Diransson Pty Ltd v Hassan El Dirani

Three separate proceedings were commenced in 2018 all seeking that a Mr Hassan El Dirani, specifically perform certain contracts relating to alleged promises to transfer land and businesses. Given the commonality in the Defendant and the alleged similarity of factual circumstances, I made orders on 29 September 2018 that the three matters be heard together.

The evidence was heard over 8 days from 11 March to 20 March 2019. Final oral submissions were then heard on 4 and 5 April 2019.

Given commonality of surnames as well as the multiple proceedings, the parties and witnesses in this case are generally referred to by their first names. The proceedings are generally dealt with in chronological order.

The Defendant common to all these proceedings is Hassan El Dirani (the ‘First Defendant’) and his wife Youmna El Dirani (the ‘Second Defendant’) who together are the directors of Fenikia (the ‘Third Defendant’) (together the ‘Defendants’). Hassan has been buying, selling and managing grocery businesses for some years now.

In the first matter, (2018/259014) Mohammed Dirani (the ‘First Plaintiff’) and Yousef Dirani (the ‘Second Plaintiff’) (together the ‘Peak Hill Plaintiffs’) sues the Defendants. The matter concerns a grocery business in Peak Hill. Mohammed is Yousef’s father and together they operated Hassan’s grocery store in Peak Hill from August 2009 to December 2012. Yousef is generally referred to as Joe. The Peak Hill Plaintiffs primarily seek a declaration for breach of contract and a sum of $473,200 for amounts paid to the Defendants, as well as damages. They further seek a declaration that the Defendants held on constructive trust for the Plaintiffs their interest in the Peak Hill Land and Peak Hill Business (PH ASOC [1]-[3]). The Plaintiffs make further claims for certain rebates paid to the Defendants as well as relief under Australian Consumer Law (PH ASOC [5]-[6]). In the alternative the Plaintiffs seek equitable damages (PH ASOC [7]) and other consequential relief (PH ASOC [11]).

In the second matter, (2018/103105) Diransson Pty Ltd (the ‘First Plaintiff’) and Imad Al Dirani (the ‘Second Plaintiff’) and Noura Choukhair (the ‘Third Plaintiff’) (together the ‘Hill Top Plaintiffs’) sues the Defendants. The matter concerns a grocery business in Hill Top. Imad and Noura are husband and wife and together are the directors of Diransson. Imad and Noura have operated Hassan’s grocery store in Hill Top since August 2011 and continue to do so. The Hill Top Plaintiffs are primarily seeking that the Defendants specifically perform the agreement to sell to the Plaintiffs the land and business related to the Hill Top Store. They further seek a declaration that the Defendants hold on constructive trust for the Plaintiffs their interest in the Peak Hill Land and Peak Hill Business (HT FASOC [1]-[5]). The Plaintiffs make further claims for certain overpayments made to the Defendants, and for the rebates paid to the Defendants, as well as relief under Australian Consumer Law (HT FASOC [4A],[6]-[13]). In the alternative, the Hill Top Plaintiffs seek a declaration that the parties hold on constructive trust for each other the other’s interest in the Hill Top Land and Hill Top Business as tenants in common, and further consequential relief (HT FASOC [5]). The Defendants filed a cross-claim against the Hill Top Plaintiffs seeking damages and restitution of $192,069 for stolen stock, as well as possession of the Hill Top Land (HT ASOCC [1]-[5]).

In the third matter, Ibrahim El Dirani (the ‘Oaks Plaintiff’) sues the Defendants. The matter concerns a grocery business in the Oaks. Ibrahim is Imad’s brother. Ibrahim has been operating Hassan’s grocery store in the Oaks since May 2015 and continues to do so. The Oaks Plaintiff is primarily seeking that the Defendants specifically perform the agreement to sell to the Plaintiff the business related to the Oaks Store including the lease for the Oaks Land and a declaration that the Defendants hold on constructive trust for the Plaintiff their interest in the Oaks Land and Oaks Business (O FASOC [1]-[5]). The Plaintiff makes further claims for certain rebates paid to the Defendants as well as relief under Australian Consumer Law (O FASOC [4A], [6A]-[11]). In the alternative, the Oaks Plaintiff seeks a declaration that the parties hold on constructive trust for each other the other’s interest in the Oaks Land and Oaks Business as tenants in common, as well as further consequential relief (O FASOC [5]). The Defendants filed a cross-claim against the Oaks Plaintiff seeking damages and restitution of $237,574.28 for stolen stock, as well as possession of the Oaks Land (O ASOCC [1]-[5]).

All of the parties sought to, at one point or another, draw conclusions about probability or improbability of certain arrangements by reference to Hassan’s Business Model.

Briefly, Hassan bought a grocery store business in Lawson in 2000 and then the land upon which it operated in 2010 (generally referred to as the Lawson Store). Paul Kabashi operated the Lawson store in about 2000 and states that he paid Hassan a weekly amount and kept the profits (Kabashi [4]-[5]).Hassan himself then operated the store until 2010 when his nephew Marwan took over. Marwan operated the store for six years and stated that he paid Hassan a weekly amount and kept the profits (Marwan 1 [6]-[7]). Hassan sold the business a year later but still owns the land.

In 2005, Hassan bought a grocery store in Blackheath and bought the land in 2017. From 2005 to 2010, Hassan’s niece and brother in law (Carolyn and Abdou) ran the store. Hassan states that they paid him a weekly amount and kept the profits (Hassan 1 [24]). Since 2010, Hassan’s brother in law Mouhamed Haidar has operated the store, he states that he pays Hassan a weekly fee and keeps the profits (Haidar [7]-[9]).

Hassan and Youmna used to own a grocery store in Peak Hil (Peak Hill Business) and the land on which it operated (Peak Hill Land). Together, referred to as the Peak Hill Store.

The Peak Hill Plaintiffs previously operated the Peak Hill Business.

Mohammed and Hassan met during childhood in Lebanon (Mohammed 2 [11]).

Mohammed owned and operated a grocery store in Werrington in around 2008. The business struggled post GFC and he was forced to sell in January 2009 (Mohammed 2 [10]). Mohammed then began working for Hassan at Hassan’s Lawson store (Mohammed 2 [15]).

In around 2008 Joe was studying at TAFE and working to help support his family (Joe 1 [13]).

Mohammed states that in early 2009, Hassan told him he wanted to help him get back on his feet and that he would buy Mohammed a grocery business (Mohammed 2 [13]). He alleges that together he and Hassan discovered that a business in Peak Hill was for sale. Mohammed recalls visiting the store with his family and speaking with the owners (Mohammed 2 [16]-[22]).

Mohammed states that in about April 2009, he had a conversation with Hassan, that Hassan would purchase the Peak Hill Store for Mohammed and his family, and that Mohammed and his family would operate the shop and pay Hassan back for the business and land over time (Mohammed 2 [23]-[24]).

Hassan states that there was an initial conversation with Mohammed in around 2008 in the following terms (Hassan1 [31]):

Hassan states that he then became aware of a business and property for sale at Peak Hill. Hassan states that he visited the store without Mohammed to make inquiries (Hassan 1 [32]-[33]).

The Peak Hill Plaintiffs plead that on or about June 2009, Hassan made a business proposal to Mohammed. Hassan would purchase the Peak Hill Land and Peak Hill Business as well as the stock for Mohammed and his family. Upon Mohammed paying back the amounts Hassan had paid for the Peak Hill Land and the Peak Hill Business and the stock, Hassan would transfer the Peak Hill Land and Peak Hill Business to Joe. Mohammed accepted this proposal thus forming an agreement enforceable by law (PH ASOC [21]-[22]).

Mohammed states that in about June 2009, he had the following conversation with Hassan(Mohammed 2 [27]):

Also in June 2009, Mohammed recalls the following conversation with Hassan (Mohammed 2 [29]):

Joe recalls the following conversation with Hassan (Joe 1 [25]):

These proposals form the terms of Mohammed’s alleged contract.

Before purchasing the store, Hassan states he made an offer in the following terms, which Mohammed accepted (Hassan1 [35]):

This offer forms the terms of Hassan’s alleged Peak Hill agreement.

On 14 August 2009, Hassan and Youmna bought the Peak Hill Store for $330,000 plus stock of about $110,000 (Hassan 1 [37]). From about August 2009, Joe and Mohammed ran the store.

Mohammed states that in about September 2009, he and Hassan had a further conversation in the presence of Joe and Hassna (Mohammed’s wife). In that conversation, Hassan advised that Mohammed needed to start paying Hassan back for the Peak Hill Store by way of cash repayments of $13,000 each month (Mohammed 2 [37]; Joe 1 [25]; Hassna 1 [26]).

Mohammed states that he made many improvements to the store although Hassan paid for many of the materials (Mohammed 2 [32]). Hassan said he made a number of improvements to the store during this time which he paid for or undertook himself (Hassan 1 [41]-[42]).

Hassan states that he and Joe signed a lease (Hassan 1 [38]) (Ex P5). Joe denies signing this (Joe 2 [7]).

Hassan applied to Metcash for an account in his name (Hassan 1 [43]). In October 2009, Hassan entered into an agreement with Metcash for the Peak Hill, Lawson and Blackheath stores (Hassan 1 [45]). Hassan states that because he had multiple accounts across different stores he was entitled to rebates (Hassan 1 [43]-[47]). When Mohammed and Joe ordered stock through the Metcash account, rebates were paid to a company called Foursquare Stores (Q’ld) Pty Ltd, and that company in turn remitted rebates to Hassan and Youmna.

Joe and Mohammed say that over the years they paid Hassan $473,200 consisting of $433,500 cash and $39,700 by way of bank transfer (PH subs [15(d)]). They state that from October 2009 until December 2012, they made cash repayments of $433,500, which they recorded in an exercise book (Ex PA) (Joe 30/10/19 [48]; Mohammed 2 [51]). From December 2011 until December 2012, Mohammed also made repayments totalling $39,700 to Hassan by way of bank transfer (Ex MD-1, 24-37).

Hassan says that during the time that Mohammed and Joe managed the Peak Hill Store they paid Hassan an amount equivalent to $500 a week (Hassan 1 [48]). Hassan reported these earnings to his account, who recorded it as ‘lease’ or ‘business’ income in an amount between $23,000 and $26,000 each year: (Hassan 1 [49]). Hassan states Mohammed and Joe never repaid Hassan for the $110,000 in stock (Hassan 1 [51]).

According to Mohammed and Joe trading at the Peak Hill Store was difficult and they struggled to make ends meet (Mohammed 2 [55]; Joe 1 [58]). Joe left in December 2011. In July 2012, he leased another property owned by Hassan in Hazelbrook and ran a café there.

Mohammed and Joe allege that Hassan promised to transfer to them the Peak Hill Store once they had paid Hassan $400,000 for the store and the stock. On Mohammed and Joe’s evidence, by December 2012 they had paid Hassan $473,200 (Mohammed 2 [52]).

Mohammed alleges that Hassan did not transfer the property upon payment of $400,000 and instead instigated the sale of the shop in December 2012 (Mohammed 2 [82]).

Mohammed states that Hassan refused his request to transfer the Peak Hill Store pursuant to Mohammed’s alleged contract. Mohammed states that Hassan said to him, words to the effect (Mohammed 2 [82]):

Hassan sold the shop to a third party sometime in December 2012.

Hassan alleges that by 1 December 2012 Mohammed had told him that he wanted to leave the Peak Hill Store and return to Sydney (Hassan 1 [60]). It is agreed that:

In about July 2012, Hassan says that he told Joe (Hassan 1 [70]):

On 16 December 2012, Hassan sold the Peak Hill Business to his brother in law Abdou (CB6, 534); he sold it at a loss.

After Hassan sold the Peak Hill Business, he states he told Joe (Hassan 1 [72]):

Mohammed went to see a lawyer about his dealings with Hassan in 2013.

In 2017 Joe sent Hassan a text message, thanking Hassan for all that he had taught him.

Fenikia owns a grocery store in Hill Top (Hill Top Business) and the land on which it operates (Hill Top Land). Together these are the Hill Top Store.

The Hill Top Plaintiffs currently run the Hill Top Business.

Hassan and Imad first met sometime in around November 2010 shortly after Imad had arrived in Australia (Hassan 1 [79]).

Imad states that in about June 2011, Hassan first raised a possible business proposal. Imad recalls the following conversation (Imad 1 [12]):

Hassan states that sometime in 2010, he told Imad about his business model stating (Hassan 1 [82]):

Imad states he found a business for sale in Colo Vale and inspected it with Hassan, Hassan ultimately decided that the business was not a good opportunity (Imad 1 [13]-[15]; Hassan 1 [86]). Hassan and Imad then visited the Hill Top Store together, but Hassan was the only one involved in negotiating the purchase of the store. Imad did not ask about the purchase price or about the weekly takings (Hassan 1[88]-[89]).

The Hill Top Plaintiffs plead that in or about early August 2011, Hassan met with Imad and made a business proposal to Imad. Hassan would purchase Hill Top Land and Hill Top Business as well as the stock and Imad would run the business. Imad would pay Hassan $11,000 per month (which would include $2,000 per month rent), all outgoings and expenses including future stock and a one-off payment of $300,000 for the Hill Top Land. Upon making these payments Hassan would then transfer to Imad in July 2015 the Hill Top Land, the Hill Top Business and all remaining stock (HT FASOC [14]). Imad and Noura accepted this proposal thus forming an agreement enforceable by law.

Imad states that in about August 2011, prior to Hassan purchasing the Hill Top Store, Hassan told him (Imad 1 [22]):

This proposal forms the terms of Imad’s alleged contract.

Hassan states that in August 2011, he made the following proposal to Imad (Hassan1 [90]):

This offer forms the terms of Hassan’s alleged Hill Top agreement.

On 11 October, Fenikia bought the Hill Top and Land and Business for $200,000 and $250,000 respectively plus $66,000 in stock (Hassan 1 [97], [99]). Imad had no role in negotiating the agreements (Hassan 1 [97]).

On 25 August 2011, Hassan states he and Imad and Noura signed a Retail Lease for the Hill Top Store (Hassan 1 [96]) (Ex P6). Imad denies signing this lease (Imad 3 [12]), Mr Haidar, the named witness on the lease recalled signing the lease (T878/26).

Hassan states that shortly after Imad told him he didn’t want Noura on the lease so they signed a second lease without her name on it (Hassan 1 [96]) (Ex P7). Imad and Noura as well as the named witness Nader Slaibi deny signing the lease (Imad 3 [12]; Noura 2 [3]; Nader [6]).

Imad has operated the Hill Top Business since about October 2011.

Hassan and Youmna obtained an account for the Hill Top Store with Metcash (Hassan 1 [95]). Imad placed orders on that account between October 2011 and March 2018. Again Hassan states that because it was his account, he was entitled to the rebates (Hassan 1 [123]-[127]).

Hassan has made several improvements to the store since 2011, Imad has not paid for any of these improvements (Hassan 1 [100]; Imad 2 [14]).

Imad states that he has paid Hassan $9,000 per month in instalment payments, and $2,000 per month as rent (Imad 1 [Annexure A]).

On 7 July 2014, Imad and Noura incorporated Diransson. Since around that time, Diransson has owned the registered business name for the Hill Top Store and has paid all of the operating expenses associated with the store, including making payments to Hassan (Imad 1 [47]-[51]).

Hassan states that Imad has paid him for the stock that he bought for him, and has paid amounts equivalent to $500 per week (Hassan 1 [102]-[103]). Hassan reported these earnings to his accountant who recorded them as ‘rent received’ or ‘rent Hill Top’.

According to Imad’s alleged contract, in July 2015, Hassan was to transfer the Hill Top Store to Imad if Imad had paid Hassan $11,000 per month and an additional $300,000 for the Hill Top Land.

Imad states that he had paid all of the monthly instalments and in October 2015 told Hassan that he and Noura were ‘ready to purchase the property for $300,000’. Imad states that Hassan then refused to transfer the store to him and demanded that Imad continue paying Hassan $11,000 per month (Imad 1 [69]).

Hassan denies having any conversation of this kind with Imad (Hassan 1 [119]).

Imad decided to continue operating the business and keep paying $11,000 per month to Hassan (Imad 1 [70]). He states he continued making those payments until January 2018 (Imad 1 [76]). He then did not make any payments to Hassan from January 2018 to May 2018 (Hassan 1 [134]; Imad 1 [76]).

Just before commencing the Hill Top Proceedings, Imad ordered about $200,000 of stock on the Hill Top Account (Imad 3 [29]-[30]); Hassan 1 [129]-[130]). Imad did not pay for this stock, forcing Hassan to do so (Hassan 1 [130]-[131]).

In these circumstances, Hassan stated he terminated the Hill Top Agreement (Hassan 1 [135]-[137]).

Fenikia owns a grocery store in the Oaks (Oaks business) and leases the land on which it operates (Oaks Land) (Hassan 1 [17]). Fenikia’s lease for the Oaks Land expired on 20 May 2018 (Hassan 1 [18(b)]). Together the Oaks Business and Oaks Land are the Oaks Store.

Ibrahim has run the Oaks Store since May 2015 and continues to do so. Ibrahim is Imad’s brother.

Hassan first met Ibrahim in about 2013 (Hassan 1 [139]).

Ibrahim states that Hassan told him in Lebanon in 2013 (Ibrahim 1 [11]):

Ibrahim moved to Australia in late 2014, and worked in the Hill Top Store for Imad. Here he spoke to Imad about his arrangement with Hassan (Ibrahim 1 [15]-[16]).

Ibrahim states that in March 2015, Hassan said the following to him (Ibrahim 1 [18]):

Hassan states that Ibrahim’s father asked Hassan to help Ibrahim out when Ibrahim moved to Australia from Lebanon in late 2014 (Hassan 1 [140]). Hassan states that in early 2015 he said to Ibrahim a few times, words to the effect of “I will let you know if I purchase a new business; I could allow you to work there” (Hassan 1 [141]). In early 2015, Hassan discovered that the Oaks Business was for sale. Hassan inspected the business and negotiated to purchase the business (Hassan 1 [143]).

The Oaks Plaintiff pleads that in or about late March or early April 2015, Hassan met with Ibrahim and made a business proposal to him. It was proposed that Hassan would acquire the Oaks Business and that Ibrahim would work in the store and pay rent to the landlord, owner of the Oaks Land. When Hassan returned from Lebanon, they would discuss how much Ibrahim would need to pay Hassan and on what terms in order for Ibrahim to eventually take over and own the Oaks Business. Ibrahim accepted this proposal and began operating the store and paying rent to the landlord (O FASOC [14]-[15]). In or about late September 2015, when Hassan returned to Australia, Hassan proposed that Ibrahim would continue to run the Oaks Business and pay all rent owing to the landlord on the lease (at that time $3410 a month). Ibrahim would also pay to Hassan, $2,200 for the first nine days of operation of the Oaks Business and thereafter $10,000 per month from June 2015 onwards until the total amount of $290,000 had been paid. Thereafter, Ibrahim would pay $1,000 per week until he could make a one-off payment of $150,000 for the stock. Upon Ibrahim having paid all the amounts, Hassan would transfer to Ibrahim the Oaks Business and the lease (O FASOC [21]). Ibrahim accepted this proposal thus forming an agreement enforceable by law.

Ibrahim states that in March 2016 he had the following conversation with Hassan (Ibrahim 1 [19]):

Ibrahim states that he started operating the Oaks Business and paying $3,410 monthly in rent to the landlord (who was not Hassan) in May 2015 before he had a final deal with Hassan (Ibrahim 1 [19], [31]). Ibrahim states that the terms of the agreement were finalised in late September 2015 when Hassan said to Ibrahim (Ibrahim 1 [34]):

Together these conversations form the terms of Ibrahim’s alleged contract.

In about late March 2015, Hassan states that he made an offer to Ibrahim (Hassan 1 [144]-[145]):

This offer forms the terms of Hassan’s alleged Oaks agreement.

This alleged agreement was entered into only a week or so before Hassan apparently repudiated Imad’s alleged contract.

On about 21 May 2015, Fenikia bought the Oaks Business for $230,000 plus stock of about $154,000 (Hassan 1 [151]).

Hassan and Youmna obtained an account for the Oaks Store with Metcash (Hassan 1 [164]). Ibrahim placed orders on that account between about May 2015 and March 2018 (Hassan 1 [165]). Again, Hassan receives the rebates for these orders.

Ibrahim states that from May 2015, he paid $10,000 per month to Hassan (Ibrahim 1 [41]). By January 2018, Ibrahim states he had paid $312,200 in cash to Hassan (Ibrahim 1 [49]). Hassan denies he received this amount of money (Hassan 1 [160]).

Hassan states that Ibrahim paid Hassan (the equivalent to) a weekly fee of $500 in cash through Imad (Hassan 1 [156]-[157]). Hassan reported these earnings to his accountant as ‘income’ because Fenikia did not own the Oaks land.

According to Ibrahim, Hassan was to transfer the business to him once he had paid $2,200 for the first 9 days, monthly payments of $10,000 totalling $290,000 and thereafter $1,000 a week until making a one off payment of $150,000 for the stock.

