Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd

[2020] NSWSC 1778

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd In the matter of Combined Projects (Arncliffe) Pty Ltd [2020] NSWSC 1778

Hearing dates:

11 - 15, 18, 21 - 22, 25 - 29 November 2019, 3 - 6, 9 - 13, 17 - 20 December 2019, 30 January 2020, 5 February 2020

Date of orders:

14 December 2020

Decision date:

14 December 2020

Jurisdiction:

Equity

Before:

Ward CJ in Eq

Decision:

1.    Order that the parties, by 29 February 2021, bring in short minutes of order to give effect to these reasons, including as to costs, and any brief written submissions dealing with those orders, with a view to those orders being made in chambers, if possible.

2.    Order that the parties, if they consider that it is necessary, address in those submissions why it is necessary for the Court to hear oral submissions in relation to the orders referred to in Order 1.

Catchwords:

PARTNERSHIPS AND JOINT VENTURES — Dissolution — Where panoply of claims and cross-claims — Proust’s In Search of Lost Time

EQUITY — Equitable fraud — Sham transactions — Bribes

EQUITY — Fiduciary duties — Breach

RESTITUTION — Nature of restitutionary liability — Availability of restitution — Quantum meruit and quantum valebat

BANKING AND FINANCE — Banks — Duties — Duty to adhere to mandate of customer

OCCUPATIONS — Solicitors — Professional negligence

Legislation Cited:

Acts Interpretation Act 1901 (Cth), s 36

Cheques Act 1986 (Cth), ss 3, 32

Civil Liability Act 2002 (NSW), s 35

Civil Procedure Act 2005 (NSW), s 56

Competition and Consumer Act 2010 (Cth), ss 87CD and Sch 2 ss 18, 21, 60, 236

Conveyancing (Powers of Attorney) Amendment Bill 1983 (NSW)

Conveyancing Act 1919 (NSW), s 163B

Corporations Act 2001 (Cth), ss 9(b), 114, 135, 136, 137, 175, 180, 198C, 198E, 201A, 201M, 231, 233, 237, 247A, 292, 461, 1274A, 1274B, 1317H, 1322

Evidence Act 1995 (NSW), ss 69, 135

Family Provision Act 1982 (NSW), ss 22, 23

Interpretation Act 1987 (NSW), s 33

Limitations Act 1969 (NSW)

Partnership Act 1892 (NSW), ss 1, 2, 5, 38

Powers of Attorney Act 1971 (UK), s 10

Powers of Attorney Act 2003 (NSW), ss 7, 8, 9, 10, 11, 12, 13, 38, 43, Sch 2

Property, Stock and Business Agents Act 1941 (NSW)

Property, Stock and Business Agents Act 2002 (NSW), ss 36, 55, 55A

Property, Stock and Business Agents Regulation 2014 (NSW), reg 8(1)(a) and Sch 7

Trustee Act 1925 (NSW), ss 53, 64, 67

Trustee Act 1925 (UK), s 25

Uniform Civil Procedure Rules 2005 (NSW), rr 12.6(2), 14.14(3), 14.14(4), 15.4(1), 15.4(2)

Cases Cited:

Abergeldie Contractors Pty Ltd v Fairfield City Council [2017] NSWCA 113

Adrenaline Pty Ltd v Bathurst Regional Council (2015) 97 NSWLR 207; [2015] NSWCA 123

Aequitas Ltd v Sparad No 100 Ltd (formerly Australian European Finance Corp Ltd) [2001] NSWSC 14

AGC (Advances) Ltd v West (1984) 5 NSWLR 590

Aged Care Services Pty Ltd v Macedonian Aged Case & Accommodation Ltd [2012] NSWSC 531

Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353

Al-Atabi v Zaidi [2009] NSWCA 433

Alati v Kruger (1955) 94 CLR 216; [1955] HCA 64

Alghussein Establishment v Eton College [1991] 1 All ER 267; [1988] 1 WLR 587

Allen v Tobias (1958) 98 CLR 367; [1958] HCA 13

Allpro Building Services Pty Ltd v C&V Engineering Services Pty Ltd [2009] NSWSC 127

Alonso v SRS Investments (WA) Pty Ltd [2012] WASC 168

Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd (2018) 265 CLR 1; [2018] HCA 43

Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205; [2012] HCA 30

Angelina Spina v Permanent Custodians Ltd [2008] NSWSC 561

Anthony v Morton [2018] NSWSC 1884

ANZ v Widin (1990) 26 FCR 21; [1990] FCA 674

APX Projects Pty Ltd v The Owners – Strata Plan No 64025 [2015] NSWSC 1250

Arab Bank Australia Ltd v Sayde Developments Pty Ltd (2016) 93 NSWLR 231; [2016] NSWCA 328

Ardern v Bank of New South Wales [1956] VLR 569

Associated Midland Corporation Ltd v Bank of New South Wales (1983) 1 NSWLR 533

Attorney General for HK v Reid [2994] 1 AC 324

Attorney Generals Reference (No 1 of 1985) [1986] QB 491

Attorney-General v Scott (1750) 1 Ves Sen 413; 27 ER 1113

Austotel Pty Ltd v Franklins Self-Serve Pty Ltd (1989) 16 NSWLR 582

Australasian Brokerage Ltd v Australian and New Zealand Banking Corporation Ltd (1934) 52 CLR 430; [1934] HCA 34

Australia and New Zealand Banking Group Ltd v Frenmast Pty Ltd [2013] NSWCA 459

Australia and New Zealand Banking Group Ltd v Hunter BNZ Finance Ltd [1991] 2 VR 407

Australia Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd; Guan v Linfield Developments Pty Ltd (2017) 18 BPR, 36; [2017] NSWCA 99

Australian Broadcasting Commission v Australasian Performing Right Association Ltd Association (1973) 129 CLR 99; [1973] HCA 36

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293; [2010] FCA 784

Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119

Australian Financial Services and Leasing Pty Ltd (ACN 105 657 681) v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14

Australian Guarantee Corporation Ltd v Balding (1930) 43 CLR 140 140; [1930] HCA 10

Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1; [2019] HCA 18

Awad v Australian Sales & Leasing Pty Ltd [2018] VSC 627

Bagnall v Carlton (1877) 6 Ch D 371

Baker v Palm Bay Island Resort Pty Ltd (No 2) [1970] Qd R 210

Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226

Balog v Independent Commission Against Corruption (1990) 169 CLR 625; [1990] HCA 28

Baltic Shipping Co v Dillon (1993) 176 CLR 344; [1993] HCA 4

Barescape Pty Ltd v Bacchus Holdings Pty Ltd [2012] NSWSC 984

Barker v Harrison (1846) 2 Coll 546

Barnes v Addy (1874) LR 9 Ch App 244; 22 WR 505

Bartram & Sons Ltd (1904) 90 LT 357

Baulderstone Hornibrook Pty Ltd v Queensland Investment Corp [2006] NSWSC 522

BB Australia Pty Ltd v Danset Pty Ltd [2018] NSWCA 101

Belfield v Belfield (2012) 83 NSWLR 189; (2012) 16 BPR 31,177

Betts v Conolly (1970) 120 CLR 417; [1970] HCA 18

Bhullar v Bhullar [2003] 2 BCLC 241

Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060

Blatch v Archer (1774) 1 Cowp 63

Blendell v Byrne; The Estate of Noeline Joan Blendell [2019] NSWSC 583

Boardman v Phipps [1965] Ch 992

Boardman v Phipps [1967] 2 AC 46

Boensch v Pascoe [2019] HCA 49; (2019) 375 ALR 15

Boston Deep Sea Fishing and Ice Co v Ansell (1888) 39 Ch D 339

Bowes v City of Toronto (1858) 11 Moo PC 463

Boyd & Forrest v Glasgow and South-Western Railway Co 1915 SC (HL) 20

BP Exploration Co (Libya) Ltd v Hunt (No 2) [1979] 1 WLR 783

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266

Bradley v Matloob [2015] NSWCA 239

Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61

Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61

Brewarrina Shire Council v Beckhaus Civil Pty Ltd (2003) 56 NSWLR 576; [2003] NSWCA 4

Brick and Pipe Industries Ltd v Occidental Life Nominees Pty Ltd [1992] 2 VR 279

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Bristol and West Building Society v Mathew [1998] Ch 1

Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410

Brockway v Pando [2000] WASCA 192

Brogden v Metropolitan Railway Co (1876-77) 2 App Cas 666

Brott v The Queen (1992) 173 CLR 426; [1992] HCA 5

Brown v Tavern Operator Pty Ltd (2018) 98 NSWLR 586; [2018] NSWSC 1290

Browne v Dunn (1894) 6 R 67

Buckby v Speed [1959] Qd R 30

Burdick v Garrick (1870) LR 5 Ch App 233

Burns v McFarlane (1940) 64 CLR 108; [1940] HCA 25

Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26

Cambridge Gulf Holdings NL v CLC Corporation (Full Court of the Federal Court of Australia, 28 August 1998, unrep)

Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321; [1974] HCA 22

Cappe v Tsung [2018] NSWCA 86

Carbone as Trustee for the S & N Carbone Family Trust v Mills [2019] NSWCA 15

Caringbah Investments Pty Ltd v Caringbah Business and Sports Club Ltd (in liq) [2016] NSWCA 165

Case)

Cavendish Square Holding BV v El Makdessi [2016] AC 1172; [2015] UKSC 67

CH Real Estate Pty Ltd v Jainran Pty Ltd [2010] NSWCA 37

Chan v Zacharia (1984) 154 CLR 178; [1984] HCA 36

Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101

Chen v Gu; Chen v Nguyen [2011] NSWSC 1622

City Bank of Sydney v McLaughlin (1909) 9 CLR 615; [1909] HCA 78

Clarey v Permanent Trustee Co Ltd [2005] VSCA 128

Collins v O’Reilly (1940) 41 SR (NSW) 281

Commerce Consolidated Pty Ltd v Johnstone [1976] VR 724

Commercial and General Acceptance Ltd v Nixon (1981) 152 CLR 491 at 520; [1981] HCA 70

Commercial Union Insurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389

Commonwealth Bank of Australia v Muirhead [1997] 1 Qd R 567

Commonwealth Trading Bank v Sydney Wide Stores Pty Ltd (1981) 148 CLR 304; [1981] HCA 43

Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39

Con-stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226; [1986] HCA 14

Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373; [1975] HCA 8

Cook v Deeks [1916] 1 AC 554

Cory Brothers & Company v Owners of Turkish Steamship ‘Mecca’ [1897] AC 286

Crantrave Ltd v Lloyd’s Bank Plc [2000] QB 917

Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26

Danby v Coutts & Co (1885) 29 Ch D 500

Daraydan Holdings Ltd v Solland International Ltd [2005] Ch 119

David Securities Pty Ltd v Commonwealth Bank of Australia (1990) 23 FCR; [1990] FCA 186

David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353, [1992] HCA 48

Day v Couch [2000] NSWSC 230

De Bussche v Alt (1878) 8 Ch D 286

Deeley v Lloyds Bank Ltd [1912] AC 756

Dickinson v NAL Realisations (Staffordshire) Ltd [2019] EWCA Civ 2146

Dimitrovski v Australian Executor Trustees Ltd [2014] NSWCA 68

Diplock v Blackburn (1811) 3 Camp 43

Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51

Doyle v Blake (1804) 2 Sch & Lef 231

DPC Estates Pty Ltd v Grey [1974] 1 NSWLR 443

E Co v Q [2018] NSWSC 442

Eden v Ridsdale’s Railway Lamp & Lighting Co (1889) 23 QBD 368

Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599

EIC Services Ltd v Phipps [2003] EWHC 1507 (Ch); [2004] 2 BCLC 589

Electric Life Pty Ltd v Unison Finance Group Pty Ltd [2015] NSWCA 394

Electric Life Pty Ltd v Unison Finance Group Pty Ltd [2015] NSWCA 394

Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7

Elias v George Sahely & Co (Barbados) Ltd [1982] UKPC 31

Emanuel Management Pty Ltd v Foster’s Brewing Group Ltd [2003] QSC 2015

Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523

Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50

Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7

Ex parte Belchier (1754) Amb 218; 27 ER 144

Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785

Falcke v Scottish Imperial Insurance Co (1886) 34 Ch D 234

Falk v Haugh 53 CLR 163; [1935] HCA 35

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 98; [2007] HCA 22

Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678; [2004] NSWCA 140

Fawcett v Whitehouse (1829) 1 Russ & M 132 9

FHR European Ventures LLP v Cedar Capital Partners LLC; sub nom FHR European Ventures LLP v Mankarious) [2015] AC 250; [2014] UKSC 45

Film Bars Pty Ltd v Pacific Film Investments Pty Ltd (1979) 1 BPR 9251

Fitzgerald v Masters (1956) 95 CLR 420; [1956] HCA 53

Fouche v The Superannuation Fund Board (1952) 88 CLR 609; [1952] HCA 1

Fox v Percy (2003) 214 CLR 188; [2003] HCA 22

Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603

Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480

Fried v National Australia Bank (2001) 111 FCR 322

Fry v Tapson (1884) 28 Ch D 268

Furs Ltd v Tomkies (1936) 54 CLR 583; [1936] HCA 3

Fyffes Group Ltd v Templeman [2000] 2 Lloyds Rep 643

Galaxidis v CBFC Leasing [2005] NSWCA 347

General Reinsurance Australia Ltd v HIH Casualty & General Insurance Ltd [2009] NSWCA 22

Globe Church Inc v Allianz Australia Insurance Ltd (2019) 99 NSWLR 470; [2019] NSWCA 27

Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd [2016] NSWCA 224

Gore v Montague Mining Pty Ltd [2000] FCA 1214

Grant v Gold Exploration and Development Syndicate Ltd [1900] 1 QB 233

Grant v John Grant & Sons Pty Ltd (1950) 82 CLR 1; [1950] HCA 54

Greenwood v Martins Bank Ltd [1932] 1 KB 371

Grimaldi v Chameleon Mining (No 2) (2012) 200 FCR 296; [2012] FCAFC 6

Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 357; (1999) 43 IPR 545

Harkness v Partnership Pacific Ltd (1997) 41 NSWLR 204

Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298; 2003] NSWCA 10

Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549

Hexiva Pty Ltd v Lederer [2006] NSWSC 318

Hoath v Connect Internet Services Pty Ltd [2006] NSWSC 158; (2006) 229 ALR 566

Hodgson v Amcor; Amcor v Barnes [2012] VSC 94

Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64

Hovenden v Millhoff (1900) 83 LT 41; [1900-3] All ER Rep 848

Hunter BNZ Finance v C G Maloney Pty Ltd (1988) 18 NSWLR 420

Hyder Constulting (Australia) Pty Ltd v Wilk Wilhelmson Agency Pty Ltd [2001] NSWCA 313

In re Caerphilly Colliery Co (1877) 5 Ch D 336

In re Cleadon Trust Ltd [1939] Ch 286

In re Maidstone Palace of Varieties Ltd; Blair v Maidstone Palace of Varieties Ltd [1909] 2 Ch 283; [1908–10] All ER Rep 678

In re Metropolitan Amalgamated Estates Ltd; Fairweather v the Company [1912] 2 Ch 497

In re Morvah Consols Tin Mining Co (1875) 2 Ch D 1 (McKay’s Case)

In re North Australian Territory Co [1892] 1 Ch 322 (Archer’s Case)

In re Western of Canada Oil, Lands and Works Co (1875) 1 Ch D 115 (Carling, Hespeler, and Walsh’s Cases)

In the matter of Combined Projects (Arncliffe) Pty Ltd [2019] NSWSC 1070

In the matter of Combined Projects (Arncliffe) Pty Ltd [2019] NSWSC 1082

In the matter of Indoor Climate Technologies Pty Ltd [2019] NSWSC 356

In the matter of Macquarie Americas Holdings Pty Ltd [2015] NSWSC 2073

In the matter of Matlic Pty Ltd (in liq) [2014] NSWSC 1342

In the matter of Mosman & Co Pty Ltd [2019] NSWSC 1155

In the matter of Whitsunday Clean Sands Pty Ltd [2017] NSWSC 1199

Indeco Pacific Pty Ltd v Geneva Investments Pty Ltd [2012] VSC 621

Industries & General Mortgage Company Ltd v Lewis [1949] 2 All ER 573

Investmentsource Corp Pty Ltd v Knox Street Apartments Pty Ltd (2002) 56 NSWLR 27; [2002] NSWSC 710

Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896

Isis v Clarence [2004] NSWSC 73

Jackson v White and Midland Bank Ltd [1967] 2 Lloyd’s Rep 68

Jacobs v Morris [1902] 1 Ch 816

Janssen Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526

Jennings Construction Ltd v QH & M Birt Pty Ltd (1986) 8 NSWLR 18

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Jones v Southall & Bourke Pty Ltd [2004] FCA 539

