sayour Parties say that no question of causation arises.

584. [1655]

     Put simply, the Sayour Parties’ position is that, if the accommodation notice is not signed as required, then there is no mandate. Further they say that, as is clear from the terms of the 10 November 2013 email between Jamil and Mr Deiri, Moustafa would not have approved the draws as they did not conform with the “deal”.

585. [1656]

     It is convenient next to consider CBA’s submissions on this issue.

586. [1657]

     As to the contention that one signatory was not sufficient on accommodation notices under the First Facility Agreement (the Sayour Parties asserting that the form appointing “Authorised Officers” did not form part of the loan contract), CBA says that this misunderstands the terms and effect of the contract.

587. [1658]

     It is noted that cl 3.2 of the First Facility Agreement provided that accommodation notices were to be signed on behalf of the borrower by an “Authorised Officer”. Contrary to the position of the Sayour Parties, CBA emphasises that the term “borrower” was a term used in the Agreement to describe Plaza and Investments jointly and CBA maintains that the contract does not identify each as separate borrowers and does not require an accommodation notice to be separately signed on behalf of each of them. CBA submits that this is illustrated by the fact that the form used to nominate “Authorised Officers” allows the parties to elect that one signatory suffices. It is noted that that could not be a valid option if each party was required to sign each notice. CBA says that Plaza’s contention that, to the extent that the nomination form made provision for one signatory, it was inconsistent with the contract should be rejected. It is said that the form was inconsistent only with the “strained” interpretation of the contract that Plaza now advances (and its existence, together with the plain wording of the contract, undermines that interpretation).

588. [1659]

     CBA submits that the effect of this clause was that a person identified by the parties as an “Authorised Officer” was entitled, under the contract, to sign such a notice. It notes that Mr Deiri was an “Authorised Officer”; and it emphasises that the form nominating such authorised officers in the case of the First Facility Agreement did not specify that more than one of them was required to sign such a notice.

589. [1660]

     The First Facility Agreement clearly required accommodation notices to be signed “by or on behalf of the Borrower” by an “Authorised Officer” or a director or secretary of the “Borrower”.

590. [1661]

     In circumstances where two entities were named as “the Borrower”, the logical consequence in my opinion is that signature was required by both borrowers (unless both borrowers had between themselves nominated one authorised officer or signatory). Although Jamil may well have fallen within the definition of authorised officer for the purposes of the Corporations Act definition, he was not named as an authorised officer for the purpose of the signing of accommodation notices (i.e., on the relevant documentation). However, the fact that the pro forma accommodation notice contemplated that it might only be necessary for one signatory to sign would support the conclusion that signing by one signatory might in certain circumstances suffice.

591. [1662]

     Accordingly, while I find that Jamil was not expressly authorised under the First Facility Agreement as an Authorised Officer to sign the accommodation notices, I accept the proposition by CBA that the First Facility Agreement contemplated, by the pro forma accommodation form, that it might be the case that the borrowers (since here, there were two who jointly were defined as the Borrower) might jointly appoint an Authorised Officer for the purpose of signing accommodation notices. The question then is whether the parties by their conduct did so (and whether the course of conduct supports the conclusion that they did).

592. [1663]

     Had it been necessary to consider whether CBA was entitled to waive compliance with the requirement for an authorised officer of each borrower to sign, then insofar as the requirement was for CBA’s benefit it would have been entitled to do so. However, for the reasons given above, and as the events that have happened now make patently clear, the requirement was not only for CBA’s benefit – it was, and is, as much a protection for the borrowers. Accordingly, CBA could not unilaterally waive compliance with that requirement. For the reasons set out in the conventional estoppel/acquisition defences to the claim against CBA, I do not accept that the parties’ conduct amounted to an acceptance that only one signatory (of an Authorised Officer) could sign accommodation notices.

593. [1664]

     Otherwise, I agree with the submission for the Sayour Parties that questions of causation and the like do not, at least at this juncture, arise.

594. [1665]

     Related to the preceding, the next factual finding that the Deiri Parties seek is that Moustafa was not required to sign the cheques drawn on the CBA Partnership Account. It is said, in particular, that the Powers of Attorney granted by Plaza permitted Jamil to sign cheques; and that Jamil could sign cheques by signing his name or Moustafa’s. Therefore, it is said to be immaterial that he reproduced Moustafa’s signature; and that it is wrong to describe instances where Jamil signed Moustafa’s name as “forgeries”.

595. [1666]

     Further, it is submitted that the personal Power of Attorney granted by Moustafa to Jamil permitted Jamil to sign as an account signatory and an authorised officer of Plaza. It is said that, as such, the Cheque Authorisation Alteration Instruction to CBA (see at [445] of the above chronology) was authorised, valid and effective to change the terms of operation on the CBA Partnership Account as from 7 February 2014 and that, from that time, only a single signatory was required to operate the account.

596. [1667]

     The Deiri Parties also note that Plaza’s pleaded case is that Jamil signed Moustafa’s name on the change of signatory letter (i.e., the Cheque Authorisation Alteration Instruction). It is said that, even if the execution block was produced from a pro forma, Jamil knew about the change of procedure and must have authorised it (it being noted that only one further cheque was signed by Jamil after the date of the Cheque Authorisation Alteration Instruction – the rest being signed solely by Mr Deiri other than one signed only by Jamil in Moustafa’s name).

597. [1668]

     As to this contended for factual finding, the Sayour Parties submit that this submission is contrary to the contractual terms of CBA’s mandate, which required both Moustafa and Mr Deiri to sign in order to operate the account. They emphasise that this operated as a contractual qualification of the authority of any other agent to sign. They say that the submission is also contrary to Mr Deiri’s account about cheque signing procedures and his express admissions given in the course of cross-examination.

598. [1669]

     It is noted that the cheque signing mandate was express and that it was deliberately given by an act on the part of Plaza and Investments. The Sayour Parties say that the submission that Moustafa’s signature was not required, or that the account was conducted contrary to the mandate, is contrary to the concession made in Mr Deiri’s evidence in chief (see his affidavit sworn on 16 October 2016 at [217]) that, had CBA ever communicated to him that the payment by it of cheques drawn on the CBA Partnership Account was not in accordance with the terms they had agreed as to the operation of that account, he would not have continued drawing cheques and would have investigated this. Following, the Sayour Parties submit that there ought to be a finding that the CBA cheque mandates required Moustafa’s signature.

599. [1670]

     Insofar as the Deiri Parties have submitted, in effect, that the Moustafa simulation on the signature block used in the Cheque Authorisation Alteration Instruction is not a forgery “by Jamil” (because the placing of the signature block was not necessarily by Jamil), the Sayour Parties say that this would leave Jamil as a person who armed others to use a forgery. Further, insofar as the Deiri Parties have submitted that it must have been done with Jamil’s knowledge, the Sayour Parties say that Jamil would then be a conscious party to the forgery. In this regard, insofar as the Deiri Parties’ submissions are premised on the pleading by Plaza only containing an allegation that the forgery was made by Jamil (and not by others), the Sayour Parties point to [539] of the Fifth Broadway Cross-claim (though they accept that this does not say anything against the involvement of others). The Sayour Parties submit that, whether Jamil armed others to commit a forgery or was a conscious party to a forgery, for either reason the “signature blocks” submission is within the scope of [539] of the pleading.

600. [1671]

     The Sayour Parties also point out that Investments has itself alleged that Mr Deiri signed the Cheque Authorisation Alteration Instruction and then gave it to Jamil to take away in order to get Moustafa’s signature (and that evidence to this effect is included in Mr Deiri’s affidavits). It is noted that this is denied in the reply to his defence; and it is thus said that Mr Deiri could not have been surprised that it was traversed in cross examination. Further, it is noted that Mr Deiri made claims about his own belief and innocence, including claims attributing representations by Moustafa about Jamil’s character and asserting his own belief in those representations; and that he has been charged by CBA with conspiracy. In those circumstances, it is said that the pleading leaves squarely open the issue of the authorship and authenticity of the Cheque Authorisation Alteration Instruction and that Mr Deiri could not be surprised thereby.

601. [1672]

     Broadly for the reasons submitted by the Sayour Parties, I find that, under the CBA mandate, Moustafa was required personally to sign cheques drawn on the CBA Partnership Account and I find that the Cheque Authorisation Alteration Instruction (which I accept was not signed by him, and most likely was prepared by someone in Mr Deiri’s office by use of a signature block) is invalid. Therefore, absent the argument based on the Powers of Attorney, the payments made for cheques drawn on the account after 7 February 2014 were made contrary to CBA’s mandate and (subject to the defences raised by CBA and any claim against Mr Deiri and the Deiri Parties) recoverable by Plaza on behalf of the partnership as moneys had and received.

602. [1673]

     I consider that there is a vast difference between authorising (or leaving) Jamil to run the day-to-day business of the Broadway Development and authorising him to sign cheques on behalf of Plaza (or Moustafa) in relation to the development (even leaving aside the difficulties inherent in a trustee authorising someone else to sign cheques).

603. [1674]

     The next factual finding for which the Deiri Parties contend is that Investments paid the purchase price for the land to Plaza comprising $6 million by 20 August 2012.

