Cox v Zammar

HIS HONOUR: In the eclectic world of music, notable artists, whilst acknowledging technological recording advancements, speak of an enduring affection for the vinyl medium. Simon Le Bon has said “There’s no question that a vinyl record is a lot nicer than a CD. It’s nicer to hold in your hands, you can do more with it.” [1] Kate Bush (whose song “Running up that Hill” has a resurgent audience having attracted a new generation of listeners through the immensely popular Netflix Series “Stranger Things” [2] ) is to like effect [3] . Neil Young has remarked “Steve Jobs was a digital pioneer, but when he went home, he listened to vinyl.” [4]

In September 2022, a shared interest in vinyl records was the catalyst for David Cox (plaintiff), a chef then living in the Netherlands connecting via Facebook marketplace with Ziad Zammar (defendant) then residing in a Perth suburb in Western Australia. To this day the parties have never met in person. For a season of about a year, a rapport was forged and trust built.

Requests depending on their nature, size and cost will test the mettle of a friendship and may readily expose underlying traits and vulnerabilities.

From early September 2023, the defendant’s casual calls for money, met by the plaintiff, led to the defendant seeking further funds. Upon the plaintiff pressing his friend for an explanation, the defendant admitted to having a gambling addiction. For some, maybe many, the relationship and lending might have abruptly ceased at that point. However, having overcome alcohol addiction himself, the plaintiff “empathised with” the defendant, making him “more inclined to help him” [5] and leading him to accommodate the requests. The ongoing lending in that sense is explicable notwithstanding the plaintiff felt manipulated by the defendant [6] . However, “wisdom is proved right (or justified) by all her children” [7] and the initial connection, untainted by financial ties, was progressively undermined and the friendship, ultimately, irretrievably wounded.

Progressive lending over about 17 months culminated in the signing of a document (debt agreement), in January 2005 which, recorded the plaintiff agreeing to loan the defendant “the sum of $1,200,000 (the "Loan"), inclusive of interest and damages”, ($1.2 million sum), a sum more than twice the actual amounts lent.

That debt agreement forms the centrepiece of a dispute between the parties in which the plaintiff seeks to recover either the $1,200,000 sum and further advances or the total of the sums actually lent.

The claim of the plaintiff is essentially to recover monies lent. Initially, there were discrete loans as between the plaintiff and the defendant. However, as recounted below, from approximately July 2024, the nature of the arrangements between the parties changed.

On the hearing, aspects of the debt agreement and surrounding correspondence giving rise to it raised concerns for me as to the enforceability of what had been agreed. However, the importance of that evolution of arrangement between the parties should not be underscored and I will refer to it below. Patient advocacy from Mr Emmerig who appeared for the plaintiff explained the broader context for an agreement to repay a larger amount than was actually lent and eventually persuaded me that the principal relief sought by the plaintiff is appropriate.

In the summons, the plaintiff simply claimed as final relief "damages" with other claims for interest pursuant to s 100 and 101 of the Civil Procedure Act 2005 (NSW) (CPA).

In the statement of claim, the plaintiff sought relief as follows:

The "pleadings and particulars” part of the statement of claim sets out a number of headings which, in a number of ways connect with the relief claimed. Essentially, the plaintiff pleads that:

In September 2025, by reference to a loan spreadsheet (Spreadsheet), a revised total of $508,456.23 was claimed for the period 3 September 2023 to 10 February 2025 [8] .

Finally just before the hearing, a further revised amount of $505,671.23 was claimed after giving credit for sums paid during the course of 2025 [9] . That new calculation is not per se disputed [10] .

The Spreadsheet is said to contain approximately 530 individual loan transactions.

The approach taken by the plaintiff to proving the advances has been to provide documentary evidence from his bank accounts on the one hand and the defendant’s bank accounts on the other hand, to demonstrate the amounts transferred from the plaintiff to the defendant. Whilst the plaintiff has provided some evidence and some documents regarding certain of the requests, the plaintiff has not attempted to set out individual discussions in respect of each of the numerous transactions.

Despite the absence of any defence and affidavit or witness statement from the defendant consequent upon pre-trial directions that I had made on 19 December 2025, the parties provided respective lists of issues. On 3 February 2026, Ms Smith provided to my Associate a combined list of issues regarding:

It is evident from this ‘Combined List’ document, the submissions and matters raised on the hearing that the following were the real issues in dispute:

Prior to addressing these issues, it is appropriate to set out certain of the background details that lead to the lending, the procedural history bearing upon the evidence in the matter, and the deemed admissions issue.