Ibrahim states that he had paid the $290,000 by October 2017, but accepts that he has never paid the $150,000 for the stock nor did he make the continuing payment of $1,000 a week (Ibrahim 1 [56]).

Ibrahim states that after he had paid the $292,200, Hassan demanded that Ibrahim continue paying him the $10,000 monthly payment in breach of Ibrahim’s alleged agreement.

Ibrahim did not pay anything to Hassan between January and May 2018 and only paid $2,000 per month since May 2018 because the Court ordered him to do so (Hassan 1 [158]).

Just before commencing the Oaks Proceedings, Ibrahim ordered about $200,000 of stock on the Oaks Account (Ibrahim 2 [28]-[29]); Hassan 1 [169]-[170]). Ibrahim did not pay for this stock, forcing Hassan to do so (Hassan 1 [170]-[171]).

In these circumstances, Hassan terminated the Oaks agreement (Hassan 1 [174]-[175]).

In cases such as these where there is a sea of oral representations said to amount to a legally enforceable agreement, the absence of, on one view, adequate contemporaneous documents, raises significant questions of the credibility of the witnesses. In this case, I am not satisfied of the veracity of many of the witnesses.

Furthermore, there is a serious issue here whether many of the alleged ‘contemporaneous’ documents are or should be regarded as such, as will become clear from the consideration. I am satisfied there was a good deal of creativity and contrivance when it came to producing documents relied upon in this litigation.

Although a great many witnesses purported to give evidence about relevant events, by reason of a lapse in time and absence of objective contemporaneous material, I found it difficult to accept, wholly at least, the evidence of many witnesses. Indeed, the witnesses of both sides gave evidence that was, in many cases, diametrically opposed and included, at times, substantial inconsistencies within a witness’s own account.

Mohammed swore three affidavits for the proceedings on 17 August 2018, 26 October 2018 and 31 January 2019.

Mohamed migrated to Australia in 1987 (Mohammed 2 [9]). Mohammed previously owned a business, which was a fruit shop, he was forced to close this business in January 2009 and lost a lot of money (Mohammed 2 [10]).

Mohammed met Hassan about 30 years ago in the village in Lebanon (Mohammed 2 [11]). After Mohammed closed his business he had discussions with Hassan about whether there was any work available for him. He states that in February 2009, Hassan indicated that he would buy a business for Mohammed who could then slowly pay Hassan back (Mohammed 2 [12]-[13]).

Mohammed worked in Hassan’s Lawson store for a few months in 2009 (Mohammed 2 [15]). He states that during this time he discovered the Peak Hill Business for sale (Mohammed 2 [16]). Mohammed inspected the business and the land with his family; he stated he believed it was a new opportunity for him (Mohammed 2 [22]). He told Hassan that he and his family would be happy to move to Peak Hill. Mohammed states Hassan made an offer in accordance with Mohammed’s alleged agreement at [20]-[24] above (Mohammed 2 [23]-[24]).

Mohammed states that he was aware from the internet advertisement that the Peak Hill Land was for sale for $230,000 and the Peak Hill Business was available for $100,000 plus about $50,000 of stock (Mohammed 2 [26]). Mohammed later stated that Hassan purchased the land and the business for $300,000 plus additional stock of $110,000 (Mohammed 2 [27]). Mohammed stated that he visited the Peak Hill Store with Hassan many times while finalising the purchase (Mohammed 2 [29]).

Mohamed states that he never signed a lease in relation to the Peak Hill Store (Mohammed 3 [7]).

Mohammed states that from August 2009, himself and Joe carried out significant work to the Peak Hill Store, including painting and replacing the flooring, as well as purchasing a chicken rotisserie (Mohammed 2 [32], [34]). He notes that Hassan bought most of the materials needed for the improvements (Mohammed 2 [33]).

Mohammed recalls that Hassan visited Peak Hill Store in September 2009 and asked that Mohammed start paying him the $13,000 monthly (Mohammed 2 [37]).

Mohammed states that he and Joe made the following payments for the Peak Hill expenses (Mohammed 2 [46]);

Mohammed states the following about his payments to Hassan:

Mohammed recalls that trading was very difficult (Mohammed 2 [57]-[58]). Joe had to borrow money from the bank (Mohammed 1 [33]) and later Mohammed took a loan from Mary Wright (Mohammed 1 [41]). Joe left Peak Hill in November 2011 (Mohammed 2 [60]). Shortly after this, in December, Mohammed states Hassan agreed to monthly payments of $9,000 a month (Mohammed 2 [62]). Mohammed states that the business encountered further difficulties in February 2012 when road works started outside the Peak Hill Store, he struggled to make the repayments and became depressed (Mohammed 2 [63]-[64]).

Mohammed states that in July 2012, Hassan returned from Lebanon and visited the Peak Hill Store. He requested that Hassan transfer the business but Hassan refused and demanded continuing payments of $6,000 per month (Mohammed 2 [67]-[69]).

Mohammed states that from 14 October 2009 to December 2012 he paid Hassan $433,500 in cash and $44,700 in bank transfers, totalling $478,200 (Mohammed 2 [53]). He states that this included an overpayment of $78,200 (Mohamed 2 [75]).

Mohammed states that in December 2012, he became aware that Hassan intended to sell the Peak Hill Store. He states that Hassan told him that they would go halves in any profit from the sale (Mohammed 2 [81]-[82]). Mohammed stated that the shop should now be his, but Hassan denied this was the case (Mohammed 2 [83]).

Mohammed left the shop in December 2012, he states that he left behind $56,700 worth of stock that he had paid for (Mohammed 2 [87]).

Mohammed recalls a conversation with Hassan where he asked for his money back, Hassan refused stating that Mohammed still owed him money. Mohammed states that in early 2013 he went to see a lawyer and drew up a witness statement (Mohammed 2 [91]).

Mohammed states that in early 2018, Joe told him that Imad and Ibrahim were taking Hassan to court. He states that he got their phone numbers from a family friend who was Imad and Ibrahim’s aunt (Mohammed 3 [34]).

Mohammed stated that he would never have moved to Peak Hill to run the business unless he considered that the store would be transferred to him or Joe (Mohammed 2 [47]).

During the hearing, Mohammed was questioned extensively about the terms of his alleged contract. He maintained that he was to pay Hassan back the purchase price in instalments and confirmed that no rent was payable to Hassan (T437/8-17). Mohammed insisted that they paid Hassan every month (T458/49-459/10). Although he maintained that he and Hassan had this particular agreement in place, he made several concessions:

Joe swore two affidavits for the proceedings on 30 October 2018 and 31 January 2019.

Joe states that he was born in Sydney, and married Nouha Dirani in February 2012 (Joe 1 [1]-[2]). Joe recalls that his family experienced financial hardship in 2008 and lost of a lot of money (Joe 1 [11]-[12]).

Joe recalls that his father told him Hassan, an old friend, would help them buy a business. He recalls that Mohammed found a business in Peak Hill and that Hassan would buy it for them (Joe 1 [14]-[16]). He recalls that he visited Peak Hill Store with Mohammed (Joe 1 [20]).

Joe denies signing any lease with Hassan. He states he has never met Ajaj Slaibi, the witness on the alleged lease. Joe further notes that the address on the lease was not his address at the time that the lease was allegedly signed (Joe 2 [7]) (Ex P5).

Joe recalls that Mohammed told him about Mohammed’s alleged contract and how much Hassan purchased the Peak Hill Store for (Joe 1 [21]-[22]). Joe recalls attending a meeting with Hassan and Mohammed were Hassan told them to pay him monthly repayments of $13,000 until they had repaid him for the business and the property (Joe 1 [25]).

Joe states that the Peak Hill Business name was registered and put into his name for taxation purposes (Joe 1 [27]).

Joe recalls that he and Mohammed made renovations to the store, including fixing the floors, shelving and painting (Joe 1 [30]). Joe recalls that Hassan asked to be paid in cash (Joe 1 [30]).

Joe recalls the following about the payments made to Hassan:

Joe recalls that the Peak Hill Store struggled financially (Joe 1 [58]). He left the store in December 2011 (Joe 1 [66]). He was told later by Mohammed that the monthly instalments had decreased to $9,000 (Joe 1 [68]). Joe recalls that in July 2012, Mohammed told him that Hassan had refused to transfer the Peak Hill Store and demanded $6,000 monthly instalments (Joe 1 [73]). Joe states that he occasionally inquired about receiving receipts or invoices but that Hassan deemed this unnecessary (Joe 1 [46]).

Joe bought a café in Hazelbrook in July 2012. Hassan and Michael Saba owned the shops in which the café was situated and Joe signed a lease with them for a particular shop. Joe states that he felt more comfortable dealing with Hassan in circumstances where there was an agent involved (Joe 2 [22]).

Joe states that in October 2012, Mohammed told him that Hassan had informed him he wished to sell the shop (Joe 1 [89]). Joe said that he and Mohammed asked for the money back which they had paid, Hassan refused stating that Mohammed and Joe still owed him money (Joe 1 [95]). He states that they explored legal options however did not pursue these (Joe 1 [96]).

In May 2017, Joe sent Hassan a text message in which among other things, he forgives Hassan for the trouble he caused his family (the text message is discussed below). Joe states he sent this message after attending a Tony Robbins ‘Date with Destiny’ event and was encouraged to forgive and let go of the past (Joe 2 [25]).

Joe was cross-examined extensively about Mohammed’s alleged contract with Hassan. Although he maintained that Hassan had told him that the Peak Hill Property would be his, there were several concessions that were made throughout the course of the trial:

Further there were several inconsistencies and uncertainties evident in Joe’s testimony:

Hassna, Mohammed’s wife, swore two affidavits for the proceedings on 26 October 2018 and 1 February 2019.

Hassna states that she emigrated to Australia when she was a young child and married Mohammed in 1988 (Hassna 1 [2]-[4]).

She recalls that her family suffered significant financial hardship in 2008 and 2009 (Hassna 1 [6]-[7]).

Hassna recalls Mohammed telling her about a business in Peak Hill and that Hassan would buy it for them. She recalls visiting the shop and inspecting the property in April 2009 (Hassna [12]-[15]). She states that later Mohammed told her that Hassan had bought the shop for them, and that it would be transferred to Joe after they had paid him back (Hassna 1 [16]-[23]).

She states that on a few occasions she went with Mohammed to make the cash payments to Hassan (Hassna 1 [28]). Hassna recalls that business was tough (Hassna [29]).She recalls that Hassan visited the shop in July 2012,she states Mohammed asked whether they now owned the shop, Hassan said no and demanded further payments of $6,000 a month (Hassna [44]).

Hassna recalls that in December 2012, Hassan visited and stated he wished to sell the shop and informed Hassna and Mohammed that they could go halves on the profit (Hassna [51]). She moved back to Sydney in December 2012.

She recalls that Mohammed told her in January 2013 that Hassan stated that they still owed him money (Hassna [55]).

Hassna was cross-examined about her recollection of Mohammed’s alleged contract. She confirmed that she knew how much money was being paid to Hassan because she used to count it (T556/47-49) She maintained that she recalled particular conversations where Hassan promised to transfer the property, but admitted that she had not taken any notes of the conversation at the time (T553/07-23;T55/15-28).

She made several concessions throughout her testimony:

Peter John Adams swore one affidavit for the proceedings on 31 January 2019.

Mr Adams was the lawyer Mohammed saw in 2013 in relation to the arrangement with Hassan (Mr Adams [1]).

Zeinab Dirani, the daughter of Mohammed and sister of Joe, swore one affidavit for the proceedings on 4 February 2019.

Zeinab states that it was her understanding that Hassan had bought the Peak Hill Store for Mohammed and Joe, and that upon paying back the full purchase price Hassan would transfer the property to them (Zeinab [4]).

Sahar Dirani, the daughter of Mohammed and the sister of Joe, swore one affidavit for the proceedings on 4 February 2019.

Sahar states that Mohammed told her that Hassan had bought the Peak Hill Store for him and that he had to pay him back in instalments and then the property would be transferred to Joe (Sahar [3]). Sahar recalls one occasion when she and Mohammed delivered the monthly payment to Hassan (Sahar [4]).

Sahar stated that in about mid 2011 she got a $30,000 personal loan from the Commonwealth Bank to help her family make the repayments (Sahar [7]).

Sahar recalls that in late 2012, Mohammed told her that Hassan was kicking him out of the shop. She then got a $50,000 personal loan from NAB to help Mohammed set up a new shop in Oakdale (Sahar [12]-[13]).

Sahar admitted under cross-examination that she had had no direct conversation with Hassan about the alleged agreement (T562/47-48). She admitted her recollections were based on what her father had told her in 2009, but she had made no notes of the conversations at that time (T563/28-48; T564/24-565/23). She was not cross-examined on the reason for her obtaining a personal loan in 2011.

Ahmad El Dirani, husband of Zeinab, swore one affidavit for the proceedings on 5 February 2019.

He recalls visiting the Peak Hill Store in 2011, and Joe telling him that he was feeling overwhelmed and stressed about paying Hassan $13,000 a week (Ahmad [5]).

Ahmad admitted in cross-examination that these conversations had likely occurred in 2014 or 2015 (T362/1-363/11), that is, after Joe and Mohammed had left Peak Hill.

The Peak Hill Plaintiffs relied upon several documents in the proceedings, of particular note were the following:

Mohammed and Joe state that they recorded the payments made to Hassan in an exercise book (Ex PA; CB5/156).

The Peak Hill Plaintiffs state that this is a contemporaneous record of the cash payments made to Hassan between October 2009 and December 2012. Joe also used the other side of the notebook to record various debts and plan his wedding which took place in February 2012 (T410/2-27).

There have been pages torn out and cut from the notebook. Under cross-examination Joe and Mohammed could not explain this (T394/26-395/05; T526/24-26).

The entries from November 2009 until 30 December 2011 record payments of exactly $13,000 per month. However Joe stated that they did not pay Hassan every month, nor did they pay exactly $13,000 each month (T404/45-405/30).

It appears that the entire list from 14 October 2009 to 30 December 2011 was written on one occasion, and that the word ‘paid’ was also written at the same time for each entry (T405/32-41).

The notebook did not record payments that Mohammed made by way of bank transfer (T550/33-47).

The notebook was not exhibited to Mohammed’s 2013 statement (T515/33-50; T525/11-47). The 2013 statement records that Mohammed had paid Hassan $410,500 whereas the notebook records payments of $433,500.

There is no entry in the notebook that refers to an agreement to sell the Peak Hill Store. The inside cover of the exercise book contains the terms “Rent $2,166”. Joe recognised the writing as that of his father (T406/48-407/02), Mohammed denied this (T529/22-40).

In July 2013, Mohammed saw a lawyer about his dealings with Hassan and made a statement about the alleged Peak Hill agreement (CB6/697; PB).

The Defendants noted several errors within the statement, including mistaking the seller’s agent, the vendors, the purchase price, and the amount of money Joe took out a loan for.

The Defendant noted that there were several differences between the 2013 statement and the 2018 affidavits.

The Peak Hill Plaintiffs produced numerous tax returns for the proceedings.

Joe was responsible for the finances of the Peak Hill Business and his personal tax returns include the business details (T346/29-35). Joe gave Z reports and invoices to an accountant to prepare the tax returns (T346/39-347/15). Joe’s FY2010 tax return discloses an income of $36,197 plus the payment of $37,850 in salaries to the family (EX PC, tab 1). Joe’s FY2011 tax return discloses an income of $38,810 plus the payment of $37,848 in salaries to the family (EX PC, tab 2). This is insufficient to pay the alleged $321,000 of 24 months to Hassan. Joe explained these discrepancies by stating that he had falsely recorded about $150,000 of income as expenses (T353/47-49; T355/06-46; T356/6-8).

The tax returns reflect payment of ‘rent’ to Hassan (EX PC, tab 1, tab 2), of roughly equivalent to $500 a week. Joe stated that this rent figure should actually read zero (T315/43-317/01; T318/32-37) but could offer no explanation about where the entries came from (T350/12-36).

The Peak Hill Plaintiffs produced a fact sheet from the ‘Date with Destiny’ Tony Robins event that Joe attended before he sent the 2017 text message to Hassan (PD).

The Peak Hill Plaintiffs rely on the diary note (PE) and the solicitors letter (PF) as evidence of when later sales of the Peak Hill Business and Peak Hill Land took place.

The Peak Hill Plaintiffs (as well as the Hill Top and Oaks Plaintiffs) rely on this letter (P13, 75A) as evidence of the likely turnover for the Peak Hill shop. The letter is evidence of Hassan informing his solicitor of the expected $25,000 a week turnover.

The Peak Hill Plaintiffs (as well as the Hill Top and Oaks Plaintiffs) rely on this development plan (CB5/64-72) as evidence of the likely turnover for the Peak Hill shop. This plan was annexed to Hassan’s affidavit and stated that the assumed turnover for the Peak Hill Business was $25,000 per week.

Hassan states that at about the time he bought the Peak Hill Store, he entered into a Retail Lease (Ex P5) for the business with Joe which prescribes a weekly rent of $500.

Ajaj Slaibi was a named witness on the lease. Joe initially denied having met Ajaj, but changed his mind in cross examination (T344/5-345-20). As noted above, Joe denies signing this lease. Ajaj Slaibi was the witness on the lease but wasn’t in Australia at the time it was allegedly signed (P13, 94). Joe’s address on the lease was not his address at the time it was allegedly signed (Joe 2 [7]).

The Peak Hill Plaintiffs rely on a number of bank records that they say are contemporaneous records of the repayments to Hassan.

A number of these bank statements record transfers from Mohammed to Hassan which describe the payments as “Hassan’s rent” (CB 10/120, 138, 142; Ex MD-1, 24-37).

A number of other bank statements record transfers as “Hassan goods” (CB10/82) or “Hassan’s bill” (CB10/116). Hassan states that these payments are Mohammed repaying him for the $61,000 worth of stock he bought them (Hassan 1 [51]). Mohammed states that Hassan told him what to put the description as but accepts that at the time of these repayments he did in fact owe Hassan tens of thousands of dollars for the stock (T468/24-469/08; T471/06-20).

None of Mohammed’s personal or business bank accounts record withdrawals of $13,000 to pay Hassan (EX D4; T458/17-23).

Mohammed stated that from January to June 2012 he had paid Hassan $9,000 a month, sometimes in cash, sometimes by bank transfer (Mohammed 1 [62]). There is no record of any transfer to Hassan of $9,000 (CB10/33-37, 47-54, 69-83, 107). Mohammed then stated that Hassan did not want to give him bank details (T462/46-463/23), however he had already transferred money to Hassan in December 2011 (CB10/29).

Imad swore three substantive affidavits for the proceedings, on 2 April 2018, 19 August 2018 and 31 January 2019.

Imad states that he first came to Australia in October 2010 (Imad 1 [7]). He was employed at a variety of businesses including at an aluminium factory, a clothing store, a taxi company and at a service station (Imad 1 [8]). He married Noura Choukair in October 2011 and they now have three children (Imad 1 [7]).

Imad first met Hassan in late 2010, Hassan is Imad’s father’s cousin (Imad 1 [9]). Imad states that approximately the third time he met Hassan in June 2011, Hassan raised with him a possible business venture in the future (Imad 1 [12]). Imad recalls becoming aware of a service station for sale in Colo Vale, he and Hassan then travelled to look at the business, Hassan decided that the service station was not a good investment (Imad 1 [13]-[14]). Imad recalls that he visited the Hill Top Store with Hassan but wasn’t involved in discussions with the owner (Imad 1 [15]-[17]).

Imad recalls that in August 2011 he had a discussion with Hassan in which Hassan made an offer in the terms of Imad’s alleged contract (as at [51]-[53] above). Imad also recalls at this time that Hassan requested that he be paid in cash and that Imad not talk to Marwan or Mouhamed Haidar about the deal because Hassan was offering Imad a better arrangement than them (Imad 1 [22]).

Imad states that after talking to Noura and his parents he decided to accept Hassan’s offer (Imad 1 [25]). Imad states that Hassan told him they didn’t need any written agreement because they trusted each other (Imad 1 [26]). Imad states that shortly after accepting the offer he met with Hassan who gave him some documents to sign. Imad states he did not read these nor did he get a copy (Imad 1 [28]). He states that Hassan told him the documents were for ‘tax purposes’ (Imad 3 [11]).

With regards to the leases, Imad states that to his knowledge, him and Noura never signed the leases. Nor did he recall Mr Nader Slaibi or Mouhamed Haidar ever witnessing their signatures (Imad 3 [12]).

Imad states that he went into possession of the Hill Top Store in October 2011 (Imad 1 [36]).

Imad states that he spoke to the previous owner of the Hill Top Business, who had told him that the price of the business was $280,000 plus $66,200 for the stock (Imad 1 [39]). Imad states, by reference to a title search, he believes Hassan purchased the Hill Top Land for $220,000 (Imad 1 [40]).

Imad states that he has paid the following expenses for the Hill Top Store, both as a partnership with his wife and later through his company Diransson (Imad 1 [43]-[50]);

Imad recalls the following about the payments to Hassan:

According to Imad the payments to Hassan can be summarised as follows:

Imad states that in about April 2015 he spoke to Ibrahim about Ibrahim going into business with Hassan. Imad stated that he encouraged Ibrahim and that he trusted Hassan (Imad 1 [62]-[63]).

