Alfarsi t/as YOF Global Investment v Time Spices Pty Ltd - [2024] NSWDC 302

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Alfarsi t/as YOF Global Investment v Time Spices Pty Ltd [2024] NSWDC 302
Hearing dates: 9-12 July 2024
Date of orders: 19 July 2024
Decision date: 19 July 2024
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
See paragraphs [121]-[122]

Catchwords:
CONTRACTS – supply of dates by importer to wholesaler of herbs and spices – proper characterisation of contract for supply – whether contract for sale or contract for consignment

Legislation Cited:
Personal Properties and Securities Act 2009 (Cth), s 21
Sale of Goods Act1923 (NSW), ss 5-6, 8, 22, 24, 38

Cases Cited:
Access Cash International v Elliot Lake Inc & North Shore Corp for Business Development (2000) Carswell Ont 2824
Aluminium Industrie Vassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676
Australia China Business Bureau Pty Ltd v MCP Australia Pty Ltd [2003] FCA 934
King v Adams & Ors [2017] NSWCA 277
King v Adams [2016] NSWSC 1798
Milicevic & Anor v Ferrari East Pty Ltd & Ors (No.3) [2023] NSWSC 1116
Re Arcabi Pty Ltd (in liq); Ex parte Theobold & Anor (2014) 288 FLR 236
Re Stephanian’s Persian Carpets Ltd (1980) 34 CBR (NS)
Realestate.com.au Pty Ltd v Hardingham (2022) 277 CLR 115
South Sydney DRLFC v News Limited (2000) 177 ALR 645

Texts Cited:
K Sutton, Sales and Consumer Law (4th ed, LBC Information Services, 1995)

Category: Principal judgment
Parties: Yasir Omar N Alfarsi trading as YOF Global Investment (Plaintiff)
Time Spices Pty Ltd (Defendant)
Representation:
Counsel:
Ms J Mee (Plaintiff)
Mr C Dobbs (Defendant)
Solicitors:
LawBridge Lawyers & Consultants (Plaintiff)
KOR Legal (Defendant)

File Number(s): 2022/00254229
Publication restriction: Nil

REASONS for JUDGMENT

Introduction

This proceeding concerns a dispute about an informal commercial transaction featuring the delivery of dates that had been imported into this country from Saudi Arabia in April and May 2020. A striking feature of the dispute is the quite different character of the contractual relationship each party asserts against each other.

The parties

The plaintiff, Yasir Omar N Alfarsi, who trades through a corporate vehicle (‘YOF’), is an importer and vendor of perishable goods. Mr Rahid Gharib, a former director of the defendant (‘Time Spices’), described Time Spices as a wholesaler, operating a business of selling herbs and spices under a trading name ‘Spicia’.
It is uncontroversial that, throughout February and March 2020, Mr Alfarsi procured dates from his suppliers in Saudia Arabia and arranged for their freight to Sydney; initially into the possession of a third party (United Cargo) in April and May 2020. It is also agreed that YOF arranged for the dates (eventually) to be delivered from United Cargo to the defendant’s warehouse, at Prestons and that Time Spices accepted delivery of them. This occurred in May 2020. YOF contends that by the transaction, Times Spices was a purchaser of those dates under a contract for sale. Time Spices contends that it was only a consignee of the dates.
By this proceeding, which was commenced on 26 August 2022, YOF sues Time Spices in debt (ultimately quantified in the final iteration of its pleading)^[1] for the sum of $587,295.39 and, alternatively, for damages for conversion for the same amount.
1. Leave to file a Further Amended Statement of Claim (and an Amended Defence to Cross-Claim) was granted to the plaintiff on the first day of the hearing

YOF’s actions

YOF’s claim is based on two alternative causes of action.

YOF’s action to recover unpaid (portion) of the price

YOF says that it procured (at different times) 82 pallets (in 3 containers) of dates for an agreed sale price (approximately $600,000) in accordance with a schedule throughout April and May 2020; that after the dates were delivered to Time Spices’ Warehouse at Prestons. It further says that the dates were accepted by Time Spices’ through the latter’s various payments throughout 2021. It also contends that on 9 May 2020, it issued to Time Spices three invoices. Although it partly received payments from Time Spices throughout 2021, it says that the preponderant part of the purchase price (which it asserts is $587,295.39) was unpaid.
By its defence, Time Spices contends that there was no contract of sale or agreement to sell with YOF. Instead, it posits that the transaction between the parties was in the nature of a consignment agreement. Features of that arrangement relevantly included that: Time Spices would allow YOF the use of its Prestons warehouse to store the dates for which Time Spices would be paid storage and handling fees; property in the dates would remain with YOF; Mr Alfarsi (and others) were authorised to attend its Warehouse to remove the dates; each of YOF and Time Spices would endeavour to sell the dates (and when Time Spices did do, it indicated the quantities it was proposing to sell); YOF would issue Time Spices with invoices only for quantities sold by Time Spices; where YOF sold the dates, it was entitled to do so at marked up prices.
Time Spices disputes that the three invoices dated 9 May 2020 represented the price for the dates. It says that although it made certain payments to YOF, it disputes that that particular circumstance amounted to an admission of the claims made by YOF. Its Counsel indicated in his opening that there was missing the usual indicia of a contract for sale or agreement to sell; most notably transfer of title to property over the dates.

YOF’s (alternative) action for damages for conversion

Alternatively, that is to say, if it should be found that YOF retained ownership of the dates, YOF contends that in the period from May 2020 to January 2021, Time Spices converted the dates to its own use without accounting for them; generating a right to damages. The acts of conversion featured removal of 50 pallets of dates from its Prestons warehouse from May to December 2020; the delivery of 3 pallets to Perth; the removal of a number of pallets from Time Spices’ warehouse to one in Rydalmere before 5 of those pallets being transported back to the Preston warehouse; and Time Spices’ collection of 6 pallets from a Rydalmere warehouse and movement to another location.
YOF says that the damages claim reflected the market value of the dates converted. Its Counsel explained that of 82 pallets of dates, YOF had asked for 3 to be shifted to Perth and that, by December 2020, only 29 were left in Time Spices’ warehouse in Preston. That meant that about 50 pallets had not been accounted for. Of those 29 pallets were moved to Rydalmere; 5 of those had been sent back to Time Spices’ Preston warehouse; so that ultimately 24 pallets were left at Rydalmere. Of the 24 pallets left at Rydalmere, YOF argues that over time Time Spices picked up 6 and sold them. That left 18 pallets. YOF says that Time Spices indicated that it did not want them and so, YOF disposed of them.
In defence to the action YOF brought against it, for conversion, Time Spices contends that after dates had been delivered to it in April and May 2020, Mr Alfarsi periodically attended its warehouse for the purpose of collecting or removing quantities of dates for sale (with Time Spices itself sometimes arranging sales with YOF’s permission). Later, that is, from October 2020 to January 2021, Time Spices says that YOF arranged for the balance of the dates to be collected from its warehouse and delivered to various addresses. Time Spices says, in effect, that it is to some extent ignorant of the removal of dates from its warehouse and, more generally, argues that because of YOF’s access to its warehouse, it effectively shared, with Time Spices, control over the dates. The qualification was that it was aware of the removal of some of the pallets in its Prestons warehouse to a warehouse at Rydalmere. However, it says that this was a warehouse in YOF’s control and possession. Time Spices disputes liability to YOF.

Time Spices’ cross-claim

Time Spices cross-claimed against YOF. Much of this was predicated on the existence of the consignment agreement. However, there were two independent parts to this claim.

Warehousing fees

Time Spices relied upon one of the terms of its posited consignment agreement, being YOF’s agreement to pay storage and handling fees (what it defined in shorthand as ‘Warehousing fees’) at the monthly level of $1,650. It says that YOF’s dates were stored for approximately 9 months, so that the aggregate sum was $14,850.
Time Spices partly claims against YOF for non-payment of monthly fees for storing the dates in its warehouse, from April 2020 to January 2021 quantified as $14,850.
YOF denied such entitlement (and also disputed the quantum in relation to this part of the claim). It says that at no stage did it enter into any agreement with Time Spices about warehouse storage service.

Credit for freight costs

It contends that in May 2020, the parties’ agreement was varied. By the original agreement, YOF was liable to United Cargo for the freight costs of the dates that originally delivered to the latter’s warehouse in Condell Park for initial quarantining and storage there, before the dates were transferred to Time Spices’ Prestons warehouse. However, Time Spices contends that this arrangement was varied; so that Time Spices agreed to pay United Cargo’s costs on YOF’s behalf. It was said that the consideration for this variation was that Time Spices’ payment of those freight costs would be deducted from the sales of dates Time Spices made on YOF’s behalf under what it characterised (and YOF disputed) as their consignment agreement. It says that between June and July 2020, Time Spices made payments to United Cargo in the sum of nearly $17,430.
YOF denies this suggested variation. It says that the invoices issued by United Cargo were addressed to Time Spices; consistent with the latter’s responsibility for payment of the shipping costs.
Time Spices further contends that from May 2020 to January 2021, pursuant to the consignment agreement, it sought and obtained YOF’s permission to sell, on YOF’s behalf, quantities of dates to various customers. (The details were set out in paragraph 14 of the cross-claim).
It then contends that between April 2020 and March 2021, after YOF issued four invoices requiring Time Spices’ payments to YOF (in the order of $30,410) as the ‘price’, Time Spices made payments (from January 2021 and September 2021) in the sum of about $15,637. Time Spices says that it was entitled to a credit for its payment of the freight costs ($17,428.36) so that, Time Spices contends that it had overpaid YOF in a small amount (about $2,654). (YOF accepts that the sum of about $15,637 was paid but not for the purposes referred to by Time Spices).
Time Spices contends that YOF breached the consignment agreement by issuing invoices to and receiving payment from Time Spices without crediting the latter with its payments of the freight costs.
YOF disputed liability for such costs, but did not dispute the quantum in relation to this part of the claim.

Quantum

The combination of the sums reflective of Time Spices not receiving its credit and the unpaid warehousing fees amounted to $17,504.36. Time Spices claimed that sum as representing damages for breach of a consignment agreement.
Alternatively, it cross-claimed against YOF for that amount in restitution (the form of the action being inappropriately pleaded as an action ‘for unjust enrichment’). YOF denies such entitlement.