The matter was listed before me for hearing on 19 February 2026. Mr Emmerig of counsel appeared for the plaintiff. The defendant who is located in Western Australia has never physically appeared in person in the proceedings.

Proceedings in Supreme Court are generally held in person [11] . Attendance by AVL may be permitted but is a departure from or an exception to the general position. The defendant requested to appear by AVL. The plaintiff took no objection to that course. I permitted that to occur.

For the purposes of the hearing, the plaintiff prepared a form of Court Book (Court Book or CB). The Court Book contained the summons filed on 26 February 2025 and the statement of claim filed on 16 April 2025.

The defendant was unrepresented. The extent of information provided to a self-represented party will vary depending upon the circumstances of the case. I provided him with sufficient information regarding the court process, to facilitate him making informed decisions to ensure a fair trial for both parties. In explaining the processes of the Court to him, I confirmed that the Court could not advise him as to how his rights should be exercised [12] .

In the context in which the defendant had not complied with Court directions to file a defence or evidence, I sought to understand from him his position regarding the issues in the case. It became clear that the defendant accepted that he had:

Significantly, apart from challenging his liability for the $1.2 million sum as distinct from the amount actually lent to him, what the defendant mainly sought was an instalment order to pay his acknowledged debts. He stated [17]

When I asked the defendant about his response to the plaintiff's claim and in particular the references to oppressive and unconscionable terms in the list of issues, he asserted that at the time, he was under "extreme...personal financial pressure" [18] and "extreme financial stress, and it's correct. I made that decision." [19] I will return to this below.

During the course of explaining certain of the court procedures regarding evidence to the defendant, he briefly raised with the Court whether he should seek legal advice. I explained to him that he had had a long opportunity to do that. In any event, Mr Emmerig indicated that he would be prejudiced by any attempt by the defendant to give evidence. Ultimately, the defendant did not formally seek leave to adjourn the matter or give evidence [20] .

Included in the Court Book were three affidavits:

In addition, there was tendered a bundle of documents behind the final tab of the Court Book substantially drawn from the exhibit to the plaintiff's affidavit and subpoenaed documents.

The plaintiff provided a Supplementary Court Book (SCB) which contained two further affidavits being:

On the hearing, the defendant did not object to any of the plaintiff's evidence [21] .

I expressly raised with the defendant the fact that there had been an order for him to put on evidence which he had not complied with.

Nonetheless, I asked him whether he wished to attempt to place before the Court any evidence on the matter. I explained the possibility that, for example, he might wish to seek to be sworn in to give oral evidence by seeking permission of the Court to do so. The defendant did not seek to adduce any such evidence [22] .

In this case, the requisite standard of proof for determining the facts in issue is on the balance of probabilities [23] .

Without limiting the matters the Court may take into account in deciding whether it is so satisfied that the facts in issue are established, it is to take into account [24] :

Evidence should be approached and weighed having regard to objective surrounding facts which are either undisputed or established by contemporaneous documents, logic and the inherent probabilities of life as they bear upon the events [25] . An important aspect of fact-finding is the documents and events have to be understood in their proper context [26] .

I asked the defendant whether he wished to cross examine the plaintiff. I explained to the defendant the purposes of cross examination. Following that explanation, he indicated that he did wish to cross examine the plaintiff. The plaintiff was in the precincts of the Court and Mr Emmerig did not oppose the plaintiff being called for cross examination albeit that no prior such notice had been given [27] .

I explained to the defendant that if he wished to ultimately put a submission to me that the plaintiff's evidence on some particular matter should not be accepted then as a matter of procedural fairness (referencing the rule in Browne v Dunn (1893) 6 R 67), he would need to put that to the plaintiff. The defendant did briefly cross examine the plaintiff.

The cross-examination established:

Nothing arose from the very brief cross-examination of the plaintiff that caused me to doubt that the plaintiff was advancing anything other than a credible and reliable account of the events bearing upon the matter.

No issue regarding the credibility of the defendant's evidence arose by dint of the fact that the defendant did not give evidence in the matter. His affidavit (D1) was read by Mr Emmerig in the plaintiff's case. Indeed, on the hearing the defendant (as recounted above) made a number of frank acknowledgements.

The parties communications were by messenger, text messages, phone calls and email [30] .

Broadly speaking, I accept the plaintiff's evidence regarding the events of the matter and advances of monies as a loan. Some degree of the plaintiff’s affidavit evidence regarding conversations is simply drawn from messages (reproduced in the Court Book) between the parties bearing upon a number of the requests for monies [31] , requests to “borrow” [32] and promises of payment [33] , and excuses about delayed payment or non-payment [34] . The loan advances are supported by bank records [35] .