Junker v Hepburn [2010] NSWSC 88

Kakavas v Crown Melbourne (2013) 250 CLR 392; [2013] HCA 25

Karak Rubber Co Ltd v Burden (No 2) [1972]; 1 WLR 602; 1 All ER 1230

Katwell Pty Ltd v National Australia Bank Ltd [2012] NSWSC 513

Keech v Sandford (1726) Sel Cas Ch 61

Keogh v Dalgety & Company Ltd (1916) 22 CLR 402; [1916] HCA 69

Kilbee v Sneyd (1828) 2 Mol 186

Kinsela v Russell Kinsela Pty Ltd (in liq) (1986) 4 NSWLR 722

Kocic v Deputy Commissioner of Taxation [2011] NSWCA 322

Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; [1995] HCA 68

Kreditbank Cassel GmbH v Schenkers Ltd [1927] 1 KB 826; [1927] All ER Rep 421

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11

Laidlaw v Hillier Hewitt Eisley Pty Ltd [2009] NSWCA 44

Langford v Gascoyne (1805) 11 Ves 333; 32 ER 1116

Laurelmont Pty Ltd v Stockdale & Leggo (Queensland) Pty Ltd [2001] QCA 212

Lewis v Condon (2013) 85 NSWLR 99; [2013] NSWCA 204

Liebe v Molloy (1906) 4 CLR 347; [1906] HCA 67

Liggett (B) Liverpool Ltd v Barclays Bank Ltd [1928] 1 KB 48

Lister & Co v Stubbs (1890) 45 Ch D 1

Logicrose Ltd v Southend United FC [1988] 1 WLR 1256

London International Trust Ltd v Barclays Bank Ltd [1980] 1 Lloyd’s Rep 241

Lucas Earthmovers Pty Ltd v Anglogold Ashanti Australia Ltd [2019] FCA 1049

Lumbers v W Cook Builders Pty Ltd (In liq) (2008) 232 CLR 635; [2008] HCA 27

Lysaght Bros & Co Ltd v Falk 2 CLR 421; [1905] HCA 7

MacDonald Dickens & Macklin (a firm) v Costello [2012] QB 244

Maddocks v DJE Constructions Pty Ltd (1982) 148 CLR 104; [1982] HCA 17

Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181; [2001] HCA 70

Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633

Majesty Restaurant Pty Ltd (In liq) v Commonwealth Bank of Australia (1998) 47 NSWLR 593

Manks v Whiteley [1912] 1 Ch 735

Mann v Paterson Constructions Pty Ltd [2019] HCA 32

Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336; [1973] HCA 23

Massey v Wales (2003) 57 NSWLR 718

Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234

McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579; [2000] HCA 65

McCarthy v McIntyre [1999] FCA 784

McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457; [1933] HCA 25

McLean v Discount & Finance Ltd (1939) 64 CLR 312; [1939] HCA 38

McRae v Coulton (1986) 7 NSWLR 7 644

McVeigh v National Australia Bank Ltd [2000] FCA 187; (2000) 278 ALR 429

Metro-Goldwyn-Mayer Pty Ltd v Greenham [1966] 2 NSWR 717

Metropolitan Bank v Heiron (1880) 5 Ex D 319

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Miller Heiman Pty Ltd v Sales Principles Pty Ltd (2017) 94 NSWLR 500

Minister for Lands and Forests (NSW) v McPherson (1991) 22 NSWLR 683

Mita Copiers Australia Pty Ltd v Condor OA Pty Ltd (Supreme Court (NSW), Hunter J, 10 October 1994, unrep)

Moratic v Gordon (2007) 13 BPR 24,213; [2007] NSWSC 5

Morison v Thompson (1874) LR 9 QBD 480

Moses v Macferlan (1760) 2 Bur 1005

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37

Nant-y-glo and Blaina Ironworks Co v Grave (1878) 12 Ch D 738

National Australia Bank v Dionys atf the Angel Family Trust [2016] NSWCA 242

National Australia Bank v Hokit Pty Ltd (1996) 39 NSWLR 377

National Commercial Banking Corporation of Australia Ltd v Batty (1986) 160 CLR 251; [1986] HCA 21

Nielsen v Capital Finance Australia Ltd [2014] QCA 139

Nominal Defendant v Gabriel (2007) 71 NSWLR 150; [2007] NSWCA 52

North v Walthamstow Urban Council (1898) 67 LJ QB 972

O’Donnell v Reichard [1975] VR 916

O’Halloran v R T Thomas & Family Pty Ltd (1998) 45 NSWLR 262

O3 Capital Pty Ltd v WY Properties Pty Ltd [2016] WASCA 82

Old v McInnes and Hodgkinson [2011] NSWCA 410

Oneflare Pty Ltd v Chernih [2017] NSWCA 195

Orr v Ford (1989) 167 CLR 316; [1989] HCA 4

Orr v Slender (2005) 64 NSWLR 671; [2005] NSWSC 1175

Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305; (2004) Aust Contract R 90-181

Ovidio Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd (2006) V ConvR 54-713; [2006] VSCA 6

Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35

Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525; [2016] HCA 28

Paciocco v Australia and New Zealand Banking Group Ltd [2014] FCA 35

Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50

Panama and South Pacific Telegraph Co v India Rubber, Gutta Percha and Telegraph Works Co (1875) LR 10 Ch App 515

Parker v McKenna (1874) LR 10 Ch App 96

Parr’s Banking Co Ltd v Yates [1898] 2 QB 460

Pascali v Carr [2019] NSWCA 151

Patsalis v New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307

Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5

Payne v Parker [1976] 1 NSWLR 191

Peninsula and Oriental Steam Navigation Co v Johnson (1938) 60 CLR 189; [1938] HCA 16

Peninsula Balmain Pty Ltd v Abigroup Contractors Pty Ltd [2002] NSWCA 211

Peninsula Gold Pty Ltd v Sunbeam Victa Holdings Ltd (1996) 20 ACSR 553

Perini Corporation v Commonwealth of Australia (Redfern Mail Exchange Case) [1969] 2 NSWR 530

Permanent Trustee Australia Company Ltd v FAI General Insurance Company Ltd (2001) 50 NSWLR 679

Perochinsky v Kirschne [2013] NSWSC 400; 16 BPR 31,481

Peter’s of Kensington Pty Ltd v Seersucker Pty Ltd [2008] NSWSC 897

Petersen v Moloney (1951) 84 CLR 91; [1951] HCA 57

Phipps v Boardman [1964] 1 WLR 993

Phipps v Boardman [1965] Ch 992

Pianta v National Finance and Trustees Ltd (1964) 180 CLR 146 at 152; [1964] HCA 61

Pitcher v Langford (1991) 23 NSWLR 142

Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14

Powell & Thomas v Evan Jones & Co [1905] 1 KB 11

Priestley v Priestley [2016] NSWSC 1096

Priestley v Priestley [2017] NSWCA 155

R v Bishop of Salisbury [1901] 1 QB 573

R v Lavender (2005) 222 CLR 67; [2005] HCA 37

Randfield v Randfield (1860) 1 Dr & Sm 310; 62 ER 398

Re Bradford Roofing Industries Pty Ltd (in liq) & Companies Act [1966] 1 NSWR 674

Re Brentwood Brick and Coal Co [1876] 4 Ch D 562

Re Brier (1884) 26 Ch D 238

Re Cambridge Credit Corporation Ltd (Receiver Appointed) (1991) 6 BPR 13,894

Re Duomatic Ltd [1969] 2 Ch 365

Re Estate of Evans [2010] SASC 193

Re Gasbourne Pty Ltd [1984] VR 801

Re Hetling and Merton’s Contract [1893] 3 Ch 269

Re Hodgson (1886) 31 Ch D 177; [1881-85] All ER Rep 931

Re Hunter Resources Ltd (1992) 34 FCR 418

Re Meyer Douglas Pty Ltd [1965] VR 638

Re National Safety Council of Australia (in liq); Elders Finance Group Ltd v Perrins (1992) 10 ACSR 101

Re Rectron Electronics Pty Ltd [2013] VSC 384

Realtek Pty Ltd v Wetamast Pty Ltd [2019] NSWSC 1869

Rebenta Pty Ltd v Wise [2009] NSWCA 212

Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134

Retail Employees Superannuation Pty Ltd v Pain (2016) 115 ACSR 1

RHG Mortgage Ltd v Rosario Ianni [2015] NSWCA 56

Robertson v Grigg (1932) 47 CLR 257; [1932] HCA 29

Robinson v Campbell (No 2) (1992) 30 NSWLR 503

Rock Advertising Ltd v MWB Business Exchange Centres Ltd [2019] AC 119; [2018] UKSC 24

Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68

Royal British Bank v Turquand (1856) 5 El & Bl 327; 199 ER 886

Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 8; (2016) 332 ALR 126

Ryan v Ryan [2012] NSWSC 636

Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWSCA 65

Sansom v Westpac (1996) 116 BPR 97584

Sasson v Fahevu [1999] NSWCA 400

Saxby Soft Drinks v George Saxby Beverages Pty Ltd (2009) 14 BPR 27,213; [2009] NSWSC 1486

Sayour v Elliott [2017] NSWSC 713

Sayour v Elliot [2018] NSWSC 59

SCEGS Redlands v Barbour [2008] NSWSC 928

Seiwa Australia Pty Ltd v Beard (2009) 75 NSWLR 74; [2009] NSWCA 240

Sichell’s Case (1867) LR 3 Ch App 119

Simic v NSW Land and Housing Corporation (2016) 260 CLR 85

Simon v NRMA Insurance Ltd [1991] NSWCA 247

Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2012] Ch 453

Sinclair v Brougham [1914] AC 398

Smith v Chadwick (1882) 20 Ch D 27

Smith v Henniker-Major & Co (a firm) [2003] Ch 182; [2002] EWCA Civ 762

Smorgon v ANZ Banking Group Ltd (1976) 134 CLR 475

Soanes v London and South-Western Railway Co (1919) 88 LJKB 524

Soiland Pty Ltd v Ridgepoint Corporation Pty Ltd [2005] WASC 124

Speight v Gaunt (1883) 9 App Cas 1

Steele v Tardiani (1946) 72 CLR 386; [1946] HCA 21

Stevenson v Hook (1956) 73 WN (NSW) 307

Sugden v Crossland (1856) 3 Sm & G 192

Sumpter v Hedges [1898] 1 QB 673

Surfstone Pty Ltd v Morgan Consulting Engineers Pty Ltd [2016] QCA 213

Sutcliffe v Thackrah [1974] AC 727

Swotbooks.com Ltd v Royal Bank of Scotland Plc [2011] EWHC 2025

Sydney Water Corporation v Makucha [2010] NSWSC 114

Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80

Taylor v White (1964) 110 CLR 129; [1964] HCA 11

Taylors Fashions Ltd v Liverpool Trustees Co [1982] 1 QB 133

The Nominal Defendant v Cordin [2017] NSWCA 6

The Trident Beauty [1994] 1 WLR 161; [1994] 1 All ER 470

TMA Australia Pty Ltd v Indect Electronics & Distribution GmbH [2015] NSWCA 343

Toll (FGCT) Pty Ltd v Alphapharm (2004) 219 CLR 165; [2004] HCA 52

Tonitto v Bassal (1992) 28 NSWLR 564

Tonna v Mendonca [2019] NSWSC 1849

Tyrrell v Bank of London (1862) 10 HL Cas 26

Varker v Commercial Banking Co [1972] 2 NSWLR 967

Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505

V-Flow Pty Ltd v Holyoake Industries (Vic) Pty Ltd (2013) 296 ALR 418

Visnic v Sywak [2009] NSWCA 173

Vukmirica v Betyounan [2008] NSWCA 16

W J Simms Son & Cooke (Southern) Ltd [1980] 1 QB 677

Walter v James (1871) LR 6 Ex 124

Ward v Swift (1848) 6 Hare 309; 67 ER 1184

Warman International Ltd v Dwyer (1995) 182 CLR 544; [1995] HCA 18

Waterman v Gerling Australia Insurance Company Pty Ltd (2005) 65 NSWLR 300; [2005] NSWSC 1066

Watson v Foxman (1995) 49 NSWLR 315

Webb v Ryan [2012] VSC 377

Weeks v Hrubala [2008] NSWSC 162

Weige v Cupton Pty Ltd [2012] NSWCA 414

West v Commercial Bank of Australia Ltd (1935) 55 CLR 315; [1935] HCA 14

Westpac Banking Corp v Tanzone Pty Ltd (2000) 9 BPR 97,814; [2000] NSWCA 25

Whaley Bridge Calico Printing Co v Green (1879) 5 QBD 109

Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522; [2005] HCA 17

Wilkinson v Feldworth Financial Services Pty Ltd (1998) 29 ACSR 642

Williams v Barton [1927] 2 Ch 9

Willmot v Barker (1880) 15 Ch D 96

Winnote Pty Ltd v Page (2006) 68 NSWLR 531; [2006] NSWCA 287

Wrout v Dawes (1858) 25 Beav 369; 53 ER 678

Wu v Ling [2016] NSWCA 322

Texts Cited:

Dal Pont, G E, Law of Agency (3rd ed, 2013, LexisNexis)

Edelman, J, “Two Fundamental Questions for the Law of Trusts” (2013) 129 Law Quarterly Review 66

Edwards, R, “The Liggett Defence and Apparent Authority” (2001) 31 Hong Kong Law Journal 224

Finn, P, Fiduciary Obligations (1977, Lawbook Co)

Goode, R, “Proprietary Liability for Secret Profits – a Reply” (2011) 127 Law Quarterly Review 493

Heydon J D, and M J Leeming, Jacob’s Law of Trusts in Australia (8th ed, 2016, LexisNexis)

Heydon, J D, Cross on Evidence (8th ed, 2010, LexisNexis)

Heydon, J D, Heydon on Contract (2019, Lawbook Co)

Jones, G, “Delegation by Trustees: A Reappraisal” (1959) 22 Modern Law Review 381

Law Commission, Powers of Attorney: Report on a Reference under Section 3(1)(e) of the Law Commissions Act 1965 (September 1970, Cmnd 4473)

Law Reform Commission of New South Wales, Powers of Attorney (1974, LRC 18)

Law Reform Commission of New South Wales, Working Paper 10 Powers of Attorney (1973)

Lehane, J, “Fiduciaries in a Commercial Context” in P D Finn (ed), Essays in Equity (1985, Lawbook Co)

Mason, K, J W Carter and G J Tolhurst, Restitution Law in Australia (2nd ed, 2008, LexisNexis)

Meagher, R P, and W M C Gummow, Jacobs’ Law of Trusts in Australia (4th ed, 1977, LexisNexis)

Meagher, R P, J D Heydon, and MJ Leeming, Meagher, Gummow and Lehane (4th ed, 2002, LexisNexis)

Millett, P, “Bribes and Secret Commissions” (2012) 71 Cambridge Law Journal 583

Paget, J, and M Hapgood, Paget’s Law of Banking (12th ed, 2002, LexisNexis)

Smith, L, “Constructive Trusts and the No Profit Rule” (2013) 72 Cambridge Law Journal 260

Swadling, W, “Constructive Trusts and Breach of Fiduciary Duty” (2012) 18 Trusts and Trustees 985

Tyler, E P Young and C Croft, Fisher & Lightwood’s Law of Mortgage (3rd ed, 2013, LexisNexis)

Watts, P, “Tyrrell v Bank of London: an Inside Look at an Inside Job” (2013) 129 Law Quarterly Review 527

Watts, P, and F M B Reynolds, Bowstead and Reynolds on Agency (18th ed, 2010, Sweet & Maxwell)

Worthington, S, “Fiduciary Duties and Proprietary Remedies: Addressing the Failure of Equitable Formulae” (2013) 72 Cambridge Law Journal 720

Category:

Principal judgment

Parties:

Broadway Proceedings 2016/00282940

Broadway Plaza Investments Pty Ltd (Plaintiff/First Cross-Defendant to First Cross-Claim/Cross-Defendant to Second Cross-Claim/First Cross-Defendant to Fifth Cross-Claim/First Cross-Defendant to Sixth Cross-Claim/Second Cross-Defendant to Seventh Cross-Claim/First Cross-Claimant to Eighth Cross-Claim)
Broadway Plaza Pty Ltd (Defendant/Cross-Claimant to First, Second and Fifth Cross-Claims/Cross-Defendant to Third Cross-Claim/Second Cross-Defendant to Sixth Cross-Claim/First Cross-Defendant to Eighth and Ninth Cross-Claims)
Commonwealth Bank of Australia (Second Cross-Defendant to First Cross-Claim/Second Cross-Defendant to Fifth Cross-Claim/Cross-Claimant to Seventh Cross-Claim/Third Cross-Defendant to Eighth Cross-Claim)
HWL Ebsworth (First Cross-Defendant to Fourth Cross-Claim)
Fouad Deiri (Third Cross-Defendant to Fifth Cross-Claim/First Cross-Defendant to Seventh Cross-Claim/Second Cross-Claimant to Eighth Cross-Claim)
Deiri Nominees Pty Ltd (Fourth Cross Defendant to Fifth Cross-Claim/Fourth Cross-Defendant to Seventh Cross-Claim/Cross-Claimant to Ninth Cross-Claim)
Combined Projects (Gibbons) Pty Ltd (Fifth Cross-Defendant to Fifth Cross-Claim; Fifth Cross-Defendant to Seventh Cross-Claim)
Combined Property Investments Pty Ltd (Sixth Cross-Defendant to Fifth Cross-Claim; Sixth Cross-Defendant to Seventh Cross-Claim)
Combined Projects (Redfern) Pty Ltd (Seventh Cross-Defendant to Fifth Cross-Claim; Seventh Cross-Defendant to Seventh Cross-Claim)
Combined Projects Holdings Pty Ltd (Eighth Cross-Defendant to Fifth Cross-Claim/Eighth Cross-Defendant to Seventh Cross-Claim)
Matthews Street Pty Ltd (Ninth Cross-Defendant to Fifth Cross-Claim/Second Cross-Defendant to Ninth Cross-Claim)
Deicorp Pty Ltd (Tenth Cross-Defendant to Fifth Cross-Claim; Cross-Claimant to Sixth Cross-Claim; Third Cross-Defendant to Seventh Cross-Claim)
Combined Projects (Arncliffe) Pty Ltd (Eleventh Cross-Defendant to Fifth Cross-Claim; Ninth Cross-Defendant to Seventh Cross-Claim)
Moustafa Sayour (Second Cross-Defendant to Eighth Cross-Claim)

