Tahir Mahmood v Gursel Ozme

1. [1]

   The First Plaintiff, Mr Tahir Mahmood, and the First Defendant, Mr Gursel Ozme, were previously involved in two corporate ventures which they established for the purpose of carrying on a dairy manufacturing business, being MIS Dairy Foods Pty Ltd and Dalat Enterprises Pty Ltd. This proceeding arises out of the breakdown of their business relationship.

2. [2]

   The proceeding was commenced in October 2023, by a Writ and Statement of Claim filed in the Supreme Court of Victoria.

3. [3]

   The Second Plaintiff, Dalat Enterprises, pleaded that Mr Ozme had breached various statutory and fiduciary duties that he owed as a director of Dalat Enterprises, and that the Fourth Defendant, Donny Dairy Pty Ltd, was liable for having knowingly assisted in those breaches. On 19 August 2025, Peden J made orders dismissing Dalat Enterprises’ claims. (No claims remain against Donny Dairy.)

4. [4]

   The Third Plaintiff was The Universe Foods Pty Ltd, which was established by Mr Mahmood. This company has now been deregistered. No application has been made to re-register this entity. It follows that it is unnecessary to determine Universe Foods’ claims.

5. [5]

   Mr Mahmood’s claims concern three alleged sets of representations made by Mr Ozme.

6. [6]

   The first set of representations are described in the Statement of Claim as the Sydney Lease Representations. These representations are alleged to have been made by Mr Ozme in around June 2014. In short, Mr Ozme is alleged to have promised Mr Mahmood that, if Mr Mahmood entered into a lease for a commercial premises in Sydney, Mr Ozme or MIS Dairy would meet 45% of the costs of renting those premises. Mr Mahmood claimed that, in reliance on the Sydney Lease Representations, he caused Universe Foods to rent premises at 4/79 Station St, Seven Hills, New South Wales (the Seven Hills Property), and permitted MIS Dairy to use those premises for the storage of dairy products, but that he has received no contribution to the rent or outgoings.

7. [7]

   The second set of representations are described in the Statement of Claim as the Craigieburn Purchase Representations. These representations are alleged to have been made by Mr Ozme in around May 2018. In particular, Mr Ozme is alleged to have represented to Mr Mahmood that he and his wife, Dr Esin Ozme, had located a commercial premises at 68 Rushford Road, Craigieburn, Victoria (Craigieburn Property), which they proposed purchasing in the name of Dalat Enterprises for the sum of $1.5m and that, if Mr Mahmood contributed $255,000 towards the purchase price, then he would have an interest in the Craigieburn Property. Mr Mahmood pleaded that, in reliance on the Craigieburn Purchase Representations, he paid the sum of $255,000 to Mr Ozme for the purchase of the Craigieburn Property, but that this property was purchased in the name of the Third Defendant, Ankara Property Pty Ltd, which is wholly owned and controlled by Dr Ozme.

8. [8]

   The third set of representations are described in the Statement of Claim as the Fit-Out Representations, and are alleged to have been made by Mr Ozme in around August 2018. In particular, Mr Ozme is alleged to have represented that Mr Mahmood was required to contribute to the fit-out costs for the Craigieburn Property and that, by reason of his ongoing contributions, he would have an interest in the Craigieburn Property. Mr Mahmood pleaded that, in reliance on the Fit-Out Representations, he paid a total amount of $380,000 to Mr Ozme for the costs of the fit-out and for machinery and equipment for the Craigieburn Property.

9. [9]

   Mr Mahmood claimed that Mr Ozme had, by making these representations, engaged in misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law (ACL), and that Dr Ozme and Ankara were involved in those contraventions. Mr Mahmood also pleaded claims for negligent misstatement against Mr Ozme. Mr Mahmood sought damages against Mr Ozme and Dr Ozme, and sought a declaration that Ankara holds its interest in the Craigieburn Property on resulting trust for him to the extent of his contributions to the purchase and fit-out of that property (totalling $635,000).

10. [10]

    It should be noted that Mr Mahmood did not specify the place where these alleged conversations occurred. It is therefore not clear whether the ACL applied by reason of the Fair Trading Act 1987 (NSW), ss 27-29 (ACL(NSW)), or by reason of the Australian Consumer Law and Fair Trading Act 2012 (Vic), ss 7-9 (ACL(Vic)). The Statement of Claim simply referred to the Australian Consumer Law, without specifying whether the ACL(NSW) or the ACL(Vic) was relied upon. I have proceeded on the basis that the ACL(NSW) applies. However, even if the ACL(Vic) applies, the relevant provisions of the ACL(NSW) and the ACL(Vic) are the same, and this Court would have jurisdiction in respect of claims made under the ACL(Vic): see Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), s 4(3) (and definition of a “State matter” in s 3).

11. [11]

    Before turning to deal with the claims made by Mr Mahmood in respect of each set of representations, I will first address the adjournment application made by Mr Mahmood at the commencement of the hearing, which I refused; make some preliminary comments on the issue of credit; and outline the relevant factual background.

Adjournment Application

1. [12]

   On 10 March 2026, the day before the hearing of this matter was scheduled to commence, my Chambers received an email from Mr Mahmood, seeking a two-month adjournment of the hearing on the basis that he had engaged new legal representation, but that his new lawyer was unable to appear for him at the hearing as they were “in hospital having an operation”. My chambers sent an email to Mr Mahmood stating that any adjournment application would need to be made to the Court on the following day, and that, should any such adjournment application be unsuccessful, the hearing would proceed.

2. [13]

   At the commencement of the hearing on 11 March 2026, Mr Mahmood made an oral application to adjourn the hearing. The basis for the adjournment application was stated to be as follows:

3. [14]

   Mr Mahmood did not provide any affidavit or documentary evidence in support of his adjournment application. In particular, he did not provide any documentary evidence that the person who was said to be his new lawyer (Mr Tim Orlizki) had in fact been retained; or any evidence as to when he first made enquiries as to whether Mr Orlizki was available for the hearing (noting that the matter was listed for hearing in November 2025); or any evidence as to whether he was informed by Mr Orlizki, at the time of first approaching him, that he would not be available for the hearing dates; or any evidence as to why, if Mr Mahmood was so informed by Mr Orlizki, he did not make any enquiries regarding the availability of any other solicitor.

4. [15]

   In submissions, Mr Mahmood stated that he had first spoken to Mr Orlizki “about 10 days ago” (that is, around 1 March 2026), and that: “He said I’m not available for next week [for the hearing on 10-11 March 2026] because he’s going for [an] operation.”

5. [16]

   The Defendants opposed the adjournment application and relied on two affidavits of their solicitor, Mr Stefano Calabretta, in opposition to the application. The first set out the procedural history of the matter up to around July 2025, and the second addressed the subsequent procedural history, as well as communications with Mr Mahmood since orders were made on 7 November 2025 setting the matter down for hearing.

