Boga v 15 Glenburnie Rd Pty Ltd - [2025] NSWSC 1009

Supreme Court

New South Wales

Medium Neutral Citation: Boga v 15 Glenburnie Rd Pty Ltd [2025] NSWSC 1009
Hearing dates: 17 February 2025 – 20 February 2025
Date of orders: 5 September 2025
Decision date: 05 September 2025
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The defendants are to pay the plaintiff in the sum of $167,000.
(2) Interest is payable to the plaintiff by the defendants and is to be calculated by the parties.
(3) The defendants are to pay the plaintiff’s costs.

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

Legislation Cited:
Nil

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

Texts Cited:
Nil

Category: Principal judgment
Parties: Thomas Boga (Plaintiff)
15 Glenburnie Rd Pty Ltd (First Defendant)
Ahmed Abdulkader Sakr (Second Defendant)
Representation: Counsel:
G George (Plaintiff)
I Chatterjee (Defendants)
Solicitors:
Elie Rahme and Associates (Plaintiff)
Davies Moloney Barristers & Solicitors (Defendants)

File Number(s): 2023/00361524
Publication restriction: Nil

JUDGMENT

Background facts
The Wollert propert
The Craigieburn property
The pleading framework
Amended Statement of Claim dated 9 May 2024
The loan agreement dated 28 October 2019
Amended defence dated 5 September 2024

Common ground – total advances and total repayments
Amounts in dispute – total advances in dispute and total repayments in dispute
Involvement of Webhe and El Zohbi
The plaintiff and his witnesses’ evidence
The defendants’ evidence
The relationship between Boga and Sakr
Boga’s version of events
Sakr’s version of events

The loan and payments
Evidence of Boga
Evidence of Sakr
Reply to Sakr
Sakr’s reply to Boga

The Wollert property
Boga’s version of events
Hakan’s version of events
Sakr’s version of events
Hakan’s reply to Sakr
Sakr’s reply to Hakan

The Craigieburn property
Boga’s version of events
Seyhan’s version of events
Sakr’s version of events
Seyhan’s reply to Sakr
Sakr’s reply to Seyhan
Seyhan’s reply to Sakr

Cash repayments involving El Zohbi and Wehbe
Boga’s version of events
Sakr’s version of events
El Zobhi’s version of events
Wehbe’s version of events
Boga’s reply to Wehbe

Credibility of parties and witnesses
Counsel for Sark’s submissions on the credibility of Boga and Hakan

Resolution
Counsel for Boga’s submissions as to Sakr’s credibility

Resolution
Jones v Dunkel Inferences – Saly and Hakan
Boga’s submissions in relation to Saly
Sakr’s submissions in relation to Saly

Resolution
Findings – advances and repayments in dispute
Advances in dispute
(1) 27 December 2019 - $450,000 (Invoice dated 19 December 2019)

Resolution
(2) 23 February 2020 – $45,000

Resolution
(3) 10 November 2020 - $100,000

Resolution
(4) 29 November 2020 - $65,000

Resolution
(5) 31 March 2021 - $20,000

Resolution
(6) 19 July 2021 - $150,000

Resolution
Repayments in Dispute 1
(1) 11 November 2020 - $34,000

Resolution
Repayments in Dispute 2 – three repayments to Anthill Construction
(1) 2 June 2020 - $25,000

Resolution
(2) 8 January 2021 - $300,000

Resolution
(3) 25 January 2021 - $40,000

Resolution
Repayments in Dispute 3 – El Zohbi and Wehbe
The disputed December 2019 payment
The disputed 21 July 2021 payment

Resolution
The result
Costs
Proposed orders

JUDGMENT

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

Background facts

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

The Wollert property

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

The Craigieburn property

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

The pleading framework

The starting point is the pleading framework. I will briefly set it out here.

Amended Statement of Claim dated 9 May 2024

By an amended Statement of Claim filed on 9 May 2024, Boga sought to have Glenburnie Rd and Sakr, jointly and severally, pay Boga the liquidated sum of $1,054,000 plus interest and legal costs, and interest after judgment until the debt is paid in full, accruing at $554.35 per day.

The loan agreement dated 28 October 2019

Boga agreed to lend Sakr $1,900,000 (the loan). The terms upon which the loan was made were set out in a written loan deed dated 28 October 2019 (the agreement). The agreement was signed by Boga personally and Sakr as a director of Glenburnie Rd and as the guarantor. There is no dispute as to the provisions of the agreement and its relevant provisions. They are as follows:
Under the agreement, the loan’s term was two months:

“1.1 ''loan Term" means the period of 2 months commencing on and including the - Effective Date.
Tenth Part - Payment of the Total Moneys
The Total Moneys are to be repaid to the Lender on the expiration of 2 months from the Effective Date ("Repayment Date"), subject to the terms of this Deed.”

The loan was repayable on, or before, 27 December 2019 (the repayment date). Under the agreement, Sakr guaranteed Glenburnie Rd’s due and punctual performance of its obligations:

pursuant to the agreement;

arising as a consequence of the agreement; and

the obligation was a principal obligation.

“3 The Borrower must pay interest on the Total Moneys outstanding from time to time at the Normal Rate specified in the Eighth Part of the Schedule, such interest to be calculated on a daily basis on the Total Moneys outstanding from time to time and to be paid in the manner specified in the Ninth Part of the Schedule
Eighth Part - Rate of Interest
Rate of interest if Borrower is not in default: - 10% per annum or such other interest rate that the Lender and the Borrower may agree upon in writing.
Default Interest if Borrower is in default - If the Borrower defaults in the payment of any monies due and payable to the Lender or Nominee (as the case may be) then the rate of interest shall be 12% per annum.
Normal Rate on Further Borrowings: - 10% per annum.
10 The Borrower shall deliver to the Lender, prior to the Lender being required to advance any monies to the Borrower pursuant to this Deed or otherwise, a Certificate of Currency of such insurance from the insurer.”

Under the agreement, an event of default occurred if Glenburnie Rd breached any term of the agreement (event of default).

“11.1 The Guarantor hereby guarantees to the Lender the due and punctual performance by the Borrower of the obligations contained in or implied by this Deed other than those imposed on the Lender and hereby indemnifies the Lender against all loss damage cost and expenses suffered or incurred by the Lender as a result of any failure by the Borrower to pay the total monies or any breach by the Borrower of any of the covenants and conditions contained in or implied by the Documents. Notwithstanding that the Lender may receive payments or makes arrangements with the Borrower or anyone else, the Guarantor are still liable for the Total Moneys now and in the future.
11.2 This guarantee and indemnity given by the Guarantor shall be continuing and irrevocable and the obligations of the Guarantor shall be absolute and unconditional in all circumstances.
11.3 This guarantee and indemnity shall not be considered as wholly or partially discharged and will not be affected, diminished or prejudiced:
11.3.1   by the payment of the Total Moneys;
11.3.2   by any time credit indulgence or concession extended by the Lender to the Borrower or the Guarantor;
11.3.3   by any compounding compromise release discharge abandonment waiver variation relinquishment or renewal of any rights of the Lender against the Borrower or the Guarantor or the failure by the Lender for any reason to take any action against the Borrower or the Guarantor or to enforce any security or any other rights of whatever nature;
11.3.4   by the neglect or omission of the Lender to enforce any such rights that the Lender may have against all or any of the Borrower or the Guarantor;
11.3.5   by any claim which the Borrower or the Guarantor may have or claim to have against the Lender on any account;
11.3.6   by the Borrower being wound up or passing a resolution for its liquidation, or by the appointment of an administrator, receiver, receiver and manager, provisional liquidator or official manager to any of the Borrowers;
11.3.7   the promises, undertakings or agreements of the Borrower in this Deed, or in any document, being or becoming illegal, invalid, void or unenforceable by reason of any past, present or future statute, matter, act or omission by any person;
11.3.8   by the Lender doing something or failing to do something which would, under any law relating to guarantees or indemnities, have affected the liability of the Borrower; or
11.3.9   anything else happening that, apart from this clause 16, would have resulted in the guarantee or the indemnity ending or being affected.

11.4 This guarantee and indemnity shall be a principal obligation and shall not be treated as ancillary or collateral to any other obligation to the intent that this guarantee and indemnity shall be enforceable without first taking steps or proceedings against the Borrower or the Guarantor and further notwithstanding that the Documents or any other obligation arising between the Lender, the Borrower and or the Guarantor shall be in whole or in part unenforceable for any reason whatsoever.
11.5 This guarantee and indemnity shall not be prejudicially effect or be prejudicially affected by any other security guarantee and indemnity at any time held by the Lender but such security or indemnity shall be deemed to be collateral and the Guarantor shall not as against the Lender in any way claim the benefit or seek the transfer of any security guarantee and indemnity or any part thereof.
Fourth Part - Guarantor
Ahmad Abdulkader Sakr of [xx] Northern Highway Bylands VlC 3762”

Amended defence dated 5 September 2024

On 5 September 2024, Sakr filed an amended defence. He agreed to all of Boga’s pleadings regarding the loan, the loan agreement and all its terms and particulars. However, he denied Boga’s allegations in relation to several advances and repayments which will be detailed in the section of amounts in dispute. Sakr also denied that the loan balance of the agreement was $1,840,268.79.
After the amended Statement of Claim and amended defence were filed, the parties adjusted their figures. As best I can understand it, below are the latest advances and repayments that are common ground or in dispute. At times, it has been by no means clear. The dispute mainly involves whether the payments made were related to Anthill Construction, the builder, or were paid in reduction of the loan agreement.

Common ground – total advances and total repayments

Both parties agree to the following advances:

On 30 May 2019, $100,000 – Boga transferred via electronic fund transfer (EFT) to Sakr, first instalment of the first loan (CB22 at [35]). Boga produced a copy of the bank statement including this transaction with the description “loan” (CB 90). Boga also produced a letter from St George Bank confirming that the payee of the transaction was Sakr (CB 92).

On 5 June 2019, $50,000 – Boga EFT to Sakr, second instalment of the first loan (CB22 at [35]). Boga produced a copy of the bank statement including this transaction with the description “loan” (CB 91). Boga also produced a letter from St George Bank confirming that the payee of the transaction was Sakr (CB 92).

On 28 October 2019, $250,000 – Boga EFT to Glenburnie Rd as requested by Sakr, first instalment of the second loan (CB 24 at [45]). Boga produced a copy of the email exchange between his lawyer and Sakr’s lawyer along with the bank statement 64 which shows that he transferred the money via EFT (CB 127-130).

On 29 October 2019, $1,450,000 – Boga EFT to Glenburnie Rd as requested by Sakr, second instalment of the second loan (CB 24 at [45]). Boga produced a copy of the email exchange between his lawyer and Sakr’s lawyer along with the bank statement 64 which shows that he transferred the money via EFT (CB 127-130).