Imad stated that by June 2015 he had paid Hassan all of the $11,000 monthly instalment amounts totalling $489,500 plus $66,200 for the stock (Imad 1 [66]).

Imad states that in late September 2015, he spoke to Ibrahim. Ibrahim told him he could not afford to pay the $10,000 per month to Hassan and Imad offered to help him make the payments (Imad 1 [68]). Imad states that in October 2015, he met with Hassan and requested that Hassan transfer the business. Hassan refused to transfer and stated that Imad was to keep paying the $11,000 a month until he wanted to leave the business (Imad 1 [69]).

Imad states that he decided to keep paying the $11,000 a month so that Hassan would not kick him out of the business (Imad 1 [70]).

Imad recalls that in 2017 he received a phone call from Hassan who complained about Ibrahim’s laziness in running the Oaks Store (Imad 1 [75]). Imad states that Hassan said he would ‘fuck him [Ibrahim] up’ if he was ever rude to Hassan again (Imad 1 [75]). Imad could not recall when in 2017 the conversation happened (Imad 3 [19]). He states that following this incident, he and Ibrahim went to extra effort to keep Hassan on side (Imad 3 [21]).

In March 2018, Imad sent a text message to Hassan stating that he needed more time to gather the money for the monthly instalment.

Since proceedings have commenced, Imad has opened his own account with Metcash (Imad 3 [32]), however he can no longer order stock on credit and must pay on delivery of the stock (Imad 3 [33]).

Imad states that in about mid 2018 he discovered his insurance premiums had increased (Imad 3 [36]). Imad believes Hassan increased these premiums (Imad 3 [37]).

Imad was questioned extensively about his agreement with Hassan.

He did make several concessions:

There were further several inconsistencies in Imad’s evidence:

Ibrahim swore three affidavits for the proceedings, on 2 April 2018, 19 August 2018 and 31 January 2019.

Ibrahim states he arrived in Australia in December 2014. He was initially employed by Imad on a casual basis to work in the Hill Top Store. In May 2015 he married his wife Sassee (Ibrahim 1 [13]-[17])

Ibrahim states that he first met Hassan in 2013 at a wedding in Lebanon. He states that at this time, Hassan offered to help him out when he moved to Australia (Ibrahim 1 [8]-[13]). In March 2015, Ibrahim states he met with Hassan who stated he was considering buying a business in the Oaks for Ibrahim to run (Ibrahim 1 [18]). A few days later Ibrahim said Hassan made an initial offer to him to run the store and pay the landlord rent on business expenses, Ibrahim states that Hassan told him the agreement would be finalised upon his return from Lebanon (Ibrahim 1 [19]). Ibrahim states that the final agreement was in the terms of Ibrahim’s alleged contract as at [78]-[81] above.

Ibrahim states that he went into possession of the Oaks Store in May 2015. He began paying expenses as well as $3,410 a month to the Landlord (Ibrahim 1 [34]). When Hassan returned in September 2015, it was agreed that Ibrahim would also pay Hassan $10,000 a month starting in September.

Ibrahim states that the existing stock in the store was for $150,000. Ibrahim states that he spoke to the previous owner of the Oaks Business, who informed him that Hassan had bought the business for $290,000 (Ibrahim 1 [27]-[29]).

Ibrahim states that although he became aware in late 2015 that Hassan had not honoured Imad’s alleged contract, he kept paying him because he was scared (Ibrahim 1 [39]).

Ibrahim states that he has paid the following expenses for the Oaks Business, (Ibrahim 1 [41]);

Ibrahim states that between September 2015 and January 2018, he would give Imad $10,000 a month to pay Hassan. Ibrahim states that once in 2018 he visited Mr Saba with Imad to pay the monthly instalment, he states that at this time he paid $20,000 (Ibrahim 1 [47]-[48]).

Ibrahim states that he personally bought equipment to use in the store including a slushy machine and an air-conditioner (Ibrahim 3 [14]).

Ibrahim recalls that on one occasion in 2017 Hassan yelled at him in front of his customers. He states that he heard from Imad that Hassan was going to fuck him up and he felt scared and intimidated (Ibrahim 1 [53]-[54]).

Ibrahim states that the $290,000 owing under Ibrahim’s alleged contract was paid on about 31 October 2017. He states that according to the agreement he only had to pay Hassan $1,000 a week until the final lump payment, however he was too scared to raise this with Hassan so continued paying the $10,000 a month (Ibrahim 1 [56]).

Ibrahim states that by January 2018 he had paid Hassan approximately $312,000 in cash (Ibrahim 1 [49]).

Ibrahim states that he ordered extra stock prior to commencing litigation so that the store could continue to trade while proceedings were on foot (Ibrahim 3 [28]).

Ibrahim was questioned extensively about his agreement with Hassan, he confirmed that under the agreement he would run the Oaks Store between March and September 2015 while paying no money to Hassan (T203/32-48). He confirmed that he made no enquiries about the purchase price of the business (T189/45-190/21) and did not know the particulars of the lease arrangement (T198/31-42).

He did make several concessions:

Further, Ibrahim made mistakes about critical aspects of his evidence:

Paul Waterhouse is a licensed valuer. He swore two affidavits for the proceedings, on 7 September 2018 and 31 January 2019.

Mr Waterhouse provided a valuation of Hill Top Land (CB7/1088).

During cross examination it was revealed that:

Noura, Imad’s wife, swore two affidavits for the proceedings, on 19 August 2018 and 31 January 2019.

Noura states that she was born in Sydney and that she met Imad in December 2010. Prior to marrying, she was employed as a childcare teacher (Noura 1 [3]-[6]).

Noura states she first met Hassan in 2011 when he attended her engagement party (Noura 1 [8]).

Noura recalls that in August 2011, Imad met with Hassan to discuss the Hill Top Store, she recalls that Imad was excited over the opportunity to purchase the business from Hassan (Noura 1 [12]).

She states that Imad told her that Hassan had bought the Hill Top Business for $280,000 and Hill Top Land for $220,000 (Noura 1 [24]).

Noura recalls that she was present at the stocktake and that the stock was worth $66,230. She recalls that Mr Slaibi and Mr Saba paid this amount to the previous owners (Noura 1 [21]).

Noura states that she and Imad took possession of the shop in October 2011 (Noura 1 [23]). She denies ever signing a lease (Noura 2 [3]).

Noura recalls Hassan visiting her home in 2013 and telling her not to worry about the hard work because soon the business would be hers and Imad’s (Noura 1 [40]).

Noura recalls the following about the payments made to Hassan:

Noura recalls that by June 2015 she and Imad had paid Hassan $489,500 plus $66,230 for the stock (Noura 1 [33]). She states that when Hassan returned from Lebanon in October 2015 he refused to transfer the Hill Top Store.

Noura was cross-examined about her understanding of Imad’s alleged contract with Hassan. She maintained that Hassan had promised to transfer the business and she was not challenged on the fact that she used to count the money being paid to Hassan. There were several concessions made that suggested her memory may be unreliable:

Sassee, Ibrahim’s wife, swore one affidavit for the proceedings on 19 August 2018.

Sassee states that she was born in Sydney, she met Ibrahim in 2013 and they married in May 2015 (Sassee [4]-[5]). Prior to marrying she was working as a sales assistant at Myer (Sassee [9]).

Sassee states that she first met Hassan in 2014 in Lebanon (Sassee [6]). She recalls that in April 2015, Ibrahim told her that Hassan had bought them a store in the Oaks to run (Sassee [10]). She states at this time, based on what she knew about the arrangement with Imad and Noura, she believed she would eventually own the grocery business (Sassee [11]).

She recalls that Ibrahim told her that Hassan had bought the Oaks Business for $290,000 and the stock for $150,000. She states that the previous owner had told Ibrahim this (Sassee [17]).

Sassee recalls that she and Ibrahim took possession of the Oaks Store in May 2015 (Sassee 1 [18]). She recalls that when Hassan returned from Lebanon in about September 2015, Ibrahim met with him to finalise the deal. She recalls being worried that they wouldn’t be able to afford the payments to Hassan. Ibrahim reassured her that Imad would help with the payments (Sassee [20]-[21]).

Sassee recalls that in about September 2015 Hassan visited her in the shop, she states that Hassan said to her not to worry about the hard work because the shop would be hers soon (Sassee [23]).

She recalls finding out in October 2015 that Hassan had not honoured the agreement with Imad (Sassee [26]).

She states that she recalls counting out $10,000 each month to pay Hassan (Sassee [30]-[31]).

Nader Slaibi, is a businessman and alleged witness on the Hill Top leases. He is also Hassan’s brother in law but they do not speak (Nader [7]). He swore one affidavit for the proceedings on 31 February 2019.

Mr Slaibi states that he had not seen the leases prior to being shown them for these proceedings, he denies witnessing the lease, he denies that the signature on the lease is his (Nader [5]-[6]).

Ali Faeeh, Imad and Ibrahim’s accountant, swore one affidavit for these proceedings on 31 January 2019.

Mr Faeeh states that he prepared Imad and Noura’s tax returns for 2012, 2013, 2014 and 2015. He states he also prepared the tax returns for Diransson in 2015 (Faeeh [3]).

Mr Faeeh recalls making a file note on Imad and Noura’s 2012 tax returns. He recalls that Imad told him that Hassan had purchased a business for him and that upon Imad paying Hassan $11,000 per month until 2015, Imad could then claim ownership (Faeeh [6]-[7]).

Mr Faeeh was cross examined about preparing Imad and Ibrahim’s tax returns. He did concede:

Stephen Tully, solicitor for the Plaintiffs in this matter, swore one affidavit for the proceedings on 6 March 2019.

Mr Tully produces two text messages in response to the notice to produce filed by the Defendants on 20 February 2019. These text messages are then translated.

The Hill Top and Oaks Plaintiffs relied upon several documents in the proceedings, of particular note were the following:

Hassan produced two leases for Hill Top, allegedly signed between him and Imad.

P6 was made between Hassan, and Noura and Imad. Imad and Noura deny signing this lease, although Imad admits that Hassan asked him to sign some documents for ‘tax purposes’. Hassan admits that he added the words Noura Choukair on the first page (T643/14). Mouhamed Haidar is witness on the lease, he recalls signing it (T878/26).

P7 was made between Hassan and Imad. Hassan admits that it is in his handwriting (T647/9) and that it appears to Joe’s signature and not Imad’s on the lease (T647/19).Hassan could not explain why Joe’s signature was on the Hill Top lease (T571/46). Nader Slaibi is the witness on the lease but he denies writing his name and signing (T258/43).

Hassan stated that he recorded the payments made from Imad and Ibrahim in relation to the Hill Top Store and the Oaks Store in a small black notebook. He states that he threw the original away and transferred the records over to a new notebook that was put into evidence (CB 5, 201, Ex P8).

Hassan appears to have ‘fixed’ a mistake he made in his notebook, altering the amounts received for the stock take of Hill Top (T678/7). Hassan explained this by stating he confused Hill Top and Peak Hill (T674/22).

Ali Faeeh prepared the tax returns for Imad and Noura’s partnership between 2012 and 2015. He states that he made the following note in Imad’s FY2012 tax return:

The file note was not reflected in the partnership returns. Mr Faeeh states that this was because Imad’s assertions were not supported by documents (T294/07-25).

The Defendant pointed out some issues with the 2012 tax returns such as the tax agent was recorded as AMS Financial Accountants despite the fact that that company did not exist in 2012 (T284/1-7). Further the tax agent number recorded was not registered until more than two years later (T284.09-21).

The Hill Top and Oaks Plaintiffs point to the text messages between Imad and Hassan (Ex P13) as evidence of an obligation on Imad to make regular payments of $11,000 per month plus $10,000 on behalf of Ibrahim. The Plaintiffs state that given the absence of complaint by Hassan, the text messages establish that at least some of the payments described occurred. The fact that many of these text messages refer to amounts far greater than $500 a week, the Plaintiffs submit proves that they were in fact paying a purchase price, not a weekly rent.

For example, one text message sent on 4 July 2017 sent from Hassan to Imad states (CB8/1539):

Hassan states that these text messages related to payments that Imad and Ibrahim had agreed to make for the stock in the Oaks store (Hassan 1 [111]-[115]). One text message from Hassan however reads, “Just a reminder, you paid until the month of February” (P13, 104), Further Hassan states he never received any payment for the stock in relation to the Oaks (Hassan 1 [159]). He further states that he didn’t receive the payments referred to in those messages (Hassan 1 [115]). The text messages refer to money being given to Mr Saba and Mr Haidar, both witnesses deny receiving the money as described (Saba1 [20]-[21]); Saba 2 [4]; T847/8-11;T84830-32; Haidar [21]).

The Hill Top and Oaks Plaintiffs particularly point to two text messages sent in November 2016 and August 2017 between Imad and Ibrahim, prior to the commencement of litigation. These text messages read in part, on the 19 November 2016 (attached to Affidavit of Stephen Tully):

And on the 5 August 2017 (attached to affidavit of Stephen Tully):

Imad admitted that he had sent a series of intentionally misleading messages to Hassan (CB9/1853; T136/15-144/24).

There is no reference in any of the text messages about the purchase of the Hill Top Store (T29/37-48).The payments when described are referred to as rent (CB9, 1785-86, 1787-88).

The Hill Top Plaintiffs produced numerous financial statements and tax returns for the proceedings, including original and amended.

Imad’s original tax returns and financial statements disclose a profit insufficient to pay the alleged amounts to Hassan. In FY2013, Imad states that he paid Hassan $171,000 (Imad 1, 40), his partnership financial statements only discloses a profit of $59,996 (Ex D1, 26). This profit is reflected in his 2013 partnership tax return (Ex D1, 32). In FY2014, Imad states he paid Hassan $159,200 (Imad 1, 40), but his FY2014 partnership financial statement discloses a profit of only $63,999 (Ex D1, 42). This profit is reflected in his FY2014 partnership tax return (Ex D1, 48). In FY2015, Imad states he paid Hassan $143,000 (Imad 1, 41) but the original financial statements and tax returns disclose no profit and only the payment of $60,000 in wages (Ex D1, 74). In FY2016, Imad states that he paid Hassan $121,000 (Imad 1, 42) however the original financial statements and tax returns disclose profit of $460 and wages of $39,000 (Ex D1, 114, 124). In FY2017 Imad states he paid Hassan $99,000 but the original financial statements and tax returns disclose a profit of $168 and wages of $39,000 (Ex D1, 154, 166).

The Hill Top Plaintiffs submit however that (at CB4, 102B, 102C, 103A) there were sufficient funds to pay the amounts that they alleged (T92/44-50). Further, the Z readings produced disclose a higher turnover.

Imad stated that the financial statements were incorrect (T59/22-36) but could not explain these mistakes when Mr Faeeh stated that Imad checked the financial statements (T279/1-16) and denied understating Imad’s income (T279/18-37).

None of the documents record the Plaintiffs having made any payment towards the purchase of the Hill Top Store. Both the original and amended financial statements describe the payments to Hassan as rent.

The Plaintiffs prepared amended financial statements in February 2018, these recorded $28,818 paid for ‘rent-premises’ and $98,182 paid for ‘rent-business’ (Ex D1, 13, 16, 20). These show the same profit as the previous tax returns but the expense and revenue figures have changed (T93/3-95/2; T111/27-112/5; T123/29-124/12). Imad stated he was only mistaken about the rental figure and could not explain why many other figures had been changed (T113/09-23).These amended tax returns have not been filed.

The Oaks Plaintiff produced numerous tax returns and financial statements for the litigation.

All of Ibrahim’s tax returns and financial statements for the period of FY2015-FY2017 record payments for the Oaks Business as ‘rent’. His FY2016 tax return (Ex D3, 1) disclosed $60,386 in ‘rent expenses’, given that the land rent was $37,200 a year the remainder of $23,636 reflects additional rental payments of slightly more than $450 a week. This is repeated in his FY2017 tax return (Ex D3,8).

Ibrahim’s original tax returns disclose a profit insufficient to meet Ibrahim’s payments to Hassan under Ibrahim’s alleged contract of $120,000 per annum. In FY2016, Ibrahim recorded a profit of $32,615 and FY2017 a profit of $32,404 (Ex D3,1, 28). These tax returns were prepared by Ibrahim’s accountant Rabii Matouk based on invoices and Z readings that Ibrahim provided to him (T211/37-38; T212/50-213/02; T224/32-49). Further Z readings that disclosed a higher level of turnover were put into evidence in January 2019.

Ibrahim produced new financial records in February 2018 (Ex D3, 11, 36) which disclose expenses of $109,091 for ‘rent business’ and $37,200 for ‘rent-premises’. The amended financial statements kept the profits the same and increased the income and the expenses. Under cross examination, Ibrahim stated that he went to Rabii Matouk so that he could ‘fix our taxation before going to court (T219/11-24). These amended tax returns have not been filed (T217/28-42; T225/33-34).

The Hill Top and Oaks Plaintiffs produced a transcript of a phone call between Hassan and an insurance officer (P16).

In the transcript Hassan claimed to be an owner of Diransson (T726/32-728/10) and Imad’s brother (T725/44). Later in cross-examination, Hassan stated that Imad had requested Hassan lie to Allianz (T634/48;T635/24) despite claiming that he didn’t lie to in the insurer (T634/34).

The Hill Top and Oaks Plaintiffs produced Z-reports, print outs from the cash registers, for the financial years 2013 to 2015.

The Plaintiffs submit that the Z-reports establish are particular turnover in the store and prove that they were capable of paying Hassan the amounts alleged under Imad’s alleged contract or Ibrahim’s alleged contract. The Z-reports record an income higher than that declared in Imad and Ibrahim’s tax returns.

The Defendants point out the inconsistencies in the profits recorded in the Z-reports compared to the tax returns and raise questions about their reliability particularly given they were produced in January 2019 (T969/1-5).

The Hill Top Plaintiffs produced a photocopy of Ajaj Slaibi’s passport (P17) in the proceedings.

The Plaintiffs compared the signature on the passport to the alleged signature on P5, P6 and P7. The Hill Top Plaintiffs submitted that it was not Ajaj Slaibi’s signature on the leases (T924/16), and further state that he was not even in the country when the leases were purportedly signed (by reference to travel docs T924/31-925/10).

The Hill Top and Oaks Plaintiffs produced records from the Phoenicia Credit Agency (P12) that show Hassan borrowed money to purchase Hill Top.

The records further show that Hassan was paying interest on this loan.

The Hill Top and Oaks Plaintiffs rely on Mouhamed Haidar’s accounts (P18) to establish how much Mr Haidar was paying to Hassan while he was running the Blackheath store.

The Hill Top and Oaks Plaintiffs rely on this stocktake (CB7/811-884) to prove the amount of stock that Hassan paid for at the Oaks. The Plaintiffs then show that Hassan lied about how much he paid for the stock (T640/46).

The Hill Top and Oaks Plaintiffs (as well as the Oaks Plaintiffs) rely on travel records of particularly Hassan (but also Ajaj Slaibi) provided by the Department of Home Affairs (Ex P13).

The travel records were used by all parties in these proceedings to help establish when certain payments were made or certain conversations took place.

Hassan swore two affidavits in the proceedings on 30 November 2018 and 20 February 2019.

Hassan confirms that he used to own the Peak Hill Business and the Peak Hill Land (Hassan 1 [11]-[12]). Hassan states that he and Mohammed were childhood friends from Lebanon (Hassan 1 [13]). He states that he was aware that Mohammed needed help in 2008 and offered him a job in the Lawson store. He states that he told Mohammed about the arrangement he had at the Blackheath store, where Carolyn and Abdou ran the store and kept the profits and paid Hassan an amount each week. Hassan recalls that Mohammed asked if they could enter a similar arrangement (Hassan 1 [29]-[31]).

Hassan states that he later became aware about a shop for sale in Peak Hill. He states that he visited the shop on his own, spoke with the owners and made inquiries about the business. Hassan states that he was the only one involved in the negotiations to purchase the property (Hassan 1 [32]-[33]).

Hassan states that he entered into an agreement with Mohammed in the same terms as alleged Peak Hill agreement as at para [25]-[26] above. Hassan states that he bought Peak Hill Land for $230,000 and the Peak Hill Business for $100,000 plus stock of $110,000 (Hassan 1 [37]). Hassan states that on about 14 August 2009, he and Youmna, entered into a retail lease with Joe for the Peak Hill Business (Hassan 1 [14]). He states that the lease was in Joe’s name so that Mohammed could keep receiving Centrelink payments (Hassan 1 [38]).

Hassan states that he paid for many improvements and additional equipment for the store (Hassan 1 [41]-[42]).

Hassan recalled that he opened an account with Metcash for Joe and Mohammed to make orders for the Peak Hill Store. He recalls one time in February 2012, when Mohammed and Joe failed to pay for $60,000 worth of stock Hassan was then forced to pay (Hassan 1 [51]).