6. [17]

   In particular, Mr Calabretta gave evidence in his second affidavit of a telephone call having been made by Mr Orlizki of Kent Attorneys to the Defendants’ solicitors on 3 March 2026, in which:

   1. (1)

      Mr Orlizki stated that Mr Mahmood had contacted him seeking legal representation, but that Mr Mahmood had not provided him with any pleadings, evidence or other documents;

   2. (2)

      Mr Orlizki asked as to the nature of the Court listing on 11 and 12 March 2026;

   3. (3)

      Ms Bella Saadie of the Defendants’ solicitors told Mr Orlizki that the listing on 11 and 12 March 2026 was for final hearing of the matter, which had been set down in November 2025; and

   4. (4)

      Mr Orlizki responded in words to the effect that the Defendants’ solicitors would not likely hear from him again.

7. [18]

   Mr Orlizki did not subsequently file a notice of appearance in this matter and it appears, having regard to the evidence set out above, that he did not have any intention, having ascertained that the matter was set down for final hearing on 10 March 2026, of accepting any retainer in respect of this matter.

8. [19]

   Mr Mahmood repeatedly stated at the hearing on 11 March 2026 that he did not have funds to afford legal representation. There is no reason to conclude that, if an adjournment were to be granted for a period of six weeks or more, this position would change. There was an assertion by Mr Mahmood, in a draft email to the Court (that was forwarded to the Defendants’ solicitors on 6 March 2026), that his “legal representative” – apparently a reference to Mr Orlizki – had “advised that additional funds are required to properly prepare and proceed with my case” and that “[t]hese funds are expected to be made available following the settlement of my property in Pakistan, which is scheduled to take place in mid-April 2026”.

9. [20]

   Mr Mahmood did not lead any evidence regarding any such property sale, including as to the sale price or settlement date. Nor did he make any reference to any such sale in his submissions on the adjournment application.

10. [21]

    Having regard to the matters set out above, I was not satisfied that, in the event that a six-week adjournment was granted, Mr Mahmood’s position would be materially different, since it was not apparent that Mr Mahmood would have the necessary funds to retain Mr Orlizki (or any other person) to represent him at the adjourned hearing.

11. [22]

    Mr Mahmood suggested at various points in his submissions that if he had legal representation, he might seek to put on further evidence. However, there was no evidence, in support of the adjournment application, as to what this further evidence might be. Further, Mr Mahmood previously had legal representation at various times in the proceeding (up until September 2025), and his pleading and affidavits were prepared with the assistance of his legal advisers, in a context where orders were made that no further evidence was to be relied on without the leave of the Court. In those circumstances, it can be inferred that his lawyers made enquiries of him regarding his recollection of events and regarding documentary evidence relevant to his claims. (Mr Mahmood subsequently confirmed in cross-examination that, for the purposes of preparing his affidavit, he gave his lawyers the “full story”, “providing all documents, and yeah, all the evidences”.) In light of those matters, there is no basis to conclude that an adjournment would result in any further evidence being adduced by Mr Mahmood that is material to his claims.

12. [23]

    Further, in considering Mr Mahmood’s adjournment application, I had regard to the following matters:

    1. (1)

       the proceeding was commenced two-and-a-half years ago, and was transferred to this Court two years ago;

    2. (2)

       since the proceeding was transferred to this Court, there have been multiple directions hearings, and multiple extensions of the dates for evidence;

    3. (3)

       on a number of occasions, directions hearings were stood over on the basis that Mr Mahmood was going to obtain legal representation, or Mr Mahmood had recently obtained legal representation;

    4. (4)

       on 7 November 2025, the matter was listed for hearing. Mr Mahmood was unrepresented at that time (his previous solicitor having gone off the record around six weeks earlier). Mr Mahmood did not oppose the listing of the matter on the basis that he needed time to find legal representation for the hearing. Instead, Mr Mahmood complained to the Defendants’ solicitors that a hearing in March 2026 was too far in the future, indicating that he would have preferred the matter to be dealt with sooner;

    5. (5)

       there was no evidence that Mr Mahmood had taken any steps to obtain legal representation for the hearing in the four months between the date that it was set down for hearing and the beginning of March 2026 (when he said he first contacted Mr Orlizki), nor was there any explanation for his failure to do so;

    6. (6)

       on 13 February 2026, the Defendants’ solicitors communicated with Mr Mahmood about the preparation of the Court Book for hearing, and were informed that his “[l]awyer will be presenting all documents In court before 4th of march 2026”. (The Defendants’ solicitors asked for the contact details for Mr Mahmood’s lawyer, but did not receive a response. I infer that he had not, at this time, made any arrangement, or taken steps to arrange, for any solicitor to represent him at the hearing); and

    7. (7)

       on 17 February 2026, the Defendants’ solicitors told Mr Mahmood that he must be available for cross-examination on 11 and 12 March 2026, and he responded: “Diffinatly [Definitely] I will be in court that date”.

13. [24]

    Having regard to that procedural history, and the lack of any basis to conclude that Mr Mahmood’s position will materially change in the event that an adjournment is granted, I concluded that there was a real prospect that an adjournment would simply lead to further delay and increased costs. Such an outcome would cause significant prejudice to the Defendants. I do not consider that any such prejudice would be ameliorated by an order that Mr Mahmood pay the Defendants’ costs thrown away by reason of an adjournment. That is not only because there is no basis to conclude that Mr Mahmood would be able to meet any such costs order. It is also because the First and Second Defendants are individuals, who have been defending Mr Mahmood’s claims for some two-and-a-half years, at considerable cost (and no doubt considerable stress), who have taken all steps necessary to prepare the matter for hearing on 11-12 March 2026, and who are entitled to have the Court finally determine the claims against them.

14. [25]

    Further, the proposed adjournment would cause inconvenience to the Court and to other parties whose matters are awaiting a hearing date, as the two days which had been allocated to this matter for over four months would be lost, and it would be necessary to find further dates in the future.

15. [26]

    For those reasons, I determined that the proposed adjournment would not advance, but would instead frustrate, the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in this proceeding, and accordingly I refused Mr Mahmood’s application.

Witnesses – Credit

1. [27]

   Each of Mr Mahmood and Mr Ozme gave evidence and was cross-examined.

2. [28]

   The Defendants’ counsel did not submit that the Court should find that Mr Mahmood was dishonest, or that any aspect of his evidence was knowingly false.

3. [29]

   Instead, the Defendants submitted that Mr Mahmood’s evidence regarding conversations and events that are alleged to have occurred many years ago was unreliable and should be assessed in the light of the contemporaneous documentary record, objectively established facts and the apparent logic of events (see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31] per Gleeson CJ, Gummow and Kirby JJ).

4. [30]

   I accept that this is particularly the case in circumstances where, as here, the evidence is being given by a party to the proceedings, who has an evident interest in the outcome, and whose recollections may be affected by his sense of grievance and anger at the way in which he believes he has been treated by the opposing party (Watson v Foxman (1995) 49 NSWLR 315 at 319, McLelland CJ in Eq).

5. [31]

   Mr Mahmood, in cross-examination of Mr Ozme and in his submissions, accused Mr Ozme of giving dishonest evidence. These challenges to Mr Ozme’s evidence were not based on any material that was inconsistent with his evidence, but instead generally consisted of a bare statement that Mr Ozme was giving false evidence. I do not make any such finding. Mr Ozme was subjected to an extended and at times vigorous cross-examination by Mr Mahmood. I was satisfied, from observing his evidence (which was given through an interpreter), that he was endeavouring to understand, and to respond to, the questions that were put to him in a direct and forthright manner – although this was not always possible by reason of the manner in which those questions were framed. At times Mr Ozme showed signs of frustration and anger, but that was understandable in the face of some hostile questioning.