Arncliffe Proceedings 2017/00180712

Sayour Holdings Pty Ltd atf Sayour 2 Family Trust (Plaintiff; First Cross-Defendant to Third Cross-Claim)
Combined Projects (Arncliffe) Pty Ltd (First Defendant/Cross-Claimant to First Cross-Claim; Fourth Cross-Defendant to Third Cross-Claim)
Deiri Nominees Pty Ltd (Second Defendant/Second Cross-Defendant to First Cross-Claim; Cross-Claimants to Third Cross-Claim)
Fouad Deiri (Third Defendant/First Cross-Defendant to First Cross-Claim; Second Cross-Claimant to Third Cross-Claim)
Konstructions Pty Ltd (Third Cross-Defendant to First Cross-Claim)
Moustafa Sayour (Second Cross-Defendant to Third Cross-Claim)
Zapphire Investments Pty Ltd (Fourth Cross-defendant to First Cross-Claim)
Deicorp Properties Pty Ltd (Fifth Defendant to First Cross-Claim)
Deicorp Constructions Pty Ltd (Sixth Cross-defendant to First Cross-Claim/Cross-claimant to Second Cross-Claim)
Yesmine Sayour (Third Cross-Defendant to Third Cross-Claim)

Representation:

Counsel:

Broadway Plaza proceedings 2016/00282940

NC Hutley SC with CN Bova SC, B Michael and D Reynolds (Plaintiff/First Cross-Defendant to First Cross-Claim/Cross-Defendant to Second Cross-Claim/First, Third and Fourth Cross-Defendants to Fifth Cross-Claim/First Cross-Defendant to Sixth Cross-Claim/Second Cross-Defendant to Seventh Cross-Claim/First Cross-Claimant to Eighth Cross-Claim)
D Smallbone with JP Gatland (Defendant/Cross-Claimant to First, Second and Fifth Cross-Claims/Cross-Defendant to Third Cross-Claim/Second Cross-Defendant to Eighth Cross-Claim)
MLD Einfeld QC with P Jammy (Second Cross-Defendant to First Cross-Claim/Second Cross-Defendant to Fifth Cross-Claim/Cross-Claimant to Seventh Cross-Claim/Third Cross-Defendant to Eighth Cross-Claim)
TM Faulkner SC (First Cross-Defendant to Fourth Cross-Claim)
V Bedrossian with A Smith (Fifth to Eighth and Tenth to Eleventh Cross-Defendants to Fifth Cross-Claim)

Arncliffe proceedings 2017/00180712

D Smallbone with J Wheeldon (Plaintiff and First Cross-Claimant to First Cross/Claim and Cross-Claimant to Second Cross-Claim/Second and Third Cross-Defendants to Third Cross-Claim)
V Bedrossian with A Smith (First Defendant and Fifth and Sixth Cross-Defendants to First Cross-Claim)
NC Hutley SC with CN Bova SC, B Michael and D Reynolds (Second and Third Defendants; First and Second Cross-Defendants to First Cross-Claim; Cross-Claimants to Third Cross-Claim)
J Morris SC (Third Cross-Defendant to First Cross-Claim)
H Woods (Fourth Cross-defendant to First Cross-Claim)

Solicitors:

Broadway Plaza proceedings 2016/00282940

Cornwalls (Plaintiff/First Cross-Defendant to First Cross-Claim/Cross-Defendant to Second Cross-Claim/First Cross-Defendant to Fifth Cross-Claim/First Cross-Defendant to Sixth Cross-Claim/Second Cross-Defendant to Seventh Cross-Claim/First Cross-Claimant to Eighth Cross-Claim)
Adams Lawyers (Defendant/Cross-Claimant to First, Second and Fifth Cross-Claims/Cross-Defendant to Third Cross-Claim/Second Cross-Defendant to Eighth Cross-Claim)
HWL Ebsworth (Second Cross-Defendant to First Cross-Claim/Second Cross-Defendant to Fifth Cross-Claim)
Russells Sydney Partners (Fourth Cross-Defendant to Fifth Cross-Claim)
Kreisson Legal Pty Ltd (Fifth, Sixth, Seventh, Eighth, Tenth and Eleventh Cross-Defendants to Fifth Cross- Claim)

Arncliffe proceedings 2017/0018072

Adams Lawyers (Plaintiff and Cross-Claimant to First Cross-Claim)
Cornwalls (Second and Third Defendants/First and Second Cross-Defendants to First Cross-Claim/Cross Claimants to Third Cross-Claim)
Jordan Djundja Lawyers (Third Cross-Defendant to First Cross-Claim)
Hajje Solicitors (Fourth Cross-Defendant to First Cross-Claim)
Construction Legal Pty Ltd (Fifth Cross-Defendant to First Cross-Claim)
Kreisson Legal Pty Ltd (Sixth Cross-Defendant to Fifth Cross-Claim)

File Number(s):

2016/00282940; 2017/00180712

Publication restriction:

Nil

INDEX

JUDGMENT – WARD CJ IN EQ				[1]
Background				[4]
Broadway Proceedings			[7]
Investments and related entities		[9]
Plaza, Sayour Investments and related entities		[12]
Broadway Partnership and brief background		[13]
Cross-claims in the Broadway Proceedings		[46]
First Broadway Cross-Claim	[47]
Second Broadway Cross-Claim	[53]
Third Broadway Cross-Claim	[56]
Fourth Broadway Cross-Claim	[58]
Fifth Broadway Cross-Claim	[60]
Sixth Broadway Cross-Claim	[65]
Seventh Broadway Cross-Claim	[66]
Eighth Broadway Cross-Claim	[69]
Ninth Broadway Cross-Claim	[71]
Arncliffe Proceedings			[72]
Arncliffe Development and brief background		[73]
Cross-claims in the Arncliffe Proceedings		[79]
First Arncliffe Cross-Claim	[80]
Second Arncliffe Cross-Claim	[82]
Third Arncliffe Cross=Claim	[83]
Chronology of events				[91]
Plaza’s incorporation			[92]
Sayour Family Trust established			[94]
Westpac #202 Account opened			[97]
Acquisition by Plaza of properties in Punchbowl			[98]
Powers of Attorney granted in favour of Jamil in May 2010			[101]
Further Westpac account opened – the Westpac # 833 Account			[103]
Initial proposal for development of Broadway Site – meeting between Jamil and Mr Deiri			[104]
Mr Zafiropoulos’ interest in potential property development in Arncliffe			[107]
Moustafa’s involvement in early 2011			[109]
Broadway Coordination Meeting No 1 – January 2011			[113]
Proposal for partnership in relation to Broadway Development			[117]
Matthews Street Pty Ltd (Matthews Street Co)			[125]
Deicorp Constructions tender and Dyldam quote – September 2011			[127]
Stage 1 Construction Contract			[142]
Agreement re acquisition of half share of Broadway Site			[146]
Notice of Determination of Development Application			[154]
Commencement of $10,000 monthly payments			[155]
Settlement of purchase of Matthews Street Property			[163]
Instructions for contract of sale for Broadway Site			[174]
Incorporation of Investments and name change of Plaza			[193]
Jamil’s email of 29 November 2011			[194]
Amendment to Rockdale LEP – December 2011			[195]
Further Power of Attorney - 8 December 2011			[196]
Meeting with CBA at Biomed – 12 December 2011			[197]
CBA Discussion Paper re construction funding and refinance			[201]
Preparation of contract of sale of land			[205]
Opening of CBA Partnership Account			[208]
Moustafa requires funds by June 2012 for land in Lebanon			[213]
Execution of contract for sale of land – 27 December 2011			[215]
Registration of Broadway partnership			[222]
Approval of commercial terms and the First Facility Agreement			[224]
First cheques drawn on CBA Partnership Account			[230]
Appointment by Plaza of Parras & Associates as agent			[233]
Re-submission of Deicorp tender and the Stage 1 Construction and Design Contract			[234]
Stage 1 Construction and Design Contract –  general conditions for design and construct (AS 4300-1995)			[240]
First Facility Agreement signed 15 February 2012			[261]
Meeting with CBA on 20 February 2012 and subsequent instructions			[267]
Mr Deiri’s email on 29 February 2012			[272]
Broadway Coordination Meeting No 40 on 7 March 2012			[273]
Powers of Attorney in March 2012			[274]
Completion of purchase of Matthews Street Property			[279]
Emails in April 2012 re monthly payments			[280]
Payment of balance of purchase price for interest in Broadway Site			[282]
Moustafa overseas from 28 April 2012 to 4 August 2012			[284]
Monthly payment emails on 30 July 2012			[292]
Moustafa’s return to Australia in August 2012 and August payments			[295]
Opening of Westpac #238 Account			[305]
Determination of Development Application			[309]
Mr Zafiropoulos’ loan from Mr Fadi Ibrahim			[310]
Westpac #802 Loan and further payments throughout October to December 2012			[311]
Arncliffe Site			[323]
Opening of Westpac #295 Account and withdrawal of money from Westpac #238 Account			[330]
Powers of Attorney in February 2013			[333]
Moustafa overseas from 5 February 2013			[334]
Further payments			[336]
Application for home loan			[339]
Query on 8 March 2013 from CBA re cheque signatures (the 2013 CBA cheque query)			[340]
Cheque signing emails on 30 April 2013			[348]
Deicorp Properties – licence to operate under the Property Stock and Business Agents Act 2002 (NSW)			[353]
Tender for Stage 2			[354]
Stage 2 Construction Contract			[357]
Jamil query of 16 May 2013			[359]
Moustafa returns to Australia in May 2013			[361]
Second Facility Agreement			[362]
Emails on 27 June 2013			[366]
Emails re leases			[371]
Payment in August 2013			[372]
Construction of the residential units in Broadway Development			[374]
Rodney Dale’s introduction to Jamil in September or October 2013			[375]
Mr Deiri’s introduction to the Arncliffe Site			[387]
Mr Kanj’s account of events in mid to late 2013			[395]
Mr Zafiropoulos’ account of events			[407]
Mr Deiri’s account of December 2013 conversation with Jamil			[408]
Further variation to facility agreement in September 2013			[410]
Payments in September 2013			[412]
Appointment of MR Gramelis as accountant for Sayour interests			[418]
Email of 10 November 2013			[419]
Completion of Broadway Plaza shopping centre in December 2013			[421]
Incorporation of Sayour Holdings Pty Ltd and Moulikyah Pty Ltd			[422]
Alleged agreement with Jamil re Combined Projects Arncliffe (the Arncliffe Agreement)			[427]
Mr Zafiropoulos’ account of events			[436]
Incorporation of Combined Projects Arncliffe in late January 2014			[438]
Heads of Agreement re Arncliffe site			[444]
Change in authorisation details for CBA Partnership Account			[445]
Alleged loan from Jamil to Combined Projects Arncliffe			[447]
Put and Call Option for purchase of Arncliffe Site			[449]
Arncliffe Development in March 2014			[453]
Final draw down for Broadway Development			[455]
Email in April 2014 and Moustafa’s travel overseas			[456]
Momentum Project Group Services Agreement in May 2014			[458]
Incorporation of Combined Projects Holdings Pty Ltd			[464]
Incorporation of JS75 Pty Ltd			[465]
Moustafa returns to Australia and Jamil’s diagnosis			[467]
Events in August 2014			[469]
Opening of the Westpac #316 Account			[478]
Sale of residential units in the Broadway Development			[479]
Final accommodation notice on 30 October 2014			[480]
Payments on 13 November 2014			[481]
Transfers out of Westpac #202 Account			[484]
Sales of residential units			[485]
Partnership distributions			[486]
Initial valuation of Arncliffe Site			[498]
$1.65 million cheque in November 2014			[499]
Jamil’s contribution to Arncliffe Development			[504]
The Tripoli meeting on 8 January 2015			[510]
Payment of cheques to Moustafa			[521]
The other Arncliffe sites and payments in relation to those site			[524]
ANZ Facility Agreement for the Arncliffe Development			[538]
Arncliffe Loan Agreement			[541]
Completion of Arncliffe Site purchase			[542]
Registration of other entities			[544]
Mr Zafiropoulos’ account of conversations re Arncliffe project			[546]
Mr Gramelis’ April 2015 file note			[549]
Moustafa returns to Australia in April 2015			[550]
Construction contract for Arncliffe Development (Arncliffe Construction Contract)			[551]
Development application for the Arncliffe project			[559]
Mr Zafiropoulos and Jamil have dinner			[560]
Valuation of Arncliffe Site and Mr Zafiropoulos			[561]
Jamil’s admissions to hospital in September 2015			[563]
Final valuation report for Arncliffe Site			[564]
Jamil’s illness and the “deathbed” conversation			[565]
Conversation with Mr Vamvakaris			[600]
Site Identification Fees and Arncliffe Site valuations			[606]
Other discrepancies re Site Identification Fees			[616]
Jamil’s death			[619]
Independent quantity surveyor’s report for Arncliffe and partnership income			[621]
Subsequent claims in relation to Arncliffe Development			[623]
Dispute with Ms Catharine Sayour (Elliott)			[626]
Arncliffe Construction Contract of 27 April 2015			[642]
Commencement of construction works at Arncliffe in December 2015			[650]
Claims by Moustafa			[651]
Yesmine Sayour’s discovery of incorporation of Sayour Holdings			[652]
Development Management Agreement			[653]
Dissolution of Broadway Partnership			[657]
Sale of Broadway Plaza shopping centre			[659]
Sayour Holdings’ March 2017 enquiries into the affairs of Combined Projects Arncliffe			[661]
Deicorp Properties Agency Agreement of April 2017			[664]
Deiri Mortgage			[665]
Section 293 notice			[666]
Estate proceedings			[670]
Proportion of further accounting documents			[671]
Deiri Nominees’ disclaimer re Tripoli Minute in July 2017			[673]
Commencement of Arncliffe Proceedings in June 2017			[706]
Claim by Mr Kanj in mid January 2018			[709]
Completion of Arncliffe Development			[711]
Incorporation of Konstructions			[717]
Payments to Zapphire and Konstructions			[718]
Enquiry by Sayour Holdings			[730]
Development Management Fee			[732]
Deferred, provisional and other evidentiary rulings				[736]
Jones v Dunkel, Ferrcom and other such inferences			[737]
Dr Hemm		[739]
Finding		[742]
Mr Gramelis		[744]
Finding		[751]
Mr Fadi Ibrahim		[753]
Finding		[755]
CBA bank officers (including Mr Small and Ms Shucroft)		[756]
Finding		[761]
Mr Deiri’s advisers		[764]
Finding		[765]
Moustafa’s solicitor (Mr Zaid Naef)		[768]
Finding		[770]
Expert evidence of Mr Dubedat re Westpac #238 Account		[772]
Finding		[773]
Absence of documents and other evidence and other matters		[774]
Finding		[781]
Rule in Browne v Dunn			[785]
Mr Kanj, Konstructions and “sham” allegations		[786]
Oneflare not a complete statement and proviso does not here apply	[804]
Determination	[808]
Alternately, Oneflare proviso here not satisfied	[810]
Determination	[821]
“Glaring Improbability” or “inherently illogical” and Browne v Dunn	[833]
Determination	[838]
Consideration for moneys paid to Mr Kanj and his state of mind	[840]
Finding	[846]
Extent of work performance cf discovery of Arncliffe Site	[847]
Finding	[848]
Mr Kanj’s use of the moneys	[849]
Finding	[852]
$7.2 million figure	[853]
Finding	[854]
Absence of documents and other evidence	[855]
Finding	[863]
Mr Zafiropoulos and Zapphire		[864]
Finding		[866]
Mr Deiri and Deiri Parties re Stage 2 Construction Contract		[867]
Finding		[874]
Moustafa and Sayour Parties		[875]
Finding		[876]
Concessions by implication from cross-examination			[877]
Mr Kanj and Konstructions		[878]
Finding		[888]
Deferred Rulings			[889]
Credibility of witnesses				[900]
Moustafa			[909]
Finding			[923]
Mr Deiri			[933]
Finding			[986]
Ms Dahdal			[991]
Finding			[996]
Mr Kanj			[997]
Finding			[1021]
Mr Zafiropoulos			[1028]
Finding			[1051]
Mr Dale			[1054]
Finding			[1056]
Mr Vamvakaris			[1057]
Finding			[1058]
Expert Witness			[1059]
Mr Dubedat		[1060]
Mr Milton/Mr Kapouris		[1061]
Mr Portelli/Mr Sanig		[1067]
Broadway Proceedings				[1071]
Key factual findings sought in the Broadway Proceedings				[1072]
Factual findings sought by CBA in Broadway Proceedings			[1073]
CBA factual finding #(i): the corporate entities		[1074]
CBA factual finding #(ii): arrangements for funding and account operation for the Broadway Development		[1078]
CBA factual finding #(iii): First Facility Agreement		[1081]
CBA factual finding #(iv): Amended and Restated Cash Advance Facility Agreement and the Second Facility Agreement		[1084]
CBA factual finding #(v): first drawdown under the Second Facility Agreement on 1 October 2013		[1086]
CBA factual finding #(vi): cheques drawn between 1 February 2012 and 16 December 2015		[1087]
CBA factual finding #(vii): reduction on 1 October 2013 of balance owing		[1088]
CBA factual finding #(viii): Moustafa’s receipt of quotations for Broadway Development and signing of contracts		[1089]
CBA factual finding #(ix): Moustafa’s involvement in the Broadway Development		[1094]
CBA factual finding #(x): the Powers of Attorney		[1102]
CBA factual finding #(xi): Moustafa’s attendance at the “Grand Opening” and knowledge of expenditure		[1103]
CBA factual finding #(xii): cheques drawn on CBA Partnership Account		[1104]
CBA factual finding #(xiii): Moustafa’s acceptance of CBA funding		[1111]
CBA factual finding #(xiv): Moustafa’s acceptance of distributions to Mr Deiri and Investments		[1113]
CBA factual finding #(xv): Moustafa’s knowledge of construction costs		[1115]
CBA factual finding #(xvi): cheque-signing authority a “mere formality”		[1119]
CBA factual finding #(xvii): Moustafa’s knowledge that construction costs were being incurred without his signature		[1125]
CBA factual finding #(xviii): “manila folder procedure” and related matters		[1130]
Factual findings sought by Deiri Parties in Broadway Proceedings			[1134]
Factual finding #1: Jamil was empowered to run the business of Plaza		[1135]
Powers of Attorney granted by Plaza and Moustafa to Jamil	[1139]
Consideration re Powers of Attorney granted by Plaza and Moustafa to Jamil	[1168]
Jamil’s authority to run the business of Biomed	[1170]
Consideration re Jamil’s authority to run the business of Biomed	[1178]
Moustafa’s knowledge of the Westpac #202 Account	[1179]
Consideration of Moustafa’s knowledge of the Westpac #202 Account	[1197]
Jamil organised the demolition works on the Broadway Site	[1201]
Consideration re Jamil organised the demolition works on the Broadway Site	[1205]
Jamil contacted Deicorp and negotiated partnership terms and price	[1206]
Consideration re Jamil contacted Deicorp and negotiated partnership terms and price	[1211]
Moustafa did not attend regular project coordination meetings	[1212]
Consideration re Moustafa did not attend regular project coordination meetings	[1215]
Representations about Jamil made by Moustafa to Mr Deiri	[1218]
Consideration re representations about Jamil made by Moustafa to Mr Deiri	[1226]
All email communications with Plaza were through Jamil	[1227]
Consideration re all email communications with Plaza were through Jamil	[1230]
Moustafa left Jamil to undertake the purchase of the Matthews Street Property	[1231]
Consideration re Moustafa left Jamil to undertake the purchase of the Matthews Street Property	[1240]
Moustafa knew of the construction and left it to Jamil to manage	[1242]
Consideration re Moustafa knew of the construction and left it to Jamil to manage	[1255]
Moustafa was overseas for extended periods of time	[1256]
Consideration re Moustafa was overseas for extended periods of time	[1267]
Jamil organised payments to Moustafa (with his knowledge)	[1269]
Consideration re Jamil organised payments to Moustafa (with his knowledge)	[1277]
Jamil opened the Westpac #238 Account in the name of Moustafa and related matters	[1279]
Consideration re Jamil opened the Westpac #238 Account in the name of Moustafa and related matters	[1304]
Jamil was dealing with Westpac on behalf of Moustafa personally	[1308]
Consideration re Jamil was dealing with Westpac on behalf of Moustafa personally	[1315]
Moustafa was told by Jamil when Mr Deiri made payments	[1316]
Consideration re Moustafa was told by Jamil when Mr Deiri made payments	[1320]
Jamil opened the Westpac #295 Account in his and Moustafa’s name	[1321]
Consideration re Jamil opened the Westpac #295 Account in his and Moustafa’s name	[1333]
Jamil accepted the loan offer for the Westpac #111 Loan Account	[1336]
Consideration re Jamil accepted the loan offer for the Westpac #111 Loan Account	[1344]
Jamil was operating internet banking accounts on Plaza’s behalf	[1345]
Consideration re Jamil was operating internet banking accounts on Plaza’s behalf	[1347]
Jamil provided financial information to CBA about Moustafa and Biomed	[1348]
Consideration re Jamil provided financial information to CBA about Moustafa and Biomed	[1357]
Moustafa made no complaint about not receiving payments for the purchase of the Broadway Site for over five years	[1358]
Consideration re Moustafa made no complaint about not receiving payments for the purchase of the Broadway Site for over five years	[1363]
Moustafa made no complaint about not receiving partnership distribution payments for eleven months	[1364]
Consideration re Moustafa’s delay in complaints	[1369]
Moustafa allowed Jamil to run Sayour Holdings	[1372]
Consideration re Moustafa allowed Jamil to run Sayour Holdings	[1374]
Sayour Parties’ overall response to proposed factual finding #1		[1377]
Determination as to factual finding #1		[1410]
Factual finding #2: the Broadway Partnership commenced by 29 November 2011		[1413]
Conversations between Jamil and Moustafa in August 2011	[1415]
No direct discussions between Moustafa and Mr Deiri	[1417]
Payment of deposit for Broadway Site in October 2011	[1422]
Matthews Street joint venture documents executed on 3 November 2011	[1424]
$10,000 payments agreed, and commence, in November 2011	[1425]
Communications with solicitors in November 2011	[1427]
Investments was registered on 25 November 2011	[1428]
Plaza changed its name on 29 November 2011	[1429]
Other matters prior to registration on the Australian Business Register	[1430]
Sayour Parties’ reply submissions	[1432]
Determination as to factual finding #2		[1446]
Factual finding #3: there was no agreement for the partners to pay $2 million for excavation		[1450]
Determination as to factual finding #3		[1492]
Factual finding #4: Plaza has not proven that only its funds purchased the Matthews Street Property		[1497]
Determination as to factual finding #4		[1519]
Factual finding #5: no comparable competitor quote for construction and a joint venture		[1528]
Determination as to factual finding #5		[1542]
Factual finding #6: that the $10,000 monthly payments were not bribes		[1546]
Determination as to factual finding #6		[1579]
Factual finding #7: the contract for sale of land, Moustafa’s knowledge of $400,000 deposit and the $2 million payment		[1585]
Determination as to factual finding #7		[1621]
Factual finding #8: the CBA drawdown process did not require Moustafa to sign		[1624]
Determination as to factual finding #8		[1660]
Factual finding #9: that Moustafa was not required to sign (personally) the partnership cheques		[1665]
Determination as to factual finding #9		[1672]
Factual finding #10: that Investments paid the $6 million purchase price for the land to Plaza		[1674]
Determination as to factual finding #10		[1705]
Factual finding #11: that Investments paid the additional $2 million to Plaza		[1715]
Determination as to factual finding #11		[1724]
Factual finding #12: that the Broadway Partnership accepted the Stage 2 Construction Contract and Stage 2 Loan		[1729]
Determination as to factual finding #12		[1754]
Factual finding #13: that Plaza in fact received its share of the partnership distributions		[1755]
Determination as to factual finding #13		[1774]
Factual finding #14: that Moustafa knew about the partnership distributions		[1776]
Determination as to factual finding #14		[1810]
Other introductory matters		[1815]
Allegations of forgery and observations thereto			[1816]
Signing processes within Deicorp (including cheques and accommodation notices)			[1825]
Observations and findings re signing processes within Deicorp (including cheques and accommodation notices)			[1880]
The relationship between Moustafa and Mr Deiri			[1905]
Jamil and his development experience			[1912]
Allegations of “bribery”			[1922]
Sayour Parties’ submissions		[1923]
Deiri Parties’ submissions		[1960]
Deicorp Entities’ submissions		[1977]
Determination of “bribery” allegations		[1981]
Need to show a “corrupt purpose”	[2002]
Need to show an intention to influence (or presumption thereof)	[2011]
Need to show the payee was influenced	[2035]
Need to show the payer’s knowledge of concealment	[2040]
Need to show payment in connection with a particular contract or transaction	[2044]
Need to show payments in the contract price	[2046]
Need to show loss or that the transaction was unfair	[2050]
Remedial response and related issues	[2052]
Summary re “bribes” allegations	[2103]
First Broadway Cross claim				[2113]
Summary of parties’ respective positions			[2119]
Alleged unauthorised payments and moneys			[2125]
Schedule A: cheques bearing signatures of Mr Deiri and Jamil		[2126]
Schedule B: cheques bearing Mr Deiri’s signature and a non-genuine “Moustafa” signature		[2128]
Schedule C: cheques bearing three signatures		[2130]
Schedule D: cheques bearing only a non-genuine Moustafa signature		[2132]
Schedule E: cheques bearing only Mr Deiri’s signature		[2133]
Schedule F: interest, line fees and rollovers		[2135]
Schedule G: payments made pursuant to accommodation notices		[2142]
Schedule H: CBA Partnership Account		2147]
Sayour Parties’ position			[2149]
CBA’s and Deiri Parties’ position			[2183]
Jamil’s authority			[2191]
Actual authority by reason of the Powers of Attorney		[2193]
Relevant statutory provisions	[2194]
Relevant Powers of Attorney	[2204]
Implied revocation of earlier Powers of Attorney?	[2211]
Manner of signing the documents	[2216]
Construction of the Powers of Attorney	[2220]
Sayour Parties’ submissions: further observations	[2234]
Section 11 of the Powers of Attorney Act	[2246]
Sections 12 and 13 of the Powers of Attorney Act	[2251]
Section 10 of the Powers of Attorney Act	[2259]
Delegations under a trust instrument and delegations under statute	[2271]
Delegations of ministerial acts and common usage delegations	[2283]
Argument that the Powers of Attorney are valid under the general law	[2294]
Sayour Parties’ submissions in reply	[2302]
Determination re actual authority by reason of Powers of Attorney		[2322]
Section 10 and the Powers of Attorney Act	[2328]
Court of Appeal’s decision in Belfield	[2337]
Plain meaning so wide, as tolerably permits?	[2348]
The difficulty of “nice distinctions”	[2352]
Further statutory context	[2362]
Section 53 of the Trustee Act	[2368]
Section 10 and ss 53(4) and (6)	[2376]
The literal or “plain meaning” construction	[2385]
Construction of cl 7.49	[2397]
Implied actual authority by reasons of Jamil’s role		[2401]
Deiri Parties’ submissions	[2403]
CBA’s submissions	[2413]
Sayour Parties’ submissions	[2419]
Determination re implied actual authority by reason of Jamil’s role		[2430]
Actual authority pursuant to Partnership Act		[2435]
Determination re actual authority pursuant to Partnership Act		[2437]
Ostensible authority		[2447]
Determination re ostensible authority		[2452]
Determination re Jamil”s authority			[2453]
Estoppel (and acquiescence)			[2458]
CBA’s submissions		[2459]
Sayour Parties’ submissions		[2474]
Determination re estoppel (and acquiescence)			[2502]
“No loss” or “Liggett defence(s)”			[2513]
CBA’s submissions		[2517]
Deiri Parties’ submissions		[2523]
Sayour Parties’ submissions		[2526]
Determination re “no loss” or “Liggett defence(s)”			[2547]
Cheques and invoices		[2569]
Payments proved by Mr Deiri affidavits		[2571]
Mr Deiri’s oral evidence		[2573]
Specific payment categories		[2575]
Second Broadway Cross-claim				[2586]
Some further aspects re amounts claimed			[2590]
Sayour Parties’ submissions generally			[2595]
Deiri Parties’ submissions generally			[2606]
HWLE’s submissions generally			[2616]
Sayour Parties’ reply submissions			[2621]
Determination re the specific aspects of the Second Broadway Cross-claim			[2623]
Loan agreement never entered into and not binding		[2635]
Deiri Parties’ and HWLE’s submissions	[2636]
Sayour Parties’ submissions	[2665]
Determination re loan agreement never entered into and not binding		[2696]
Breach of special condition 43.3		[2705]
Deiri Parties’ and HWLE’s submissions	[2708]
Sayour Parties’ submissions	[2717]
Determination re breach of special condition 43.3		[2718]
No request for funds made and none advanced		[2720]
Deiri Parties’ and HWLE’s submissions	[2723]
Sayour Parties’ submissions	[2726]
Determination re no request for funds made and none advanced		[2727]
Proper construction of interest rate provision (the 9% per month issue)		[2730]
Deiri Parties’ and HWLE’s submissions	[2736]
Sayour Parties’ submissions	[2760]
Determination re proper construction of interest rate provision (the 9% per month issue)		[2766]
Interest provision void as a penalty		[2775]
Rectification		[2778]
Estoppel		[2782]
Deiri Parties’ submissions	[2784]
Sayour Parties’ submissions	[2786]
Determination re estoppel		[2791]
Unconscionable conduct		[2795]
Deiri Parties’ submissions	[2796]
Sayour Parties’ submissions	[2800]
Determination re unconscionable conduct		[2806]
Loan has been repaid		[2810]
Third Broadway Cross-claim				[2812]
Sayour Parties’ submissions generally			[2817]
Interest provision void as a penalty			[2828]
Deiri Parties’ and HWLE’s submissions		[2829]
Sayour Parties’ submissions		[2838]
Determination re interest provision void as a penalty			[2854]
Rectification			[2861]
Deiri Parties’ and HWLE’s submissions		[2862]
Sayour Parties’ submissions		[2883]
Determination re rectification			[2902]
Fourth Broadway Cross-claim				[2906]
HWLE’s submissions			[2912]
Determination			[2927]
Fifth Broadway Cross-claim				[2931]
Deiri Parties’ position generally			[2942]
Deicorp Entities’ position generally			[2952]
CBA’s position generally			[2960]
Allegations of bribes and recovery of “undisclosed payments” made to Jamil (prayers 1 to 28)			[2962]
Prayers 1 to 1		[2965]
Prayers 11 and 12		[2966]
Prayers 13 and 14		[2968]
Prayers 16 to 28		[2971]
Determination re allegations of bribes and recovery of “undisclosed payments” made to Jamil (prayers 1 to 28)			[2972]
Payments made under the construction contracts and related claims (prayers 40 to 56)			[2978]
Stage 1 Construction Contract		[2979]
Deicorp Entities’ submissions generally	[2980]
Delay liabilities under the Stage 1 Construction Contract	[3004]
Determination re delay liabilities under the Stage 1 Construction Contract	[3017]
Excavation costs	[3022]
Determination re excavation costs	[3028]
Stage 1 variations	[3029]
Deicorp Entities’ submissions	[3032]
Deiri Parties’ submissions	[3041]
Determination re Stage 1 variations	[3051]
Variation No 8	[3054]
Determimation re Variation No 8	[3056]
Variations after practical completion	[3059]
Determination re variations after practical completion	[3060]
Stage 1 provisional sums	[3064]
Determination re Stage 1 provisional sums	[3069]
Stage 2 Construction Contract		[3071]
Deicorp Entities’ submissions generally	[3074]
Delay liabilities under the Stage 2 Construction Contract	[3088]
Determination re delay liabilities under the Stage 2 Construction Contract	[3094]
Stage 2 variations	[3097]
Determination re Stage 2 variations	[3104]
Variation No 1	[3106]
Determination re Variation No 1	[3110]
Variation No 2	[3111]
Determination re Variation No 2	[3113]
Variation No 3	[3114]
Determination re Variation No 3	[3118]
Variations after practical completion	[3121]
Determination re variations after practical completion	[3123]
Claims against the builder for profits (prayers 57 to 59)			[3124]
Prayer 57		[3128]
Prayers 58 and 59		[3130]
Prayer 58	[3131]
Prayer 59	[3137]
Determination re claims against the builder for profits (prayers 57 to 59)			[3140]
Deicorp profits, constructive trust and other claims in respect of profits (prayers 60 to 72)			[3141]
Deiri Parties’ submissions generally		[3147]
Plaza not entitled to both compensation and an account of profits	[3152]
Account of profits as a remedy for bribes	[3155]
Equitable compensation	[3167]
Deicorop Entities’ submissions generally		[3175]
Determination re constructive trust and other claims in respect of profits (prayers 60 to 72)			[3177]
Claims for moneys had and received by CP Holdings and Deicorp Constructions (prayers 73 to 76)			[3183]
Determination re claims for moneys had and received by CP Holdings and Deicorp Constructions (prayers 73 to 76)			[3187]
Matthews Street Property (prayers 29 to 39)			[3188]
Sayour Parties’ submissions	[3189]
Deiri Parties’ submissions	[3193]
Determination re Matthews Street Property (prayers 29 to 32)			[3199]
Conventional estoppel			[3200]
Determination re conventional estoppel			[3203]
Sixth Broadway Cross-claim				[3206]
Mr Portelli’s expert evidence			[3212]
Sayour Parties’ and Plaza’s submissions			[3219]
Determination			[3243]
Quantum meruit and the contractually prescribed adjustment method		[3266]
Quantum meruit and the contractually prescribed time limitation		[3282]
Summary re Sixth Broadway Cross-claim				[3289]
Seventh Broadway Cross-claim				[3291]
CBA’s submissions			[3296]
Deicorp Entities’ submissions			[3306]
Deiri Parties’ submissions			[3307]
Determination			[3313]
Eighth Broadway Cross-claim				[3328]
Deiri Parties’ submissions re claim against Plaza			[3333]
Sayour Parties’ submissions			[3339]
Determination re claim against Plaza			[3347]
Deiri Parties’ submissions re claim against CBA			[3351]
CBA’s submissions			[3353]
Determination re claim against Plaza			[3354]
Ninth Broadway Cross-claim				[3358]
Sayour Parties’ submissions			[3361]
Determination			[3367]
Arncliffe Proceedings				[3370]
Key factual findings sought in the Arncliffe Proceedings				[3371]
Preliminary factual findings sought by the Deiri Parties in the Arncliffe Proceedings				[3372]
Factual finding A: Jamil first told Moustafa about the Arncliffe “project” in 2012		[3373]
Deiri Parties’ submissions	[3375]
Sayour Parties’ submissions	[3379]
Deiri Parties’ submissions in reply		[3390]
Determination as to factual finding A		[3393]
Factual finding B: Sayours changed accountants to Mr Gramelis in September 2013 and appointment of Mr Gramelis		[3394]
Determination as to factual finding B		[3397]
Factual finding C: Jamil approached Mr Dale in relation to the Arncliffe Site		[3398]
Deiri Parties’ submissions	[3400]
Sayour Parties’ submissions	[3401]
Determinations as to circumstances relating to discovery of Arncliffe Site (factual findings A and C)		[3409]
Factual finding D: Jamil approached Mr Deiri in relation to the Arncliffe Site		[3419]
Determination as to factual finding D		[3420]
Factual finding E: Mr Deiri negotiated the purchase of the Arncliffe Site with Mr Dale		[3421]
Determination as to factual finding E		[3423]
Factual finding F: Arncliffe Agreement formed in December 2013 or January 2014		[3424]
Deiri Parties’ submissions	[3427]
Sayour Parties’ submissions		[3432]
Deiri Parties’ submissions in reply		[3462]
Determination as to factual finding F		[4379]
Key factual findings sought by the Deiri Parties in the Arncliffe Proceedings			[3490]
Factual finding #1: Moustafa agreed to be sole director and member of Sayour Holdings in December 2013		[3491]
Deiri Parties’ submissions	[3493]
Sayour Parties’ submissions	[3553]
Determination as to factual finding #1		[3554]
Factual finding #2: alternatively, Moustafa agreed to become director and member of Sayour Holdings in August 2014 with full knowledge of the company’s purpose		[3555]
Deiri Parties’ submissions	[3556]
Sayour Parties’ submissions	[3559]
Determination as to factual finding #2 (and factual finding #1)		[3569]
Factual finding #3: Jamil controlled Sayour Holdings with Moustafa’s consent or acquiescence		[3578]
Deiri Parties’ submissions	[3579]
Konstructions’ position as to Jamil’s authority	[3587]
Sayour Parties’ submissions	[3597]
Determination as to factual finding #3		[3601]
Factual finding #4: Moustafa directed Jamil that he was only permitted to contribute $5 million to the Arncliffe Development if the Sayours had board representation		[3603]
Deiri Parties’ submissions	[3604]
Sayour Parties’ submissions	[3606]
Determination as to factual finding #4		[3609]
Factual finding #5: by 8 January 2015, there was an agreement between Sayour Holdings and Deiri Nominees that profit share would be based on respective contributions (the Tripoli minute)		[3614]
Deiri Parties’ submissions	[3615]
Sayour Parties’ submissions	[3655]
Determination as to factual finding #5		[3679]
Factual finding #6: the meeting on 30 September 2015 occurred as set out in Mr Deiri’s affidavit (the “deathbed conversation”)		[3683]
Deiri Parties’ submissions	[3685]
Sayour Parties’ submissions	[3726]
Konstructions’ position as to the “deathbed conversation”	[3740]
Determination as to factual finding #6		[3754]
Factual finding #7: that the September 2015 meeting constituted an assent by shareholders		[3762]
Deiri Parties’ submissions	[3765]
Sayour Parties’ submissions	[3781]
Determination as to factual finding #7		[3795]
Summary of the various Arncliffe Cross-claims		[3800]
First Arncliffe Cross-claim				[3802]
Deiri Parties position generally			[3820]
Allegations of dishonesty			[3827]
Determination re allegations of dishonesty			[3832]
Impugned payments and some of the relevant evidence			[3835]
Development Management Fee and Site Identification Fees and		[3850]
Development Management Fee	[3851]
Determination re Development Management Fee	[3857]
Konstructions Fee	[3864]
Konstructions’ submissions	[3865]
Sayour Parties’ submissions	[3888]
Determination re Konstructions Fee	[3914]
Zapphire Fee	[3921]
Zapphire’s submissions	[3928]
Sayour Parties’ submissions	[3963]
Determination re Zapphire Fee	[3984]
Repayment of interest on loans to Deiri Nominees		[3994]
Sayour Parties’ submissions	[3997]
Relationship with the Arncliffe Agreement	[3998]
Alleged forbearance of interest in FY2018	[4015]
The Deiri Nominees loan account and Arncliffe Agreement liabilities as recorded in Combined Projects Arncliffe’s financial statements	[4030]
Combined Projects Arncliffe’s 2014 financial statements	[4032]
Combined Projects Arncliffe’s audited 2014 Annual Report (produced in 2017)	[4040]
2015 Financial Statements	[4048]
Combined Projects Arncliffe’s 2016 Annual Report	[4053]
2017 Annual Report	[4061]
Combined Projects Arncliffe’s 2018 Annual Report	[4062]
Combined Projects Arncliffe’s 2019 Annual Report	[4067]
Deiri Parties’ submissions	[4074]
Sayour Parties’ submissions in reply	[4089]
Determination re repayment of interest on loans to Deiri Nominees		[4092]
Payment of $1.56 million to Jamil		[4093]
Determination re payment of $1.56 million to Jamil		[4100]
Payment of $753,709 as agency commissions		[4102]
Sayour Parties’ submissions	[4106]
Deicorp Properties’ submissions	[4138]
Sayour Parties’ submissions in reply	[4156]
Determination re payment of $753,709 as agency commissions		[4185]
Payments under construction contract and “extra over amounts” (PC 24)		[4189]
Sayour Parties’ submissions	[4201]
Deicorp Entities’ submissions	[4233]
Sayour Parties’ submissions in reply	[4262]
Determination re payments under construction contract and “extra over amounts” (PC 24)		[4293]
Extant claims and issues: challenge to initial appointments etc			[4301]
Challenges to initial appointments and resolutions		[4302]
Determination re challenges to initial appointments and resolutions		[4312]
Extent of relief and oppression		[4313]
Determination re extent of relief oppression		[4317]
• Second Arncliffe Cross-claim				[4319]
Determination re Second Arncliffe Cross-claim				[4334]
Third Arncliffe Cross-claim				[4337]
Outline of various aspects of relief sought			[4340]
Sayour Holdings’ submissions			[4350]
No jurisdiction to make a s 175 order		[4363]
No jurisdiction to make a s1322(4)(b) order		[4376]
ASIC not notified of the s 1322(4)(b) application		[4382]
The making of a s 1322(4)(b) order would cause substantial injustice to Sayour Holdings as trustee for the Sayour 2 Family Trust and as constructive trustee for the Sayour Family Trust		[4384]
Any irregularity in the appointment of Moustafa was procedural and has not cause substantial injustice to any person