The factual findings that I make below are essentially based upon the narrative from the plaintiff in his affidavit evidence (which I accept) substantially both underpinned and contextualised by documentary material in the Court Book.

During submissions, Mr Emmerig stated [36] that the failure of the plaintiff to give evidence in the matter should give rise to a Jones v Dunkel [37] inference.

The inferences permitted to be drawn under the ‘rule’ are not ‘at large’ but explained by the High Court in many cases including Kuhl v Zurich Financial Services Australia Ltd [38] .

Payne JA recently explained in Wheatley v Peek [2025] NSWCA 265 (Wheatley) [39]

There is a question as to the extent to which it is appropriate to draw a Jones v Dunkel inference in circumstances where a litigant is self-represented and unaware of any such "rule". In the particular circumstances of this case, in my assessment it makes no material difference. There is simply an absence of testimonial evidence from the defendant.

In accordance with pre-trial directions, Mr Emmerig of counsel provided an outline of opening submissions dated 13 February 2026 regarding the claims for relief, which I have considered (PS). The defendant did not provide any written submissions. During the hearing, Mr Emmerig made submissions. Having been informed of the purpose(s) of submissions [40] , the defendant did not challenge the net sum actually lent ($505,671.23) [41] , but sought repayment by instalments (in context of that sum). He did not dispute that there was an agreement to pay the $1.2 million by 20 January 2025 [42] . Nonetheless, overall I understood that the defendant disputed his liability to pay that sum as distinct from the net sum actually lent [43] .

From late 2022 until around August to September 2023, the plaintiff and the defendant communicated at least on a weekly basis and to the plaintiff's belief, they had become good friends [44] .

The plaintiff indicates that the defendant advanced various reasons for needing the funds, including owing money to others, needing money for accommodation, his salary not coming through, legal expenses, family emergencies, groceries and various other family reasons. Loans were made by the plaintiff with, he asserts, promises by the defendant for repayment [45] .

From about September 2023, for a further six months until March 2024, there was a hiatus in contact between the parties. The plaintiff says that from March 2024, the defendant began contacting him again and his request for loans began to increase in intensity and nature [46] .

Subsequent to the gambling disclosure by the defendant, on 31 March 2024 the defendant sent the plaintiff a draft form of loan agreement in relation to amounts then owing by him [47] . It specified an amount of $2,090.50 plus 5% interest. Within a day (1 April 2024) an amended agreement was sent referencing a loan amount of $4,340.50 plus 15% interest [48] .

On 1, 4 and 6 April 2024, there was correspondence between the parties in which on one view, the defendant indicated that he had engaged in manipulative behaviour and the plaintiff for his part, asserted that he had felt manipulated [49] .

On 14 April 2024, the defendant sent the plaintiff a message indicating that there had been a deposit of $3,000 to the plaintiff's account. The amount was not in fact received [50] .

Late on 23 April 2024, the defendant texted the plaintiff and, inter alia, acknowledged that the reference to $3,000 was a lie and that he had actually gambled the money [51] .

Notwithstanding that startling disclosure, between 27 April 2024 and 29 May 2024, further requests were made by the defendant for payment and monies paid and promises made that were not kept [52] .

In late May 2024, the plaintiff indicates that the defendant messaged him indicating that he was not in control of his finances and had met a Vikrant Serali (Mr Serali), a gambling addiction sponsor to help him manage his finances.

The plaintiff says that at this stage his financial situation had deteriorated. In light of the frequent loans, he himself had begun to ask relatives, including his parents for loans so that he could then provide monies to the defendant [53] .

The defendant's disclosure of his "sponsor" Mr Serali was the catalyst for a different complexion placed on the relationship between the parties. It appears that the plaintiff's father (who seemingly was updated by the plaintiff regarding events) had some doubt as to whether Mr Serali even existed which led the plaintiff to correspond with Mr Serali by email on 20 June 2024. During the hearing, Mr Emmerig informed me that even the plaintiff now expresses doubt as to whether Mr Serali was a real person [54] . However, there is no need for me to make any determination as to that.

Relevantly by mid-July 2024, the defendant had a falling out with Mr Serali and informed the plaintiff of that. In particular, he informed the plaintiff that instead of Mr Serali providing the defendant with financial help, he had in fact caused losses to the defendant by taking loans in the defendant's name and extracting money from the defendant's bank account. As a result, the defendant informed the plaintiff that he had engaged a lawyer friend of his, Patrisha (Trish) Peters to act for him in a claim against Mr Serali [55] .

Subsequently, the plaintiff was copied into correspondence from Mrs Peters and also from her husband, Neil (Mr Peters) on several occasions in which they informed the plaintiff that the defendant had been defrauded by Mr Serali and some form of negotiations were being conducted with Mr Serali to extract a settlement in respect of those losses [56] .

