[2025] NSWSC 1009

Boga v 15 Glenburnie Rd Pty Ltd

(1) The defendants are to pay the plaintiff in the sum of $167,000. (2) Interest is payable to the plaintiff by the defendants and is to be calculated by the parties. (3) The defendants are to pay the plaintiff’s costs.

Catchwords

MONEY CLAIMS — Loan agreement — Advances in dispute — Repayments in dispute

Cases cited

Australian Securities & Investments Commission v Rich(2009) 75 ACSR 1
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Ho v Powell(2001) 51 NSWLR 572
Jones v Dunkel(1959) 101 CLR 298
Kraljevic v Kraljevic[2017] NSWSC 225
O'Donnell v Reichard[1975] VR 916
Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125

Legislation cited

Judgment

[1]
This judgment concerns the alleged failure to repay monies and interest borrowed by the defendant in relation to a deed of loan in the sum of $1,900,000.
[2]
The plaintiff is Thomas Boga (Boga) and is represented G George of counsel. The first defendant is 15 Glenburnie Rd Pty Ltd (Glenburnie Rd) and is represented by I Chatterjee of counsel. The second defendant is Ahmed Abdulkader Sakr (Sakr). Sakr is the director of Glenburnie Rd. He is the alter ego of Glenburnie Rd. As such when I refer to Sakr, that reference will also include a reference to Glenburnie Rd, unless otherwise stated.
[3]
For convenience of understanding and without intending any disrespect, I shall refer to the parties by name.
[4]
The issues set out in this judgment are in the following order: background facts, the pleadings, the agreement, the sums agreed, the sums in dispute including any further loans and repayments, credibility and finally, my findings on the disputed transactions. The amount in dispute has been what can best be described as a moving feast. None of the witnesses were entirely credible, a subject to which I will return, with the exception of Boga’s younger son, Seyhan Boga (Seyhan). In this judgment, there is some overlap in the layout but to make this judgment understandable, it has been necessary.

Background facts

[5]
In around 2002, Boga and Sakr first met when introduced by a mutual friend Tank Solak (Solak).
[6]
On 22 May 2007, Anthill Construction Pty Ltd (Anthill Construction) was incorporated with Saly Alman (Saly), Sakr’s wife as the company’s sole director and shareholder. It is fair to say that Sakr is a shadow director of Anthill Construction.
[7]
In 2015, the relationship between Boga and Sakr evolved. Boga was introduced to a property investment at Burrow Lane, Wollert, Victoria (the Wollert property) by his friends Solak and Sakr.

The Wollert property

[8]
On 11 February 2016, the vendor of the Wollert property, Cerna Developments Pty Ltd executed a contract with Rachid Allan (Allan) for Allan himself or a nominee to purchase the land for $600,000 plus GST. The contract specified that completion was to occur on 2 September 2016.
[9]
The evidence does not reveal anything more about Allan, but Boga submitted that it is possible Allan was an alias Sakr used. Sakr denies this. However, this disputed fact is one that does not need to be resolved here.
[10]
On 24 May 2016, Semak Pty Ltd (Semak) was incorporated with the plaintiff and his two sons Seyhan and Hakan Boga (Hakan) as directors and equal shareholders.
[11]
On 2 September 2016, Semak purchased the Wollert property for $600,000 plus GST. After buying the land, Semak went about obtaining further approvals to develop it, and appointed Chinh Mai of Planning and Design Pty Ltd to prepare and submit a development application.
[12]
On 28 August 2018, Semak applied for development consent to build 12 two-bedroom and two three-bedroom apartments on the Wollert property.

The Craigieburn property

[13]
On 10 November 2017, Sakr executed a contract to purchase land at Mount Ridley Rd, Craigieburn, Victoria (the Craigieburn property) for $1,425,000 with settlement to occur on 9 November 2018.
[14]
On 20 November 2017, Sakr spoke to Boga about purchasing the Craigieburn property. Boga and his sons flew to Melbourne to inspect the land, and Boga agreed to purchase the land in a 50/50 partnership split with Sakr.
[15]
On 21 November 2017, Boga paid the sum of $142,500 by bank cheque, being the 10% deposit the contract required to purchase the Craigieburn property.
[16]
On 9 May 2018, the parties engaged Sarris International Pty Ltd (Sarris International) to apply for development consent to construct a childcare centre and multiple dwellings on the Craigieburn property.
[17]
On 7 November 2018, Mount Ridley Developments Pty Ltd (Mt Ridley Developments) was incorporated with Seyhan and Sakr and each holding 50 shares.
[18]
On 9 November 2018, Mt Ridley Developments completed the purchase of the Craigieburn property.
[19]
On 21 February 2019, Sakr transferred his 50 shares of Mt Ridley Developments to a company associated with Solak, Mt Ridley Holdings Pty Ltd (Mt Ridley Holdings).
[20]
On 6 May 2019, Glenburnie Rd was incorporated. Sakr is the director and alter ego of Glenburnie Rd.

The pleading framework

[21]
The starting point is the pleading framework. I will briefly set it out here.
[22]
By an amended Statement of Claim filed on 9 May 2024, Boga sought to have Glenburnie Rd and Sakr, jointly and severally, pay Boga the liquidated sum of $1,054,000 plus interest and legal costs, and interest after judgment until the debt is paid in full, accruing at $554.35 per day.
[23]
Boga agreed to lend Sakr $1,900,000 (the loan). The terms upon which the loan was made were set out in a written loan deed dated 28 October 2019 (the agreement). The agreement was signed by Boga personally and Sakr as a director of Glenburnie Rd and as the guarantor. There is no dispute as to the provisions of the agreement and its relevant provisions. They are as follows:
[24]
Under the agreement, the loan’s term was two months:
[25]
The loan was repayable on, or before, 27 December 2019 (the repayment date). Under the agreement, Sakr guaranteed Glenburnie Rd’s due and punctual performance of its obligations:
1. (1)
  pursuant to the agreement;
2. (2)
  arising as a consequence of the agreement; and
3. (3)
  the obligation was a principal obligation.
[26]
Under the agreement, an event of default occurred if Glenburnie Rd breached any term of the agreement (event of default).
[27]
On 5 September 2024, Sakr filed an amended defence. He agreed to all of Boga’s pleadings regarding the loan, the loan agreement and all its terms and particulars. However, he denied Boga’s allegations in relation to several advances and repayments which will be detailed in the section of amounts in dispute. Sakr also denied that the loan balance of the agreement was $1,840,268.79.
[28]
After the amended Statement of Claim and amended defence were filed, the parties adjusted their figures. As best I can understand it, below are the latest advances and repayments that are common ground or in dispute. At times, it has been by no means clear. The dispute mainly involves whether the payments made were related to Anthill Construction, the builder, or were paid in reduction of the loan agreement.

Common ground – total advances and total repayments

[29]
Both parties agree to the following advances:
1. (1)
  On 30 May 2019, $100,000 – Boga transferred via electronic fund transfer (EFT) to Sakr, first instalment of the first loan (CB22 at [35]). Boga produced a copy of the bank statement including this transaction with the description “loan” (CB 90). Boga also produced a letter from St George Bank confirming that the payee of the transaction was Sakr (CB 92).
2. (2)
  On 5 June 2019, $50,000 – Boga EFT to Sakr, second instalment of the first loan (CB22 at [35]). Boga produced a copy of the bank statement including this transaction with the description “loan” (CB 91). Boga also produced a letter from St George Bank confirming that the payee of the transaction was Sakr (CB 92).
3. (3)
  On 28 October 2019, $250,000 – Boga EFT to Glenburnie Rd as requested by Sakr, first instalment of the second loan (CB 24 at [45]). Boga produced a copy of the email exchange between his lawyer and Sakr’s lawyer along with the bank statement 64 which shows that he transferred the money via EFT (CB 127-130).
4. (4)
  On 29 October 2019, $1,450,000 – Boga EFT to Glenburnie Rd as requested by Sakr, second instalment of the second loan (CB 24 at [45]). Boga produced a copy of the email exchange between his lawyer and Sakr’s lawyer along with the bank statement 64 which shows that he transferred the money via EFT (CB 127-130).
[30]
In total, both parties agreed that $1,900,000 has been advanced. However, there is a dispute regarding how that $1,900,000 is composed.
[31]
In his affidavit dated 5 March 2024, Boga claimed that in May 2019, he agreed to lend Sakr $150,000 at Sakr’s request. Sakr would pay Boga back in four to six weeks. On 30 May 2019, Boga transferred Sakr $100,000 and a further $50,000 on 5 June 2019. The loan was not repaid and became part of the larger loan advanced in October 2019. In October 2019 Sakr requested a further loan of $1,700,000 and in return a “gift” would be paid to Boga of $150,000 as compensation for advancing the loan. The term “gift” replaced the conventional interest payment, as a lump sum interest payment was haram with Sakr’s religious beliefs and his reluctance to practice “usury”. As he broke his term deposit, Boga needed to pay his bank a penalty fee of $23,890. Sakr agreed to pay the bank’s penalty fee if the loan was executed.
[32]
Boga’s solicitor, Guijan Boga, drafted a loan agreement for the sum of $1,900,000 with the land at 15 Glenburnie Rd, Beveridge Victoria (the Beveridge property) to be owed by Sakr as security (the loan agreement). The loan of $1,900,000 was comprised of the first loan ($150,000), the penalty fee ($23,890), and two payments amounting to $1,700,000, which together totaled $1,873,890. Boga did not provide any further explanation about the gap of $26,110.
[33]
During cross-examination, Boga gave evidence that Sakr should have paid him back $1,900,000 on 27 December 2019, plus another $150,000 (T55 [33]-[35]):
[34]
In his affidavit dated 29 August 2024, Sakr denied that the $150,000 was a “gift” for Boga providing the loan but it was to be deducted from the building contract of the Wollert property. It would offset any future contractual payments between Semak and Anthill Construction for anticipated building works at the Wollert property.
[35]
During cross-examination, Sakr acknowledged that he borrowed $1,900,000 from Boga. He claimed that the loan of $150,000 was paid, however he did not explain how it was comprised (T268 [28]-[50]; T269 [1]; T269 [14]-[18]):
[36]
Both parties agree to the following repayments:
1. (1)
  On 26 November 2019, $67,000 – Boga deposed that Sakr purchased a Ford Raptor for him as a repayment (CB 24 at [48]).
2. (2)
  On 26 November 2019, $4,500 – Boga deposed that Sakr paid him cash (CB 24 at [49]).
3. (3)
  On 23 December 2019, $556,500 – Boga deposed that Sakr deposited cash to him (CB 24 at [53]).
4. (4)
  On 19 March 2020, $300,000 – Boga deposed that Sakr transferred to him via EFT through Anthill Construction (CB 25 at [59]).
5. (5)
  On 23 March 2020, $100,000 – Sakr made an EFT to Boga through Anthill Construction (CB 25 at [60]).
6. (6)
  On 24 March 2020, $100,000 – Sakr made an EFT to Boga through Anthill Construction (CB 25 at [61]).
7. (7)
  On 24 August 2020, $20,000 – Mustapha Mohamad Wehbe (Wehbe) gave cash to Boga as per Sakr’s instructions (CB 26 at [65]).
8. (8)
  On 29 December 2020, $350,000 – Sakr made an EFT to Boga (CB 26 at [73]).
9. (9)
  On 1 January 2021, $10,000 – Sakr made an EFT to Boga (CB 27 at [74]).
10. (10)
  On 25 January 2021, $20,000 – Sakr deposited cash to Boga (CB 27 at [75]).
11. (11)
  On 25 January 2021, $20,000 – Wehbe gave the cash to Boga’s wife as per Sakr’s instructions (CB 26 at [76]).
12. (12)
  On 24 February 2021, $25,000 – Wehbe gave cash to Boga as per Sakr’s instructions (CB 27 at [77]).
13. (13)
  On 24 March 2021, $20,000 – Wehbe gave cash to Boga as per Sakr’s instructions (CB 27 at [78]).
14. (14)
  On 1 June 2021, $10,000 – Sakr deposited cash to Boga (CB 27 at [83]).
15. (15)
  On 1 June 2021, $10,000 – Sakr made an EFT to Boga (CB 27 at [84]).
16. (16)
  On 7 June 2021, $3,000 – Sakr made an EFT to Boga (CB 28 at [85]).
17. (17)
  On 21 July 2021, $20,000 – Wehbe gave cash to Boga as per Sakr’s instructions (CB 28 at [88]).
18. (18)
  On 23 September 2021, $43,000 – Sakr made an EFT to Edna Marie Szeto (Ms Szeto) under Boga’s instructions as a repayment (CB 543 at [20]; CB 387 at [11]).
[37]
In total, both parties agreed that $1,679,000 has been paid.

Amounts in dispute – total advances in dispute and total repayments in dispute

[38]
The following advances are in dispute:
1. (1)
  On 27 December 2019, $450,000 – Boga claimed that Sakr called him for money. Boga made an EFT to Anthill Construction as per Sakr’s instructions (CB 25 at [54]-[55]). Sakr produced a record of telegraphic transfer from St George Bank showing the transfer of $450,000 on 27 December 2019 to Anthill Construction (CB 138).
2. (2)
  On 23 February 2020, $45,000 – Boga claimed that he gave cash to Sakr when Sakr collected him from Melbourne airport (CB 25 at [58]).
3. (3)
  On 10 November 2020, $100,000 – Boga claimed that he made an EFT to Anthill Construction as per Sakr’s instructions (CB 26 at [69]. Boga produced a copy of the telegraphic transfer that he made to Anthill Construction on 10 November 2020 (CB146)).
4. (4)
  On 29 November 2020, $65,000 – Boga claimed that he gave cash to Sakr when having dinner with Sakr (CB 26 at [71]).
5. (5)
  On 31 March 2021, $20,000 – Boga claimed that he gave cash to Sakr in the presence of John Aras (Aras) (CB 27 at [80]).
6. (6)
  On 19 July 2021, $150,000 – Boga claimed that he made an EFT to Anthill Construction as per Sakr’s instruction (CB 28 at [87]). Sakr produced a copy of the telegraphic transfer he made to Anthill Construction on 19 July 2021 (CB 157).
[39]
In total, advances of $830,000 are in dispute.
[40]
The following repayments (not involving the third parties Ousama El Zohbi (El Zohbi) and Wehbe) are in dispute:
1. (1)
  On 2 June 2020, $25,000 – Sakr claimed that he made an EFT to Anthill Construction, which Boga agreed to, as a reduction of the amount owed to Anthill Construction by Mt Ridley as well as reducing the loan (CB 423 at [39]). Sakr produced a bank statement which showed a transfer of $25,000 on 2 June 2020 (CB 405).
2. (2)
  On 11 November 2020, $34,000 – in his affidavit dated 29 August 2024, Sakr claimed that he withdrew $35,000 with Boga and gave that cash to Boga (CB 424 at [47]). However, in his affidavit dated 5 April 2024 and the bank statement he produced, it showed that he in fact transferred $34,000 on 11 November 2020 (CB 411).
3. (3)
  On 8 January 2021, $300,000 – Sakr claimed that he made an EFT to Anthill Construction, which Boga agreed to, as a repayment of the loan (CB 425 at [56]). Sakr produced a bank statement which showed a transfer of $300,000 on 8 January 2021 (CB 413).
4. (4)
  On 25 January 2021, $40,000 – Sakr claimed that he made EFT to Anthill Construction, which Boga agreed to, as a repayment of the loan (CB 425 at [57]). Sakr produced a bank statement which showed a transfer of $40,000 on 25 January 2021 (CB 413).