The ‘first’ agreement

In their respective opening addresses, the parties’ Counsel indicated that the agreement entered into in February 2020 was not the first transaction between the parties by which Time Spices received YOF’s dates. Counsel for the plaintiff described it as the parties’ ‘second’ agreement. The first agreement related, as Counsel for the plaintiff explained it, to an earlier agreement reached in late November or December 2019; when Time Spices received 4 pallets from YOF. Although Time Spices appeared to suggest that what occurred in February 2020 was a continuation of the agreement entered into in December 2019, both parties relied upon this earlier transaction to aid in the construction of the agreement which is really in question as part of the surrounding circumstances.
Both Counsel acknowledged some factual complexity flowing from the circumstance that there was another (earlier) agreement in respect to which some payments were made, additional to the agreement critically in issue. I indicated, tentatively that if there was to be a genuine dispute about that and if the amount in issue was material, that might be an issue that could be referred out.

The critical issue

The parties agree that the central, indeed dispositive, question concerned the proper characterisation of the agreement. The plaintiff contends it was an agreement for sale of the dates. The defendant contends that it was a consignment. The plaintiff contends that an agreement for sale was reached. The defendant says that there was missing from the agreement certain matters which would make it a sale contract or an agreement for the sale of dates.
Counsel for YOF indicated that if Time Spices was right in its characterisation of the agreement as being one for consignment, it remained the case that Time Spices had still not paid YOF for an amount reflecting all the dates that it had sold on YOF’s behalf and there was a shortfall in the order of $15,000 (T 10). Counsel for Time Spices indicated that if YOF was right in its characterisation of the agreement as one for the sale of contract, it would be fatal to his cross-claim (T 21). Counsel affirmed that this was Time Spices position in his closing address (T 251).
Counsel for YOF submitted that there was no evidence of any discussion for the costs of storage (let alone evidence of fair value) and no evidence regarding deduction for freight costs (T 252-3). In his oral submissions in reply, Counsel for Times Spices fairly acknowledged that there was no agreement as to YOF bearing liability for warehousing or storage fees and, at its highest, Time Spices could prove no more than that Mr Ali authorised Mr Gharib to try to negotiate with YOF to obtain credits for freight costs it paid to United Cargo (T 253-4).

The Factual Background

At the outset of the trial, YOF’s Counsel supplied the Court with a chronology (MFI 1). After indicating the Court’s preference to receive a version of the chronology that had been agreed between the parties, I invited Counsel for the defendant (who said he had seen the chronology) to consider it and, if appropriate supplement it or derogate from it, depending on the materiality of certain facts; and there was no quibble as to its accuracy in any respect.
Counsel for the defendant later indicated that his client agreed with the version of the chronology which the plaintiff relied upon. This was so, notwithstanding that his client appeared to take issue with the question of whether there were in fact more than one agreement.
A feature of the chronology that was supplied to the Court was colour-coding of most entries. This, it was explained, had the purpose of illuminating what entries related to different transactions entered between the parties and, in particular, a first agreement YOF contended was entered into in November or December 2019 and the second agreement – which is the subject of YOF’s claim – entered into in February 2020^[2]. The parties were at issue, to some degree, about what payments made by Time Spices to YOF were referable to what agreement.
2. It appears that it has not been possible to replicate the colour-coding in the version of the chronology published on Caselaw, therefore codes for each transaction have been added to differentiate between them in the table
Where, within the chronology, references are made to a person’s evidence, that is a reference to the witness’ affidavit evidence. Evidence in the hearing will be identified separately. I should say that much of the evidence featured, in substance, exchanges with the two main protagonists, Mr Alfarsi and Mr Gharib as to their competing perspectives, reflected in their respective affidavits, on a platform of facts which to a large degree are agreed. Much of the cross-examination of those witnesses when they each gave evidence, was designed to procure admissions from each of them that the facts supported the characterisation of the transaction that the witness’ adversary contended for in respect to what is predominantly a legal issue.
I adopt the version of the chronology supplied to the Court, subject to certain modifications arising from the evidence in the hearing which I think assist in fleshing out the real issues.