On 8 August 2024, one email from Mrs Peters to the plaintiff referenced that Mr Serali had agreed to pay the defendant $595,000 of which the plaintiff was to receive a portion subject to an agreement between himself and the defendant [57] .

On 8 September 2024, the plaintiff received an email from Mr Peters informing him that he had negotiated a higher settlement amount of $950,000 from Mr Serali [58] .

By 2 September 2024, the plaintiff received an email from Mr Peters confirming that he had taken over from his wife progression of the claim against Mr Serali and on 13 September 2024, the defendant messaged the plaintiff that he had settled with Mr Serali for a sum of $1.4 million [59] .

On 23 September 2024, the defendant messaged the plaintiff indicating that the amount of "$645K will be coming in" and "when Natalia sends the update I will send through straight away” [60] . The plaintiff says that he understood that this was to compensate him for having provided so many loans [61] .

By about 27 September 2024, the defendant alerted the plaintiff that the settlement with Mr Serali was taking a long time and that although the settlement money had been paid into two of his bank accounts, the accounts had been frozen by the banks, apparently because they were unable to verify the source of the funds [62] .

Later that day, the plaintiff received an email from the defendant forwarding an email apparently from the Commonwealth Bank of Australia (CBA) stating that a payment of $50,000 had been submitted to the plaintiff's bank account with the description "debt". The plaintiff says he never received that payment [63] .

On 9 October 2024, the plaintiff received a further email from the defendant stating that a payment of $500,000 had been "submitted" to his bank account with the description "Loan Repayment Approved". Yet again the payment was not received by the plaintiff [64] .

On 10 and 11 October 2024, the plaintiff, following a request by the defendant for further advances made 6 separate payments totalling $5,165 [65] . On those dates the defendant by email sent to the plaintiff 3 declarations in the following form [66] :

By this time, I infer the plaintiff's father had had further discussions with him regarding his arrangements with the defendant.

On 23 October 2024, the plaintiff corresponded with the defendant noting that he and his father had "bankrolled all the legal costs so far, with no evidence that any of this [the money] exists" and requested for Sarah Wilson, apparently the defendant’s solicitor at that stage (Ms Wilson), the defendant, the plaintiff and his father to have a quick chat to give the plaintiff’s father some comfort about the matter so that he could feel "confident that this is real" [67] .

Seemingly that did not eventuate.

On 13 November 2024, the plaintiff received a message from Ms Wilson in which she confirmed that a sum of $416,800 had been transferred to him [68] .

By this stage, the plaintiff states that he was growing increasingly concerned that the defendant was unstable and threatening to kill himself. He said that he felt that he had no choice and was forced to continue to be led along by the defendant and if he did not continue to support him with loans then his settlement sum would never be released and the plaintiff in turn would never receive any payment from him [69] .

In late 2024, further promises were made. Thus, on 26 November 2024 the plaintiff received another email from the defendant forwarding an email apparently from the CBA stating that a payment of $500,000 had been submitted to the plaintiff's bank account with the description "debt repayment". Yet he never received it [70] .

On 12 December 2024, the plaintiff received a further email from the defendant addressed to another solicitor named Melissa (Mel) Williams who the plaintiff understood was the defendant's solicitor at the time, directing her to pay the plaintiff, a sum of $1.1 million [71] .

Seemingly by mid-to-late December 2024, the plaintiff says he was forced to move from the Netherlands to Australia to live with his parents because of the overwhelming financial burden of advancing loans to the defendant [72] . The plaintiff claims the defendant’s failure to repay the funds to him had a significant impact on him both financially and mentally, he being diagnosed with depression and suffering from stress-related anxiety [73] .

Communications regarding the monies paid were brought to a head in early January 2025. The plaintiff's evidence in this regard is set out in his affidavit as follows [74] :

Over the period from 7-18 January 2025 there was message correspondence between the parties [75] . It is unnecessary for me to reproduce it. Nonetheless I will refer to aspects of it briefly below.

The debt agreement is in the following terms [76] :

The defendant did not pay the plaintiff $1.2 million on 20 January 2025 or at any point afterwards.

According to the plaintiff, at the time that the defendant signed the debt agreement on 21 January 2025, the unpaid advances made by him totalled $487,701.33 [77] .

On 22 January 2025, the defendant provided the plaintiff with a copy of an apparent lodgement receipt in the amount of $600,000 from the defendant to the plaintiff's Bendigo Saver bank account [78] .

The plaintiff says that the payment was not received by him, but he understood that this was a partial payment of the sum that the defendant agreed to pay him [79] .