In total, both parties agreed that $1,900,000 has been advanced. However, there is a dispute regarding how that $1,900,000 is composed.
In his affidavit dated 5 March 2024, Boga claimed that in May 2019, he agreed to lend Sakr $150,000 at Sakr’s request. Sakr would pay Boga back in four to six weeks. On 30 May 2019, Boga transferred Sakr $100,000 and a further $50,000 on 5 June 2019. The loan was not repaid and became part of the larger loan advanced in October 2019. In October 2019 Sakr requested a further loan of $1,700,000 and in return a “gift” would be paid to Boga of $150,000 as compensation for advancing the loan. The term “gift” replaced the conventional interest payment, as a lump sum interest payment was haram with Sakr’s religious beliefs and his reluctance to practice “usury”. As he broke his term deposit, Boga needed to pay his bank a penalty fee of $23,890. Sakr agreed to pay the bank’s penalty fee if the loan was executed.
Boga’s solicitor, Guijan Boga, drafted a loan agreement for the sum of $1,900,000 with the land at 15 Glenburnie Rd, Beveridge Victoria (the Beveridge property) to be owed by Sakr as security (the loan agreement). The loan of $1,900,000 was comprised of the first loan ($150,000), the penalty fee ($23,890), and two payments amounting to $1,700,000, which together totaled $1,873,890. Boga did not provide any further explanation about the gap of $26,110.
During cross-examination, Boga gave evidence that Sakr should have paid him back $1,900,000 on 27 December 2019, plus another $150,000 (T55 [33]-[35]):

“Q. And on your evidence, he was meant to pay you back $1.9 million on 27 December 2019, plus another $150,000.
A. Correct.”

In his affidavit dated 29 August 2024, Sakr denied that the $150,000 was a “gift” for Boga providing the loan but it was to be deducted from the building contract of the Wollert property. It would offset any future contractual payments between Semak and Anthill Construction for anticipated building works at the Wollert property.
During cross-examination, Sakr acknowledged that he borrowed $1,900,000 from Boga. He claimed that the loan of $150,000 was paid, however he did not explain how it was comprised (T268 [28]-[50]; T269 [1]; T269 [14]-[18]):

“Q. Well, going back to the principal amount, the 1.9 million.
A. Yes.
Q. In answers you’ve just given, you accept, I think, you didn’t - you receive 1.7 million from Mr Boga in October 2019?
A. Yes.
Q. That’s not 1.9 million, is it?
A. No.
Q. What comprised the 1.9 million was the 1.7 million you received in October and the previous loan of 150,000 plus interest or a gift of 50,000. So that’s--
A. No. That’s--
Q. --a 200,000 sum. So it’s 1.7 plus 200 equals 1.9 million.
A. No. That’s - that’s - that’s not right.
Q. Why did you enter into a loan agreement for 1.9 million if you only received 1.7 million?
A. As I said to you, because always money back and forward with him. And he would have before - before this one, he would have lent me some money. And this is equal 1.9. This is - this is what happen.
Q. He did. He lent you 150.
A. But not - not - wasn’t 150. 150 was - was paid.
…
Q. I’m sorry?
A. I’m not disputing that I borrowed 1.9. I owed the guy before - before he sent me the money, I owed him some money, and this was equal to 1.9. I’m not disputing that.”

Both parties agree to the following repayments:

On 26 November 2019, $67,000 – Boga deposed that Sakr purchased a Ford Raptor for him as a repayment (CB 24 at [48]).

On 26 November 2019, $4,500 – Boga deposed that Sakr paid him cash (CB 24 at [49]).

On 23 December 2019, $556,500 – Boga deposed that Sakr deposited cash to him (CB 24 at [53]).

On 19 March 2020, $300,000 – Boga deposed that Sakr transferred to him via EFT through Anthill Construction (CB 25 at [59]).

On 23 March 2020, $100,000 – Sakr made an EFT to Boga through Anthill Construction (CB 25 at [60]).

On 24 March 2020, $100,000 – Sakr made an EFT to Boga through Anthill Construction (CB 25 at [61]).

On 24 August 2020, $20,000 – Mustapha Mohamad Wehbe (Wehbe) gave cash to Boga as per Sakr’s instructions (CB 26 at [65]).

On 29 December 2020, $350,000 – Sakr made an EFT to Boga (CB 26 at [73]).

On 1 January 2021, $10,000 – Sakr made an EFT to Boga (CB 27 at [74]).

On 25 January 2021, $20,000 – Sakr deposited cash to Boga (CB 27 at [75]).

On 25 January 2021, $20,000 – Wehbe gave the cash to Boga’s wife as per Sakr’s instructions (CB 26 at [76]).

On 24 February 2021, $25,000 – Wehbe gave cash to Boga as per Sakr’s instructions (CB 27 at [77]).

On 24 March 2021, $20,000 – Wehbe gave cash to Boga as per Sakr’s instructions (CB 27 at [78]).

On 1 June 2021, $10,000 – Sakr deposited cash to Boga (CB 27 at [83]).

On 1 June 2021, $10,000 – Sakr made an EFT to Boga (CB 27 at [84]).

On 7 June 2021, $3,000 – Sakr made an EFT to Boga (CB 28 at [85]).

On 21 July 2021, $20,000 – Wehbe gave cash to Boga as per Sakr’s instructions (CB 28 at [88]).

On 23 September 2021, $43,000 – Sakr made an EFT to Edna Marie Szeto (Ms Szeto) under Boga’s instructions as a repayment (CB 543 at [20]; CB 387 at [11]).

In total, both parties agreed that $1,679,000 has been paid.

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

The following advances are in dispute:

On 27 December 2019, $450,000 – Boga claimed that Sakr called him for money. Boga made an EFT to Anthill Construction as per Sakr’s instructions (CB 25 at [54]-[55]). Sakr produced a record of telegraphic transfer from St George Bank showing the transfer of $450,000 on 27 December 2019 to Anthill Construction (CB 138).

On 23 February 2020, $45,000 – Boga claimed that he gave cash to Sakr when Sakr collected him from Melbourne airport (CB 25 at [58]).

On 10 November 2020, $100,000 – Boga claimed that he made an EFT to Anthill Construction as per Sakr’s instructions (CB 26 at [69]. Boga produced a copy of the telegraphic transfer that he made to Anthill Construction on 10 November 2020 (CB146)).

On 29 November 2020, $65,000 – Boga claimed that he gave cash to Sakr when having dinner with Sakr (CB 26 at [71]).

On 31 March 2021, $20,000 – Boga claimed that he gave cash to Sakr in the presence of John Aras (Aras) (CB 27 at [80]).

On 19 July 2021, $150,000 – Boga claimed that he made an EFT to Anthill Construction as per Sakr’s instruction (CB 28 at [87]). Sakr produced a copy of the telegraphic transfer he made to Anthill Construction on 19 July 2021 (CB 157).

In total, advances of $830,000 are in dispute.
The following repayments (not involving the third parties Ousama El Zohbi (El Zohbi) and Wehbe) are in dispute:

On 2 June 2020, $25,000 – Sakr claimed that he made an EFT to Anthill Construction, which Boga agreed to, as a reduction of the amount owed to Anthill Construction by Mt Ridley as well as reducing the loan (CB 423 at [39]). Sakr produced a bank statement which showed a transfer of $25,000 on 2 June 2020 (CB 405).

On 11 November 2020, $34,000 – in his affidavit dated 29 August 2024, Sakr claimed that he withdrew $35,000 with Boga and gave that cash to Boga (CB 424 at [47]). However, in his affidavit dated 5 April 2024 and the bank statement he produced, it showed that he in fact transferred $34,000 on 11 November 2020 (CB 411).

On 8 January 2021, $300,000 – Sakr claimed that he made an EFT to Anthill Construction, which Boga agreed to, as a repayment of the loan (CB 425 at [56]). Sakr produced a bank statement which showed a transfer of $300,000 on 8 January 2021 (CB 413).

On 25 January 2021, $40,000 – Sakr claimed that he made EFT to Anthill Construction, which Boga agreed to, as a repayment of the loan (CB 425 at [57]). Sakr produced a bank statement which showed a transfer of $40,000 on 25 January 2021 (CB 413).

Involvement of Webhe and El Zohbi

Sakr gave evidence that during the Covid-19 pandemic, on several occasions, he first withdrew cash or transferred the money from his bank account to either El Zohbi who then gave that money to Wehbe, or the money was given directly to Wehbe. Wehbe would then give that money to Boga.
Sakr deposed that he gave money to either El Zohbi or Webhe on the following occasions:

On 9 December 2019, Sakr withdrew $30,000 and on 20 December 2019, Sakr withdrew $20,000 (Sakr produced a bank statement showing these two withdrawals (CB 403)). Along with $9,000 Sakr already had in his possession, Sakr gave a total of $59,000 in cash to El Zohbi who gave it to Wehbe who then gave it to Boga (CB 423 at [38]);

On 24 July 2020, Sakr withdrew $20,000 and on 27 July 2020, Sakr withdrew $20,000 (Sakr produced a bank statement showing these two withdrawals (CB 405)). On 28 July 2020, Sakr gave a total of $40,000 in cash to El Zohbi who gave it to Wehbe who then gave it to Boga (CB 423 at [42]);

On 4 August 2020, Sakr withdrew $51,500 (Sakr produced a bank statement showing this withdrawal (CB 407)). On 10 or 11 August 2020, he gave the cash to El Zohbi who gave it to Wehbe who then gave it to Boga (CB 423 at [43]; CB 424 at [44]);

On 20 November 2020, Sakr transferred $42,000 directly to Wehbe who gave it to Boga (CB 424 at [50]). Sakr produced a bank statement showing this transfer (CB 411);

On or around 21 November 2020, Sakr gave $180,000 in cash to El Zohbi who gave it to Wehbe who then gave it to Boga (CB 424 at [51]);

On 24 November 2020, Sakr transferred $34,000 to Wehbe who gave it to Boga (CB 424 at [52]). Sakr produced a bank statement showing this transfer (CB 411);

On 5 March 2021, Sakr withdrew $10,000 (Sakr produced a bank statement showing this withdrawal (CB 415)) and gave it to El Zohbi on 6 March 2021, who gave it to Wehbe who then gave it to Boga (CB 425 at [53]-[54]); and

On 15 July 2021, Sakr borrowed $43,000 in cash from Emna Hayek (Emna) and gave the cash to El Zohbi who gave it to Wehbe who then gave it to Boga. Sakr instructed El Zohbi and Wehbe that Wehbe needed to take a picture of the money (CB 425 at [55]).

Boga agreed that he has received cash from Wehbe on the following six occasions. They are as follows:

On 24 August 2020, $20,000 – Wehbe gave cash to Boga as per Sakr’s instructions (CB 26 at [65]);

On 23 October 2020, $25,000 – Wehbe under Sakr’s instructions gave the cash to Boga (CB 26 at [68]). However, Counsel for Boga denied the payment in closing submissions;

On 25 January 2021, $20,000 – Wehbe gave this money to Boga’s wife as per Sakr’s instructions (CB 26 at [76]);

On 24 February 2021, $25,000 – Wehbe gave cash to Boga as per Sakr’s instructions (CB 27 at [77]);

On 24 March 2021, $20,000 – Wehbe gave cash to Boga as per Sakr’s instructions (CB 27 at [78]); and

On 21 July 2021, $20,000 – Wehbe gave cash to Boga as per Sakr’s instructions (CB 28 at [88]).