Involvement of Webhe and El Zohbi

[41]
Sakr gave evidence that during the Covid-19 pandemic, on several occasions, he first withdrew cash or transferred the money from his bank account to either El Zohbi who then gave that money to Wehbe, or the money was given directly to Wehbe. Wehbe would then give that money to Boga.
[42]
Sakr deposed that he gave money to either El Zohbi or Webhe on the following occasions:
1. (1)
  On 9 December 2019, Sakr withdrew $30,000 and on 20 December 2019, Sakr withdrew $20,000 (Sakr produced a bank statement showing these two withdrawals (CB 403)). Along with $9,000 Sakr already had in his possession, Sakr gave a total of $59,000 in cash to El Zohbi who gave it to Wehbe who then gave it to Boga (CB 423 at [38]);
2. (2)
  On 24 July 2020, Sakr withdrew $20,000 and on 27 July 2020, Sakr withdrew $20,000 (Sakr produced a bank statement showing these two withdrawals (CB 405)). On 28 July 2020, Sakr gave a total of $40,000 in cash to El Zohbi who gave it to Wehbe who then gave it to Boga (CB 423 at [42]);
3. (3)
  On 4 August 2020, Sakr withdrew $51,500 (Sakr produced a bank statement showing this withdrawal (CB 407)). On 10 or 11 August 2020, he gave the cash to El Zohbi who gave it to Wehbe who then gave it to Boga (CB 423 at [43]; CB 424 at [44]);
4. (4)
  On 20 November 2020, Sakr transferred $42,000 directly to Wehbe who gave it to Boga (CB 424 at [50]). Sakr produced a bank statement showing this transfer (CB 411);
5. (5)
  On or around 21 November 2020, Sakr gave $180,000 in cash to El Zohbi who gave it to Wehbe who then gave it to Boga (CB 424 at [51]);
6. (6)
  On 24 November 2020, Sakr transferred $34,000 to Wehbe who gave it to Boga (CB 424 at [52]). Sakr produced a bank statement showing this transfer (CB 411);
7. (7)
  On 5 March 2021, Sakr withdrew $10,000 (Sakr produced a bank statement showing this withdrawal (CB 415)) and gave it to El Zohbi on 6 March 2021, who gave it to Wehbe who then gave it to Boga (CB 425 at [53]-[54]); and
8. (8)
  On 15 July 2021, Sakr borrowed $43,000 in cash from Emna Hayek (Emna) and gave the cash to El Zohbi who gave it to Wehbe who then gave it to Boga. Sakr instructed El Zohbi and Wehbe that Wehbe needed to take a picture of the money (CB 425 at [55]).
[43]
Boga agreed that he has received cash from Wehbe on the following six occasions. They are as follows:
1. (1)
  On 24 August 2020, $20,000 – Wehbe gave cash to Boga as per Sakr’s instructions (CB 26 at [65]);
2. (2)
  On 23 October 2020, $25,000 – Wehbe under Sakr’s instructions gave the cash to Boga (CB 26 at [68]). However, Counsel for Boga denied the payment in closing submissions;
3. (3)
  On 25 January 2021, $20,000 – Wehbe gave this money to Boga’s wife as per Sakr’s instructions (CB 26 at [76]);
4. (4)
  On 24 February 2021, $25,000 – Wehbe gave cash to Boga as per Sakr’s instructions (CB 27 at [77]);
5. (5)
  On 24 March 2021, $20,000 – Wehbe gave cash to Boga as per Sakr’s instructions (CB 27 at [78]); and
6. (6)
  On 21 July 2021, $20,000 – Wehbe gave cash to Boga as per Sakr’s instructions (CB 28 at [88]).
[44]
Sakr’s evidence is that he gave $459,500 in total either in cash or by electronic transfer to El Zohbi or to Wehbe to give to Boga. Boga’s evidence is that he has only received $130,000 from Wehbe. Thus, there is a $329,500 gap between the amount of money that Sakr gave to either El Zohbi or Webhe (who then gave that money to Boga) and the amount of money that Boga claimed that he received from Wehbe.
[45]
In total, repayments of $729,500 (including the repayments of $400,000 which El Zohbi and Wehbe are not involved in and the repayments of $329,500 which involve El Zohbi and Wehbe) are in dispute.
[46]
I will now focus on the loan advances and repayments in dispute. As I stated earlier, it has been a moving feast. A large number of payments have been made in cash. There are limited documents to support many of the transactions but where there are credible documents supporting advances and repayment, I will prefer them over Boga’s, Sakr’s, Wehbe’s and El Zohbi’s evidence.
[47]
Further there are disputes as to whether Boga was lending the money to Sakr or paying his share of building costs to Anthill Construction. Except for Seyhan, I will not discuss the credibility of any of the witnesses in order to make my findings on these disputed transactions.

The plaintiff and his witnesses’ evidence

[48]
The plaintiff, Boga, relied on evidence from three witnesses: himself Hakan and Seyhan.
[49]
Boga relied upon his four affidavits dated 5 March 2024, 17 April 2024, 6 November 2024 and 31 January 2025. In these affidavits he provided information about his relationship with Sakr, his version of the breakdown in their relationship and the payments he made and received from Sakr. Boga gave evidence and was cross-examined at length.
[50]
Hakan is Boga’s elder son who is one of the directors of Semak. His younger brother is Seyhan who is the other director of Semak. Semak is the proprietor of the Wollert property. Hakan relied upon his affidavit dated 8 November 2024. He gave evidence and was cross-examined.
[51]
Seyhan, aside from being the co-director of Semak with his brother Hakan, was also the co-director of Mt Ridley Developments with Sakr. Mt Ridley Developments was the owner of the Craigieburn property. Seyhan relied upon two affidavits dated 7 November 2024 and 31 January 2025. He gave evidence and was cross-examined. After carefully observing him giving evidence and being cross-examined, I formed the view that he was a credible witness.

The defendants’ evidence

[52]
The defendants, Glenburnie Rd and Sakr, relied on evidence from three witnesses, Sakr, Wehbe and El Zohbi.
[53]
Sakr relied upon his three affidavits dated 5 April 2025, 28 August 2024 and 18 December 2024. He gave evidence and was cross-examined. However, in all these affidavits, he did not provide any primary evidence. His first affidavit mainly traversed what was pleaded in his defence and amended defence filed on 12 December 2023 and dated 5 September 2024 respectively. His other affidavits are in reply to the affidavits of Boga, Hakan and Seyhan respectively.
[54]
Wehbe is Sakr’s friend. He first met Sakr in Lebanon in 1997 before moving to Australia. He was not involved in any business dealings with Sakr. Wehbe relied upon his affidavit dated 28 August 2024. He gave evidence and was cross-examined. His evidence focused on the cash repayments that he delivered to Boga as per El Zohbi and Sakr’s instructions.
[55]
El Zohbi has known Sakr for around 40 years, since they first met in Lebanon. In 2011, they began a business relationship, participating in joint property ventures as property developers. El Zohbi relied upon his affidavit dated 29 August 2024. El Zohbi gave evidence and was cross-examined. His evidence also focused on the cash repayments that he delivered to Wehbe as per Sakr’s instructions.

The relationship between Boga and Sakr

[56]
Boga was born in 1964. He migrated to Australia in 1974. In his affidavit dated 5 March 2024, he deposed that he is a businessman in the catering and hospitality industry and has several burger shops.
[57]
In or about 2002, Boga first met Sakr through a mutual friend, Solak. Solak resided in Melbourne. Boga was visiting him at a café in Greenvale, Victoria where Sakr and Solak were having coffee.
[58]
At the café, Solak introduced Boga to Sakr as his friend. Sakr did not speak English well, so the conversation was very basic and informal.
[59]
At the time of the first meeting with Sakr, Boga’s business “At Turko” had four takeaway stores in Melbourne, so he travelled between Sydney and Melbourne regularly, at least once a fortnight.
[60]
Boga estimated that he saw or met Sakr between eight to ten times from the first time they met at the café in Greenvale until 2015. These meetings were mainly at Solak’s home.
[61]
Sakr deposed that his first meeting with Boga was at Solak’s house rather than at a café. Sakr also says that his English was proficient as at 2015.
[62]
Sakr and Boga have been friends for about 17 years. They have several business dealings both before and during the period of the loan agreement.
[63]
Concurrent with the loan agreement, construction works were being completed by Anthill Construction for two companies connected with Boga: Semak and Mt Ridley Developments. Semak and Mt Ridley Developments were involved in development of the Wollert property and the Craigieburn property, respectively.
[64]
Sakr’s wife, Saly, was the director of Anthill Construction. Sakr was involved in the business to assist her. Sakr says that his relationship with Saly is not amicable at present as they have been separated for more than three months.
[65]
As referred to earlier, Seyhan and Hakan are the directors of Semak. Seyhan was also the director of Mt Ridley Developments. Sakr’s view is that Boga was heavily involved in both companies.