On 23 January 2025, the defendant alerted the plaintiff that a sum of $1.2 million was "pending" [80] .

On the same day in response to a message from the plaintiff that his father was wanting some sort of assurance about the matter, the defendant messaged the plaintiff to the effect [81]

Between 22 January 25 and 10 February 2025, the plaintiff says that he made further advances to the defendant in the sum of $20,754.90.

On 2 February 2025, the defendant provided the plaintiff with a copy of the lodgement receipt in the sum of $5,000 into his PayPal account. That payment also was not received by the plaintiff [82] .

On 4 February 2005, seemingly to reassure the plaintiff about his intention and ability to repay the amount under the debt agreement, the defendant sent the plaintiff correspondence enclosing a confirmation apparently from ANZ that the balance of the defendant’s ANZ bank account [number specified] was $1,810,442.00 [83] .

That document is, let me use the expression, of “doubtful reliability”. There is other evidence tendered in the proceedings being an interim statement of account of that particular account which shows that the actual balance of the defendant's specified account was at that stage nothing like $1.8 million, but rather $931.40 [84] .

Mr Emmerig submits this is one of the elements of the case which show that any unconscionability was on the defendant’s side.

On 26 February 2025, the plaintiff having conducted some investigations believing that the defendant did not own any property and fearing that he would not recover his money commenced these proceedings by summons filed seeking urgent relief by way of freezing orders with final relief being claimed for damages, interest and costs.

The defendant has had a sporadic history of involvement in the proceedings. On some occasions he has appeared by AVL and on other occasions he has not appeared at all. At no stage during the proceedings has the defendant filed a defence or any evidence. The procedural history of the matter is summarised in the affidavit of Ms Smith. It is unnecessary to recount all of it. However, the following matters bear upon the way the case has been presented at final hearing.

On 7 March 2025, an order was made by Richmond J that the matter proceed by way of pleadings. Ordinarily in a matter in which a statement of claim has been filed, unless the Court orders otherwise, witness evidence at the trial must be given orally before the Court: Uniform Civil Procedure Rules (UCPR) r 31.1(1), (2).

In the early stages of the proceedings, in particular in March 2025, there were a number of orders made for the plaintiff to provide an asset disclosure affidavit which he eventually did. However, at this point orders were not generally made for the filing and serving of affidavit evidence.

On 27 June 2025, the Court made an order for the defendant to file and serve his defence "and evidence" by 9 July 2025. The defendant filed no defence nor any evidence. Properly construed, it seemed to me that that was an order pursuant to UCPR r 31.1(3) requiring the defendant to provide evidence for the trial either by affidavit or witness statement. The defendant did neither.

Mr Emmerig contends that the failure of the defendant to file a defence has the consequence that pursuant to UCPR r 14.26, the allegations of fact contained in this statement of claim are deemed to be admitted. In support of his contention, he cited Pike J in Brady v Brady [2025] NSWSC 217 (Brady) at [69]:

UCPR r 14.26(1) is in the following terms:

The proposition that the failure of a defendant to file a defence gives rise to deemed admissions of the allegations in the statement of claim is contestable and the subject of conflicting authorities.

The decision of the Full Court of the Federal Court in MY Distributors Pty Ltd v Omaq Pty Ltd (1992) 36 FCR 578 (MY Distributors) is contrary to the notion. In that case, their Honours held that the absence of a defence cannot constitute admission of the facts alleged in the statement of claim. One of the more recent decisions of the matter is that of Rares J in Thunder Studios Inc (California) v Kazal (No 9) [2020] FCA 846 in which his Honour referenced a number of cases taking the opposite view to MY Distributors.

Significantly, Pike J in Brady referenced the decision of Macfarlan JA in Sneddon v New South Wales [2012] NSWCA 351 (Sneddon) at [152] where his Honour stated as follows:

Pike J appeared to be alive to the debate over the proposition and having recited the passage that I have referred to above stated "in any event, I accept the evidence of the plaintiff as set out above” [85] .

I do not consider that I should act upon Mr Emmerig’s submission that the allegations in the statement of claim are admitted for at least three reasons.

First, I was not taken to the conflicting authorities in the matter and it is clear that the defendant was in no position to assist the Court on the issue. Provisionally the better view is that the comments of Macfarlan JA in Sneddon are correct and the absence of a defence does not lead to the consequence that there are deemed admissions. Rather it leads to the consequence that the plaintiff may apply for default judgment.