Transaction Key:
1A	Dates from first shipment (First Agreement)
1B	Billing and payment for First Agreement
2A	Dates the subject of these proceedings (Second Agreement)
2B	Billing and payment for Second Agreement
Trans-action	Date	Event
25 May 2017	Time Spices Pty Ltd ACN 619 327 767 (Time Spices) incorporated. Rahid Gharib (Gharib) and Walid Ali (Ali) appointed as directors. Gharib appointed as secretary. Time Spices operates a business of selling herbs and spices under the trading name “Spicia”. Gharib is involved in day to day running of business and is authorised to, and does, enter into contracts on behalf of Time Spices.
2019	Time Spices commences operating its business from a warehouse at 25 Ash Road, Prestons, NSW (the ‘Warehouse’).
1A	March 2019	Yasir Omar N Alfarsi (Alfarsi) receives half a container of dates from the Kingdom of Saudia Arabia (KSA), which included 6 pallets of dates, each pallet approx. 1 ton.
1A	March-November 2019	Alfarsi sells about 2 pallets of the dates in Australia.
3 October 2019	Alfarsi commences trading under the business name YOF Global Investment (YOF).
1A	Late November 2019	Alfarsi meets Gharib, through a mutual friend known as “Tashin”. Alfarsi informs Tashin that he has 4 pallets of dates which he needs to sell as soon as possible. Gharib tells Tashin “We can help him”. Tashin connects Alfarsi with Gharib.
1A	Late November or early December 2019	Alfarsi meets Gharib at the Warehouse. Alfarsi shows Gharib samples of the dates. Alfarsi mentions that he will soon be leaving to KSA and needs to sell the 4 pallets of dates (consisting of 233 boxes of different types of dates). Gharib’s evidence is that Alfarsi asked him to help Alfarsi sell dates, whether he would pay Alfarsi what he sold, and asked whether he could store them at the warehouse. Gharib says he told Alfarsi that since the packaging was unsuitable for the Australian market, the dates would be difficult to sell. Gharib says that Alfarsi then asked him if Time Spices could help sell what it could and account to him for what it sold on his behalf. Alfarsi deposed that he gave Gharib the samples of dates and was told by the former (in Arabic) that “the dates look good, please bring them to Time Spices’ warehouse”. He also deposed that Gharib asked whether he could give them by way of credit as he could not pay for them (in cash) now.
Alfarsi’s position is that YOF and Time Spices entered into an agreement whereby Time Spices would purchase Alfarsi’s 4 pallets of dates for $20,338 (First Agreement); Gharib asks for them on credit; Alfarsi agrees. Gharib’s position is that it was not an agreement for the purchase of dates; rather, Time Spices agreed to provide dates to shops to assist Alfarsi, to sell what they could and to account for what they sold on Alfarsi’s behalf.	Late November or early December 2019
1B	10 December 2019	Date of invoice no. 2005000 (being Invoice no. 1000001 dated 13 December 2019 re-issued) for $20,338 (for dates that were the subject of the First Agreement).
1B	13 December 2019	Date of invoice no. 1000001 for $20,338 (being the original invoice issued for dates the subject of the First Agreement).
1A	15 December 2019	Alfarsi delivers the 233 boxes (4 pallets) of dates (the subject of the First Agreement) to Time Spices’ Prestons Warehouse. Gharib deposes that there was no discussion about costs of transportation of these dates.
2A	17 December 2019	Alfarsi’s evidence is that: • At Gharib’s request, Alfarsi met with him at the Warehouse. Gharib says that he is pleased with the quality of the dates, and asks for another dates shipment. • Gharib says that if he can receive the shipment one month before Ramadan 2020, he can sell about 4 containers in Ramadan, and another 2 containers during the rest of the year. Gharib says he is connected with about 300 retail selling points where he can sell them. • Packaging discussed; Gharib says he will send pictures of packaging that he would like. • Gharib’s evidence is that there were a number of communications throughout December 2019 regarding plans to bring more dates to Australia, but that Alfarsi was consulting him for his advice at this time, about things like the Australian market for dates, pricing, likely quantities of dates that could be sold, packaging and timing for sale of them (vis a vis Ramadan). • Alfarsi deposes (in reply) that he and Gharib agreed that the former would source dates from Saudi Arabia and Time Spices would purchase all of them. He acknowledges that discussions about details occurred between January-February 2020.
2A	After 17 December 2019	Alfarsi travels to KSA, where he commences visiting date farms and suppliers.
2A	29 December 2019	Alfarsi sends a WhatsApp message to Gharib, saying “I am contacting you regarding the purchase of dates, in particular the type and quantity needed for the market”. Asks for a time to call.
1A	1 January 2020	Alfarsi sends his bank details for the money transfer via WhatsApp (for First Agreement).
1A	6 January 2020	Alfarsi sends a WhatsApp message to Gharib requesting payment (for First Agreement).
1A	8 January 2020	Gharib replies to Alfarsi’s message about payment, saying that the product is difficult to sell; that he had “put it in many stores after a lot of effort”.
2A	8 January 2020	Call between Alfarsi and Gharib. Discussed types of dates and what was obtainable.
2A	9 January 2020	Alfarsi sends a WhatsApp message to Gharib, with table of products of different types of dates, where Gharib would include retail prices in Australia (Table). The Table shows different types of dates, quantities, number of boxes, packets. WhatsApp correspondence follows. Gharib says (and Alfarsi agrees that he said) that if they receive 3 containers before the month of Ramadan, it should be fine, depending on the quality and price. Further WhatsApp correspondence on completing the table with the price column. Gharib deposes to receiving Table on this day. He deposes to telling Alfarsi “If we receive three containers a month before Ramadan it will work… depending on the quality and the price”. Gharib suggests the containers should come periodically, expecting between 5 and 6 a year, depending on the type. Gharib deposes to Alfarsi asking him to provide prices for dates; which he agreed to do. He intends to ask Time Spices customers to provide invoices indicating market prices of dates.
2A	9 January 2020	WhatsApp correspondence on suitability of packaging.
2A	10 January 2020	Alfarsi sends WhatsApp message to Gharib saying don’t forget to send me the prices of dates.
2A	12 January 2020	Gharib sends Alfarsi copies of invoices from Hecham Coffee & Nuts Roaster (Time Spices’ biggest competitor), containing the retail prices of different types of dates sold in Australia highlighted in green.
2A	Late February 2020	Alfarsi calls Gharib to finalise prices of the dates. Alfarsi has a paper note during the call. Alfarsi recalls asking Gharib to take notes of the varieties, quantities and price. Alfarsi then transcribes the information onto an invoice on his laptop. Types, quantity and prices set out in table at [51] of Alfarsi’s first affidavit (22/9/23). Alfarsi deposes to his belief that he and Gharib agreed to the variety, quantities, number of cartons and price of the carton (as per the table in [51]). He contends that the agreement related to 82 pallets of dates.
2A	29 February 2020 – 22 March 2020	Alfarsi purchases dates in KSA from Kenaz Alkhair Factory and Naif Al-Dahri Factory for Second Agreement.
Early March 2020	Alfarsi arrives back in Australia.
2A	5 March 2020	Alfarsi calls Gharib regarding logistics and shipment. Alfarsi’s evidence is that Gharib said to use United Cargo, and that Gharib will pay them. Gharib denies that he recommended that Alfarsi engage Fouad from United Cargo. United Cargo invoices later issued (12 May 2020) in name of Time Spices.
2A	5 March 2020	Gharib’s evidence is that Alfarsi said he did not have enough money for the cost of freight, and Gharib offered to help him by paying the cost of freight on his behalf. Alfarsi denies this.
2A	10-11 March 2020	WhatsApp correspondence between Alfarsi and Gharib regarding packaging and labelling.
1B	13 March 2020	Gharib sends a WhatsApp message to Alfarsi asking for the invoice for the original quantity of dates.
1B		Alfarsi sends invoice number 1000001 dated 13 December 2019 to Gharib by WhatsApp. Gharib subsequently provides it to Time Spices’ bookkeeper, Jenine David (David). (This was later replaced by Invoice 2005000 on 28 May 2020)
1B		Time Spices pays $5,000 to Alfarsi.
2A	15 March 2020	Kenaz Alkhair Factory issues a packing list with a packing declaration when the dates for the Second Agreement were being packed for shipping to Australia.
2A	19 March 2020	Gharib’s evidence is that around this time, he told Alfarsi that he would not be purchasing the (Second Agreement) dates because they would come too late (ie within one month of the start of Ramadan), and were not packaged as he told Alfarsi that they should be, and deposes that Alfarsi responded by saying that he would try to sell them to ABW Foods Australia. Alfarsi denies (in his affidavit in reply) this conversation, although accepts that he discussed packaging with Gharib in March; albeit that this was in relation to the ‘First Agreement’.
2A	22 March 2020	Naif Al-Dahri Factory issues Invoice 0248 for dates for Second Agreement, before they are shipped to Australia.
1A	10 April 2020	Alfarsi deposes (in an affidavit in reply) that with respect to the dates the subject of the First Agreement, Gharib said to Alfarsi that he was finding it hard to sell the dates in their current packaging, and would like assistance in finding suitable packaging, and labourers who know how to package them; Gharib will pay for the salaries and the packaging. Alfarsi agrees to help. Alfarsi also agrees to oversee the packaging process without charge.
2A	19 April 2020	Alfarsi sends WhatsApp message saying I am sending you the invoice via email, I want you to transfer the money now. Related to Metro Plastics invoice of $792.
2A	19 April 2020	Metro Plastics Pty Ltd (Metro Plastics) issues invoice no 219 to Time Spices for $792. Gharib transfers $792 to Metro Plastics; notifies Alfarsi that he made the payment. Gharib’s evidence is that at this time, Alfarsi told Gharib that Alfarsi was having financial difficulties, so Gharib arranged with Metro Plastics to supply this packaging. Alfarsi denies this.
2A	19 April 2020	WhatsApp messages between Alfarsi and Gharib regarding packaging and labels.
21 April 2020	Time Spices pays Alfarsi $400 by bank transfer.
23 April 2020	Start of Ramadan 2020 (best season for food retailers, being the season for sale of dates).
2A	Time Spices pays for cost of shelving to store dates in the Warehouse (about $35,000 in cash).
2B	24 April 2020	Alfarsi sends Time Spices invoice number 0000001 dated 20 April 2020, in relation to some of the dates the subject of the Second Agreement, shipped on 25 April 2020. (This was subsequently re-issued as invoice number 2005001, dated 9 May 2020, being 1 of 3 invoices issued that date and sent on 25 May 2020.)
2A	1 May 2020	Shipment of 3 containers (Second Agreement) arrives in Australia. Delivered to United Cargo warehouse, then transferred to Warehouse.
Gharib requests Alfarsi assist him with choosing suitable packaging, as only part of the shipment was packaged in KSA. Alfarsi arranges the purchase of the packages from Metro Plastics; invoice subsequently issued in Time Spices’ name. Time Spices included their address on the labels of the packages. Alfarsi shows Gharib’s employees how to pack the dates properly. Workers also help repack the dates for the First Agreement.
2A	4-10 May 2020	WhatsApp messages between Alfarsi and Gharib regarding packaging.
2B	9 May 2020	Date of the 3 invoices for the Second Agreement, being: Invoice 2005001 for $281,557 Invoice 2005002 for $156,810 Invoice 2005003 for $164,566 Total: $602,933 (Sent by Alfarsi to Gharib by WhatsApp 25 May 2020). Alfarsi says he personally supplied copies of the three invoices to Gharib and then sent further copies (on WhatsApp) on 25 May 2020. Gharib says copies were only personally supplied in August 2020; the first time he saw them.
2A	10 May 2020	Fourth container (Second Agreement) arrives in Australia. Delivered to United Cargo warehouse, then transferred to Warehouse.
2A	12 May 2020	Date of 3 invoices from United Cargo to Time Spices (invoices #24816, #24817 and #24818).
2A	13 May 2020	Metro Plastics issues invoice no. 231 dated 13 May 2020 to Time Spices for $2,150.50 for dates shipped on 13 May 2020 (Second Agreement).
2A	13 May 2020	Alfarsi sends to Gharib 3 invoices from United Cargo, dated 12 May 2020 (invoices #24816, #24817 and #24818), addressed to Time Spices. Time Spices paid these invoices (on 29 June and 14 July 2020).
2A	14 May 2020	Alfarsi sends to Gharib invoice from Metro Plastics no. 231 dated 13 May 2020, addressed to Time Spices. Gharib’s evidence is that Time Spices agreed to pay this invoice to help Alfarsi because Alfarsi could not afford it. Alfarsi denies this.
2A	15 May 2020	Gharib pays Metro Plastics $2,150.50; messages Alfarsi regarding payment made.
2A	17 May 2020	WhatsApp message from Alfarsi to Gharib regarding packaging the dates.
2A	19 May 2020	Alfarsi sends Gharib via WhatsApp pictures of the packaging received from Metro Plastics.
2A	22 May 2020	Alfarsi sends Gharib via WhatsApp quotes from OJI Fibre Solutions (also a packaging company), and pictures of boxes full of packaged dates saying ready to be loaded.
23 May 2020	End of Ramadan 2020.
2B	25 May 2020	Invoices for Second Agreement (being invoices 2005001, 2005002 and 2005003) sent by Alfarsi to Gharib via WhatsApp. Gharib deposed in his affidavit he does not recall whether he looked at these at the time. Gharib says that the first time he can recall seeing the invoices was about August 2020. At hearing, Gharib says that he thought the content of the invoices represented only a checklist for quantities of the dates.
2A	26-29 May 2020	WhatsApp messages between Alfarsi and Gharib regarding packaging and pricing. Alfarsi agrees that he did not discuss YOF’s branding arrangements with Gharib.
Late May 2020	Gharib provides David with recent invoices to Time Spices to be entered into accounting system, including invoice 10000001 dated 13 December 2019.
1B	27 May 2020	David texts Gharib to ask Alfarsi for a proper invoice (referencing the previous invoice no. 1000001 dated 13 December 2019).
1B	28 May 2020	Gharib requests that Alfarsi re-issue 13 December 2019 invoice no. 1000001 (First Agreement); explained that accountant had called and said needed urgently. Alfarsi sends the revised invoice no. 200500 dated 10 December 2019.
1B	30 May 2020	Alfarsi forwards to Gharib request of a worker for payment. Time Spices pays Alfarsi $2,500 by bank transfer. Gharib transfers it with the description “invoice 2005000”. Alfarsi’s evidence is that this was to pay wages of workers hired by Alfarsi to repack the dates for the First Agreement and to pack the loose dates from the Second Agreement.
1B	May 2020	Time Spices pays $25,000 to Alfarsi in cash (relates to First Agreement, and payments for employees, packaging and branding stickers). Alfarsi’s evidence is that this payment, plus the bank transfers, fully covered invoice 1000001 (reissued as 2005000) for the First Agreement, plus amounts covering payments to employees and for packaging and branding stickers. Alfarsi denies that the cash payments were made under the ‘Second Agreement’.
1A	June 2020	Gharib’s evidence is that by this date, Alfarsi had taken many of the first quantity of dates, had repackaged them and was selling them himself. Alfarsi denies this. Alfarsi says that he did not sell any dates for himself, but in the hearing, Alfarsi accepts that he took dates to sell during Ramadhan. In relation to dates from the First Agreement, Gharib asked Alfarsi around the start of October 2020 if Alfarsi could assist him with trying to sell some of those dates. Alfarsi attempted to sell some of those dates for Time Spices at Sydney Markets but was unsuccessful.
1 June 2020	Gharib sends WhatsApp message to Alfarsi displaying sukkeri date prices.
3 June 2020	WhatsApp messages between Alfarsi and Gharib regarding prices for dates.
5 June 2020	Alfarsi sends WhatsApp messages to Gharib in relation to packaging.
7 June 2020	Gharib sends Alfarsi via WhatsApp contact details for an Indian storeowner.
19 June 2020	Alfarsi sends Gharib via WhatsApp roster of times that Alfarsi’s workers would be working.
2A	June 2020	United Cargo consignment note to move 3 pallets of dates from Warehouse to Perth. Alfarsi’s evidence is that Time Spices asked him to help arrange the shipment of 3 pallets of dates to be delivered to Al Diaa Coffee in Perth. Alfarsi does not have a clear recollection of when they were shipped.
2A	13 July 2020	Further United Cargo invoice addressed to Time Spices
1B	15 July 2020	Time Spices pays Alfarsi $1,400 by bank transfer. (Relates to First Agreement associated arrangements). Gharib sends Alfarsi WhatsApp message showing has done so.
18 July 2020	Alfarsi sends text message to Gharib seeking access to Time Spices’ warehouse.
2A	Late August 2020	Alfarsi’s evidence is that he requested Time Spices to at least recognise Alfarsi’s rights and write a note that they had received the dates. Subsequently, Gharib handed Alfarsi the 3 invoices with a written note saying “The shipment is not ours, we received it to store for YOF Company”. Alfarsi says that he did not see this annotation when he handed the invoices to Gharib in May 2020. Gharib asserts that Alfarsi wanted him to sign the invoices to preserve Alfarsi’s rights and agrees to do so but only through his (also) asserting that the dates were not for Time Spices. Gharib’s evidence is that Alfarsi agreed with what was written. Alfarsi denies this.
18 August 2020	Alfarsi sends text message to Gharib setting out prices for dates.
22 August 2020	Bilal Waleed Mahood appointed as a director of Time Spices.
1A	September 2020	Gharib’s evidence is that the dates from First Agreement due to expire in September 2020. Alfarsi’s evidence is that dates can last for years if stored properly, and that the markings are indicative of a best-before date rather than an expiry date.
1A	October 2020	Alfarsi’s evidence is that in relation to dates from the First Agreement (bearing an expiry date of 30 November 2020), Gharib asked Alfarsi around the start of October 2020 if Alfarsi could assist him with trying to sell some of those dates (this being not for Alfarsi’s personal gain). Alfarsi attempted to sell some of those dates for Time Spices at Sydney Markets, but was unsuccessful. Alfarsi gave his subsequent 3 booking slots at Sydney Markets to a friend. Gharib’s evidence is that Alfarsi said to him that Alfarsi wished to start settling the dates directly to the public (as opposed to other businesses), and that he intended to start to sell the dates at Sydney Markets in Flemington.
1A	2 October 2020	Alfarsi sends text message to Gharib saying that he needs to take dates in the evening, and that he is going to Sydney Markets. Gharib leaves a key for Alfarsi.
1A	10 October 2020	Alfarsi attends Sydney Markets. Alfarsi forwards to Gharib via WhatsApp pictures of himself at Sydney Markets with Talah Dates.
22 October 2020	Consignment note for delivery of 3 pallets of dates from Time Spices’ Warehouse to United Cargo’s warehouse in Bassendean, Western Australia.
25 October 2020	Alfarsi sends to Gharib via WhatsApp two Excel spreadsheets. Gharib says that these were produced by Time Spices and show the dates sold by Time Spices. Alfarsi says that Gharib made these sales and shared the data in Time Spices’ database, and Alfarsi asked his wife to prepare the Excel spreadsheets for Time Spices as a favour (as Gharib is not familiar with Excel, but Alfarsi’s wife is very good at it).
1A	Late October 2020	Husham Sameen, warehouse manager for Time Spices, says Alfarsi rang him to foreshadow his attendance at Time Spices’ warehouse to move pallets to a warehouse in Rydalmere.
1A	[Date not known]	Time Spices disposes of remainder of dates from First Agreement.
2A	Late November 2020	Alfarsi’s evidence is that Gharib contacted Alfarsi, noting that there was no more room in the storage for the dates, and that he was going to discard them. Alfarsi decided to assist Time Spices by moving the dates to another location. Subsequently, Alfarsi contacted a friend from Metro Plastics and hired a room from them. Metro Plastics did not charge rent, as they were a friend and did it as a favour. Gharib’s evidence is that it was Alfarsi who said that he intended to move the dates to a new location.
2A	25 November 2020	Alfarsi sends Gharib (via WhatsApp) two Excel spreadsheets. Alfarsi says that Gharib told him that he had used the spreadsheets to indicate how many dates had been sold.
2A	21 and 27 November 2020; 2 and 4 December 2020	Text messages between Alfarsi and Gharib about moving the dates to a different warehouse.
2A	On or before 4 December 2020	A number of pallets of dates moved from Warehouse to Rydalmere warehouse. Alfarsi denied having a warehouse in Rydalmere or renting a storage room there. Alfarsi says that this was Metro Plastic’s warehouse (although in an affidavit of 16/2/24, he said he hired a room, albeit did not pay anything for it, from his friend ‘Mohammed’). This was the warehouse at 5/2-8 South Street, Rydalmere. Alfarsi adds that he sold other goods from there as well. Five pallets returned on the same day to be stored in a cool room at the Warehouse.
2A	7 December 2020	Consignment note re delivery of 20 pallets from Time Spices’ warehouse to a warehouse at unit 5/2-8 South Street Rydalmere.
2A	10 December 2020	WhatsApp messages between Gharib and Alfarsi in which Gharib requested dates to be ready for collection.
2A	10 December 2020	Stated “ship date” of “Invoice 00” to Time Spices (written as 12/10/2020).
2A	21 December 2020	Alfarsi forwards to Gharib via WhatsApp the Excel spreadsheets from Time Spices’ system displaying dates Time Spices had sold dates. Alfarsi says he sent them because Gharib had asked him to help Gharib identify the dates that were sold.
2B	22 December 2020	Stated “ship date” of “Invoice 02” to Time Spices (written as 12/22/2020).
2B	31 December 2020	Gharib sends Alfarsi a screenshot of a record of transfer of $4,875 from Time Spices to Alfarsi.