Hassan states that Mohammed and Joe paid the equivalent of $500 a week to run the Peak Hill Store. He states that the payments were not regular, they were paid when Mohammed and Joe would visit Sydney, and paid in cash. Hassan states that when he received a payment he would write it down in a notebook which he threw away a few years ago. He states that he told his accountant that he was receiving rent for the Peak Hill Store and this is recorded in his financial records (Hassan 1 [48]-[50). Hassan states that Mohammed and Joe did not pay him the amount they owed for the stock. When they placed orders with Metcash for the stock, often Hassan would pay for them and Mohammed would pay him back by way of bank transfer (Hassan 1 [51]).

Hassan states that in late 2012, Mohammed told him that he wanted to move back to Sydney. Hassan then says he offered to sell Mohammed the business but Mohammed refused, he found out a few weeks later that Mohammed had purchased another business in Oakdale (Hassan 1 [60]-[62]).

Hassan states that in July 2012, Joe leased a shop from him in Hazelbrook. He states that he told Joe if he sold Peak Hill and made a profit he would give Joe some of the proceeds. He states that when he did sell the Peak Hill Business to Abdou, he lost money and there were no profits to share (Hassan 1 [69]-[72]).

Hassan confirms that his company Fenikia owns the Hill Top Business and the Hill Top Land (Hassan 1 [17]). He states that he first met Imad in late 2010, soon after he arrived in Australia (Hassan 1 [79]). Hassan stated that he told Imad about his business arrangements in Lawson and Blackheath and that Imad expressed interest in a similar deal (Hassan 1 [82]).

Hassan states that he and Imad visited Hill Top, but that he was the only one who made inquiries about the business and negotiated the purchase (Hassan 1 [86]-[89]). Hassan states that he entered into an agreement with Imad in the same terms as the alleged Hill Top agreement as at [54]-[55] above (Hassan 1 [90]-[93]). Hassan states that in August 2011, he, Imad and Noura signed a retail lease for the Hill Top Land. He later recalls that Imad asked for Noura to be removed from the lease so he and Imad alone signed a second retail lease for the Hill Top Land (Hassan 1 [96]). Hassan states that he bought the Hill Top Business for $250,000 plus $66,000 of stock [Hassan 1 [99]).Hassan states that he made improvements to the shop and bought new equipment for it (Hassan 1 [100]).

Hassan states that he received the equivalent of $500 a week from Imad, although the payments were not regular. Some payments were made to Michael Saba (Hassan 1 [101]-[104]). Hassan said he recorded these payments in a notebook. He states he no longer has the original notebook, but transferred the original notes across to a new notebook in late 2017 (Hassan 1 [105]). He states Fenikia’s ledgers, tax returns and financial statements record this money as rental income (Hassan 1 [106]).

Hassan states that in 2017 he became angry with Ibrahim for not running the shop properly, he stated that Ibrahim had not paid him back for $155,000 worth of stock and he did not trust him. He threatened to sell the shop if Ibrahim did not pay him back. He states that Imad then offered to help his brother pay this stock back quickly (Hassan 1 [111]-[115]).

Hassan states that in April 2018, Imad owed $192,069 for stock, which Hassan was forced to pay (Hassan 1 [130]-[131]). Imad continues to run the Hill Top Business but has not paid Hassan the weekly fee from January-May 2018. Hassan states that he terminated the agreement with Imad (Hassan 1 [137]).

Hassan confirms Fenikia owns the Oaks Business and leases the Oaks Land (Hassan 1 [18]). Hassan states that he first met Ibrahim at a wedding in 2013 (Hassan 1 [139]). Hassan states that he saw Ibrahim a few times in early 2015, he told Ibrahim that if he purchased a new business Ibrahim could work in it (Hassan 1 [141]). Hassan states that he later became aware that the Oaks Business was for sale, he told Ibrahim that he could work there and keep the profits and pay Hassan a fee (Hassan 1 [142]-[144]).He states that he entered into an agreement with Ibrahim in the same terms as alleged the Oaks agreement in about April 2015 as at para [82]-[83] above (Hassan 1 [144]-[145]).

Hassan states that he purchased the Oaks Business for $230,000 plus $154,600 in stock (Hassan 1 [151]-[152]). Hassan states that he paid for some of the repairs made to the Oaks (Hassan 1 [153]).

Hassan states that he received payments from Ibrahim through Imad of a weekly fee equivalent to $500. The payments were made irregularly (Hassan 1 [155]-[157]). This money was recorded in Fenikia’s records as rental income (Hassan 1 [157]).Hassan states that he has not received any money from Ibrahim for the Oaks stock (Hassan 1 [159]). Hassan states that in April 2018, Ibrahim owed $237,574 to Metcash for stock, which Hassan was forced to pay (Hassan 1 [170]-[171]). ]). Ibrahim continues to run the Oaks Business but has not paid Hassan the weekly fee from January-May 2018. Hassan states that he terminated the agreement with Ibrahim (Hassan 1 [173]-[175]).

Hassan states the following about his other properties and businesses:

Hassan states that his business model is to buy an underdeveloped business, improve its value over time and then sell it for a profit (Hassan 1 [188]).

During cross examination, Hassan made several concessions:

Hassan also gave inconsistent evidence about some aspects of the agreements

Fouad Slaibi, Hassan’s brother, swore one affidavit in the proceedings on 27 November 2018.

Fouad states that Hassan told him that Mohammed and Joe had a ‘sub-lease’ at Peak Hill (Fouad 1 [4]). He states that Hassan told him the same thing with regard to Imad and Ibrahim (Fouad 1 [6]-[11]).

Issaf Slaibi, the sister in law of Hassan, swore one affidavit in the proceedings on 16 November 2018.

Issaf recalls that in 2012, she and her husband Ajaj Slaibi were looking to purchase a business. Hassan told them that Mohammed wanted to leave Peak Hill and move back to Sydney, so the Peak Hill Business was available. She and her husband travelled with Hassan to Peak Hill to look at the shop, they all had dinner at Mohammed’s home and stayed the night (Issaf [3]-[4]). They ultimately did not purchase the business (Issaf [5]).

Joseph Bechara, is a wholesale chocolate provider, swore one affidavit in the proceedings on 27 November 2018.

Mr Bechara states he delivered chocolate to Hassan’s stores in Blackheath, Lawson and Hill Top (Bechara [3]).He states that Hassan told him he had bought the Hill Top Store and let Imad run it on a ‘sub-lease’ (Bechara [10]). He states that he had conversations with both Imad and Noura who expressed the desire move back to Sydney and give Hassan the shop back (Bechara [12]-[15]).

Under cross-examination, Mr Bechara gave evidence consistent with his affidavit, he accepted that he could not remember precise words or dates of discussions that had occurred several years ago (T825/19-828/50).

Marwan, Hassan’s nephew, swore two affidavits in the proceedings on 28 November 2018 and 20 February 2019.

He confirms that he used to run the Lawson store for Hassan (Marwan 1 [4]-[5]). He states that he was to pay rent for the store, pay the expenses and pay Hassan $1,100 a week and then keep the rest of the profit (Marwan 1 [6]-[7]). He states that in 2016 he decided he was not making enough money and left in September 2016 (Marwan 1 [9]-[13]).

Marwan states that he was good friends with Joe, Joe told him many times that he had a ‘sub-lease’ at Peak Hill and paid ‘rent’ to Hassan (Marwan 1 [15]). Marwan states that in 2012, Joe told him that he wanted his father to leave Peak Hill to return to Sydney (Marwan 1 [16]). Marwan stated that he was good friends with Imad, Imad told him many times that he wanted to buy the Hill Top shop and that Hassan would not sell it to him (Marwan 1 [17]-[20]).

Michael Saba, Hassan’s business partner, swore two affidavits in the proceedings on 22 November 2018 and 20 February 2019.

Mr Saba recalls that in 2009, Hassan told him that he bought a supermarket in Peak Hill and that his family members will sub-lease it (Saba 1 [10]). He recalls that Joe leased a shop from him and Hassan in 2012, he states Joe never expressed any complaint with Hassan (Saba 1 [14]).

Mr Saba recalls that in 2011 Hassan told him that he bought a supermarket in Hill Top, and wanted to fix it up and make a profit. Hassan told him that his cousin would run it on a sub-lease and pay him rent (Saba 1 [15]-[17]). He recalls two occasions where Imad gave him money to pass on to Hassan, he states Imad never said he was buying Hill Top from Hassan (Saba 1 [18]-[22]).

Mr Saba recalls in 2015 Hassan told him that he bought a supermarket in the Oaks and would sub-lease it to Ibrahim’s brother (Saba 1 [23]).

Mr Haidar recalls that in about August 2009, Hassan offered to let him run the store in Peak Hill, he declined because he didn’t want to relocate (Haidar 1 [6]). He states that in about 2010, Hassan offered to let him run the Blackheath store, Hassan told him he would have to cover expenses and pay him a fee and then keep the rest of the profits (Haidar 1 [7]-[9]).

Mr Haidar states that in about 2015 he asked Hassan if he would sell him the Blackheath store, Hassan refused stating he did not want to sell the business (Haidar 1 [13]).

Paul Kabashi swore one affidavit in the proceedings on 27 November 2018.

Mr Kabashi states that he is a businessman and Hassan’s friend (Kabashi [2]-[3]). He states that in 2000 he visited Hassan in his Lawson store, he offered to buy it but Hassan didn’t want to sell. Instead Hassan told him he could lease it from him for $500 a week and keep the profits. Mr Kabashi stated he worked in the Lawson store for about a year (Kabashi [4]-[6]).

In 2017, Mr Kabashi states he spoke with Hassan about purchasing either the Hill Top or the Oaks businesses, but not the land (Kabashi [7]-[8]).

Ramsay Zreikat, Hassan’s accountant, swore one affidavit in the proceedings on 29 November 2018.

Ramsay states that Hassan provided various pieces of information to him for the purpose of completing his tax returns. He states Hassan told him that Hassan was leasing out businesses and informed him how much income that generated. Hassan never told him that he was receiving payments as instalments on a sale price, if that were the case he would have recorded the sale of an asset, recorded the capital gains tax and the amounts outstanding (Zreikat 1 [8]-[10]).

Renee Delfsma swore one affidavit in the proceedings on 28 November 2018.

Ms Delfsma confirms that she is a real estate agent who has managed properties owned by Hassan (Delfsma [2]-[3]).

She states that in 2012 she was responsible for leasing the Hazelbrook Property to Joe. She states that Hassan had called her and told her that his nephew Joe would take over the café and lease (Delfsma 1 [4]).

Under cross-examination, Ms Delfsma gave evidence broadly consistent with her affidavit, however accepted that she could not recall the particulars of events that occurred many years ago (T831/45-832/30).

Sergio Pacchini, filed one affidavit (undated) in the proceedings on 30 November 2018.

Mr Pacchini states that he is a supplier that stocks Hassan’s stores (Pacchini [2]). He states that in around 2005, Hassan spoke to him about buying a grocery store in Blackheath and getting one of his relatives to run it. He stated that Hassan told him that whoever ran the store would pay Hassan rent and slowly pay back for the stock, an then keep the profits (Pacchini [5]-[7]).

Mr Pacchini states that he visited Peak Hill in 2009 and spoke with Mohammed. He recalls Mohammed agreed that he had the same arrangement with Hassan as Carolyn and Abdou (Pacchini [9]).

Jamie Antonopoulos, who is the solicitor with carriage of this matter, swore one affidavit for the proceedings on 20 February 2019.

Ms Antonopoulos states that she asked Mr Slaibi to come to Australia to give evidence but he stated that he was too sick to travel.

The Defendants relied upon several documents in the proceedings, of particular note were the following:

Phone records of the various plaintiffs were relied upon by the Defendants (Ex D2).

Records show that contact between Imad, Ibrahim and Joe spoke regularly to each other, contact peaked at times when the Defendants filed documents (Ex D2, 3-68).

On 9 April 2015, shortly before Ibrahim began work at the Oaks Store, Hassan sent him a text about it (CB7/798), the text makes no mention that Ibrahim would eventually own the store.

On 19 July 2018, a month before Mohammed and Joe swore their first affidavits and Imad and Ibrahim swore their second affidavits, Mohammed sent Imad a text message which contained a copy of his 2013 statement (EX D2, 69).

The Defendants relied on various photos (Ex D2, pgs1,2).

These photographs show Mohammed, Joe, Imad and Ibrahim at dinner together on 11 January 2018 (Ex D2, 1), as well as socialising together in March 2019 (Ex D2, 2).

In 2017 Joe sent Hassan a text message thanking him for the experience in Peak Hill (CB8/1394; D6), the text message was as follows:

Joe stated that he took particular care to be truthful in the message and that it was an opportunity to be honest and tell Hassan his real complaints (T412/9-413/13).

During trial, counsel for the Hill Top and Oaks Plaintiffs requested that Mouhamed Haidar sign a piece of paper (Ex D7) so that it could be compared to a particular signature on a lease. Counsel for the Defendants then tendered this document.

Hassan produced various tax returns and financial statements. These include personal financial records as well as the records of his various companies. Of particular note:

The income declared in the Partnership tax returns (P10), disclose that the rent for Blackheath was $300 per week, Lawson was $1,000 per month and Peak Hill was $500 per week. However according to evidence given by Mr Haidar and Marwan, they were paying significantly more in rent. The breakup of these amounts is contained in the underlying ledgers (Ex P11).

Further the payment schedules as asserted by Hassan do not match the total declared in the tax returns for Hill Top and the Oaks.

Mohammed applied for a new ABN for a FoodWorks business in Oakdale by 1 December 2012.

Mohammed registered the Oakdale FoodWorks business name by 8 December 2012.

The Peak Hill Plaintiffs submit that there are two core issues to be resolved, firstly whether the terms of the oral contract are that of Mohammed’s alleged contract or Hassan’s alleged Peak Hill contract, and secondly whether Mohammed and Joe made payments pursuant to Mohammed’s alleged contract or Hassan’s alleged Peak Hill contract. The Peak Hill Plaintiffs state that the Court should find that Hassan and Mohammed entered into Mohammed’s alleged contract and that Mohammed and Joe made repayments pursuant to that contract.

The Peak Hill Plaintiffs seek the following relief;

It was generally accepted that the Peak Hills Plaintiff claim rested primarily on the finding of a particular oral contract, and therefore, certain claims of equitable relief and under Australian Consumer Law did not feature greatly throughout trial. The Peak Hill Plaintiffs did not press their entitlement to the rebates.

The Peak Hill Plaintiffs stated that in 2009, Mohammed and Hassan entered into an agreement by which Hassan would buy a grocery business and land and transfer the store to Mohammed upon the receipt of $400,000 (Mohammed’s alleged contract). The Plaintiffs submit that Hassan breached the agreement upon failing to transfer the business upon receipt of the moneys owing and then further upon causing the store to be sold to a third party (PH subs [21]-[22]).

The Peak Hill Plaintiffs make their case on the following evidence.

The Peak Hill Plaintiffs submit that the evidence in the Hill Top and Oaks proceedings has significant probative value (PH subs [32]) and is compelling tendency evidence where (PH subs [26]):

The Peak Hill Plaintiffs submit that when one considers the totality of the evidence, there are common features in each which are strikingly similar and demonstrate a tendency of Hassan to act in a particular way (PH subs [29]).

The Peak Hill Plaintiffs submit that in each of the three dealings, Hassan entered into the relevant agreement without intending to ever honour that agreement (PH subs [31]).

The Peak Hill Plaintiffs place weight on the following documents:

With regards to the exercise book, the Peak Hill Plaintiffs submit that the exercise book is a contemporaneous record of the repayments which Mohammed and Joe made to Hassan between October 2009 and December 2012, pursuant to Mohammed’s alleged contract (PH sub [38]).

With regards to Mohammed’s 2013 statement, the Peak Hill Plaintiffs submit that the document clearly sets out the terms Mohammed’s alleged contract and the repayments made and ought to be accepted (PH sub p43]). It was prepared by Mohammed and his solicitor in 2013 shortly after the breakdown of the relationship between Mohammed and Hassan, when the events were fresh in Mohammed’s mind (PH sub [40]). Mohammed and Joe decided not to pursue legal proceedings back in 2013, primarily because of a lack of funds (PH sub [42]).

The Peak Hill Plaintiffs submit that their contract claim requires a finding by the court as to which parties are to be believed. They state that there is compelling evidence, including the unimpugned documents that should lead the Court to conclude the Peak Hill Plaintiffs’ version of events is to be believed. The Peak Hill Plaintiff’s submit the following:

The Plaintiffs claim that they acted on an expectation that they would become beneficially entitled to the Peak Hill Store upon repayment of the purchase price. Further they submit that Hassan induced them to adopt this assumption to their detriment and that it is unconscionable for Hassan to deny that assumption by reason of the principles of equitable proprietary estoppel by encouragement (PH sub [48]).

The Peak Hill Plaintiffs state that they have incurred sufficient detrimental reliance to found an estoppel. The Plaintiffs and their family changed their position, home and livelihood from 2009 until 2012 to run the Peak Hill Store and to make the repayments to Hassan (PH sub [52]). Hassan encouraged this detrimental reliance (PH sub [53]).

The Peak Hill Plaintiffs submit that consideration of misleading and deceptive conduct under the Australian Consumer Law involves the same fact finding as proprietary estoppel, but the applicable principles and potential remedies are different (PH sub [56]).

The Plaintiffs submit that Hassan’s conduct in entering into Mohammed’s alleged contract and making oral assurances to the Plaintiffs that they would eventually own the Peak Hill Store were representations (PH sub [57]), and that these representations were made in trade or commerce (PH sub [58]). The Peak Hill Plaintiffs relied on those representations and believed that they were true, and Hassan’s conduct in making and then resiling from the representations is misleading or deceptive (PH sub [59]-[60]).

The Plaintiffs state that their causes of action first accrued in December 2012 when Hassan breached Mohammed’s alleged contract by refusing to transfer the Peak Hill Store to Joe (PH sub [62]). Hassan then further breached the alleged contract by selling the Peak Hill Store to a third party (PH sub [62]).

The Plaintiffs submit that in any event in June, July and August 2012, there is no dispute that Mohammed and Joe still owed Hassan a further $60,000 for outstanding stock, and that Mohammed’s alleged contract could not be completed while these amounts were still outstanding (PH sub [63]). They further note that Hassan was out of Australia from May to July 2012, and therefore, no repayments could have been made during this time (PH sub [64]).

The Peak Hill Plaintiffs deny that there was any unreasonable delay in seeking relief. The unreliability of memory is not sufficient reason to refuse relief. Further the breach of Mohammed’s alleged contract has not caused any prejudice to the Defendants rather, the Defendants have benefited substantially through the sale of the store along with the monies received from Mohammed and Joe. Further the reason for delay in bringing proceedings was because of the financial difficulty the Peak Hill Plaintiffs found themselves in following the breach of Mohammed’s alleged contract by the Defendants (PH sub [65]).

It was generally accepted that the Hill Top and Oaks Plaintiffs’ claim rested primarily on the finding of a particular oral contract, and therefore, certain claims of equitable relief and under Australian Consumer Law did not feature greatly throughout the trial. The Hill Top and Oaks Plaintiffs did not press their entitlement to the rebates. Further the Plaintiffs accepted that if the court found an oral contract in the terms as articulated by the Defendants, they accepted they were liable under the Defendants’ cross-claim (T895/15-20).

The Hill Top and Oaks Plaintiffs rely on the following unimpeachable documents;

The Hill Top and Oaks Plaintiffs then make the following detailed submissions.

The Hill Top and Oaks Plaintiffs seek to rely on tendency evidence adduced in the Peak Hill Proceedings. They deny that there was any collusion in circumstances where the Plaintiffs only saw Mohammed’s 2013 statement after they had committed themselves in their April affidavits (T890/21-29). The Plaintiffs note the similarities in arrangements between the parties that show that Hassan had a tendency to act in a certain way, in particular that he preferred to paid in cash (T891/37-40).

The Plaintiffs rely on the numerous text messages sent between the parties (HT sub [8]) in particular;

The Plaintiffs submit that the text messages establish an obligation to make regular payments per month to Hassan of $11,000 by Imad and $10,000 by Ibrahim. Further because of the absence of complaint of Hassan for non-payment, these messages also establish that at least some of these payments occurred (HT sub [5]). The only explanation for these payments is either payments as according to either Imad or Ibrahim’s alleged contract, or a stock agreement contended for by Hassan. The Plaintiffs submit that the stock agreement is an obvious invention (HT sub [5(c)]).

Further text messages were produced shortly before trial in response to a notice to produce issued by the Defendants, these are; one a message sent on 5 August 2017 and two a message sent on 19 November 2016.These text messages (as described above) refer to large amounts of cash, far more than the $500 a week rent that Hassan contends for. These text messages corroborate the Plaintiffs’ case, the alternative hypothesis is that as far back as 2016 Imad and Ibrahim were plotting to fabricate evidence against Hassan but then failed to use this evidence in proceedings until forced to at the last minute (HT sub [10]).

The Hill Top and Oaks Plaintiffs note that Hassan tried to explain away the text messages as simply referring to an agreement to repay stock. They note Hassan states that an altercation between him and Ibrahim in January 2018 as the geneses for the text messages. Hassan states that Imad and Ibrahim volunteered to pay him around $10,000 a month for the owing stock, so that he would not sell the Oaks store. Hassan stated that he wanted to be paid back quickly. Hassan states that the large amounts of money referred to in the text messages are referring to this stock payment.