The loan and payments

[66]
In his affidavit dated 5 March 2024, Boga gave evidence that in May 2019, Sakr telephoned Boga and asked for a $300,000 loan. Boga informed Sakr that he was unable to forward him the full amount requested but agreed to lend Sakr $150,000. The parties agreed that repayment of the loan would be made in the timeframe of four to six weeks. Boga then proceeded to transfer Sakr $100,000 on 30 May 2019 and a further $50,000 on 5 June 2019, both via EFT to the bank account nominated by Sakr.
[67]
The loan was not repaid and became part of the larger loan advanced in October 2019.
[68]
Throughout this time, Boga submitted that he was in constant discussions with Sakr largely in relation to both the Wollert and Craigieburn properties.
[69]
In October 2019 Sakr rang Boga requesting a further loan of $1,200,000. Sakr assured that the loan would only be required for a period of two months and that he would repay it with a “gift” of $100,000. The term “gift” replaced the conventional interest payment, alluding to a lump sum interest payment in line with Sakr’s religious beliefs and his reluctance to practice “usury”.
[70]
While Boga was considering Sakr’s request, Sakr rang him again requesting a loan amount of $1,700,000 as opposed to the original amount of $1,200,000, in return a “gift” would be paid to Boga of $150,000 as compensation for advancing the loan.
[71]
Boga deposed that he held money in a long-term deposit and advised Sakr that if he was to break his term deposit, he would be required to pay his Bank a penalty fee of $23,890. Sakr agreed to pay the bank’s penalty fee if the loan was executed.
[72]
Boga instructed Sakr that he was not comfortable lending such a large amount of money without security. Sakr informed Boga that he intended to purchase a property with said money (the Beveridge property) and that he would provide a mortgage over it as security for the loan. Boga would be the first and only mortgagee registered on title.
[73]
Sakr also agreed that the $150,000 still owing from the previous dealing be included in the new agreement together with the penalty fee.
[74]
Boga then requested the assistance of Guljan Boga, solicitor, from Borg and Bogs lawyers in Sydney to draft a loan agreement for the amount of $1,900,000 with the Beveridge property as security (the loan agreement).
[75]
Boga claimed in his affidavit that following the signing of the loan agreement, Sakr owed him $2,050,000, comprising of the loan agreement and the $150,000 “gift” for providing the loan. According to the loan agreement, the loan was required to be paid back in two months.
[76]
According to Boga, Sakr told him that the loan would assist Sakr in alleviating Sakr’s financial burdens.
[77]
In November 2019, Boga was enquiring into purchasing a Ford utility vehicle and asked Sakr for a repayment of the loan so he could purchase the vehicle. Sakr transferred the amount of $67,000 to Coffey Ford to pay for the car on his behalf.
[78]
At the time of purchasing the Ford Raptor on 26 November 2019, Sakr also paid Boga, according to his affidavit, $4,500 in cash when he was in Melbourne to pick up the car.
[79]
By 26 November 2019, the amount owed to Boga by Sakr was $1,978,500.
[80]
On 20 December 2019, Boga had a telephone and text conversation with Sakr requesting repayment of the loan. Sakr agreed to repay $700,000 via EFT and told Boga he would send a further cash payment of $59,000 with Solak as Solak was heading to Sydney.
[81]
On 23 December 2019, Sakr sent Boga a text message confirming that he had transferred funds into Boga’s account. On 23 December 2019, Boga’s bank records showed that Sakr had made a cash deposit of $556,500 to Boga’s Commonwealth Bank account. Further, Boga’s evidence is that Sakr did not send a cash payment through Solak as had been promised.
[82]
Four days later, on 27 December 2019, Sakr rang Boga claiming he was tight for money requesting another $450,000. Boga said he felt comfortable transferring the additional funds to Sakr because of the deed and mortgage that was already in place over the Beveridge property.
[83]
On 27 December 2019, Boga transferred $450,000 directly from his St George bank account to Anthill Construction.
[84]
On 28 December 2019, Boga’s evidence is that Glenburnie Rd and Sakr owed him $1,872,000 under the loan agreement.
[85]
On 23 February 2020, Boga flew to Melbourne with his wife. When Boga told Sakr he was coming to Melbourne, Sakr requested another loan as he was apparently in urgent need of money. At that time, Boga was able to secure $45,000 in cash. He handed the money to Sakr at Melbourne airport upon the family’s arrival.
[86]
On 19 March 2020, Sakr transferred $300,000 through Anthill Construction to Boga’s St George bank account.
[87]
On 23 March 2020, Sakr transferred $100,000 through Anthill Construction to Boga’s St George bank account.
[88]
On 24 March 2020, Sakr transferred $100,000 through Anthill Construction to Boga’s St George bank account.
[89]
On 25 March 2020, Boga says that Sakr owed him the sum of $1,417,000 under the loan agreement.
[90]
On or about May 2020, Boga spoke to Sakr and agreed that Sakr’s company Anthill Construction would commence construction on the Wollert property.
[91]
On 26 June 2020, Boga transferred $400,000 to Anthill Construction as a progress payment for construction work that Anthill Construction had completed at the Wollert property. This payment did not relate to the loan agreement.
[92]
On 29 September 2020, Boga received a development application approval for the Wollert property.
[93]
In early November 2020, Sakr phoned Boga requesting another loan of $100,000. Boga transferred that amount to Anthill Construction on 10 November 2020.
[94]
On 28 November 2020, Boga drove to Melbourne with his wife. Upon telling Sakr that he was coming to Melbourne, Sakr requested another loan in the amount of $100,000. Boga agreed to loan Sakr a further $65,000 and not the $100,000 that was requested.
[95]
On 29 November 2020, Boga had dinner at Sakr’s farmhouse at Northern Highway, Bylands where Boga handed Sakr $65,000 in cash.
[96]
Boga calculated that at this time, the amount owed by Sakr under the loan agreement was $1,537,000.
[97]
On 29 December 2020, Sakr made a repayment of $350,000 via bank transfer. The transfer was paid to Boga’s Commonwealth Bank account, resulting in an outstanding balance of $1,187,000.
[98]
On 1 January 2021, Sakr made a repayment of $10,000 by bank transfer. At this time $1,177,000 plus interest was owed.
[99]
On 25 January 2021, Sakr made a repayment of $20,000 in a cash deposit. At this time $1,157,000 plus interest was owed.
[100]
On 31 March 2021 Boga drove to Melbourne with his friend Aras. Prior to this trip, Sakr had requested another loan of $20,000 in cash. Boga brought the cash with him to Melbourne and gave it to Sakr in the presence of Aras while at the Wollert property.
[101]
Boga says that he would always visit the Wollert property when he was in Melbourne and that usually Sakr would meet with him on site to update him on the progress of the construction.
[102]
On 1 April 2021, Boga calculated that the amount owed to him by Sakr under the loan agreement was $1,112,000 plus interest.
[103]
On 1 June 2021, Sakr made a repayment of $10,000 as a cash deposit. At this time $1,102,000 plus interest was owed.
[104]
On the same day, 1 June 2021, Sakr made a second repayment of $10,000 by bank transfer. At this time $1,092,000 plus interest was owed.
[105]
On 7 June 2021, Sakr made a repayment of $3,000 by bank transfer. At this time $1,089,000 plus interest was owed.
[106]
In mid-July 2021, Sakr called Boga and asked for another loan of $150,000. On 19 July 2021, Boga transferred this money to Sakr. The balance owing was now $1,239,000.
[107]
Around this time the amount owed to Boga by Sakr was $1,219,000 plus interest.
[108]
Boga says that as of 16 September 2022, construction at the Wollert property had not been progressing.
[109]
On 26 September 2022, Anthill Construction’s building licence was suspended by the Victorian Building Association.
[110]
On 16 October 2023, Sakr asked Boga to release the mortgage over his property because he had sold the Beveridge property, and the settlement was scheduled for the following Friday.
[111]
Boga informed Sakr that he would only release the property if Sakr repaid the loan of $1,219,000 plus interest.
[112]
At this time, Boga says that Sakr got upset and aggressive over the phone and hung up. Boga then immediately texted Sakr to which he received a reply from Sakr which read “don’t call me”. According to Boga, this was the last point of contact between the two men.
[113]
Boga says that apart from the transactions relating to the loan agreement, monies were also being sent separately to Anthill Construction as progress payments for the construction of the Wollert property.
[114]
In October 2019, Sakr requested a further loan of $1,200,000 for 12 months. The $100,000 stipulated by Boga as a “gift” was not interest, but instead, would offset any future contractual payments between Semak and Anthill Construction for anticipated building works at the Wollert property.
[115]
Sakr says that he was actively involved in business and paid interest on loans as part of that. He never told Boga that he had any religious prohibition against the paying of interest; rather, he signed a loan agreement with Boga that expressly required the payment of interest.
[116]
As both Sakr and Boga were assisting with their family’s businesses, on several occasions, Boga directed Sakr (as set out in greater detail below) to repay the loan by paying certain various amounts to Anthill Construction.
[117]
Sakr submitted that the $150,000 was not a “gift” for Boga providing the loan but it was to be deducted from the building contract of the Wollert property.
[118]
Sakr denied Boga’s evidence that by 26 November 2019, Sakr owed Boga $1,978,500.
[119]
On 20 December 2019, Boga messaged Sakr seeking $700,000 by EFT and $59,000 in cash. On either 20 December 2019 or 22 December 2019, Sakr called Boga and agreed to pay $556,500 by EFT and $59,000 in cash.
[120]
Sakr says that the payment of $450,000 on 27 December 2019 was not a loan to him, but instead, it was paid to Anthill Construction by Mt Ridley Developments for planning, designing and other development requirements for the Craigieburn property. He gave a copy of the tax invoice dated 19 November to Boga at the Wollert property.
[121]
On 23 February 2020, Sakr collected Boga and his wife from the airport. He never asked for, nor did he receive a cash payment of $45,000. The purpose of the visit was for Boga to meet Bruce Barron (Mr Barron), a real estate agent.
[122]
Sakr denied that on 25 March 2020, the amount he owed to Boga under the loan agreement was $1,417,000.
[123]
In June 2019, the construction works to be carried out on the Wollert property were contractually agreed upon. On 14 May 2020, a domestic building contract was executed.
[124]
On 2 June 2020, Sakr paid $25,000 to Anthill Construction. Sakr says that before making the payment, he called and suggested to Boga that this payment should be made in reduction of the amount owed to Anthill Construction by Mt Ridley Developments as well as reducing the loan. Boga agreed with the suggestion.
[125]
On 10 November 2020, Sakr went to a Commonwealth Bank branch with Boga and withdrew $300,000. Sakr says that these funds were forwarded into an account that Boga nominated. However, during examination in chief and cross-examination, Sakr admitted that he made a mistake.
[126]
After subpoenaing Commonwealth Bank, the records showed that $300,000 was transferred to FE Lawyers so that one of Sakr’s associates, Omar Al Nasbi, could buy a property:
[127]
On 11 November 2020, Sakr went to the bank with Boga, withdrew $35,000 and then gave that cash to Boga.
[128]
On 24 November 2020, Sakr transferred $34,000 to Wehbe’s account to pay Boga. He did not transfer this money directly to Boga.
[129]
Sakr denied that on 28 November 2020 he asked Boga for a loan of $100,000 and says that it was a construction payment towards the building of the Wollert property.
[130]
On the 29 November 2020, Boga only came over to his house for lunch. Sakr did not receive any money from Boga.
[131]
Sakr denied requesting a loan of $20,000 from Boga. Sakr has never met Aras or Murat Gulasi (Boga’s friend).
[132]
Sakr deposed that the $150,000 was a construction payment made to Anthill Construction towards the building of the Wollert property rather than a loan.
[133]
On 13 June 2023, Anthill Construction went into liquidation. Before that, Sakr assisted Boga with arranging a new builder to complete the works at the Wollert property.
[134]
On 18 October 2022, Building Consultants International (BCI) signed a domestic building contract with Semak. BCI commenced work on the Wollert property shortly after the execution of the domestic building contract.
[135]
Sakr says that he trusted Boga would keep account of the payments being made due to their long-term friendship and business relationship. He believed that Boga would refund him if he overpaid Boga.
[136]
On 16 October 2023, Sakr called Boga to request an in-person meeting with him to discuss the money owed. However, Boga refused this invitation and disputed several variations that Anthill Construction had charged in relation to the Wollert property.
[137]
On 16 October 2023, following the call, Boga messaged Sakr on WhatsApp, and relevantly said: “Be a man give me my OC invoices and certificates I’ll transfer u the title without any problems.” The reference to certificates was in connection with the Wollert property. The reference to title is a reference to the Beveridge property Sakr had granted Boga a mortgage over for the loan.
[138]
In his affidavit dated 6 November 2024, Boga replied that there was no verbal agreement that he had to pay Sakr $300,000 for facilitating the arrangement where Boga purchased Solak’s share of the Craigieburn property. It was Boga’s son, Seyhan, through Mt Ridley Developments that purchased Solak’s share of the property. Boga further explained that the property did not belong to Sakr and there was no reason to pay Sakr for the purchase of Solak’s share of the property. In May 2019, Sakr called him to request $300,000 as a loan rather than as a repayment.
[139]
The $100,000 which was attached to the first proposed $1,200,000 loan (noting that Sakr later requested a $1,700,000 loan instead) was not an offset on future construction works. At the time Boga and Sakr entered the loan agreement, there was no development approval for building works at the Wollert property. The loan agreement was executed on 28 October 2019. The development approval for the Wollert property was not obtained until 28 January 2020.
[140]
Boga has never directed Sakr to pay money owed to him to Anthill Construction.
[141]
In December 2019, Sakr never paid Boga $59,000 in cash.
[142]
In the invoice produced by Sakr dated 19 December 2019, Mt Ridley Developments was to pay Anthill Construction $300,000 for work completed and $150,000 for profit share. Boga replied that he has never seen this invoice and there was no profit share to be paid to Sakr. The $450,000 was a loan requested by Sakr.
[143]
Boga says that the contract that Anthill Construction was to conduct the construction works for the Wollert property was agreed in May 2020 rather than in June 2019.
[144]
On 10 November 2020, Boga transferred $100,000 to Sakr as a loan rather than a construction payment towards the building of the Wollert property. Boga has never seen the invoice dated 9 November 2020 produced by Sakr.
[145]
On 19 July 2021, Boga transferred $150,000 to Sakr as a loan rather than a construction payment towards the building of the Wollert property. Boga never saw the invoice dated 19 July 2021 produced by Sakr.
[146]
Boga explained that the text message that he sent to Sakr dated 16 October 2023, which relevantly said, “Be a man give me my OC invoices and certificates I'll transfer u the title without any problems”, was an expression of his frustration that he had not been paid the debt Sakr owed him. He needed the money to loan to Semak so it could pay the $1,400,000 to BCI to complete the development of the Wollert property. Once the Wollert property was complete, Semak could obtain the Occupation Certificate (OC) and then move to either sell or refinance the property. Once Sakr made payment of the loan amount to Boga, he would then release the security over the Beveridge property.
[147]
Boga says that he had never requested any cash payments from Sakr. He also did not want the loan to be repaid in cash as there was no benefit for him to do so. He believed that the reason Sakr paid him by cash was that Sakr had been paid in cash for work he was doing, and it was easier for Sakr to pay Boga in cash rather than deposit the money into his own account and then transfer the funds to Boga.
[148]
Boga did not receive $59,000 in cash from Wehbe.
[149]
Boga never agreed to nor received any benefits from the payment made by Sakr on 2 June 2020 to Anthill Construction.
[150]
Boga never requested that the $40,000 transferred on 26 January 2021 by Sakr to Anthill Construction be a repayment of the loan.
[151]
In his affidavit dated 18 December 2024, Sakr replied that it is not true that Boga has never directed him to pay money owed to him to Anthill Construction. In addition to the payments that he made to Anthill Construction under Boga’s instructions on 8 January 2021 and 25 January 2021, Sakr says that Boga made further requests for him to make payments to Anthill Construction to reduce the loan. He produced a copy of his text messages with Boga which do not mention Anthill Construction or a reduction of the loan (CB 590).
[152]
Boga says that in December 2019, Sakr never paid him $59,000 in cash. Sakr replied that it is not true and produced a copy of his message dated 20 December which Boga sent: “plz bank 600k in this account and send 59k with TARIK.” Boga explained that the “59k” in the message referred to the payment of $59,000 in cash. Boga further denied that he requested Sakr to pay in cash.
[153]
Sakr says that on 23 September 2021, he received a text message from Boga instructing him to pay $43,000 to Ms Szeto and another $200,000 into Boga’s account to reduce the loan. Sakr did not know Ms Szeto. On or around 23 September 2021, he transferred $43,000 to Ms Szeto via EFT and $200,000 to Boga via EFT.