2B	1 January 2021	Alfarsi receives $4,875 from Time Spices.
2A	2 January 2021	Gharib sends Alfarsi a text message asking Alfarsi to send Gharib how much Gharib paid in cash before 18 August. Alfarsi replies 25,000.
2B	6 January 2021	Alfarsi sends Gharib via text message an image depicting a screenshot of an invoice labelled “Invoice 02” dated 22 December 2020.
2B	6 January 2021	Time Spices pays $2,000 to Alfarsi. Gharib sends to Alfarsi a record of the payment.
2A	8 January 2021	Alfarsi sends Gharib a text message asking when Gharib would like to meet to settle the “big invoice”. At the hearing, Gharib says this was a reference to a statement sent by Mohamed.
2A	12 January 2021	Gharib forwards to Alfarsi via WhatsApp message from a third party asking for a box of dates. Gharib forwards to Alfarsi via WhatsApp copies of the United Cargo freight invoices.
2A	13 January 2021	Consignment note for movement of 9 pallets of dates from Time Spices Warehouse to warehouse at unit 5/2-8 South Street Rydalmere. (Alfarsi’s evidence is that) Total number of pallets moved to Rydalmere, in December 2020 and January 2021, was 29, but 5 were returned straight back in December.
2A	25 January 2021	Gharib sends text message to Alfarsi asking for various boxes of dates.
2A	30 January 2021	Alfarsi sends text message to Gharib seeking outstanding money.
2B	31 January 2021	Time Spices pays $500 to Alfarsi. Time Spices gives description “Invoice 02”. Gharib sends Alfarsi message advising of payment.
2A	2 February 2021	Alfarsi sends text message to Gharib asking when they will be paid, and asking for regular instalments.
2A	3 February 2021	Gharib sends text message to Alfarsi saying 100% today.
4 February 2021	Stated “ship date” of “Invoice 07” to Time Spices (incorrectly written as 02/04/2020). Sent on 23 February 2021.
2A	4 February 2021	Alfarsi sends text message following up Gharib for payment. Gharib replies saying all the invoices and transfers are with Abu Bilal, and that Gharib will check for him.
2A	5 February 2021	Alfarsi sends text message to Gharib asking if Gharib checked for him.
2A	6 February 2021	Gharib sends text message in reply, saying the transfer has not been done.
2A	8 February 2021	Alfarsi sends text message to Gharib asking him to transfer remaining payment.
2B	8 February 2021	Time Spices pays Alfarsi $1,000.
2A	9 February 2021	Alfarsi sends text message to Gharib asking if Abu Bilal got back to him. Gharib replies saying he did not, but will reply at night time.
2A	10 February 2021	Alfarsi sends follow up text message to Gharib.
2B	12 February 2021	Time Spices pays $2,262.61 to Alfarsi. Reference given “Invoice 02”. Gharib sends text message to Alfarsi asking if he has received anything, “he said he paid”. Alfarsi says “Yes received”.
2A	23 February 2021	Alfarsi sends Gharib “Invoice 07” (hand crossed out to read 017) dated 2 April 2020 (or possibly 4 February 2020) for $9,309.
2A	5 March 2021	Alfarsi sends Gharib a text message with the address 5/2-8 South Street, Rydalmere (address of new warehouse).
2A	10 March 2021	Alfarsi sends Gharib a text message saying you told us that you will pay us by today so please pay us.
2A	11 March 2021	Gharib sends Alfarsi a text message saying I will call you now.
2A	15 March 2021	Alfarsi sends Gharib a text message saying you didn’t call me, you didn’t come to the warehouse and you didn’t transfer the money.
2A	22 March 2021	Stated “ship date” of “Invoice 19” to Time Spices.
2A	26 April 2021	Alfarsi sends Gharib “Invoice 19” dated 22 March 2021 for $10,510.
7 May 2021	YOF Global Investment Pty Ltd ACN 650 030 372 incorporated (YOF Company).
2A	10 May 2021	Alfarsi sends text message following up Gharib for payment.
2A	29 May 2021	Alfarsi sends text message following up Gharib for payment.
2A	6 July 2021	Alfarsi sends text message following up Gharib for payment.
2A	7 July 2021	Gharib replies by text message, saying that he is not personally involved in making any more payments to anyone; Abu Bilal is the one who is responsible for making payments; Gharib has repeatedly told him but he said to give him some time. Gharib reports that he told Abu Bilal that if he did not pay, he (Gharib) was going to pay Alfarsi with the cash that he collected from the shops. In his evidence, Gharib accepted that some monies were owing to YOF. This was the subject of a statement by Muhammed.
2A	5 August 2021	Alfarsi sends text message to Gharib asking what is happening. Gharib replies, saying that they went through a difficult time and had to let all the employees go; saying it’s only a matter of time, they have everything under control now and there shouldn’t be a problem and he should transfer 100%.
2A	12 August 2021	Alfarsi sends text message to Gharib asking what is happening.
2A	18 August 2021	Alfarsi sends text message to Gharib asking what is happening. Gharib replies, saying the situation is like covid, we can never control it; next week 100%.
2A	25 August 2021	Alfarsi sends text message to Gharib, reminding him of his promise. Gharib replies, saying I think cash on Saturday.
2A	28 and 30 August 2021	Alfarsi sends text message following up Gharib. Text message exchanges. Gharib says for 2 years he put up with Alfarsi’s mistakes. Gharib says it’s true that your money is overdue but you will end up getting it. Alfarsi replies saying the fact that you gave me a promise more than 5 times and didn’t keep it is shameful.
2A	1 September 2021	Gharib sends text message to Alfarsi saying he prays that things become easy for him so he can pay Alfarsi back, and he does not want to owe money to anyone.
2A	7 September 2021	Alfarsi sends text message to Gharib saying you didn’t tell me when you are going to pay me. Gharib replies saying he offered a 20% discount to customers who pay their invoices within 10 days, he is going to lose around $20,000 but better to recover his money and get rid of debts.
2A	12 September 2021	Alfarsi sends text message to Gharib following up payment. Gharib replies saying be reassured, he told Abu Bilal that if we do not pay Alfarsi back before 1 October, “I am leaving the company”. Gharib acknowledges that Alfarsi has been “very patient, not much left”. In his evidence at hearing, Gharib said that it was Walid Ali who was responsible for authorising payments.
2A	16 September 2021	Further follow ups of payment via text message. Gharib replies saying today he will put pressure on the customers.
2B	17 September 2021	Gharib replies via text message, saying today he is going to transfer some money to your bank and the rest at the end of the month. Time Spices pays $5,000 to Alfarsi.
2A	April 2022	Alfarsi notices that about 18 pallets in the Rydalmere storage reached their expiration dates. Alfarsi calls Gharib and asks for his instructions. Gharib consents to have the 18 pallets disposed of. Metro Plastics helps advertise the expired 18 pallets on Facebook.
2A	26 August 2022	Plaintiff commences this proceeding
2A	29 August 2022	Gharib resigns as director of Time Spices; and appointed (only) as secretary. He denies that this was attributable to the events the subject of this proceeding
2A	October 2022	YOF obtains default judgment against Time Spices.
2A	2 December 2022	Garnishee order granted against Time Spices.
2A	12 December 2022	A farmer responds to a Facebook ad for the expired 18 pallets to be used as cow fodder; and collects them from the Rydalmere storage
2A	30 January 2023	A further Garnishee order granted against Time Spices
2A	22 February 2023	Default judgment and Garnishee order set aside
2A	21 April 2023	Amended Statement of Claim filed
2A	17 May 2023	Time Spices files Defence
2A	9 July 2024	First day of hearing. Leave granted to YOF to file Further Amended Statement of Claim (and Amended Defence to Cross-claim)