6. [32]

   While being satisfied that Mr Ozme sought to give honest evidence, I have, as with Mr Mahmood’s evidence, treated Mr Ozme’s evidence regarding conversations and events that occurred many years ago with some care, and have assessed such material in the light of the objective evidence before the Court.

7. [33]

   The Defendants also relied on an affidavit of Dr Ozme. Mr Mahmood confirmed that he did not wish to cross-examine her. Further, Mr Mahmood did not make any submissions to the effect that her evidence should not be accepted.

Factual background

1. [34]

   Mr Mahmood migrated to Australia from Pakistan in 1987, and began working in the food industry.

2. [35]

   In around 1989, he was introduced to Mr Ozme and Dr Ozme through a mutual associate who was working in the food industry. Mr Ozme and Dr Ozme had migrated to Australia from Turkey in around 1980.

3. [36]

   Dr Ozme is a General Practitioner, who runs two medical practices in Sydney. Mr Mahmood has had few direct dealings with her.

4. [37]

   From 2009 to 2011, Mr Mahmood and Mr Ozme worked together at EGE Fine Foods Australia Pty Ltd in Blacktown, New South Wales. Mr Mahmood was employed as an export and import manager and quarantine officer, and Mr Ozme was managing director of EGE.

5. [38]

   In around 2014, Mr Mahmood, Mr Ozme and a third person, Mr Murat Siner, agreed to enter into a commercial venture to establish and operate a dairy manufacturing business. There are no claims regarding this venture, and therefore it is unnecessary to go into the terms of this arrangement.

6. [39]

   Mr Mahmood alleges that the Sydney Lease Representations were made in around June 2014, and that he caused Universe Foods to enter into a lease of the Seven Hills Property in reliance on these representations. Mr Ozme denies having made any such representations. I address this claim below.

7. [40]

   On 3 March 2015, MIS Dairy was incorporated for the purposes of the proposed dairy manufacturing venture. The shares in this company were held, as to one-third each, by Mr Mahmood, Dr Ozme and an entity associated with Mr Siner. Each of Mr Mahmood, Mr Ozme and Mr Siner was a director of MIS Dairy.

8. [41]

   On 1 April 2015, MIS Dairy entered into a lease for factory premises located at 915 Donnybrook Road, Donnybrook, Victoria (Donnybrook Property), with each of Mr Mahmood, Mr Ozme and Mr Siner being a guarantor. The term of the lease was for three years, ending 31 March 2018.

9. [42]

   The Donnybrook Property required restoration and new equipment before operations could begin. Mr Ozme wrote 10 cheques totalling $122,500 between 25 February 2015 and 28 April 2015, on the basis that these were for the startup costs of the business. The cheque book was linked to an account with the National Australia Bank (NAB) which was held by Dr Ozme’s medical company, and was controlled by her (Medical Company Account). The cheque butts were exhibited to Mr Ozme’s affidavit. Mr Ozme provided these cheques to Mr Siner, but does not believe that any of them was used by Mr Siner for the purposes of MIS Dairy.

10. [43]

    Mr Siner departed the business in May 2015, and Mr Mahmood and Mr Ozme did not subsequently have any contact with him.

11. [44]

    MIS Dairy was deregistered on 30 July 2017.

12. [45]

    Following the departure of Mr Siner from the business, Mr Ozme and Mr Mahmood decided to set up a new corporate entity for the purpose of operating the dairy manufacturing business.

13. [46]

    On 30 June 2015, Dalat Enterprises was registered. There were 1,000 shares issued in this entity. Each of Mr Mahmood and Dr Ozme held 450 shares, with the remaining 100 shares being jointly held by Mr Ross Freeman and Ms Vicki Freeman. In the course of his cross-examination, Mr Ozme described Mr Freeman as “the biggest feta cheese producer in Australia”. It appears that Mr Freeman had only limited involvement with the business of Dalat Enterprises.

14. [47]

    Each of Mr Mahmood and Mr Ozme was a director of Dalat Enterprises. (Dr Ozme replaced Mr Ozme as a director for a brief period between 23 October 2015 and 5 January 2016, following which he was reappointed.)

15. [48]

    Between 2015 to 2018, Dalat Enterprises continued to operate from the Donnybrook Property.

16. [49]

    As noted above, the term of the lease of the Donnybrook Property ended on 31 March 2018. Mr Mahmood and Mr Ozme decided not to renew the lease, and as a result it was necessary to find new premises for Dalat Enterprises’ business.

17. [50]

    Mr Mahmood alleges that the Craigieburn Purchase Representations were made by Mr Ozme in around May 2018, and that he contributed $255,000 to the purchase of the Craigieburn Property in reliance on those representations. The Defendants deny any such representations, and deny that Mr Mahmood made any contribution to the purchase of that property. I deal with this issue below.

18. [51]

    On 7 August 2018, Ankara purchased the Craigieburn Property for $860,000. Ankara obtained a loan from NAB to finance this purchase. The Craigieburn Property continues to be owned by Ankara, and is subject to a mortgage to NAB.

19. [52]

    Mr Mahmood alleges that the Fit-Out Representations were made by Mr Ozme in around August 2018, and that in August and September 2018 he paid Mr Ozme a total of $380,000 towards the fit-out of the Craigieburn Property in reliance on those representations. The Defendants deny these representations and deny that Mr Mahmood made any contribution to the costs of the fit-out of, and equipment for, the Craigieburn Property. I deal with this issue below.

20. [53]

    Following the completion of fit-out works, Dalat Enterprises commenced conducting its business from the Craigieburn Property.

21. [54]

    The business relationship between Mr Mahmood and Mr Ozme appears to have broken down around the middle of 2020. They have not had any professional or personal dealings since that time. It is unnecessary to address the circumstances in which their relationship came to an end, as there is no claim in this proceeding relating to the termination of their business venture.

22. [55]

    On 9 July 2020, Mr Ozme incorporated Donny Dairy. He is the sole shareholder and director of this entity. (As noted above, there are no longer any claims against Donny Dairy in this proceeding.)

23. [56]

    Mr Mahmood plainly feels angry and upset that he invested significant time and effort, over the course of almost six years, in two business ventures with Mr Ozme, which have now come to an end, without Mr Mahmood having anything to show for his efforts, while Mr Ozme now runs another business in the same industry. Mr Mahmood said that these events had taken a significant toll on him financially and personally.

24. [57]

    However, Mr Mahmood does not, in this proceeding, plead any cause of action in the nature of oppression against Mr Ozme, nor does he bring any derivative claim for breach of director’s duties against Mr Ozme. Instead, he has pleaded claims against Mr Ozme, Dr Ozme and Ankara in relation to three specific sets of representations. These reasons for judgment deal only with those claims, and do not address the wider circumstances of the relationship between Mr Mahmood and Mr Ozme, except to the extent necessary to resolve those claims.