The Wollert property

[154]
In August 2015, Boga and his wife visited Melbourne to do some research on Melbourne’s property market, as they wanted to purchase property there. During this visit, Boga and his wife had dinner with Solak and a good friend named Ismail Altinkulac. During the dinner, Sakr called Solak to tell him he had a plot of land in Wollert which he was selling on behalf of another party. Solak told Boga that Sakr was buying and selling land in Victoria.
[155]
After dinner, Solak drove Boga and his wife to the Wollert property, to inspect it. The following day Solak, Boga and his wife visited Wollert property again to inspect it in the daylight. They decided they liked the Wollert property and wanted to negotiate a deal with Sakr. Solak called Sakr and organised a meeting to discuss the deal. At the meeting, a discussion took place regarding Wollert property. Boga and Sakr shook hands on a price of $600,000 plus GST. Contracts were exchanged on the Wollert property and settlement occurred on 2 September 2016. Apparently, Boga did not buy the Wollert property himself. Instead, Semak, the company owned by Boga’s sons, Hakan and Seyhan, bought the property from Sakr for $660,000 inclusive of GST.
[156]
The Wollert property had an approved development application; however, Boga was not happy with the approved plans.
[157]
Hakan completed high school at St Andrews Cathedral School in 2005. He attended the University of Western Sydney to study finance. He currently manages the family’s extensive fast-food business.
[158]
To recap, Hakan is Boga’s eldest son. Together, he and his younger brother Seyhan co-direct Semak which is the proprietor of the Wollert property.
[159]
Hakan recalled that shortly after purchasing the Wollert property, Boga introduced him to Sakr. Boga told Hakan that Sakr had access to other properties in Victoria that had potential for redevelopment.
[160]
On 2 September 2016, the Wollert property purchase settled. The Wollert property was a vacant block of land, 1614 square metres in area. The property had an approved development application for 16 two-bedroom town houses. Hakan’s plan for the Wollert property was to develop it and either keep and rent or sell off the individual residences for profit.
[161]
Semak purchased the Wollert property for $660,000 inclusive of GST. Semak borrowed the purchase funds from Boga and planned on repaying the funds upon completion of the development, by either, refinancing the property once developed to access the additional equity, or selling the town houses and using the proceeds for repayment.
[162]
In the second half of 2018, Seyhan and Hakan commenced discussions with their father about developing the Wollert property. Semak engaged Chinh Mai to draft plans for the development of the property. Semak submitted plans to the council for 12 two-bedroom townhouses and two three-bedroom double story townhouses amending the original plans which had been submitted by the previous owner.
[163]
On 28 August 2018, Semak submitted the plans to Whittlesea Council (the Council).
[164]
On 28 January 2020, Semak received development approval from the Council.
[165]
As Hakan and Seyhan were not familiar with any builders in Victoria, they decided engage Sakr who was a licenced builder at the time.
[166]
In or about May 2020, Semak came to an agreement with Sakr and Anthill Construction to undertake the building works at the Wollert property. The agreed contract price for construction was $2,408,000. A hard copy of the contract was sent to Hakan, who signed and initialled the contract, followed by an emailed copy to Anthill Construction who returned it by post. Hakan did not photocopy or scan the executed copy of the contract. At trial, Hakan produced an unexecuted copy of the building contract that he received and executed. On page 36 of the contract under item 10, the contract price including GST is $2,408,000 (CB 309). On page 41 of the contract under item 23.1, it also shows a total price of $2,408,000 (CB 314).
[167]
Sakr produced a domestic building contract executed on 14 May 2020 in evidence. When reviewing the contract provided by Sakr, Hakan found pages 36 and 41 (CB 496 and 501) of the contract were different to the document that he initiated and executed. Hakan did not initial pages of the contract with a contract price of $1,900,000. Hakan did not initial pages 36 and 41. Hakan also did not give his consent for anyone else to place his initials on those two pages.
[168]
Hakan believes that Sakr informed him before they commenced construction work that Sakr’s wife, Saly, was the director of Anthill Construction and that entity was the builder. Hakan has never met Saly.
[169]
On 31 October 2018, Boga received $3,300,000 from the sale of his property at Lyons Rd Drummoyne (Lyons Rd property). Boga promised Semak the amount of $1,300,000 as a financial contribution for the construction of the townhouses at the Wollert property. Semak was to repay any money Boga lent to the Wollert property. Boga did not charge interest on the money he was advancing to Semak.
[170]
On 26 June 2020, Boga transferred the sum of $400,000 to Anthill Construction as payment for the commencement of construction.
[171]
ln or about October 2020, the excavation work commenced at the Wollert property. It concluded in or about March 2021.
[172]
On 14 April 2021, Hakan received an email from Saly with the tax invoice 331 attached. This was the first invoice issued to Semak from Anthill Construction. Hakan produced a copy of tax invoice 331 for a total amount of $240,800 (CB 323).
[173]
On 20 May 2022, Hakan paid tax invoice 331 in full. He transferred money from his personal offset account (shared with his brother) to the bank account nominated in tax invoice 331. He produced a copy of the EFT records and the customer receipt for the amount of $240,800 (CB 326).
[174]
On 12 April 2021, Hakan received an email from Saly with the tax invoice 330 attached. Hakan produced a copy of tax invoice 330 for the amount of $12,848 (CB 328).
[175]
Between 26 April 2021 and 28 April 2021, Hakan transferred payments from his Macquarie Bank home loan account to Anthill Construction’s account. The payments were split into three, due to the bank’s daily withdrawal limit of $5000. Hakan produced Saly’s email which confirmed that Saly received Hakan’s payment of $12,838 (CB 330).
[176]
On 14 December 2022, Hakan met Sakr in Melbourne. Sakr requested that Hakan urgently pay Anthill Construction $34,500 to cover the home warranty insurance.
[177]
On 16 December 2022, Hakan received tax invoice 369 for home warranty insurance in an email from Saly. Hakan produced a copy of tax invoice 369 which includes $34,500 for the home warranty insurance and $3,500 for broker fees (CB 333). On 20 December 2022, Hakan transferred the $34,500 from his Commonwealth Bank account to Anthill Construction. He produced a copy of the electronic transaction record of his payment of $34,500 to Anthill Construction (CB 335).
[178]
Hakan deposed that Sakr did not ask him to pay “broker fees” so he did not pay them.
[179]
Hakan requested an invoice to cover the $400,000 payment made by Boga on behalf of Semak on 26 June 2020 which had not previously been invoiced. On 20 December 2022, Hakan received an email from Saly that had attached to it tax invoice 365 for the amount of $400,000. Hakan produced a copy of tax invoice 365 with a total amount of $400,000 (CB 337).
[180]
On 20 October 2022, Hakan received an email from Saly with invoice 366 attached. Hakan produced a copy of tax invoice 366 with a total amount of $250,000 (CB 339).
[181]
On 22 October 2022, Hakan used his father’s St George line of credit account to transfer $70,000 to Anthill Construction, because as co-signatory on the account Hakan was able to access it. Boga was overseas at that time. On 24 October 2022, Hakan transferred $100,000 to Anthill Construction from the St George line of credit account. On 25 October 2022, Hakan transferred $80,000 to Anthill Construction from the same St George account as the earlier payments. Hakan made payment toward invoice 366 on 25 October 2022. Hakan produced the EFT records for all these payments (CB 341; CB 343; CB 345). In total these transfers amounts to $250,000.
[182]
The building contract between Semak and Anthill Construction allowed for a construction period of 500 days. The 500-day completion date including delay days expired around mid-October 2021. Anthill Construction did not complete the construction work by that day.
[183]
On 26 September 2022, Boga received a letter by email from the building surveyor Permit Point advising that Anthill Construction’s builders licence had been suspended or cancelled. He forwarded the email to Hakan on the same day.
[184]
Hakan immediately called Sakr to discuss Anthill Construction’ licence suspension. Sakr told Hakan not to worry and that he would arrange for a new builder to take over and complete the construction of the townhouses. Sakr arranged for Mr George Stefanidis from BCI to take over the project.
[185]
On 20 October 2022, Hakan flew to Melbourne and executed a contract on behalf of Semak with BCI. The cost of construction in that contract was $1,400,000. Hakan produced a copy of the contract between Semak and BCI which was provided by the law firm Davies Moloney (who was acting for BCI) to the law firm Elie Rahme and Associates (who was acting for Semak) on 9 February (CB 349-374).
[186]
To date, BCI has not completed the construction project, and Semak has not been able to obtain the occupancy certificate for the Wollert property. On 14 June 2024, the contract between BCI and Semak was terminated. There is now a separate dispute between Semak and BCI.
[187]
The contract price of $1,400,000 with BCI, was reached as it was the approximate figure that remained unpaid on the original building contract with Anthill Construction. At the time, Hakan recalled that roughly $925,300 had been made in payments to Anthill Construction, leaving an estimated balance of $1,400,000. That is why Hakan agreed to the contract with BCI for $1,400,000.
[188]
During 2023, Hakan transferred payments to a number of tradesmen that worked on the construction of the Wollert property including: an electrician, plumber and concreter. Hakan retained records of all payments made. In total, he paid $240,575.52 to the tradesmen directly. He produced a copy of a list of payments that he made (CB 376).
[189]
On 28 November 2023, a letter of demand addressed to Semak was emailed to Boga’s personal email address. The letter was from law firm Davies Moloney in Melbourne. The letter sought the sum of $1,400,000 to be paid by Semak to BCI.
[190]
On 30 November 2023, Hakan instructed the firm Elie Rahme and Associates to respond to Davies Moloney, requesting a copy of the contract that was entered into by BCI and Semak on 18 October 2022. Hakan did not have a copy of the contract at that time as he did not take a copy after executing it. The letter also requested confirmation that BCI was able to provide the occupation certificate. He produced a copy of the letter to Davies Moloney dated 28 November 2023 (CB 378-379).
[191]
On 9 February 2024, Elie Rahme and Associates received a response by email from Davies Moloney attaching a copy of the home building contract between Semak and BCI. The email reiterated its demand for the payment of $1,400,000. Hakan produced a copy of the letter from Davies Moloney dated 9 February 2024 (CB 383).
[192]
In his affidavit dated 18 December 2024, Sakr denied that in October 2019, he called Boga to request a further loan of $1,200,000 for a period of two months and promised Boga that he would “gift” him $100,000 in turn. Instead, Sakr deposed that he requested a further loan of $1,200,000 for 12 months from Boga. The $100,000 stipulated by Boga as a “gift” was not interest, but instead, it would offset any future contractual payments between Semak and Anthill Construction for anticipated building works at the Wollert property.
[193]
Sakr denied that following signing the loan agreement, Sakr owed Boga $2,050,000 comprising the loan agreement, plus the $150,000 “gift” for providing the loan. Sakr clarified that the $150,000 000 was not a “gift” for Boga providing the loan but it was to be deducted from the building contract of the Wollert property.
[194]
Sakr denied that on 28 November 2020 he asked Boga for a $100,000 loan and said that it was a construction payment towards the building of the Wollert property. He produced a handwritten invoice dated 9 November 2020 (CB 510).
[195]
Sakr denied that the $150,000 that Boga transferred to Anthill Construction on 19 July 2021 was a loan. He deposed that it was a construction payment made to Anthill Construction to build the Wollert property rather than a loan. He produced a handwritten invoice dated 19 July 2021 (CB 512).
[196]
On 2 June 2020, Sakr paid $25,000 to Anthill Construction. Sakr deposed that before making the payment, Sakr called and suggested to Boga that this payment should be made in reduction of the amount owed to Anthill Construction by Mt Ridley Developments as well as reducing the loan and that Boga agreed with the suggestion.
[197]
Around 25 January 2021, Boga requested $40,000 in repayment of the loan when he phoned Sakr. Boga agreed to Sakr transferring a further $40,000 to Anthill Construction on Boga’s behalf towards the Wollert property. On 25 January 2021, Sakr transferred $40,000 to Anthill Construction towards to Wollert property building property as the loan reduction.
[198]
Due to the liquidation of Anthill Construction, Sakr says he cannot provide the relevant invoices.
[199]
Hakan denied all of Sakr’s evidence. Hakan replied that the money Sakr owed Boga was not directed to Anthill Construction to pay for construction work. He further explained that if that was the case, they would not have had BCI pursuing them for $1,400,000.
[200]
Hakan also denied that he had never seen the handwritten invoices dated 19 December 2019 (CB 449), 9 November 2020 (CB 510) and 19 July 2021(CB 512) before. Sakr mentioned it in his affidavit. Hakan maintained that the only invoices ever sent to him by Anthill Construction were forwarded to him.
[201]
In his affidavit dated 19 December 2024, Sakr replied to Hakan’s evidence. He deposed that there was a whole new planning application submitted to the Council for the Wollert property rather than an amendment of the original plans.
[202]
Sakr confirmed that the contract price for the building works was initially contemplated for the price of $2,408,000. However, Sakr says that, in or about May 2020, Boga asked Sakr, either in-person or by phone, whether they could reduce the contract price. They agreed to remove several items from the contract including, the driveway concrete, the public road and lighting between the townhouses and the public park. The ultimate contract price was $1,900,000.
[203]
Sakr asked his wife, Saly, to revise the contract and send the updated copy to Hakan. Although he could not recall how he received the contract, upon receiving it, Sakr applied for builder’s warranty insurance that was taken out for 14 townhouses at a total value of $1,900,000. Sakr produced a copy of the certificate of insurance (CB 545-572).
[204]
Sakr’s evidence is that the excavation works for the Wollert property commenced in September 2020 and concluded at the end of 2020 rather than in March 2021.
[205]
The first invoice issued from Semak to Anthill Construction was dated 9 November 2020 and related to excavation works for the Wollert property for the sum of $100,000 rather than an invoice dated 13 April 2021 for the sum of $240,800 inclusive of GST. Sakr produced a copy of invoice dated 5 November 2020 from Wally Group, the excavator (CB 574).
[206]
Sakr submitted that the tax invoice 331 for the sum of $240,800 was sent to Hakan as a mistake. This was the amount pursuant to the original agreed contract price, prior to the variation. Sakr had a conversation with Boga and advised him that he had been invoiced for the incorrect amount and that the amount would be adjusted at a later stage in the contract.
[207]
The building licence for Anthill Construction became restricted due to a change in Victorian law which required that to complete a build, a builder must possess a Domestic Builder Unlimited (DBU) licence. This change came into effect in or around June 2022. Anthill Construction only had a Domestic Builder Manager (DBM) licence. Sakr informed Boga about the change and requested to engage another builder to finish the building work at the Wollert property. Sakr and Boga decided on BCI to carry out the work.
[208]
On 14 December 2022, Sakr contacted Hakan and requested that he pay the sum of $34,500 to cover the home warranty insurance for the Wollert property. This insurance was for BCI. In late 2022, Sakr requested Boga to pay the builders warranty insurance. Sakr told him that if he paid Anthill Construction the insurance, Sakr would pay it to the insurance broker on behalf of BCI. Boga agreed to the suggestion. Upon receipt of the sum of $34,500, Sakr then paid it to the insurance broker, Joe Falcone on behalf of BCI.
[209]
By mid-October 2021, the construction works at the Wollert property were not completed. The major cause of the delay was that the building took place during Covid-19 lockdowns in 2020 and 2021.