There were other evidentiary references that the parties relied upon in their submissions. I will identify those in the course of my treatment of those submissions.

Credit

There were multiple witnesses, but most were peripheral to the main witnesses Messrs Alfarsi and Gharib.
There was no suggestion made during the cross-examination of these two protagonists that they were deliberately lying or otherwise not honestly trying to assist. It is fair to acknowledge that the events that both witnesses were narrating during the hearing occurred, in some instances, close to 5 years ago and, at the critical juncture of asserted contract formation, over 4 years ago now. That is particularly significant for an oral contract and I am mindful of the observations of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319 about the fallibility or frailty in human recollection in the context of litigation. It is also fair, I think, to acknowledge the possibility, in respect to both witnesses, both of whom used interpreters, that certain questions and answers during the course of their evidence may have been lost or mired in issues associated with translation.
Generally, I thought Mr Alfarsi was very committed to a particular version of events, which he was unwilling to relinquish when certain matters were referred to him.
I did not regard Mr Gharib as a satisfactory witness. On occasions, he somewhat improvised certain implausible explanations (including his interpretation of what the invoices signified to him) and occasionally gave non-responsive answers; creating an impression of evasiveness. Sometimes when he was asked questions naturally amenable to a yes or no answer, he preferred to give explanations; which created an impression of a desire on his part to try to further the forensic interests of Time Spices. I treat his evidence with some caution.
That conclusion had certain significant forensic consequences; for example, when Mr Gharib purported to explain the purpose of payments made by Time Spices to YOF on the basis of his recollections of events occurring many years before; unassisted by contemporary records.
In the event of conflict, I would generally prefer Mr Alfarsi’s evidence as being more reliable. Nevertheless, I do not seek to over-emphasise the significance of my assessment of the demeanour of each witness and in the absence of admissions, place much greater store upon the objectively proven, or provable, facts as established by contemporaneous documents and the logic and probability of events.

Legal principles

Identifying terms in informal contracts

In this proceeding, the parties agree that a contract was entered. They also agree that it was not singularly reduced to written form. What fundamentally divides them are the terms of that contract.
The principles for ascertaining the terms of informal contracts that are partly written and partly oral were summarised by Sackar J in King v Adams [2016] NSWSC 1798^[3] at [65]-[69]^[4] as follows (citations generally omitted):
3. The appeal against this decision was dismissed: King v Adams & Ors [2017] NSWCA 277
4. Adopted, for example, in Milicevic & Anor v Ferrari East Pty Ltd & Ors (No.3) [2023] NSWSC 1116 (Henry J) at [300]

“65. Ascertaining the existence and terms of an oral contract is a question of fact...
66. Consideration of surrounding circumstances and post contractual conduct is permissible when the existence or terms of an oral contract are in issue...
67. Spigelman CJ explained in County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [7]:
“The subject matter and the concomitant terms of the [oral] contract must be inferred from a combination of surrounding circumstances including conversations, documents and conduct none of which provide a definitive form of words. The issue is not one of interpretation, because there are no words to interpret. The issue is one of fact: what did the parties agree?”

68. In Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153, Heydon JA (as his Honour then was) observed:
“…a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words … The question in this class of case is whether the conduct of the parties, viewed in the light of the surrounding circumstances, shows a tacit understanding or agreement … The conduct of the parties, however, must be capable of proving all the essential elements of an express contract … Care must also be taken not to infer anterior promises from conduct which represents no more than an adjustment of their relationship in the light of changing circumstances … Moreover, in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may by reason of the parties’ subsequent conduct become sufficiently specific to give rise to legal rights and duties. In a dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed.”

69. In Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424, Allsop J (as he then was) similarly explained:
“[Contracts] can also arise when business people speak and act and order their affairs in a way without necessarily stopping for the formalities of dotting i's and crossing t's or where they think they have done so … Sometimes this failure occurs because, having discussed the commercial essentials and having put in place necessary structural matters, the parties go about their commercial business on the clear basis of some manifested mutual assent, without ensuring the exhaustive completeness of documentation. In such circumstances, even in the absence of clear offer and acceptance, and even without being able (as one can here) to identify precisely when a contract arose, if it can be stated with confidence that by a certain point the parties mutually assented to a sufficiently clear regime which must, in the circumstances, have been intended to be binding, the court will recognise the existence of a contract. Sometimes this is said to be a process of inference or implication. For my part, I would see it as the inferring of a real intention expressed through, or to be found in, a body of conduct, including, sometimes, communications, even if it be the case that the parties did not consciously advert to, or discuss, some aspect of the relationship and say: ‘and we hereby agree to be bound/ in this or that respect. The essential question in such cases is whether the parties' conduct, including what was said and not said and including the evident commercial aims and expectations of the parties, reveals an understanding or agreement or, as sometimes expressed, a manifestation of mutual assent, which bespeaks an intention to be legally bound to the essential elements of a contract.” (citations omitted)

In Highfields Australia Pty Ltd v Advanced Motor Dealers Group Pty Ltd (Received and Manager Appointed) [2023] NSWSC 1458, Richmond J summarised principles relevant to the determination of the existence of an oral contract and its terms^[5] (citations omitted):

“113. Where the existence and terms of an oral contract is in issue, consideration of the surrounding circumstances including the history of the relationship between the parties and their conduct prior to and at the time the alleged contract was entered into is permissible, as well as post-contractual conduct.
…
115. It is for this reason that where the events (including conversations) relied upon took place many years ago, it is recognised that “the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities together with the documentation tendered in evidence”.
5. Approved in Touma v Highfields Australia Pty Ltd [2024] NSWCA 160 at [18]

More generally, when ascertaining what the parties agreed, the Court must consider what the words and conduct of the parties would have led a reasonable person in the position of the other party to believe who had knowledge of all the background circumstances then known and reasonably available to the parties. The intention of the parties is objectively ascertained and not by reference to their subjective intentions or beliefs: Realestate.com.au Pty Ltd v Hardingham (2022) 277 CLR 115 at [15], [47] and [48].

Indica of sale of goods agreement

Counsel for YOF submitted that it was unnecessary for the Court to consider provisions of the Sale of Goods Act1923 (NSW) (the ‘SOG Act’) since that legislation did not dictate or even address formal or minimum requirements for a valid contract for sale (or agreement to sale). Indirectly, Counsel for Time Spices’ submission was to the same effect, since on his view, whether or not the agreement was properly characterised as a contract for sale, or a consignment agreement, the provisions of the Act would apply (T 216.18).
I consider that the extent to which the subject contract meets or reflects rights and obligations under the SOC Act potentially or theoretically has some bearing upon the process of characterisation. In this context, parties do not contract in a vacuum or in isolation independently of how their relationship, once constituted, may be shaped by legislation. That said, there appeared to be no involvement of lawyers in the making of the contract; which undercuts the force of that observation.
Section 6 of the SOG Act provides:

“(1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration called the price. There may be a contract of sale between one part owner and another.
(2) A contract of sale may be absolute or conditional.
(3) Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale; but where the transfer of the property in the goods is to take place at a future time, or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell.
(4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled, subject to which the property in the goods is to be transferred.”

Material definitions include:

“Contract of sale”, which includes an agreement to sell as well as a sale; and

"Goods" include all chattels personal other than things in action and money: s 5.

A contract for sale (or agreement to sell) may be partly oral and partly in writing or may be implied from the parties’ conduct: s 8.
Section 22 provides for the situation when property in the goods is transferred. The section provides:

“(1) Where there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.
(2) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties, and the circumstances of the case.”