25. [58]

    This proceeding was commenced on 23 October 2023.

26. [59]

    Dalat Enterprises was deregistered on 25 May 2025, and the claims brought in the name of Dalat Enterprises were dismissed on 19 August 2025.

27. [60]

    Universe Foods was deregistered on 6 July 2025.

Relevant Principles – Claims founded on oral statements

1. [61]

   Mr Mahmood relied upon spoken words as the foundation for each of his claims in this proceeding.

2. [62]

   In order for his claims to succeed, it must be proved, to the reasonable satisfaction of the Court, that the relevant statements were made by Mr Ozme. This means that the Court “must feel an actual persuasion” as to the existence or occurrence of those statements: John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [94].

3. [63]

   In that case, Hammerschlag J (as his Honour then was) made the following observations.

   1. (1)

      “Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved”.

   2. (2)

      “The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court”.

   3. (3)

      “Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.

   4. (4)

      “In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof”.

4. [64]

   These observations were recently quoted, and applied, by the Court of Appeal in Turner v Richards [2025] NSWCA 83 at [59]ff (per Payne JA, with whom Leeming and Adamson JJA agreed).

Sydney Lease Representations

1. [65]

   Mr Mahmood pleads that Mr Ozme made the Sydney Lease Representations to him in around June 2014, or alternatively, that Mr Mahmood and Mr Ozme entered into an agreement on the terms of the Sydney Lease Representations in around June 2014 (described as the “Sydney Lease Agreement”). In particular, Mr Mahmood pleads as follows:

2. [66]

   In his first affidavit of 17 May 2024, Mr Mahmood deposed as follows:

3. [67]

   In his second affidavit of 20 December 2024, Mr Mahmood returned to this issue and gave the following evidence:

4. [68]

   Mr Ozme denied having had any such conversation with Mr Mahmood, and denied having reached any such agreement.

5. [69]

   Although the Statement of Claim uses the language of representations, it is apparent from the passages of Mr Mahmood’s two affidavits that are quoted above that the substance of his claim is that an agreement was reached regarding the sharing of the rent and outgoings of the lease of the Seven Hills Property.

6. [70]

   In his first affidavit, Mr Mahmood deposes that an “agreement” was reached (without giving any evidence of the statements by which this agreement was formed); and in his second affidavit, he uses the term “the Sydney Lease Representations” to refer to his own “demand” that a contribution be made to the costs of the lease, with which Mr Ozme is said to have “agreed”.

7. [71]

   There is no documentary reference to any such agreement prior to 1 September 2020 (being more than six years after the alleged conversation) when Mr Mahmood signed a letter, as director of Universe Foods, demanding payment of an amount of $231,564.25 plus interest. In this letter, addressed to Mr Ozme and Dr Ozme, Mr Mahmood stated as follows (emphasis added):

8. [72]

   The statements in this letter are inconsistent with Mr Mahmood’s affidavit evidence regarding the Sydney Lease Representations and the Sydney Lease Agreement. According to Mr Mahmood’s affidavit evidence, the relevant agreement was entered with MIS Dairy in June 2014 and, according to this letter, the agreement was entered with Dalat Enterprises on 18 November 2015 (which is a remarkably precise date, unsupported by any other documentary evidence).

9. [73]

   Mr Mahmood said, in cross-examination, that the statements in the letter were correct, and that his affidavit evidence was incorrect.

10. [74]

    When first taken to this letter, he gave the following evidence:

11. [75]

    As set out above, Mr Mahmood confirmed that, as stated in the September 2020 letter, the agreement that was reached was an agreement for services that was between two companies. This was also confirmed by the following answers:

12. [76]

    When asked if the date 18 November 2015 was correct, Mr Mahmood replied as follows:

13. [77]

    When taken to the inconsistency between the date given in this letter and the date given in his affidavit evidence for the Sydney Lease Agreement, Mr Mahmood confirmed that the letter was correct, and stated that his affidavit was inaccurate and unreliable in various unidentified respects (being a theme to which he returned on a number of occasions), before confirming that he did not know the date of the alleged agreement:

14. [78]

    Even if the alleged negotiations occurred and the alleged Sydney Lease Agreement was reached, it was, having regard to the terms of the letter sent by Mr Mahmood as director of Universe Foods in September 2020, a negotiation and an agreement between Universe Foods (now deregistered) and Dalat Enterprises (now deregistered).

15. [79]

    Alternatively, if Mr Mahmood’s first affidavit is correct, it was an agreement in 2014 between Universe Foods (now deregistered) and MIS Dairy (now deregistered).

16. [80]

    By operation of the doctrine of privity, Mr Mahmood would not have any personal claim in respect of any such contract (assuming it had been entered).

17. [81]

    Similarly, Mr Mahmood does not have any personal claim in respect of the alleged Sydney Lease Representations, by reason that he does not claim to have suffered any loss or damage in reliance on those representations (and such loss or damage is the gist of an action under s 236 of the ACL(NSW)). In paragraph 92 of the Statement of Claim, Mr Mahmood pleaded as follows:

18. [82]

    As set out above, Mr Mahmood claimed to have suffered loss by reason of having contributed an amount of $255,000 to the purchase of the Craigieburn Property (allegedly in reliance on the Craigieburn Purchase Representations) and by reason of having contributed a total amount of $380,000 for the fit-out of, and machinery and equipment for, the Craigieburn Property (allegedly in reliance on the Fit-Out Representations). However, he did not plead that he had suffered any loss by reason of the Sydney Lease Representations. Instead, the Statement of Claim pleaded that Universe Foods had suffered loss as a result of the alleged Sydney Lease Representations (being alleged non-payment of contributions towards the lease of the Seven Hills Property).

19. [83]

    Even if it were open to Mr Mahmood to bring a claim in respect of the alleged Sydney Lease Representations or the Sydney Lease Agreement, I would not have been satisfied that the alleged representations were made or the alleged agreement was formed, having regard to the following matters:

    1. (1)

       the inconsistencies between Mr Mahmood’s affidavit evidence and the letter which he signed in September 2020;

    2. (2)

       Mr Mahmood’s statements in cross-examination to the effect that there were errors in his affidavit evidence on this issue;

    3. (3)

       the fact that the relevant statements were alleged to have been made around ten years before Mr Mahmood’s two affidavits, and more than six years before the September 2020 letter;

    4. (4)

       the lack of any documentary reference to any such agreement prior to the September 2020 letter; and

    5. (5)

       the unexplained absence of a single invoice or demand for money, or complaint about the absence of payment of any sum towards the lease, for a period of around six years after the agreement was alleged to have been reached (despite the fact that, on Mr Mahmood’s case, there was a binding agreement to make contributions, and no contributions had been made to the substantial expenses that had been incurred in that six-year period).

20. [84]

    For completeness, if Mr Mahmood’s claims had otherwise been established, I would have accepted the Defendants’ submission that there were limitations problems, by reason that the Sydney Lease Representations were allegedly made, and the Sydney Lease Agreement was allegedly entered into, in June 2014.

