Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd; In the matter of Combined Projects (Arncliffe) Pty Ltd (No 2)

[2021] NSWSC 1374

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 (No 2) [2021] NSWSC 1374

Hearing dates:

13 and 16 April 2021

Decision date:

28 October 2021

Jurisdiction:

Equity

Before:

Ward CJ in Eq

Decision:

See [869]-[870]

Catchwords:

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Correction under slip rule — Inherent jurisdiction

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Exceptions to general rule that costs follow the event — Orders when proceedings involve multiple parties — Bullock and Sanderson orders

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56-60, 98, 98(4)(c), 100

Competition and Consumer Act 2010 (Cth), Sch 2 - Australian Consumer Law

Corporations Act 2001 (Cth), ss 180, 181, 182, 233, 241, 237, 247A, 1317H, 1322(4)(b), 1322(6)(c)

Limitation Act 1969 (NSW)

Property and Stock Agents Act 2002 (NSW)

Property, Stock and Business Agents Act 2002 (NSW)

Supreme Court Act 1970 (NSW), s 63

Uniform Civil Procedure Rules 2005 (NSW), rr 19.5, 36.16, 46.7, 46.8

Cases Cited:

Agricultural Land Management Ltd v Jackson (No 2) (2014) 48 WAR 1; [2014] WASC 102

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10

Aktas v Westpac Banking Corporation Ltd (No 2) (2010) 241 CLR 570; [2010] HCA 47

AM Spicer & Son Pty Ltd (in liq) v Spicer (1931) 47 CLR 151; [1931] HCA 30

Australian Careers Institute Pty Ltd v Australian Institute of Fitness Pty Ltd (2016) 340 ALR 580; [2016] NSWCA 347

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6

Bassett v Cameron (No 2) [2021] NSWSC 419

Boardman v Phipps [1967] 2 AC 46

Bray v Ford [1896] AC 44

Brew v Whitlock (No 3) [1968] VR 504

Brick and Pipe Industries Ltd v Occidental Life Nominees Pty Ltd (1990) 3 ACSR 649

Brick and Pipe Industries Ltd v Occidental Life Nominees Pty Ltd (1991) 6 ACSR 464; [1992] 2 VR 279

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

Broadway Plaza Investments v Broadway Plaza Pty Ltd; In the matter of Combined Projects (Arncliffe) Pty Ltd [2019] NSWSC 1082

Bullock v London General Omnibus Co [1907] 1 KB 264

Canberra Residential Developments Pty Ltd v Brendas (2010) 188 FCR 140; [2010] FCAFC 125

Canson Enterprises Ltd v Boughton & Co (1991) 85 DLR (4th) 129

Cavasinni v Cavasinni [2007] NSWSC 619

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

Cheng v Lam (No 3) [2020] WASC 45

Church of Scientology Inc v Woodward (1982) 154 CLR 25

Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51; [1994] HCA 61

Compagnie Noga Case ([2001] 3 All ER 513

Council of the City of Liverpool v Turano (No 2) [2009] NSWCA 176

Daniels v Anderson (1995) 37 NSWLR 438

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

Eastlake v Eastlake [2015] NSWSC 1772

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

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

Form-Quip Ltd v Trafalgar Properties Ltd (Supreme Court (NSW), Giles J, 19 July 1991, unrep)

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

Goodman Fielder Consumer Foods Pty Ltd v Graincorp Foods Australia Pty Ltd [2020] NSWSC 706

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

Hadid v Lenfest Communications Inc [2000] FCA 628

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

Howard v Commissioner of Taxation (2014) 253 CLR 83; [2014] HCA 21

Hungerford v Richardson [2018] NSWSC 1543

Hurst v Vestcorp Ltd (1988) 12 NSWLR 394

Idoport Pty Ltd v National Australia Bank [2005] NSWSC 1273

In the matter of Combined Projects (Arncliffe) Pty Ltd [2018] NSWSC 649

In the matters of Earth Civil Australia Pty Ltd, RCG CBD Pty Ltd, Bluemine Pty Ltd, Diamondwish Pty Ltd and Rackforce Pty Ltd (all in liq) [2021] NSWSC 966