Section 24 provides for a reservation, in the seller of the goods of a right of disposal. Materially, the section provides:

“(1) Where there is a contract for the sale of specific goods, or where goods are subsequently appropriated to the contract, the seller may by the terms of the contract or appropriation reserve the right of disposal of the goods until certain conditions are fulfilled. In such case, notwithstanding the delivery of the goods to the buyer or to a carrier or other bailee for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled.”

Section 24 reflects statutory recognition of the Romalpa^[6] clause, whose purpose has generally been described as protecting the seller from the buyer’s insolvency where the price remains unpaid; and to defeat the claims of other creditors with registered charges who would otherwise take priority over the seller’s interest^[7].
6. Aluminium Industrie Vassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676
7. K Sutton, Sales and Consumer Law (4th ed, LBC Information Services, 1995), [14.47], pp 415-16
As Professor Sutton noted^[8], a typical situation, or perhaps reason, in which such a clause is inserted is where the buyer resells the goods to a sub-purchaser in the normal course of business; in which case it is provided that the proceeds of such resale (or debt owed by the sub-purchaser to the buyer) are held by the buyer on the seller’s behalf. The benefit to the seller is that it can trace the goods or the proceeds of resale (assuming that they are kept separate and identifiable). Since Professor Sutton’s text, the Commonwealth Parliament enacted the Personal Properties and Securities Act 2009 (Cth). Broadly speaking, the significance of a Romalpa clause under that legislation is to confer a security interest in the seller; albeit that this security interest only becomes perfected once registered (s 21 of that legislation).
8. Ibid, p 416
Section 38(1) provides:

“(1) The buyer is deemed to have accepted the goods when the buyer intimates to the seller that the buyer has accepted them, or, subject to section 37, when the goods have been delivered to the buyer and the buyer does any act in relation to them which is inconsistent with the ownership of the seller, or when after the lapse of a reasonable time the buyer retains the goods without intimating to the seller that the buyer has rejected them.”

Indica of consignment arrangements

There is no legislative definition of ‘consignment’, either in the Personal Property Securities Act 2009 (Cth) or elsewhere under the law of New South Wales. However, in Re Arcabi Pty Ltd (in liq); Ex parte Theobold & Anor (2014) 288 FLR 236; [2014] WASC 310 at [31], Master Sanderson referred to two Canadian decisions dealing with the concept in general law. In the first of the decisions Master Sanderson referred to, Re Stephanian’s Persian Carpets Ltd (1980) 34 CBR (NS) Saunders J observed:

“In its simplest terms a consignment is the sending of goods to another. An arrangement whereby an owner sends goods to another on the understanding that such other will sell the goods to a third party and remit the proceeds to the owner after deducting his compensation for effecting the sale is an example of a consignment agreement.”

Then, at [32], Master Sanderson referred to a second Canadian decision, Access Cash International v Elliot Lake Inc & North Shore Corp for Business Development (2000) Carswell Ont 2824 in which Molloy J listed 15 indicia to characterise a consignment, these being:

“(a) the merchant is the agent of the supplier;
(b) title to the goods remains in the supplier;
(c) title passes directly from the supplier to the ultimate purchaser and does not pass through the merchant;
(d) the merchant has no obligation to pay for the goods until they are sold to a third party;
(e) the supplier has the right to demand the return of the goods at any time;
(f) the merchant has the right to return unsold goods to the supplier;
(g) the merchant is required to segregate the supplier's goods from his own;
(h) the merchant is required to maintain separate records;
(i) the merchant is required to hold sale proceeds on trust for the supplier;
(j) the goods are shown as an asset in the books and records of the supplier and are not shown in the books and records of the merchant as an asset; and
(k) the supplier has the right to stipulate a fixed or floor price.”

Like Master Sanderson, I regard these decisions, with respect, as providing useful guidance as to the typical indicia of consignment arrangements.

Submissions

Plaintiff’s submissions (primarily MFI 6)

The plaintiff submitted that the Court should find a contract for sale of the dates for the following reasons.
First, the key sale and purchase agreements were agreed in the communications between Mr Alfarsi and Mr Gharib between December 2019 and February 2020.
Secondly, Mr Gharib did not raise any issue about YOF’s entitlement to send the invoices he did on 9 May 2020; nor their content.
Thirdly, there were numerous follow-ups by Mr Alfarsi for payment of those invoices.
Fourthly, the payments made by Time Spices should be characterised as part payments.
Fifthly, the labelling of the dates bore Time Spices’ name and contact details.
Sixthly, there was some ancillary expenditure by Time Spices in relation to freight costs, packaging and even shelving costs.
Seventhly, the first agreement was a sale agreement (not a consignment agreement) and there was nothing to suggest the later agreement would be different in terms of the arrangement.
Counsel for YOF referred to additional matters that militated against the suggestion that the arrangement was for consignment:

There was no discussion or reference in the conversations to the words ‘consignment’, or ‘agency’;

There was no discussion of ‘commission’ that Time Spices might receive upon its re-sale of the dates;

Mr Alfarsi’s evidence that there was no discussion about warehousing fees (conceptually or as a matter of quantum) should be accepted;

Time Spices did not demand reimbursement for payment of freight costs or warehousing fees when YOF was following up claims for payment; and

In the events that occurred, Time Spices never paid YOF for dates it claimed it sold to its customers, on YOF’s behalf, between April and November 2020.

In respect to quantum, in relation to its claim for the unpaid purchase price, YOF indicated its view that quantum of the unpaid price should not be contentious. But if it was, the quantum was to be calculated by deducting from the purchase price (the aggregate amount of the three invoices) the payments Time Spices made (in the sum of $15,637.61). That yielded the total sum of $587,295.39. YOF submitted that evidence about a $25,000 cash payment made by Time Spices was a recent invention.
As to the quantum of its alternative action for conversion, YOF submitted that the premises for this claim were: (a) 82 pallets were delivered in May 2020; (b) Time Spices did not pay for the dates or account for them; (c) Time Spices did not return the dates. Although there was a generalised allegation that Mr Alfarsi took the dates, there was no supporting evidence. The gist of the evidence of Time Spices’ witnesses was that they did not track the movement of goods coming in and leaving their Prestons Warehouse.

The Defendant’s submissions (primarily MFI 7)

Time Spices submitted that although there was a binding agreement between the parties, there was no binding purchase agreement. Time Spices submitted that the objective facts and conduct of the parties was not consistent with a contract for sale.
First, the content of the oral conversations between December 2019 and February 2020 were equivocal, or ambiguous. In particular, discussion about prices did not occur until (or alternatively continued) after delivery of the dates. Ultimately, no mechanism was agreed to ascertain price. Other matters that were not agreed (apart from price) included quantities of dates, timing for arrival and delivery; when property was to pass and who would bear the risk of branding.
Second, at the time (August 2020) when Mr Gharib said he physically received the invoices, he wrote a note (in Arabic) which signified his agreement only to store goods in its warehouse.
Third, there was no ‘acceptance’ of the goods within the meaning of s 38 of the SOG Act. In March 2020, Mr Gharoub expressly said that Time Spices would not buy goods.
Fourth, there were other things done that were not consistent with the dates having been sold: YOF’s dates were kept separate; it arranged and paid for (at its expense) shelving for YOF’s dates and assisted YOF with packaging, transport, freight and ancillary expenses. It allowed Mr Alfarsi to come and go to the warehouse; and even helped him moved pallets to YOF’s Rydalmere warehouse.
This last point was then taken up again in Time Spices’ submissions that the objective facts favoured characterisation as a consignment. But in addition, Time Spices cited other factors supporting that characterisation:

It produced records of sales to its customers to YOF;

It made payments to Mr Alfarsi for invoices issued referable to sale;

Labelling and packaging which featured YOF’s ‘Talah’ branding or logo on the dates;

Mr Alfarsi’s information about prices for Time Spices’ sales after May 2020 and associated endeavours in helping the latter sell the dates; and

YOF’s direction as to the shipment of dates from the Prestons warehouse

Consideration

On the binary question that the Court has been asked to adjudicate, on the balance of probabilities, I prefer YOF’s position.