Sakr’s evidence is that he gave $459,500 in total either in cash or by electronic transfer to El Zohbi or to Wehbe to give to Boga. Boga’s evidence is that he has only received $130,000 from Wehbe. Thus, there is a $329,500 gap between the amount of money that Sakr gave to either El Zohbi or Webhe (who then gave that money to Boga) and the amount of money that Boga claimed that he received from Wehbe.
In total, repayments of $729,500 (including the repayments of $400,000 which El Zohbi and Wehbe are not involved in and the repayments of $329,500 which involve El Zohbi and Wehbe) are in dispute.
I will now focus on the loan advances and repayments in dispute. As I stated earlier, it has been a moving feast. A large number of payments have been made in cash. There are limited documents to support many of the transactions but where there are credible documents supporting advances and repayment, I will prefer them over Boga’s, Sakr’s, Wehbe’s and El Zohbi’s evidence.
Further there are disputes as to whether Boga was lending the money to Sakr or paying his share of building costs to Anthill Construction. Except for Seyhan, I will not discuss the credibility of any of the witnesses in order to make my findings on these disputed transactions.

The plaintiff and his witnesses’ evidence

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

The defendants’ evidence

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

The relationship between Boga and Sakr

Boga’s version of events

Boga was born in 1964. He migrated to Australia in 1974. In his affidavit dated 5 March 2024, he deposed that he is a businessman in the catering and hospitality industry and has several burger shops.
In or about 2002, Boga first met Sakr through a mutual friend, Solak. Solak resided in Melbourne. Boga was visiting him at a café in Greenvale, Victoria where Sakr and Solak were having coffee.
At the café, Solak introduced Boga to Sakr as his friend. Sakr did not speak English well, so the conversation was very basic and informal.
At the time of the first meeting with Sakr, Boga’s business “At Turko” had four takeaway stores in Melbourne, so he travelled between Sydney and Melbourne regularly, at least once a fortnight.
Boga estimated that he saw or met Sakr between eight to ten times from the first time they met at the café in Greenvale until 2015. These meetings were mainly at Solak’s home.

Sakr’s version of events

Sakr deposed that his first meeting with Boga was at Solak’s house rather than at a café. Sakr also says that his English was proficient as at 2015.
Sakr and Boga have been friends for about 17 years. They have several business dealings both before and during the period of the loan agreement.
Concurrent with the loan agreement, construction works were being completed by Anthill Construction for two companies connected with Boga: Semak and Mt Ridley Developments. Semak and Mt Ridley Developments were involved in development of the Wollert property and the Craigieburn property, respectively.
Sakr’s wife, Saly, was the director of Anthill Construction. Sakr was involved in the business to assist her. Sakr says that his relationship with Saly is not amicable at present as they have been separated for more than three months.
As referred to earlier, Seyhan and Hakan are the directors of Semak. Seyhan was also the director of Mt Ridley Developments. Sakr’s view is that Boga was heavily involved in both companies.

The loan and payments

Evidence of Boga

In his affidavit dated 5 March 2024, Boga gave evidence that in May 2019, Sakr telephoned Boga and asked for a $300,000 loan. Boga informed Sakr that he was unable to forward him the full amount requested but agreed to lend Sakr $150,000. The parties agreed that repayment of the loan would be made in the timeframe of four to six weeks. Boga then proceeded to transfer Sakr $100,000 on 30 May 2019 and a further $50,000 on 5 June 2019, both via EFT to the bank account nominated by Sakr.
The loan was not repaid and became part of the larger loan advanced in October 2019.
Throughout this time, Boga submitted that he was in constant discussions with Sakr largely in relation to both the Wollert and Craigieburn properties.
In October 2019 Sakr rang Boga requesting a further loan of $1,200,000. Sakr assured that the loan would only be required for a period of two months and that he would repay it with a “gift” of $100,000. The term “gift” replaced the conventional interest payment, alluding to a lump sum interest payment in line with Sakr’s religious beliefs and his reluctance to practice “usury”.
While Boga was considering Sakr’s request, Sakr rang him again requesting a loan amount of $1,700,000 as opposed to the original amount of $1,200,000, in return a “gift” would be paid to Boga of $150,000 as compensation for advancing the loan.
Boga deposed that he held money in a long-term deposit and advised Sakr that if he was to break his term deposit, he would be required to pay his Bank a penalty fee of $23,890. Sakr agreed to pay the bank’s penalty fee if the loan was executed.
Boga instructed Sakr that he was not comfortable lending such a large amount of money without security. Sakr informed Boga that he intended to purchase a property with said money (the Beveridge property) and that he would provide a mortgage over it as security for the loan. Boga would be the first and only mortgagee registered on title.
Sakr also agreed that the $150,000 still owing from the previous dealing be included in the new agreement together with the penalty fee.
Boga then requested the assistance of Guljan Boga, solicitor, from Borg and Bogs lawyers in Sydney to draft a loan agreement for the amount of $1,900,000 with the Beveridge property as security (the loan agreement).
Boga claimed in his affidavit that following the signing of the loan agreement, Sakr owed him $2,050,000, comprising of the loan agreement and the $150,000 “gift” for providing the loan. According to the loan agreement, the loan was required to be paid back in two months.
According to Boga, Sakr told him that the loan would assist Sakr in alleviating Sakr’s financial burdens.
In November 2019, Boga was enquiring into purchasing a Ford utility vehicle and asked Sakr for a repayment of the loan so he could purchase the vehicle. Sakr transferred the amount of $67,000 to Coffey Ford to pay for the car on his behalf.
At the time of purchasing the Ford Raptor on 26 November 2019, Sakr also paid Boga, according to his affidavit, $4,500 in cash when he was in Melbourne to pick up the car.
By 26 November 2019, the amount owed to Boga by Sakr was $1,978,500.
On 20 December 2019, Boga had a telephone and text conversation with Sakr requesting repayment of the loan. Sakr agreed to repay $700,000 via EFT and told Boga he would send a further cash payment of $59,000 with Solak as Solak was heading to Sydney.
On 23 December 2019, Sakr sent Boga a text message confirming that he had transferred funds into Boga’s account. On 23 December 2019, Boga’s bank records showed that Sakr had made a cash deposit of $556,500 to Boga’s Commonwealth Bank account. Further, Boga’s evidence is that Sakr did not send a cash payment through Solak as had been promised.
Four days later, on 27 December 2019, Sakr rang Boga claiming he was tight for money requesting another $450,000. Boga said he felt comfortable transferring the additional funds to Sakr because of the deed and mortgage that was already in place over the Beveridge property.
On 27 December 2019, Boga transferred $450,000 directly from his St George bank account to Anthill Construction.
On 28 December 2019, Boga’s evidence is that Glenburnie Rd and Sakr owed him $1,872,000 under the loan agreement.
On 23 February 2020, Boga flew to Melbourne with his wife. When Boga told Sakr he was coming to Melbourne, Sakr requested another loan as he was apparently in urgent need of money. At that time, Boga was able to secure $45,000 in cash. He handed the money to Sakr at Melbourne airport upon the family’s arrival.
On 19 March 2020, Sakr transferred $300,000 through Anthill Construction to Boga’s St George bank account.
On 23 March 2020, Sakr transferred $100,000 through Anthill Construction to Boga’s St George bank account.
On 24 March 2020, Sakr transferred $100,000 through Anthill Construction to Boga’s St George bank account.
On 25 March 2020, Boga says that Sakr owed him the sum of $1,417,000 under the loan agreement.
On or about May 2020, Boga spoke to Sakr and agreed that Sakr’s company Anthill Construction would commence construction on the Wollert property.
On 26 June 2020, Boga transferred $400,000 to Anthill Construction as a progress payment for construction work that Anthill Construction had completed at the Wollert property. This payment did not relate to the loan agreement.
On 29 September 2020, Boga received a development application approval for the Wollert property.
In early November 2020, Sakr phoned Boga requesting another loan of $100,000. Boga transferred that amount to Anthill Construction on 10 November 2020.
On 28 November 2020, Boga drove to Melbourne with his wife. Upon telling Sakr that he was coming to Melbourne, Sakr requested another loan in the amount of $100,000. Boga agreed to loan Sakr a further $65,000 and not the $100,000 that was requested.
On 29 November 2020, Boga had dinner at Sakr’s farmhouse at Northern Highway, Bylands where Boga handed Sakr $65,000 in cash.
Boga calculated that at this time, the amount owed by Sakr under the loan agreement was $1,537,000.
On 29 December 2020, Sakr made a repayment of $350,000 via bank transfer. The transfer was paid to Boga’s Commonwealth Bank account, resulting in an outstanding balance of $1,187,000.
On 1 January 2021, Sakr made a repayment of $10,000 by bank transfer. At this time $1,177,000 plus interest was owed.
On 25 January 2021, Sakr made a repayment of $20,000 in a cash deposit. At this time $1,157,000 plus interest was owed.
On 31 March 2021 Boga drove to Melbourne with his friend Aras. Prior to this trip, Sakr had requested another loan of $20,000 in cash. Boga brought the cash with him to Melbourne and gave it to Sakr in the presence of Aras while at the Wollert property.
Boga says that he would always visit the Wollert property when he was in Melbourne and that usually Sakr would meet with him on site to update him on the progress of the construction.
On 1 April 2021, Boga calculated that the amount owed to him by Sakr under the loan agreement was $1,112,000 plus interest.
On 1 June 2021, Sakr made a repayment of $10,000 as a cash deposit. At this time $1,102,000 plus interest was owed.

On the same day, 1 June 2021, Sakr made a second repayment of $10,000 by bank transfer. At this time $1,092,000 plus interest was owed.
On 7 June 2021, Sakr made a repayment of $3,000 by bank transfer. At this time $1,089,000 plus interest was owed.
In mid-July 2021, Sakr called Boga and asked for another loan of $150,000. On 19 July 2021, Boga transferred this money to Sakr. The balance owing was now $1,239,000.
Around this time the amount owed to Boga by Sakr was $1,219,000 plus interest.
Boga says that as of 16 September 2022, construction at the Wollert property had not been progressing.
On 26 September 2022, Anthill Construction’s building licence was suspended by the Victorian Building Association.
On 16 October 2023, Sakr asked Boga to release the mortgage over his property because he had sold the Beveridge property, and the settlement was scheduled for the following Friday.
Boga informed Sakr that he would only release the property if Sakr repaid the loan of $1,219,000 plus interest.
At this time, Boga says that Sakr got upset and aggressive over the phone and hung up. Boga then immediately texted Sakr to which he received a reply from Sakr which read “don’t call me”. According to Boga, this was the last point of contact between the two men.
Boga says that apart from the transactions relating to the loan agreement, monies were also being sent separately to Anthill Construction as progress payments for the construction of the Wollert property.