The Plaintiffs state that this explanation given by Hassan broke down in cross-examination. They note Hassan initially stated that the stock could be paid back slowly and then changed his mind in cross-examination (T596/66). Further, Hassan then changed the amounts to Imad paying $11,000 a month, note $10,000 (T599/31) in order to fit with the amounts as stated in the text messages. The Plaintiffs note that the term ‘rent’ appears to refer to period payments, not one off payments for stock (HT sub [16]).

The Hill Top and Oaks Plaintiffs submit that Mohammed’s July 2013 witness statement should be granted considerable weight. They state that the probative value of the statement is that the contents depict the instructions given by Mohammed to his lawyer in 2013 (HT sub [19]).

Further the Plaintiffs note that they had already committed themselves to a particular version of events in their affidavits by April 2018. There is no meaningful contact between the Hill Top and Oaks Plaintiffs and the Peak Hill Plaintiffs until July 2018 (HT sub [20]).

It is therefore not possible for there to have been any collusion between the parties in making the July 2013 witness statements or the April 2018 affidavits (HT sub [21]). The Hill Top Plaintiffs submit that the only explanation is that each party had independently fabricated the same story about Hassan or their accounts must be substantially true (HT sub [22]).

The Hill Top and Oaks Plaintiffs note that Imad was unshaken on key factual matters (HT sub [23]). The Plaintiffs note that Imad set out 27 payments in his affidavit and conceded that at least three of these must be mistaken given that Hassan was out of the country (HT sub [24]).The Plaintiffs submit that although Imad may have been mistaken about the exact dates of these payments, he could still recall with sufficient detail the circumstances surrounding the payment (HT sub [26]). They further note the other 24 payments not only align with Hassan’s travel movements, but are corroborated by them (HT sub [24]).

The Hill Top and Oaks Plaintiffs state that Ibrahim was forthright in his evidence and made proper concessions (HT sub [28]), and was unshaken about the deal that he had with Hassan in September 2015 (HT sub [29]).

Noura was also unshaken about her recollection of particular events (HT sub [31]), and recalled remembering how much money was paid to Hassan because she used to count the money (HIT sub [32(g)]). Sassee similarly was unshaken as a witness (HT sub [34]), and even though much of her evidence is based on what Ibrahim told her, she was told at a time prior to these proceedings (HT sub [34]). Sassee sometimes saw Ibrahim give money to Imad to pay Hassan and sometimes she would count the money together with Ibrahim (HT sub [36]). Both Noura and Sassee recalled Hassan telling them on separate occasions the business would be theirs (HT sub [32(g)], [37]).

The Hill Top and Oaks Plaintiffs submit that when comparing the arrangements asserted by Hassan, the deals for Hill Top and the Oaks are far more advantageous than the Blackheath and Lawson arrangements. This is even though Marwan (his nephew) and Mr Haidar (his brother-in-law) are more closely related to Hassan than Imad and Ibrahim (HT sub [39]). Hassan agreed that he wouldn’t treat Imad and Ibrahim better than his nephew or brother-in-law (HT sub [41]).

Hassan’s alleged the Peak Hill agreement was to charge rent of approximately 1.8% of the yearly turnover of 1.3 million. Hassan attempted to dispute the calculation of the turnover, stating that it was in fact lower than $25,000, the Plaintiffs relevantly referred to Craig Dunbar’s report and the solicitors letter to establish that in fact Hassan did believe the turnover was $25,000. The agreement for Lawson was to charge rent of either 9.2% or 6.9% of the year turnover, the change in figures reflecting the inconsistent evidence given by Marwan and Hassan. The agreement for Blackheath was to charge rent of about 3.4% or 5.7% of the yearly turnover, again the change in figures reflecting inconsistencies in the given evidence. Hassan’s alleged agreements for Hill Top and the Oaks appear to be charge just under 2% and 3.5% of the yearly turnover respectively.

The Plaintiffs also note that it makes no sense for Hassan to charge both Imad and Ibrahim the same weekly fee, given that Ibrahim also had to pay rent of $3410 per month, yet the turn over for the businesses was roughly the same (HT opening subs [49]).

Hassan’s company Fenikia’s financial records reveal that it was losing money on Hill Top every year except 2017. However Hassan gave evidence that he was making money on Hill Top. This inconsistency is only explained on the basis that Hassan was receiving more than $500 a week from Imad (HT sub [68]).

The Hill Top and Oaks Plaintiffs note that a particular conversation as recalled in Marwan and Hassan’s affidavits are virtually identical. The Plaintiffs submit that the court should not accept the denials of collusion. They further note that the call for the lease, which Marwan asserted he had with Hassan went unanswered (HT sub [70]-[73]).

The Hill Top and Oaks Plaintiffs submit that Hassan was an unsatisfactory witness, known to lie (HT sub [74]) and engaged in a scheme to avoid paying his tax liabilities (HT sub [75]). Hassan lied about the insurance call to Allianz (HT sub [76]) and altered the notebook (EX P8) used apparently to record the amounts he received for stocktake shortly before trial (HT sub [77]).

It appears clear that the leases concerning Hill Top (EX P5 and P6) are both forged and Hassan gave unsatisfactory explanation for the mistakes in the signatures (HT sub [79]-[80]). The signatures appear to be in Hassan’s handwriting and the witnesses on the leases deny signing them (HT sub [81]-[83]). The inconsistencies in signatures, for example the fact that Noura’s signature initially appears on P6 and then is absent and the fact Joe’s signature appears on the later P7, suggest that the P6 lease was created for tax purposes (HT sub [87]) and then P7 was forged by Hassan for the purposes of this litigation and he was made a mistake about which signature to use (HT sub [88]-[89]).

Hassan recorded only seven occasions when he received money from Imad, two of these must be wrong given Hassan’s travel dates (HT sub [92]). Hassan stated that this was the result of a mistake from his lawyer, but no evidence was produced about the initial instructions or any actions taken by Hassan to fix this mistake (HT sub [93]-[94]).

Hassan’s accounts of the payments indicate that Imad was able to pay him $92,200 between 10 January 2013 and 10 July 2013. Hassan also states that Imad and Ibrahim jointly paid him $104,000 across the space of 11 weeks. Hassan’s accounts do not reflect the apparent rents paid across all of his businesses and show that Hassan was undervaluing his income to avoid tax (HT subs [99]-[112]).

The Hill Top and Oaks Plaintiffs primary relief sought is specific performance (HT sub [113]). In the alternative, the Plaintiffs seek orders that the Defendants repay all moneys they have caused to pay to Hassan with interest (HT sub [113]). During closing submissions, Counsel for the Hill Top and Oaks Plaintiffs submitted that were the court to find that the contract was void for uncertainty, the Plaintiffs should be entitled to their money back less the main profits for the use of the land (T 893/37-894/20).

It is appropriate to first distil the general approach taken by the Defendants in responding to the Plaintiffs’ cases against them. In each case Counsel for the Defendants, Mr Balafoutis, emphasised three key points that underlined the Defendants’ approach in each of the proceedings.

Firstly, the issue of the onus of proof. The Defendants submitted that the various Plaintiffs all have to establish, not that money was paid, but that a particular agreement was made (T943/19-22). The Defendants note that in this context the onus is a substantial one, where one is talking about a transfer of land and when there are no contemporaneous documents recording the promise (T943/29-31; T954/26-28; T972/30-40).

Secondly, the plausibility of the alleged deals. The Defendants note that in essence, each of the deals Hassan made with the various Plaintiffs involved Hassan purchasing a particular business and land (or with respect to the Oaks just a business) and then immediately agreeing to selling those assets at the same price, payable in instalments (T943/41-47;T954/28; T973/19).

Thirdly the lack of any contemporaneous documents in each of the proceedings (T944/27; T954/29; T973/20-25).

The Defendant then made the following detailed submissions in response to the claims of the various Plaintiffs.

The proceedings were commenced on 23 August 2018, the alleged contract was made in about June 2009 (about nine years before proceedings commenced), the alleged breach occurred in December 2012 (5 years and 9 months before proceedings commenced).

Defendants submit that the Peak Hill Proceedings were brought out of time (Def sub [84]), based on the following:

The Defendant submits that there are several problems with the Plaintiffs’ contract claim.

Firstly that even though the claim is brought by Joe and Mohammed, Joe was not a party to any agreement with Hassan. Further, the alleged agreement was to transfer Joe the Peak Hill Store, therefore Mohammed has suffered no loss (Def sub [103]-[106]).

Further the parties conduct is inconsistent with the terms of Mohammed’s alleged contract (Def sub [109]):

The terms advanced by the Plaintiffs do not make commercial sense (Def sub [112]-[115]):

There are no contemporaneous documents that support the Plaintiffs case. Both parties rely on evidence of oral conversations that occurred almost ten years ago, the Defendants however do not bear the onus of proof to establish the truth of their conversations. Further there was inconsistent evidence given by the Plaintiffs (Def sub [118]-[120]).

The Plaintiffs rely on three post-contractual documents, which the Defendants submit are not probative of their case:

There are, on the other hand, contemporaneous documents that support the Defendants case. Firstly the Peak Hill Lease (Ex P5) and the Defendants’ contemporaneous tax and financial records, which document the receipt of rental income from the Peak Hill Store (Def sub [123]).

The Peak Hill Plaintiffs’ financial documents do not support their case. Their tax returns do not disclose income sufficient to meet the payments they say were made to Hassan (Def sub [125]). The tax returns describe payments as ‘rent expenses’ (Def sub [126]).

The Peak Hill Plaintiffs rely on the tendency evidence from the Hill Top and Oaks proceedings. The Defendants submit that that this tendency evidence is not credible or reliable given that the Plaintiffs in all of the proceedings are not independent witnesses but firm friends who have spoken together at length about their arrangements with Hassan (Def sub [129]-[130]). The Plaintiffs’ affidavits do not reflect their independent recollections but are rather the product of collusion (Def sub [131]).

Hassan’s account is corroborated by witnesses of two kinds. Firstly there are witnesses who spoke to the Defendants or Peak Hill Plaintiffs prior to the commencement of the litigation about the terms of the arrangement. Marwan, who was Joe’s close friend, and Sergio, who had no relationship with the parties, gave evidence that the arrangement was consistent with it being a lease and not a purchase. The Defendants also note that Ramsay Zreikat, Michael Saba and Fouad Slaibi also gave evidence consistent with Hassan’s alleged contract. The Plaintiffs’ evidence about the arrangement all came from close family members (Def sub [133]). Further there was tendency evidence given by Paul Kabashi, Marwan Dirani and Mouhamed Haidar, about the analogous arrangements Hassan had entered into at the Lawson and Blackheath stores. The Defendants submit that Hassan has a tendency to engage others to operate his grocery business and retain any profits, in consideration for the payment of a weekly sum and the coverage of operating expenses (Def sub [135]).

In response to the Plaintiffs’ claim that Hassan’s purported arrangements at Lawson and Blackheath were far less favourable than the purported arrangements at Peak Hill, and are therefore implausible, the Defendants make several submissions. Firstly that measuring rent as a percentage of turnover does not demonstrate one deal was better than another, it is more multifactorial than that. Further on the Plaintiffs’ own case they should have been paying less rent (in some cases no rent) to Hassan than the arrangements in Lawson or Blackheath.

The Defendants submit that for all the reasons above, the Court ought not to accept that the parties made an agreement in the terms of Mohammed’s alleged contract, but rather in the terms of Hassan’s alleged Peak Hill agreement.

The Peak Hill Plaintiffs seek a declaration that they and the Defendants hold their respective interest in the Peak Hill Store on constructive trust for each other. The Defendants note that the Plaintiffs’ submissions do not develop this argument (Def sub [140]). The Defendants note that, on their case, both parties have agreed that the Defendants would retain both the Peak Hill Store and the moneys paying to them and it is therefore not unconscionable for them to do (Def sub [142]). Further, even if the Peak Hill Plaintiffs version of events was accepted, it is clear that there was no ‘joint endeavour’ and ‘shared expenditure’ which means that there can be no constructive trust (Def sub [144]).

The Peak Hill Plaintiffs advance a claim based on proprietary estoppel. The Defendants submit on their case, that Hassan never represented to the Plaintiffs that they would acquire the Peak Hill Store, and in any case, even on the Plaintiffs’ version of events, none of Hassan’s alleged representations were made to Joe (Def sub [147]). Further there is no evidence that the Peak Hill Plaintiffs acted in reliance upon the assumption induced by the Defendants, Mohammed was bankrupt and had no other options but to accept Hassan’s offer to run the Peak Hill Store (Def sub [151]). There is no evidence that the Peak Hill Plaintiffs suffered any detriment, although they did relocate to Peak Hill there was no material disadvantage suffered (Def sub [154]).

The Peak Hill Plaintiffs make a claim that Hassan’s conduct in making and then resiling from certain representations was misleading or deceptive. The Defendants deny that Hassan ever made these representations, but submit even if he did the claim would fail. There is no evidence adduced that when Hassan made the alleged representations he knew them to be false (Def sub [156]), further there is no evidence that the Plaintiffs suffered any detriment or would have been better off but for reliance on the alleged representations (Def sub [159]-[163]).

The Peak Hill Plaintiffs make a claim for moneys had and received, but do not elaborate on this claim in their submissions (Def sub [164]).

The Defendants submit that there are several reasons why the Court should not accept that the parties made an agreement in the terms of Imad’s alleged contract (Def sub [194]).

Firstly, Imad’s failure to complain about Hassan’s alleged breach of the contract impugns his evidence that there was in fact such a contract (Def sub [195]). Imad in fact kept paying monthly instalments to Hassan (Def sub [197]).

The terms of Imad’s alleged contract do not make commercial sense. Imad was not involved in the negotiations to purchase Hill Top Store and apparently agreed to Hassan’s proposed purchase price without knowing what the business or the land would cost. Imad had never worked in a grocery store before and had no idea about whether the store would generate sufficient profits to pay Hassan. Hassan continued to make improvements to and purchase equipment for the Hill Top Store (Def sub [198]).

The Hill Top Plaintiffs rely on oral evidence and adduce no contemporaneous documents to support a finding that Hassan agreed to the terms of Imad’s alleged contract (Def sub [199]). Imad’s evidence was both internally inconsistent and uncertain (Def sub [201]). He could not recall during cross-examination, the details of his payments to Hassan (Def sub [205]). There is no document that references the alleged purchase of the Hill Top Store, and Mr Faeeh’s file note at its highest only refers to the purchase of the business and not the land (Def sub [202]), and in any case Mr Faeeh cannot be regarded as a credible witness (Def sub [208(d)]). The Hill Top Plaintiffs refer to text messages as evidence that Imad paid certain amounts to Hassan. The Defendants submit that these text messages were referring to the stock that Ibrahim owed Hassan, and that in any case, Hassan didn’t receive the money referred to in these messages. No text messages refer to any payment of a purchase price, rather the payments, when described, are referred to as ‘rent’ (Def sub [206]-[207]).

The Hill Top Plaintiffs’ post-contractual tax returns and financial statements (both original and amended) are inconsistent with the terms of Imad’s alleged contract [208]. The original tax returns disclose a profit significantly below that which would be required to pay Hassan the amounts alleged. Although Imad contended that this had been a mistake, this evidence should not be accepted given that he could not explain how a mistake had been made. Further, the apparent mistaken profit is reflected in Imad and Noura’s partnership tax returns as well. None of these documents record the Hill Top Plaintiffs making payments towards the purchase of the Hill Top Store and further specifically describe the payment of ‘rent’. The amended financial statements should not be accepted, they are not contemporaneous documents but were created for the purpose of the litigation, further these amended tax returns haven’t been filed. These amended financial statements still record the payments to Hassan as ‘rent’. With regard to the 2012 file note from Mr Faeeh, the Defendants submit that is in not a contemporaneous record in circumstances where Mr Faeeh has a history of dishonesty, where the file note did not actually become part of the tax returns, and there were several infelicities in the 2012 tax return which suggest it was not prepared in 2012 (Def sub [208]).

The Defendants’ contemporaneous documents support their account of the Hill Top Agreement, particularly Fenikia’s accounts as well as the lease that Imad signed [209].

The Defendants submit that the tendency evidence of Mohammed and Joe is of limited utility given that the Defendants contest Mohammed and Joe’s evidence.

Further the Defendants’ evidence as to the terms of the alleged agreement is corroborated by witnesses of two kinds, the Defendants make the same claim in relation to the Peak Hill proceedings at para [411] above (Def sub [211]).

The Defendants submit that Hassan terminated his contract with Imad on 9 August 2018. There were three bases for that termination.

Firstly that Imad allegedly stole around $192,000 worth of stock from Hassan contrary to their agreement. Imad admitted that he bought the stock to ‘protect the business’ shortly before commencing proceedings, he subsequently lied to Hassan about why he had bought this stock. Hassan was forced to pay for this stock. Imad has only repaid Hassan about $15,000. The Defendants submit that this breach was a sufficiently serious breach of an intermediate term under either of the alleged Hill Top agreements (Def sub [214]-[219]).

Secondly, Imad failed to pay Hassan the $500 weekly fee that was due under the alleged Hill Top agreement between January and May 2018 (Hassan 1 [134]) (Def sub [220]).

Thirdly, Imad contends that he is not obliged to pay the weekly rent. The Defendants say that Imad’s alleged contract is untenable, and his conduct in refusing to perform in accordance with Hill Top Agreement is therefore repudiatory (Def sub [221]).

The Defendants submit that therefore, they have validly terminated the contract, are entitled to damages and Fenikia as the registered proprietor of Hill Top Land is entitled to an order for possession of it in circumstances where the basis upon which the Plaintiffs occupied it has been removed (Def sub [222]).

In reply to this claim, the Hill Top Plaintiffs claim that Hassan was precluded from terminating the agreement owing to his own anterior ‘fundamental breach’ of the alleged contract by failing to transfer the property to Imad. This will only be true if the Court finds that Imad’s version of the contract was correct. Further, the Defendants state that in any case the Hill Top Plaintiffs should not be granted relief against forfeiture. They note relief will only be granted if Hassan’s termination of the contract was unconscientious. The Defendants submit that this is not the case because Hassan did not contribute to Imad’s breach in taking the stock, the breach was not trivial and the Defendants have suffered significant financial loss (Def sub [225]-[228]). Further the Defendants note that Imad has ‘unclean hands’ (as discussed in para 156; Def sub [229]).

The Defendants submit that even if the court accepts that the parties entered into Imad’s alleged contract, there are several difficulties with the remedies sought by the Hill Top Plaintiffs (Def sub [232]).

Firstly, the primarily remedy sought of specific performance is not available given that Hassan has validly terminated the agreement, even on the terms of Imad’s alleged contract (Def sub [233]-[236]).

Second the relief sought is in favour of Diransson; however Imad’s alleged contract is between Imad and Hassan (Def sub [237]-[238]).

Thirdly, the Hill Top Plaintiffs seek ‘equitable damages’ for breach of contract as an alternative to specific performance. However, since 2014 it is Diransson that has received the profits of the business and therefore Imad would personally be no better off had his alleged contract been performed (Def sub [239]-[241]).

The Hill Top Plaintiffs claim relief of remedial constructive trust. The Defendants make the same submissions with respect to Hill Top as to Peak Hill at para [414] above (Def sub [242]).

The Hill Top Plaintiffs claim relief based on proprietary estoppel. The Defendants deny making any assurance to the Plaintiffs that they would acquire the Hill Top Store (Def sub [242]-[243]). In any case, the Defendants submit that this claim would fail for the following reasons. Firstly no representation was made, or could be made to Diransson. Further in relation to Imad, there is no evidence of reliance, Imad gives no evidence that he would have acted differently had he known the alleged assumption would not be fulfilled, the evidence suggests that the opportunity to run the Hill Top Store was a good opportunity for someone in Imad’s position (Def sub [245]-[246]).

The Defendants submit that the equitable relief sought by the Hill Top Plaintiffs should be denied on a discretionary basis, being that Imad has not come to equity with ‘clean hands’ (Def sub [247]). Imad’s hands are unclean because of his conduct in taking almost $200,000 worth of stock from the Defendants on the eve of the litigation (Def sub [248]). This conduct is an impropriety in a legal sense, in that it is a breach of contract, and a moral sense in that it is an abuse of trust (Def sub [249]). Further the impropriety involves Imad breaching the same agreement on which he now sues, in express contemplation of these proceedings (Def sub [250]. Imad has also not sought to remedy the wrong, the debt to Hassan remains outstanding (Def sub [251]).

The Hill Top Plaintiffs contend that the Defendants conduct in resiling from their obligations under Imad’s alleged contract was misleading or deceptive. The Defendants submit that this claim should fail for three reasons, firstly although the relief is sought in favour of Diransson, there is no allegation that the Defendants engaged in misleading or deceptive conduct towards it. Secondly, the pleaded conduct was not misleading, there is no evidence adduced that even if Hassan had made the representations alleged, that he knew them to be false. Thirdly Imad has suffered no loss by reason of the alleged misleading conduct, there is no basis to conclude that Imad would be better off if the alleged misleading conduct had not occurred (Def sub [252]-[253]).