The Craigieburn property

[210]
Boga deposed in his affidavit dated 5 March 2024, that in mid-November 2017, Sakr called Boga with another plot of land for sale, being the Craigieburn property. It is common ground that on 20 November 2017, Boga along with his two sons flew to Melbourne to view the site. They negotiated a price for the property but could not afford to purchase the land outright, so Sakr agreed to purchase the site in a partnership with the Boga family. A contract for sale of the Craigieburn property was drafted with a cover letter showing both Boga and Sakr as joint purchasers.
[211]
At the time of settlement on the Craigieburn property, Sakr informed Boga that he had insufficient funds to complete the purchase. On 9 November 2018 settlement occurred on the Craigieburn property with Solak purchasing the other half in lieu of Sakr. Boga sought Sakr’s advice on the planning, designing and development application for the Craigieburn property despite Sakr’s failure to proceed with his half of the purchase.
[212]
In May 2019, Sakr telephoned Boga and asked for a $300,000 loan. Boga informed Sakr that he was unable to forward him the full amount requested but agreed to lend Sakr $150,000. The parties agreed that repayment of the loan would be made in the timeframe of four to six weeks. Boga then proceeded to transfer Sakr $100,000 on 30 May 2019 and a further $50,000 on 5 June 2019, both via EFT to the bank account nominated by Sakr.
[213]
To recap, Seyhan is Boga’s younger son. He is the co-director of Semak with his brother, Hakan. He was also the co-director of Mt Ridley Developments with Sakr. Mt Ridley Developments was the owner of the Craigieburn property.
[214]
Seyhan attended high school at St Andrews Cathedral School and graduated in 2008. He operates and co-manages the family fast food business alongside his brother Hakan.
[215]
It is common ground that in November 2017, Seyhan was introduced to Sakr by Boga in November 2017.
[216]
On 20 November 2017, Seyhan flew to Melbourne with Hakan and Boga to visit a potential development site. He believed that Sakr had already signed a contract to purchase the property, but he did not intend to purchase it on his own as he could not afford it.
[217]
Seyhan visited the Craigieburn property with Hakan and Boga and then went to Sakr’s office to discuss the purchase of the property. Sakr wanted to nominate Seyhan, Hakan and Boga as the purchaser so they could purchase it in his place. Sakr also wanted a fee for bringing the deal to them.
[218]
After a significant amount of time negotiating, Seyhan, Boga and Hakan could not agree to Sakr’s terms because they did not have the financial capacity to purchase the Craigieburn property at that time. The next morning, Boga called Sakr on the way to the airport and then told Seyhan and Hakan that Sakr wanted to purchase the property with them.
[219]
The agreement reached with Sakr was that Seyhan, Hakan and Boga would purchase the Craigieburn property for $1,425,500. Seyhan would pay the full 10% deposit on exchange and Sakr would account for his share of the deposit at settlement. Boga agreed that he would provide Seyhan with the money to pay the 10% deposit from his own line of credit. Seyhan produced a bank statement dated 21/11/24 showing the payment of the 10% deposit from Boga’s account (CB 226).
[220]
Sakr’s accountant helped Seyhan to establish Mt Ridley Developments. Sakr and Seyhan were directors and shareholders of Mt Ridley Developments.
[221]
The terms of the contract were that settlement was to be delayed and would not occur for 12 months because Seyhan and Sakr wanted time to lodge a development application for the property to add value to it prior to settlement.
[222]
On 15 November 2018, the Craigieburn property was purchased. On 16 November 2018, Seyhan received a letter from Jafer Lawyers endorsing the settlement statement. He produced a copy of the settlement statement that he received on settlement from the lawyers acting on behalf of Mt Ridley Developments (CB 231-237).
[223]
The settlement statement recorded that Seyhan paid $583,557.10 at settlement in addition to the $142,500 paid as the deposit. Sakr paid the sum of $783,557.10 on settlement along with penalty interest as he caused settlement to be delayed because he was not ready to settle on the set date.
[224]
On 5 November 2018, Seyhan requested that Boga transfer $683,542.25 to Jafer Lawyers’ trust account as completion of funds for the settlement of the Craigieburn property which was due to settle on 9 November 2018. Immediately after making the transfer of $682,542.25 to Jafer Lawyers’ trust account, Seyhan realised that he had overpaid his share by $99,955.15 as he paid the full deposit initially. Jafer Lawyers agreed to reimburse Seyhan for the amount which was overpaid.
[225]
On or about 13 February 2019, Sakr informed Seyhan and Boga that he was selling his half interest in the property to Solak. Seyhan agreed that Sakr was free to do that as Boga was friends with Solak. Solak set up a company called Mt Ridley Holdings and purchased Sakr’s share in Mt Ridley Developments. This transaction is recorded on the ASIC extract for Mt Ridley Developments. A copy of the ASIC extract has been produced by Sakr (CB 440-445).
[226]
In his affidavit dated 29 August 2024, Sakr denied informing Boga that he had insufficient funds to purchase the Craigieburn property. Sakr deposed that Boga agreed to let Solak purchase his share of the Craigieburn property. Sakr had a verbal agreement with Boga and Solak that he would receive $300,000 from each of them for facilitating the arrangement. Both Solak and Boga have paid $300,000.
[227]
Instead of asking for a $300,000 loan, Sakr called Boga and requested the $300,000 to be paid. Boga told Sakr that he could not produce the money but instead agreed to lend Sakr $150,000 that was to be repaid in four to six weeks. Sakr agreed to this suggestion as he needed the cash immediately and was confident that, due to their relationship, Boga would repay the $300,000 when he could.
[228]
Sakr further deposed that the payment of $450,000 on 27 December 2019 was not a loan to him, but instead, was paid to Anthill Construction by Mt Ridley Developments for planning, designing and other development requirements for the Craigieburn property. He gave a copy of the tax invoice dated 19 December 2019 to Boga at the Wollert property. Sakr produced a copy of the handwritten tax invoice (CB 449).
[229]
On 2 June 2020, Sakr paid $25,000 to Anthill Construction. Sakr’s evidence is that before making the payment, Sakr called and suggested to Boga that this payment should be made in reduction of the amount owed to Anthill Construction by Mt Ridley Developments as well as reducing the loan. Boga agreed with the suggestion.
[230]
On 8 January 2021, Boga requested a payment of $300,000 during a telephone conversation with Sakr and agreed to Sakr paying the $300,000 to Anthill Construction on behalf of Mt Ridley Developments towards the Craigieburn property as a reduction of the loan.
[231]
In his affidavit dated 7 November 2024, Seyhan replied to Sakr and denied the existence of the agreement that Boga would pay $300,000 to Sakr for transferring his shares to Solak as it would not benefit Boga or Seyhan. Seyhan’s shareholding in Mt Ridley Developments remained unchanged when Solak and Mt Ridley Holdings purchased Sakr’s shares.
[232]
Mt Ridley Developments lodged a development application with the Council to redevelop the Craigieburn property. The Council approved the development of the land into a childcare centre.
[233]
On or about 1 June 2021, the Craigieburn property was sold. The proceeds of the sale were split between Seyhan and Mt Ridley Holdings. There was no money owed to Sakr from this venture. After the Craigieburn property was sold and all taxes and expenses paid, the company was liquidated. Seyhan returned the money his father had loaned him for the purchase of the Craigieburn property along with fees paid to Sarris International.
[234]
Seyhan denied Sakr’s claim that the payment of $450,000 on 27 December 2019 was not a loan to him, but instead, was paid to Anthill Construction by Mt Ridley Developments for planning, designing and other development requirements for the Craigieburn property. Seyhan deposed that Anthill Construction was not involved in the Craigieburn property and never completed work for the Craigieburn property. He says that it is not true that Mt Ridley Developments had to pay $450,000 to Anthill Construction, while Sakr claimed that he gave a copy of the tax invoice for the $450,000 dated 19 November to Boga at the Wollert property and Sakr produced a copy of the handwritten tax invoice (CB 449). Seyhan deposed that he had never seen that invoice before (CB 449).
[235]
Sakr says that on 2 June 2020, he paid $25,000 to Anthill Construction with Boga’s consent that this payment should be made in reduction of the amount owed to Anthill Construction by Mt Ridley Developments as well as reducing the loan. Seyhan denied that Mt Ridley Developments owed $25,000 to Anthill Construction. There was no reason for Sakr to pay the sum of $25,000 to Anthill Construction on behalf of Mt Ridley Developments.
[236]
Sakr says that on 8 January 2021, Boga requested a payment of $300,000 and agreed to Sakr paying the $300,000 to Anthill Construction on behalf of Mt Ridley Developments towards the Craigieburn property as a loan reduction. Seyhan denied that Mt Ridley Developments had to pay the sum of $300,000 to Anthill Construction because it never engaged Anthill Construction to complete any work on its behalf.
[237]
Mt Ridley Developments engaged Mr Allister Sarris of Sarris International to draft all plans and make submissions to the council for the development application. Once the development consent was obtained Mt Ridley Developments sold the property. Mt Ridley Developments did no building works at the Craigieburn property. Seyhan produced a copy of the fee proposal issued by Sarris International to Boga and Sakr dated 9 May 2018 (CB 239-246).
[238]
As Sarris International completed the work, Mt Ridley Developments would provide payment. Sarris International issued invoices to Mt Ridley Developments showing the amount invoiced and confirming payment had been made. The invoices would then have a balance of zero on them. Seyhan produced all tax invoices issued to Mt Ridley by Sarris International (CB 248-255).
[239]
In his affidavit dated 18 December 2024, Sakr replied that the $300,000 he received from both Boga and Solak were not for the transfer of shares or transferring the Craigieburn property to sell it but rather money paid to Sakr as he had organised the business transaction and for Sakr or Anthill Construction to undertake any works on the land such as any maintenance and assistance with obtaining planning permits. Further, it was also agreed that the $300,000 payment was to be paid to Anthill Construction.
[240]
Sakr purchased the Craigieburn property on 14 November 2017 for $1,425,000. The property was subsequently sold about two and half years later on or about 3 June 2020 for $3,300,000. The only development on the land was the application for the planning permit for the development of a childcare centre with nine townhouses at the rear. Sakr noted from the transfer of land that the Craigieburn property was sold for $3,300,000 and settlement took place on or about 3 June 2020. He produced a copy of the instrument search of the transfer of land (CB 576-577).
[241]
The Council approved Mt Ridley Developments’ development application to redevelop the Craigieburn property with a childcare centre and nine townhouses at the rear.
[242]
Sakr says that the invoice dated 19 December 2019 did not solely relate to works undertaken by Anthill Construction for the Craigieburn property. When Sakr sold his share to Solak, Solak did not have sufficient funds, creating a shortfall of $150,000. In or around December 2019, Sakr phoned Boga and told him that Solak owed him $150,000, being the balance of his share in the Craigieburn property, and the $300,000 for his associate fee. Sakr recalled that Boga told him that he would arrange payment of the $450,000 owed by Solak and requested Sakr to render an invoice to Semak and that it would be paid shortly after. Sakr then proceeded to render an invoice on behalf of Anthill Construction addressed to Semak.
[243]
In 2023 when Mt Ridley Developments was being liquidated, Seyhan discovered that Sakr was still a director. Sakr was asked to resign immediately so that the winding up of the company could be completed.
[244]
In his second affidavit dated on 31 January 2025, Seyhan gave evidence in reply to Sakr’s affidavit dated 18 December 2024.
[245]
Sakr stated that $300,000 was to be paid to him for the business transaction and for work that Anthill Construction was to complete on the Craigieburn property. Seyhan denied this and claimed that there was no agreement to pay Mr Sakr $300,000 for any transaction and no agreement for Anthill Construction to complete work at that time.
[246]
Sakr claimed that Solak owed him $150,000 for the share transfer. Sayhan deposed that he was not aware of any money being owed to Sakr by Solak. He was not aware of any conversation between Sakr and Boga, in which Boga agreed to pay Sakr $450,000 on behalf of Solak.
[247]
Sakr claimed that he worked with Chinh Mai on the Craigieburn property. Seyhan deposed that Chinh Mai was not involved with the Craigieburn property, he worked on the Wollert property only. Instead, Allister Saris of Saris International worked on the Craigieburn property.
[248]
Sakr further explained that Boga agreed to pay Sakr $300,000 for the associate fee of finding the Craigieburn property and that this also included minor works undertaken at the Craigieburn property by Anthill Construction. Anthill Construction was engaged by Mt Ridley Developments to complete works on its behalf. Anthill Construction liaised with the Council and worked alongside the architect being Chinh Mai of Planning Design. Boga would also contact Sakr for updates on council permits. Seyhan produced his text messages with Boga about the council permits (CB 588). Boga disagreed that he was to pay an associate fee.
[249]
In May 2022, Hakan requested that Sakr send an invoice to Mt Ridley Developments for his “associate fee” and the works undertaken by Anthill Construction. He produced a copy of text messages between him and Hakan (CB 580-582). The messages show that Hakan requested a tax invoice from Sakr. They do not include any information about the associate fee. On 20 May 2022, Sakr sent Hakan an invoice for $300,000 including GST. Sakr produced a copy of the invoice for the sum of $300,000 dated 20 May 2022 with the description “civil works” at the Craigieburn property (CB 584).
[250]
Sakr advised Hakan that if the payment was to be made to Anthill Construction, Anthill Construction would be liable for the GST of $27,272.73 and required Mt Ridley Developments to pay the GST of $27,272.73. On 23 May 2022, Hakan paid the sum of $27,272.73 to Anthill Construction.
[251]
Sakr replied that he was not forced to resign from director of Mt Ridley Developments. Rather, he resigned on his own accord as he did not agree with how Boga, Seyhan and Hakan were operating Mt Ridley Developments.

Cash repayments involving El Zohbi and Wehbe

[252]
In his affidavit dated 5 March 2024, Boga says that on 24 August 2020, an amount of $20,000 in cash was dropped off to Boga’s home at St Georges Crescent, Drummoyne by Sakr’s friend and associate Wehbe. Boga did not know his surname or his contact details.
[253]
Boga stated that he had met Wehbe prior to this dealing in November 2017 at the family’s burger shop, “Lashings”, in Drummoyne.
[254]
On 23 October 2020, Wehbe informed Boga that he had $25,000 to collect from his home at William Street, Granville. Boga attended the address and collected the money.
[255]
On 25 January 2021, Wehbe called Boga advising him that he held $20,000 in cash on behalf of Sakr. Boga’s wife was close to Wehbe’s home at the time visiting family. Wehbe dropped off the cash with Boga’s wife at Chetwyn Road, Merrylands.
[256]
On 24 February 2021, Wehbe called Boga again informing him that he had a further $25,000 to be delivered at the request of Sakr. A meeting was arranged in Merrylands where the cash was paid.
[257]
On 24 March 2021, Wehbe phoned Boga once again informing him of a further sum of $20,000 in his possession that was to be paid towards the outstanding loan. Wehbe made the payment to Boga in person at Ostend Street, Lidcombe.
[258]
On 21 July 2021, Wehbe rang Boga to inform him that he had $20,000 from Sakr for repayment of the loan. Boga met with Wehbe on the corner of Gipps Street and Broughton Street, Concord at Elizabeth Park where he received the payment.
[259]
In his affidavit dated 29 August 2024, Sakr says that the course of the loan and the repayments span between the end of 2019 to mid-2021. Due to Covid-19 lockdowns, Sakr could not travel to Sydney to give Boga the cash payments that he consistently requested. Hence, Sakr’s friend, El Zohbi, who occasionally travelled to Sydney to work on his projects would help Sakr to deliver the cash that Boga had requested to Wehbe, another one of Sakr’s friends. Wehbe would then deliver the cash to Boga.
[260]
On 9 December 2019, Sakr withdrew $20,000 from the Roxburgh Park Commonwealth Bank branch. He then withdrew $10,000 from the Dallas Commonwealth Bank branch on the same day. On 20 December 2019, he withdrew another $20,000 from the Dallas Commonwealth Bank branch. He gave the abovementioned money with an additional $9,000 (that is, a total of $59,000) to El Zohbi who would then give the money to Wehbe. Wehbe gave that money to Boga.
[261]
On 24 July 2020, Sakr withdrew $20,000 from a Commonwealth Bank branch. On 27 July 2020, he withdrew another $20,000 from the Kilmore Commonwealth Bank branch. On 28 July 2020, he gave $40,000 to El Zohbi who gave the money to Wehbe. Wehbe would then give the money to Boga.
[262]
On 4 August 2020, Sakr withdrew $51,500 from the Kilmore Commonwealth Bank branch. On 10 August 2020 or 11 August 2020, Sakr gave this money to El Zohbi who then gave it to Wehbe. Wehbe gave the money to Boga to reduce the loan.
[263]
On 23 October 2020, Sakr paid $25,000 into Wehbe’s account. Wehbe gave the money to Boga. Sakr says that his previous defence about making another $25,000 to Boga on the same day was wrong. He only made this one payment on 23 October 2020.
[264]
On 16 November 2020, Sakr withdrew $150,000 from the Broadmeadows Shopping Centre Commonwealth Bank branch.
[265]
On 17 November 2020, Sakr withdrew $30,000 from the Glenroy Commonwealth Bank branch.
[266]
On 20 November 2020, Sakr transferred $42,000 into Wehbe’s account and asked him to give that money to Boga. Sakr says that he did not pay this money directly to Boga.
[267]
On or around 21 November 2020, Sakr gave $180,000 in cash to El Zohbi so that he could give the money to Wehbe who would deliver it to Boga.
[268]
On 5 March 2021, Sakr withdrew $10,000 from the Glenroy Commonwealth Bank branch. On or about 6 March 2021, he gave the money to El Zohbi who gave it to Wehbe. He believes Wehbe gave that money to Boga.
[269]
In or about mid-July 2021, Sakr borrowed $43,000 from his wife’s friend, Emna. He asked either El Zohbi or Webhe or both to take a photo of the money since it was borrowed from Emna. El Zohbi did not take a photo of the money.
[270]
El Zobhi is Sakr’s friend and business partner. El Zohbi had never met Boga. In his affidavit dated 29 August 2024, he says that in or around 2020, he had a property project at Pegler Avenue, Granville (South Granville property project). As El Zohbi lived in Melbourne, he would drive up to Sydney every two to three weeks to oversee the South Granville property project. El Zohbi would stay in Sydney for about three nights on each occasion before driving back to Melbourne.
[271]
In or around 2020, Sakr called El Zohbi and asked whether he would be able to deliver money to Wehbe in Sydney. This occurred during the Covid-19 lockdown period when there were border restrictions in place between Victoria and New South Wales. On each occasion, El Zohbi would meet Wehbe out the front of Wehbe’s house in Granville and hand him the cash. However, on one occasion, he met Wehbe onsite at the South Granville property project. El Zohbi recalled that over this period, he met Wehbe around four to six times.
[272]
The amounts of money delivered to Wehbe were typically between $20,000 and $40,000. However, El Zohbi recalled that he did deliver a larger amount of money to Wehbe on one occasion around $100,000 or maybe even $150,000.
[273]
Wehbe is Sakr’s friend. In his affidavit dated 28 August 2024, he says that in or around 2017, Sakr called and asked him to collect some cash from Boga’s burger shop in Drummoyne. Wehbe collected the money and delivered it to someone whose name he could no longer recall.
[274]
Between 2019 and 2022, Sakr instructed Wehbe that El Zohbi would deliver cash to him so that he could then give it to Boga. Wehbe recalled that this happened around 12 times. Wehbe barely counted the money, but he estimated that the cash typically varied between $20,000 and $40,000. Wehbe recalls that there was one time that he had to deliver around $120,000 to Boga. He could recall this amount because it was delivered in a larger bag than the other ones.
[275]
The first few “cash” deliveries were made by Wehbe to Boga at his burger shop. The first delivery occurred in December 2019, when Sakr instructed Wehbe that El Zohbi would deliver cash to him that was to then be delivered to Boga. Either on the same day or the day after, Wehbe picked up the cash from outside of El Zohbi’s house and then drove to Boga’s burger shop and handed him the money. Wehbe could recall this delivery since it was around the time of his son’s first birthday in December 2019.
[276]
For the next few deliveries, Wehbe would deliver cash to Boga at his burger shop during the Covid-19 restrictions.
[277]
On 24 August 2020, Wehbe received some cash from El Zohbi. Wehbe told Boga about the cash. Boga then requested Wehbe deliver the money to his address at St Georges Crescent, Drummoyne. Wehbe produced text messages between himself and Boga dated 24 August 2020 showing the address Boga had sent him.
[278]
Between October 2020 and early-2021 Sakr, on three separate occasions, deposited money into Wehbe’s bank account for delivery to Boga. Wehbe kept the money in his account and paid Boga with his own cash.
1. (1)
  On 23 October 2020, Sakr deposited money into Wehbe’s account. On the same day, Wehbe told Boga about the money. Boga then collected cash from Wehbe’s premises. Wehbe produced text messages between himself and Boga dated 23 October 2020 showing that he provided the address to Boga.
2. (2)
  On 25 January 2021, Wehbe told Boga that he had $20,000 in cash for Boga. Boga then instructed him to drop the cash off to his wife at Chetwyn Road, Merrylands. Wehbe produced text messages between himself and Boga dated 25 January 2021 showing that Boga provided him this address.
3. (3)
  On 21 July 2021, El Zohbi gave $43,000 in cash to Wehbe and instructed him to take a picture of the money as Sakr borrowed this money from another person. Wehbe cannot remember who that person was. On the same day, he delivered the money to Boga on the corner of Broughton Street and Gipps Street, Concord. Wehbe produced text messages between himself and Boga dated 21 July 2021 showing that Boga provided him this address.
[279]
Wehbe says that the above transactions are based on his best recollection and acknowledged that there is a possibility that he may have overlooked some transactions.
[280]
In his affidavit dated 8 November 2024, Boga says that Wehbe has never collected any cash from his burger shop.
[281]
Boga only received cash from Wehbe on six occasions rather than 12 occasions as follows:
1. (1)
  on 24 August 2020, $20,000;
2. (2)
  on 23 October 2020, $25,000;
3. (3)
  on 25 January 2021, $20,000;
4. (4)
  on 24 February 2021, $25,000;
5. (5)
  on 24 March 2021, $20,000; and
6. (6)
  on 21 July 2021, $20,000.