604. [1675]

     Those payments are identified in the chronology of events set out earlier, but may here be summarised as follows: the payment by cheque in October 2011 of the sum of $400,000 (the deposit – as to which, see also my factual finding above; and at [149] of the chronology); on 1 May 2012, by international transfer of $500,000 to Moustafa’s Blom Bank account in Lebanon; on 10 July 2012 (see at [285] above), by cheque made out to Jamil for $200,000, which was deposited into the Westpac #202 Account (see at [289] above); on 11 July 2012, by international transfer of $500,000 to Moustafa’s Blom Bank account in Lebanon (see at [292] above); on 10 August 2012, by transfer of $1 million to be made to the Westpac #202 Account (see at [296] above); and, in mid-August 2012, by cheques drawn for $150,000 in Jamil’s name and $3,250,000 made out to Moustafa and Jamil for Sayour Family Trust (see at [300]; [302] above).

605. [1676]

     As to the 10 August 2012 payment, Mr Deiri’s evidence is that Jamil had initially directed that the money be paid overseas but that in early August 2012 Jamil said to Mr Deiri, “[d]on’t send the $1 million overseas, we need it here. Can you make the transfer by EFT[?]” (see Mr Deiri’s affidavit sworn on 22 August 2019 at [124]). The Deiri Parties say that this is consistent with the fact that the transfer was made six days after Moustafa returned to Australia from Lebanon.

606. [1677]

     As to the last of the payments, Mr Deiri’s evidence is that he said to Jamil in mid-August 2012 that he wanted to pay the balance of the purchase price for the land; that Jamil attended Deicorp’s offices and instructed Mr Deiri to make out those two cheques; that Mr Deiri handed them to Jamil; and that the two had a conversation to the effect that Jamil acknowledged that Mr Deiri had now paid the $6 million (see Mr Deiri’s affidavit sworn on 22 April 2019 at [128]). It is noted that the cheque for $3.25 million was banked into the Westpac #202 Account on 20 August 2012; and that it is not clear where the $150,000 went.

607. [1678]

     The Deiri Parties therefore contend that the $5.6 million balance of the purchase price was paid by 20 August 2012 (accepting that this was “slightly late” because the handwritten note dated 27 December 2011 specified that $2 million of the $6 million purchase price was to be paid by 30 June 2012, but saying that nothing here turns on that).

608. [1679]

     Relevantly also, and following from the preceding, the position of the Deiri Parties is that Jamil had authority to direct how these payments were to be made and to receive these payments on behalf of Plaza. The basis of that authority is put not simply by reference to the Powers of Attorney but also on the basis of the contention that Jamil had both actual and ostensible authority to do so.

609. [1680]

     As to the claim by the Deiri Parties that all of the $6 million purchase price was paid for the land, the Sayour Parties say that Plaza has given credit for $5 million in payments, “including those received via a circuitous route”, but that what it has not given credit for are any payments which it or Moustafa did not receive.

610. [1681]

     The Sayour Parties note that the effect of Investments’ case as to the payment of the purchase price (that the first payment was made of $400,000 on 10 October 2011 and the balance of $5.6 million in a series of payments in sums of $500,000; $200,000; $500,000; $1 million; $150,000; and $3.25 million – see as summarised at [1675] above) is that all payments were appropriated first to the balance payable for the land, which carried interest, and only thereafter were payments appropriated to the additional $2 million (which did not carry interest because it was not part of the loan agreement).

611. [1682]

     The Sayour Parties say that, if there was no loan agreement (as the Deiri Parties assert), then there was no reason for them to seek to appropriate the payments in this order.

612. [1683]

     Plaza’s pleaded case as to appropriation is that: the two $500,000 payments of May and July to Lebanon were received by it and are appropriated to the additional $2 million debt; the next payments that Plaza received were two further payments each of $500,000 to Lebanon in November and December, 2012 and that these are appropriated to the additional $2 million debt; next, that Plaza received $3 million in February 2013 (being the amount that Jamil caused in that month to be transferred to Lebanon from the money that he had received in August, 2012 and was controlling) and which Plaza has appropriated (in its pleading), first, to unpaid interest on $5.6 million under the loan agreement and, then if there be any surplus, to the deposit of $400,000 and, then if there be any surplus, to the principal of $5.6 million.

613. [1684]

     As to the Deiri Parties’ position in relation to these appropriations, and the reliance placed by Mr Deiri in his affidavit sworn on 22 August 2019 as to discussions with Jamil in respect of some payments and as to written instructions, by the email of 15 June 2012 (see at [287] in the above chronology), in respect of others, the Sayour Parties say as follows.

614. [1685]

     First, that “grave reserve” would be exercised in accepting the oral testimony of Mr Deiri on these appropriations years after the event as to conversations with a dead man, “particularly a dead man whom the witness was bribing”. It is said that none of the conversations is corroborated; and that there is not sufficiently persuasive evidence to justify a conclusion that verbal directions were given to appropriate payments to principal and to the balance due under the contract for sale of land.

615. [1686]

     In that respect, I note that Plaza sought leave to reopen the evidence to tender a paragraph (namely, [50]) of an unread affidavit sworn by Mr Deiri on 2 November 2016, in which Mr Deiri asserted a different appropriation of payments towards the additional $2 million, by payment of $1 million by EFT from Deicorp Constructions “in accordance with the account details provided by Jamil Sayour”; and “two additional amounts of USD $500,000 (i.e., US$1 million in total)” by international transfer on 12 May, 2012 to two offshore bank accounts “in accordance with Jamil Sayour’s instructions”. It is noted that the forms for these transfers are identified (in the paragraph of Mr Deiri’s unread affidavit) by reference to Tab 5 of Exhibit FD-2 (which comprises pages 66-73), which documents are already in evidence. The dates of the transfers in the exhibited forms are 1 May 2012 and 11 July 2012.

616. [1687]

     I consider that leave should be granted for that paragraph to be tendered as evidence of the making of an assertion at that stage as to the manner in which payments were to be treated. However, I also note the preceding discussion as to admissions (see above). Insofar as there are differences in the manner of appropriation of those payments as between the unread affidavit and Mr Deiri’s now position, I consider that this simply indicates the difficulty and inherent limitations of evidence of recollection after the event.

617. [1688]

     The submissions that the Sayour Parties seek to make in relation to these documents are that: it is apparent that this paragraph, despite the mention of an incorrect date, refers to the same three payments as are differently appropriated in the 22 August 2019 affidavit; this inconsistency provides further support for the submission that Mr Deiri’s evidence in the latter affidavit, of oral conversations with Jamil by which different and more self-serving appropriations were supposedly made, is not reliable; and it supports Plaza’s case that the first two payments to Lebanon were appropriated to the additional $2 million. Pausing here, I note again my observations in permitting this tender.

618. [1689]

     Second, the Sayour Parties say that the effect of Mr Deiri’s evidence is such that it cannot be concluded that there was communicated any clear intention to appropriate payments as alleged in his affidavit sworn on 22 August 2019, because Mr Deiri’s evidence reveals that (in his terminology) he did not (and it is said that even now still does not) make any clear distinction between the $5.6 million and the $2 million. The Sayour Parties argue that, if Mr Deiri cannot be precise about these things in his affidavit some seven years after the event, there can be no confidence that he made any specific appropriation at the time. It is submitted that, to be effective, a debtor’s direction as to the manner in which payments are to be appropriated must be in clear terms (referring, by way of example, to APX Projects Pty Ltd v The Owners – Strata Plan No 64025 [2015] NSWSC 1250 (APX Projects) per Slattery J at [30], his Honour citing Fisher and Lightwood’s, Law of Mortgage (3rd ed, 2013, LexisNexis) at [32.52]). It is noted that entries made by the debtor in his or her own books are not sufficient evidence of a particular appropriation of money paid on a general account (citing Wrout v Dawes (1858) 25 Beav 369; 53 ER 678) and that this is because the appropriation must be objectively manifest with reasonable certainty so as to put the matter beyond recall.

619. [1690]

     The Sayour Parties point out that, where the debtor does not appropriate his or her payment to a particular debt, the creditor enjoys the right of choosing the debt to which the payment is appropriated (see APX Projects at [32], citing Cory Brothers & Company v Owners of Turkish Steamship ‘Mecca’ [1897] AC 286); and that, if there is no appropriation by either debtor or principal, the rule is that the money is first applied in payment of interest and then, when that is satisfied, in payment of the principal sum (citing Falk v Haugh 53 CLR 163 at 173; [1935] HCA 35 per Rich, Dixon, Evatt and McTiernan JJ (Falk v Haugh)).

620. [1691]

     It is also noted that it was argued (although not decided) in Re Cambridge Credit Corporation Ltd (Receiver Appointed) (1991) 6 BPR 13,894 (Re Cambridge Credit) that it is not open to a debtor who has promised to pay interest to appropriate to principal before paying interest. The Sayour Parties submit that, in principle, this view is sound but have not found any decided case in which this precise point was at issue and determined one way or the other; and they note that there is much obiter dicta reserving the debtor’s general right to appropriate at the time of payment.

621. [1692]

     The Sayour Parties refer to what was said by Rigby LJ in Parr’s Banking Co Ltd v Yates [1898] 2 QB 460 at 466, namely that “[t]o apply the sums paid to principal where interest has accrued upon the debt, and is not paid, would be depriving the creditor of the benefit to which he is entitled under his contract, and would be most unreasonable as against him”. Rigby LJ there recognised (as did Powell J in Re Cambridge Credit (at 13,896)) that the rules as to appropriation operate subject to the parties’ agreement or to a usual contrary practice.