Evidence of Sakr

In October 2019, Sakr requested a further loan of $1,200,000 for 12 months. The $100,000 stipulated by Boga as a “gift” was not interest, but instead, would offset any future contractual payments between Semak and Anthill Construction for anticipated building works at the Wollert property.
Sakr says that he was actively involved in business and paid interest on loans as part of that. He never told Boga that he had any religious prohibition against the paying of interest; rather, he signed a loan agreement with Boga that expressly required the payment of interest.
As both Sakr and Boga were assisting with their family’s businesses, on several occasions, Boga directed Sakr (as set out in greater detail below) to repay the loan by paying certain various amounts to Anthill Construction.
Sakr submitted that the $150,000 was not a “gift” for Boga providing the loan but it was to be deducted from the building contract of the Wollert property.
Sakr denied Boga’s evidence that by 26 November 2019, Sakr owed Boga $1,978,500.
On 20 December 2019, Boga messaged Sakr seeking $700,000 by EFT and $59,000 in cash. On either 20 December 2019 or 22 December 2019, Sakr called Boga and agreed to pay $556,500 by EFT and $59,000 in cash.
Sakr says that the payment of $450,000 on 27 December 2019 was not a loan to him, but instead, it was paid to Anthill Construction by Mt Ridley Developments for planning, designing and other development requirements for the Craigieburn property. He gave a copy of the tax invoice dated 19 November to Boga at the Wollert property.
On 23 February 2020, Sakr collected Boga and his wife from the airport. He never asked for, nor did he receive a cash payment of $45,000. The purpose of the visit was for Boga to meet Bruce Barron (Mr Barron), a real estate agent.
Sakr denied that on 25 March 2020, the amount he owed to Boga under the loan agreement was $1,417,000.
In June 2019, the construction works to be carried out on the Wollert property were contractually agreed upon. On 14 May 2020, a domestic building contract was executed.
On 2 June 2020, Sakr paid $25,000 to Anthill Construction. Sakr says that before making the payment, he called and suggested to Boga that this payment should be made in reduction of the amount owed to Anthill Construction by Mt Ridley Developments as well as reducing the loan. Boga agreed with the suggestion.
On 10 November 2020, Sakr went to a Commonwealth Bank branch with Boga and withdrew $300,000. Sakr says that these funds were forwarded into an account that Boga nominated. However, during examination in chief and cross-examination, Sakr admitted that he made a mistake.
After subpoenaing Commonwealth Bank, the records showed that $300,000 was transferred to FE Lawyers so that one of Sakr’s associates, Omar Al Nasbi, could buy a property:

“Q. We’ll get to that in a minute, but the $300,000 you found out subsequently when your solicitor subpoenaed the Commonwealth Bank was paid to a firm of solicitors called FE Lawyers, wasn’t it?
A. Yes.
Q. And your recollection, or the evidence you gave there, was just completely wrong, wasn’t it?
A. It was wrong, yeah.
Q. The reason you paid the money to FE Lawyers was so an associate of yours could buy property, wasn’t it?
A. Yes.
Q. Who was that associate?
A. It was someone in Melbourne.
Q. Well, who?
A. Omar Al Nasbi.” (T294 [17]-[34]).

On 11 November 2020, Sakr went to the bank with Boga, withdrew $35,000 and then gave that cash to Boga.
On 24 November 2020, Sakr transferred $34,000 to Wehbe’s account to pay Boga. He did not transfer this money directly to Boga.
Sakr denied that on 28 November 2020 he asked Boga for a loan of $100,000 and says that it was a construction payment towards the building of the Wollert property.
On the 29 November 2020, Boga only came over to his house for lunch. Sakr did not receive any money from Boga.
Sakr denied requesting a loan of $20,000 from Boga. Sakr has never met Aras or Murat Gulasi (Boga’s friend).
Sakr deposed that the $150,000 was a construction payment made to Anthill Construction towards the building of the Wollert property rather than a loan.
On 13 June 2023, Anthill Construction went into liquidation. Before that, Sakr assisted Boga with arranging a new builder to complete the works at the Wollert property.
On 18 October 2022, Building Consultants International (BCI) signed a domestic building contract with Semak. BCI commenced work on the Wollert property shortly after the execution of the domestic building contract.
Sakr says that he trusted Boga would keep account of the payments being made due to their long-term friendship and business relationship. He believed that Boga would refund him if he overpaid Boga.
On 16 October 2023, Sakr called Boga to request an in-person meeting with him to discuss the money owed. However, Boga refused this invitation and disputed several variations that Anthill Construction had charged in relation to the Wollert property.
On 16 October 2023, following the call, Boga messaged Sakr on WhatsApp, and relevantly said: “Be a man give me my OC invoices and certificates I’ll transfer u the title without any problems.” The reference to certificates was in connection with the Wollert property. The reference to title is a reference to the Beveridge property Sakr had granted Boga a mortgage over for the loan.

Reply to Sakr

In his affidavit dated 6 November 2024, Boga replied that there was no verbal agreement that he had to pay Sakr $300,000 for facilitating the arrangement where Boga purchased Solak’s share of the Craigieburn property. It was Boga’s son, Seyhan, through Mt Ridley Developments that purchased Solak’s share of the property. Boga further explained that the property did not belong to Sakr and there was no reason to pay Sakr for the purchase of Solak’s share of the property. In May 2019, Sakr called him to request $300,000 as a loan rather than as a repayment.
The $100,000 which was attached to the first proposed $1,200,000 loan (noting that Sakr later requested a $1,700,000 loan instead) was not an offset on future construction works. At the time Boga and Sakr entered the loan agreement, there was no development approval for building works at the Wollert property. The loan agreement was executed on 28 October 2019. The development approval for the Wollert property was not obtained until 28 January 2020.
Boga has never directed Sakr to pay money owed to him to Anthill Construction.
In December 2019, Sakr never paid Boga $59,000 in cash.
In the invoice produced by Sakr dated 19 December 2019, Mt Ridley Developments was to pay Anthill Construction $300,000 for work completed and $150,000 for profit share. Boga replied that he has never seen this invoice and there was no profit share to be paid to Sakr. The $450,000 was a loan requested by Sakr.
Boga says that the contract that Anthill Construction was to conduct the construction works for the Wollert property was agreed in May 2020 rather than in June 2019.
On 10 November 2020, Boga transferred $100,000 to Sakr as a loan rather than a construction payment towards the building of the Wollert property. Boga has never seen the invoice dated 9 November 2020 produced by Sakr.
On 19 July 2021, Boga transferred $150,000 to Sakr as a loan rather than a construction payment towards the building of the Wollert property. Boga never saw the invoice dated 19 July 2021 produced by Sakr.
Boga explained that the text message that he sent to Sakr dated 16 October 2023, which relevantly said, “Be a man give me my OC invoices and certificates I'll transfer u the title without any problems”, was an expression of his frustration that he had not been paid the debt Sakr owed him. He needed the money to loan to Semak so it could pay the $1,400,000 to BCI to complete the development of the Wollert property. Once the Wollert property was complete, Semak could obtain the Occupation Certificate (OC) and then move to either sell or refinance the property. Once Sakr made payment of the loan amount to Boga, he would then release the security over the Beveridge property.
Boga says that he had never requested any cash payments from Sakr. He also did not want the loan to be repaid in cash as there was no benefit for him to do so. He believed that the reason Sakr paid him by cash was that Sakr had been paid in cash for work he was doing, and it was easier for Sakr to pay Boga in cash rather than deposit the money into his own account and then transfer the funds to Boga.
Boga did not receive $59,000 in cash from Wehbe.
Boga never agreed to nor received any benefits from the payment made by Sakr on 2 June 2020 to Anthill Construction.
Boga never requested that the $40,000 transferred on 26 January 2021 by Sakr to Anthill Construction be a repayment of the loan.

Sakr’s reply to Boga

In his affidavit dated 18 December 2024, Sakr replied that it is not true that Boga has never directed him to pay money owed to him to Anthill Construction. In addition to the payments that he made to Anthill Construction under Boga’s instructions on 8 January 2021 and 25 January 2021, Sakr says that Boga made further requests for him to make payments to Anthill Construction to reduce the loan. He produced a copy of his text messages with Boga which do not mention Anthill Construction or a reduction of the loan (CB 590).
Boga says that in December 2019, Sakr never paid him $59,000 in cash. Sakr replied that it is not true and produced a copy of his message dated 20 December which Boga sent: “plz bank 600k in this account and send 59k with TARIK.” Boga explained that the “59k” in the message referred to the payment of $59,000 in cash. Boga further denied that he requested Sakr to pay in cash.
Sakr says that on 23 September 2021, he received a text message from Boga instructing him to pay $43,000 to Ms Szeto and another $200,000 into Boga’s account to reduce the loan. Sakr did not know Ms Szeto. On or around 23 September 2021, he transferred $43,000 to Ms Szeto via EFT and $200,000 to Boga via EFT.

The Wollert property

Boga’s version of events

In August 2015, Boga and his wife visited Melbourne to do some research on Melbourne’s property market, as they wanted to purchase property there. During this visit, Boga and his wife had dinner with Solak and a good friend named Ismail Altinkulac. During the dinner, Sakr called Solak to tell him he had a plot of land in Wollert which he was selling on behalf of another party. Solak told Boga that Sakr was buying and selling land in Victoria.
After dinner, Solak drove Boga and his wife to the Wollert property, to inspect it. The following day Solak, Boga and his wife visited Wollert property again to inspect it in the daylight. They decided they liked the Wollert property and wanted to negotiate a deal with Sakr. Solak called Sakr and organised a meeting to discuss the deal. At the meeting, a discussion took place regarding Wollert property. Boga and Sakr shook hands on a price of $600,000 plus GST. Contracts were exchanged on the Wollert property and settlement occurred on 2 September 2016. Apparently, Boga did not buy the Wollert property himself. Instead, Semak, the company owned by Boga’s sons, Hakan and Seyhan, bought the property from Sakr for $660,000 inclusive of GST.
The Wollert property had an approved development application; however, Boga was not happy with the approved plans.