Estoppel		[4388]
Deiri Parties’ submissions			[4395]
Membership and directorship of Sayour Holdings		[4405]
Sayour Holdings bound by Arncliffe Agreement		[4412]
Site identification Fees and Development Management Fee		[4419]
Determination re Third Arncliffe Cross-claim			[4423]
Summary of conclusions				[4434]
First Broadway Cross-claim			[4435]
Second Broadway Cross-claim			[4440]
Third Broadway Cross-claim			[4443]
Fourth Broadway Cross-claim			[4444]
Fifth Broadway Cross-claim			[4445]
Sixth Broadway Cross-claim			[4450]
Seventh Broadway Cross-claim			[4451]
Eighth Broadway Cross-claim			[4454]
Ninth Broadway Cross-claim			[4455]
First Arncliffe Cross-claim			[4456]
Second Arncliffe Cross-claim			[4463]
Third Arncliffe Cross-claim			[4464]
Conclusion and orders				[4465]

Judgment

1. HER HONOUR: Late last year, I heard together two sets of proceedings involving a variety of parties and a number of disputes arising out of dealings between, broadly: Mr Moustafa Sayour (Moustafa, also known as Michael) and his late son, Jamil Sayour (Jamil), along with entities associated with them (the Sayour interests), on the one hand; and Mr Fouad Deiri (Mr Deiri) and entities associated with Mr Deiri (the Deiri interests), on the other hand. However, as will become clear, the parties involved in the respective proceedings extend beyond the Sayour interests and the Deiri interests (as I will explain shortly). I refer to Moustafa and Jamil by first name without intending any disrespect, simply so as to distinguish between them.

2. At the outset I note that, when Parker J made orders on 28 February 2019 that the two sets of proceedings be heard together, his Honour ordered that evidence in one proceeding be evidence in the other (see Order 3). That has in the main occurred, save that at the hearing some evidence was not admitted as against particular parties or was only admitted subject to relevance as against particular parties (generally speaking, those being parties other than the Sayour interests or the Deiri interests).

3. The combined hearing of the two sets of proceedings occupied over 28 sitting days, including a day of submissions heard during the Court vacation and a further day of submissions during the first week of the law term this year. The final reply submissions for the Sayour interests, and supplementary reply submissions by various other parties, were dealt with in written submissions. The final tranche of written submissions was not received until April this year.

Background

4. Although the background to the disputes between the parties has been briefly set out in earlier interlocutory decisions (see, for example, Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410 and Broadway Plaza Investments v Broadway Plaza Pty Ltd; In the matter of Combined Projects (Arncliffe) Pty Ltd [2019] NSWSC 1082), it is convenient here to reprise (and add to) my earlier summary of the relevant background to the proceedings before turning to the chronology of events.

5. I also note that, to the extent that there is or is perceived to be any inconsistency between the below factual background and my determination of specific factual controversies, the latter is to be taken as my findings of fact.

6. As adverted to above, there are two sets of proceedings: the Broadway Proceedings (2016/00282940) and the Arncliffe Proceedings (2017/00180712).

Broadway Proceedings

7. The Broadway Proceedings arise out of a now dissolved partnership (the Broadway Partnership) between the plaintiff, Broadway Plaza Investments Pty Ltd (Investments), and the defendant, Broadway Plaza Pty Ltd (Plaza) (formerly known as Sayour Investments Pty Ltd (Sayour Investments)).

8. The Broadway Partnership was formed to undertake a residential and commercial development (the Broadway Development) of a site in Punchbowl (the Broadway Site) that was comprised of a number of adjacent properties.

Investments and related entities

9. Investments is a company the shares in which are held by Deiri Nominees Pty Ltd (Deiri Nominees). Mr Deiri is the director of Investments. Both Deiri Nominees and Investments form part of a group of construction and property development companies (the Deiri Group) run by Mr Deiri.

10. In the context of the Broadway Proceedings, I refer to these three parties (i.e., Investments, Deiri Nominees and Mr Deiri), collectively, as the Deiri Parties. They were represented separately from other entities involved in these proceedings with which Mr Deiri is also associated, those being here generally referred to as the Deicorp Entities.

11. The Deicorp Entities include Deicorp Pty Ltd (formerly known as Deicorp Constructions (NSW) Pty Ltd) (to which I will refer where necessary as Deicorp Constructions (NSW), but generally more simply as, Deicorp), and Deicorp Properties Pty Ltd (Deicorp Properties). It is relevant here to note (lest there be any confusion – as there was in some of the material before me) that Deicorp is a different entity from Deicorp Constructions Pty Ltd (Deicorp Constructions), both of those companies being involved at different stages in the construction of one or other of the developments the subject of the two sets of proceedings here before me.

Plaza, Sayour Investments and related entities

12. Plaza is a company the shares in which are held by Moustafa Sayour, a company of which Moustafa is the sole shareholder and a director. Moustafa was previously the sole director of Plaza and I understand that he remains a director of the company. Moustafa owns a medical textiles manufacturing business, Biomed Technology Australia Pty Ltd (Biomed), which was managed for some time during the events in question by Jamil. In the context of the Broadway Proceedings, I will refer collectively to Plaza, Moustafa and Sayour Holdings as the Sayour Parties (and when addressing the submissions filed on behalf of one or more of them I will, simply for convenience, refer to them as the Sayour Parties’ submissions).

Broadway Partnership and brief background

13. In the period from 2007 to 2010 (before entering into the Broadway Partnership), Plaza purchased a number of properties in Punchbowl which were ultimately amalgamated to form the Broadway Site.

14. As noted above, the Broadway Partnership was formed between Plaza and Investments in or around December 2011 for the purposes of the Broadway Development. There was no written partnership agreement. However, it does not appear to be disputed that the arrangement between the partners was that Investments was to manage the design and construction of a shopping centre and residential apartments; and that Plaza was to manage the leasing of the centre. The profits were to be shared equally. The builder for Stage 1 of the Broadway Development (but not ultimately for Stage 2 – see at [358] below) was Deicorp (then known as Deicorp Constructions (NSW)).

15. The claims brought against the Deicorp Entities (particularly in relation to the fifth cross-claim – to which I refer to throughout as the Fifth Broadway Cross-claim) overlap significantly with claims brought against others of the cross-defendants. As I have adverted to, the Deicorp Entities were represented separately from the Deiri Parties. There was some criticism by the Sayour Parties during the course of the hearing as to the level of representation amongst the various entities associated with Mr Deiri (in effect, there being three sets of solicitors involved and two sets of Counsel). Nevertheless, I accept that there was a reason for the separate representation of various of the entities associated with Mr Deiri and it was apparent that there had been a conscious attempt to confine cross-examination and to avoid unnecessary repetition of submissions between those parties. I did not consider the level of representation to be unreasonable given the issues involved in and quantum of the overall dispute.

16. Mr Deiri’s principal dealings with Plaza throughout the Broadway Partnership were (until Jamil’s death in October 2015) through Jamil. It does not appear to be disputed that Jamil was relatively inexperienced in property development at the time (as also was Moustafa). The Deiri Parties’ case is that Moustafa was “semi-retired” or “essentially retired” (see, for example, at [111] below), and that he relied on Jamil during the course of the Broadway Development to communicate on Plaza’s behalf with Investments. Moustafa takes issue with at least some aspects of that characterisation of his involvement in the Broadway Development. Moustafa complains, in essence, that Mr Deiri and Jamil actively concealed from him information and decisions made in relation to the Broadway Development (including, relevantly, the making of various payments in the course of the project).

17. As part of the partnership arrangements, Investments acquired from Plaza an interest in the Broadway Site. It says that it paid the purchase price (specified in the contract of sale) of $6 million in instalments over the course of 2011 to 2012 (see at [282] below) and that it also paid an agreed additional sum of $2 million towards the purchase (i.e., in effect, making a total purchase price for its 50% interest of $8 million). There is a dispute as to whether Investments in fact paid the whole of the purchase price for that half interest in the Broadway Site and a claim is made by Plaza in the Broadway Proceedings (in the second cross-claim – to which I refer throughout as the Second Broadway Cross-claim) for the sum it says remains owing to it ($5.6 million), plus interest calculated at 9% per month, in respect of the purchase.

18. The Broadway Development was in two stages: first, a retail complex and, second, a residential complex. The development was financed by the Commonwealth Bank of Australia (CBA) (although it seems that at one stage the proposed financier had been Westpac Banking Corporation (Westpac)). On 15 February 2012, a loan agreement (the First Facility Agreement) to finance Stage 1 of the Broadway Development (the car park and shopping centre) was executed with CBA in the amount of $45.6 million (the Stage 1 Loan) (see, for example, at [261] below). For reasons that will become apparent in due course, it is relevant here to note that Moustafa accepts that he signed the First Facility Agreement.

19. On 20 June 2013, the Stage 1 Loan was “reinstated” as an investment facility and the balance of the loan became part of a separate facility (the Stage 2 Loan) (see, for example, at [363] below). The documents pursuant to which this occurred included the Second Facility Agreement, which Moustafa denies was signed by him. There is (see, for example, at [1060] below) unchallenged evidence from a forensic expert (Mr Stephen Dubedat) supporting the conclusion that Moustafa did not sign that document (and, indeed, the evidence establishes that Moustafa did not sign a great number of documents bearing his purported signature, relevantly including any of the impugned cheques drawn on the partnership’s bank account with CBA (the CBA Partnership Account) – see at [210] below).

20. The construction of the retail shopping centre on the Broadway Site was completed in December 2013 and construction of the residential apartments was completed over the following year. The residential apartments were sold in November 2014 (see at [479]ff below). Following the sale, the Stage 2 Loan was repaid to CBA (leaving outstanding an amount due in respect of the Stage 1 Loan) (see at [483] below).