Credibility of parties and witnesses

[282]
The credibility of all witnesses (excluding Seyhan) was seriously in dispute so resolving the issue in relation to each witness has been involved and lengthy.
[283]
As to the credibility of Sakr and his two witnesses, El Zohbi and Wehbe, Counsel for Boga submitted as follows.
[284]
El Zohbi was an unimpressive witness who kept no records and had scant recollection of dates and events. His evidence did not assist Sakr.
[285]
Wehbe’s evidence was that he delivered cash to Boga on occasions. This was not disputed by Boga who accepts that he received cash from Wehbe on six occasions and accounts for the monies when asserting what monies are owed to him. Wehbe, like El Zohbi was an unimpressive witness who kept no records and had scant recollection of dates and events. He was requested to take a photo of the $43,000 he is alleged to have delivered to Boga and the photo, he accepted in cross-examination, was of his money. His evidence did not assist Sakr, other than confirm that Boga received cash on six occasions.
[286]
After carefully observing both El Zohbi and Wehbe give evidence and be cross-examined, I have reluctantly formed the opinion that their evidence is unreliable. Except where their evidence is corroborated by Boga’s or some other item of firm evidence (such as bank records), I disregard it. Much of El Zohbi’s and Wehbe’s evidence concerns undocumented cash payments. Although not problematic in and of itself, both witnesses had a very vague recollection of the amount of cash that was delivered and the dates on which it was delivered (either to Boga or Boga’s wife).
[287]
Counsel for Boga submitted that the evidence given by Boga and his sons, Hakan and Seyhan should be accepted.
[288]
Boga as the plaintiff was a key witness and he set out his history and dealings with Sakr in a comprehensive and logical manner.
[289]
In cross-examination, his memory was tested and some facts not germane to the issues in the proceedings escaped him, but otherwise, Boga was not shaken during cross-examination and his evidence should be accepted on all issues in dispute, not least because, for the most part that evidence is substantiated by objective evidence.
[290]
Seyhan was a director of Mt Ridley Developments, and the tenor of his evidence was that the company bought the Craigieburn property, retained a planning consultant, obtained a development consent, sold the land for a profit, that Sakr was not involved in the company’s affairs once he sold his interest in February 2018, and that Anthill Construction did not do any work on the land.
[291]
Seyhan’s evidence was unexceptional, and it should be accepted. He presented as a person attempting to give truthful evidence, based on his recollections. I accept him as the only witness who gave credible evidence.
[292]
Hakan’s evidence was that he was a director of Semak, he executed contracts on the company’s behalf with Anthill Construction and then BCI to undertake building works on the Wollert property.
[293]
His credibility is attacked because he accepted that when he needed cash to fund Semak’s activities, he accepted Sakr’s offer to reduce Mt Ridley Developments’ tax liabilities by having Sakr prepare a false invoice and using it to reduce Mt Ridley Developments’ taxation obligations. The evidence places Hakan in a bad light but his admission is also to be considered.
[294]
So far as Boga and his sons’ evidence is concerned, Counsel for Sakr submitted that there are a substantial number of implausibilities and inconsistencies in Boga’s version of events. These submissions are as follows.
[295]
First is the total absence of any objective evidence of requests or demands for repayment of the loan for a period of two years - October 2021 to September 2023. This strongly speaks against any substantial sum being outstanding at that time. This is particularly the case given the regular and frequent contact between Boga and Sakr over that period, described by Boga as being multiple phone calls every day through 2022, tapering down to only multiple phone calls per week in 2023 (T87-89).
[296]
It is also wholly inconsistent with the Boga’s evidence that a sum “over $1.2 million, definitely” was owed by September 2022 (T87 [17]) and was something that they as a family had been “living, waking up to every morning for the past four years” (T96 [12]-[13]), and that he needed the money badly to pay BCI (CB 216 at [13]).
[297]
Relevant in this regard is the original statement of claim filed by Boga on 14 November 2023, which made no reference to any of the alleged further advances from December 2019 to July 2021, and only referred to one payment of $700,000. That statement of claim was verified on affidavit by Boga. He was legally represented at the time. He has not provided any explanation for the omission in that statement of claim of either the advances to Anthill Construction or the multiple repayments he ultimately came to accept had been made, including the payment of $43,000 to Ms Szeto which he only admitted in his affidavit dated 31/01/2025 (CB387 at [11]).
[298]
Second is Boga’s explanation of his message to Sakr on 16 October 2023 (CB 514). That message states in part:
[299]
Boga accepted in cross-examination that the reference to “certificates” was certificates he needed to obtain an occupation certificate for the constructed dwellings at the Wollert property, and “title” was the mortgage he held over Glenburnie Rd. His explanation of what he meant by that message was for Sakr to return the monies owed under the loan (said to be $1,400,000 at this stage), so that he could pay BCI and obtain the certificates (CB 216 at [13]). Counsel for Sakr submitted that Boga’s explanation was inaccurate for several reasons.
[300]
First, on no reading of the message can that meaning be inferred. Its terms are absolutely plain - if Sakr gave Boga the certificates that he held for the works that Anthill Construction had completed, Boga would release the mortgage he held. That message cannot be interpreted any other way.
[301]
Second, Boga’s evidence that at this time he held a desire to pay BCI the total value of those contract works is, in the context of his other evidence, unbelievable. On Boga’s version of events, BCI was at this stage uncontactable, had effectively done nothing for a year, and entirely in league with Sakr. Indeed, Boga’s evidence in cross-examination was that by this stage he had “lost all faith” in BCI (T92).
[302]
Third is Boga’s allegations that the terms of the loan as originally agreed were for Sakr to pay Boga the fixed sum of $150,000 at the end of the two-month period in lieu of interest (CB 24 at [46]). Boga’s evidence was that his only incentive to enter into the loan agreement was the payment of $150,000 (T52 [34]-[39]):
[303]
His evidence was that his lawyers prepared the deed on his instructions, and that he reviewed the deed before sending it to Sakr. That deed makes no reference whatsoever to a fixed sum of payment, and the interest payable under the loan of 10% over that two-month period (which amounts to $31,927.62) is substantially lower than $150,000. Coincidentally, neither the statement of claim nor the amended statement of claim (which Boga also verified) makes any reference to this requirement to pay $150,000.
[304]
Fourth is the circumstances in which the alleged advances were made. Boga says he advanced $450,000 on 27 December 2019. As at that date, and on his evidence, only $628,000 had been paid. Further on his evidence, he was expecting to receive $759,000 (being a transfer of $700,000 plus $59,000 in cash (CB 134)) and instead received $556,500.
[305]
In the cross-examination he said this (T56 [6]-[12]):
[306]
He gave evidence of having a conversation after receiving those funds where Sakr allegedly told him that he did not have any more funds and could not pay anything more and he said that this conversation probably took place after 26 December 2019 (T59 [10]-[17]).
[307]
There is no mention of this conversation in any of Boga’s four affidavits.
[308]
Then on Boga’s evidence, and within no more than a day, he has a further conversation with Sakr where Sakr allegedly asks for a further $450,000, but to be paid to Anthill Construction, and without objection, Boga transfers the money and does so without any written confirmation as to the further advance.
[309]
Counsel for Sakr submitted that that chain of events is preposterous for several reasons:
1. (1)
  Firstly, and logically, if Sakr needed $450,000 at the end of December 2019, he would hardly be likely to pay Boga $556,500 and then go cap in hand to him to effectively ask for it back, particularly given that it would be highly unlikely that any but the most naive lender would return to a debtor, who is about to default on his loan, the bulk of the monies paid.
2. (2)
  Secondly, even the naivest lender would maintain some record of that advance, even if by happenstance. As this Court observed in Kraljevic v Kraljevic [2017] NSWSC 225 (per Pembroke J at [24]):
3. (3)
  Boga’s evidence is inconsistent with the contemporaneous record which shows that he and Sakr had agreed on a repayment of $556,500 before that money was transferred (CB 447). When Boga was taken to that message, he first apparently could not recollect the evidence that he had given to the Court a few minutes before concerning this further conversation that was not in his affidavit, and then could provide no explanation for that message (T61-62). This same implausibility affects the alleged advance of $20,000 on 31 March 2021, noting that Boga admits receiving either $20,000 (CB 27 at [78]) or $25,000 (CB 5 at 13C.K.) from Sakr the week prior. With respect to the alleged advance of $100,000 on 10 November 2020, the contemporaneous evidence shows that Sakr withdrew a total of $640,000 from his bank within 14 days of that date which strongly suggests he had no need for money at that particular time (CB 409, 411).
[310]
Fifth is the related evidence of Boga—given for the first time in cross-examination—that the cash advances totaling $130,000 were not part of the loan deed but formed a completely separate agreement. That is directly inconsistent with the amended statement of claim, which Boga accepted in cross-examination clearly identified the cash advances to form part of the loan (T73). He could also not give any cogent explanation for why he then included those alleged advances (and repayments) in his affidavit given that this suit only concerned the deed of loan. Nor could he give any explanation as to why the evidence he gave for the first time in cross-examination—that he did not keep any record of the cash payments and instead kept a mental tally against the cash advances—was absent in his affidavit evidence.
[311]
His affidavit evidence, however, not only sets out those cash advances but - directly inconsistent with his oral evidence - expressly includes those cash advances as being part of the loan under the deed. He includes the alleged cash advance of $45,000 in the running tally of the loan (CB 25 at [56]-[62]).
[312]
Sixth is the implausibility that those monies were not paid to Anthill Construction for construction works, given that only $890,800 was paid on Boga's case, and the works performed were obviously in excess of that. That the value of works was obviously more than that can, in addition to the reasons set out above, be seen in the fact that Semak entered into a contract with BCI for what was effectively only part of the fixings stage in the sum of $1,400,000, and it stretches credulity to breaking point to suggest that works to lock up for 14 townhouses would be less than $900,000, but the installation of kitchens, bathroom fittings and floor coverings would be $1,400,000. These matters together clearly show an intent on part of Boga to inflate the loan amount as far as possible.
[313]
Seventh is that the evidence of both Boga and Hakan is that Hakan entered into a contract for $1,400,000 with a builder they had never heard of, and not performed any enquiries in relation to. In cross-examination, Hakan accepted that his view at the time was that neither Anthill Construction nor Mr Sakr were reliable (T133) and yet he was apparently willing to commit Semak to significant contractual obligations simply on the word of Mr Sakr. Related in this regard is the evidence of Boga that BCI both did work which was defective (CB 262 at [33]) and that BCI had “basically done nothing” (T92 [31]-[32]).
[314]
Eighth is Hakan’s evidence that he asked for the creation of a "paid" invoice to reduce Mt Ridley Developments’ tax liability to meet an immediate need for cash. The invoice was for $272,727.27 (GST exclusive). The reduction in tax liability could only have amounted 30% of that sum (being the company tax rate), which amounts to $81,818.18. That sum of money relative to the monies obviously available to the Boga family at the time (and noting that the Craigieburn property had been sold for what on its face is a substantial profit) is minimal. Further, although Hakan had access to a line of credit, he also intentionally entered into a scheme to defraud the revenue for that sum—without even first checking to see if he had credit available (T141-142).
[315]
Ninth is Boga’s evidence that he made no enquiries with Hakan after allegedly finding out for the first time during the course of proceedings that Hakan had intentionally participated in a fraud on the tax revenue (T105-106). Interestingly, Boga did not adopt Seyhan’s excuse for not making enquiries (paraphrased, “my lawyer told me not to do it” which is itself implausible) and instead offered no explanation.
[316]
Finally, there is Boga’s evidence that he did not consider he had earned interest on the loan over the financial years ending 2020 and 2021, when objectively he made over $270,000 in that period. His evidence itself seems to contradict that position (T98 [37]-[40]):
[317]
Boga’s position that he was going to “declare” the interest once the loan was all paid (T99-100) is equally implausible, as Boga also gave evidence that he took no steps to check with a professional as to whether he needed to declare that interest income (T100-101). Boga is plainly a highly experienced and successful businessman, who on his own evidence at one time ran a chain of restaurants comprising 31 stores across four cities (CB 20 at [5]). He is presently a property developer. Counsel for Sakr submitted that that evidence must be rejected.
[318]
His intentional failure to declare the interest income has two effects on his evidence. First, it generally affects his credibility. Two, it provides him with a substantial motive to minimise repayments made with respect to the loan, and in particular cash and in-kind payments which means that his specific evidence as to the repayments is in doubt.