622. [1693]

     The Sayour Parties submit (similarly to the observations of Rigby LJ) that, where a debtor has promised to pay interest, then to appropriate a payment to the principal money which carries interest under that promise, before the interest has been paid, would be contrary to the promise to pay interest and depriving the creditor of part of the benefit of the contract. They submit that it follows that in such a case it is not open, because it would be contrary to the agreement, for the debtor to retain the right of appropriation to the extent of exercising it to pay the principal before the interest which has accrued and is due upon that principal has been paid. While it is accepted that this will not necessarily deprive the debtor of all rights of appropriation (as for example, between payment of different debts or between interest on different debts –i.e., that there may be appropriations which do not prejudice the creditor’s contractual rights); it is submitted that an appropriation which is prejudicial to the promisee because it is or would be inconsistent with contractual obligation (as they say is the case here) is not one that any party is entitled to make.

623. [1694]

     Insofar as Mr Deiri (see at [116] of his affidavit sworn on 22 August 2019) has deposed that, after the contract for sale was executed in December 2011, he then “made a number of further payments from [his] various companies for the balance of the purchase price of 50% of the Broadway Property” and then there sets out table of sums totalling the full $8 million, the Sayour Parties say that the table does not distinguish between the payments and that it does not follow that reference to the purchase price in the conversations to which Mr Deiri deposes are or were intended to discriminate between the deposit, the balance or the additional $2 million. It is said that this is borne out by the 15 June 2012 email (see at [287] above), which refers to “payment for punchbowl Total $8,000,000” and then gives directions for payment of the entirety without discrimination between the balance and the $2 million.

624. [1695]

     In respect of the payment of $500,000 on 1 May 2012, it is noted that Mr Deiri deposes (see at [118] of his affidavit sworn on 22 August 2019) that on or around that date he told Jamil that he had some “money for the purchase price I want to give you. I want to make a payment of $500,000” and that (at [119]) Jamil later telephoned him and said, “[w]e would like you to make the first payment to Lebanon”, the Sayour Parties (apart from submitting that I should not be persuaded that those words were used) say that this is not evidence of a specific appropriation. It is noted that the email of 15 June 2012 used the term “payment for [P]unchbowl” and that this expression was equally referable to the $2 million, as the calculations show; and that the email did not discriminate between those two categories of payments.

625. [1696]

     It is further noted that (at [124] of his affidavit sworn on 22 August 2019) Mr Deiri gives evidence that he followed the directions in the email, which required $1.7 million to be paid in part to Lebanon and, as to $200,000, to Jamil but that he only sent $500,000 to Lebanon because Jamil subsequently asked him to transfer $1 million by EFT to a specified account in Australia. The Sayour Parties say that none of this amounts to an appropriation of any part of the $1.7 million to the balance of $5.6 million. The Sayour Parties further say that, in fact, Mr Deiri did not follow the instructions in the email because, as to the $200,000 paid to Jamil, he did not send it to Jamil’s nominated account (which was a Bank of Sydney account) – instead he provided a cheque made out to Jamil personally (and they note that Mr Deiri does not there explain why).

626. [1697]

     In respect of the $1 million transferred, it is noted that it was transferred electronically to the Westpac #202 Account (it will be recalled, being the account previously nominated by Jamil as “my account” for the $10,000 per month payments – see at [157] above). The Sayour Parties note that the payment was made by Deicorp and was recorded in its account statement as “Jamil Pt” (with no reference to the fact that the account was in the names of Jamil and Moustafa as trustee for the Sayour Family Trust nor was there any record that Mr Deiri considered this as being an account for the Sayour Family Trust at the time).

627. [1698]

     Insofar as Mr Deiri deposes that on 17 August 2012 two cheques were drawn at the same time, one for $150,000 in favour of Jamil and one for $3.25 million in favour of “Moustafa & Jamil Sayour Trustee for Sayour Family Trust”, the Sayour Parties say that there was no explanation as to why the payment was made into two cheques, one of which was to Jamil alone and not designated as trust money. The Sayour Parties emphasise that it is not suggested that notice of this was given to Moustafa and they say that Mr Deiri was not entitled to rely on Jamil to tell Moustafa. The Sayour Parties note that even the $3.25 million cheque was not made out to Plaza; that Moustafa was not informed that it was being delivered to Jami; and that only $3 million of it was ultimately transferred into his control in February 2013.

628. [1699]

     It is submitted that given the “irregular” manner in which these payments were made, this is not a case where the proper appropriation of the debt contrary to the default rule can be implied from the circumstances of payment (citing APX Projects at [31]). The Sayour Parties, to the contrary, submit that the manner in which the payments were made supports a finding that they were not specifically directed towards the principal money owed under the loan agreement. It is said that there is only Mr Deiri’s word that he gave Jamil instructions as to the appropriation; there being no documentation to support his account of his dealings with Jamil. Further, the Sayour Parties point out that, through the period of these payments, the monthly $10,000 payments were continuing (these only being terminated in August 2012).

629. [1700]

     Insofar as Mr Deiri gives evidence (at [126] and [128] of his affidavit sworn on 22 August 2019) that these were appropriated by verbal comments to Jamil (to “clear the $6 million” and that “I’ve now paid the $6 million. We’re all done and dusted” – notwithstanding that on his own evidence he still had $2 million to pay), the Sayour Parties emphasise that this is not supported by any note, receipt or other record. They maintain that verbal comments to Jamil were not communications to Plaza, since Jamil had no authority to give receipts for these payments. Therefore, it says that Investments did not make any appropriations.

630. [1701]

     The Sayour Parties note that, of the above payments, only the two $500,000 deposits to Lebanon and the $3 million ultimately received are credited as received by Plaza (i.e., $4 million out of $6 million); and that three of the payments (for which Plaza does not here give credit) were made directly in the name of Jamil. It is said that the “deposit” had a different character when it was “paid” (that it was neither delivered nor mentioned to Moustafa and that it has “disappeared without so much as a receipt”). It is said that an experienced businessman like Mr Deiri could not have thought that this was how to obtain a valid discharge for substantial debts.

631. [1702]

     The Sayour Parties submit that there is no basis on which it can be said that such payments to an agent (in many instances explicitly distinguishing him from the principal) were made to Plaza in fulfilment of Investments’ obligations. It is submitted that Mr Deiri was not candid in his explanations about the payments made directly to Jamil; and that his later evidence in cross-examination (see, particularly, at T 933.20-21) included very significant concessions including that he knew that Jamil “had money that was coming from Broadway that he was going to potentially put into here [Combined Projects Arncliffe], yes”.

632. [1703]

     The Sayour Parties say that, either because it was not open to Investments to appropriate the payments as it alleges or because there is no sufficient evidence of any definite appropriation communicated to Plaza at the time of payment or within a reasonable time thereafter (Jamil not being authorised to receive or direct payment or, in any event, being disqualified by bribes), the payments were impliedly appropriated first to interest; alternatively, that it remained open to Plaza, as the creditor, to make the appropriations which are made by the pleading in the Second Broadway Cross-Claim.

633. [1704]

     In summary then, it is submitted that, of the first $6 million (of which only $4 million was received by Plaza), the amount received has been appropriated as follows: payment on 1 May 2012 of $500,000 to the further $2 million liability (see Second Broadway Cross-Claim at [27]-[29]); payment on 11 July 2012 of $500,000 appropriated to the further $2 million liability (see Second Broadway Cross-Claim at [30]-[32]); payment on 6 February 2013 of $3 million appropriated to interest (alternatively, first to interest, next to the deposit, and last to the balance under the contract for sale) (see Second Broadway Cross-Claim at [42]-[43]).

634. [1705]

     In relation to this finding, I start from the proposition (which I have accepted above) that Moustafa left it to Jamil to manage the decisions of the Broadway Development and that he impliedly, if not expressly, authorised Jamil to direct where payments were to be made (other than for Jamil’s own personal benefit, which I cannot accept was within any authority conferred on Jamil by Moustafa); and to receive those payments in the sense of collecting and depositing cheques.

635. [1706]

     I also accept that, ordinarily, it is open to a debtor to nominate payments to particular debts (see the authorities referred to above and see also Mita Copiers Australia Pty Ltd v Condor OA Pty Ltd (Supreme Court (NSW), Hunter J, 10 October 1994, unrep); Moratic v Gordon (2007) 13 BPR 24,213; [2007] NSWSC 5 (Moratic v Gordon). As to whether it is open to a debtor who has promised to pay interest to appropriate payments to principal before interest, that raises interesting academic issues but I do not consider it necessary here to deal with that for the following reasons.

636. [1707]

     Under the contract for sale, interest was payable only if the purchase price was not paid by 30 June 2012.

637. [1708]

     On either case, therefore, interest would not have been payable before that time and it must have been open to the Deiri interests to nominate payments before then as going to the principal sum payable.

638. [1709]

     Under the handwritten amendment to cl 8, in effect there was a later repayment date appeared to be contemplated (the “31st” September 2012).

639. [1710]

     I accept that caution must be exercised in accepting Mr Deiri’s account of oral communications with Jamil (leaving aside the contentions as to Jamil’s authority) to the extent that these are uncorroborated conversations with a deceased person.