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

Junker v Hepburn [2010] NSWSC 88

Kocic v Deputy Commissioner of Taxation (2011) 85 ATR 489; [2011] NSWCA 322

Langman v Handover (1929) 43 CLR 334; [1929] HCA 42

Links Golf Tasmania Pty Ltd v Sattler (2012) 213 FCR 1; [2012] FCA 634

Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1; [2006] FCAFC 144

Lord Provost of Edinburgh v Lord Advocate (1879) 4 App Cas 823

Magafas v Carantinos [2008] NSWSC 691

Maguire v Makaronis (1997) 188 CLR 449; [1997] HCA 23

Mutual Shipping Corporation v Bayshore Shipping Co Ltd [1985] 1 WLR 625

National Bank of Greece SA v Pinios Shipping Co (No 1) [1990] 1 AC 637

Neptune (Vehicle Washing Equipment) Ltd v Fitzgerald [1996] Ch 274

New Cap Reinsurance Corporation Ltd v Grant [2009] NSWSC 950

Newmont Yandal Operations Pty Ltd v J Aron Corporation and Goldman Sachs Group, Inc (2007) 70 NSWLR 411; [2007] NSWCA 195

Nominal Defendant v Clancy [2007] NSWCA 349

Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146; [1990] HCA 32

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

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

Panorama Developments (Guildford) Ltd v Fidelis Furnishing Fabrics Ltd [1971] 2 QB 711

Paul’s Retail Pty Ltd v Morgan [2009] NSWSC 1343

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

Permanent Building Society (in liq) v Wheeler (1994) 11 WAR 187

Princess Ann of Hesse v Field [1963] NSWR 998

Re Duomatic Ltd [1969] 2 Ch 365

Re Earth Civil Australia Pty Ltd, RCG CBD Pty Ltd, Bluemine Pty Ltd, Diamondwish Pty Ltd and Rackforce Pty Ltd (All in Liq) (No 2) [2021] NSWSC 1161

Re HIH Insurance Ltd; Australian Securities & Investments Commission v Adler (2002) 168 FLR 253; [2002] NSWSC 171

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

Ryan Wealth Holdings Pty Ltd v L&V Tomkins Pty Ltd [2016] NSWSC 136

Sanderson v Blyth Theatre Co [1903] 2 KB 533

Smith v NSW Bar Association (No 2) (1992) 176 CLR 256; [1992] HCA 36

Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446

Streeter v Western Areas Exploration Pty Ltd (No 2) (2011) 278 ALR 291; [2011] WASCA 17

Twenty-First Australia Inc v Shade (Supreme Court (NSW), Young J, 31 July 1998, unrep)

Vadori v AAV Plumbing (2010) 77 ACSR 616; [2010] NSWSC 274

Vanguard Financial Planners Pty Ltd v Ale (2018) 354 ALR 711; [2018] NSWSC 314

V-Flow Pty Ltd v Holyoake Industries (Vic) Pty Ltd (2013) 296 ALR 418; [2013] FCAFC 16

Wang v Cai (No 2) [2021] NSWSC 1268

Wentworth v Rogers (No 9) (1987) 8 NSWLR 388

Wentworth v Rogers [2002] NSWSC 921

Wentworth v Wentworth [1999] NSWSC 638

Wentworth v Woollahra Municipal Council (1982) 149 CLR 672; [1982] HCA 41

Texts Cited:

C Mitchell, P Mitchell and S Watterson, Goff & Jones The Law of Unjust Enrichment (9th ed, 2016, Sweet & Maxwell)

JD Heydon, MJ Leeming, PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths)

Mason, Carter, Tolhurst, Mason and Carter’s Restitution Law in Australia (3rd ed, 2016, Lexis Nexis Australia)

P Taylor, M Meek and Bellew J, Ritchie’s Uniform Civil Procedure NSW (Looseleaf, LexisNexis)

R I’Anson Banks Lindley & Banks on Partnership (20th ed, 2017, Thomson Reuters)

RP Austin and IM Ramsay, Ford, Austin & Ramsay’s Principles of Corporations Law (LexisNexis Australia)