21. Thereafter, a surplus was distributed out of the proceeds of sale of the residential units in the Broadway Development. Investments contends that Plaza’s share of the partnership distributions was paid to Plaza in accordance with Jamil’s instructions to Mr Deiri (as, it says, were the payments made to Plaza for the purchase of the Broadway Site). Plaza disputes this. Investments maintains that Jamil directed Investments to make each and every one of those payments and that Jamil received them on Plaza’s behalf. Investments points out that most payments were made by cheque drawn payable to the “Sayour Family Trust”, of which trust Plaza is the trustee; that almost all of the cheques were banked into two bank accounts designated as trust accounts for the Sayour Family Trust (one in the joint names of Moustafa and Jamil, and another solely in Moustafa’s name); and that Moustafa personally banked two of these cheques (totalling $5 million).

22. Jamil died in October 2015. In November 2015 (see the chronology of events from [626]ff below), after the discovery by Moustafa of what he maintains amounted to fraud against Plaza and the Sayour Family Trust in relation to the Broadway Partnership, Moustafa asserted to Mr Deiri that Plaza had not received its share of the partnership profits (and that Jamil had no authority to distribute any partnership moneys).

23. Plaza now seeks several million dollars in interest under an alleged loan agreement in connection with the purchase price for the Broadway Site under which (as adverted to above) the interest rate was specified at 9% per month (the proper construction of which term is here in dispute). Investments points out that neither Moustafa nor Jamil signed that loan agreement (and that, on Moustafa’s evidence, he knew nothing about it). Investments contends that it is not binding. There is also a claim for rectification of that loan agreement in the event that (contrary to Investments’ submissions) it is found to be binding on Investments.

24. On 21 September 2016, Investments commenced the Broadway Proceedings by way of summons, seeking (among other relief) a declaration that the partnership had been dissolved and orders inter alia that the Broadway Partnership be wound up, that a receiver be appointed and that partnership accounts be taken.

25. Pausing here, I note that Plaza has emphasised throughout its submissions that the constitution of the Broadway Proceedings, as commenced by Investments, was that of a partnership winding up proceeding (in which the taking of partnership accounts was indeed ordered – see at [26]). Plaza’s position is that this affects much of what is agitated in the various cross-claims in the proceedings. Nevertheless, as will be explained shortly, the Broadway Proceedings ultimately proceeded by way of points of claim and for practical purposes Plaza was the moving party on a number of those cross-claims.

26. On 29 September 2016, Hallen J made a declaration as to the dissolution of the Broadway Partnership and orders appointing a receiver, Mr Brett Lord (the Receiver), to the Broadway Partnership’s assets and undertaking, and for partnership accounts to be taken. By note 6 to the orders made on that occasion, Hallen J noted that Plaza disputed the alleged liability of the partners to CBA. I interpose to note that this was before the payment out, in 2017, of the remaining CBA loan secured over the shopping centre (see below) and CBA was then claiming (and Plaza disputing) that CBA was a secured creditor in respect of a sum of about $34.4 million.

27. Pursuant to the directions made by Hallen J on 29 September 2016 (as part of the partnership accounting process), Investments served on 25 November 2016 a verified list of transactions. Plaza notes that this is in the nature of a pleading, responding to the order of 29 September 2016, and standing as Investments’ case as to the transactions of the Broadway Partnership. Plaza points out that the said Exhibits essentially comprise MYOB accounting printouts and notes that they contain numerous items alleging advances to the Broadway Partnership by CBA. Thus, in the partnership accounting, there is in issue the validity of the liability which Investments alleges the Broadway Partnership owed to CBA.

28. Plaza has maintained that many of the transactions asserted by Investments were unauthorised or otherwise improper. Plaza therefore proceeded by way of falsification and surcharge in the partnership accounting. Plaza also sought a number of declarations and directions as to how the partnership account should be taken in respect of specific items and transactions. Plaza notes, in this regard, that Investments did not make any claim for just allowances.

29. On 24 October 2016, the Receiver filed a notice of motion seeking judicial advice as to whether he would be justified in paying amounts on account of the alleged liability to CBA. At that stage, the then current CBA loan facility was due to expire on 24 March 2017. The Receiver’s notice of motion concerned all payments alleged to be accruing due to CBA, including a final payment of approximately $34.3 million at the expiry of the facility, as well as intermediate line fees and other payments of, in aggregate, about $600,000.

30. On 28 October 2016, Plaza filed a notice of motion seeking an order joining CBA as second defendant (the object of which, it is said, being to compel CBA to bring its claim into the partnership winding up).

31. On 3 November 2016, on the basis of a concession by Investments (in effect to preserve Plaza’s position in relation to its dispute as to the validity of CBA’s claim to be a secured creditor), Plaza did not oppose the giving of judicial advice to the Receiver that he would be justified in making the intermediate payments to CBA. The general effect of the concession was to charge Investments’ share in the Broadway Partnership with those payments in the event that they were afterwards held to have been payments that were not liabilities of the Broadway Partnership. In that context, judicial advice was given to the Receiver that he would be justified in making the intermediate CBA payments (but not at that stage in relation to the making of the final payment of $34.3 million).

32. On 7 December 2016, Pembroke J directed Plaza to file a cross-summons against CBA and to give notice of the transactions in Investments’ list of transactions which it contended were not authorised transactions of the Broadway Partnership or for which it contended the partnership was not liable to CBA. Pursuant to these orders, the first cross-summons was filed by Plaza against CBA and Investments on 19 December 2016.

33. On 28 December 2016, the Receiver filed a further notice of motion for judicial advice (as to the completion of the sale of the shopping centre). On 27 January 2017, Lindsay J ordered that the Receiver would be justified in completing a particular contract for sale of the shopping centre, noting that Plaza’s consent was provided on the conditions set out in a letter dated 24 January 2017 from its solicitors, Adams & Partners, to K&L Gates. That letter included that: Plaza did not make any admissions; Plaza continued to dispute the liability accrued by the Broadway Partnership with CBA; and the contract of sale contained a number of contentious documents that Plaza was not able to confirm had been validly signed or executed.

34. On 7 February 2017, an order was made in effect extending the time for compliance with Pembroke J’s order in respect of notice of the unauthorised transactions for which Plaza contended the Broadway Partnership was not liable to the CBA. Directions were also made as to the time within which Plaza was to request particulars in relation to certain loan repayments and for Investments to respond thereto.

35. On 17 February 2017, the Receiver wrote to the solicitors for each of Investments, Plaza and CBA, noting Plaza’s dispute as to Broadway Partnership’s liability to CBA and proposing, notwithstanding that objection, to pay to CBA at completion “the amount secured by the mortgage” in order to “convey clear title in accordance with the Sale Contract”, as the Receiver needed to obtain a discharge of mortgage from CBA. The letter stated inter alia that:

… the indebtedness of the partnership to CBA is a matter in issue in the Proceedings and the subject of the Cross Summons filed by the defendant … the determination of that issue is a matter for the Court and the Receiver does not express, and does not have, any view on the eventual outcome. The course preferred by the Receiver would ensure that, however that issue is eventually determined, any liability of the partnership for interest and line fees would end as at the date of settlement. Further if the issue is determined in favour of the defendant, there does not appear to the Receiver to be any reasonable basis to consider that the CBA would not be in a position to disgorge any sum to which it may be found not to be entitled.

36. Prior to completion of the sale of the shopping centre, Plaza gave its written consent to the amount claimed by CBA being paid to CBA on completion of the sale of the shopping centre (without it being held or retained by CBA as a separate fund), and consented to that amount being dealt with as part of the general assets of CBA, upon the written undertaking of CBA to deal with the amount in accordance with any judgment or final order of the Court in the proceedings on the first cross-claim within 28 days after judgment or the expiry of the appeal period or after the conclusion of any appeal instituted by CBA. The agreement and the undertaking were expressly made without admissions on either side.

37. On 27 March 2017, Investments moved for a direction that Plaza file and serve points of claim (rather than a list of falsifications and surcharges). Plaza then complained that Investments had not supplied an adequate list of transactions and that it did not know what the transactions on the CBA’s facilities had been because there were no account statements on those facilities. It also complained that Investments had not supplied adequate vouching.

38. On 31 March 2017, Plaza moved in turn for: further particulars of Investments’ list of transactions; better vouching by Investments; and for CBA to plead the advances it alleged had been made to or at the direction of the partners and the debts that it alleged had become due to it by the partners.

39. Those two motions came before Parker J, who directed: CBA to file and serve a statement of account in respect of the facilities (not including the Broadway Partnership bank account, for which statements were already available); and, following that, for Plaza to file and serve points of claim in respect of its case against CBA.

40. Following the orders made by Parker J, CBA’s account was filed on 11 August 2017 (CBA’s Account) and Plaza filed the points of cross-claim on the first cross-summons. CBA’s Account lists the payments that CBA made and received, to which the points of cross-claim plead Plaza’s objections that various of the transactions were unauthorised.

41. Meanwhile, following the judicial advice received from Lindsay J, the sale of the shopping centre settled in March 2017. I understand that the Receiver paid out $34.3 million under the loan to CBA (that payment being made under protest from Plaza, as noted by the Court on 27 January 2019). As adverted to above, CBA gave a written undertaking to disgorge that amount in the event that the Court determined the issue of its entitlement thereto unfavourably to CBA.

42. I interpose to note that the only assets of the Broadway Partnership were the Broadway Development and its associated assets. Hence, by the time of the hearing before me, CBA no longer claimed to be a secured creditor (having been paid out in full). I understand that, as at August 2019, the Receiver held approximately $5 million of partnership funds.

43. Broadly then, by way of overview, Plaza contends that Mr Deiri knew that Jamil was signing cheques (in his own name or in Moustafa’s name) and was not doing so under a power of attorney; that this was in breach of CBA’s mandate; that Mr Deiri prepared or was in charge of preparing forged accommodation notices under the respective construction facilities; that Mr Deiri was party to Jamil’s deception of Moustafa; that Mr Deiri bribed Jamil; that Mr Deiri was party to the misappropriation of Sayour Family Trust money into the (separate) Arncliffe Development (see below); and that Mr Deiri knew that Moustafa trusted him and cynically abused that confidence.

44. To this, the Deiri Parties say that Plaza’s case in this regard is no more than a construct or reconstruction of events.

45. The Deiri Parties’ adamant position is that: there were no forgeries; there were no bribes; events were not concealed; Mr Deiri was not a party to any misappropriation of Sayour Family Trust money into the Arncliffe Development; and Mr Deiri did not abuse any confidence reposed in him by Moustafa (noting that it does not seem to be disputed that Moustafa did repose confidence in Mr Deiri). The position of the Deiri Parties is that, in reality, Investments and Mr Deiri dealt with Plaza through Jamil and that Moustafa gave Jamil full authority and responsibility to do so (i.e., that Moustafa left Jamil in charge and relied on Jamil to do everything).

Cross-claims in the Broadway Proceedings

46. The issues for determination in the Broadway Proceedings are framed by reference to the various cross-claims that have been filed in those proceedings. Those cross-claims are summarised below.

First Broadway Cross-claim

47. The amended first cross-claim (the First Broadway Cross-claim) was filed on 12 October 2017 by Plaza against Investments and CBA.

48. By this cross-claim, Plaza seeks sums from CBA. Plaza alleges that CBA breached its mandate, and is liable, in respect of payments made pursuant to forged signatures on facility agreements which funded the Broadway Development and cheques drawn on the CBA Partnership Account.

49. Meanwhile, the cross-claim against Investments relates to the falsification and surcharge of the partnership accounts. Plaza says that, as Investments was not willing to join, as a partner, in the claims made against CBA, Investments was a necessary party to be joined as cross-defendant.

50. Insofar as Investments asserts that various drawings on the CBA Partnership Account and on credit facilities were transactions of the Broadway Partnership, this is disputed by Plaza, which contends that, once those transactions are falsified, CBA is in fact a substantial debtor of the Broadway Partnership. Plaza says that it is the function of the first cross-claim to set out the basis for this contention.

51. As noted above, Plaza has emphasised the above procedural history of the Broadway Proceedings as demonstrating that the First Broadway Cross-claim arose in the course of, and as a step in, the winding up of the partnership and the taking of partnership accounts (superseding in a pleaded form the previous particulars of disputed transactions that had been provided in the course of the accounting under the directions made by Pembroke J and Lindsay J).

52. More particularly, Plaza notes, from a procedural perspective, that after a decree for general administration, a person claiming to be a creditor of a partnership must prosecute its claim in the proceedings in which the decree was made (referring to Collins v O’Reilly (1940) 41 SR (NSW) 281 at 283-284 per Roper J and also, in the context of appointment of a receiver, to In re Metropolitan Amalgamated Estates Ltd; Fairweather v the Company [1912] 2 Ch 497 at 502-503 per Swinfen Eady J; Randfield v Randfield (1860) 1 Dr & Sm 310; 62 ER 398 at 399 per Kindersley V-C; Ward v Swift (1848) 6 Hare 309; 67 ER 1184 at 1186 per Wigram V-C; and In re Maidstone Palace of Varieties Ltd; Blair v Maidstone Palace of Varieties Ltd [1909] 2 Ch 283 at 286; [1908–10] All ER Rep 678 per Neville J). Plaza says that this demonstrates the nature, in particular, of remedies sought on a subsequent cross-claim against the partners and, by implication, against the partnership assets.

Second Broadway Cross-claim

53. The second cross-claim (the Second Broadway Cross-claim) was filed on 4 June 2018 by Plaza against Investments. In this cross-claim, Plaza seeks the sum of $35.76 million, plus interest of $504,000 per month, from Investments. As adverted to above, of this claim, almost $30 million is comprised of interest alleged to be payable at an interest rate of 9% per month under the alleged loan agreement (to which I have referred above – see at [23] above).

54. As adverted to above (see at [17] above), Plaza alleges that Investments has not paid the sum of $6 million in consideration for the purchase by Investments of the 50% interest in the Broadway Site; nor a further sum of $2 million payable pursuant to a further contract. The claims against Investments are brought under a collateral contract for sale of land, a collateral loan agreement and a further collateral agreement, each of which was entered into (or allegedly entered into) between Plaza and Investments at the time of entry into their partnership agreement.

55. Prayers 11 and 12 of the Second Broadway Cross-claim also claim directions and orders in the partnership accounting arising by reason of the terms of the agreements between the partners under which they formed their partnership. Plaza says that these agreements are antecedent to the partnership, forming a basis for its inception, but that some of the provisions regulate the terms of the partnership association and thus govern the taking of accounts and the winding up. Plaza says that the Second Broadway Cross-claim thus has elements that are antecedent to, and outside of, the partnership relationship, as well as other elements that arise in the winding up.

Third Broadway Cross-claim

56. The third cross-claim (the Third Broadway Cross-claim) was filed on 13 June 2018 by Investments against Plaza. Investments seeks, inter alia, rectification of the contract of sale (and loan agreement) the subject of the Second Broadway Cross-claim, as well as introducing other causes of action (including breach of fiduciary duty).

57. Insofar as the Third Broadway Cross-claim includes a claim for relief based on the assertion that the contract of sale and loan agreement were incidents of the fiduciary relation of partners, Plaza says this proposition is misconceived in that it seeks to attribute to agreements constituting the parties’ relations the character of an incident of their resulting partnership. Plaza points out that this claim does not arise in the partnership winding up.

Fourth Broadway Cross-claim

58. The fourth cross-claim (the Fourth Broadway Cross-claim) was filed on 26 June 2018 by Investments against the partners of HWL Ebsworth (HWLE), the lawyers who acted for Investments in relation to the contract for sale the subject of the Second Broadway Cross-claim. In the alternative to the Third Broadway Cross-claim, Investments alleges that if (which is denied) it is liable to Plaza in respect of the claim made in the Second Broadway Cross-claim, then HWLE is liable to Investments in respect of that liability (i.e., this is a claim for professional negligence).

59. Again, Plaza points out that this claim does not strictly arise in the partnership winding up.

Fifth Broadway Cross-claim

60. The fifth cross-claim (the Fifth Broadway Cross-claim) was filed on 22 August 2018 by Plaza against eleven cross-defendants, including: Investments (the first cross-defendant), Mr Deiri (the third cross-defendant), Deiri Nominees (the fourth cross-defendant), and a number of Deicorp Group entities (as noted below, being the entities to which I will refer collectively, unless the context otherwise requires, as the Deicorp Entities). The Deicorp Entities are: Combined Projects (Gibbons) Pty Ltd (the fifth cross-defendant) (CP Gibbons); Combined Property Investments Pty Ltd (the sixth cross-defendant) (CP Investments); Combined Projects (Redfern) Pty Ltd (the seventh cross-defendant) (CP Redfern); Combined Projects Holdings Pty Ltd (the eighth cross-defendant) (CP Holdings); Deicorp (the tenth cross-defendant) and Combined Projects (Arncliffe) Pty Ltd (the eleventh cross-defendant) (Combined Projects Arncliffe).

61. Plaza alleges that payments to the builder for the Broadway Development (Deicorp for Stage 1 and Deicorp Constructions for Stage 2) were not liable to be paid for various reasons, including a failure to issue payment certificates and invalid variations under the construction contracts.