Hakan’s version of events

Hakan completed high school at St Andrews Cathedral School in 2005. He attended the University of Western Sydney to study finance. He currently manages the family’s extensive fast-food business.
To recap, Hakan is Boga’s eldest son. Together, he and his younger brother Seyhan co-direct Semak which is the proprietor of the Wollert property.
Hakan recalled that shortly after purchasing the Wollert property, Boga introduced him to Sakr. Boga told Hakan that Sakr had access to other properties in Victoria that had potential for redevelopment.
On 2 September 2016, the Wollert property purchase settled. The Wollert property was a vacant block of land, 1614 square metres in area. The property had an approved development application for 16 two-bedroom town houses. Hakan’s plan for the Wollert property was to develop it and either keep and rent or sell off the individual residences for profit.
Semak purchased the Wollert property for $660,000 inclusive of GST. Semak borrowed the purchase funds from Boga and planned on repaying the funds upon completion of the development, by either, refinancing the property once developed to access the additional equity, or selling the town houses and using the proceeds for repayment.
In the second half of 2018, Seyhan and Hakan commenced discussions with their father about developing the Wollert property. Semak engaged Chinh Mai to draft plans for the development of the property. Semak submitted plans to the council for 12 two-bedroom townhouses and two three-bedroom double story townhouses amending the original plans which had been submitted by the previous owner.
On 28 August 2018, Semak submitted the plans to Whittlesea Council (the Council).
On 28 January 2020, Semak received development approval from the Council.
As Hakan and Seyhan were not familiar with any builders in Victoria, they decided engage Sakr who was a licenced builder at the time.
In or about May 2020, Semak came to an agreement with Sakr and Anthill Construction to undertake the building works at the Wollert property. The agreed contract price for construction was $2,408,000. A hard copy of the contract was sent to Hakan, who signed and initialled the contract, followed by an emailed copy to Anthill Construction who returned it by post. Hakan did not photocopy or scan the executed copy of the contract. At trial, Hakan produced an unexecuted copy of the building contract that he received and executed. On page 36 of the contract under item 10, the contract price including GST is $2,408,000 (CB 309). On page 41 of the contract under item 23.1, it also shows a total price of $2,408,000 (CB 314).
Sakr produced a domestic building contract executed on 14 May 2020 in evidence. When reviewing the contract provided by Sakr, Hakan found pages 36 and 41 (CB 496 and 501) of the contract were different to the document that he initiated and executed. Hakan did not initial pages of the contract with a contract price of $1,900,000. Hakan did not initial pages 36 and 41. Hakan also did not give his consent for anyone else to place his initials on those two pages.
Hakan believes that Sakr informed him before they commenced construction work that Sakr’s wife, Saly, was the director of Anthill Construction and that entity was the builder. Hakan has never met Saly.
On 31 October 2018, Boga received $3,300,000 from the sale of his property at Lyons Rd Drummoyne (Lyons Rd property). Boga promised Semak the amount of $1,300,000 as a financial contribution for the construction of the townhouses at the Wollert property. Semak was to repay any money Boga lent to the Wollert property. Boga did not charge interest on the money he was advancing to Semak.
On 26 June 2020, Boga transferred the sum of $400,000 to Anthill Construction as payment for the commencement of construction.
ln or about October 2020, the excavation work commenced at the Wollert property. It concluded in or about March 2021.
On 14 April 2021, Hakan received an email from Saly with the tax invoice 331 attached. This was the first invoice issued to Semak from Anthill Construction. Hakan produced a copy of tax invoice 331 for a total amount of $240,800 (CB 323).
On 20 May 2022, Hakan paid tax invoice 331 in full. He transferred money from his personal offset account (shared with his brother) to the bank account nominated in tax invoice 331. He produced a copy of the EFT records and the customer receipt for the amount of $240,800 (CB 326).
On 12 April 2021, Hakan received an email from Saly with the tax invoice 330 attached. Hakan produced a copy of tax invoice 330 for the amount of $12,848 (CB 328).
Between 26 April 2021 and 28 April 2021, Hakan transferred payments from his Macquarie Bank home loan account to Anthill Construction’s account. The payments were split into three, due to the bank’s daily withdrawal limit of $5000. Hakan produced Saly’s email which confirmed that Saly received Hakan’s payment of $12,838 (CB 330).
On 14 December 2022, Hakan met Sakr in Melbourne. Sakr requested that Hakan urgently pay Anthill Construction $34,500 to cover the home warranty insurance.
On 16 December 2022, Hakan received tax invoice 369 for home warranty insurance in an email from Saly. Hakan produced a copy of tax invoice 369 which includes $34,500 for the home warranty insurance and $3,500 for broker fees (CB 333). On 20 December 2022, Hakan transferred the $34,500 from his Commonwealth Bank account to Anthill Construction. He produced a copy of the electronic transaction record of his payment of $34,500 to Anthill Construction (CB 335).
Hakan deposed that Sakr did not ask him to pay “broker fees” so he did not pay them.
Hakan requested an invoice to cover the $400,000 payment made by Boga on behalf of Semak on 26 June 2020 which had not previously been invoiced. On 20 December 2022, Hakan received an email from Saly that had attached to it tax invoice 365 for the amount of $400,000. Hakan produced a copy of tax invoice 365 with a total amount of $400,000 (CB 337).
On 20 October 2022, Hakan received an email from Saly with invoice 366 attached. Hakan produced a copy of tax invoice 366 with a total amount of $250,000 (CB 339).
On 22 October 2022, Hakan used his father’s St George line of credit account to transfer $70,000 to Anthill Construction, because as co-signatory on the account Hakan was able to access it. Boga was overseas at that time. On 24 October 2022, Hakan transferred $100,000 to Anthill Construction from the St George line of credit account. On 25 October 2022, Hakan transferred $80,000 to Anthill Construction from the same St George account as the earlier payments. Hakan made payment toward invoice 366 on 25 October 2022. Hakan produced the EFT records for all these payments (CB 341; CB 343; CB 345). In total these transfers amounts to $250,000.
The building contract between Semak and Anthill Construction allowed for a construction period of 500 days. The 500-day completion date including delay days expired around mid-October 2021. Anthill Construction did not complete the construction work by that day.

On 26 September 2022, Boga received a letter by email from the building surveyor Permit Point advising that Anthill Construction’s builders licence had been suspended or cancelled. He forwarded the email to Hakan on the same day.
Hakan immediately called Sakr to discuss Anthill Construction’ licence suspension. Sakr told Hakan not to worry and that he would arrange for a new builder to take over and complete the construction of the townhouses. Sakr arranged for Mr George Stefanidis from BCI to take over the project.
On 20 October 2022, Hakan flew to Melbourne and executed a contract on behalf of Semak with BCI. The cost of construction in that contract was $1,400,000. Hakan produced a copy of the contract between Semak and BCI which was provided by the law firm Davies Moloney (who was acting for BCI) to the law firm Elie Rahme and Associates (who was acting for Semak) on 9 February (CB 349-374).
To date, BCI has not completed the construction project, and Semak has not been able to obtain the occupancy certificate for the Wollert property. On 14 June 2024, the contract between BCI and Semak was terminated. There is now a separate dispute between Semak and BCI.
The contract price of $1,400,000 with BCI, was reached as it was the approximate figure that remained unpaid on the original building contract with Anthill Construction. At the time, Hakan recalled that roughly $925,300 had been made in payments to Anthill Construction, leaving an estimated balance of $1,400,000. That is why Hakan agreed to the contract with BCI for $1,400,000.
During 2023, Hakan transferred payments to a number of tradesmen that worked on the construction of the Wollert property including: an electrician, plumber and concreter. Hakan retained records of all payments made. In total, he paid $240,575.52 to the tradesmen directly. He produced a copy of a list of payments that he made (CB 376).
On 28 November 2023, a letter of demand addressed to Semak was emailed to Boga’s personal email address. The letter was from law firm Davies Moloney in Melbourne. The letter sought the sum of $1,400,000 to be paid by Semak to BCI.
On 30 November 2023, Hakan instructed the firm Elie Rahme and Associates to respond to Davies Moloney, requesting a copy of the contract that was entered into by BCI and Semak on 18 October 2022. Hakan did not have a copy of the contract at that time as he did not take a copy after executing it. The letter also requested confirmation that BCI was able to provide the occupation certificate. He produced a copy of the letter to Davies Moloney dated 28 November 2023 (CB 378-379).
On 9 February 2024, Elie Rahme and Associates received a response by email from Davies Moloney attaching a copy of the home building contract between Semak and BCI. The email reiterated its demand for the payment of $1,400,000. Hakan produced a copy of the letter from Davies Moloney dated 9 February 2024 (CB 383).

Sakr’s version of events

In his affidavit dated 18 December 2024, Sakr denied that in October 2019, he called Boga to request a further loan of $1,200,000 for a period of two months and promised Boga that he would “gift” him $100,000 in turn. Instead, Sakr deposed that he requested a further loan of $1,200,000 for 12 months from Boga. The $100,000 stipulated by Boga as a “gift” was not interest, but instead, it would offset any future contractual payments between Semak and Anthill Construction for anticipated building works at the Wollert property.
Sakr denied that following signing the loan agreement, Sakr owed Boga $2,050,000 comprising the loan agreement, plus the $150,000 “gift” for providing the loan. Sakr clarified that the $150,000 000 was not a “gift” for Boga providing the loan but it was to be deducted from the building contract of the Wollert property.
Sakr denied that on 28 November 2020 he asked Boga for a $100,000 loan and said that it was a construction payment towards the building of the Wollert property. He produced a handwritten invoice dated 9 November 2020 (CB 510).
Sakr denied that the $150,000 that Boga transferred to Anthill Construction on 19 July 2021 was a loan. He deposed that it was a construction payment made to Anthill Construction to build the Wollert property rather than a loan. He produced a handwritten invoice dated 19 July 2021 (CB 512).
On 2 June 2020, Sakr paid $25,000 to Anthill Construction. Sakr deposed that before making the payment, Sakr called and suggested to Boga that this payment should be made in reduction of the amount owed to Anthill Construction by Mt Ridley Developments as well as reducing the loan and that Boga agreed with the suggestion.
Around 25 January 2021, Boga requested $40,000 in repayment of the loan when he phoned Sakr. Boga agreed to Sakr transferring a further $40,000 to Anthill Construction on Boga’s behalf towards the Wollert property. On 25 January 2021, Sakr transferred $40,000 to Anthill Construction towards to Wollert property building property as the loan reduction.
Due to the liquidation of Anthill Construction, Sakr says he cannot provide the relevant invoices.

Hakan’s reply to Sakr

Hakan denied all of Sakr’s evidence. Hakan replied that the money Sakr owed Boga was not directed to Anthill Construction to pay for construction work. He further explained that if that was the case, they would not have had BCI pursuing them for $1,400,000.
Hakan also denied that he had never seen the handwritten invoices dated 19 December 2019 (CB 449), 9 November 2020 (CB 510) and 19 July 2021(CB 512) before. Sakr mentioned it in his affidavit. Hakan maintained that the only invoices ever sent to him by Anthill Construction were forwarded to him.