The entitlement of a party to seek judgement on admissions under the UCPR is predicated on an admission actually having been made. UCPR r 17.7 provides:

For the benefit of judgment to be availed of the admission of the party must be “by his or her pleadings or otherwise”. Conceptually, the words “or otherwise” might allow the possibility that an admission could arise by omission in the sense of failing to file a defence. However, that is, with respect, a curious notion. Leaving aside express statutory provisions which might deal with omissions to do things in certain circumstances, generally speaking under the common law, Australian courts do not act upon the basis that the failure of someone to say something about claims against them necessarily constitutes an admission sufficient to enable judgment to be given based on such mere failure without any further context.

Secondly, the notion that the "allegations of fact are admitted" begs the question of what is said to be the significance of the so-called admissions. The plaintiff has not applied in the proceeding for judgment on admissions, which is a procedure available pursuant to UCPR r 17.7. Further, nor has the plaintiff applied for default judgment under UCPR Part 16 (in particular r 16.6–16.7).

Thirdly, particularly in cases where a party seeks equitable relief, it is far from clear that the Court is obliged to grant a judgment on admissions. It has been said that courts of equity have adopted a practice over a long period of time not to make certain types of orders on admissions or without proper examination. The practice manifests itself in many ways [86] . It is not necessary for me to further explicate that proposition.

On the hearing, there being no dispute between the parties as to the sum actually lent, the real issue between them was as to what (if any) arrangement between the parties justifies the plaintiff’s claim for the $1.2 million sum, an amount well beyond the total of funds actually lent.

The burden of proving the fact that an advance of money was made by way of a loan is borne by the person who makes the advance [87] .That onus is not discharged by mere proof of the payment itself [88] .

Once it is admitted or established that an advance was made by way of a loan, the onus of proving that the loan has been repaid is borne by the borrower [89] .

In the absence of an agreement as to the time at which the loan would be repaid, it is repayable on demand [90] .

Where there are multiple agreements, generally speaking, the consideration which is given in the first ‘transaction’ cannot sustain a second contract [91] .

Further, a promise to perform an existing contractual duty or obligation is not consideration and fresh consideration is necessary to make valid an agreement which purports to vary another contractual agreement [92] .

Relatedly, there are principles dealing with forbearance to sue and compromise. It is not necessary for me to delve deeply into this. The principles are discussed at length in Cheshire & Fifoot ‘Law of Contract’ [93] .

There is a difference between arrangements in which there are multiple discrete agreements on the one hand and arrangements in which there is a payment of money in the context of conferral of a benefit.

During the course of the hearing, I sought to understand how the plaintiff justified his claim for the $1.2 million sum. I raised with Mr Emmerig the question of whether the $1.2 million or part of it might be said to have been a form of past consideration [94] .

Mr Emmerig submitted that payment of monies before the giving of a promise to confer a benefit is valid consideration for that promise if the act has been done at the promisor’s request and the parties understood that the act was to be remunerated by the conferment of a benefit - citing Rose per Bell CJ at [61] and [64] as follows:

For the period up to about early July 2024, the arrangements between the parties appear to have been simply that the defendant requested money, the plaintiff provided funds and the funds were not repaid. On one view there were multiple such transactions.

However, there was a change of dynamic in the relationships between the parties. From about early July 2024 and certainly no later than 8 August 2024, the defendant informed the plaintiff that he would use the money expected to be reclaimed from Mr Serali to pay back the debts that he owed to the plaintiff and divide with the plaintiff a portion of his settlement with Mr Serali – but that he needed further monies to pay Mrs Peters. The plaintiff says that on this basis, he agreed to provide further loans to the defendant apparently to fund his legal fees in his dispute with Mr Serali and indeed thereafter did provide further monies to the defendant [95] . Consequently, from this point of time onwards, the plaintiff received communications both from Mr and Mrs Peters and the defendant providing updates about monies that apparently Mr Serali was prepared to pay to the defendant.

The plaintiff asserts and I accept that it was on the basis of ongoing promises, (including the prospect of receiving larger amounts than he had actually lent to the defendant) that he continued to lend monies to the defendant. His evidence in this regard is as follows [96] :

Ultimately, I am satisfied that the reference to the $1.2 million sum is an agreed amount. The defendant stated “I put forward that proposal” [97] . It is properly contextualised against a history of ongoing requests for money and arrangements for the defendant to repay the plaintiff. From about July 2024, new arrangements were proposed by the defendant to the plaintiff, to repay the plaintiff a larger amount than the amount actually advanced as a form of compensation for delayed repayment of funds to him [98] and in consideration for the plaintiff's ongoing provision of amounts to the defendant personally and in part to fund legal fees for the defendant's claim against Mr Serali. The larger amounts evolved over time culminating in the $1.2 million sum. Further, it seems to me that the sum was proposed by the defendant and agreed to be recorded in a context where the defendant realised that the plaintiff had essentially reached the end of his tether of forbearance patience.