The Hill Top Plaintiffs seek restitution for moneys had and received (Def sub [254]). The Plaintiffs did not elaborate on this claim (Def sub [255]).

The Oaks Plaintiff seeks specific performance of Hassan’s obligation to sell the Oaks Business and Lease and alternatively equitable damages. The Defendants submit that there are several reasons why the Court should not accept that the parties made an agreement in the terms of Ibrahim’s alleged contract (Def sub [276]).

The terms of Ibrahim’s alleged contract do not make commercial sense. Under the agreement Hassan invests capital upfront to purchase the store only to resell it immediately for the same price which was payable in instalment. Hassan and Ibrahim were not close and there is no reason to make such an agreement. Further under the alleged contract, Ibrahim was to run the store between March and September 2015 while paying Hassan no money at all and in circumstances where there was no agreement on foot between them. Ibrahim did not enquire about the viability of the Business or what the business was worth, or the specific terms of the lease, and committed himself to allegedly paying Hassan $10,000 a month without knowing these key facts. Further Ibrahim admits that shortly after he entered Ibrahim’s alleged contract, he discovered that Hassan had repudiated his agreement with Imad, yet still agreed to pay $10,000 to Hassan each month. Hassan continued to make improvements to the store (Def sub [277]).

The Oaks Plaintiff relies on oral evidence and adduces no contemporaneous documents to support a finding that Hassan agreed to the terms of Ibrahim’s alleged contract. There is no reference in any text message to the purchase of the Oaks Business (Def sub [278]). Further Ibrahim’s oral evidence was unreliable, he was mistaken about the purchase price of the business and was unable to recall the details of the alleged agreement as set out in his affidavit during cross-examination (Def sub [279]).

The Oaks Plaintiff’s case is undermined by Ibrahim’s own contemporaneous financial documents. Ibrahim’s tax returns and financial statements record payments for the Oaks Business as ‘rent’, and disclose a profit insufficient to meet the payments under Ibrahim’s alleged contract (Def sub [281]-[282]). Ibrahim’s amended tax returns prepared for the litigation should be treated with scepticism, the expenses and income were increased but the profit was kept the same and the payments to Hassan were still described as ‘rent’ (Def sub [282]).

The Defendants contemporaneous documents support Hassan’s alleged agreement, Fenikia’s tax returns record ‘income’ from Ibrahim.

The Oaks Plaintiff relies on tendency evidence of Mohammed and Joe, this is of limited utility given that the Defendants contest the Peak Hill Plaintiffs’ evidence (Def sub [282]).

Further the Defendants’ evidence as to the terms of the alleged agreement is corroborated by witnesses of two kinds. The Defendants make the same claim in relation to the Peak Hill proceedings at para [411] above (Def sub [284]).

Firstly Ibrahim allegedly stole $237,574 worth of stock from Hassan in order to keep the business running when these proceedings were commenced. Hassan was forced to pay for this stock and Ibrahim has only paid back $15,000 (Def sub [288]-[291]).

Secondly, Ibrahim failed to pay Hassan the weekly $500 fee that was due under the Oaks Agreement between January and May 2018 (Def sub [292]). Ibrahim contends that he is not required to pay this weekly amount (Def sub [293]).

Finally, under Ibrahim’s alleged contract, he is required to pay Hassan $1000 per week until he makes a lump sum payment of $150,000 for the stock. Ibrahim has not paid this weekly fee, nor made the lump sum payment (Def sub [294]).

These breaches give rise to right to damages or restitution of moneys paid, entitle Hassan to terminate his contract with Ibrahim and entitle Fenikia to take possession of the Oaks Land on the basis that it is holding over as a monthly lessee under the Oaks Lease (Def sub [295]).

In reply to this claim, the Oaks Plaintiff claims that Hassan was precluded from terminating the agreement owing to his own anterior ‘fundamental breach’ of the alleged contract by failing to transfer the property to Ibrahim. However, even under Ibrahim’s alleged contract, Hassan was only obligated to do this upon Ibrahim’s payment of $150,000, Ibrahim has not paid this money (Def sub [296]-[297]). Further, the Defendants submit that the Oaks Plaintiff should not be granted relief against forfeiture. They note relief will only be granted if Ibrahim has demonstrated that he is ready, willing and able be to pay the remaining amounts due under his contract [298]. Further the Defendants note that Ibrahim has ‘unclean hands’ (Def sub [298]).

The Defendants submit that event if the Court accepts that the parties entered into Ibrahim’s alleged contract, there are several difficulties with the remedies he seeks.

First, Ibrahim cannot seek specific performance of a contract that has been terminated [300]. Secondly, in this case, the termination of Ibrahim’s alleged contract also precludes Ibrahim’s claim for damages, in this case even on Ibrahim’s version of events, at the time Hassan terminated the contract he had not breached any term because the obligation to transfer on any case had not yet arisen (Def sub [301]-[303]). Further, the Oaks Plaintiff cannot obtain an order for specific performance in circumstances where he is not ready, willing and able to perform his own substantive obligations, there was no evidence adduced that he would be able to pay the remaining $150,000 [304]. Finally equity will not order specific performance where the order would be in vain or futile, as in this case where the Oaks Lease has expired and therefore transferring the business would be futile (Def sub [305]).

The Oaks Plaintiff claims relief of remedial constructive trust. The Defendants make the same submissions with respect to the Oaks as to Peak Hill at para [414] above (Def sub [306]).

The Oaks Plaintiff claims relief based on proprietary estoppel. The Defendants deny making any assurance to Ibrahim that he would acquire the Oaks Store [307]. In any case, the Defendants submit that this claim would fail for the following reasons. Ibrahim cannot establish reliance, that fact that he continued to pay Hassan after discovering Hassan’s apparent breach of Imad’s alleged contract show that he would have taken the same course as he did irrespective of any assurances Hassan made (Def sub [308]).

The Defendants submit that the equitable relief sought by the Oaks Plaintiff should be denied on a discretionary basis, being that Ibrahim has not come to equity with ‘clean hands’ for the same reasons set out in para [438] above (Def sub [309]).

The Oaks Plaintiff contends that the Defendants’ conduct in resiling from their obligations under Ibrahim’s alleged contract was misleading or deceptive (Def sub [310]). The Defendants submit that this claim should fail. Firstly the pleaded conduct was not misleading, there is no evidence adduced that Hassan knew the promises to be false at the time he made them. Secondly, Ibrahim did not rely on the representations. Thirdly, Ibrahim has suffered no loss by reason of the allegedly misleading conduct, on the evidence the opportunity Hassan gave him was a good one (Def sub [311]).

The Oaks Plaintiff seeks restitution for moneys had and received (Def sub [312]). The Plaintiffs do not elaborate on this claim (Def sub [312]).

The Defendants make brief submissions with respect the various Plaintiffs claim to the rebates paid by Metcash to Hassan for orders made for stock. The Defendants submit that none of the Plaintiffs articulate the basis for this claim in their submissions; it is not part of their alleged agreements that Hassan was required to pay the rebates (Def sub [313]-[316]). The claim is pleaded as one for ‘money had and received’ but the Plaintiffs do not identify any basis on which the Defendants receipt of the rebates is unjust, further the rebates were not received as the expense of the Plaintiffs (Def sub [317]).

Although I will deal with each of the Plaintiffs cases in turn they share a number of similar characteristics.

In each case the conduct which is said to amount to contractual relations or some estoppel is based upon conversations which occurred many years before the trial was conducted in this court.

In such cases the discharge of the relevant onus often provides considerable difficulties for a Plaintiff. Absent some objective and contemporaneous support, the alleged reiteration many years after the event of verbal exchanges which importantly are said to consummate contractual relations and/or alternatively induced a particular form of conduct, are often difficult to prove.

The reasons for that are to some extent obvious but were discussed by McClelland J with his customary precision and insightfulness in Watson v Foxman (1995) NSWLR 49 as follows (at 319) :

In similar vein Hammerschlag J captured the difficulties associated with such an exercise in John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 (at [94]):

Whilst many judges still advert to what might be described as findings on demeanour, such a process should be viewed with some caution or indeed scepticism as a reliable method for determining which factual version of events to accept. A Judge’s capacity to view, evaluate and purport to make findings of a witness he or she may see for the very first time in the witness box and then only fleetingly, might be best described as limited. However witness statements filed in advance do or should give the Judge a more precise idea of what the witness will say and it is nonetheless unsurprising that the manner and mode of delivery of the testimony especially during cross examination may understandably have some influence on the Judge’s view of the witness’ credibility, especially when carefully viewed in the context of objectively corroborative materials.

However as the High Court in Fox v Percy (2003) 214 CLR 118 stated (at [31]):

The more reliable guide especially in cases where the cause of action is based solely or substantially on oral testimony is to seek and identify if possible relevant corroboration, which of course may take many forms.

Obviously any contemporaneous documents such as memoranda, letters, emails or perhaps diary entries may provide a context in which, unless themselves capable of being discredited as contrived, the plausibility and credibility of the asserted oral communication can be evaluated.

In addition with oral contracts, unlike written contracts, post contractual conduct if objectively sustainable may be relied upon not only to prove the existence of a contract but in addition its terms (see e.g. Australian Estates v Palmer [1989] NSWCA 11, 50; Re Centura Global Holdings Pty Ltd (2016) 111 ACSR 185; [2016] NSWSC 62 [64]-[67]; Gestion Pty Ltd v Kit Digital Aus Pty Ltd (in liq) [2014] NSWSC 1547 [11]).

However post contractual conduct can be a two edged sword. Whilst it may be that post contractual conduct points either to the existence of a contract or one of its terms, a failure to complain for example may have the inverse consequence. In other words, if a person asserts a cause of action based on reliance upon certain contractual relations, but then failed in circumstances where it might have been thought appropriate to complain about the way in which they were being treated, the absence of the complaint may well amount to an admission that no contract or no promise of the sort alleged was made in the first place (see e.g. Textralian Enterprises Pty Ltd v Perpetual Trustees Victoria Ltd [2000] NSWCA 176 [85]; Raphel Shin Enterprises Pty Ltd v Waterpoint Shepherds Bay Pty Ltd [2014] NSWSC 743 [104]).

It is entirely unsurprising therefore, in this case given the nature of the Plaintiffs’ causes of action that significant attention was given to the detail of anything which even remotely suggested corroboration.

Both sides attacked each other somewhat vigorously on matters of credit and with some justification. There was more than a healthy suggestion on both sides that certain documents were contrived for the purposes of the litigation. It is also fair to say that on both sides, very likely the parties from time to time did not take their tax liabilities all that seriously or consider them at all.

There was no assertion made by any of the Plaintiffs that they were given any tutorial by Hassan about the financial benefit of understating their respective incomes. They appeared to adopt this course of action almost instinctively.

In my view the contemporaneous material relied upon by the various Plaintiffs in these proceedings is, in my view, unreliable and/or contrary to the Plaintiffs’ version of events. I am simply unable, in each case, to reach the requisite level of persuasion that binding contractual relations came into being as the result of these various conversations.

Regarding the credit of Hassan and the reliability of the documents produced by the Defendants, I am not at all satisfied, for example that the leases (or some of them) relied upon are genuine, nor am I persuaded that Hassan was entirely forthright in the production of his financial records. It appears that he was the one who requested the payments be made in cash, although given the absence of any contemporaneous documents, I am not entirely convinced that any of the Plaintiffs took issue with this or requested otherwise. The explanation that he gave for transferring some but not all records from one notebook to another (that is Ex D5) is totally inexplicable and I am not convinced that this document represents a contemporaneous record of the payments.

It seems, fairly clear to me that he exaggerated his evidence and gave unsatisfactory explanations for the various inconsistencies in his testimony. The telephone conversation with Allianz, in which he lies about his relationship with Imad and unilaterally raises the insurance premiums, was clearly not his finest hour. However, true it may be in discharging the onus, it is not inappropriate for the Plaintiffs to draw my attention to the unsatisfactory evidence of Hassan, I do not believe in the end that his conduct and testimony amounts to a significant admission. Importantly Hassan, although he may be unreliable, does not bear the onus of discharging an onus of proof on the existence of a contract or the conduct supporting an estoppel.

In broad terms the forensic context was not so much an argument of contract or no contract, rather as to the terms. The Plaintiffs asserted contracts of quite a specific nature, as opposed to what might be said to be a proposal or a business opportunity to make some money in a short period. By that I mean the Plaintiffs in each case although with some differences, asserted specific promises which would either lead in the end to a transfer of land and/or the business operated at the various stores in the respective locations.

The Defendants’ general response was consistent with there being contractual relationships in place but of a very different kind to that asserted by the Plaintiffs. The Defendants’ case was that in each instance, the Plaintiffs were being given an opportunity to operate businesses, effectively on behalf of the Defendant, whereby they had an opportunity to pocket whatever profits they managed to achieve after paying monies to the Defendant and other overheads. Although each case needs to be looked at quite separately again, the main thrust of the Defendants’ case was that each of the Plaintiffs had very little if any other employment options and they were not close members of his family. Rather the arrangement in each case was that of a commercial relationship whereby on the one hand the Plaintiffs had an opportunity to make money by way of profits and the Defendant had someone in effect to look after the store.

It is worth briefly mentioning the various pieces of tendency evidence that were relied upon in this case. Early on in proceedings, Counsel for all parties agreed that there was going to be no objection to any tendency evidence adduced throughout the trial (T8/21-49). In effect, the Plaintiffs in the various proceedings sought to rely on evidence from each other of the proceedings respectively, amounting to a conclusion that Hassan had a tendency to make promises to transfer land and business in exchange for certain monthly payments and then proceed to renege on those promises.

In response the Defendant calls in aid, what is in effect evidence of Hassan’s business model. That is, that in September 2010 Hassan entered into an agreement with his nephew Marwan to operate Hassan’s Lawson store. The agreement required Marwan to pay Hassan $1,100 per week rent and to cover all expenses after which he could keep the profits. However Hassan did not agree to sell the Lawson store to Marwan. Further in October 2010, Hassan entered into an agreement with is brother in law, Mouhamed Haidar, to operate Hassans’ Blackheath store. That agreement required Mohammed to pay Hassan $2,166.66 per month plus cover all expenses after which Mohammed could keep the profits. Again Hassan did not agree to sell the Blackheath store to Mr Haidar.

The Plaintiffs further submitted that when considering all of Hassan’s various business arrangements it was entirely implausible for Hassan to offer much better business deals to Mohammed, Imad or Ibrahim than his own family being Marwan or Mr Haidar.

As I have clearly said, in any event in the circumstances as is clear from the discussion below, I am not satisfied that any contracts are of the kind alleged by the Plaintiffs in the various proceedings. The tendency evidence that they seek to rely on, therefore, fails to be of any weight. Further there is insufficient evidence before the court for me to make a precise comparison between the arrangements offered to either Marwan or Mr Haidar and the respective Plaintiffs. It is difficult to make any meaningful findings about the differences between each business opportunity.

On the other hand, the tendency evidence adduced by the Defendants seems to me, to suggest that Hassan indeed had a habit of buying businesses and letting others run them and keep the profits before then selling them at a profit some years later or keeping them for him and his family.

It appears to me in any case, that the arrangement contended for by the Plaintiffs was altogether more improbable than the arrangement as asserted by Hassan. On the Plaintiffs case, Hassan was to be their keeper, creator of an opportunity, banker, and philanthropist where no one else was available, and yet not one objectively provable conversation or contemporaneous document showing not even a simple thank you. This seems to me highly unlikely, particularly given the absence of any apparent motive for Hassan to enter into an arrangement like this. It was not pleaded for example, that he had duped the Plaintiffs into running the business for him by making false promises to convey the business and or land, in order to assist him cost effectively increase the size of his business and/or property empire, although counsel for the Plaintiffs (at PH subs [31]; T890/13) did indeed raise this issue in the final submissions. Rather on their case he was simply to make no money from the endeavour.

Each of the Plaintiffs’ cases necessarily must be dealt with separately and in turn.

The Defendants analysed each of the cases by reference to three principal factors. The first being onus, the second what was said to be the implausibility of the proposed arrangement, and the third the consideration and assessment of contemporaneous materials.

It must be recalled, that what the Plaintiffs set out to prove was an oral agreement to transfer the Peak Hill Business and Land to Mohammed’s son Joe. That promise was said to have taken place some decade before the proceedings were heard.

It is uncontroversial that there are no contemporaneous documents recording the promise. It is also uncontroversial that there are no documents, created at any time, in which terminology is used suggesting that an arrangement had been made whereby there would be a transfer of land or business. The term “transfer” is not used nor is “purchase” or “sale” or any other terminology suggestive of the fact that the ownership in both the business and the land moved from the Defendant to Joe at some point indeed at any point.

It is uncontroversial again that Mohammed was not a close friend or a family friend of the Defendant. Further, although there is some debate about who actually found and identified the property and the business, it is clear that the Defendant was the one who made inquiries of the business and negotiated the purchase price. There is no doubt that he used his funds to obtain the business.

Leaving aside the precise amount spent, it is clear on the evidence that the Defendant spent money on items for the business. The Plaintiffs made no choice or selection of those items nor were they consulted or participated in a decision of how much each item costs. There is clearly a dispute as to precisely what was installed and how much each cost. However the Defendant asserts that he bought two fridges for the shop at the cost of $53,000, a computer and scanning system at a cost of $22,000. He replaced shelving at $31,600 and he bought new dairy produce cases at a cost of $33,000. (CB5,139 and 143)

Joe certainly accepted that he did not pay any money towards those costs. He further accepted that new equipment was needed to improve the business, and that the Defendant paid for much of it. Mohammed gave similar evidence. (T335.04 - 335.36, T447.50 – 448.25, 448.49 – 449.30).

The Defendant with some force points to the implausibility or rather improbability of the arrangement as suggested by the Plaintiffs. For example, the Plaintiffs do not assert that as part of their arrangements, Mohammed and Joe would ever pay for, at cost or on some depreciated basis, any improvements made to the property. Rather they assert, implicitly at least, whatever improvements were made simply be transferred as part of the transfer of land and business at no additional cost.

With both Mohammed and Joe accepting, or so it seems, that neither was a close friend or family member of the Defendant, and although it could pass as an act of philanthropy, it does seem to me highly improbable. The Plaintiffs’ asserted arrangement is quite uncommercial in its nature, particularly without there being a good reason for entering the contract, or alternatively some considerable discussion of the detail of the various items, which on no view appears to have occurred.

The Plaintiffs counter this, arguing that the Defendants’ alleged demand for only $500 a week on a business that had an expected turnover of $25,000 a month is likewise implausible. Although this may be the case, I am not persuaded that the contract as alleged by the Plaintiffs is at all more likely, in fact it seems to me the version as proposed by the Defendant is altogether more probable.

The relevant period here is from mid 2009 to late 2012. It appears that there is not one contemporaneous document created during this time referring to a sale of business or transfer of land from the Defendant to Joe. There is no text message between father and son, or email making any reference to such a transaction or even hinting at it. There is certainly no text messages or emails between the Defendant and anybody else referring to an agreement of the sort pleaded and asserted by the Plaintiffs.

Although the Plaintiffs deny such an arrangement, it seems to me upon considering such contemporaneous documents that do exist; there was clearly an agreement to rent the premises from the Defendant. The Plaintiffs assert that any moneys paid to the Defendant were part of a purchase price for the property and the business. I am not satisfied this is so.

There are clear inconsistencies between the evidence given by Mohammed and Joe. Mohammed continued to assert that he had paid Hassan every month, while Joe denied this was the case. Rather he asserted that they would save up the monthly amounts, and then from time to time, when convenient, would give large lump sums to Hassan. In the absence of any credible contemporaneous document, this inconsistency in their affidavit evidence is significant.

There are indeed documents which are quite contrary to this notion of a purchase. At CB10, page 120 (the bank records of the business) for 10 September there is an item for $2,500 described as “hassan’s rent”. Again at CB10, 121 on 16 September described as “hassan’s bill”. In the same volume at p, 138 the two items are described as being for “rent”. (This is in the bank statements of the Defendant). Another such item is to be found in a further copy of the Defendant’s bank statement for 9 October. Again an amount of $5,000 this time described as “rent”. (CB10, p 142).

It is clear that the Plaintiffs and the Defendant retained separate accountants to prepare their tax returns. The Defendants’ case was that the Plaintiffs and he agreed that the Plaintiffs would pay Hassan $500 a week for rent for the Peak Hill premises. In their tax returns for the years ended 30 June 2010, 30 June 2011 and 30 June 2012 there is disclosed as “lease income for Peak Hill the amount of $23,636.36 (CB5, 161, 205 and 377).

The Defendants’ accountant, Mr Ramsay Reikat, filed a statement in the proceedings but was not cross examined, which suggests that the entries were not erroneous or false, or that he had no basis for believing that such rental had not been received in relation to those premises. These tax returns which were filed for the relevant years provide very strong support for the Defendants’ case that the arrangement Hassan had with the Plaintiffs was that of landlord and tenant. Mr Reikat said that conventionally he received information from the Defendant prior to preparing the tax returns. He also asserted that the Defendant never told him that he had agreed to sell shops to the tenants and had he done so he would have recorded the sale in the financial records.