Resolution

[319]
I carefully observed Boga when giving evidence and being cross-examined. I have also reluctantly arrived at my conclusion that Boga was not entirely truthful. At times, he made payments to Anthill Construction and gave evidence that they were advances made in relation to the loan, not for Semak’s share of the building expenses. I have analysed each disputed transaction in relation to each witness and have adopted a uniform approach. Where there is a contemporaneous document, I accept and prefer that evidence. Otherwise, I have analysed the disputed transaction and resolved it by considering what was the more logical evidence that best fits with the facts and circumstance surrounding that transaction.
[320]
Counsel for Boga submitted that Sakr was an unimpressive witness who would not be accepted for one or more of the following reasons:
1. (1)
  He did not repay the first loan for $150,000 advanced to him in June 2019 as he promised he would. He also did not repay the loan for $1,900,000 by 28 December 2019 as the loan agreement required. These cast him in a poor light and as someone whose word means little.
2. (2)
  He was a poor historian. He also had no records to support the full extent of his contentions.
3. (3)
  During cross-examination, he was argumentative, he did not answer questions and was intent on being an advocate for his cause.
4. (4)
  His evidence, both in chief and cross-examination, was discursive and contradictory:
5. (5)
  While disputing the description, Sakr is a “wheeler-dealer” who appears to live on the margin and craves the next deal. His financial acumen is questionable, given his own evidence about losing significant amounts of money and the liquidator’s report about Anthill Construction’s affairs.
6. (6)
  Sakr’s counterfactual that he owed no money, is risible.
7. (7)
  Though perhaps reluctant to make the finding, the Court will conclude that Sakr has fabricated documents to assist him in these proceedings.
[321]
For these reasons, Counsel for Boga submitted that nothing Sakr says would be accepted.
[322]
I found Sakr to be an unimpressive witness. He changed his evidence so much I had difficulty following what his latest evidence on various topics was. To give a few examples, in cross-examination Sakr gave evidence that at times was ludicrous about the financial health of Anthill Construction, including the payment of a sum of USD $7,000,000 allegedly given to him by his mother, and whether or not Anthill Construction received $27,000,000 from Lendlease:
[323]
A further example is how Sakr was not consistent about what his own role in the company was.
[324]
Another topic where I found his evidence meet unreliable and inconsistent was his relationship with his wife, Saly, and what exactly was her role as the director of Anthill Construction involved:
[325]
Nevertheless, his wife was not called to give evidence (T197 [28]-[37]):
[326]
There were many contradicting statements made by Sakr. After the conclusion of his evidence, I reluctantly formed the opinion that I cannot accept his evidence unless there are corroborating documents that are undisputed, particularly, invoices, or there is a compelling reason as to why his evidence should be accepted.

Jones v Dunkel Inferences – Saly and Hakan

[327]
Counsel for Boga submitted that a Jones v Dunkel inference should be drawn against Sakr’s wife Saly. Counsel for Sakr submitted that a Jones v Dunkel inference should be drawn against Hakan because he did not produce the records that he has in his possession in relation to the issue of whether Anthill Construction did anything for Mt Ridley Developments.
[328]
A Jones v Dunkel inference (from the case Jones v Dunkel (1959) 101 CLR 298) can be used for two purposes, namely, (a) in assisting to decide whether to accept evidence that has been given which relates to a matter of which that witness could have given evidence; and (b) in assisting to decide whether to draw inferences of fact which are open on the evidence that has been given, in relation to matters of which that witness could have spoken (Winneke P in Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 131, quoting from O'Donnell v Reichard [1975] VR 916 at 929).
[329]
The rule in Jones v Dunkel is a particular application of Lord Mansfield CJ’s maxim in Blatch v Archer (1774) 1 Cowp 63 at 65 (98 ER 969 at 970) that: “[a]ll 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.” That maxim goes to the problem that, in deciding issues of fact, the court is concerned not just with the question “what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision” (Ho v Powell (2001) 51 NSWLR 572 at [14]-[16] per Hodgson JA, Beazley JA agreeing).
[330]
Where the evidence not adduced relates to a positive allegation or matter of which the party in question bears the evidentiary onus, then the rule in Jones v Dunkel assists the Court in deciding whether the party bearing that onus has discharged it (Australian Securities & Investments Commission v Rich (2009) 75 ACSR 1 at [438]-[440]).
[331]
The capacity of a party to lead evidence on a matter in issue is relevant when assessing the sufficiency of evidence. Sakr’s wife Saly was Anthill Construction’ director and controller at all times from the company’s incorporation until liquidation.
[332]
Saly was a vital witness; she was available and did not give evidence.
[333]
On issues where Sakr had the onus of proof, the Court ought not find in Sakr’s favour on any issue involving Anthill Construction.
[334]
In the oral submissions, Counsel for Sakr accepted that a Jones v Dunkel inference is available in relation to the failure to call Saly.

Resolution

[335]
As to whether a Jones v Dunkel inference should be drawn against Sakr’s wife Saly, in cross-examination, Sakr claimed that he was not in contact with Saly about the location of the Anthill Construction records, yet he had a conversation with her one night when the trial was running. There is no plausible explanation proffered as to why she was unavailable to attend the trial.
[336]
Anthill Construction played a pivotal role in the parties’ dealings as:
1. (1)
  it was the builder of townhouses on the Wollert property,
2. (2)
  monies were channeled to it by Boga,
3. (3)
  monies were repaid to Boga by the company, and
4. (4)
  Sakr contended invoices it issued were set off against loan monies.
[337]
In the circumstances, in the exercise of my discretion I draw a Jones v Dunkel inference against Saly. Where Sakr has the onus of proof in the absence of the evidence of Saly, I do not find in Sakr’s favour on any issues involving Anthill Construction.
[338]
One of the disputes in this matter is whether Anthill Construction did anything for Mt Ridley Developments. Hakan admitted in cross-examination that he had the books in his possession, and those books obviously would have shed some light on these dealings, and they were not produced.
[339]
As to whether a Jones v Dunkel inference should be drawn against Hakan on the basis that he had the books and records of Mt Ridley Developments in his possession and he did not produce them, I decline to draw a Jones v Dunkel inference because Hakan gave evidence and was cross-examined. It is unclear whether any requests were made for him to produce these records under subpoena or otherwise.

Findings – advances and repayments in dispute

[340]
Now, I turn to analyse each advance and repayment that is in dispute and make my findings.

Advances in dispute

[341]
Boga’s evidence is that, on 27 December 2019, Sakr rang Boga saying he was tight for money requesting another $450,000. Boga said that he felt comfortable transferring the additional funds to Sakr because of the deed and mortgage that was already in place over his property. On 27 December 2019, Boga transferred $450,000 directly from his St George bank account to Anthill Construction. Although Sakr had not fully repaid the loan on 27 December 2019, Boga says that he made a further payment of $450,000 to Sakr on that day. He produced a record of telegraphic transfer from St George Bank showing the transfer of $450,000 on 27 December 2019 to Anthill Construction (CB 138).
[342]
Counsel for Sakr submitted that it is unreasonable that Sakr asked Boga to borrow $450,000 on 27 December 2019 because Sakr had just made a payment of $556,000 to Boga on 23 December 2019.
[343]
Sakr denied the payment was a loan for him. Instead, he firstly claimed it was paid to Anthill Construction by Mt Ridley Developments for planning, designing and other development requirements for the Craigieburn property. He says that he gave a copy of the tax invoice dated 19 December 2019 to Boga at the Wollert property. Sakr then changed his evidence by saying that the invoice dated 19 December 2019 did not solely relate to works undertaken by Anthill Construction for the Craigieburn property. His explanation was that when he sold his share to Solak, Solak did not have sufficient funds, which left a shortfall of $150,000. In or around December 2019, Sakr called Boga and told him that Solak owed him $150,000 for the balance of his share in the Craigieburn property and the $300,000 for his “associate fee”. Sakr recalled that Boga told him that he would arrange payment of the $450,000 owed by Solak and requested Sakr to render an invoice to Semak and that it would be paid shortly after. Sakr then proceeded to render an invoice on behalf of Anthill Construction and addressed it to Semak.
[344]
Boga claimed that there was no agreement for Boga to pay a profit share to Sakr. The $450,000 was a loan requested by Sakr. Likewise, Seyhan denied the existence of the agreement that Boga would pay to Sakr $300,000 for his transfer of shares to Solak since it would not benefit Boga or Seyhan himself. Seyhan’s evidence is that his shareholding in Mt Ridley Developments remained unchanged when Solak and Mt Ridley Holdings purchased Sakr’s shares.
[345]
Sakr produced a copy of the handwritten tax invoice showing that Mt Ridley Developments owed Anthill Construction $300,000 for work completed and $150,000 for profit share (CB 449).
[346]
Boga, Seyhan and Hakan denied that they have ever seen this invoice.
[347]
Boga denied that he agreed to pay $300,000 as an associate fee. Seyhan gave evidence that Sakr wanted a fee for bringing the deal to them.

Resolution

[348]
It is difficult to decide this dispute. Here, Boga bears the onus of proof. He transferred the payment to Anthill Constructions. It is not sensible commercial behaviours for Boga to decide to transfer a substantial sum of $450,000 when the loan has not been repaid. Hence, I do not accept that the sum of $450,000 was advanced to Sakr as a further loan.
[349]
Boga’s evidence is that on 23 February 2020, he flew to Melbourne with his wife. When he told Sakr he was coming to Melbourne, Sakr requested another loan as he was apparently in urgent need of money. At that time Boga was able to secure $45,000 in cash. He handed the money to Sakr at Melbourne airport.
[350]
In re-examination, Boga confirmed that Wehbe made two cash payments on 23 August 2020 and 24 October 2020, repaying the $45,000 loan given on 23 February 2020.
[351]
In contrast, Sakr deposed that on 23 February 2020, he picked up Boga and his wife from the airport. Sakr denies asking for and receiving a cash payment of $45,000. The purpose of the visit was for Boga to meet Mr Barron (a real estate agent as mentioned above).
[352]
I accept that the advance of $45,000 in cash was made by Boga to Sakr on 23 February 2020. On Boga’s own evidence, this sum was repaid in two cash payments on 23 August 2020 and 24 October 2020. The advance of $45,000 by Boga has been paid by Sakr via Wehbe.
[353]
Boga’s evidence is that Sakr called him requested a further loan of $100,000 in early November 2020. He transferred that money to Anthill Construction on 10 November 2020. Boga produced a copy of the EFT transfer that he made to Anthill Construction on 10 November 2020 (CB146).
[354]
Sakr’s evidence is that the $100,000 was a construction payment and not a loan. He produced a handwritten invoice for $100,000 dated 9 November 2020, from Anthill Construction to Semak for excavation works to be carried out on the Wollert property (CB 510). The invoice stated that it was for “breaking rocks and soil removals”.
[355]
Boga’s evidence is that there was no variation to the contract related to the “breaking of rocks”.
[356]
ln or about October 2020, the excavation work commenced at the Wollert property. The work concluded in or about March 2021.
[357]
The building contract between Semak and Anthill Construction allowed for a construction period of 500 days. The 500-day completion date including delay days expired around mid-October 2021
[358]
In the cross-examination, Sakr gave evidence regarding the invoice (T304- 306):
[359]
Boga denied that this money was a construction payment towards the building of the Wollert property. He further denied seeing the invoice produced by Sakr dated 9 November 2020.
[360]
Hakan deposed that the first invoice issued to Anthill Construction by Semak was tax invoice 331 on 14 April 2021 (CB 260 [16]). In reply to Hakan, Sakr deposed that this was incorrect, and that the first invoice was the invoice dated 9 November 2020.
[361]
It is my view that the “breaking of rocks and soil removal” is a payment that the Boga entity owes to Anthill Construction. Therefore, I disallow that Boga advanced $100,000 to Sakr as part of the loan agreement.
[362]
Boga’s evidence is that while he was driving to Melbourne on 28 November 2020, Sakr called to request a loan of $100,000. Boga agreed to lend $65,000 instead of the full $100,000. On 29 November 2020, Boga attended Sakr’s farmhouse for dinner and gave him $65,000 in cash.
[363]
In re-examination, Boga confirmed that he made a $65,000 cash payment to Sakr and that repayments were made on 25 January 2021, 24 February 2021 and 24 March 2021 totalling $65,000.
[364]
Sakr denied that he requested a loan of $100,000 from Boga on 28 November 2020. Sakr further said that Boga attended his house for lunch only on 29 November 2020 and that he did not receive any money from Boga.
[365]
On Boga’s own evidence, he lent Sakr $65,000 in cash. Sakr repaid that sum. There is no money outstanding on this loan dated 29 November 2020.
[366]
Boga’s evidence is that he drove to Melbourne with his friend Aras and that prior to this trip, Sakr has requested a loan of $20,000 in cash. Boga’s evidence is that he brought this money in cash with him to Melbourne and while in the company of Aras, gave that money to Sakr at the Wollert property.
[367]
Sakr denied requesting a $20,000 loan from Boga and claims that he has never met Aras.
[368]
Once again is difficult to make a finding on the balance of probabilities in relation to this cash payment of $20,000. In these circumstances, on the balance of probabilities and where Boga bears the onus of proof, Boga did not lend Sakr the sum of $20,000 in cash on 31 March 2021.
[369]
Boga’s evidence is that Sakr rang him in mid-July 2021 to ask for a further loan of $150,000. Boga claimed that he transferred this money to Anthill Construction on 19 July 2021 under Sakr’s instruction. He produced a copy of the telegraphic transfer he made to Anthill Construction on 19 July 2021 (CB 157).
[370]
Sakr said that the $150,000 was not a loan but a construction payment to Anthill Construction towards the building of the Wollert property. He produced a handwritten invoice dated 19 July 2021 (CB 512). The contents of the invoice are illegible.
[371]
In cross-examination, Sakr gave evidence as follows (T306-307):
[372]
Both Boga and Hakan denied seeing the invoice dated 19 July 2021.
[373]
Once again, it is difficult to decide on the balance of probabilities, but Boga bears the onus of proof. He transferred the payment to Anthill Construction. Hence, I do not accept that the sum of $150,000 was advanced as a loan to Sakr.

Repayments in Dispute 1

[374]
Sakr’s evidence is that on 11 November 2020, he went to the bank together with Boga and withdrew $35,000. Sakr then gave the cash to Boga (CB 424 at [47]). However, in his affidavit dated 5 April 2024, Sakr clarified that he made a payment of $34,000 on 11 November 2020 rather than $35,000. He also provided a bank statement which shows a withdrawal of $34,000 from the bank branch in Broadmeadows Shopping Centre on 11 November 2020 (CB 411).
[375]
Boga made no submissions about this payment. He has neither denied nor confirmed this payment.

Resolution

[376]
Due to the existence of the contemporaneous bank statement from Sakr, I accept that on the 11 November 2020 Sakr made a repayment of loan to Boga in the sum of $34,000.