640. [1711]

     Nevertheless, Moustafa clearly left it to Jamil to direct certain payments (such on then to his Lebanon bank account. Thus, Moustafa cannot now be heard to say that payments by cheque made out to Plaza but given to Jamil or paid as directed by Jamil to accounts in the name of or controlled by Moustafa (albeit held jointly with Jamil) were not paid to Plaza. However, cheques drawn payable to Jamil cannot be included in that amount.

641. [1712]

     I would accept that payments made at Jamil’s direction (such as the EFT transfers to Lebanon) or payments made to trust accounts operated for Plaza as trustee of the Sayour Family Trust should be taken to be payments of principal owing under the contract of sale at least up until interest became payable, since it makes sense that the debtor would appropriate those payments accordingly.

642. [1713]

     After the (nominal) date for interest (30 June 2012) became payable there were a number of payments left. Having regard to the email of 15 June 2012 and the subsequent 25 September 2013 letter (which Jamil did not dispute), I would treat those additional payments as payments of principal not interest.

643. [1714]

     I accept that Mr Deiri’s unread affidavit has an inconsistent appropriation and that his evidence is inconsistent (and that the contemporaneous evidence is to some extent equivocal). However, on balance I accept that Mr Deiri generally followed the instructions of Jamil in relation to payments (as evidence by the Lebanon payments) and it seems that there was no complaint at the time. I would therefore make factual finding #10.

644. [1715]

     The next factual finding sought by the Deiri Parties is that Investments paid the $2 million that was agreed on account of Plaza’s costs (which, as will be recalled, they say was additional to the $6 million purchase price for the land; and see Mr Deiri’s affidavit sworn on 22 August 2019 at [132]-[155]). It is submitted that Mr Deiri gave unchallenged evidence that Jamil directed him to make the relevant cheques as he did, and that he followed those instructions.

645. [1716]

     It is submitted that those payments were made by the following instalments: on 29 October 2012, by a cheque for $250,000 made out to “Sayour Family Trust” and provided the cheque to Jamil (which was banked on 30 October 2012 into the Westpac #202 Account) (see at [313] above); on 23 November 2012, by a transfer of $500,000 to Moustafa’s Blom Bank account in Lebanon (see at [317] above); on 17 December 2012, by a further $500,000 transferred to Moustafa’s Blom Bank account in Lebanon (see at [319] above); on 8 February 2013, by a cheque for $400,000 made payable to “Sayour Investments Pty Ltd” (it will be recalled, Plaza’s former name) and provided to Jamil (see at [337] above); on 15 August 2013, by cheque for $150,000 made payable to “J Sayour” (see at [372] above), and provided to Jamil (which it is said seems to have been banked into a Westpac #490 Account in Jamil’s name); and on 25 September 2013, by cheque for $200,000 made payable to “Broadway Plaza P/L” (see at [416] above) and provided it to Jamil (though it is not clear where this cheque was banked). (Note: following publication of these reasons the Deiri Parties have informed the Court that, insofar as their submissions recorded as unknown the destination of the said amount or amounts, this was incorrect - see subsequent reasons.)

646. [1717]

     As to the 8 February 2013 cheque for $400,000, the Deiri Parties say that it is not clear where this cheque was banked and that the suggestion by the Sayour Parties in their aide memoire (marked MFI-1), that it was paid into the Westpac #202 Account, is not correct.

647. [1718]

     The Deiri Parties point to Mr Deiri’s evidence that, when he handed the last cheque to Jamil, they had a conversation to the effect that he told Jamil this was the final payment and then Jamil thanked him see at [152] Mr Deiri’s affidavit sworn 22 August 2019). It is said that this is consistent with the letter from Mr Deiri to Jamil on 25 September 2013, confirming that all of the moneys for the purchase of the land, and the additional $2 million for associated costs, had been paid (see at [414] above).

648. [1719]

     It is said that Mr Deiri’s evidence of the conversation with Jamil confirming the final payment, and the provision of the above letter to Jamil, was not challenged.

649. [1720]

     As to the assertion by the Deiri Parties that the additional $2 million was paid by the payments identified above, Plaza accepts that it received the two payments of $500,000 each to Blom Bank in Lebanon in May and July 2012 and the further two payments of $500,000 on 23 November and 17 December 2012 that were also paid to Blom Bank in Lebanon, but denies receipt of the other payments. It says that the other payments were all cheques handed to Jamil, noting that one (the cheque of 14 August 2013 of $150,000) was made out to Jamil personally.

650. [1721]

     The Sayour Parties say that Investments’ case in this regard depends on a finding that Jamil had authority to receive and direct payments. I consider that he did (other than insofar as he directed payments to his own account). I accept that the appropriations depend on alleged oral conversations and the letter of 25 September 2013 which Jamil countersigned to acknowledge payment of the full $8 million; that the conversations depend on the uncorroborated evidence of Mr Deiri; and that the 25 September 2013 letter depends on the case that Jamil had authority.

651. [1722]

     The Sayour Parties say that the common element is that both parties’ cases fortuitously (but for inconsistent reasons) credit the two Blom Bank payments of November and December 2012 towards the $2 million.

652. [1723]

     It is submitted that, if the tender of [50] of Mr Deiri’s affidavit of 2 November 2016 be allowed (as to which, see above), that would corroborate Plaza’s case that the two earlier Blom Bank payments of May and July 2012 were credited towards the $2 million, but would assert a different position as to the balance of $1 million (specifically, the Sayour Parties note that it is asserted that this was paid by the electronic funds transfer that was made to the Westpac #202 Account on 10 August 2012). It is said that this would conflict with both parties’ cases. It is noted above that the payment of 10 August 2012 was marked “Jamil PT” in Deicorp’s bank statement.

653. [1724]

     Leaving aside the payments that the Sayour Parties accept were received by Plaza by reason of the payments made to Moustafa’s bank account in Lebanon (being those in May to June 2012 and then in late 2012, totalling $2 million) and also leaving aside for the moment how those are correctly to be appropriated in respect of amounts owing by Investments at the time, the issue arises in relation to the payments made by cheque (payable variously to “Sayour Family Trust”, “Sayour Investments”, “Broadway Plaza P/L” and, most troubling, “J Sayour”).

654. [1725]

     I do not accept that the letter of 25 September 2013 wholly overcomes the present difficulties. This is because the significance of there being no demur to the proposition that all the moneys for the purchase of the land (and additional $2 million) had by then been paid depends on Jamil’s authority to bind Plaza to that position (since there is no evidence that Moustafa received the letter of 25 September 2013 or was aware of its contents).

655. [1726]

     I consider that the cheques made payable to “Sayour Family Trust” and “Sayour Investments” Pty Ltd (as to the former, on 29 October 2012, in the sum of $250,000 and as to the latter, on 8 February 2013, in the sum of $400,000 (see at [313] and [337] above) should be taken to be payments that were received by Plaza in relation to the amounts owing in respect of Investments’ acquisition of its half share of the Broadway Site. I find this because I accept that Moustafa impliedly authorised Jamil to deal with aspects of the Broadway Development and, in so doing, held him out as being able to accept and direct the payment of moneys on Plaza’s behalf. If those funds were then misappropriated by Jamil, then that is a matter between Plaza and Jamil’s estate.

656. [1727]

     However, I do not accept that Jamil was expressly or impliedly authorised to direct that moneys (due to Plaza) be paid to himself. Accordingly, I consider that the sums paid on 15 August 2013 (of $150,000 payable to “Jamil”) (see at [372] above) and on 17 August 2012 also made payable to Jamil ($150,000) (see at [300] above); and on 25 September 2013 ($200,000) by cheque drawn in favour of “Broadway Plaza P/L”, which was provided to Jamil and which cannot be traced to any bank account in Plaza or Moustafa’s name(s)) (see at [416]) were not moneys received by Plaza; and I so find. (Note: following publication of these reasons the Deiri Parties have informed the Court that, insofar as their submissions recorded as unknown the destination of the said amount or amounts, this was incorrect - see subsequent reasons.)

657. [1728]

     Therefore, this means that, of the amount agreed to be paid for the acquisition of the land, I find that those moneys (totaling $500,000) cannot be apportioned as payments to Plaza and there will be a balance owing by Investments.

658. [1729]

     The Deiri Parties next contend that Plaza is bound by the Stage 2 Construction Contract and Stage 2 Loan. This turns on the execution by Jamil on 15 May 2013 of a letter, on the letterhead of the Broadway Partnership, to Deicorp Constructions accepting the 14 May 2013 Deicorp Constructions’ tender to Plaza for the construction of the residential apartments for a lump sum of $24.85 million (see at [356] above); and his execution of the Stage 2 Construction Contract purportedly on behalf of the Broadway Partnership (see at [357] above).

659. [1730]

     The Deiri Parties say that Jamil had authority to sign on behalf of Plaza by reason of the Powers of Attorney and therefore that the Stage 2 Construction Contract bound the partners. I do not accept this submission (for the reasons indicated when dealing with the Powers of Attorney argument).

660. [1731]

     The Deiri Parties also say that Jamil had authority on behalf of Plaza to sign the 20 June 2013 the “Deed of Variation and Restatement No. 1” (see at [363] above) and “Amended and Restated Cash Advance Facility Agreement” (which had the effect of reinstating the balance of the Stage 1 Loan as an investment facility and creating a separate facility for construction of the residential units known as the Stage 2 Loan). Again it is said (and I do not accept this submission) that Jamil had the authority to sign these deeds on behalf Plaza by reason of the Powers of Attorney and, accordingly, these deeds were binding.