Importantly as I have already noted the accountant was not subjected to cross examination.

However most importantly in my mind in the tax return for Joe for 30 June 2010 there is an item (Ex PC, Tab 1, page 5) which shows rent expenses of $22,697 (close enough to $500 a week). Likewise in Tab 2, his return for the year ended 30 June 2011, page 17 an amount shown for rent expenses of $24,000.

These returns were prepared by Joe’s own accountant Mr Maatouk. Both sides of the record, so to speak, therefore recorded a rental arrangement. Joe clearly told his accountant he was paying approximately $500 a week rent for those two relevant financial years, and the Defendant recorded receipt of income of not quite identical but of virtually similar scale.

These documents provide ample evidence in my view that the parties relevantly agreed that rental of approximately $500 a week would be paid by Joe to the Defendant. The other alternative is that one or both parties lied to their accountants.

The Plaintiffs of course rely upon a draft statement prepared by a solicitor in mid-2013. As is obvious from the face of the document it is not a contemporaneous statement made at the time the alleged agreement was supposedly consummated. The statement (at CB6,698) runs to 37 paragraphs and certainly does purport to set out conversations between Mohammed and Hassan which first occur allegedly in February 2009 (paragraph 4), and then somewhat imprecisely to conversations which occur allegedly between February and April 2009 (paragraphs 5 – 8).

There is little doubt that the statement was made with the intention of commencing litigation. Clearly it was prepared for that purpose. The Defendant points out (Closing submission, para 122(c), p 30-31) that there are numerous errors in the statement. More accurately inconsistencies. There are no less than 10 errors, which are not insignificant, pointed out by the Defendants in their submissions. They are not mere matters of detail but are in my view significant. Moreover as is pointed out in para 122(d) of the Defendants’ closing submissions, a comparison between Mohammed’s evidence in the proceedings before this Court and that statement in some critical respect indicate that Mohammed has sought to improve his evidence since that statement.

Most importantly words added in Mohammed’s 2018 affidavit go very much to the question of purchase and sale or transfer of the property and business. At the very least, the passage of time from the instance of the alleged initial agreement and the preparation of the 2013 statement together with the over embellishments as I see them in Mohammed’s 2018 statement, give me serious reservations about being able to accept his version of events. Particularly given the absence of any documents in the years immediately following the alleged oral agreement, in which there is no reference whatsoever to the kind of arrangement asserted in these proceedings.

Further and not unimportantly the draft statement (para 29) makes reference to the Plaintiffs making six monthly payments of $6,000 per month up to December 2012. In my view there does not appear to be any evidentiary support for this proposition. Such bank records as do exist reveal that Mohammed transferred a maximum of $5,000 in any one month to the Defendant during this period (T472.32-482.49).

The Plaintiffs of course rely upon what is an exercise book, which has otherwise been described as the Peak Hill notebook (Ex PA: CB5, 156). The Plaintiffs submit that this is a contemporaneous record of cash payments that they made to the Defendant between October 2009 and December 2012. I have my reservations again about the so called contemporaneous nature of the document. First of all there have been pages torn or cut out from it. Why this was done remains a mystery, but it should not be ruled out that there was material taken out of the book which did not help the Plaintiffs’ case (T394.26-395.05).

The entries from November 2009 until 30 December 2011 record payments of precisely $13,000 at monthly intervals. However Joe’s evidence is that the Plaintiffs did not pay Hassan each month, that they did not pay the same amount on each occasion, and that they did not record in the notebook the specific dates on which payments were allegedly made (T404.45-405.30).

It is entirely possible given the form and format of the exercise book that the entire list from 14 October 2009 to 30 December 2011 was written on one occasion and that the word “paid” was also written at the same time for each entry.

There is very little support objectively for precisely when any of these entries was made. The entries could have been recorded literally at any time before or after the Plaintiffs left Peak Hill. Further the note book purports only to be payments of cash. There is no detail of any payments made by way of bank transfer. The document is almost certainly the “exercise book” referred to in paragraph 17 of Mohammed’s draft 2013 statement, but it is not exhibited nor are any of the pages. Further, the amount actually recorded in the notebook itself varies from the amount which Mohammed alleges he paid in cash in the draft 2013 statement.

There is in fact no way of knowing when the exercise book was created. I am certainly not satisfied it was created contemporaneously when payments were made in the year 2009 and following. The appearance of the notebook suggests a contrivance in the sense that it was created much later in point of time. The various dates, use of the same pen in almost every case, except some blue biro whenever added, rather suggests later creation. The somewhat uniform entries in my view are redolent of being done in one sitting as it were.

However on the inside of the notebook appears the words ‘rent $2166”. Joe recognises this as the writing of his father (T405.48-407.02) although Mahommed denied this (T529.22-40). The entry of course is consistent with the payment of approximately $500 a week in rent in accordance with the Defendants’ version of the agreement. It runs entirely contrary to the Plaintiffs’ case. No explanation other than the fact that it was reflective what one or other of the Plaintiffs was doing can explain its presence in the notebook.

Further there is simply a paucity of evidence to support the payment of $13,000 per month. Mohammed asserted that he paid those amounts in cash until January 2012 (T461.50-462.01). However there is no record in Mohammed’s personal or business bank accounts showing withdrawals of $13,000. Likewise from January to June 2012 Mohammed alleges he made payments of $9,000 per month sometimes in cash and sometimes by bank transfer. However none of the bank records support any transfer of $9,000 to the Defendant (CB10, 33037, 47-54, 69-83, 107). I find myself entirely unable to accept Mohammed’s version of these payments.

Mohammed further gave evidence that in about July 2012 he agreed to start paying the Defendants $6,000 a month and did so by bank transfer. He put his bank statements into evidence to support the claim but they do not. They reveal a maximum of $5,000 in any one month to the Defendant during that period.

The Defendants also rely upon a signed retail lease (Ex P5). Joe denies signing the lease. If the lease is not genuine it would not be the first document which was brought into existence perhaps for the purpose of this litigation nor would his denial about signing it being the first false denial in the proceedings. However pursuant to s 183 of the Evidence Act I am entitled to compare signatures. There are clear differences between his signature as shown on Exhibit P3 and those on either of his two affidavits. However they are not that dissimilar.

Joe however did deny signing it, and at least in his affidavit he purported to deny ever having met Ajaj Slaibi (the named witness on the lease) at any point. However in cross examination it appeared at the very least he knew who he was and more to the point knew that he was the Defendant’s brother (T344.05-3.5.20).

In the end whether or not the lease is a fabrication or in fact the truth in my view is not determinative of itself of any particular issue in the case. This is so because of the liberal use by the Plaintiffs of the term “rent”, particularly in the materials Joe supplied to his accountant. Although he did not expressly accept the proposition when asked whether he told his accountant honestly what his income and expenses were, there is little doubt that the tax returns were prepared on the basis of information supplied by him to his accountant. The description for items would be sourced in information or explanations given by him.

It is submitted that the Plaintiffs’ tax returns do not disclose income sufficient to meet the payments they assert they made to the Defendant. Joe was responsible for the finances of the Peak Hill Business whilst he was working there and his personal tax returns include details of the business. Merely examining Joe’s tax return for a period ended 30 June 2010 discloses income of $36,197.00 (Ex P3, Tab 1, page 12). The return also discloses the payment of $37,850 in salaries (Ex P3, Tab 1, page 12). Joe accepted those figures were correct (T347.40-347.42). It is clear that those salaries were paid to Joe’s father Mohammed and the family. Joe’s tax return for 30 June ended 2011 discloses income of $38,810, and wages of $37,848 totalling about $77,000. In the previous year the total profits available totalled only $70,000.

The Plaintiffs’ contract here, if it is truthful, provides for the payment of $13,000 a month over a 24 month period and would total approximately $321,000. But the income of the business over that period as disclosed was only approximately $147,000. Joe gave a number of what I regard to be both unsatisfactory and somewhat inconsistent answers when called upon to explain the discrepancies. Joe has not filed any amended tax returns and gave evidence that he had only asked his accountant to prepare amended returns the day before he was cross examined (T356.10-356.32).

So far as revenue and expenses are concerned given the totally unsatisfactory nature of Joe’s evidence for the years ended 2010 and 2011, I am simply left in the position where I am unable to accept his explanation that he could have had sufficient money in any event to pay $13,000 a month to the Defendants.

In addition to the reasons I have already stated, I do not regard the exercise book given its inadequacies and its apparent contrived nature as corroborating the assertion that $13,000 a month was paid, given the inability on the part of the Plaintiffs to actually prove that they had those monies available to make the payments.

There is however a contemporaneous document which I regard as very significant in this matter. It is a text message dated 22 May 2017 unsolicited from Joe to the Defendant (CB81395-41003).

The text goes on to state unequivocally that Peak Hill was not as fruitful and financially successful “as we had anticipated”.

A little further in the text there is an assertion that the Defendant had promised to give some funds to Joe and his father when the Defendant sold the business. It concludes with the following words:

This text is poignant for any number of obvious reasons. First and foremost it was unsolicited. Secondly it makes no assertion whatsoever consistent with the contract case the Plaintiffs bring in these proceedings. Thirdly the only promise, implicit though it might be, that the Defendant is guilty of reneging upon, was sharing some proceeds of the sale when the business was sold. The latter is simply not a key case the Plaintiffs seek to make in this Court.

Further, as is obvious, not only is there no hint of any complaint about any breach of contract which occurred years earlier (if it ever did), but there is no complaint about a failure to transfer the business of the land but rather an allegation of a failure to share in the proceeds of sale. This is a case so fundamentally different from that which the Plaintiffs now seek to make that it is a little hard to accept Joe could ever have believed the case pleaded in this Court was indeed the fact.

The Plaintiffs further seek to rely on the evidence of, in particular, Sahar and Hassna to corroborate their asserted arrangement with Hassan. Without making any final findings on the credibility of these witnesses, it seems to me that much of their evidence was based not on their own conversations with Hassan but rather what either Mohammed or Joe had conveyed to them. They both accepted that they had not made any contemporaneous note of any conversations. I do not grant their evidence any significant weight.

The Defendants submitted that it is highly probable that the Plaintiffs version of events, in this case, had somehow or other been contaminated, or that they had colluded with the two Plaintiffs in the other proceedings such that all of the evidence should be discredited for that reason. I am prepared to accept that each of these persons would have spoken to the other from time to time. They had clearly a number of common interests including unsurprisingly the respective pieces of litigation they were bringing. I am not however satisfied that apart from giving each other emotional and/or psychological support the allegation of collusion or concoction goes very far at all. There is no clear evidence which in my view would support such a finding and I would not make it.

More importantly I am not satisfied that the relevant conversations alleged by the Plaintiffs took place with the Defendant in 2009. There is not adequate support in my mind for such allegations. The whole essence of the arrangement it seems to me, particularly given the respective tax returns filed by the parties, was that they regarded the arrangement as one essentially of a lease. The frequent use in the Plaintiffs’ tax returns of the notion of rent or lease payments, together with my substantive scepticism about whether or not they could ever have afforded to pay $13,000 a month, highlight but two matters of substance that detracts from there being an oral agreement of the sort alleged in the first place. The text message in May 2017 is somewhat crucial in this regard. Unsolicited, Joe went to the trouble to expand upon his views of life and more importantly, the only breach of any arrangement that he adverted to was a failure on the part of the Defendant to share in and/or contribute to Joe and his father from the sale proceeds. This is so antithetical from the arrangement that was alleged that I am not satisfied that in addition that such a contract as pleaded and asserted ever existed.

The Defendants of course also rely upon tendency evidence to the effect that the Defendant showed a propensity to engage others to operate his grocery businesses permitting him to retain profits in return for the payment by them of a weekly sum and the covering of all operating expenses. In my view, given my findings on the Plaintiffs’ alleged contract, it is unnecessary for me to make any express findings in that regard. However I will say this, the Defendant struck me as a businessman used to dealing with this type of business and, if I may say so, striking what might on one view be regarded as particularly tough bargains. I do think the evidence called by the Defendants does support in broad terms the structure of his business activities which are quite contrary to the way in which the Plaintiffs put their case, because it would be rather exceptional for him to do so. One thing which is relatively clear is that he hardly knew Joe and Mohammed. They certainly were not family and he did not strike me as being altogether philanthropic in his business dealings.

In addition to contract the Plaintiffs in this case plead remedial and constructive trust, proprietary estoppel, misleading conduct and make a claim for restitution. I will deal with these causes of action in turn.

For a constructive trust to arise, in broad terms at least, the parties seeking relief, have to point to some joint relationship or endeavour where expenditure is shared for the common benefit, where the joint endeavour has ended without attributable blame, and that it would in essence be unconscionable for any party to obtain the benefit of any moneys attributed by a particular party. To a very large extent the claim is contingent unsurprisingly upon the very nature of the relationship forged between the parties. Here in my view the relationship was purely each party pursuing its own interests so as to permit each to make a return out of the business. The Plaintiffs were in difficult financial circumstances, Mohammed having failed in his earlier endeavours. The Plaintiffs agreed to pay rent to the Defendants as I find there was no agreement to transfer any property or any business, and the financial opportunity afforded the Plaintiffs was to retain such profits as they could by reason of their own industry. In my view therefore the principles governing constructive trust has no application.

For the proprietary estoppel claim to be made out the Plaintiff requires proof of the relevant representation, reliance upon that, and then conduct to the detriment of the Plaintiffs. In my view having found that there was no contractual promise of the kind asserted, and there being no difference in substance between that and the representation which it is alleged induced or cajoled the Plaintiffs, accordingly then the Plaintiffs case would fail at the first hurdle. In any event the Plaintiffs rely upon representations made to Mohammed, yet any apparent loss was actually suffered by Joe. In the circumstances it is impossible to comprehend how Joe has a case of proprietary estoppel at all.

Even however had the representations been made as alleged, there does not appear to me to be any evidence that Joe would have acted differently had he known the alleged assumption would not have been fulfilled, although Mohammed does purport to give evidence to that effect in his first affidavit at [47]. However that goes nowhere because I am not satisfied that such a representation that the transfer of business and sale was ever made. In any event Mohammed was quite frankly desperate, and in my view did take up the opportunity to pocket the profits which was a good deal better, as nothing else was on offer for him. It follows that I do not regard the Plaintiffs as having satisfied me that they acted therefore accordingly to their detriment.

For similar reasons, in my view the misleading conduct having not arisen, that cause of action then fails. As far as restitution is concerned in my view the Plaintiffs have not really elaborated upon their claim in any relevant sense at all and it does not fall to be considered in the light of the absence of that argument.

Lastly the Defendants rely upon Limitations defence. Proceedings were commenced on 23 August 2018. The events in question occurred in or about June 2009 which is about 9 years prior to the commencement of the proceedings. The Plaintiffs submit that the cause of action accrued upon Hassan’s refusal to transfer the business and the land in December 2012 after Mohammed requested that he do so. The Defendants, on the other hand, submit that, on the Plaintiffs’ case, the cause of action should accrue at the point in which Mohammed and Joe said that they had paid the total amount liable and the property would be transferred. On the Plaintiffs’ case, they had paid the total amount owing to Hassan by June 2012, more than 6 years prior to them commencing proceedings, and it is at this point, when transfer did not occur upon payment that the damage properly arose. The Defendants therefore rely upon Limitation defences pursuant to Section 141(a) of the Limitation Act. Alternatively laches in relation to the Plaintiffs’ equitable claims.

Although not necessary, given that I have already found no such contract as alleged by the Plaintiffs, in my view, the Plaintiffs would be time barred. The cause of action, would have relevantly arisen upon payment of the alleged amount owing. Indeed it is true that Hassan was in fact out of the country, but this would not have prevented some sort of communication to him about the failure to transfer. Even if it were the case that the Plaintiffs had not physically paid the money owing to Hassan by June 2015 and instead were waiting till his return to make a lump sum payment of the remaining money owing, this would then suggest that both their exercise book (Ex PA) as well as Mohammed’s contention that they paid Hassan ‘every month’ as contrived.

I finally note that the Peak Hill Plaintiffs are not entitled to any money from the rebates. There was no evidence adduced that the Hassan had, at any point, made a representation to them that they would be entitled to such rebates as were available and I am not convinced that the Plaintiffs have articulated any other basis for their claim to them.

In this case again the Plaintiff alleges an oral agreement made in 2011. The Defendants’ company, Fenikia, owns the grocery store in Hill Top and the land on which it operates. The Plaintiff, Imad, says the Defendant agreed to sell him the Hill Top store, and as a result he has an equitable or legal duty to do so. The Defendants maintain that there was only a rental agreement in place and there was no promise to transfer any property. Again counsel for the Defendants emphasised three key issues with the Plaintiffs’ case, being the onus, the implausibility and the lack of any contemporaneous documents.

The Defendants have brought a cross claim, the substance of which is to assert that Imad breached his agreement with Hassan by failing to pay for around $200,000 worth of stock which he ordered in Hassan’s name and by refusing to pay a weekly amount to occupy the store. The Defendants say those breaches entitled Hassan to terminate the agreement, which he has done, and to recover the money Hassan paid on behalf of Imad.

Although there was much sought to be made by analogy with the earlier agreements formed with Marwan and Mouhamed Haidar, the principal focus of course in any proceedings are on the particular facts of the case. Here again the Defendants submit that although there were multiple text messages sent dating back to 2015 and passing between Imad and Hassan, none referred to the sale of the business or the property in any way, and they don’t use any terminology suggestive of any agreement to that effect.

The Defendants of course submit that this is unsurprising. Imad was not involved in the negotiations for the purchase price requested by the owners. It was Hassan who made all relevant enquiries and negotiated the price for the business and the land. This is really not controversial.

The two versions of what occurred in relation to Imad working in the business are of course diametrically opposed in content. Hassan’s version is that in August 2011 he put a fairly broad proposition to Imad that he would pay rent, pay for the stock, pay all the expenses and that initially the arrangement was only to be for one year. Imad’s version has some similarity but he expressly asserts that Hassan said he would charge Imad $11,000 a month until June 2015, which included $2,000 for rent for the shop, and that he would pay all outgoings. Imad then alleged that Hassan promised to sell him the business and the property for a one off payment of $300,000.

In my view, such contemporaneous documents that exist and which go to the terms of the arrangement, on balance favour the Defendants.

Again, in this case there are alleged lease documents. On the first lease dated 25 August 2011, Imad and the named witness Nader Slaibi deny signing the lease. However there was an earlier lease in the name of Imad’s wife Nora (CB265). Nora denies signing the lease but the signature seems to me to be that of Imad’s on the lease. He had signed a number of documents on his wife’s behalf including her tax returns. The lease was also signed by Mouhamed Haidar. Mr Haidar explained that he signed the lease in English but that he sometimes signed in Arabic. Whether or not these leases are authentic in the end it seems to me is not determinative of the issue, although it does reflect adversely on Hassan and for that matter, on Imad.

The Plaintiffs rely on the evidence of Noura, who recalled a particular conversation with Hassan, to corroborate Imad’s evidence of the alleged agreement with Hassan. Noura recalls that Hassan made certain representations to her, while she was pregnant, that she was not to worry, the business would soon be hers. This conversation occurred in remarkably similar terms to another alleged exchange between Sassee and Hassan. I am altogether satisfied that these representations were made.

The problem in my view for the Plaintiffs, is not only the absence of contemporaneous materials, particularly the absence of any mention of a transaction of the sort alleged in any of the multiple text messages, but also in a number of witnesses, who I accept, who gave evidence consistent with Hassan’s version of events. In the latter category Ramsey Zreikat, Hassan’s accountant, who was told by Hassan that Hassan bought businesses and leased them to other people. Also Joseph Bechara a sales representative who sold chocolates to some of Hassan’s stores and gave evidence that Hassan told him in about 2011 that he had bought the Hill Top store and that Imad was there “on a sub-lease”.

Marwan asserted that Imad told him in about 2014 that he asked Hassan if he could buy the shop but was told Hassan did not want to sell. Marwan also said that Imad never told him that he was paying some $10,000 per month to Hassan.

Michael Saba said that around the time that Hassan bought the Hill Top store he told Mr Saba that he bought it for his children, it was run down and that he was going to improve it but that he was sub-leasing it to his cousin Imad.

Fouad Slaibi said that Hassan told him in 2011 that Imad was going to work in the store “under a sub-lease”. Much was made in cross examination by Counsel for the Plaintiffs about the respective witnesses understanding of sub-lease. It is true that most of the witnesses who used that terminology had some difficulty in giving a precise and/or accurate description of the term. None the less, I am not satisfied that, although the term may well have been suggested by the solicitor assisting in the preparation of the statement, these witnesses merely adopted it either without thinking not falsely, or dishonestly to support Hassan’s case. I am satisfied that leaving Hassan to one side each of those persons who used that terminology meant to infer that Imad was in fact (on their understanding) renting the premises and the business from Hassan.

Again Imad accepts that Hassan purchased equipment for him to use in the store and that Hassan did not ask Imad to reimburse him, nor did Imad offer to do so (CB5355, T47.10-47.27). It is clear to me that Hassan was the one who paid for many improvements to the store, actions that are entirely consistent with his belief that the property and business was entirely his.