62. Plaza further alleges that certain payments by Investments or by various of the Deicorp Entities to Jamil (the making of which it is alleged was not disclosed to Plaza) constituted bribes and that, by virtue of those bribes (and the alleged non-disclosures), Jamil was induced to act in certain ways to the detriment of Plaza (including to place his own signature on cheques drawing funds from the CBA Partnership Account, to forge Moustafa’s signature on cheques drawing funds from that account and to fail to disclose a lower construction quote for the development (to which I refer as the Dyldam quote) – see below). It is alleged that each of the first, fourth to eighth and tenth cross-defendants has received a benefit as a result of the alleged bribes and breaches of fiduciary duty by the first and third cross-defendants and that the first, third to seventh, tenth and eleventh cross-defendants, by the said bribes paid by each, and by each of them not disclosing the same to Plaza, acted in concert to secure a mutual benefit, namely the enrichment of the Deicorp Group of companies by the several payments alleged. Plaza seeks declaratory and other relief, including equitable compensation.

63. In their respective defences to the fifth cross-claim (filed on 22 February 2019), Deiri Nominees (whose defence is a joint defence with Mr Deiri and Investments) and the Deicorp Entities admit to the making of various alleged payments (although they deny that the payments constituted bribes and they deny the claims for relief made against them).

64. In particular, the Deicorp Entities say that, in the Broadway Proceedings, Plaza’s approach to this litigation has been to make wide-ranging allegations, which have neither technical nor substantive merit behind them. The Deicorp Entities maintain that it is extraordinary that Plaza seeks reimbursement from Deicorp of the entirety of the moneys paid for the construction of the Broadway Development, notwithstanding that the Broadway Partnership (comprising Plaza and Investments) received more than $70 million worth of construction work from Deicorp (and noting the expert opinion of their expert witness, Mr Johnny Portelli, that it would have been reasonable for Deicorp (or another builder) to have charged anywhere in the vicinity of $3 million to $8 million more for the very same outcome – as to which, see my comments at [1070] below).

Sixth Broadway Cross-claim

65. The sixth cross-claim (the Sixth Broadway Cross-claim) was filed on 22 February 2019 by the builder, Deicorp, against Investments and Plaza, pleading a quantum meruit claim in the event that Plaza were to succeed on the allegations in the Fifth Broadway Cross-claim that payments made to Deicorp were not liable to be paid pursuant to the construction contracts. It is relevant here to note that, although the construction work was carried out by different Deiri entities for the two stages of the Broadway Development, (i.e., Deicorp and Deicorp Constructions respectively) the parties have here relevantly proceeded as if the relevant entity for both was Deicorp.

Seventh Broadway Cross-claim

66. The seventh cross-claim (the Seventh Broadway Cross-claim) was filed on 8 October 2019 by CBA against Investments and Mr Deiri, on the one hand, and the Deiri Entities, on the other, raising claims which are premised on the success of Plaza on its claims against CBA. Accordingly, if Plaza does not succeed against CBA on the First Broadway Cross-claim and the Fifth Broadway Cross-claim, CBA seeks no relief on the Seventh Broadway Cross-claim.

67. In the Seventh Broadway Cross-claim, CBA raises: claims for moneys had and received; a claim for civil conspiracy; and a claim for misleading or deceptive conduct (alleging, inter alia, that representations were made that the cheques and payments signed by Mr Deiri were duly authorised, which representations are alleged to be false and misleading if Plaza’s claims succeed).

68. I interpolate to note that, because of the lateness of the time (by reference to the then listed commencement date for the hearing) at which the Seventh Broadway Cross-claim was advanced (for the reasons explained in the course of submissions and I make clear that I make no criticism of CBA in this regard) and the concern not to delay the commencement of the hearing (which had by then been fixed for some time), the hearing proceeded on the basis that the change of position defence that the Deiri Entities foreshadowed to the Seventh Broadway Cross-claim as against them would be deferred (i.e., so that, if Plaza failed to make out its case against CBA, and hence there would be no need for CBA to press the Seventh Broadway Cross-claim, there would be no need for the Deiri Entities to agitate the change of position issues that the Deiri Entities would otherwise have wished to raise – see the debate before me on 3 and 4 October 2019). Thus, there has been a deferral of much of the issues arising under the Seventh Broadway Cross-claim pending the outcome of the claims made by Plaza against CBA.

Eighth Broadway Cross-claim

69. The eighth cross-claim (the Eighth Broadway Cross-claim) was filed on 15 October 2019 by Investments and Mr Deiri against Plaza, Moustafa and CBA, for misleading conduct in contravention of schedule 2 to the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law) in the event that the Fifth Broadway Cross-claim and/or Seventh Broadway Cross-claim were to succeed. Relevantly, the allegation against Plaza and Moustafa is in sum that they falsely represented that Jamil was a person who could be trusted to act honestly in his dealings with the Broadway Partnership and the allegation against CBA relates to it allegedly falsely representing to Investments that the payments from the CBA Partnership Account were paid in accordance with the bank’s mandate.

70. As to the claims against the Sayour Parties, Plaza characterises these as “evidently seeking to place upon the victims liability for implied warranties of the character and authority of someone who, ex hypothesi was corrupted by the cross claimants”.

Ninth Broadway Cross-claim

71. Finally, the ninth cross-claim (the Broadway Ninth Cross-claim) against Plaza and Matthews Street Pty Ltd (Matthews Street Co) seeks the winding up of the company should Plaza’s claim that it has a constructive trust in respect of that company or its assets fail (as to which, see further below).

Arncliffe Proceedings

72. The second set of proceedings, the Arncliffe Proceedings (it will be recalled, 2017/00180712), relates to dealings between Mr Deiri and Jamil in respect of a different property development (the timing of which overlapped to some extent with the Broadway Development), this development being in Arncliffe (the Arncliffe Development).

Arncliffe Development and brief background

73. In January 2014 (thus after the construction of the retail complex of the Broadway Development but before the completion of the residential apartments), Combined Projects Arncliffe (as noted at [60] above, the eleventh cross-defendant to the Fifth Broadway Cross-claim) was incorporated with two shareholders, Deiri Nominees and Sayour Holdings (see, for example, at [438] below) to develop a property at Arncliffe (the Arncliffe Property) into residential apartments and retail shops.

74. I interpose to note that there are various issues and disputes as to the manner in which Combined Projects Arncliffe was incorporated and as to whether Sayour Holdings ever became a member of the company, but I deal with that below. For present purposes, I simply note that, on incorporation, the Australian Securities and Investments Commission (ASIC) records disclosed the members of the company as referred to above.

75. Mr Deiri is recorded on the company register as the sole director of Combined Projects Arncliffe (though this is one of the issues in dispute in the proceedings). Mr Deiri’s dealings with Sayour Holdings, up to the time of Jamil’s death, were all through Jamil. Deicorp Constructions performed the construction work in relation to the Arncliffe Development pursuant to the Arncliffe Construction Contract (see below). The Arncliffe Development is now complete. The sale of the last of the residential apartments settled on 11 February 2019 (see at [711] below).

4388. Here, Sayour Holdings points out that the Arncliffe Proceedings have gone forward for well over two years on the mutually agreed basis that Sayour Holdings was a 50% shareholder in Combined Projects Arncliffe; that, by their respective defences to Sayour Holdings’ second further amended statement of claim, each of the Deiri Parties has admitted that Sayour Holdings has been an equal shareholder in Combined Projects Arncliffe since the date of its incorporation; and that Mr Deiri admits in his affidavit sworn on 16 October 2019 that the arrangement from the outset was that Sayour Holdings atf Sayour 2 Family Trust would be an equal shareholder in the corporate entity set up to conduct the Arncliffe Development.

4389. It is noted that Mr Deiri also gives evidence (again, see at [53] of his affidavit sworn on 16 October 2019) that Jamil provided loans to Combined Projects Arncliffe totalling $670,000. These were recorded in Combined Projects Arncliffe’s financial records as loans from Sayour Holdings as trustee for Sayour 2 Family Trust.

4390. It is said that, having retained the benefit of Sayour Holdings’ money within Combined Projects Arncliffe for a long period, interest free, on the basis that Sayour Holdings was a shareholder and that it had made shareholder loans, it is not open to Deiri Nominees now to approbate and reprobate. It is noted that Mr Deiri gives evidence (at [134] to [135] of his affidavit sworn on 16 October 2019) that he caused Combined Projects Arncliffe to repay these loans from Sayour Holdings between May and June 2018.

4391. Furthermore, complaint is made that the Deiri Parties did not give any notice that they contested the appointment of the directors of Sayour Holdings, or the issue to Sayour Holdings of shares in Combined Projects Arncliffe, until the proposed third cross-claim was served in July 2019.

4392. It is submitted by Sayour Holdings that: all of the relevant parties had adopted an assumption that the relationship between Sayour Holdings and Combined Projects Arncliffe was that of an equal shareholder; the relationship between the parties, including in respect of the conduct of the Arncliffe Proceedings, had proceeded on the basis of that assumption; the Deiri Parties knew and intended that Sayour Holdings and each of Moustafa and Yesmine would and did act on the basis of that assumption; departure from that assumption would cause detriment to Sayour Holdings; and Mr Deiri and Deiri Nominees are estopped from departing from that assumption.

Deiri Parties’ submissions

4395. The Deiri Parties say that, ultimately, Mr Deiri contributed approximately $21.7 million or 97% of total shareholder loans to Combined Projects Arncliffe; he obtained bank funding, put up guarantees, obtained development approval, organised the marketing and generally advanced the development; that Jamil contributed $670,000 or 3% of total shareholder loans (and that Jamil did not put up any security nor did he have any substantive role in the Arncliffe Development).

4396. It is noted that, prior to Jamil’s death, Moustafa knew nothing about Sayour Holdings or Combined Projects Arncliffe and it is said that “[n]ow finding himself notionally registered as shareholder and director of Sayour Holdings, Moustafa seeks to take the benefit of the Arncliffe [D]evelopment”.

4397. In summary, the Deiri Parties’ position is as follows.

4398. First, that Moustafa was never validly appointed a director or member of Sayour Holdings. It is said that, when Sayour Holdings was incorporated in December 2013, Moustafa did not sign any consents to be a director or member, as required by s 120 of the Corporations Act; that Moustafa says he was only presented with (and signed) such consents in August 2014; yet, in August 2014, there was no officer of Sayour Holdings that could authorise that appointment and issue of shares (because Jamil was not registered as a director or member at the time). For this reason, it is said that Jamil and Moustafa were never directors of Sayour Holdings. As a consequence it is said that Sayour Holdings never was a valid shareholder in Combined Projects Arncliffe, because when Combined Projects Arncliffe was incorporated in January 2014, there was no-one authorised on behalf of Sayour Holdings to consent to the receipt of shares in Combined Projects Arncliffe.

4399. Second, that, even if Moustafa became a validly registered director and member of Sayour Holdings in August 2014, there was still no person authorised by Sayour Holdings to consent to become a member of Combined Projects Arncliffe upon its incorporation in January 2014; that the only person who could have purported to consent was Jamil, but he was not a director of Sayour Holdings at the time; and, as such, Sayour Holdings was never validly made a member of Combined Projects Arncliffe. It is said that it is well established that a person cannot become a shareholder in a company without consenting to do so.

4400. Third, and in the alternative, that: if Jamil was validly appointed a director of Sayour Holdings, then he was authorised to bind Sayour Holdings to the agreement formed in January 2014 with Deiri Nominees, including that any profits would be paid to shareholders proportionate to financial contributions; and the subsequent agreements Jamil made on Sayour Holdings’ behalf with Deiri Nominees; and that if Moustafa was validly appointed as a director of Sayour Holdings when he executed a consent to the appointment in August 2014, then Moustafa could conceivably cause Sayour Holdings to ratify Jamil’s conduct in purporting to consent to Sayour Holdings becoming a member of Combined Projects Arncliffe and taking up its shares, but that Moustafa “cannot pick and choose” which parts of an integrated transaction to ratify. It is said that, if Sayour Holdings ratifies Jamil’s consent of Sayour Holdings to be a member of Combined Projects Arncliffe, it must also ratify the agreement which formed the foundation for the incorporation of Combined Projects Arncliffe with an equal shareholding, as well as Jamil’s consents and agreements on behalf of Sayour Holdings with Deiri Nominees throughout the venture.

4401. As such, in the alternative that Sayour Holdings is a member of Combined Projects Arncliffe, it is said that it is bound by the agreement between shareholders at the start of the venture, and it can only receive a profit proportionate to the total shareholder loan contributions it made (namely, 3%).

4402. Insofar as, by its derivative action in the name of Combined Projects Arncliffe, Sayour Holdings further claims that Mr Deiri breached his director’s duties by causing Combined Projects Arncliffe to make payments to Deiri Nominees and third parties, the Deiri Parties say that that claim suffers from the same problem as Moustafa’s assertion that Sayour Holdings is entitled an equal share of Combined Projects Arncliffe’s profits: it ignores the arrangements reached between Combined Projects Arncliffe’s shareholders.

4403. It is said that Jamil in fact agreed that those fees were to be paid. Again, and in the alternative that Sayour Holdings is a member of Combined Projects Arncliffe, it is said that Jamil was authorised to bind Sayour Holdings by that agreement and consent; and therefore that all shareholders in Combined Projects Arncliffe consented the impugned transactions. In those circumstances, it is said that there can be no breach of director’s duties, and the derivative action fails.

4404. As to particular aspects of the relief sought by the Third Arncliffe Cross-claim, the Deiri Parties submit as follows.

Membership and directorship of Sayour Holdings

4405. It is said that, at the time of registration, Moustafa had not consented to be a director, company secretary and shareholder, of Sayour Holdings. Indeed, Moustafa’s evidence is that the first time he found out about it was after Jamil’s death.

4406. Following this (and as adverted to above), it is noted that a person cannot be a member of a company unless the person consents to do so (see, for example, Maddocks v DJE Constructions Pty Ltd (1982) 148 CLR 104 at 117; [1982] HCA 17 per Stephen, Mason, Murphy, Aickin and Brennan JJ; Re National Safety Council of Australia (in liq); Elders Finance Group Ltd v Perrins (1992) 10 ACSR 101 at 118 per Phillips J; Re Meyer Douglas Pty Ltd [1965] VR 638 at 651 per Gowans J). Similarly, the Deiri Parties note that a person cannot be a director or secretary unless he or she consents to the appointment (see, for example, In the matter ofWhitsunday Clean Sands Pty Ltd [2017] NSWSC 1199 at [15]-[16] per Black J). They say that s 201M of the Corporations Act does not apply; that section being concerned with purported acts of an invalidly appointed director, purporting to act as such (not operating to validate the appointment itself).

4407. The Deiri Parties say that as here Moustafa did not consent on registration, it follows that on registration he did not become a director and secretary of Sayour Holdings, nor did he receive any shares in Sayour Holdings.

4408. As to the events of 21 August 2014, it is noted that there was a further form submitted to ASIC notifying of a change in company details to Sayour Holdings (again, that form purported to have been signed by Moustafa and stated that he certified that the form was true and complete, but there was no signature on the document). As will be recalled, that form notified ASIC that Jamil had been appointed a director of Sayour Holdings effective that day. A similar form was also lodged that day, notifying ASIC that Moustafa had transferred 50% of the shares in Sayour Holdings to Jamil, also effective that day. The Deiri Parties say that Moustafa could not appoint Jamil as a director and could not issue shares to him in Sayour Holdings, because Moustafa himself was not a director for the reasons already outlined. Accordingly, they say that Jamil, too, was never a director or member of Sayour Holdings.

4409. It is noted that, according to Moustafa, the only consent he ever signed to be a director, company secretary and member of Sayour Holdings was executed by him on 21 August 2014. However, it is said that, even if this is so, there are two problems with that purported consent. First, that he does not have any memory of signing it; and his evidence was that he first became aware that he was a director after Jamil passed away. Thus, it is said that Moustafa therefore provided no real consent at all. Second, that there was no person at the time in August 2014 who had the authority of Sayour Holdings to appoint Moustafa as a director, secretary and member. Jamil was not himself a director or member, and could not do so.

4410. Accordingly, it is submitted that both Moustafa and Jamil were never a director, secretary or member of Sayour Holdings; and that it follows that Moustafa’s purported appointment of Yesmine as a director on 26 March 2018 was also ineffective.

4411. This is said to have two further consequences. First, that leave to bring the First Arncliffe Cross-claim should be revoked nunc pro tunc, because it was commenced without the authority of Sayour Holdings. Second, that Sayour Holdings was never a valid shareholder in Combined Projects Arncliffe because, when Combined Projects Arncliffe was incorporated in January 2014, Jamil was not authorised on behalf of Sayour Holdings to consent to the receipt of shares in Combined Projects Arncliffe. Since then, it is said that there has been no validly appointed director of Sayour Holdings which could consent to it receiving shares in Combined Projects Arncliffe (noting that consent to membership is a precondition to becoming a member).

Sayour Holdings bound by Arncliffe Agreement

4412. In the alternative that Jamil was a director of Sayour Holdings, and he had authority to act on its behalf to consent to becoming a member of Combined Projects Arncliffe, then it is said that Jamil also had authority to bind Sayour Holdings to the Arncliffe Agreement.

4413. Further, in the alternative that Jamil did not have authority to act on behalf of Sayour Holdings at the time Combined Projects Arncliffe was incorporated, and Moustafa later became a director of Sayour Holdings on 21 August 2014 when he signed the consent to become a director and company secretary, the only way for Sayour Holdings to have validly received shares in Combined Projects Arncliffe is if it also ratified the conduct of Jamil in purporting to consent to the issue of those shares.