Sakr’s reply to Hakan

In his affidavit dated 19 December 2024, Sakr replied to Hakan’s evidence. He deposed that there was a whole new planning application submitted to the Council for the Wollert property rather than an amendment of the original plans.
Sakr confirmed that the contract price for the building works was initially contemplated for the price of $2,408,000. However, Sakr says that, in or about May 2020, Boga asked Sakr, either in-person or by phone, whether they could reduce the contract price. They agreed to remove several items from the contract including, the driveway concrete, the public road and lighting between the townhouses and the public park. The ultimate contract price was $1,900,000.
Sakr asked his wife, Saly, to revise the contract and send the updated copy to Hakan. Although he could not recall how he received the contract, upon receiving it, Sakr applied for builder’s warranty insurance that was taken out for 14 townhouses at a total value of $1,900,000. Sakr produced a copy of the certificate of insurance (CB 545-572).
Sakr’s evidence is that the excavation works for the Wollert property commenced in September 2020 and concluded at the end of 2020 rather than in March 2021.
The first invoice issued from Semak to Anthill Construction was dated 9 November 2020 and related to excavation works for the Wollert property for the sum of $100,000 rather than an invoice dated 13 April 2021 for the sum of $240,800 inclusive of GST. Sakr produced a copy of invoice dated 5 November 2020 from Wally Group, the excavator (CB 574).
Sakr submitted that the tax invoice 331 for the sum of $240,800 was sent to Hakan as a mistake. This was the amount pursuant to the original agreed contract price, prior to the variation. Sakr had a conversation with Boga and advised him that he had been invoiced for the incorrect amount and that the amount would be adjusted at a later stage in the contract.
The building licence for Anthill Construction became restricted due to a change in Victorian law which required that to complete a build, a builder must possess a Domestic Builder Unlimited (DBU) licence. This change came into effect in or around June 2022. Anthill Construction only had a Domestic Builder Manager (DBM) licence. Sakr informed Boga about the change and requested to engage another builder to finish the building work at the Wollert property. Sakr and Boga decided on BCI to carry out the work.
On 14 December 2022, Sakr contacted Hakan and requested that he pay the sum of $34,500 to cover the home warranty insurance for the Wollert property. This insurance was for BCI. In late 2022, Sakr requested Boga to pay the builders warranty insurance. Sakr told him that if he paid Anthill Construction the insurance, Sakr would pay it to the insurance broker on behalf of BCI. Boga agreed to the suggestion. Upon receipt of the sum of $34,500, Sakr then paid it to the insurance broker, Joe Falcone on behalf of BCI.
By mid-October 2021, the construction works at the Wollert property were not completed. The major cause of the delay was that the building took place during Covid-19 lockdowns in 2020 and 2021.

The Craigieburn property

Boga’s version of events

Boga deposed in his affidavit dated 5 March 2024, that in mid-November 2017, Sakr called Boga with another plot of land for sale, being the Craigieburn property. It is common ground that on 20 November 2017, Boga along with his two sons flew to Melbourne to view the site. They negotiated a price for the property but could not afford to purchase the land outright, so Sakr agreed to purchase the site in a partnership with the Boga family. A contract for sale of the Craigieburn property was drafted with a cover letter showing both Boga and Sakr as joint purchasers.
At the time of settlement on the Craigieburn property, Sakr informed Boga that he had insufficient funds to complete the purchase. On 9 November 2018 settlement occurred on the Craigieburn property with Solak purchasing the other half in lieu of Sakr. Boga sought Sakr’s advice on the planning, designing and development application for the Craigieburn property despite Sakr’s failure to proceed with his half of the purchase.
In May 2019, Sakr telephoned Boga and asked for a $300,000 loan. Boga informed Sakr that he was unable to forward him the full amount requested but agreed to lend Sakr $150,000. The parties agreed that repayment of the loan would be made in the timeframe of four to six weeks. Boga then proceeded to transfer Sakr $100,000 on 30 May 2019 and a further $50,000 on 5 June 2019, both via EFT to the bank account nominated by Sakr.

Seyhan’s version of events

To recap, Seyhan is Boga’s younger son. He is the co-director of Semak with his brother, Hakan. He was also the co-director of Mt Ridley Developments with Sakr. Mt Ridley Developments was the owner of the Craigieburn property.
Seyhan attended high school at St Andrews Cathedral School and graduated in 2008. He operates and co-manages the family fast food business alongside his brother Hakan.
It is common ground that in November 2017, Seyhan was introduced to Sakr by Boga in November 2017.
On 20 November 2017, Seyhan flew to Melbourne with Hakan and Boga to visit a potential development site. He believed that Sakr had already signed a contract to purchase the property, but he did not intend to purchase it on his own as he could not afford it.
Seyhan visited the Craigieburn property with Hakan and Boga and then went to Sakr’s office to discuss the purchase of the property. Sakr wanted to nominate Seyhan, Hakan and Boga as the purchaser so they could purchase it in his place. Sakr also wanted a fee for bringing the deal to them.
After a significant amount of time negotiating, Seyhan, Boga and Hakan could not agree to Sakr’s terms because they did not have the financial capacity to purchase the Craigieburn property at that time. The next morning, Boga called Sakr on the way to the airport and then told Seyhan and Hakan that Sakr wanted to purchase the property with them.
The agreement reached with Sakr was that Seyhan, Hakan and Boga would purchase the Craigieburn property for $1,425,500. Seyhan would pay the full 10% deposit on exchange and Sakr would account for his share of the deposit at settlement. Boga agreed that he would provide Seyhan with the money to pay the 10% deposit from his own line of credit. Seyhan produced a bank statement dated 21/11/24 showing the payment of the 10% deposit from Boga’s account (CB 226).
Sakr’s accountant helped Seyhan to establish Mt Ridley Developments. Sakr and Seyhan were directors and shareholders of Mt Ridley Developments.
The terms of the contract were that settlement was to be delayed and would not occur for 12 months because Seyhan and Sakr wanted time to lodge a development application for the property to add value to it prior to settlement.
On 15 November 2018, the Craigieburn property was purchased. On 16 November 2018, Seyhan received a letter from Jafer Lawyers endorsing the settlement statement. He produced a copy of the settlement statement that he received on settlement from the lawyers acting on behalf of Mt Ridley Developments (CB 231-237).
The settlement statement recorded that Seyhan paid $583,557.10 at settlement in addition to the $142,500 paid as the deposit. Sakr paid the sum of $783,557.10 on settlement along with penalty interest as he caused settlement to be delayed because he was not ready to settle on the set date.
On 5 November 2018, Seyhan requested that Boga transfer $683,542.25 to Jafer Lawyers’ trust account as completion of funds for the settlement of the Craigieburn property which was due to settle on 9 November 2018. Immediately after making the transfer of $682,542.25 to Jafer Lawyers’ trust account, Seyhan realised that he had overpaid his share by $99,955.15 as he paid the full deposit initially. Jafer Lawyers agreed to reimburse Seyhan for the amount which was overpaid.
On or about 13 February 2019, Sakr informed Seyhan and Boga that he was selling his half interest in the property to Solak. Seyhan agreed that Sakr was free to do that as Boga was friends with Solak. Solak set up a company called Mt Ridley Holdings and purchased Sakr’s share in Mt Ridley Developments. This transaction is recorded on the ASIC extract for Mt Ridley Developments. A copy of the ASIC extract has been produced by Sakr (CB 440-445).

Sakr’s version of events

In his affidavit dated 29 August 2024, Sakr denied informing Boga that he had insufficient funds to purchase the Craigieburn property. Sakr deposed that Boga agreed to let Solak purchase his share of the Craigieburn property. Sakr had a verbal agreement with Boga and Solak that he would receive $300,000 from each of them for facilitating the arrangement. Both Solak and Boga have paid $300,000.
Instead of asking for a $300,000 loan, Sakr called Boga and requested the $300,000 to be paid. Boga told Sakr that he could not produce the money but instead agreed to lend Sakr $150,000 that was to be repaid in four to six weeks. Sakr agreed to this suggestion as he needed the cash immediately and was confident that, due to their relationship, Boga would repay the $300,000 when he could.
Sakr further deposed that the payment of $450,000 on 27 December 2019 was not a loan to him, but instead, was paid to Anthill Construction by Mt Ridley Developments for planning, designing and other development requirements for the Craigieburn property. He gave a copy of the tax invoice dated 19 December 2019 to Boga at the Wollert property. Sakr produced a copy of the handwritten tax invoice (CB 449).
On 2 June 2020, Sakr paid $25,000 to Anthill Construction. Sakr’s evidence is that before making the payment, Sakr called and suggested to Boga that this payment should be made in reduction of the amount owed to Anthill Construction by Mt Ridley Developments as well as reducing the loan. Boga agreed with the suggestion.
On 8 January 2021, Boga requested a payment of $300,000 during a telephone conversation with Sakr and agreed to Sakr paying the $300,000 to Anthill Construction on behalf of Mt Ridley Developments towards the Craigieburn property as a reduction of the loan.

Seyhan’s reply to Sakr

In his affidavit dated 7 November 2024, Seyhan replied to Sakr and denied the existence of the agreement that Boga would pay $300,000 to Sakr for transferring his shares to Solak as it would not benefit Boga or Seyhan. Seyhan’s shareholding in Mt Ridley Developments remained unchanged when Solak and Mt Ridley Holdings purchased Sakr’s shares.
Mt Ridley Developments lodged a development application with the Council to redevelop the Craigieburn property. The Council approved the development of the land into a childcare centre.
On or about 1 June 2021, the Craigieburn property was sold. The proceeds of the sale were split between Seyhan and Mt Ridley Holdings. There was no money owed to Sakr from this venture. After the Craigieburn property was sold and all taxes and expenses paid, the company was liquidated. Seyhan returned the money his father had loaned him for the purchase of the Craigieburn property along with fees paid to Sarris International.
Seyhan denied Sakr’s claim that the payment of $450,000 on 27 December 2019 was not a loan to him, but instead, was paid to Anthill Construction by Mt Ridley Developments for planning, designing and other development requirements for the Craigieburn property. Seyhan deposed that Anthill Construction was not involved in the Craigieburn property and never completed work for the Craigieburn property. He says that it is not true that Mt Ridley Developments had to pay $450,000 to Anthill Construction, while Sakr claimed that he gave a copy of the tax invoice for the $450,000 dated 19 November to Boga at the Wollert property and Sakr produced a copy of the handwritten tax invoice (CB 449). Seyhan deposed that he had never seen that invoice before (CB 449).
Sakr says that on 2 June 2020, he paid $25,000 to Anthill Construction with Boga’s consent that this payment should be made in reduction of the amount owed to Anthill Construction by Mt Ridley Developments as well as reducing the loan. Seyhan denied that Mt Ridley Developments owed $25,000 to Anthill Construction. There was no reason for Sakr to pay the sum of $25,000 to Anthill Construction on behalf of Mt Ridley Developments.
Sakr says that on 8 January 2021, Boga requested a payment of $300,000 and agreed to Sakr paying the $300,000 to Anthill Construction on behalf of Mt Ridley Developments towards the Craigieburn property as a loan reduction. Seyhan denied that Mt Ridley Developments had to pay the sum of $300,000 to Anthill Construction because it never engaged Anthill Construction to complete any work on its behalf.
Mt Ridley Developments engaged Mr Allister Sarris of Sarris International to draft all plans and make submissions to the council for the development application. Once the development consent was obtained Mt Ridley Developments sold the property. Mt Ridley Developments did no building works at the Craigieburn property. Seyhan produced a copy of the fee proposal issued by Sarris International to Boga and Sakr dated 9 May 2018 (CB 239-246).
As Sarris International completed the work, Mt Ridley Developments would provide payment. Sarris International issued invoices to Mt Ridley Developments showing the amount invoiced and confirming payment had been made. The invoices would then have a balance of zero on them. Seyhan produced all tax invoices issued to Mt Ridley by Sarris International (CB 248-255).