Repayments in Dispute 2 – three repayments to Anthill Construction

[377]
Sakr’s evidence is that on three occasions, he either got the permission or direction from Boga to make payments to Anthill Construction as a reduction of the loan.
[378]
Due to the liquidation of Anthill Construction, Sakr cannot provide the relevant invoices for these three payments to Anthill Construction.
[379]
The alleged repayments are as follows.
[380]
Sakr’s evidence is that on 2 June 2020, Sakr paid $25,000 to Anthill Construction. Sakr recalled that before making the payment, he called Boga and suggested to Boga that this payment be made as a reduction of the amount owed to Anthill Construction by Mt Ridley Developments as well as reducing the loan. He says that Boga agreed with the suggestion. Sakr produced a bank statement which showed a transfer of $25,000 on 2 June 2020 (CB 405).
[381]
During cross-examination, Sakr did not provide a clear explanation about this transaction (T282 [7]-[25]; T283 [19]-[47]; T284 [5]-[22]):
[382]
Boga’s evidence is that he has never agreed to or received any benefits from the payment made by Sakr on 2 June 2020 to Anthill Construction. He says that he has never directed Sakr to pay money owed to him to Anthill Construction.
[383]
Seyhan denied that Mt Ridley Developments owed $25,000 to Anthill Construction. There was no reason for Sakr to pay the sum of $25,000 to Anthill Construction on behalf of Mt Ridley Developments.
[384]
In cross-examination, Sakr gave evidence that Anthill Construction didn’t have a contract with Mt Ridley Development but still did some works for the Craigieburn property (T287 [43]-[48]).
[385]
In the cross-examination, Boga stated that the payment of $450,000 is not for building works and there was no building works at that time (T58 [30]-[39]):
[386]
According to the settlement statement provided by Seyhan (CB 231-237), the purchase of the Craigieburn property occurred on or about 15 November 2018. According to the instrument search of the transfer of land (CB 576-577), the property was sold on or about 3 June 2021.
[387]
Sakr’s evidence was that the only development on the land of the Craigieburn property was for the application for the planning permit to develop a childcare centre with nine townhouses at the rear. Sakr’s evidence was that Anthill Construction was engaged by Mt Ridley Developments to complete works on its behalf. Anthill Construction liaised with the Council and worked alongside the architect being Chinh Mai of Planning Design. Boga would also contact Sakr for updates on council permits. Seyhan produced his text messages with Boga about the council permits (CB 588).
[388]
Seyhan’s evidence was that Chinh Mai was not involved with the Craigieburn property, he worked on the Wollert property only. Instead, Allister Saris of Saris International worked on the Craigieburn property. Anthill Construction was not involved in the Craigieburn property. Anthill Construction never completed work for the Craigieburn property. Seyhan’s evidence was that he had never seen that invoice dated 19 December 2019 before. On or about 1 June 2021, about 18 months later, the Craigieburn property was sold. The proceeds of the sale were split between Seyhan and Mt Ridley Holdings. There was no money owed to Sakr from this venture
[389]
Based on the parties’ evidence, it is still unclear whether on or around 27 December 2019 when Boga transferred the $450,000 to Sakr, Anthill Construction was doing any building works for Mt Ridley Development.
[390]
In May 2022, Hakan sent a text message to Sakr and requested Sakr to send an invoice to Mt Ridley Developments. In the text message, Hakan wrote: “For: civil works for [xx] Mt Ridley Rd Craigieburn, 8/9/20 300,000, invoice include gst please. Could you please have paid on the button and show zero balance owing.” (CB 580). On 20 May 2022, Sakr sent Hakan an invoice dated 20 May 2022 for the amount of $300,000 including GST as requested (CB 584).
[391]
This invoice is the key evidence as to whether Anthill Construction did some works for the Craigieburn property. However, the authenticity of the invoice is in dispute.
[392]
In cross-examination, Sakr gave evidence as follows:
[393]
In cross-examination, Hakan, as the primary person who was responsible for the accounting works for the Mt Ridley Developments, denied that Anthill Construction performed any works at Craigieburn property.

Resolution

[394]
Here, neither Boga, Hakan nor Sakr gave credible evidence. Hence, I find that Sakr did not pay the $25,000 to Anthill Construction on behalf of Mt Ridley Developments as a reduction of the loan from Boga.
[395]
Sakr’s evidence is that on 8 January 2021, Boga requested a payment of $300,000 during a telephone conversation with Sakr. Sakr says that Boga agreed to him paying the $300,000 to Anthill Construction on behalf of Mt Ridley Developments for the Craigieburn property as a reduction in the loan. Sakr produced a bank statement which showed a transfer of $300,000 on 8 January 2021 (CB 413).
[396]
During cross-examination, Sakr says that all his dealing with Boga including lending money to Anthill Construction was based on a verbal agreement only (T298 [6]-[24]):
[397]
In his affidavit, Boga claimed that he has never directed Sakr to pay money owed to him to Anthill Construction.
[398]
Seyhan’s evidence is that he denied that Mt Ridley Developments had to pay the sum of $300,000 to Anthill Construction. Anthill Construction was never engaged by Mt Ridley Developments to complete any work on its behalf.
[399]
It is most unlikely that Anthill Construction completed such significant work that would be in the sum $300,000 to Anthill Construction. In these circumstances, I find that Sakr did not pay the $300,000 to Anthill Construction on behalf of Mt Ridley Developments as a reduction of the loan from Boga.
[400]
Sakr’s evidence is that around 25 January 2021, Boga called him to request $40,000 in repayment of the loan and agreed to Sakr transferring a further $40,000 to Anthill Construction on Boga’s behalf, towards construction of the Wollert property. On 25 January 2021, Sakr transferred $40,000 to Anthill Construction towards to the building of the Wollert property as a reduction in the loan. Sakr produced a bank statement which showed a transfer of $40,000 on 8 January 2021 (CB 413).
[401]
Once again, Boga’s evidence is that he has never directed Sakr to pay money owed to him to Anthill Construction.
[402]
Here, Sakr bears the onus of proof and he transferred the $40,000 to Anthill Construction. It is my view that, on the balance of probability, Sakr did not pay the $40,000 to Anthill Construction on behalf of Semak as a reduction of the loan from Boga.

Repayments in Dispute 3 – El Zohbi and Wehbe

[403]
Sakr’s evidence is that during Covid-19 period, instead of paying Boga directly, on several occasions he used third parties to make the repayments to Boga. There are two steps involved in these repayments: firstly, Sakr withdrew the cash or transferred the money from his bank account to either El Zohbi who then gave that money to Wehbe, or the money was given to Wehbe directly; and secondly, Wehbe would then give that money to Boga. It should be mentioned that these two steps often occurred on different dates.
[404]
For the first step referred to above, Sakr’s evidence is that he gave money to either El Zohbi or Webhe who then gave that money to Boga on the following occasions:
1. (1)
  On 9 December 2019, Sakr withdrew $30,000 and on 20 December 2019, Sakr withdrew $20,000 (Sakr produced his bank statement showing these two withdrawals (CB 403)). Along with $9,000 Sakr already had in his possession, Sakr gave in total $59,000 in cash to El Zohbi who gave it to Wehbe who then gave it to Boga (CB 423 at [38]);
2. (2)
  On 24 July 2020, Sakr withdrew $20,000 and on 27 July 2020, Sakr withdrew $20,000 (Sakr produced his bank statement showing these two withdrawals (CB 405)). On 28 July 2020, Sakr gave in total $40,000 in cash to El Zohbi who gave it to Wehbe who then gave it to Boga (CB 423 at [42]).
3. (3)
  On 4 August 2020, Sakr withdrew $51,500 (Sakr produced his bank statement showing this withdrawal (CB 407)). On 10 or 11 August 2020, he gave the case to El Zohbi who gave it to Wehbe who then gave it to Boga (CB 423 at [43]; CB 424 at [44]);
4. (4)
  On 20 November 2020, Sakr transferred $42,000 directly to Wehbe who gave it to Boga (CB 424 at [50]). Sakr produced his bank statement showing this transfer (CB 411);
5. (5)
  On or around 21 November 2020, Sakr gave $180,000 in cash to El Zohbi who gave it to Wehbe who then gave it to Boga (CB 424 at [51]);
6. (6)
  On 24 November 2020, Sakr transferred $34,000 to Wehbe who gave it to Boga (CB 424 at [52]). Sakr produced his bank statement showing this transfer (CB 411);
7. (7)
  On 5 March 2021, Sakr withdrew $10,000 (Sakr produced his bank statement showing this withdrawal (CB 415)) and gave it to El Zohbi on 6 March 2021, who gave it to Wehbe who then gave it to Boga (CB 425 at [53]-[54]); and
8. (8)
  On 15 July 2021, Sakr borrowed $43,000 in cash from Emna and gave the cash to El Zohbi who gave it to Wehbe who then gave it to Boga. Sakr instructed El Zohbi and Wehbe that Wehbe needed to take a picture of the money (CB 425 at [55]).
[405]
In total, Sakr deposed that he gave $459,500 either in cash or by electronic transfer to El Zohbi or to Wehbe to give to Boga.
[406]
For the second step referred to as above, Boga agreed that he has received cash from Wehbe in the following six occasions:
1. (1)
  On 24 August 2020, $20,000 (Wehbe as per Sakr’s instruction gave cash to Boga - CB 26 at [65]);
2. (2)
  On 23 October 2020, $25,000 (Wehbe as per Boga’s instructions gave the cash to Boga - CB 26 at [68] - however, Boga denied the payment in closing submissions);
3. (3)
  On 25 January 2021, $20,000 (Wehbe as per Sakr’s instruction gave it to Boga's wife - CB 26 at [76]);
4. (4)
  On 24 February 2021, $25,000 (Wehbe as per Sakr’s instruction gave cash to Boga - CB 27 at [77]);
5. (5)
  On 24 March 2021, $20,000 (Wehbe as per Sakr’s instruction gave cash to Boga - CB 27 at [78]); and
6. (6)
  On 21 July 2021, $20,000 (Wehbe as per Sakr’s instruction gave cash to Boga - CB 28 at [88])
[407]
In total, Boga’s evidence is that he has received $130,000 from Wehbe.
[408]
That leaves a $329,500 in the gap between the amount of money that Sakr says he gave to either El Zohbi or Webhe who then gave that money to Boga and the amount of money that Boga claimed that he received via this cash payment method.
[409]
In the amended statement of claim, Boga deposed that he received a repayment of $25,000 on 24 March 2021 (CB5 at [13C(K)]). However, in his affidavit dated 5 March 2024, he claimed that he received a cash repayment of $20,000 on 24 March 2021 from Wehbe (CB 27 at [78]). There is a difference between the parties in the sum of $5,000. During cross-examination and re-examination, Boga did not clarify whether he received $20,000 or $25,000 in cash from Wehbe on 24 March 2021. Instead, he claimed that the money he received from Wehbe on 25 January, 24 February and 24 March 2021 should have totalled $65,000 as it was repayment of the $65,000 he lent Sakr on 29 November 2020. Boga’s evidence is that the $20,000 and $25,000 he received from Wehbe on 24 August and 23 October 2020 respectively, were repayments of the $45,000 that he lent Sakr on 23 February 2020. Finally, the $20,000 he received from Wehbe on 21 July 2021 was the repayment of the $20,000 that he lent Sakr on 31 March 2021 (T108-110).
[410]
Boga claimed that he has only received cash from Wehbe on the six occasions mentioned above.
[411]
However, Wehbe says that he dropped cash off to Boga on twelve occasions between 2019 and 2022. Both Wehbe and El Zohbi did not keep any record for the cash deliveries.
[412]
Counsel for Boga submitted that Sakr paid $45,000 on 24 March 2021. Boga also received $20,000 in cash on 24 August 2020 and $25,000 in cash on 23 October 2020 that were repayments of the $45,000 loan that Boga lent Sakr on 23 February 2020. On 21 July 2021, Boga received $20,000 cash from Wehbe on behalf of Boga that was a repayment of a loan that Boga made to Sakr on 31 March 2021. These cash repayments total $110,000. The difficulty that arises is whether these repayments were in relation to the loan agreement. Boga gave evidence that not all these repayments were repayments of the loan, but rather further advances and repayments given outside the loan. He described it as a “round robin” arrangement:
[413]
It is my view that these were repayments were a “round robin” arrangement.
[414]
Sakr recalled that on 9 December 2019, he withdrew $20,000 from the Roxburgh Park Commonwealth Bank branch. He then withdrew $10,000 from the Dallas Commonwealth Bank branch on the same day. On 20 December 2019, he withdrew another $20,000 from the Dallas Commonwealth Bank branch. He provided his bank statement as evidence to show these cash withdrawals (CB 403). He gave this cash and an additional $9,000 (a total of $59,000) to El Zohbi who then gave that money to Wehbe. Wehbe then gave the money to Boga or Boga’s wife.
[415]
Wehbe’s evidence is that the first delivery occurred in December 2019, when Sakr instructed Wehbe that El Zohbi would deliver cash to him that was to then be delivered to Boga. Either on the same day or the day after, Wehbe picked up the cash from the front of El Zohbi’s house and then drove to Boga’s burger shop and handed him the money. Wehbe could recall this delivery since it was around the time of his son’s first birthday on 22 December 2019.
[416]
Both Webhe and El Zohbi gave evidence that they never counted the money but guessed that it totalled between $20,000 and $40,000 or $100,000 and $150,000, based on the size and volume of the cash bundle.
[417]
Boga claimed that Sakr did not pay him any cash in December, and he did not receive $59,000 in cash from Wehbe.
[418]
Sakr’s evidence is that he borrowed $43,000 from his wife’s friend, Emna and asked either El Zohbi or Webhe or both to take a photo of the money since it was borrowed from Emna.
[419]
Webhe’s evidence is that on 21 July 2021, El Zohbi gave him $43,000 in cash and instructed him to take a picture of the money as Sakr borrowed this money from another person. Wehbe could not remember who that person was. On the same day, he delivered the money to Boga on the corner of Broughton Street and Gipps Street, Concord. Wehbe produced text messages between himself and Boga on 25 January 2021, showing that Boga provided this address to him. However, the text messages did not show the amount of cash paid on that day (CB 527).
[420]
Wehbe did not take a picture of the cash. Instead, he provided a picture with a notation of Boga’s name in Arabic and the number 43,000 and some other numbers for his taxi business. During cross-examination, Wehbe admitted that he did not count the money. He only had a look at the money (T180 [34]- [39]):
[421]
Boga’s evidence is that on 21 July 2021, Wehbe rang him to inform him that he had $20,000 from Sakr for repayment of a loan. Boga met with Wehbe on the corner of Gipps Street and Broughton Street, Concord at Elizabeth Park where he received the money.

Resolution

[422]
As the cash was not counted, I prefer Boga’s evidence that he only received cash from Wehbe on six occasions above, totalling $130,000.

The result

[423]
The advances made by Boga to Sakr in relation to the loan agreement are in the sum of $2,010,000.
[424]
The repayments made by Sakr to Boga in relation to the loan agreement are in the sum of $1,843,000.
[425]
The balance owing to Boga by Sakr is in the sum of $167,000 plus interest.
[426]
The first defendant owes the plaintiff the sum of $2,010,000. As the second defendant is the guarantor of the loan on behalf of the first defendant, the second defendant is jointly and several liable to repay the loan. The defendants have paid he plaintiff in the sum of $1,843,000. The defendants still owe the plaintiff in the sum of $167,000 plus interest.
[427]
The plaintiff and defendants are to provide a schedule of the interest calculations. If they cannot agree on the rate or the interest calculations, they are to prepare separate schedules with explanations within 14 days.

Costs

[428]
Costs are discretionary. Normally costs follow the event. The defendants are to pay the plaintiff’s costs.

Proposed orders

[429]
The orders I propose are as follows:
1. (1)
  The defendants are to pay the plaintiff in the sum of $167,000.
2. (2)
  Interest is payable to the plaintiff by the defendants and is to be calculated by the parties.
3. (3)
  The defendants are to pay the plaintiff’s costs.