661. [1732]

     The Deiri Parties maintain that the logical inference (arising from the following that: Moustafa had already been put on notice that there was a (or the) Stage 2 Construction Contract that would ultimately be needed to have been signed at some point, that the Stage 1 Construction Contract was only for the construction of the shopping centre and car park; that Moustafa had attended the launch of the shopping centre and knew the building was proceeding to the residential component; and that Moustafa had banked two cheques for proceeds for sale of the apartments), is that Moustafa knew that Jamil had signed the Stage 2 Construction Contract: how else, the Deiri Parties ask rhetorically, did Moustafa think the apartments were being erected?

662. [1733]

     Alternatively, insofar as Moustafa did not know that Jamil had signed the Stage 2 Construction Contract, it is said that Moustafa must have left it to Jamil to determine what else needed to be done, and what other documents needed to be executed, for the development to progress. It is noted that Moustafa knew from the beginning that he had only signed a construction contract for Stage 1 and it is said that this, again, illustrates Jamil’s authority to act for Plaza.

663. [1734]

     Insofar as the Sayour Parties point to the increase in the price between the price in the original tender that Deicorp submitted for Stage 2 in December 2011 (which specified a price of $23.5 million for the construction of the residential units – see at [145] in the above chronology) and the Stage 2 Construction Contract signed on 15 May 2013 (which specified a price of $24.85 million, an increase of $1.350 million – see at [357] in the above chronology), the Deiri Parties submit that the increase in price itself is unremarkable. It is noted that the earlier tender for the residential apartments was not binding; that the tenders only became binding when they were incorporated into the construction contracts; and that the Stage 2 Construction Contract was not executed until on or about 15 May 2013. It is said that it is not at all surprising that, 17 months after the initial costs breakdown was worked out, there was a price increase when it came to signing a construction contract for the apartments.

664. [1735]

     As to the allegation by the Sayour Parties that Mr Deiri knew (both at the time he signed the Stage 2 Construction Contract and thereafter) that Moustafa was unaware of this increase in price and that Moustafa had not agreed to it, relying on two emails (the first being the email Jamil sent to Mr Deiri on 16 May 2013, the day after the Stage 2 construction contract was signed – see at [359]; and the second being an email sent by Jamil to Mr Deiri on 10 November 2013 – see at [419]), the Deiri Parties say the following.

665. [1736]

     First, that it was never put to Mr Deiri that, at the time of signing the Stage 2 Construction Contract on 15 May 2013, he knew that Moustafa did not know or approve of the increase in price (and so the Deiri Parties say that Plaza cannot now be permitted to make that submission). It is said that all that was put to Mr Deiri was that, at the time of signing, he knew that Moustafa had not consented to the Stage 2 Construction Contract.

666. [1737]

     Pausing here, it is evident from the contemporaneous emails that Jamil had conveyed to Mr Deiri very shortly after the Stage 2 Construction Contract was signed that Moustafa was not aware of, and therefore cannot have consented to or approved, the Stage 2 Construction Contract insofar as it contained any increase in price. To my mind, there is no other way in which the email of 16 May 2013 can sensibly be read.

667. [1738]

     Second, that the Sayour Parties have not identified how the issue of Mr Deiri’s knowledge (as to Moustafa not having consented to the increase in price) bears on any cause of action or defence. I interpose to note that the Sayour Parties answer this, as I understand it, in effect by saying that Mr Deiri owed fiduciary obligations as a partner to Plaza and that it was not consistent with those obligations for Mr Deiri to conceal such matters from Moustafa.

668. [1739]

     Third, that from the point of signing of the Stage 2 Construction Contract on 15 May 2013, Plaza was bound and it cannot make any difference whether or not Mr Deiri knew or suspected that Moustafa had not agreed or consented to the increase in price after signing the agreement. It is said that, even if Moustafa had (for example, the day after signing the contract) told Mr Deiri that he had never approved or signed it, Mr Deiri could, had he wanted to, have replied and insisted that Plaza was nonetheless bound (because Jamil had the authority to enter the agreement on Plaza’s behalf).

669. [1740]

     Again, pausing here, this point, however, is premised on a finding of authority that, for the reasons set out above, I do not accept should be made. Furthermore, the issue of knowledge would surely be relevant to, inter alia, any conventional estoppel or estoppel by acquiescence claim put in relation to payments made under that Stage 2 Construction Contract.

670. [1741]

     Fourth, that, even if Mr Deiri thought that Moustafa did not know about the price increase at the time he signed the Stage 2 Construction Contract, this would not impugn Jamil’s authority. I have concluded otherwise as to the issue of Jamil’s authority. Specifically, I accept that Jamil was given a level of day-to-day authority to run the business of Plaza and I accept that, having been granted that authority, the fact Jamil did not keep his father informed of some matter or other would not detract from his authority. However, I do not accept that the authority that Jamil was given extended to his entry into substantial construction contracts (even if the contract were for the same construction price). Insofar as it is submitted by the Deiri Parties that the Powers of Attorney gave Jamil full authority to act on Plaza’s behalf, subject only to the restriction appearing from 26 March 2012 on encumbering or disposing of real estate, and that a Power of Attorney is no less effective if the attorney does not keep the principal informed at all times of what the attorney is doing, I do not accept this submission in light of my findings on the Powers of Attorney (as to which, see below) and authority issues (as to which, see above).

671. [1742]

     Fifth, that Moustafa gave no evidence about what he would have done had he known about the price increase (simply that he did not know about it). It is noted that there is no evidence about the reason for the increase in construction costs (though it is suggested that there may be many obvious potential reasons, such as increases in material or labour costs, a change in market conditions and/or additional information about the site and feasibility having developed the first stage of the car park and shopping centre on which the residential apartments were to be built). It is submitted that it may well have been that, had the increase been discussed and explained to Moustafa, he would have agreed to it in any event. It is said that, whatever legal argument Plaza seeks to advance based upon the allegation of Mr Deiri’s knowledge, it would bear the onus of showing that it suffered some loss caused by wrongful conduct; and that it has failed to do so.

672. [1743]

     Sixth, it is said that Plaza has, in any event, not proved the allegation. It is noted that the second email in November 2013 was many months after the Stage 2 Construction Contract was signed and contains nothing to suggest Jamil told Mr Deiri anything about his father’s concerns before the contract was signed. As for the first email, the Deiri Parties note that the email was sent after the contract was signed and they point to Mr Deiri’s evidence that, when he received it, he telephoned Jamil and asked him what was going on and Jamil said he would talk to his father about it (see, for example, at T 882.26 - T 883.10).

673. [1744]

     It is submitted that Mr Deiri’s evidence as to his understanding and surprise as to this is consistent with the way in which Jamil had been running Plaza’s side of the transaction with its authority from the beginning. It is said that (contrary to the Sayour Parties’ submissions) it is not correct to say that “Mr Deiri did nothing” when he received these emails (noting that Mr Deiri’s evidence of this telephone call having occurred was not challenged). The Deiri Parties say that it should be accepted that this telephone call was made and that the conversation took place as Mr Deiri said; and that this strongly supports the fact that Mr Deiri did not know, at the time he signed the Stage 2 Construction Contract, that Moustafa had not been told by his son about the price increase (otherwise, he would not have reacted in the way he had, saying “Jamil what’s this email, I’m a bit surprised, what’s going on here”).

674. [1745]

     Pausing here, there is a difficulty in accepting any of the parties’ recollections of conversations with Jamil in the absence of corroborating evidence and this is simply another instance of that difficulty.

675. [1746]

     Insofar as Plaza further submits that Mr Deiri knew that Jamil did not have authority to sign the Stage 2 Construction Contract because Jamil did not purport to sign in Moustafa’s name and did not purport to execute the contract on the basis of a Power of Attorney, the Deiri Parties say that Jamil did not need to purport to sign under Power of Attorney. It is said that Jamil had told Mr Deiri he had a full Power of Attorney and shown him a copy and that there is no reason why Mr Deiri would believe (incorrectly) that the document needed to be signed expressly on that basis.

676. [1747]

     Insofar as Plaza further submits that Jamil purported to sign on behalf of the partnership as “development manager”, but that he was not appointed to that position by the partnership and in any event a manager would not ordinarily have that authority, the Deiri Parties say that Jamil did have authority to bind Plaza, by reason of the Powers of Attorney as well as actual authority, and that Investments plainly authorised entry into the Stage 2 Construction Contract. Therefore, it is said that both partners authorised the transaction.

677. [1748]

     As to this contended for factual finding, the Sayour Parties emphasise that Moustafa did not sign, and was not given the opportunity to sign, the Stage 2 Construction Contract. It is submitted that it was sufficiently put to Mr Deiri that he knew that Moustafa did not know of the price increase (see above in relation to the Browne v Dunn submissions).

678. [1749]

     The Sayour Parties say that Moustafa considered that Jamil’s position with respect to Plaza was that of a person who was to carry out day-to-day tasks and report to Moustafa as and when required. It is said that Mr Sayour’s analogy with Mr Rosa was expressly limited in the course of his evidence in cross-examination (in that he denied that he considered Jamil to be the project manager on behalf of Plaza) (see at T 391.40-46).