The plaintiff seeks to have the debt agreement rectified on the basis of a common mistake.

The purpose of rectification was described by Mr Emmerig in his submissions as follows [99]

Leaving aside statutory jurisdiction to rectify instruments, rectification is an equitable remedy, the purpose of which is to make the relevant instrument conform to the true agreement of the parties where the writing by common mistake fails to express that agreement accurately. [101]

For relief by rectification, it must be demonstrated that, at the time of the execution of the written instrument sought to be rectified: [102]

There is no requirement for communication of that common intention by express statement [103] , but it must established to be the parties' actual intention mutually held, as viewed objectively from their words or actions [104] .

It is not disputed that the agreement has been signed by the respective parties on 17 and 21 January 2025 and witnessed on those dates.

It is not evident to me that properly contextualised, rectification is strictly necessary. Nonetheless, I am satisfied, in particular having regard to the defendant's statement during the hearing that the defendant did agree to pay the plaintiff the $1.2 million sum by 20 January 2025 [105] that that was the true agreement of the parties. In those circumstances I am prepared to order rectification of the agreement.

Notwithstanding the failure of the defendant to file a defence or lead any evidence (both prior to the hearing and during the hearing) in attempting to ensure a just hearing between the parties I have carefully examined the claimed entitlement by the plaintiff to relief having regard to the issues (albeit belatedly raised by the defendant).

The term “penalty” refers to punishment, consisting of the imposition of an additional or different contractual liability, for non-observance of a “primary” contractual stipulation. It is a “collateral” stipulation “in the nature of a security for and in terrorem of the satisfaction of the primary stipulation” [106] .

Properly contextualised, I am not persuaded that the $1.2 million amount referenced in the debt agreement is a penalty.

The history leading up to the debt agreement reveals progressively increasing amounts which the defendant had promised or represented that he would pay the plaintiff to settle the existing debts in consideration of further advances. From late September 2024 these were summarised by Mr Emmerig in his submissions as follows:

The first figure of $645,000 is indistinct on the documentation. However, I accept the other amounts were represented.

The context is as identified above that these were amounts progressively proffered by the defendant for the plaintiff to receive an amount larger than the amount actually advanced by the plaintiff, as a form of compensation for delayed repayment of funds to him and in consideration for the plaintiff's ongoing provision of amounts to the defendant personally and in part to fund legal fees for the defendant's claim against Mr Serali.

The defendant’s use of the expressions “an oppressive or unconscionable term” within the ‘Combined List’ of issues was not explained by him.

The ordinary meaning of the adjective “oppressive” conveys something that is burdensome, or unjustly harsh [111] . The ordinary meaning of the adjective “unconscionable” conveys the meanings of “unreasonably excessive”; “not in accordance with what is just all reasonable” and “not guided by conscience; unscrupulous” [112] .

Lawyers use the term “unconscionable” in a number of different senses. The meaning of “unconscionable” inevitably varies by reference to the context including whether it is referenced in a statute or otherwise [113] .

Initially, having regard to the claim for rectification, I was mindful of looking for the underlying communication between the parties that gave rise to the debt agreement. In that regard I considered the plaintiff’s version of events in January 2025. I examined carefully the four pages of message correspondence between the parties from 7-18 January 2025 [114] .

It has to be acknowledged that the messaging in that correspondence does not present in a calm and considered manner. It has various manic and desperate aspects to it, particularly the messaging on 12 January 2025. The full narrative is set out in the Court Book but it includes phrases “This is how desperate I am to fucking finish this”, “Please put me out of my misery…”, “There is no more energy my tank”, “Just end this for me”, “I AN [SIC] ABOUT TO COLLAPSE”, “I FEEL DIZZY MAN”, “THIS IS THE MOST IMPORTANT NIGHT OF MY LIFE” “NO MORE”, “NO MORE”, “FUCK FUCK”.

The messaging on 17 January 2025 contains a narrative about transfers of money apparently from Melbourne and the defendant stating “I’m starving I hAve not eaten since lunch yesterday”. On the afternoon of 18 January 2025, the messaging contains statement that the defendant had visited Mel (Williams) the previous evening “and almost got arrested”.

During the hearing I questioned the defendant about his references in the statement of issues and in particular his use of the word "unconscionable". I asked him whether he was intimating that the agreement had been entered into in the context in which he was pressured into it, or what the position was. The defendant frankly accepted that he was not pressured into the agreement by the plaintiff [115] and that it was he himself who had put forward the proposal [116] . Indeed, when I referenced the other matters that he had raised in the list of issues as to whether the agreement was oppressive or unconscionable and should be read down to reflect the true principal advanced, the defendant stated he did not know whether "unconscionable" was the right word [117] .