21. [85]

    Insofar as there was any claim for misleading conduct or negligent misstatement in respect of the alleged Sydney Lease Representations, which was to the effect that Mr Mahmood caused Universe Foods to enter into a lease of the Seven Hills Property in reliance on those representations and thereby suffered loss, any such loss was first incurred when the lease was entered, which was more than six years before the proceeding was commenced.

22. [86]

    Similarly, insofar as there was any claim for breach of contract in respect of the alleged Sydney Lease Agreement, by reason of the failure to make a contribution to the rent or outgoings for the Seven Hills Property, any such breach occurred as and when rent and outgoings were payable. The total amount claimed for the period from entry into the lease up to 30 June 2017 - that is, more than six years before the commencement of the proceeding - was in excess of $158,000 (this being more than two-thirds of the quantum of the claim in respect of the Sydney Lease Agreement).

23. [87]

    Further, in respect of the remaining contract claim, I would not have been satisfied that there was sufficient evidence to prove the loss suffered by any breach.

24. [88]

    The only evidence of the “costs and expenses” associated with the lease of the Seven Hills Property (in respect of which there is alleged to have been a failure to make a 45% contribution) is the letter of 1 September 2020, and Mr Mahmood accepted in cross-examination that he did not know whether the figures in the annexure to that letter, which he signed, were prepared on the basis of documents in the possession of Universe Foods, or whether there were errors in the figures. He said that the figures were prepared by the office manager at Universe Foods, who he described as “not very professional”.

25. [89]

    Given those matters, the claims in respect of the Sydney Lease Representations and Sydney Lease Agreement must be dismissed.

Craigieburn Purchase Representations

1. [90]

   Mr Mahmood pleads that Mr Ozme made the Craigieburn Purchase Representations to him in around May 2018, and that, in reliance on those representations, Mr Mahmood paid $255,000 to Mr Ozme for the purchase of the Craigieburn Property. In particular, Mr Mahmood pleads as follows:

2. [91]

   It should be noted that the “New Factory Representations” referred to in paragraph 33 of the Statement of Claim are not defined in the pleading. I have accordingly focussed on the claim in respect of the Craigieburn Purchase Representations (as pleaded in paragraph 32).

3. [92]

   The Defendants denied that the Craigieburn Purchase Representations were made, and denied that Mr Mahmood made any contribution to the purchase of the Craigieburn Property. The Defendants pleaded that the funds to purchase the property were provided via a loan from NAB to Ankara, which was serviced by the Medical Company Account that was associated with Dr Ozme’s medical practices.

4. [93]

   In his first affidavit, Mr Mahmood gave the following evidence regarding the Craigieburn Purchase Representations:

5. [94]

   In his second affidavit, Mr Mahmood gave the following further evidence about these matters:

6. [95]

   There are a number of inconsistencies between these accounts. In particular:

   1. (1)

      in the first affidavit, Mr Ozme is said to have made the representations in May 2018, whereas in the second affidavit there is no reference to any representations in 2018, and the only alleged representation is made in mid-2017, more than a year before the Craigieburn Property was purchased; and

   2. (2)

      in the first affidavit, Mr Ozme is said to have represented that Mr Mahmood would have an interest in the Craigieburn Property, but in the second affidavit there is no reference to any such representation. Instead, the second affidavit simply refers to a request for a contribution (with Mr Mahmood giving evidence that he understood that he would, as a result of making a contribution, have an interest in the premises, without attributing any such understanding to anything said by Mr Ozme).

7. [96]

   When taken to these inconsistencies in cross-examination, Mr Mahmood again stated that his memory was unreliable, and that there may be errors in his affidavit:

8. [97]

   Mr Mahmood also gave the following evidence when being cross-examined about his statement, in paragraph 93 of his second affidavit, that he paid $255,000 towards the purchase of the Craigieburn Property:

9. [98]

   In short, Mr Mahmood’s evidence was that he paid $255,000 in cash, and that this was why he did not have any documentary evidence of the payment being made.

10. [99]

    In his affidavit, Mr Ozme deposed as follows:

    1. (1)

       Mr Ozme was introduced, via a real estate agent, to the Craigieburn Property in around April 2018, and subsequently viewed the property on two occasions;

    2. (2)

       Mr Mahmood did not join Mr Ozme in viewing the Craigieburn Property, but Mr Ozme showed him some photographs of it, and Mr Mahmood remarked that “it was a good property that looked suitable for Dalat Enterprises”;

    3. (3)

       Mr Ozme suggested to Dr Ozme that she, or a company which she controlled, should purchase the Craigieburn Property and obtain bank financing for that purpose (Mr Ozme explained in his affidavit that this was because her financial position was much stronger than his or Dalat Enterprises’ financial position);

    4. (4)

       Dr Ozme agreed to this proposal and Ankara obtained financing from NAB in order to fund the full amount of the purchase price for the Craigieburn Property, which was $860,000;

    5. (5)

       Mr Ozme never asked Mr Mahmood to contribute any funds to the purchase of the Craigieburn Property and Mr Mahmood did not offer to do so; and

    6. (6)

       Mr Mahmood did not participate in negotiations with NAB in relation to the loan to Ankara, or sign any documents in relation to the loan, or make any contribution to the purchase price of the Craigieburn Property, or make any repayments under the loan.

11. [100]

    Mr Ozme was not, in the course of his cross-examination, challenged on any aspect of his evidence about the purchase of the Craigieburn Property that is set out above.

12. [101]

    Dr Ozme gave unchallenged evidence to a similar effect. In particular, she deposed that:

    1. (1)

       she agreed with Mr Ozme that it would be a good idea to buy the Craigieburn Property as an investment for their future;

    2. (2)

       she registered Ankara so that she could keep all loans and mortgages used to help Mr Ozme and Dalat Enterprises separate from her medical practices;

    3. (3)

       she agreed with Mr Ozme that it would be best if Ankara was the entity which sought financing for the purpose of purchasing the Craigieburn Property, given the financial position of Mr Ozme and Dalat Enterprises;

    4. (4)

       Mr Ozme and Dr Ozme never discussed the possibility of Mr Mahmood contributing to the purchase of the Craigieburn Property;

    5. (5)

       Ankara obtained a “Business Markets Loan” from NAB with a limit of $1,000,000 in order to finance the purchase price of the Craigieburn Property (NAB Property Loan);

    6. (6)

       the purchase settled on 7 August 2018, for a purchase price of $860,000;

    7. (7)

       the full amount of the purchase price, together with stamp duty and legal costs, was drawn down under the NAB Property Loan;

    8. (8)

       the NAB Property Loan is an interest-only loan, and the monthly interest payments in the amount of around $4,500 to $5,700 per month have been drawn from her Medical Company Account;

    9. (9)

       in addition, an amount of around $7,250 has been transferred each month from the Medical Company Account into an account with NAB described as the “Everyday Account”, which is also in the name of Dr Ozme’s medical company. The balance of the Everyday Account is offset against the NAB Property Loan, and Dr Ozme has made these monthly transfers into the Everyday Account both in order to reduce the interest payable on the NAB Property Loan and in order to accumulate funds to repay the principal of that loan at maturity; and

    10. (10)

        Mr Mahmood did not pay any funds to Ankara, to the Medical Company Account or to Dr Ozme as a contribution to the purchase price for the Craigieburn Property, and none of Mr Mahmood, Mr Ozme or Dalat Enterprises has made any contribution, at any time, to the repayments under the NAB Property Loan.