The Defendants financial records including Fenikia’s ledgers, financial statements and tax returns all refer to the rent received on Hill Top (CB6/410, 625, 715, CB7975, 118 and CB8/1435). Fenikia’s financial statements record Hill Top and the goodwill as “non-current assets” (CB6/412, 628, 730; CB7/993, 1178; CB8/1458) and further Fenikia’s tax returns record detail of the Hill Top store in the rental property schedule including rental income received (CB6/422, 638, 718; CB7/978, 1161; CB8/1439).

The Plaintiffs initially pointed to a certain file note on Imad’s 2012 tax returns made by Mr Faeeh. The file note records that Imad had apparently told his accountant that he was making payments towards the purchase of a business. Notwithstanding that this note only refers to a business and not land, it is of limited utility given that it is clear that it did not in fact become more than a file note and translate into any tax returns. Presumably this is because there was no evidence upon which Imad could substantiate this assertion. I would also note, that Mr Faeeh did not impress me as a reliable or honest witness, this is probably why the file note was strikingly absent from the Plaintiffs’ final submissions.

Imad asserts that he has paid Hassan $9,000 a month in instalments and $2,000 in rent. There are no contemporaneous bank documents or any receipts to support this assertion. All of the payments were allegedly made in cash. The Defendant submits that an analysis of the financial and taxation records for the Hill Top store from 2012 to 2017 reveal insufficient profits to pay the amounts as alleged. The Plaintiff responded to these assertions by providing certain proposed amended tax returns as well as Z-reports namely print outs from the cash register, that were produced quite late in the case (CB6/606; CB7/969) Although, as was conceded by the Defendants (T967/16-27), these reports seem to suggest that the Plaintiffs did have sufficient moneys to pay the amounts they allege, they are totally inconsistent with the Plaintiffs’ tax returns.

I am not at all satisfied that these reports are sufficient to establish the Plaintiffs’ case. Leaving to one side, the reliability of these reports given they were produced so late, it is further clear that these readings were not translated into tax returns. There is no doubt that Imad along with others in this case have in some cases grossly understated on any view of it monies actually received from the various business ventures. Leaving aside the dishonesty associated with such activity it makes it in my view near to impossible actually to assess the reliability liability of allegations made by Imad in this case. I cannot therefore, reasonably rely upon the readings as an accurate indication of the money paid. In any case, what’s more all payments are still described as ‘rent’.

Nobody, including those assisting him in which I include his wife Noura, apart from their say so have any independent and/or objective basis for substantiating the large dollops of cash it is alleged they paid Hassan. It must be said however that there is some support for amounts of this order being paid to Hassan being mentioned in numerous of the text messages passing between Imad and Hassan. But the payments are described as rent and they do not in my view determine whether or not an oral contract of the sort pleaded in fact existed. They are at best equivocal. The mere mention of a sale or purchase of transfer of something would be of relevance, but no such references exist.

The Defendants in this case as with Peak Hill raises the implausibility of such an arrangement. As to the implausibility it is clear that Imad had to concede in cross examination (T22/30) that he had never worked in a grocery store and that he knew nothing about such a business. Further (T23/14) Imad accepted that he did not know how much Hassan was proposing to pay for the land and that he had not looked into how much the land was worth. There is much force in my view in the Defendants’ proposition that it would be entirely implausible for someone to simply agree to commit to such a transaction.

But there is a further complication and that is that Imad appeared to embellish the transaction even further when he gave his evidence (T24/13). He appeared to indicate that the transaction as he understood it was that he was promised the land and the business only when he had enough money, and that in effect Hassan had given him an indefinite period of time in which to put his arrangements in order. Unsurprisingly having boxed himself into a corner Imad had to concede (T25/18) that come June 2015, if he did not have enough money that contingency was simply not discussed. A little later in the transcript as is pointed out by the Defendant (T26/9-10), Imad recalled apparently that if 2015 were to arrive and he did not have enough money he would simply pay rent.

The Plaintiffs’ case in effect is that he was entirely trusting of Hassan and so it seems was prepared to accept any deal at all which Hassan put on the table. The Defendants’ case is that given Imad had very little by way of other options, simply moving in and running the business, paying overheads, rent and pocketing the profits is much more plausible commercially both for Hassan and indeed for Imad. I agree. I regard it as implausible that Imad and/or his wife both of whom impressed me as intelligent people have accepted unequivocally years in advance to make a purchase in circumstances such as these when no investigation had been undertaken by either of them in relation to the prices paid for the business or the land. I am simply not satisfied that the Plaintiffs would have accepted such an arrangement.

Diransson of course was only incorporated in 2014, which leads to another problem for the Plaintiffs in the way in which they have pleaded their case. It could not have been relevantly subjected to the promises at the time they were made.

When people have a grievance or believe that they have been robbed, as is the case here, of a serious and important business opportunity, it is common indeed in many instances expected that someone will complain to either the person to whom they allege the arrangement existed or to others. Relevantly speaking during many of the years when it would be understandable if he did, Imad failed to complain to Hassan or for that matter to anybody else. Although not determinative, neither Imad nor his wife Noura gave me the impression that they would hold back from complaining if they felt they had been wronged. The mere commencement of the litigation years after the event to some extent addresses that issue as a matter of practical reality, but it is the failure most relevantly in 2015 to complain when it must have been apparent to Imad and/or his wife that Hassan was not going to abide by the arrangement, assuming such an arrangement had been promised.

It is worth briefly noting, as I have said above, I do not find sufficient evidence that there was collusion between the various Plaintiffs with regards to their evidence.

As far as the text messages are concerned the Defendants’ rightly point to the fact that there is no reference to any purchase by Imad of the land or business. He makes no assertion to that effect at all. Further the description in numerous of the text messages to the $11,000 etc the Defendants submit does not help the Plaintiffs either because of the liberal use again of the term “rent”. Forcefully they submit that the payment of “rent” is completely inconsistent with Imad and Ibrahim’s case. Ibrahim says he paid no rent at all to Hassan. The only rent he says he paid was to the landlord. Imad’s case on the other hand is that he only paid $2,000 worth of rent a month, certainly not $10,000 or $11,000. The text messages therefore insofar as they refer to any payments at all only refer to the payment of rent and do not refer to either instalments or payments towards a purchase.

The Defendants concede that the amounts being discussed are larger than what Hassan accepts was paid. But the real question the Defendants pose perfectly legitimately is that the payments are in respect of what? It does seem entirely inconsistent with the Plaintiffs case to describe the payments in the text messages as rent. Imad nor his wife gave evidence that the term “rent” in their own minds was interchangeable with the purchase price or payment on behalf of the purchaser. I am satisfied that Imad understood precisely what the term “rent” meant and that he was in no way confused as to what the term conveyed.

I relevantly note, that the Plaintiffs drew attention to the various inconsistencies in the Defendants’ financial evidence. In particular, the Plaintiffs note that contrary to Hassan’s emphatic assertion that the $500 a week rent was sufficient to cover any amount owing on the Hill Top Land and that in fact he was making a profit on Hill Top. However his records actually disclose a loss. It seems not unlikely, as the Plaintiffs’ submit, that Hassan was understating the income he was receiving in order to minimise certain tax liabilities. However, it is not necessary to reach a final conclusion on this matter. It is not the Defendants that bear any onus, and I am not satisfied, despite certain inconsistencies in the Defendants’ case, that the Plaintiffs have established their case on the balance of probabilities.

I find myself with great respect in agreement with Ward CJ in Eq in Ardestani v Doss [2018] NSWSC 1084, when her Honour observed in the absence of any written record or any record establishing money being paid, cases such as these ultimately turn upon the evaluation of which of the competing accounts is more probable and hence credibility and inherent implausibility is critical.

Here in this case the total failure on the part of the Plaintiffs to use any terminology reminiscent of a purchase or an acquisition of either the business or the land together in their contemporaneous communications with the use of terminology such as rent in circumstances where it would be entirely antithetical to use such terminology, are very potent factors in my mind. This as I have discussed leads me to reject the Plaintiffs claim for breach of contract. I am simply not satisfied that the contract as pleaded by the Plaintiffs can be made out on the evidence. It follows no remedy would be available for breach of contract.

Likewise in my view a remedial constructive trust is not available. I am not satisfied that the relationship can properly be described as a joint endeavour or exercise, it certainly was not a partnership. It was simply a case of an arrangement whereby rent was paid, overheads were paid and profits were pocketed. I do not see that arrangement, although cryptically described here more elaborately, otherwise amounts to the sort of situation anticipated in Baumgartner.

So far as proprietary estoppel is concerned, I am not satisfied that the oral contract as I have said as pleaded was made, nor am I therefore satisfied that any assurance was given to the Plaintiffs that they would acquire the Hill Top store or the business associated with it. It follows that no reliance nor detriment could arise therefore in these circumstances.

In any event Imad gave no evidence that he would have acted differently had he known that the assumption which he says he made would not be fulfilled.

Here in addition the Defendants rely upon Imad’s behaviour in taking almost $200,000 stock from the Defendants on the eve of the litigation as amounting to unclean hands. I think it does, but it does not strictly arise here because I am not otherwise satisfied he, his company or his wife have a cause of action.

So far as misleading conduct is concerned there are a number of difficulties associated with that cause of action. First of all I am not satisfied that any representations were made in accordance with the oral contract as pleaded. Second in so far as Diransson seeks relief, there is no evidence any representation was made to it by reason of the fact it was only incorporated in 2014.

Further in my view the Plaintiffs are not entitled to restitution. They paid for a business opportunity and indeed as a result of the bargain struck they may have overpaid. But that was the opportunity they took up, they made profits and they failed in any event to disclose the full extent of the profits received and so to that extent it is very difficult to determine with any precision the benefits they achieved. But they did indeed achieve benefits. In my view their claim for restitution likewise fails.

In my view in any event Imad has effectively taken stock from Hassan in the amount of nearly $200,000. He admits that, under any contract, he is required to pay for the stock, and has thus far failed to do so. Counsel for the Plaintiffs accepted that if they failed to establish the facts as they alleged, they would indeed be liable under Hassan’s cross-claim (T895/15-20). In my view Hassan is entitled to repayment for this amount.

In so far as the Hill Top Plaintiffs have pleaded relief against forfeiture, I don’t think it is appropriate to grant such relief.

I finally note that the Hill Top Plaintiffs are not entitled to any money from the rebates. There was no evidence adduced that Hassan had, at any point, made a representation to them that they would be entitled to such rebates as were available and I am not convinced that the Plaintiffs have articulated any other basis for their claim to them.

The property in question here is owned by Fenikia which owns the business but leases the land from which the business is run.

The Defendants have brought a cross claim, the substance of which is similar to that case advanced against Imad, namely that Ibrahim breached his agreement with Hassan by failing to pay for $200,000 worth of stock which he ordered in Hassan’s name and by refusing to pay a weekly amount to occupy the store. The Defendants say those breaches entitle Hassan to terminate the agreement which has been done and they seek to recover moneys paid by Hassan on Ibrahim’s behalf.

Again the agreement here is said to be an oral agreement. The genesis of the agreement is Ibrahim’s father requesting Hassan to help Ibrahim out when Ibrahim moved to Australia from Lebanon in late 2014. However, it was Hassan who discovered the Oaks business was for sale. He visited the premises a few times and obtained information about earnings and decided to buy it. It is uncontroversial that Ibrahim did not visit the Oaks store at least in company with Hassan, nor did he make inquiries into the price of the leasehold or the business.

The Plaintiff alleges that in March or April 2015 Hassan met with Ibrahim at Imad’s home, at which Hassan proposed that he would acquire a business that was trading as the Oaks Friendly Grocer. They further allege Ibrahim would work in the business and pay rent to the landlord and upon Hassan returning from Lebanon they would discuss how Ibrahim would pay for the business which he would in due course own.

Ibrahim says that he accepted that proposal and in due course entered into possession of the business. The Plaintiff of course further alleges that in September 2015 an arrangement was consummated for the purposes of acquiring the business.

Hassan’s version of course is very different. He asserts that in March 2015 he asked Ibrahim whether he would be prepared to run the business for him and pay him rent plus any outgoings, and Hassan would buy the business and the stock. Hassan told Ibrahim he could undertake such an arrangement for about a year with each side being able to terminate on three months notice. I consider that a more likely version of events.

The Defendant adopted a similar submission with relation to Ibrahim’s case. The Defendant points out that the agreement said to have been consummated here, similar to the other proceedings, is that Hassan having spent his own time and money to locate a business and negotiate its acquisition and then buy it with his own money, only to immediately sell it for the same price some little time later to a person he barely knew, is improbable. The Defendant with some justification points to the uncommercial nature of such a transaction whereby Hassan would in effect be agreeing in advance to receive no return on his money in circumstances where, relatively speaking, Ibrahim was a stranger. It further seems highly improbable that Hassan would allow Ibrahim to run the shop for several months and demand no payment at all between the months of May and September 2015.

Again there are a number of witnesses who have given evidence supporting the Defendants’ version of events. First Ramsay Zreikat, Hassan’s accountant gave evidence that Hassan told him in effect about his business model including the Oaks Store. Ramsay says that Hassan told him that he bought businesses to lease them out to people to run them for him. When he prepared the Defendants’ tax returns he included two years worth of rental income for the Oaks Store for the financial year 2017.

Fouad Slaibi said that Hassan told him that in about 2015 he had bought a shop in the Oaks and he was going to get Imad’s brother to work there on a similar deal to that which he had arrived at with Imad namely the payment of $500 a week. In addition Michael Saba gave evidence that Hassan told him he bought the Oaks store and that he was going to sub lease it to Imad’s brother.

The Defendant points to the implausibility of certain evidence given by Ibrahim to the effect that he had no understanding as to how long he could stay in the property (T198/32 and T199/5).

The Defendant again makes the point that there is not one document referring to the so called sale of the business, and that there are no bank transfers or receipts establishing the amount paid, and the tax returns and financial statements are it is submitted inconsistent with Ibrahim‘s case.

Ibrahim’s case in summary is that he was obliged to pay Hassan $290,000 and then obliged to pay $1,000 per week until he paid $150,000 worth of stock to Hassan. Ibrahim accepts that he has not paid $150,000 stock and that he simply stopped paying $1,000 a week to Hassan. The Defendant submits with some considerable force that Ibrahim on his case and on his own admission is in breach of the agreement and that the time for Hassan to perform, even if the contract is found to have existed, has not yet arisen. Further Ibrahim like his brother bought $200,000 of goods on Hassan’s credit and has refused to pay. Hence Hassan has terminated legitimately, it is submitted, Ibrahim’s contract.

Of course it is submitted that by September 2015 Hassan had told Imad that he was not transferring the business and land across to him. Therefore by October 2015 both brothers knew that Hassan had allegedly broken a fundamental part of the agreement with Imad. The Defendants submit this adds to the implausibility that nonetheless Ibrahim had reached some arrangement with Hassan based apparently on some element of trust.

The Defendants submit that from any number of vantage points the arrangement asserted by Ibrahim is entirely uncommercial. I agree. It really makes no sense for Hassan to permit Ibrahim over an indefinite period to occupy premises on the promise that at some point in the distant future there would be a transfer of the business to Ibrahim. The arrangement was entirely uncertain as to time. Further the evidence rather supports the fact that Ibrahim did not enquire about the viability of the Oaks store before purchase and had no role in negotiating the purchase price. It seems to me he did not know what the purchase price of the business was, and did not ask to see the contract under which Hassan bought the business. It seems improbable in my view for someone not to show any interest whatsoever in these matters and yet commit to purchasing such a business.

Further Ibrahim clearly appreciated that Hassan did not own the land upon which the Oaks business was being conducted and could not have known how long he could stay on the land. In addition Hassan asserts credibly in my view that in 2017 he bought new flooring for the Oaks store and helped Ibrahim to install it. Ibrahim did not repay Hassan for the associated costs.

It is true as the Defendant forcefully points out that the absence of contemporaneous materials concerning the arrangement and/or the terms of it is quite significant. It is not that Ibrahim lacked opportunity to confirm the arrangement. The absence of a single text message or an email in relation to that exchange is rather odd.

I am satisfied that there was no such arrangement as alleged by Ibrahim. I am satisfied that there was an arrangement by which Ibrahim would pay rent and that is entirely consistent in my view with such contemporaneous documents that do exist.

In giving his evidence as the Defendants correctly point out, Ibrahim’s oral evidence exposed a degree of unreliability on his part. He conceded for example that he was mistaken in both his affidavit and oral evidence about the purchase price (T191.44-192.08). Equally he had difficulty in cross examination in recalling his apparent obligation to pay Hassan $2,200 for the first nine days that he occupied the business (T200.18-201.22). Ibrahim further sought to rely on the corroborating evidence of his wife, Sassee, who alleged that Hassan made certain representations to her, while she was pregnant, that the business would eventually be hers. Again, as I have already noted, this conversation occurred in remarkably the same terms as the alleged exchange between Noura and Hassan. I am reluctant to award this evidence any significant weight.

The assertion that Ibrahim made payments to Hassan pursuant to the alleged agreement runs contrary to his own financial documents. All of Ibrahim’s tax returns and financial statements for the period 2015 to 2017 describe payments for the Oaks Business as “Rent” not instalments payments or a purchase price.

In Exhibit D3, page 1 he records $60,386 “in rent expenses”. The Defendant points out that the rent payable for the land was $3,410 per month or $37,200 per year. The remainder, namely $23,636 reflects additional payments of more than $450 per week. It is submitted with some force that that is consistent with Ibrahim having told his accountant that his liability to Hassan was to pay about $5,000 in “rent” per week. That was for the financial year 2016. For the financial year 2017 (Ex D3, page 8) Ibrahim records $61,363 in “rent expenses”. Again deducting rent payable to the landlord that reflects payments of about $500 per week to Hassan.

The Defendant also submits that the tax returns disclose a profit insufficient to meet Ibrahim’s alleged payments to Hassan under the alleged contract of $120,000 per annum. The Plaintiff responded to these assertions by providing certain proposed amended tax returns as well as Z-reports namely print outs from the cash register, that were produced quite late in the case CB6/606/CB7/969). Again, as described above, even accepting that indeed the Z reports show an income sufficient to pay the amounts alleged, this is insufficient in and of itself to establish the contracts as alleged.

I am also satisfied that Ibrahim had manipulated his financial records. Ibrahim accepted as much in evidence when he acknowledged that he and his brother Imad had visited their accountant, Mr Mattouk so as to “fix up our documents”. (T219.11-219.24) The effect of the proposed changes to the financial year 2016 was to increase Ibrahim’s expenses by about $90,000 from his previous 2016 return to keep profits at the same namely, $32,403. The same exercise was undertaken in relation to the 2017 financial year by increasing the rent, increasing the income but keeping the profits the same. No amended tax returns have yet been filed. I am satisfied that these documents have been created to bolster Ibrahim’s evidence in these proceedings whilst avoiding any additional taxation liabilities. I cannot accept they are legitimate.

A fundamental problem even with the proposed amended financial records is that there is no reference in there to the payment of instalments or the acquisition of a business but rather simply the payment of rent. So again these documents recently created are entirely antithetical to the Plaintiff’s case.

It seems to me that the contract claim must be rejected, most importantly because I am simply not satisfied there was an agreement made as alleged by the Plaintiff. In any event he has terminated the contract by his own conduct and it seems to me specific performance could not be granted even if it satisfied such a contract existed. No question therefore of any damages arises.

For similar reasons as previously discussed I do not think a remedial constructive trust arises here. Further proprietary estoppel does not arise largely because I do not accept that Hassan made the representations or gave any relevant assurance to Ibrahim that he would acquire the business. In addition a claim for misleading conduct in my view cannot arise. Further I do not think this is a claim for restitution.

However in my view Ibrahim has effectively taken stock from Hassan contrary to their agreement. Ibrahim admits that in March 2018 he ordered $237,574.28 worth of stock on Oaks account which was in Hassan and Youmna’s name, and strongly suggested that he had done so in order to fund this litigation (T232/30-35). He admits under the contract he was required to pay for it and has failed to do so (CB1,Tab 7 at [8(f)], [10(g)] and [11]). Counsel for the Plaintiff accepted that if they failed to establish the facts as they alleged, they would indeed be liable under Hassan’s cross-claim (T895/15-20). In addition Ibrahim has failed to pay Hassan the $500 weekly fee. In my view, Hassan is entitled to repayment for this amount.

In so far as the Oaks Plaintiff has pleaded relief against forfeiture, I don’t think it is appropriate to grant such relief.

I finally note that the Oaks Plaintiff is not entitled to any money from the rebates. There was no evidence adduced that Hassan had, at any point, made a representation to Ibrahim that they would be entitled to such rebates as were available and I am not convinced that the plaintiff has articulated any other basis for his claim to them.

Upon careful analysis, and after some hesitation I am not satisfied that each of the Plaintiffs has made out their respective cases on the facts. It follows none has been successful and there should be judgment for the Defendants in each case. There should be judgment for the Defendants on their respective cross claims. I will hear the parties on the form of the appropriate orders, including any orders for possession in relation to the Hill Top and Oaks Stores, and on costs if that cannot be agreed.