679. [1750]

     The Sayour Parties say that inherent in such a role is: a limited level of responsibility; no authority to enter concluded bargains; an obligation to report to Moustafa; and no authority to change the substance of the key bargains concluded by the principal in establishing the business. It is said that a day-to-day manager does not conclude contracts worth millions of dollars or agree to price changes of a similar magnitude; and would not sign the sole director’s signature and purport, by so doing, to represent that signature was in fact applied by the sole director. I interpose to record that I accept the force of this submission.

680. [1751]

     In this connection, reference is made to Australasian Brokerage Ltd v Australian and New Zealand Banking Corporation Ltd (1934) 52 CLR 430; [1934] HCA 34, where (at 450-451), Dixon, Evatt and McTiernan JJ stated that the scope of the authority is determined by the nature of the duty entrusted to the agent.

681. [1752]

     The Sayour Parties say that, before the sale of the half share in the Broadway Site, the nature of the duty entrusted to Jamil with respect to Plaza was not that of a universal agent. They say that, to the extent that his authority was derived from the 30 May 2010 Powers of Attorney (again, see at [101] in the above chronology), it was prescribed by the terms of that grant and that, by May 2013, he had an even more limited Power of Attorney; and that, to the extent that Jamil was granted implied actual authority, then it is submitted that such authority was limited to the usual tasks associated with a senior manager having regard to the nature of his position in the family and in the family business. Again, I record that I generally agree with this submission.

682. [1753]

     It is further said by the Sayour Parties that the receipt of undisclosed payments to Jamil (the $400,000 payment made in October 2011 and the monthly payments of $10,000) vitiated the consensual nature of Jamil’s appointment as an agent in any event. It is said that it is inconceivable that Mr Deiri could have thought that an agent he was paying personally had authority to bind his principal. (In relation to the payments made to Jamil in his personal capacity, I agree.)

683. [1754]

     I cannot make the finding sought in relation to factual finding #12. I do not accept that the level of authority impliedly given to Jamil extended to the entry by him, on Plaza’s behalf, into the Stage 2 Construction Contract; and I do not accept that the Powers of Attorney authorised him to enter into such a contract.

684. [1755]

     The next finding of fact that the Deiri Parties say should be made is that Plaza was paid its share of the partnership distributions from the sale of the residential apartments.

685. [1756]

     It is submitted that the evidence shows that Investments caused the distributions to be made; that Plaza declared it had received its share in its tax returns; that Plaza did not complain about not receiving the distributions for eleven months after the last distribution was made; and that Plaza has already recovered $300,000 of the distributions it says it never received (as noted above, in the earlier Estate Proceedings – see above).

686. [1757]

     As to the making of the partnership distributions, it is said that, following the sale of the apartments, the Stage 2 Loan was repaid in the amount of $42,031,226; that after payment of expenses and GST, there was $19.28 million available for distribution; and that, from mid-November 2014 to January 2015, Mr Deiri distributed this surplus to Investments and Plaza by drawing cheques on the CBA Partnership Account (see Mr Deiri’s affidavit sworn on 22 August 2019 at [217]-[233]). Mr Deiri’s evidence is that each payment was made in accordance with Jamil’s instructions.

687. [1758]

     Specifically, it is said that, in each instance, Jamil directed Mr Deiri as to which entity to whom the cheque should be drawn and that Mr Deiri followed those instructions. It is said that Jamil had authority to give directions to Mr Deiri on Plaza’s behalf about how the partnership distributions should be made; and, therefore, Plaza received its share of distributions (and what then may have happened as between Jamil and Moustafa is a matter between them).

688. [1759]

     As for the payment to Moulikyah on 5 January 2015 (see at [508] above), it is noted that each of Moustafa and Jamil was a shareholder and director of that company. It is said that there is “nothing surprising” about Jamil having directed the payment to be made to that entity (and that, ultimately, Jamil had authority to direct where the payment was to be made).

689. [1760]

     As to the $300,000 recovered from the Estate Proceedings, it is noted that one of the partnership distributions from the CBA Partnership Account which Plaza claims it never received was the payment of $300,000 by cheque on 11 December 2014 made out to “Sayour Family Trust”, which was deposited into the Westpac #238 Account (see at [502] above).

690. [1761]

     It is noted that in the Estate Proceedings (to which the Deiri Parties were not party) orders were made for the recovery of amounts claimed by Moustafa, Plaza and Moustafa’s wife, Fatima, from Ms Elliott as executor or administrator of Jamil’s estate (see Sayour v Elliot [2018] NSWSC 59 at [106]).

691. [1762]

     It is noted that, in those proceedings, it was alleged that a number of cheques drawn on the CBA Partnership Account totalling $5.3 million were moneys held on trust for the Sayour Family Trust, being designated as such on the cheques themselves. Those cheques (summarised at [48] of the Estate Proceedings Judgment) included the cheque dated 11 December 2014 for $300,000 which was deposited into the Westpac #238 Account, an account designated as a trust account for the Sayour Family Trust. As adverted to, the orders made included judgment in favour of Plaza for $300,000.

692. [1763]

     It is said that there is no dispute that Plaza ultimately recovered some $5.8 million from Jamil’s accounts; and that if it were now allowed to claim the $300,000 (the subject of the earlier order) in partnership distributions, it would have double recovery of that amount.

693. [1764]

     It is convenient here also to consider CBA’s reply submissions as to receipt of funds by Jamil.

694. [1765]

     Similarly to the Deiri Parties, insofar as Plaza contends that payments made into the Westpac #202 Account and Westpac #238 Account were payments made, not for the benefit of Plaza, but for the benefit of Jamil alone (these payments encompassing both the “bribes” alleged by Plaza to have been paid to Jamil, about which CBA makes no submission, and also the distribution of Broadway Partnership profits), CBA says as follows.

695. [1766]

     First, it is said that (as Plaza recognises) Plaza sought in these proceedings to recover only those components of the partnership distributions which it could not recover following the separate Estate Proceedings (in which separate proceedings, Plaza, in a pleading verified by Moustafa, alleged that the partnership distributions were the funds of Plaza – see Ex 7 at p 67 – and obtained judgment on that basis). It is said that Plaza failed to recover the full amount of the partnership distributions not because there was any issue of its entitlement to or ownership of those funds; but simply because there were insufficient funds in Jamil’s accounts to meet the full claim.

696. [1767]

     Second, it is noted that Moustafa acknowledged during his testimony that these payments were distributions from the partnership to Plaza which Plaza was entitled to retain.

697. [1768]

     Third, insofar as Plaza now relies for its submission on National Commercial Banking Corporation v Batty, CBA submits that this decision does not assist Plaza. It is said that case did not concern (as here) a payment by a partnership to one of its partners; rather, it concerned the situation where one partner obtained funds belonging to a client, deposited them into the trust account of the partnership without the knowledge of his partner or the client and then misappropriated the funds for his personal benefit. The client was able to sue the bank for money had and received or for conversion of the cheques; but the High Court held that the innocent partner was not liable to the client as he had not been aware of, or authorised, his partner’s unlawful conduct. CBA maintains that National Banking Corporation of Australia Ltd v Batty is not authority for the assertion that in this case Plaza did not receive the funds. It is submitted that it has no relevance to whether funds paid from a partnership account to the account of one partner are taken to have been received by that partner (which is the present situation).

698. [1769]

     Fourth, it is said that the other authorities cited by Plaza also do not address facts such as the present, particularly in circumstances where Moustafa accepted in oral evidence that: the amounts totalling more than $9 million were received by Plaza as partnership distributions; and CBA was entitled to the return of all moneys which it advanced to the Broadway Development.

699. [1770]

     I now turn to consider the submissions for the Sayour Parties in relation to this contested factual finding.

700. [1771]

     In short compass, the Sayour Parties say that: six cheques (totalling $9.49 million) were drawn on the CBA Partnership Account, which were recorded in the Broadway Partnership’s accounts as being payments or distributions of profit from the partnership to Plaza; and, of those, Plaza received the immediate benefit of only $1.6 million. It is said that Plaza had to commence proceedings to recover whatever funds had been left in Jamil’s bank accounts at his death (and, in so doing, it recovered $5 million plus costs and interest).

701. [1772]

     It is said that although Combined Projects Arncliffe has paid to Sayour Holdings the sum of $670,000, Mr Deiri “seems to be attempting to claw that back by attacking control of that company”. Plaza says that, “depending on the outcome of that piece of adventurism”, Plaza remains without funds totalling either $2.22 million or $2.89 million “which were spirited away from its accounts” by Jamil with the assistance, and in the case of Combined Project Arncliffe the receipt, of the Deiri Group, and that it has been without the benefit of the use of those funds or interest for a long period and has incurred “much cost and trouble” even to recover so much as it has.

702. [1773]

     The Sayour Parties submit that the Deiri Parties’ submissions on this aspect of the matter ignore the rule established in National Commercial Banking Corporation v Batty that, when money “goes in and out” of an account by a misappropriation before the account holder knows of it, then the account holder has not received it.

703. [1774]

     I consider that National Commercial Banking Corporation v Batty is distinguishable from the present case broadly on the basis articulated by CBA.