13. [102]

    The Defendants’ unchallenged affidavit evidence was supported by the following documentary evidence:

    1. (1)

       the documentation for the NAB Property Loan, with a facility limit of $1,000,000, which was executed by Dr Ozme on behalf of the borrower, Ankara, and which was also executed by her on her own behalf (as guarantor) and on behalf of Dr Esin Ozme Medical Pty Ltd (as guarantor);

    2. (2)

       the settlement statement for the Craigieburn Property, which states that the purchase price was $860,000;

    3. (3)

       the bank statements for the NAB Property Loan, showing that the full amount of the facility was drawn down in July 2018, in two amounts of $100,000 and $900,000 respectively;

    4. (4)

       the bank statements for the Everyday Account, showing the monthly deposits of around $7,250 from the Medical Company Account;

    5. (5)

       the bank statements for the Medical Company Account, showing monthly transfers to the Everyday Account of around $7,250, and monthly debits in respect of interest on the NAB Property Loan in the amount of between $4,500 and $5,700 per month; and

    6. (6)

       the title search for the Craigieburn Property, showing that the registered proprietor is Ankara and that a mortgage was registered in favour of NAB on the date of purchase (7 August 2018).

14. [103]

    Mr Mahmood’s account is not supported by any contemporaneous document. In particular, there is not a single contemporaneous email, text message or other communication referring to:

    1. (1)

       any contribution being requested from Mr Mahmood by Mr Ozme, or being made by Mr Mahmood to the purchase of the Craigieburn Property;

    2. (2)

       Mr Mahmood being involved in any way with the purchase of the Craigieburn Property;

    3. (3)

       Mr Mahmood being involved in any way with the NAB Property Loan; or

    4. (4)

       Mr Mahmood having any interest in the Craigieburn Property.

15. [104]

    Nor is there a single document tendered by Mr Mahmood evidencing any payment by him to Mr Ozme. There is no bank statement for any account held by Mr Mahmood showing any withdrawal or transfer of the amount of $255,000, or showing any payments at all going from him to Mr Ozme, Dr Ozme or Ankara. There is no evidence in Ankara’s or Dr Ozme’s bank statements of any such amount being received. There is no receipt or other document evidencing payment.

16. [105]

    Further, Mr Mahmood’s account is inconsistent with the contemporaneous documents tendered by the Defendants, which establish that:

    1. (1)

       the full amount of the purchase price for the Craigieburn Property was paid from moneys drawn down under the NAB Property Loan;

    2. (2)

       those moneys were borrowed by Ankara, and were guaranteed by Dr Ozme and her medical company; and

    3. (3)

       Dr Ozme has, from the Medical Company Account, met all of the payments in respect of the NAB Property Loan, and has made deposits into the Everyday Account in order to reduce the interest payable on that loan.

17. [106]

    The only material in support of Mr Mahmood’s claim is his affidavit evidence of the alleged Craigieburn Purchase Representations (which are said to have occurred more than seven years ago). However, as noted above, his evidence in respect of those representations is inconsistent as between his first and second affidavits. Further, Mr Mahmood stated in cross-examination that his affidavit had a number of mistakes (see paragraph [93] above) and he repeatedly stated that his memory was poor and unreliable. For example, he said that:

18. [107]

    Mr Mahmood also accepted in cross-examination that there was no bank statement or cheque butt to show the payment of $255,000 which he allegedly made towards the purchase of the Craigieburn Property, and asserted that this payment was made in cash (see paragraph [94] above).

19. [108]

    In Slaveski v Nanevski Developments Pty Ltd [2023] NSWCA 145 at [37], Kirk JA (with whom Meagher JA and Griffiths AJA agreed) observed that:

20. [109]

    Those observations were repeated by Leeming JA (with whom Ward P and Mitchelmore JA agreed) in Carbone v Fowler Homes Pty Ltd [2024] NSWCA 192 at [122] (in relation to an allegation that an amount of $60,000 had been paid in cash towards the purchase of property).

21. [110]

    In closing submissions, Mr Mahmood appeared to retreat from any assertion that he had made a cash contribution to the Craigieburn Property, suggesting that he was instead to be given an interest in that property by reason of some amounts Mr Mahmood had loaned Mr Ozme at around the time that they were working together at EGE (that is, around seven years or more prior to the purchase of the Craigieburn Property):

22. [111]

    Any such alternative case was not pleaded, was directly inconsistent with the pleaded case, and was unsupported by any affidavit or documentary evidence.

23. [112]

    Having regard to the matters set out above, I am not satisfied that the Craigieburn Purchase Representations were made, or that Mr Mahmood paid an amount of $255,000 to Mr Ozme in reliance on any such representations, or that he made any contribution to the purchase of the Craigieburn Property.

24. [113]

    It follows that, insofar as Mr Mahmood’s claims for misleading conduct, negligent misstatement and a resulting trust in respect of the Craigieburn Property are based on the alleged Craigieburn Purchase Representations and on any contribution allegedly made to the purchase of the Craigieburn Property in reliance on such representations, those claims must be dismissed.

Fit-Out Representations

1. [114]

   Mr Mahmood pleads that Mr Ozme made the Fit-Out Representations to him in around August 2018, and that, in reliance on those representations, Mr Mahmood paid a total of $380,000 to Mr Ozme for the fit-out costs of the Craigieburn Property. In particular, Mr Mahmood pleads as follows:

2. [115]

   The Defendants admitted that the Craigieburn Property required a fit-out in order for it to be suitable for the manufacture of dairy products, but denied that the Fit-Out Representations were made, or that Mr Mahmood made the alleged contributions to the fit-out costs, and further said that all machinery and equipment for the Craigieburn Property was leased (Amended Defence, [30]-[31]).

3. [116]

   In his first affidavit, Mr Mahmood gave the following evidence in relation to the fit-out of the Craigieburn Property:

4. [117]

   It should be noted that there is no reference, in this account, to any representation that Mr Mahmood would have an interest in the Craigieburn Property. Instead, Mr Mahmood merely deposed that Mr Ozme “requested” that the sums be paid. (The evidence set out above would be consistent with, for example, Mr Ozme, as a director of Dalat Enterprises, requesting that Mr Mahmood make contributions to the fit-out expenses which were necessary in order for Dalat Enterprises to conduct its business from the Craigieburn Property, on the basis that those contributions by Mr Mahmood would be treated as a loan by him to Dalat Enterprises, and added to the balance of a shareholder or director loan account.)

5. [118]

   In his second affidavit, Mr Mahmood gave the following further evidence in relation to these matters:

6. [119]

   This evidence again does not refer to any representation being made by Mr Ozme, at the time of requesting contributions to the fit-out expenses, to the effect that, by reason of his contributions, Mr Mahmood would have an interest in the Craigieburn Property. Instead, in the passage set out above, Mr Mahmood refers to an understanding on his part that he would have an interest in the Craigieburn Property. (Insofar as this understanding was said to arise from the alleged Craigieburn Purchase Representations, I have found that Mr Mahmood has not established that any such representations were made.)