Formal requirements for contract of sale were met

I find that the essential elements of a contract for sale were established by February 2020. There was no formal requirement for a written contract. There were ‘goods’ (the dates), there were quantities of goods (82 pallets), and there was ‘monetary consideration’ (ie price) for the goods; either by way of payment or at least a promise of payment of money for the goods. I accept, on the probabilities, YOF’s submission that this was evidenced not merely on the face of the invoices of 9 May 2020 upon which YOF sued, but that these matters in the invoice were consistent with and reflected Mr Alfarsi’s uncontradicted version of a conversation that he had with Mr Gharib in February 2020 (for which he took a note and used the note) and the table referred to in paragraph 51 of Mr Alfarsi’s first affidavit^[9].
9. Subsequent to the hearing, and with the Court’s leave, the plaintiff’s Counsel supplied the Court with a spreadsheet (MFI 8) reconciling the types, quantities and prices of the dates summarised at paragraph 51 of Mr Alfarsi’s first affidavit with the three invoices issued by the plaintiff on 9 May 2020. The defendant supplied an annotated version of the same document (MFI 11) which did not contest the accuracy of the information supplied in MFI 8 but rather added additional information which had not been solicited by the Court
I reject Time Spices’ contentions that, in respect to price, there was merely an agreement to agree^[10] or that the parties’ correspondence was equivocal. In particular, although Time Spices pointed to the WhatsApp message in which Mr Gharib said words to the effect “if we receive 3 containers before the month of Ramadan then it will work, depending on the quality and price” on 9 January 2020 (Exhibit A, CB 55-57), discussions had evolved from that point and as explained later, YOF required certainty about these matters before it could transact with its Saudi suppliers.
10. cf Australia China Business Bureau Pty Ltd v MCP Australia Pty Ltd [2003] FCA 934 at [237] and [253]
I have considered Mr Gharib’s evidence at paragraphs 59 and 60 of his affidavit, in which he asserts that, on 19 March 2020, he told Mr Alfarsi that he would not be purchasing the dates (on the basis of the expected timing for delivery, with reference to Ramadan). Mr Alfarsi denied the exchange and there is no additional evidence to support Mr Gharib’s version. Not only did Mr Gharib fail to deny Mr Alfarsi’s evidence of the crucial phone call in February 2020, but he omitted to deal with other evidence of communications in that month and throughout the early part of March 2020.
As I allude to elsewhere, it is improbable if, having made substantial commitments with its Saudi suppliers on the faith of an agreement with YOF by February 2020, Mr Alfsari would settle for anything less than what Mr Gharib had committed to. I accept further YOF’s submission that there was no cooling off period or conduct its part manifesting its assent to Mr Gharib’s purported declaration in March 2020 even if (contrary to the above) I found that he uttered it.
I have also considered Mr Gharib’s evidence at paragraphs 95 and 101 of his affidavit, featuring discussion about new prices for dates. However, also having regard to Mr Alfarsi’s evidence in reply (16 February 2024) paragraphs 53 and 58, this was done in a context where the sales as between YOF and Time Spices had concluded and Mr Alfarsi was endeavouring to assist Mr Gharib with the latter’s customers in furtherance of assisting Time Spices and strengthening relations (and goodwill).
It does not matter, for the purpose of identifying agreement to the existence of material terms of a contract for sale, that Mr Gharib only received the invoices of 9 May 2020 on WhatsApp on 25 May 2020 if, as occurred here, the invoices reflected what had already been verbally agreed.
I do not ascribe much weight upon Ms David’s evidence about the uniqueness, from Time Spices’ perspective, of the amount of the invoices. Whatever was the precise ambit of Mr Gharib’s authority to approve the transaction, vis a vis, Mr Ali, is not probative of what, objectively, was indicated by the parties’ dealings.
Further, the circumstance that the date for repayment was not expressly fixed is not compelling as a court would imply a term for payment within a reasonable time.
There was, moreover, ‘acceptance’ and ‘receipt’ of the dates by Time Spices throughout May 2020. The 82 pallets were actually received by and stored in Time Spices’ Preston warehouse; where the substantial proportion were stored for many months. This renders otiose recourse to s 38 of the SOG Act. But even if that provision was engaged, Time Spices’ sale of those goods to its own customers without accounting to YOF amounted to conduct inconsistent with YOF’s continued ownership of the dates. Further, there was no evidence that Time Spices requested YOF to examine the dates for the purpose of ascertaining that what had been manually received by it conformed with what had been indicated in the table.
Time Spices relied upon Mr Gharib’s handwritten insertion of words “The shipment we received is not ours; we received it to store it for YOF company” on copies of invoices as proof that acceptance of the goods was missing. But contrary to its submission, his insertion of those words was not ‘contemporaneous’ with the receipt of the dates in May 2020, in the circumstances. The insertion was made in August 2020, after the invoices had been sent by WhatsApp message in late May 2020 and was only prompted by Mr Alfarsi’s concern about delayed payment. I accept Mr Alfarsi’s evidence that he immediately conveyed his disagreement to Mr Gharib. There is force in YOF’s submission that this insertion of words at that time should be viewed in a context of deteriorating economic circumstances occasioned by the COVID-19 pandemic but at least, I agree with YOF that the statement had no legal effect.
Further, I agree with YOF’s submission that the dates had effectively been stored in the Prestons warehouse without being segregated from Time Spices’ other goods. This was indicative of Time Spices treating the dates as its own.

Immateriality of other provisions suggested by YOF for characterisation of contract

I do not accept that the contract contained the omissions referred to by Time Spices in its written submissions as derogating from the notion that it was an enforceable contract for sale. I accept the plaintiff’s submissions that this case does not raise any issue about the construction or operation of the Romalpa clause: the plaintiff was not seeking to exercise its any security interest arising from that clause (or engagement of the statutory provision) and, moreover, such a clause was not an essential part of a contract for the sale of goods (whatever be its popularity with sellers of goods).
In this connection, I find that there was no discussion as between Mr Alfarsi and Mr Gharib about title to the property. Thus, although there were words about title to property on the face of the invoices, there was missing between the parties any adoption of those words in writing or by conduct. (As explained, the position was different in relation to the kinds, quantities and prices of dates). I further accept Mr Alfarsi’s explanation as to how the words appeared on the invoice; effectively being that title had not been discussed and the words were a reflection of what was in YOF’s software system. They had not been incorporated.
I further find that there was no express discussion as to when property in the dates would be transferred to Time Spices, or which party bore the risk of damage to (inherently) perishable property.
The omission of any agreement as to those matters does not lead me to infer that there were matters that might be expected to be in a contract for sale. They reflect the circumstance that an informal arrangement was effectively between lay persons apparently not assisted by lawyers. They do not point to the transaction as necessarily indicative of a characterisation of the arrangement as being one for consignment rather than sale or vice versa. Counsel for Time Spices eventually suggested that the provisions of the SOG Act would apply irrespective of the ‘characterisation choice’ presented by the parties in this proceeding (T 216). The omission of these other matters as a matter for negotiation indicated that this particular circumstance may be regarded as neutral when considering the proper characterisation. Indeed, if anything, the absence of a Romalpa clause might be thought to be adverse to Time Spices’ case given the indicia of a consignment agreement referred to in paragraph [56] above.

Absence of complaint as to correctness of invoices

I place weight upon the absence of, or at least delayed, complaint by Time Services in asserting that it was not liable to pay the invoices on the basis that they did not reflect the parties’ arrangement. In this regard, Mr Gharib had admitted seeing and reading the 9 May 2020 invoices by WhatsApp on 25 May 2020 (T 121.20 - 121.24) – even if he only received hard copies later in August. I regard as implausible, to the point of disingenuous, his explanation that the invoices only reflected an indication of the quantities (and kinds) of dates YOF expected Time Spices to sell; or more fancifully, that he did not have understood what the invoices signified. That would render the document essentially meaningless whereas I place weight upon the invoices as reflective of the material terms that had been agreed in February.
Despite his evidence to the contrary, Mr Gharib knew what was patently obvious: the invoices reflected YOF’s claim for payment and evidenced what had been agreed upon. His absence of complaint was not only evidence for the truth of the underlying arrangement but also to his credibility (and derivatively the credibility of Mr Ali), both in an adverse sense, of Time Spices’ statements in denial of the arrangement.
There was argument between the parties as to the significance of the WhatsApp messages Mr Alfarsi sent to Mr Gharib to ‘follow up’ payments of the 9 May 2020 invoices. On this particular issue, however, I find that there was some ambiguity in the WhatsApp messages about what he was chasing up.

Surrounding circumstances

I accept Mr Alfarsi’s account of his conversation with Mr Gharib on or about 17 December 2019 at paragraph 28 of the former’s first affidavit. I also find that it reflects the commercial circumstances faced by both parties. That accords with the objective facts and circumstances that occurred at that time. Accepting, as I do, this part of Mr Alfarsi’s first affidavit, YOF effectively required Time Spices’ instructions as to types of dates, quantities and prices before it placed its orders from its Saudi Arabian suppliers. The instructions, which was the result of negotiations, occurred between late December 2019 (after the first agreement) through to February 2020. Subsequent to his receipt of those instructions, he arranged for YOF’s purchase from its Saudi suppliers throughout late February and into March 2020.

It made little or no economic sense for YOF to have incurred the expense for precisely ascertained quantities of dates at certain prices only to agree with Time Spices that it would only be paid on the inherently uncertain contingency of what quantities Time Spices could sell them for. Mr Alfarsi’s evidence at paragraph 15 of his affidavit of 16 February 2024 is persuasive. On the other side of the bargain, Time Spices was motivated to sell dates it received from YOF for the former’s customers. That suited a fledgling importer (for the purposes of the Australian market) like YOF. These commercial motives or imperatives support YOF’s characterisation of the agreement as being one for sale.
It appeared to be common ground, further, that the transaction entered in February 2020 was similar in nature to the transaction entered into in December 2019. In that regard, as a further related surrounding circumstance, I agree with Counsel for YOF that the first agreement, entered into in December 2019, was a contract for sale. This was indicated, at least, by a partial payment by Time Spices of the purchase price for the 4 pallets of dates without any need for accounting of what quantities had been sold. That was inconsistent with the notion of consignment. I accept, in particular, that if there was to be a fundamental difference in the nature of the transaction entered into from February 2020, that would likely have been clearly delineated in the parties’ communications. It was not.