4414. It is said that, in that scenario, Sayour Holdings “cannot simply pick and choose” among Jamil’s actions: it must accept his purported acts on behalf of Sayour Holdings as a whole (the Deiri Parties here citing Smith v Henniker-Major & Co (a firm) [2003] Ch 182; [2002] EWCA Civ 762 at [56] per Robert Walker LJ, as his Lordship then was, with whom Carnwath LJ, as his Lordship then was, and Schiemann LJ agreed). Similarly, reference is made to Brockway v Pando [2000] WASCA 192, where Murray CJ (with whom Kennedy and Murray JJ agreed) said (at [118]) that ratification of one act in a series of acts in a transaction may, depending on the circumstances, be ratification of the whole transaction (citing Walter v James (1871) LR 6 Ex 124).

4415. In this case, the Deiri Parties say that the Arncliffe Agreement is plainly an integral part of the issue of shares to Sayour Holdings; and it was that agreement (including the agreement that profits would depend on what each shareholder put in by way of financial contributions) that formed the foundation for the equal shareholding and the entire venture. It is said that Sayour Holdings cannot now ratify the equal shareholding component of the transaction by ratifying the consent to take up shares in Combined Projects Arncliffe, while at the same time refusing to accept the concomitant burden of the transaction, that it would only receive proceeds proportionate to what it put in.

4416. It is submitted that any other outcome would be grossly unfair to Deiri Nominees. It is said that the unfairness that would be occasioned in this case by partial ratification illustrates the rationale for the principle that parties are not permitted to ratify only some acts forming part of an overall integrated series of acts or transactions where it would be unjust to do so.

4417. Thus, it is said that Sayour Holdings must accept that it can only receive a profit proportionate to the loan contributions it made as a percentage of total shareholder contributions. As noted, it is said that Mr Deiri contributed approximately $21.7 million or 97% of total shareholder loans and Jamil contributed $670,000 or 3% of total shareholder loans.

4418. Accordingly, it is submitted that even if Sayour Holdings is a member of Combined Projects Arncliffe, the Arncliffe Agreement is binding upon it; and by reason of that agreement, Sayour Holdings is entitled to no more than 3% of any profits of the company.

Site identification Fees and Development Management Fee

4419. Furthermore, the Deiri Parties say that on this alternative (that Sayour Holdings is a member of Combined Projects Arncliffe) the claim against Mr Deiri in relation to the Site Identification Fees and Development Management Fee should not be accepted. It is said that the payment of the Site Identification Fee(s) by Combined Projects Arncliffe was agreed to (“indeed implored”) by Jamil, shortly before he died. Accordingly, it is said that there being shareholder agreement and consent to the payment of the Site Identification Fee(s), Mr Deiri cannot be in breach of his duties as a director.

4420. The Deiri Parties accept that, on this scenario, it must be established that Jamil had authority to agree and consent to the payment of the Site Identification Fee(s) on behalf of Sayour Holdings. They say that there are said to be a number of ways that authority may arise, including because, if Moustafa’s consent and appointment as a director of Sayour Holdings was effective, he left Jamil in control to continue to run Sayour Holdings, thereby authorising or alternatively holding him out as having authority to act.

4421. The same is said to be true of the Development Management Fee. In particular, it is said that that fee was paid pursuant to the Development Management Agreement which Mr Deiri had the consent and agreement of Jamil to execute.

4422. Furthermore, it is said that Jamil, Mr Deiri, Sayour Holdings and Deiri Nominees adopted a convention or mutual assumption that Combined Projects Arncliffe would pay the site identification fee(s) and the Development Management Fee that Jamil had agreed. The payment of those fees is said to have been in accordance with that convention or mutual assumption, with the result that Sayour Holdings is estopped from now resiling from that assumption and claiming that the fees were unauthorised.

Determination re Third Arncliffe Cross-claim

4423. As I have noted, to a large extent, the issues raised by the Third Arncliffe Cross-claim do not arise, and the claim must be dismissed, in light of my factual findings concerning Moustafa’s consents in relation to Jamil’s authority, Sayour Holdings and Combined Projects Arncliffe (again, see above). In particular, and for completeness, I record the following.

4424. In relation to the prayers for rectification of the registers of Sayour Holdings and Combined Projects Arncliffe, to my mind, this must fail in light of my factual determinations. This includes in relation to Yesmine.

4425. Furthermore, I see force to the Sayour Parties’ submissions in relation to the asserted abandonment or relinquishment of Sayour Holdings’ interest in Combined Projects Arncliffe. As to the pleaded telephone conversation in about December 2015 (again, for example, see at [104] of Mr Deiri’s affidavit sworn on 16 October 2019 cf [64]-[67] of Moustafa’s affidavit sworn on 8 November 2019 and the apparent refusal to sign proposed draft deeds of settlement), there simply is insufficient evidence, on the totality of the evidence and in the events that have happened, here to make any factual findings that could justify the conclusion that Moustafa abandoned his claims.

4426. In this connection, I also accept the Sayour Parties submissions as to the need to show sufficient full knowledge of the material facts, and the circumstance in which Moustafa found himself at the time of the purported release.

4427. As to s 175, I have some difficulty here seeing that the Deiri Parties are relevantly persons aggrieved for the purposes of seeking orders (though, I here reach no concluded view on that matter). However, I have less difficulty accepting the submission, and noting the residual discretion in this regard (see, for example, Indoor Climate Technologies at [3]), that any such order should here be made having in mind the circumstances and justice of the case and that such an order, or orders, would have the ultimate practical effect of entailing the dismissal of proceedings that are otherwise meritorious.

4428. As to s 1322, even putting aside questions as to whether the Deiri Parties are relevantly interested persons and whether ASIC ought to have been joined, again, I see that the making of any such order would, or likely could, cause substantial injustice to Sayour Holdings and, thereby, such an order could not here be made (see s 1322(6)(c) of the Corporations Act).

4429. Finally, I here record that I see some force, though it is again not necessary to reach a concluded view, to the Sayour Parties’ submission in relation to an estoppel by convention, noting particularly that the Arncliffe Proceedings have gone on for well over two years on the (it would seem) mutually understood basis that Sayour Holdings was a 50% shareholder (or at least a shareholder) in Combined Projects Arncliffe (and noting also those other matters referred to in the Sayour Parties’ submissions – see above).

4430. The preceding disposes of prayers for relief 1 through 13.

4431. As to the submissions here made, and relief sought, in relation to the alleged Arncliffe Agreement, my findings in relation to the alleged Arncliffe Agreement (see particularly preliminary factual finding F) substantially disposes of this issue and the relief here sought by prayers 16 through 18.

4423. As to the submissions here made in relation to payments of the Site Identification Fee(s) and Development Management Fees, my disposition of those issues has been recorded, and those findings apply equally here, in relation to the First Arncliffe Cross-claim.

4424. This leaves prayers for relief 19 through 21 (along with prayer for relief 22, which concerns costs, and prayer 23, which is an incidental prayer for any other order that the Court thinks fit – as to which, see below). Prayers 19 and 20 relate to the appointment of Ms Howe as Managing Director of Combined Projects Arncliffe. Prayer 21 relates to the appointment of Mr Deiri as a director and secretary of Combined Projects Arncliffe. Insofar as this relief is pressed, I will hear the parties as to the appropriate relief.

Summary of conclusions

4434. I now summarise my preceding conclusions. It is convenient to do so by cross-claim.

First Broadway Cross-claim

4435. In relation to Jamil’s authority, again, I have found that the various Powers of Attorney did not confer actual authority on Jamil to draw cheques or to receive funds in relation to trust property, or sign or otherwise acquiesce in the execution of accommodation notices and other such matters; however, Jamil did have implied actual authority for the day-to-day management of the project, including, inter alia, to direct payments and the like (noting again however, for example, not to direct payments into his personal bank accounts) and as to the issue of accommodation notices. However, this did not extend to the drawing of cheques and did not extend to making decisions to commit Plaza to the construction contracts.

4436. Furthermore, I have found that Plaza was not bound (by operation of the Partnerships Act) as a partner of cheques that were not countersigned by Moustafa.

4437. And, finally, in relation to ostensible authority, I do not accept that Jamil was held out as having ostensible authority to do anything other than those acts for which he had implied actual authority.

4438. As to the defences to the First Broadway Cross-claim based on acquiescence and estoppel, a defence based on acquiescence is made good at the time of the two cheques in 2014 and thereafter. As to the accommodation notices, Moustafa’s signing of the pro forma accommodation notice and his leaving it with Jamil to manage the day-to-day running of the project means that this is sufficient to establish acquiescence in the issuance of the accommodation notices. Meanwhile, no estoppel by convention succeeds.

4439. As to the no loss or “Liggett defence”, this defence partially succeeds, specifically as follows. First, the defence succeeds in relation to payments that are accepted as having discharged, or should be taken to have discharged, incontrovertible expenses and liabilities of the Broadway Partnership (including for land tax, real estate fees and other such payments). Second, the defence fails in relation to payments relating to the acquisition and maintenance of the Matthew Street Property. Third, the defence fails in relation to partnership distributions. Fourth, in relation to claims predicated on supposed ratification (including, particularly, the increase in construction costs after construction was underway), the defence succeeds (noting also the anterior question as to Jamil’s authority to manage the day-to-day conduct of the project, which would include such increases in costs once the project was underway).

Second Broadway Cross-claim

4440. In relation to the Second Broadway Cross-claim, I have found that Plaza has not proved the contract upon which it sues and that conclusion is fatal to the principal way in which the interest claim is put under the Second Broadway Cross-claim.

4441. On the alternative way in which the claim is put, I consider that no breach of special condition 43.3 of the contract of sale has been established.

4442. Otherwise, I have recorded above my determinations of the other issues that would arise on the Second Broadway Cross-claim, if I were in error in relation to the preceding determinations.

Third Broadway Cross-claim

4443. In light of the determinations summarised above, the issues on the Third Broadway Cross-claim do not arise. If they had, I would have found that the interest rate of 9% per month was void as a penalty.

Fourth Broadway Cross-claim

4444. Again, in light of the determinations summarised above, the issues on the Fourth Broadway Cross-claim do not arise. If they had, I would have found that HWLE breached its duty of care, though I here record again that I have doubts as to whether this would have amounted to breach of the statutory duties here claimed. However, I would have found that the loss was sustained when the contract was entered into and hence the claim is now statute barred.

Fifth Broadway Cross-claim

4445. Next, is the Fifth Broadway Cross-claim. My dispositions in relation to this cross-claim are, in summary, as follows: first, the payments were not bribes; the claims concerning delay liabilities under the Stage 1 Construction Contract fail; the claims concerning the Stage 1 variations fail; the claims concerning Variation No 8 fail; the claims concerning variations after practical completion fail; the claims concerning Stage 1 provisional sums fail; the claims concerning variations after practical completion fail; the claims concerning delay liabilities under the Stage 2 Construction Contract fail; the claims concerning Stage 2 variations fail; the claims concerning Variation No 1 fail; the claims concerning Variation No 2 fail; the claims concerning Variation No 3 fail (and fall to be assessed on the basis of a quantum meruit); and, similarly, the claims concerning variations after practical completion fail.

4446. In relation to the claims against the builder for profits, each of prayers 57 to 59 fail.

4447. In relation to the claims concerning profits, constructive trust and other such claims in respect of profits, prayers 60 to 72 fail.

4448. In relation to the claims for moneys had and received by CP Holdings and Deicorp Constructions, prayers 73 to 76 fail.

4449. In relation to the claims concerning the Matthews Street Property, I have dealt with the relevant factual findings in relation to this matter. In circumstances where there appears to be an intractable dispute between the shareholders, I see force to the proposition that the appropriate order is for the winding up of the company.

Sixth Broadway Cross-claim

4450. In light of the determination of the Fifth Broadway Cross-claim, the issues on the Sixth Broadway Cross-claim do not arise, other than to the extent that findings made relate to my determinations in relation to various claims made on the Fifth Broadway Cross-claim.

Seventh Broadway Cross-claim

4451. In relation to the Seventh Broadway Cross-claim, this cross-claim arises to the extent that Plaza has succeeded on the First Broadway Cross-claim against CBA. In light of that, I have found as follows: first, again, the “bribes” allegations have not been made good and, accordingly, those aspects of this cross-claim predicated on a count of conspiracy do not arise; second, as to the misleading and deceptive conduct claim in respect of debits made to the CBA Partnership Account and which Plaza has claimed were unauthorised, I have found that Investments and Mr Deiri represented to CBA that CBA had authority to, and should debit, the account with fees, charges, interest and repayments in respect of Stage 1 Loan and Stage 2 Loan, and to the extent Plaza has established that those debits were not authorised, CBA has suffered loss in reliance upon and by reason of each such representation; as to the drawdowns on the Stage 1 Loan and Stage 2 Loan, I have found that all drawdowns followed CBA’s receipt of an accommodation notice, that each notice was executed by Investments (through Mr Deiri) and that each thereby amounted to a representation by Investments and/or Mr Deiri that the drawdown was authorised by, and should be paid for the purposes of, the Broadway Partnership (and, again, to the extent Plaza has established that those drawdowns were not authorised, CBA has paid away moneys in reliance upon the representations of Investments and/or Mr Deiri); and, as to the cheques, I accept that each time a cheque was paid by CBA, it was paid based on a representation that the cheque was duly authorised.

4452. Following, as between CBA and the Deiri interests, I have concluded that any loss resulting from cheque payments made based only on Mr Deiri’s signature prior to the Cheque Authorisation Alteration Instruction should be borne by the Mr Deiri and the Deiri interests since they have obtained the benefit of the payments out by CBA and the payments were made at Mr Deiri’s direction; and, for the avoidance of doubt, CBA could thereafter rely on the Cheque Authorisation Alteration Instruction.

4453. As adverted to at the outset, the change of position defence foreshadowed by Deicorp to the claims brought by CBA on the Seventh Broadway Cross-claim, has not yet been determined because it was to await the outcome of the claim by Plaza and the Sayour Interests against CBA. Accordingly, directions will need to be made for those issues, if they remain still to be pursued.

Eighth Broadway Cross-claim

4454. In relation to the Eighth Broadway Cross-claim, the claim against Plaza fails and the claim against CBA fails.

Ninth Broadway Cross-claim

4455. In relation to the Ninth Broadway Cross-claim, in accordance with these reasons and the below orders, the parties are to bring in short minutes in relation to an orderly separation of their affairs, along with any other extant issues to be determined.

First Arncliffe Cross-claim

4456. In relation to the First Arncliffe Cross-claim, I have found as follows.

4457. As to the Development Management Fee, this sum is recoverable from Deiri Nominees.

4458. As to the Konstructions Fee, this sum is also recoverable. Accordingly, there should be judgment against Konstructions and an order that Mr Deiri is jointly and severally liable for that amount

4459. As to the Zapphire Fee, again, this sum is recoverable. Accordingly, there should be judgment against Zapphire and an order that Mr Deiri is jointly and severally liable for that amount.

4460. In those circumstances, I do not see the need for a further enquiry or accounting process, but will hear submissions as to this if the Sayour Parties press it.

4461. As to repayment of interest on loans, this amount is recoverable; and, as to recovery of the $1.56 million payment to Jamil, this too is recoverable.

4462. As to the agency commissions, I have found that Deicorp Properties have an entitlement to retain this amount; and, as to PC 21, again, I have found that there is an entitlement to retain those amounts.

Second Arncliffe Cross-claim

4463. In relation to the Second Arncliffe Cross-claim, I have found that Deicorp Constructions’ claims succeed to the extent adumbrated above.

Third Arncliffe Cross-claim

4464. In relation to the Third Arncliffe Cross-claim, I refer above to my disposition of those issues, and otherwise note that I will hear the parties as to the appropriate relief concerning the ongoing control of the entities and any other extant issues.

Conclusion and Orders

4465. Not least given the complexity of the issues raised across the two proceedings, I consider that it is appropriate, and indeed in the interests of the just, quick and cheap resolution of the real issues in dispute (see s 56 of the Civil Procedure Act), that the parties bring in agreed short minutes to give effect to these reasons.

4466. This will also give the parties an opportunity to identify any issues that I may have omitted to deal with in the myriad of issues considered above. I will allow ample time for consideration of these reasons, so as to avoid the parties needing to do this in the Court vacation.

4467. For the preceding reasons, I simply order that:

1. Order that the parties, by 29 February 2021, bring in short minutes of order to give effect to these reasons, including as to costs, and any brief written submissions dealing with those orders, with a view to those orders being made in chambers, if possible.

2. Order that the parties, if they consider that it is necessary, address in those submissions why it is necessary for the Court to hear oral submissions in relation to the orders referred to in Order 1.

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Amendments

17 December 2020 - Counsel details in coversheet amended

05 November 2021 - Amendments to Parties and Counsel and Solicitor representation on cover sheet

Typographical errors at [12], [257], [283], [411], [417], [517], [755], [770], [891], [1085], [1375], [1527], [1716], [1727], [1728], [1883], [2020], [2141], [2323], [2349], [2400], [2553], [2561], [2678], [2974], [3002], [3288], [3494], [3571], [3919], [3992], [4101], [4357], [4431], [4445], [4460]

Decision last updated: 05 November 2021