7. [120]

   In the passage from the second affidavit that is quoted above, Mr Mahmood referred to documentary evidence of fit-out “costs, receipts, letters that I have paid for”. Those documents were as follows.

   1. (1)

      First, there was a list of expenses headed “Money given to Gursel Ozme after new factory building has been bought at 68 Rushwood Drive Craigieburn VIC 3064”. This was a list of payments, apparently compiled by Mr Mahmood. There was no evidence as to when it was compiled or on what basis it was compiled or from what source the information was derived. There was no documentary evidence to establish that any such payments were made. The total of such payments is stated to be $159,400, being only around 40% of the amount which Mr Mahmood claims to have paid for fit-out expenses. Further, some of the payments listed (assuming they were made) could not, in any case, relate to fit-out costs. For example, there are payments “For Milk”, “For wages of workers”, and “Borrowed for personal tax payments”. This list is therefore of no significant probative value.

   2. (2)

      Secondly, there was a letter on Dalat Enterprises’ letterhead dated 18 July 2018, which was signed by Mr Mahmood, and was addressed “to whom it may concern”. This letter referred to Dalat Enterprises having purchased a “Yoghurt Drink and Yoghurt Process and Filling” machine, which was being imported from Turkey. There is no reference in this letter to the manner in which the purchase of this machine was being financed by Dalat Enterprises. The letter provides no evidence that Mr Mahmood made any contribution to fit-out costs. (Mr Mahmood subsequently acknowledged in closing address that Mr Ozme paid for the purchase of this machine: “One machine … imported from Turkey, which Mr Gursel paid. I didn’t pay that one. I didn’t contribute it.”)

   3. (3)

      Thirdly, there was a “Rent to Own Contract of Sale” from a business called “Fork Force”, which was dated 14 June 2018 and was addressed to Dalat Enterprises. This document related to a new “Enforcer” model forklift. The “rent to own price” was specified as $97.57 per week (excl GST), and the total period was 260 weeks. This agreement required payment of a deposit of $2,000 (excl GST). The document does not refer to any payment being made by Mr Mahmood. In his affidavit, Mr Ozme gave evidence that he paid Fork Force for this equipment, from the Medical Company Account, and he exhibited a cheque butt establishing that this was the case. (Mr Ozme’s evidence to this effect was not challenged in cross-examination.)

   4. (4)

      Fourthly, there was an invoice from Ace One Plumbing relating to works undertaken at the Craigieburn Property, which was dated 26 November 2018 and was in the amount of $11,500 (incl GST). This document does not provide any evidence that Mr Mahmood paid the amount specified in the invoice. Mr Ozme gave evidence in his affidavit that he paid this amount, from the Medical Company Account, and he exhibited the relevant cheque butt dated 30 November 2018 in the amount of $11,500. (Mr Ozme’s evidence to this effect was not challenged in cross-examination.)

8. [121]

   For those reasons, none of the documents exhibited to Mr Mahmood’s affidavit provides evidence of any payments having been made by him in respect of the expenses relating to the fit-out of, or machinery and equipment for, the Craigieburn Property.

9. [122]

   At the conclusion of the Defendants’ evidence, Mr Mahmood sought leave to reopen his case to tender some further documents relating to fit-out expenses. I granted this leave, but excluded from the tender certain handwritten annotations on the documents which were to the following effect: “PAID by TAHIR”. Mr Mahmood confirmed that he did not write these words on the documents, and that he did not recognise the handwriting. In circumstances where there was no evidence as to the identity of the person who wrote these words, when they were added to the documents, or the basis on which they were added to the documents (including, for example, whether any such annotation was intended to convey that Mr Mahmood had arranged for payment to be made by Dalat Enterprises, or had himself funded such payment), I was of the view that these annotations were of negligible probative value, and the admission of the annotations, after the parties had otherwise closed their respective cases, would be unfairly prejudicial to the Defendants, as they had not had any opportunity to ask Mr Mahmood questions about the documents, or to obtain evidence in relation to the payment of the amounts referred to in those documents.

10. [123]

    The additional documents tendered by Mr Mahmood do not advance his case. The documents consist of:

    1. (1)

       an agreement between Dalat Enterprises and V and R Refrigeration “to construct a turn-key cool-room” at the Craigieburn Property for the sum of $21,000, which was signed on behalf of Dalat Enterprises by Mr Mahmood and Mr Ozme;

    2. (2)

       a number of invoices issued by Askin Performance Panels and Refrigeration Distributors to Dalat Enterprises in July and August 2018 in a total amount of around $39,500 (incl GST); and

    3. (3)

       a receipt from the NAB showing that an amount of $5,932.64 (corresponding to an invoice from Askin Performance Panels in the same amount) was paid by way of cheque on 5 July 2018. (The document did not identify the cheque account, or the holder of the cheque account, from which this sum was paid.)

11. [124]

    These documents provide evidence that fit-out works were carried out at the Craigieburn Property (which is not in dispute). None of these documents establishes that any amount was paid by Mr Mahmood personally for those fit-out expenses.

12. [125]

    Instead, the documentary evidence tendered by the Defendants indicates that such expenses were paid by Mr Ozme, using funds in the Medical Company Account. For example, the cheque butts exhibited to Mr Ozme’s affidavit include:

    1. (1)

       cheque butts for payments of $4,554.31 and $13,997.41 to “Panel” and “Askin Vic Panel” on 30 July 2018 and 10 August 2018 respectively, with these payments corresponding to two invoices issued by Askin Performance Panels in those exact amounts, which were included in Mr Mahmood’s additional tender; and

    2. (2)

       a cheque butt for a payment of $8,078.59 to “Refrigeration Distributors Pty” on 1 August 2018, this corresponding to an invoice issued by Refrigeration Distributors in that exact amount which was included in Mr Mahmood’s tender.

13. [126]

    In summary, Mr Mahmood did not, in the materials exhibited to his affidavits or in the further documents which he tendered, identify a single document which established that Mr Mahmood had paid any amount to Mr Ozme in respect of fit-out expenses, of the cost and machinery and equipment, for the Craigieburn Property. Instead, the documents upon which Mr Mahmood relied in support of his case included invoices which were, on the evidence before the Court, paid by Mr Ozme, using funds in the Medical Company Account.

14. [127]

    In cross-examination, Mr Mahmood was taken to the list of expenses headed “Money given to Gursel Ozme after new factory building has been bought at 68 Rushwood Drive Craigieburn VIC 3064”, and it was put to him that the payments in that list did not add up to the amount of $380,000 which he claimed to have paid for fit-out expenses. He acknowledged that he could not recall how much he paid, and that there may be “mistakes” in his affidavit evidence:

15. [128]

    Mr Mahmood was then taken to the invoice issued by Ace One Plumbing in the amount of $11,500 (incl GST) and gave the following evidence in cross-examination:

16. [129]

    Mr Goodsell was a representative of Ace One Plumbing. Mr Mahmood’s evidence that he handed over the amount of $11,500 to Mr Goodsell in cash is contradicted by the documentary evidence establishing that this amount was paid by way of a cheque written on the Medical Company Account.