704. [1775]

     Insofar as moneys were paid into the Westpac #202 Account, I have concluded that the partnership distributions were received by Plaza (albeit that it appears that Jamil may then have misappropriated a substantial proportion of those amounts). That is consistent with Moustafa’s stance in the Estate Proceedings – namely, that moneys paid into the Westpac #202 Account were (on receipt into that account) impressed with a trust and that the cheques paid in respect of those moneys were the property of Plaza. It is also consistent with my finding as to Jamil’s authority to manage the day-to-day activities of Plaza and the family’s affairs, which included directions as to the accounts to which moneys were to be paid.

705. [1776]

     The last key finding of fact that the Deiri Parties say should be made in the Broadway Proceedings is that Moustafa knew that Plaza received the partnership distributions, or alternatively knew that Plaza was receiving partnership distributions and left it entirely to Jamil to manage the receipt of those distributions.

706. [1777]

     It is submitted that there can be no doubt that Moustafa knew that partnership distributions were being made at least by November 2014. As will be recalled, Moustafa admits that he attended the Westpac branch in Lakemba and banked two of these cheques himself, totalling $5 million, and that Jamil told him the moneys were from settlements from the apartments.

707. [1778]

     As noted (see at [494] above), the first of these cheques was drawn on the CBA Partnership Account on 24 November 2014 in the amount of $3.35 million. It was made out to “Sayour Family Trust”. That cheque was signed only by Mr Deiri. Moustafa says that, on or around 25 November 2014, Jamil gave him that cheque. In his affidavit sworn on 27 October 2016, Moustafa deposed (see at [89]) to a conversation with Jamil to the effect that Jamil told him that the money was “settlement money from the units” and he asked Jamil how he and Mr Deiri had “done settlement without me” and Jamil had said he did not want to bother his father.

708. [1779]

     It is submitted that, on his own evidence, Moustafa therefore knew that $3.35 million had been paid from the CBA Partnership Account in distribution of proceeds from the sale of the apartments; and that he knew that the units were being settled and proceeds were being received by the partnership.

709. [1780]

     Moustafa’s evidence (see [90] of his affidavit sworn on 27 October 2016) is that he then telephoned Mr Deiri and had a conversation (disputed by Mr Deiri) to the following effect:

710. [1781]

     This conversation is disputed by Mr Deiri, but the Deiri Parties say that, even if it did occur Moustafa, gives no evidence that he expressed any further concern to Mr Deiri. Specifically, it is noted that Moustafa gives no evidence that he replied by saying that Jamil and Moustafa were not the same; nor does he give evidence that he told Mr Deiri that Jamil handling the settlement funds was not authorised or that, in the future, any communications about settlement funds must be directed to Moustafa (contrary to the practice that it is said had previously been adopted, whereby Moustafa was entirely happy for Jamil to be the point of contact when it came to handling payments). I interpose here to note that Moustafa’s account of what Mr Deiri said confirms Mr Deiri’s understanding of the relationship and is much closer to the events in question than the evidence at the hearing.

711. [1782]

     It is further noted that in his affidavit sworn on 27 September 2016, Moustafa set out the phone conversation with Mr Deiri extracted above but made no mention in that affidavit about the fact that the cheque was only signed by Mr Deiri. It is noted that in a later affidavit sworn on 16 September 2019, Moustafa deposes (at [142]) that he noticed that Mr Deiri had not signed the cheque, and says that he also asked Mr Deiri why he had signed this cheque without him and Mr Deiri said, “Uncle, I have authorisation, don’t you remember?”

712. [1783]

     Moustafa goes on in this affidavit (at [143]) to depose:

713. [1784]

     Mr Deiri disputes also that conversation. Relevantly for present purposes, the Deiri Parties note that it did not appear in Moustafa’s earlier affidavit where he gave evidence of the conversation. Insofar as Moustafa claims that this was the first cheque he saw drawn on the CBA Partnership Account, it is submitted that the notion that no cheques had been drawn to pay partnership expenses is “absurd”, and that Moustafa’s evidence about this conversation cannot be true or honest.

714. [1785]

     The Deiri Parties further say that, even if the conversation did occur, by Moustafa’s own evidence he did not dispute the authorisation to sign cheques unilaterally expressed by Mr Deiri. It is said that this suggests Moustafa knew about, and was content with, that arrangement. That is said to be confirmed by the fact that, when a second cheque was presented by Jamil to Moustafa a few days later for $1.65 million (also not signed by Mr Deiri – see at [499] above), Moustafa again said nothing.

715. [1786]

     Insofar as Moustafa’s explanation for not pressing Mr Deiri further was that he was worried about Jamil’s health and that what Mr Deiri said about authorisation did not “strongly register” in his mind, the Deiri Parties point to the cross-examination in which Moustafa first said that news of Jamil’s illness was the day prior to being given the cheque (see at T 470.16-38); whereas, when it was put to Moustafa that Jamil had arrived back in Australia on 4 November 2014, Moustafa altered his account to having the conversation with Mr Deiri 21 days after hearing news of Jamil’s ill health (see at T 470.39-49). The Deiri Parties submit that, if Moustafa had the mental focus and concern to telephone Mr Deiri (21 days after receiving the news of Jamil’s illness) and raise the fact that a cheque had been signed without him in the first place, then he would very likely also have had “enough wherewithal and attention” to have asked what authorisation Mr Deiri was supposedly talking about; and it is submitted that, had Moustafa done so, Mr Deiri would obviously have said that there had been a change in the account terms by the Cheque Authorisation Alteration Instruction. (Pausing here, as to the last, this seems to me to be a moot argument, since on any view of things the Cheque Authorisation Alteration Instruction was not signed by Moustafa and, hence, referring to that document could likely only have led to further confusion on Moustafa’s part.)

716. [1787]

     Again, it is submitted for the Deiri Parties that Moustafa’s account of the conversation with Mr Deiri is a “strategic fabrication” designed to explain away the inconvenient fact that Moustafa had seen a cheque signed only by Mr Deiri and that it should not be accepted that this conversation took place. As already noted, I exercise caution in respect of both sides’ accounts of the various oral conversations to which they depose. This is just another instance of the need for such caution.

717. [1788]

     The Deiri Parties point out that Moustafa’s evidence was that he then had a conversation with Jamil to the effect that Jamil told him that, “[y]ou need to go to the bank to deposit it. I have already told Tamer, he is expecting you” (see at [91] of his affidavit sworn on 27 October 2016). It is noted that Moustafa gives no evidence that he told Jamil not to deal with settlement money without him; and that he says he was upset but he convinced himself that, “so long as the accounts checked out then there was no harm done”. I note that the evidence as to Moustafa’s visit to Tamer itself seems implausible.

718. [1789]

     It is submitted that it should therefore be found that Moustafa knew all along that Plaza was receiving payments for the land and partnership distributions but that, even if Moustafa’s evidence that he thought there was “no harm done” provided that the “accounts checked out” is to be accepted, there are only two logical possibilities: first, that Moustafa checked the Sayour Family Trust bank accounts at some point around this time (which he knew included the Westpac #202 Account and the Westpac #238 Account) in order to satisfy himself that the accounts “checked out”; or, second, that Moustafa did not check the Sayour Family Trust bank accounts and continued to leave it to Jamil to handle partnership distributions, content that if he ever wanted to check the bank accounts and check Plaza’s finances (perhaps at the conclusion of the project) he could do so.

719. [1790]

     It is submitted that, if the first is true, then Moustafa must have accessed the Sayour Family Trust bank accounts or reviewed the bank statements and checked the amounts that had been paid; and would have seen all of the payments for the land that had been deposited as well as the recent two earlier deposits of partnership distributions into the Westpac #202 Account (on 13 and 19 November 2014 comprising amounts of $2.19 million and $1.75 million respectively). It is submitted that that would be fatal to Plaza’s case in the Broadway Proceedings, because it shows Plaza knew about and received the payments it claims it never received.

720. [1791]

     Furthermore, if the second is true, it is submitted that it supports the full authorisation that Jamil had to manage and handle payments for Plaza. That authority is said to be confirmed by the fact that, when Jamil did exactly the same thing a few days later, presenting Moustafa with another settlement cheque signed only by Mr Deiri, Moustafa took no objection. That is said also to be fatal to Plaza’s case in the Broadway Proceedings, because it is said that Jamil had authority to direct and receive the payments on behalf of Plaza.

721. [1792]

     The Deiri Parties further point out that Moustafa has deposed that the person at Westpac said by Jamil to have been expecting Moustafa (referred to as “Tamer”) was a bank manager at the Lakemba branch that Moustafa had “had some dealings with”; that Moustafa claims that, when he attended the branch, Tamer said to him “can you please give me the cheque and sign here”; and that Moustafa claims he handed over the cheque, was given a document he believes “was a receipt of some sort” that he did not read, and signed it. It is noted that the $3.35 million cheque that Moustafa banked was deposited into the Westpac #238 Account in his name.

722. [1793]

     The Deiri Parties submit that there are only two logical possibilities as to Moustafa’s knowledge about this specific deposit: first, that Moustafa knew precisely what he was doing and where he was banking that cheque (which it is submitted is the most compelling conclusion, it being said to be inherently implausible that Moustafa “wandered” into the Westpac branch with a cheque for $3.35 million, “blindly” signed a document without reading it, and had no idea where he was depositing the money); or, second, that Moustafa did not know where the funds were being deposited.