Sakr’s reply to Seyhan

In his affidavit dated 18 December 2024, Sakr replied that the $300,000 he received from both Boga and Solak were not for the transfer of shares or transferring the Craigieburn property to sell it but rather money paid to Sakr as he had organised the business transaction and for Sakr or Anthill Construction to undertake any works on the land such as any maintenance and assistance with obtaining planning permits. Further, it was also agreed that the $300,000 payment was to be paid to Anthill Construction.
Sakr purchased the Craigieburn property on 14 November 2017 for $1,425,000. The property was subsequently sold about two and half years later on or about 3 June 2020 for $3,300,000. The only development on the land was the application for the planning permit for the development of a childcare centre with nine townhouses at the rear. Sakr noted from the transfer of land that the Craigieburn property was sold for $3,300,000 and settlement took place on or about 3 June 2020. He produced a copy of the instrument search of the transfer of land (CB 576-577).

Sakr’s evidence is that on 2 June 2020, Sakr paid $25,000 to Anthill Construction. Sakr recalled that before making the payment, he called Boga and suggested to Boga that this payment be made as a reduction of the amount owed to Anthill Construction by Mt Ridley Developments as well as reducing the loan. He says that Boga agreed with the suggestion. Sakr produced a bank statement which showed a transfer of $25,000 on 2 June 2020 (CB 405).
During cross-examination, Sakr did not provide a clear explanation about this transaction (T282 [7]-[25]; T283 [19]-[47]; T284 [5]-[22]):

“Q. You say there the money was paid on behalf of Mount Ridley, not [Semak]. Which is right?
A. Probably.
Q. Well, sorry sir--
A. I’m sure. I’m sure that money was paid to Anthill on behalf of him, because--
Q. Sure, okay--
A. Because - because he owed money.
Q. What money did he owe?
A. Because of the - of Mount Ridley development.
Q. How much?
A. He - he was owed money there.
Q. He always owed money?
A. Yeah.
…
Q. You agree with me that Mr Boga had paid Anthill $400,000.
A. Yeah.
Q. That was on 26 June 2020.
A. Correct.
Q. So you’ve got - Anthill has $400,000?
A. Yeah.
Q. That’s more than the contract provides?
A. Yeah.
Q. That’s at least the first deposit.
A. Yeah.
Q. The first progress claim, the second progress claim, isn’t it? You agree?
A. Yeah.
Q. And Mr Boga paid that to Anthill, because he wanted to make sure Anthill had funds to get on and do the job quickly and properly.
A. Yeah.
Q. So as at 2 June 2020--
A. Yeah.
Q. --[Semak] did not owe Anthill $25,000, did it?
A. It did.
Q. How?
A. For Mount Ridley development.
Q. From your what?
A. Mount Ridley development.
Q. Your Sydney development?
A. Mount Ridley. Mount Ridley development.
Q. How--
A. From the Craigieburn development.
Q. That’s not C Mac [Semak], is it?
A. No.
Q. Well, you said it was paid on behalf of C Mac [Semak].
A. Yeah.
Q. In your affidavit you say it’s Mount Ridley.
A. Yeah.
Q. In truth, in fact, you don’t know what was going on, do you?
A. I know exactly what was going on.
Q. In truth, in fact, that $25,000 was paid to Anthill by you because Anthill needed the money.
A. No.”

Boga’s evidence is that he has never agreed to or received any benefits from the payment made by Sakr on 2 June 2020 to Anthill Construction. He says that he has never directed Sakr to pay money owed to him to Anthill Construction.
Seyhan denied that Mt Ridley Developments owed $25,000 to Anthill Construction. There was no reason for Sakr to pay the sum of $25,000 to Anthill Construction on behalf of Mt Ridley Developments.
In cross-examination, Sakr gave evidence that Anthill Construction didn’t have a contract with Mt Ridley Development but still did some works for the Craigieburn property (T287 [43]-[48]).

“Q. The only contract that Anthill had was with [Semak], wasn’t it?
A. No.
Q. You had a contract with Mount Ridley?
A. No, I didn’t have a contract, but I was doing work for Mount Ridley. Anthill was paying bills and doing work for Mount Ridley Development.”

In the cross-examination, Boga stated that the payment of $450,000 is not for building works and there was no building works at that time (T58 [30]-[39]):

“Q. Knowing that, you’re saying that you advanced him another $450,000?
A. Yes, I did.
Q. I’m going to suggest to you that that payment of $450,000 was for building works.
A. No. What--
Q. And it had nothing to do with Mr [Sakr]. It had nothing to do with the loan deed.
A. We had no building at the time.”

According to the settlement statement provided by Seyhan (CB 231-237), the purchase of the Craigieburn property occurred on or about 15 November 2018. According to the instrument search of the transfer of land (CB 576-577), the property was sold on or about 3 June 2021.
Sakr’s evidence was that the only development on the land of the Craigieburn property was for the application for the planning permit to develop a childcare centre with nine townhouses at the rear. Sakr’s evidence was that Anthill Construction was engaged by Mt Ridley Developments to complete works on its behalf. Anthill Construction liaised with the Council and worked alongside the architect being Chinh Mai of Planning Design. Boga would also contact Sakr for updates on council permits. Seyhan produced his text messages with Boga about the council permits (CB 588).
Seyhan’s evidence was that Chinh Mai was not involved with the Craigieburn property, he worked on the Wollert property only. Instead, Allister Saris of Saris International worked on the Craigieburn property. Anthill Construction was not involved in the Craigieburn property. Anthill Construction never completed work for the Craigieburn property. Seyhan’s evidence was that he had never seen that invoice dated 19 December 2019 before. On or about 1 June 2021, about 18 months later, the Craigieburn property was sold. The proceeds of the sale were split between Seyhan and Mt Ridley Holdings. There was no money owed to Sakr from this venture
Based on the parties’ evidence, it is still unclear whether on or around 27 December 2019 when Boga transferred the $450,000 to Sakr, Anthill Construction was doing any building works for Mt Ridley Development.
In May 2022, Hakan sent a text message to Sakr and requested Sakr to send an invoice to Mt Ridley Developments. In the text message, Hakan wrote: “For: civil works for [xx] Mt Ridley Rd Craigieburn, 8/9/20 300,000, invoice include gst please. Could you please have paid on the button and show zero balance owing.” (CB 580). On 20 May 2022, Sakr sent Hakan an invoice dated 20 May 2022 for the amount of $300,000 including GST as requested (CB 584).
This invoice is the key evidence as to whether Anthill Construction did some works for the Craigieburn property. However, the authenticity of the invoice is in dispute.
In cross-examination, Sakr gave evidence as follows:

“Q. This was an invoice that you were requested to prepare at Mr Hakan Boga’s request.
A. Yes.
Q. And the work didn’t occur, did it, that set out in that invoice?
A. I did some work on Mount Ridley Development.
Q. What work did you do?
A. I did work - we did a lot of - a lot of cleaning, fixing the house because we had a tenant there.
Q. You didn’t do work to the value of $300,000, did you?
A. No, I didn’t.
Q. And there was no contract for you to do work to the value of $300,000?
A. No, there wasn’t.
Q. What happened was that Mr Boga told you he was short of funds, and you suggested, “Well, one way to give you some funds is to reduce your tax. I’ll give you an invoice addressed to Mount Ridley, and you can use that as a deduction.”
A. That’s not true.
Q. The only reason you prepared this invoice was pursuant to that purpose.
A. That’s not true.
Q. It’s a false invoice.
A. That’s not true.
Q. Because there was no civil works done at Mount Ridley Road, Craigieburn by Anthill.
A. That’s not true. We’ve done some work.
Q. Where’s the contract between Anthill and Mount Ridley for--
A. There is no contract. I was director of Mount Ridley, and when they asked me, “There is some work,” I used to do it.
Q. Well, by 2022, or 20 May 2022, the Craigieburn land had been sold, hadn’t it?
A. Yes.
Q. If you had done work, and you were claiming for it, you would have submitted an invoice well before the land was sold, I suggest to you.
A. What happened, when I deduct the money from the loan, and they asked me for invoice, they said, “But the loan doesn’t have GST,” I said to them - and they said to me, “We want you to try and invoice like this, and we’re happy to give you the GST. Including GST.”
Q. The fact that GST was paid separately indicates that that transaction, or what you said occurred, never happened. Because otherwise, if you were prepared to set it off, it would increase the amount of the transaction, and lessen the loan.
A. It was off the loan.
Q. That’s what you say, sir.
A. Yes. And there was messages from him. He [Hakan] messaged me how to do the invoice exactly. He spoke to his accountant, and he said, “This is what we want.”
Q. I’m suggesting to you that this was a fraudulent transaction.
A. It was, by his request. He sent me the message saying what he want in the invoice exactly, and it was done according to his direction.”

In cross-examination, Hakan, as the primary person who was responsible for the accounting works for the Mt Ridley Developments, denied that Anthill Construction performed any works at Craigieburn property.

Resolution

Here, neither Boga, Hakan nor Sakr gave credible evidence. Hence, I find that Sakr did not pay the $25,000 to Anthill Construction on behalf of Mt Ridley Developments as a reduction of the loan from Boga.

(2) 8 January 2021 - $300,000

Sakr’s evidence is that on 8 January 2021, Boga requested a payment of $300,000 during a telephone conversation with Sakr. Sakr says that Boga agreed to him paying the $300,000 to Anthill Construction on behalf of Mt Ridley Developments for the Craigieburn property as a reduction in the loan. Sakr produced a bank statement which showed a transfer of $300,000 on 8 January 2021 (CB 413).
During cross-examination, Sakr says that all his dealing with Boga including lending money to Anthill Construction was based on a verbal agreement only (T298 [6]-[24]):

“Q. Well, I’m not quibbling with the fact that Anthill needed money--
A. Yeah.
Q. --but you lent Anthill the money without--
A. No.
Q. --any encouragement or any agreement--
A. No. It was--
Q. --from Mr Boga.
A. It was by his direction.
Q. There was no direction, was there?
A. It was.
Q. Well, you would have wanted a document from Mr Boga, if he was making that direction, wouldn’t you?
A. Well, all - all my dealing with Mr Boga was not documented, it was based on verbal.”

In his affidavit, Boga claimed that he has never directed Sakr to pay money owed to him to Anthill Construction.
Seyhan’s evidence is that he denied that Mt Ridley Developments had to pay the sum of $300,000 to Anthill Construction. Anthill Construction was never engaged by Mt Ridley Developments to complete any work on its behalf.

Resolution

It is most unlikely that Anthill Construction completed such significant work that would be in the sum $300,000 to Anthill Construction. In these circumstances, I find that Sakr did not pay the $300,000 to Anthill Construction on behalf of Mt Ridley Developments as a reduction of the loan from Boga.

(3) 25 January 2021 - $40,000

Sakr’s evidence is that around 25 January 2021, Boga called him to request $40,000 in repayment of the loan and agreed to Sakr transferring a further $40,000 to Anthill Construction on Boga’s behalf, towards construction of the Wollert property. On 25 January 2021, Sakr transferred $40,000 to Anthill Construction towards to the building of the Wollert property as a reduction in the loan. Sakr produced a bank statement which showed a transfer of $40,000 on 8 January 2021 (CB 413).
Once again, Boga’s evidence is that he has never directed Sakr to pay money owed to him to Anthill Construction.