Despite opportunity, he did not seek to adduce evidence of unconscionability [118] nor explain or elaborate how he contended that the term for the $1.2 million amount was oppressive or unconscionable. Notwithstanding that I had explained to the defendant the permissible purposes of submissions (addressing the evidence which the litigant contends the judge should accept or reject, matters which the litigant says may cast doubt on or defeat the plaintiff's claim or otherwise support the litigant’s defences [119] ) the defendant did not seek to cast doubt on the plaintiff's evidence.

To the extent that the defendant has raised oppression or unconscionability as a basis to impugn the plaintiff’s claim to the $1.2 million sum, I reject any such defence to the claim.

It is clear that the defendant claimed that the $1.2 million sum was more than the amount which was advanced. However, the basis for the reading down of the $1.2 million amount was not articulated except from what might be gleaned from the tenor of the defendant's cross examination of the plaintiff. Certainly, any basis that the amount constitutes a penalty or was oppressive or unconscionable has been rejected by me above. The plaintiff flatly rejected any contention by the defendant (including in cross-examination) [120] that the plaintiff agreed that the defendant would only be responsible for the amount actually advanced rather than the $1.2 million sum in the event that the defendant was unable to pay the $1.2 million amount, or receive whatever monies that may have come from Mr Serali or otherwise. In the above circumstances, there does not seem to me to be any basis for reading the sum down. The reason for the sum being larger than the amount advanced has been explained above.

Earlier, I mentioned that the defendant on the hearing had raised the fact that he was under “extreme financial stress” at the time of the debt agreement. That expression was not explained by him. Expressions such as this used by people require context. In a community context there are many different sorts of definitions regarding financial stress. The Australian Institute of Health and Welfare (as at 2 December 2025) defines financial stress as [121]

Significantly, notwithstanding that I explained to the defendant the court procedure, he chose not to adduce any evidence.

There are some indications on the evidence that the defendant has had at times very little financial means. The affidavit the defendant provided in relation to the asset disclosure order shows that his assets at that time (26 March 2025) totalled less than $10,000. Conceptually, one might infer that the fact that the defendant made constant requests for money to the plaintiff and was generally unable to pay funds suggests he was under financial stress. However, the defendant did not choose to lead specific evidence about his financial position in January 2025. I do not consider that I can simply infer that the defendant was under “financial stress”, relevantly to support some finding that the debt agreement was unenforceable.

Ultimately my findings are that:

The plaintiff did not seek interest on the $1.2 million sum [122] .

However, the plaintiff did seek pre-judgment interest on the post agreement loans. There was no agreement in respect of interest in regard to those payments.

The Court has power to award interest pursuant to CPA s 100. There is no reason why interest should be denied to the plaintiff. I consider that the plaintiff should be awarded pre-judgment interest pursuant to CPA s 100 on the net amount of post-judgment loans.

There is a question regarding the date(s) when interest should be calculated from in respect of that sum. There were 4 amounts lent by the plaintiff to the defendant over the period 5-10 February 2025 totalling $20,854.90 [123] . There were 13 payments made by the defendant to the plaintiff of the period 17 May 2025 – 14 November 2025 [124] . There is an inherent messiness in doing multiple calculations on ever-changing net balances over that period of time. A pragmatic way of addressing the matter may be to simply perform a calculation of interest on the net sum of $18,069.90 as and from 15 November 2025.

However, ultimately, it is a matter for the plaintiff to indicate what he proposes in that regard.

Costs are in the discretion of the court: CPA s 98. However, under the UCPR (absent any particular exception) if the Court makes any order as to costs, the Court is to order that costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs. It seems to me that costs should follow the event and I do not consider that there is any reason to make some other order. Thus, subject to any costs offers, I envisage that there should be an order that the defendant pay the plaintiff's costs calculated on the ordinary basis.

I indicated to the defendant that his desire to pay any judgment sum by way of instalments would have to await the outcome of this judgment.

The findings that I have set out above address the plaintiff’s claims for relief. Having regard to the need for some precision regarding calculation of interest I propose to require the parties to provide proposed short minutes of order to give effect to the reasons for judgment. Unless there is specific request for a further listing, I do not propose to relist the matter. Rather I propose to make orders in chambers consequent upon receipt of the proposed short minutes of orders.

The Orders of the Court are – The Court

If the defendant still seeks to apply to pay the proposed judgment by instalments, he can apply to do so after judgment is entered.