723. [1794]

     It is said that, if the first is the case, then it follows that Moustafa knew about the Westpac #238 Account in his name and it also follows that Moustafa lied about not knowing anything about that account, and about never reading his bank statements. In those circumstances, the Deiri Parties say that it should be found that Moustafa knew about the transactions on that account, which means that Moustafa “knew full well” about the partnership distributions deposited into it.

724. [1795]

     It is said that, if the second is the case and Moustafa deposited the money relying entirely on Jamil’s instructions simply to go to the bank and deposit it without any further information, then the Deiri Parties say that this is powerful evidence that Moustafa deferred financial decision-making about Plaza’s finances and accounts, the receipt and management of funds and where Plaza’s money was to be stored and transferred, entirely to Jamil. It is submitted that this is fatal to Plaza’s case in the Broadway Proceedings.

725. [1796]

     As to the second cheque that Moustafa deposited (it will be recalled, drawn on the CBA Partnership Account on 28 November 2014 in the amount of $1.65 million and made out to “Sayour Family Trust” signed only by Mr Deiri), Moustafa’s evidence is that, on or around 25 November 2014, Jamil gave him this cheque. Moustafa deposes to a conversation to the effect that he asked Jamil, “[w]hat is this, more settlement funds?” and that Jamil said “[y]es, I need you to go to the bank and deposit it please” (see at [95] of his affidavit sworn on 27 October 2016). Moustafa says he then went again to the Westpac branch in Lakemba, met with Tamer, handed him the cheque, and signed another document he did not read. That cheque was also deposited into the Westpac #238 Account.

726. [1797]

     Again, the Deiri Parties say that there are only two possibilities concerning Moustafa’s knowledge: first (again, said to be the most obvious and probable possibility), that Moustafa knew he was depositing the cheque into the Westpac #238 Account (an account in his sole name about which he knew); or, second, that he did not know where the funds were being deposited.

727. [1798]

     It is noted that Moustafa accepted in cross-examination that he kept an eye on and was careful with his money; and that he was a businessperson who had founded and run a successful medical equipment manufacturing business. It is again submitted that it is not plausible that he would wander into the bank and deposit a significant sum without knowing where it was to be deposited, sign whatever the bank staff told him to without reading it and not ask any questions of the bank or Jamil.

728. [1799]

     As to the second possibility (that Moustafa did not know where the funds were being deposited), it is said that, in that case, it follows that Moustafa plainly entrusted that matter and the management of the receipt of Plaza’s distributions to Jamil. It is said that Moustafa was content for Jamil to be the point of contact with Mr Deiri about partnership distributions, and to receive the cheques on its behalf, since Moustafa had not communicated directly with Mr Deiri; that Moustafa must have known that further distributions would have been made given the sales process was underway; and yet he made no complaint about Plaza not receiving sales proceeds until eleven months after the last payment was made; and made no complaint to Mr Deiri asking about the rest of the sales proceeds.

729. [1800]

     Again, both scenarios are said to be fatal to Plaza’s case in the Broadway Proceedings. The Deiri Parties say that it is notable that Moustafa gave no evidence that Jamil’s provision of the $1.65 million cheque to him was a surprise or concern, and that he never admonished Jamil or complained to Mr Deiri. It is submitted that Moustafa’s behaviour is consistent with the fact that he knew where the money was deposited and that Jamil was authorised on behalf of Plaza to deal with distributions without the need for direct communications between Mr Deiri and Moustafa.

730. [1801]

     It is further noted that, although Plaza claims it never received the partnership distributions and knew nothing about the payments made from the CBA Partnership Account, Moustafa signed a tax return (purportedly) on 9 November 2015 for the Sayour Family Trust (of which Plaza was trustee) which declared the distributions. That is said to be damning because it evidences that the distributions were made, that Moustafa was aware of them, and that he regarded them as having been paid.

731. [1802]

     I note that the tax return, produced on discovery, declares a total partnership income for that year of $12,590,536, deductions of $3,986,911 and a net income/loss of $8,603,625. It is noted that on the same page is Moustafa’s signature, which he admitted. Moustafa admitted that the Broadway Development was the Sayour Family Trust’s only investment. Hence, it is said that the partnership distributions recorded could only have been those from the apartment sales paid to Plaza.

732. [1803]

     The Deiri Parties note that, when questioned about the tax return in cross-examination, Moustafa claimed he did not regard signing the tax return as important, he did not read it, he had no idea what was in it and he did not want to know what his tax obligation was (see at T 494.17 – T 495.23). The Deiri Parties say that, when asked about whether he wanted to know how much income the trust had made, Moustafa answered evasively and maintained he did not read the tax return. It is submitted that Moustafa could offer no coherent explanation for not reading the return, at least to check the basic figures, other than that the accountant told him to sign the document.

733. [1804]

     Insofar as Moustafa also said that Jamil and Mr Deiri had told him there was no income coming in (and insofar as he seemingly implied that he did not need to check the income), it is said that that was not true for the tax year ending June 2015 (as Moustafa knew) because he had personally attended Westpac and banked two cheques for the apartment sales for a total of $5 million in November 2014. It is also noted that Moustafa then confirmed he had been signing tax returns for 45 years yet claimed he never read any of them (see at T 497.26 – T 498.11).

734. [1805]

     Following, the Deiri Parties again contend that Moustafa’s evidence that he did not know about the receipt of the sales proceeds should not be accepted. It is again noted that Moustafa is a businessperson who built Biomed, a successful and profitable manufacturing business. It is said that it is not believable that he signed a tax return with an income of $12.5 million and a profit of $8.6 million and that he did not read it and had no idea what he was signing. It is further said that it is not plausible that a businessperson in his position never read a single tax return in his life, as he asserts, and blindly signed any document his accountant put before him. It is submitted that the evidence Moustafa gave was not truthful.

735. [1806]

     In those circumstances, and in light of the other credibility issues arising from his evidence to which I have referred above, the Deiri Parties urge a finding that Moustafa read the partnership income figures on the tax return for the financial year ending June 2015 before he signed it; and that he was aware that Plaza had received the distributions it claims in these proceedings. As noted earlier, the Deiri Parties submit that a Jones v Dunkel inference can be drawn from the fact that Mr Gramelis was not called to corroborate Moustafa’s account of events. It is said that the inference can more confidently be drawn that Moustafa knew the content of the tax return or, at the least, that the evidence Mr Gramelis would have given in relation to Moustafa’s reading of the returns, had it been given, would not have assisted Plaza.

736. [1807]

     It is said that in order to accept Moustafa’s evidence that Mr Deiri and Jamil told him there was no income from the partnership that year, it would be necessary for there to be a finding Mr Deiri and Jamil both lied to Moustafa about the partnership income in that financial year (since it is not disputed that the partnership did earn income that year). It is said that there is no basis for such a finding. It is also noted that Moustafa said nothing in his affidavits about being told that there was no income from the partnership in the financial year ending June 2015.

737. [1808]

     Finally, the Deiri Parties again emphasise that Plaza did not complain for a lengthy period. It is submitted that if the two cheques that he banked were all he knew about the distributions then he would have expected that further distributions would be made and he would have asked where they were when they did not arrive; yet he said nothing. It is noted that at no point after the last distribution payment was made did Moustafa ask about the rest of the sales proceeds, until Jamil’s wake in October 2015.

738. [1809]

     The Deiri Parties submit that the logical inference is that Moustafa made no complaint because he knew that the distributions had been made. It is submitted that, insofar as he did not know, he must have left Jamil to deal with the distributions, reinforcing that Jamil had actual authority to receive cheques and direct payments.

739. [1810]

     I accept that Moustafa knew that Plaza had received some payments out of the settlement moneys from the sale of residential apartments (not least because he personally banked two of the cheques) and that it is certainly difficult to understand how it is that, if Moustafa thought that no more had been received by way of partnership distributions, then Moustafa did not make enquiries at an earlier stage as to the proceeds of the Broadway Development (bearing in mind the anticipated profits that had been the subject of the feasibility figures when the partnership was first in contemplation).

740. [1811]

     Moreover, I consider that the evidence as to the circumstances in which Moustafa came to bank the cheques into the Westpac #238 Account (yet maintained that he was ignorant of that account) is not compelling.

741. [1812]

     However, whether or not Moustafa actually knew about the precise amounts that were paid by way of partnership distributions or appreciated the particular account into which they were being paid, I accept that the evidence leads very comfortably to the conclusion that Moustafa left it to Jamil to manage or direct the receipt of payments on behalf of Plaza in respect of partnership distributions from the Broadway Development (just as he clearly appears to have done in relation to other payments due to Plaza – in particular, the amounts that Moustafa left it to Jamil to organise for payment to his account in Lebanon).

742. [1813]

     Moreover, insofar as amounts were recorded as partnership income in Plaza’s 2015 tax return, I consider that this amounts to an admission by Plaza of the receipt of those distributions (by which Moustafa is bound, having signed the returns, whether or not he read them at the time). Indeed, while not needing to decide the point (because it is not dispositive of the factual finding that I am here making), it seems quite arguable that Moustafa would thereby also have had, if not actual notice, then at least constructive notice of the matters.

743. [1814]

     Therefore, I find that Moustafa was aware that partnership distributions had been made during the course of the Broadway Development out of the proceeds of sale of residential apartments and also that Moustafa was content to leave it to Jamil to manage the receipt of those distributions.