Resolution

Here, Sakr bears the onus of proof and he transferred the $40,000 to Anthill Construction. It is my view that, on the balance of probability, Sakr did not pay the $40,000 to Anthill Construction on behalf of Semak as a reduction of the loan from Boga.

Repayments in Dispute 3 – El Zohbi and Wehbe

Sakr’s evidence is that during Covid-19 period, instead of paying Boga directly, on several occasions he used third parties to make the repayments to Boga. There are two steps involved in these repayments: firstly, Sakr withdrew the cash or transferred the money from his bank account to either El Zohbi who then gave that money to Wehbe, or the money was given to Wehbe directly; and secondly, Wehbe would then give that money to Boga. It should be mentioned that these two steps often occurred on different dates.
For the first step referred to above, Sakr’s evidence is that he gave money to either El Zohbi or Webhe who then gave that money to Boga on the following occasions:

On 9 December 2019, Sakr withdrew $30,000 and on 20 December 2019, Sakr withdrew $20,000 (Sakr produced his bank statement showing these two withdrawals (CB 403)). Along with $9,000 Sakr already had in his possession, Sakr gave in total $59,000 in cash to El Zohbi who gave it to Wehbe who then gave it to Boga (CB 423 at [38]);

On 24 July 2020, Sakr withdrew $20,000 and on 27 July 2020, Sakr withdrew $20,000 (Sakr produced his bank statement showing these two withdrawals (CB 405)). On 28 July 2020, Sakr gave in total $40,000 in cash to El Zohbi who gave it to Wehbe who then gave it to Boga (CB 423 at [42]).

On 4 August 2020, Sakr withdrew $51,500 (Sakr produced his bank statement showing this withdrawal (CB 407)). On 10 or 11 August 2020, he gave the case to El Zohbi who gave it to Wehbe who then gave it to Boga (CB 423 at [43]; CB 424 at [44]);

On 20 November 2020, Sakr transferred $42,000 directly to Wehbe who gave it to Boga (CB 424 at [50]). Sakr produced his bank statement showing this transfer (CB 411);

On or around 21 November 2020, Sakr gave $180,000 in cash to El Zohbi who gave it to Wehbe who then gave it to Boga (CB 424 at [51]);

On 24 November 2020, Sakr transferred $34,000 to Wehbe who gave it to Boga (CB 424 at [52]). Sakr produced his bank statement showing this transfer (CB 411);

On 5 March 2021, Sakr withdrew $10,000 (Sakr produced his bank statement showing this withdrawal (CB 415)) and gave it to El Zohbi on 6 March 2021, who gave it to Wehbe who then gave it to Boga (CB 425 at [53]-[54]); and

On 15 July 2021, Sakr borrowed $43,000 in cash from Emna and gave the cash to El Zohbi who gave it to Wehbe who then gave it to Boga. Sakr instructed El Zohbi and Wehbe that Wehbe needed to take a picture of the money (CB 425 at [55]).

In total, Sakr deposed that he gave $459,500 either in cash or by electronic transfer to El Zohbi or to Wehbe to give to Boga.
For the second step referred to as above, Boga agreed that he has received cash from Wehbe in the following six occasions:

On 24 August 2020, $20,000 (Wehbe as per Sakr’s instruction gave cash to Boga - CB 26 at [65]);

On 23 October 2020, $25,000 (Wehbe as per Boga’s instructions gave the cash to Boga - CB 26 at [68] - however, Boga denied the payment in closing submissions);

On 25 January 2021, $20,000 (Wehbe as per Sakr’s instruction gave it to Boga's wife - CB 26 at [76]);

On 24 February 2021, $25,000 (Wehbe as per Sakr’s instruction gave cash to Boga - CB 27 at [77]);

On 24 March 2021, $20,000 (Wehbe as per Sakr’s instruction gave cash to Boga - CB 27 at [78]); and

On 21 July 2021, $20,000 (Wehbe as per Sakr’s instruction gave cash to Boga - CB 28 at [88])

In total, Boga’s evidence is that he has received $130,000 from Wehbe.
That leaves a $329,500 in the gap between the amount of money that Sakr says he gave to either El Zohbi or Webhe who then gave that money to Boga and the amount of money that Boga claimed that he received via this cash payment method.
In the amended statement of claim, Boga deposed that he received a repayment of $25,000 on 24 March 2021 (CB5 at [13C(K)]). However, in his affidavit dated 5 March 2024, he claimed that he received a cash repayment of $20,000 on 24 March 2021 from Wehbe (CB 27 at [78]). There is a difference between the parties in the sum of $5,000. During cross-examination and re-examination, Boga did not clarify whether he received $20,000 or $25,000 in cash from Wehbe on 24 March 2021. Instead, he claimed that the money he received from Wehbe on 25 January, 24 February and 24 March 2021 should have totalled $65,000 as it was repayment of the $65,000 he lent Sakr on 29 November 2020. Boga’s evidence is that the $20,000 and $25,000 he received from Wehbe on 24 August and 23 October 2020 respectively, were repayments of the $45,000 that he lent Sakr on 23 February 2020. Finally, the $20,000 he received from Wehbe on 21 July 2021 was the repayment of the $20,000 that he lent Sakr on 31 March 2021 (T108-110).
Boga claimed that he has only received cash from Wehbe on the six occasions mentioned above.
However, Wehbe says that he dropped cash off to Boga on twelve occasions between 2019 and 2022. Both Wehbe and El Zohbi did not keep any record for the cash deliveries.
Counsel for Boga submitted that Sakr paid $45,000 on 24 March 2021. Boga also received $20,000 in cash on 24 August 2020 and $25,000 in cash on 23 October 2020 that were repayments of the $45,000 loan that Boga lent Sakr on 23 February 2020. On 21 July 2021, Boga received $20,000 cash from Wehbe on behalf of Boga that was a repayment of a loan that Boga made to Sakr on 31 March 2021. These cash repayments total $110,000. The difficulty that arises is whether these repayments were in relation to the loan agreement. Boga gave evidence that not all these repayments were repayments of the loan, but rather further advances and repayments given outside the loan. He described it as a “round robin” arrangement:

“HER HONOUR: Is there anything in his bank accounts that actually correspond with what he says?
GEORGE: There are some payments to Mr Boga. There are payments to Anthill, from Anthill. As to the cash sums, he relies on Mr El-Zohbi and Mr Wehbe.
HER HONOUR: Yes, okay.
GEORGE: And a round robin.
HER HONOUR: Yes, but what’s the point of that, in the sense that it’s just a round robin.” (T71 [39]-T72 [1])

It is my view that these were repayments were a “round robin” arrangement.

The disputed December 2019 payment

Sakr recalled that on 9 December 2019, he withdrew $20,000 from the Roxburgh Park Commonwealth Bank branch. He then withdrew $10,000 from the Dallas Commonwealth Bank branch on the same day. On 20 December 2019, he withdrew another $20,000 from the Dallas Commonwealth Bank branch. He provided his bank statement as evidence to show these cash withdrawals (CB 403). He gave this cash and an additional $9,000 (a total of $59,000) to El Zohbi who then gave that money to Wehbe. Wehbe then gave the money to Boga or Boga’s wife.
Wehbe’s evidence is that the first delivery occurred in December 2019, when Sakr instructed Wehbe that El Zohbi would deliver cash to him that was to then be delivered to Boga. Either on the same day or the day after, Wehbe picked up the cash from the front of El Zohbi’s house and then drove to Boga’s burger shop and handed him the money. Wehbe could recall this delivery since it was around the time of his son’s first birthday on 22 December 2019.
Both Webhe and El Zohbi gave evidence that they never counted the money but guessed that it totalled between $20,000 and $40,000 or $100,000 and $150,000, based on the size and volume of the cash bundle.
Boga claimed that Sakr did not pay him any cash in December, and he did not receive $59,000 in cash from Wehbe.

The disputed 21 July 2021 payment

Sakr’s evidence is that he borrowed $43,000 from his wife’s friend, Emna and asked either El Zohbi or Webhe or both to take a photo of the money since it was borrowed from Emna.
Webhe’s evidence is that on 21 July 2021, El Zohbi gave him $43,000 in cash and instructed him to take a picture of the money as Sakr borrowed this money from another person. Wehbe could not remember who that person was. On the same day, he delivered the money to Boga on the corner of Broughton Street and Gipps Street, Concord. Wehbe produced text messages between himself and Boga on 25 January 2021, showing that Boga provided this address to him. However, the text messages did not show the amount of cash paid on that day (CB 527).
Wehbe did not take a picture of the cash. Instead, he provided a picture with a notation of Boga’s name in Arabic and the number 43,000 and some other numbers for his taxi business. During cross-examination, Wehbe admitted that he did not count the money. He only had a look at the money (T180 [34]- [39]):

“Q. You didn’t count it?
A. I never count the money.
Q. It could have been 43,000. It could have been 10,000. You don’t know?
A. I - I’ve been told 43. But all the time, I open the bag, I look. There’s money. They look like more than ten. Look like 40-something.”

Boga’s evidence is that on 21 July 2021, Wehbe rang him to inform him that he had $20,000 from Sakr for repayment of a loan. Boga met with Wehbe on the corner of Gipps Street and Broughton Street, Concord at Elizabeth Park where he received the money.

Resolution

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

The result

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

Costs

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

Proposed orders

The orders I propose are as follows:

The defendants are to pay the plaintiff in the sum of $167,000.

Interest is payable to the plaintiff by the defendants and is to be calculated by the parties.

The defendants are to pay the plaintiff’s costs.

**********

Decision last updated: 05 September 2025

Medium Neutral Citation:	Boga v 15 Glenburnie Rd Pty Ltd [2025] NSWSC 1009
Hearing dates:	17 February 2025 – 20 February 2025
Date of orders:	5 September 2025
Decision date:	05 September 2025
Jurisdiction:	Common Law
Before:	Harrison AsJ
Decision:	(1) The defendants are to pay the plaintiff in the sum of $167,000. (2) Interest is payable to the plaintiff by the defendants and is to be calculated by the parties. (3) The defendants are to pay the plaintiff’s costs.
Catchwords:	MONEY CLAIMS — Loan agreement — Advances in dispute — Repayments in dispute
Legislation Cited:	Nil
Cases Cited:	Australian Securities & Investments Commission v Rich (2009) 75 ACSR 1 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Ho v Powell (2001) 51 NSWLR 572 Jones v Dunkel (1959) 101 CLR 298 Kraljevic v Kraljevic [2017] NSWSC 225 O'Donnell v Reichard [1975] VR 916 Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Thomas Boga (Plaintiff) 15 Glenburnie Rd Pty Ltd (First Defendant) Ahmed Abdulkader Sakr (Second Defendant)
Representation:	Counsel: G George (Plaintiff) I Chatterjee (Defendants) Solicitors: Elie Rahme and Associates (Plaintiff) Davies Moloney Barristers & Solicitors (Defendants)
File Number(s):	2023/00361524
Publication restriction:	Nil