Further matters that militate against the agreement constituting a consignment

Using the Canadian authorities referred to earlier only as a guide, there were a number of matters against Time Spices’ case. First, whilst acknowledging that the labels that the parties themselves give to a transaction are not conclusive of the nature of the relationship^[11], neither Mr Alfarsi nor Mr Gharib spoke the language of consignment or agency in their discussions.
11. South Sydney DRLFC v News Limited (2000) 177 ALR 645 at [134]
I accept YOF’s submission that there was simply no evidence for some of the pleaded terms of the consignment arrangement, including the pleaded term that Time Spices segregated YOF’s dates from other property in its warehouse.
Further, there was, at least a significant tension, if not outright inconsistency, between the pleaded term of the arrangement that each of YOF and Time Spices were capable of selling the former’s dates. As Counsel for YOF persuasively submitted, for that term to be efficacious, there would have needed to be organisation and planning on such basic logistical questions as when and how each could go about selling the same product.
Time Spices did not return to YOF dates that it did not sell.
Time Spices was no ordinary merchant that was entirely disinterested in the subject matter of what it understood to sell and selling dates exclusively on JOF’s behalf. It was a wholesaler of the same type of product that it had been supplied with by an importer of product supplied from overseas. I formed the impression from Mr Gharib’s affidavit that he was at pains to emphasise the ‘low quality’ of YOF’s product and pointing to other difficulties with the product being successful in the Australian market. This jarred with Time Spice’s later submission that Time Spices were interested in the possibility of a joint venture (T 230). There was, in other words, an inherent temptation or potential conflict of interest and duty in Time Spices passing off dates as their own; a problem worsened with the labelling and packaging of the goods which, arguably, may have confused customers as to who was the owner of the dates through the express reference to Time Spices’ business name and postal address.
Similarly, there was nothing to indicate any earlier occasions when Time Spices had acted as a consignee of goods of this kind. No pro forma written document for consignment of Time Spices was in evidence. Nor, to round off the matter, was there evidence indicating Time Spices’ reputation amongst its creditors as an entity known as being in the business of holding the goods of others on consignment.
Further, very significantly, there was no adequate system whereby Time Spices could adequately account to YOF for the amounts of the latter dates which it sold. I agree with YOF that Time Spices was unable to prove correspondence between lists of quantities of dates sold and invoices issued by YOF reflecting those precise quantities. The spreadsheet in MFI 9 was not persuasive: in my view under the “comment” column, there is commentary that is not sustained by supportive evidence about matters that the parties agreed upon. I accept, also, the manifold criticisms of the document by the plaintiff (MFI 10) and especially its submission of the absence of correspondence or correlation between the information in the sales statements and Time Spices’ invoices. This was substantially explicable by the circumstance, disclosed by the evidence, that no one within Time Spices was responsible for or recorded details as to when YOF’s dates went into Time Spices’ warehouse and when they went out. I accept YOF’s submission that it is inadequate, for the purpose of proving a consignment arrangement, for Time Spices to barely assert that, because Mr Alfarsi was given access to or a key towards the Preston Warehouse, the inescapable inference was that he was responsible for the disposal of up to 50 pallets. As Counsel for YOF argued, it would be ludicrous to think that Mr Alfarsi, a sole trader, had the capacity (in the course of the COVID-19 pandemic throughout 2020-2021) to remove the equivalent of 50 tonnes of dates.
A matter which Time Spices emphasised in support of its characterisation was Mr Gharib providing Excel spreadsheets to Mr Alfarsi in November 2020 (Gharib, 22 December 2023 affidavit, paragraphs 109-112). These appeared in Exhibit A (CB pp 84-103). However, Mr Alfarsi explained (in paragraph 65 of his 16 February 2024 affidavit) that Mr Gharib supplied data about Time Spices’ sales; enabling his wife to prepare spreadsheets as a favour to Time Spices. (Mr Gharib had earlier noted, at paragraph 119, that the spreadsheets had been sent to him by YOF). Further, as Counsel for Time Spices indicated in closing argument (contrary to the content of MFI 9), whatever other inference may properly be divined from Time Spices sending YOF a spreadsheet indicating sales, there was no (evidentiary) linkage between the content of that document and what invoices YOF was supposed to render to Time Spices to reflect the quantities. This was, as Counsel for YOF argued, at a time when Mr Alfarsi was already pressing Mr Gharib for payment of the May invoices. On Time Spices’ case as to the occasion for payment, it was surprising that YOF was not invited to supply invoices reflecting sales information in the spreadsheets. If, as Time Spices contended, the ‘price’ represented the difference between what Time Spices agreed to pay YOF and the prices Time Spices sold the dates to its retail customers, Time Spices did not provide, or account to, YOF as to what its own sale prices to those customers were. In this regard, Mr Gharib’s explanation for why Time Spices did not account to YOF for sale prices to its own customers – because Mr Alfarsi did not ask for it (T 124) – was not only weak but was inadequate when considering the objective nature of the inquiry into characterisation.

Time Spices’ submissions regarding Mr Alfarsi’s post-contractual conduct

I have already dealt with some matters subsequent to May 2020 relevant to the issue of characterisation. But certain specific additional aspects of Mr Alfarsi’s conduct which, taken in isolation, may not have appeared consistent with Time Spices taking unconditional ownership of the dates that were delivered. These were: (a) his own sale of some dates at Flemington markets; (b) dealings with Mr Gharib in relation to the labelling or packaging of dates; (c) Mr Alfarsi’s own movement of some of the dates to Perth and other places; and (d) YOF issuing certain invoices (identified in paragraphs 117 – 139 of Mr Gharib’s affidavit) which Time Spices paid.
As to (a), in his affidavit of 16 February 2024 (at paragraphs 62-63), Mr Alfarsi explained, in his effect, that his attendance at Flemington markets was a once off, with the expiry date for the dates imminent. I accept that explanation.
As to (b), as explained by Mr Alfarsi in his affidavit of 16 February 2024 (paragraphs 49-52), these were matters that touched upon YOF’s dealings with its Saudi Arabian suppliers. Therefore, there were particular reasons for YOF’s continued dealings with Time Spices post-dating delivery of the dates, including loose packaging of some of the dates. I agree with YOF that the inclusion of Time Spices name and address on the labelling was more indicative of a sale than a consignment relationship. A consignment arrangement would have been expected to provide for YOF’s name and details appearing on the labelling.
As to (c), Mr Gharib himself (at paragraphs 113-114 of his affidavit) indicated that in November 2020 he had encouraged Mr Alfarsi to remove dates to a new warehouse and accept Mr Alfarsi’s evidence about Mr Gharib’s indication that he might dispose of the dates given Time Spices’ storage issues. YOF had a relationship with Metro Plastics which explains why the latter’s Rydalmere warehouse could be used for storage (free of charge to Time Spices).
As to (d), Mr Alfarsi consistently explained in his affidavit evidence (paragraphs 72-74 of his affidavit of 16 February 2024) that such payments were made at Mr Gharib’s request, and related to invoices (in December 2020 and February 2021) issued well after the critical discussions in February 2020, were paid well after that time (by February 2021) and should not be attributed to any different or separate agreement with Time Spices. I find this persuasive in circumstances where there was no contemporary corroboration or support for Mr Gharib’s contention.
Moreover, Counsel for Time Spices indicated in the course of oral argument (T 230) that the parties had their discrete commercial incentives to cooperate and deal with each other after the sale transaction; as previously indicated, Counsel indicated that at one point, the parties were contemplating a potential joint venture arrangement.
Finally in this part of the reasons, I agree with the submission of YOF that in some instances, Time Spices did not substantiate important factual assertions made, including that Mr Alfarsi took dates, or transported them to Melbourne.
In my view, Mr Alfarsi’s subsequent dealings with Mr Gharib after May 2020 may be described as a good faith effort to help Time Spices on-sell dates, but was not of itself inconsistent with the notion of sale of the dates to Time Spices.

Conclusion

In the way that the parties have conducted the case, it follows that YOF has made out its claim to sue on the unpaid (balance) of the purchase price. It also follows that there no reductions to that entitlement on account of matters raised in the cross-claim.

The contingent counterfactual

If I am wrong in my characterisation, I propose to briefly state my findings if I had found that the relationship was one of consignment that involved Time Spices only being obliged to pay for quantities of dates sold pursuant to invoices it received from YOF reflecting such quantities.
First, the consignment relationship would still entail an obligation upon Time Spices to account to YOF for the quantities of dates that it received; in default of which it should pay YOF equitable compensation. Put differently, however, considering the circumstances from the perspective of tort, the inference is overwhelming that the dates were either transferred or otherwise disposed of by Time Spices and thereby constitute an act, or acts, of conversion.
Secondly, I accept YOF’s submission that the actual prices for the dates reflected fair value. On that basis, the value of the lost dates was $587,295.39.
Thirdly, credit is to be given for payment of invoices rendered after quantities of sales were received (which is the alternative way of describing what YOF contended was part payment of the 9 May 2020 invoices).
Fourthly, on the basis of those calculations, I would have found that the damages for conversion would have been the same as the quantum of the debt owed.
Finally, in closing argument, restitutionary claims by Times Spices, relied upon to offset Time Spices’ liability, were abandoned.

Costs

In its Counsel’s submissions, YOF sought to be heard on costs in the event, which has now materialised, that it succeeded with its claim. Assuming that, in the light of the publication of these reasons, the parties will be in dispute about costs, I will make directions in connection with that dispute. If contrary to that assumption, the parties agree on costs, a written consent order should be forwarded to my Associate.

Orders

For the reasons indicated in this Judgment the Court orders that:

Judgment is made for the plaintiff for the sum of $587,295.39.

The defendant is to pay interest to the plaintiff on that judgment sum under s 100 of the Civil Procedure Act 2005 (NSW).

The Cross-Claim is dismissed.

Costs are reserved.

The Court also directs that the matter of costs is to be determined as follows:

By 24 July 2024, the plaintiff is to serve evidence and submissions not exceeding 5 pages (excluding the evidentiary references) on the issue of costs;

By 26 July 2024, the defendant is to serve evidence and submissions in reply (not exceeding 5 pages, excluding the evidentiary references) on the issue of costs;

By 29 July 2024, the plaintiff is to serve submissions in reply (not exceeding 2 pages) on costs;

Absent any further contrary intention, the matter of costs will be determined on the papers.

**********

Endnotes

Amendments

19 July 2024 - Representation amended

19 July 2024 - Paragraph [90]: Cross-reference corrected to paragraph 56

Paragraph [115]: Replaced 'deficit' with 'default'

Decision last updated: 19 July 2024

Medium Neutral Citation:	Alfarsi t/as YOF Global Investment v Time Spices Pty Ltd [2024] NSWDC 302
Hearing dates:	9-12 July 2024
Date of orders:	19 July 2024
Decision date:	19 July 2024
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraphs [121]-[122]
Catchwords:	CONTRACTS – supply of dates by importer to wholesaler of herbs and spices – proper characterisation of contract for supply – whether contract for sale or contract for consignment
Legislation Cited:	Personal Properties and Securities Act 2009 (Cth), s 21 Sale of Goods Act1923 (NSW), ss 5-6, 8, 22, 24, 38
Cases Cited:	Access Cash International v Elliot Lake Inc & North Shore Corp for Business Development (2000) Carswell Ont 2824 Aluminium Industrie Vassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676 Australia China Business Bureau Pty Ltd v MCP Australia Pty Ltd [2003] FCA 934 King v Adams & Ors [2017] NSWCA 277 King v Adams [2016] NSWSC 1798 Milicevic & Anor v Ferrari East Pty Ltd & Ors (No.3) [2023] NSWSC 1116 Re Arcabi Pty Ltd (in liq); Ex parte Theobold & Anor (2014) 288 FLR 236 Re Stephanian’s Persian Carpets Ltd (1980) 34 CBR (NS) Realestate.com.au Pty Ltd v Hardingham (2022) 277 CLR 115 South Sydney DRLFC v News Limited (2000) 177 ALR 645
Texts Cited:	K Sutton, Sales and Consumer Law (4th ed, LBC Information Services, 1995)
Category:	Principal judgment
Parties:	Yasir Omar N Alfarsi trading as YOF Global Investment (Plaintiff) Time Spices Pty Ltd (Defendant)
Representation:	Counsel: Ms J Mee (Plaintiff) Mr C Dobbs (Defendant) Solicitors: LawBridge Lawyers & Consultants (Plaintiff) KOR Legal (Defendant)
File Number(s):	2022/00254229
Publication restriction:	Nil