17. [130]

    Insofar as Mr Mahmood claimed in the passage of cross-examination quoted above that the payment of cash was witnessed by a “Mr Singh”, he did not provide any explanation as to why he did not call Mr Singh to give evidence in this proceeding.

18. [131]

    Mr Ozme gave evidence in his affidavit that:

    1. (1)

       he never asked Mr Mahmood, and Mr Mahmood never offered, to make a contribution to the fit-out expenses for the Craigieburn Property;

    2. (2)

       Dr Ozme funded, through the Medical Company Account, all fit-out and renovation costs associated with the Craigieburn Property;

    3. (3)

       Dr Ozme provided him with a cheque book linked to the Medical Company Account (to which only he and Dr Ozme had access), and he used it to write cheques for the business and operational expenses of Dalat Enterprises;

    4. (4)

       Mr Ozme wrote twenty-seven cheques on the Medical Company Account in payment of the expenses of fitting out and renovating the Craigieburn Property, which totalled over $107,000 (with the relevant cheque butts and bank statements being exhibited to the Defendants’ evidence); and

    5. (5)

       the cheques written by Mr Ozme include cheques to Ace One Plumbing and Fork Force in respect of the two invoices that are exhibited to Mr Mahmood’s affidavit (on which Mr Mahmood relied as providing evidence that he personally made payments towards fit-out expenses).

19. [132]

    None of the evidence set out above was challenged in cross-examination.

20. [133]

    Mr Mahmood did suggest, in his cross-examination of Mr Ozme, that Mr Ozme had “filter[ed] cash money from me, deposit[ed] in friend, wife and [the money had then] come back to the factory, like that”. The suggestion appeared to be that Mr Mahmood had paid cash to Mr Ozme, which was then (via some unidentified third party “friend”) deposited into the Medical Company Account, and was used for the expenses associated with the fit-out of the Craigieburn Property. This proposition was put to Mr Ozme in cross-examination and was firmly rejected by him:

21. [134]

    I accept Mr Ozme’s denial. Mr Mahmood did not point to any documentary evidence to support this allegation. In particular, he did not point to any evidence of amounts being withdrawn from his own bank account, or any other evidence of cash payments being made by him to Mr Ozme, and did not identify any entries in the bank statements for the Medical Company Account which he claimed corresponded to any amounts that he paid to Mr Ozme in cash. Further, and critically, he did not cross-examine Dr Ozme or put to her any proposition that any amount deposited into the Medical Company Account represented moneys which had been provided by Mr Mahmood (either directly or via some unidentified “friend” of Mr Ozme).

22. [135]

    Dr Ozme gave unchallenged evidence that:

    1. (1)

       she provided, via the Medical Company Account, the funds required for the purpose of the renovation and fit-out of the Craigieburn Property;

    2. (2)

       she was willing to provide those funds because she understood that any improvement to the Craigieburn Property would increase the property’s value, and would therefore be for the benefit of herself and Mr Ozme (given that the property was owned by Ankara);

    3. (3)

       in order to finance the renovations, Ankara requested, and NAB agreed to, an increase in the facility limit of the NAB Property Loan, from $1m to $1.125m;

    4. (4)

       this additional $125,000 was used to assist with financing the renovations, in particular:

23. [136]

    Dr Ozme exhibited to her affidavit the bank statements for the NAB Property Loan and for the Medical Company Account, which established that the amount of $125,000 was drawn down under that loan and deposited into that account on 15 November 2018. She also exhibited the relevant cheque butts and bank statements for the Medical Company Account showing payments being made to various suppliers.

24. [137]

    Having regard to the evidence summarised above, Mr Mahmood has failed to establish his claims in relation to the Fit-Out Representations for at least the following reasons.

25. [138]

    First, Mr Mahmood did not, in his affidavit evidence, depose that the Fit-Out Representations were made in the terms pleaded. In particular, there was no evidence that, at the time Mr Ozme allegedly requested contributions to the fit-out expenses from Mr Mahmood, Mr Ozme made any representation to the effect that Mr Mahmood would receive, in return for those contributions, an interest in the Craigieburn Property.

26. [139]

    Secondly, I am not satisfied that Mr Ozme did make any request that Mr Mahmood make any contribution to the fit-out expenses, or the costs of machinery and equipment, for the Craigieburn Property. Mr Mahmood’s evidence of statements allegedly made more than seven years earlier is of little weight, particularly given his statements in cross-examination regarding the limitations of his memory and regarding inaccuracies in his affidavit evidence. There is not a single email, text message or other document evidencing any such request being made for payment in respect of any invoice or expense relating to the Craigieburn Property.

27. [140]

    Thirdly, Mr Mahmood’s claim that he paid a total of $380,000 in reliance on the Fit-Out Representations is unsupported by his own evidence. The only documents which he tendered in support of his claim related to expenses which were in fact paid by Mr Ozme using funds in the Medical Company Account.

28. [141]

    Fourthly, Mr Mahmood’s assertion that he paid cash amounts to Mr Ozme, which were deposited (via some unspecified “friend”) into the Medical Company Account was wholly unsubstantiated.

29. [142]

    Fifthly, the unchallenged evidence of Dr Ozme was that she funded all of the expenses of the renovation and fit-out. This evidence was supported by the documents exhibited to her affidavit and is also inherently probable. It made good commercial sense for Dr Ozme to fund the costs of improvements to the Craigieburn Property in circumstances where that property was owned by a company (Ankara) which was wholly owned by her.

30. [143]

    For those reasons, I am not satisfied that the Fit-Out Representations were made by Mr Ozme, or that Mr Mahmood paid an amount of $380,000 to Mr Ozme in reliance on any such representations, or that he made any contribution to the costs of the renovation and fit-out of the Craigieburn Property.

31. [144]

    It follows that insofar as Mr Mahmood’s claims for misleading conduct, negligent misstatement and a resulting trust in respect of the Craigieburn Property are based on the alleged Fit-Out Representations and on payments allegedly made in reliance on such representations, those claims must be dismissed.

32. [145]

    For the reasons given above, Mr Mahmood has not established any of his claims against Mr Ozme, Dr Ozme or Ankara.

33. [146]

    It follows that the proceeding must be dismissed.

34. [147]

    Costs should follow the event. The Defendants indicated in their written submissions that they wish to be heard on costs. I will provisionally make an order that Mr Mahmood pay the costs of Mr Ozme, Dr Ozme and Ankara, as agreed or assessed. This provisional order will take effect seven days after the date of this judgment unless any party notifies the other parties and my Associate in writing that some other order is sought, specifies the order and provides a brief statement of the grounds for it, in which event the order will not take effect and I will make directions to deal with costs.

35. [148]

    Accordingly, I make the following orders:

    1. (1)

       The proceeding is dismissed.

    2. (2)

       Provisionally order that the Plaintiff pay the costs of the First to Third Defendants, as agreed or assessed. This order will take effect seven days after the date of this judgment unless any party notifies the other parties and the Associate to Nixon J in writing that some other order is sought, specifies the order and provides a brief statement of the grounds for it, in which event the order will not take effect and directions will be made to deal with costs.