Category:

Consequential orders

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)
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)
Commonwealth Bank of Australia (Second Cross-Defendant to First Cross-Claim/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)
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)
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)
HWL Ebsworth (First Cross-Defendant to Fourth Cross-Claim)
Moustafa Sayour (Second Cross-Defendant to Eighth Cross-Claim)
Matthews Street Pty Ltd (Ninth Cross-Defendant to Fifth Cross-Claim/Second Cross-Defendant to Ninth Cross-Claim

Arncliffe Proceedings 2017/00180712
Sayour Holdings Pty Ltd atf Sayour 2 Family Trust (Plaintiff; First Cross-Defendant to the Third Cross-Claim)
Combined Projects (Arncliffe) Pty Ltd (First Defendant/Cross-Claimant to First Cross-Claim; Fourth Cross-Defendant to the Third Cross-Claim)
Deiri Nominees Pty Ltd (Second Defendant/Second Cross-Defendant to First Cross-Claim; Cross-Claimants to the Third Cross-Claim)
Fouad Deiri (Third Defendant/First Cross-Defendant to First Cross-Claim; Second Cross-Claimant to the Third Cross-Claim)
Konstructions Pty Ltd (Third Cross-Defendant to First Cross-Claim)
Moustafa Sayour (Second Cross-Defendant to the 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 the Third Cross-Claim)

Representation:

Counsel:
Broadway Plaza proceedings 2016/00282940
NC Hutley SC with CN Bova SC, B Michael, 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-Defedant to Seventh Cross-Claim/First Cross-Claimant to Eighth Cross-Claim)
DA Smallbone with JP Gatland (Defendant/Cross-Claimant on 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 SC with A Smith (Fifth to Eighth and Tenth to Eleventh Cross-Defendants to Fifth Cross-Claim)

Arncliffe proceedings 2017/00180712
DA 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 SC 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)
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 on 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

Judgment

1. HER HONOUR: On 14 December 2020, I published my reasons for judgment in two sets of proceedings (the Broadway Proceedings and the Arncliffe Proceedings) involving a variety of parties and numerous disputes arising out of dealings between 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, on the other hand, Mr Fouad Deiri (Mr Deiri) and entities associated with Mr Deiri (the Deiri interests) (Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd; In the matter of Combined Projects (Arncliffe) Pty Ltd [2020] NSWSC 1778) (the principal judgment). The disputes between the Sayour and Deiri interests (in which ultimately a variety of other parties became embroiled) were long-running and the two sets of proceedings were hard-fought. The disputes continue even as to the formulation of the orders to give effect to the reasons in the principal judgment.

2. As noted in the principal judgment, the combined hearing of the two sets of proceedings occupied over 28 sitting days in late 2019, including a day of submissions heard during the Court vacation and a further day of submissions during the first week of the law term last 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 2020.

3. When I published the principal judgment in December 2020, I did not make final orders. Rather, I directed the parties, by 28 February 2021, to bring in short minutes of order to give effect to my reasons (including as to costs – an issue in respect of which various parties had indicated that they wished to make submissions following judgment) and any brief written submissions dealing with those orders, with a view to those orders being made in chambers, if possible. As I contemplated (as proved to be the case) that the parties might consider it necessary for there to be oral submissions, I directed the parties that, if they considered this necessary, to address that in the submissions to be filed by 29 February 2021. I considered that this time frame allowed ample time for such submissions even given the then impending Court vacation ([4466] of the principal judgment). (That proved not to be the case.)

4. I considered (see [4465] of the principal judgment) that directing the parties to turn their minds to the appropriate orders to be made to give effect to the reasons in the principal judgment was, given the complexity of the issues raised across the two proceedings, in the interests of the just, quick and cheap resolution of the real issues in dispute (see s 56 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act)). Regrettably, that objective was not achieved (and my optimism that the parties would be able to work together efficiently to dispose of the dispute at least at first instance has proved sadly misplaced).

5. Further, as I indicated (at [4466] of the principal judgment) I considered that the time thus allowed before the entry of final orders would give the parties an opportunity to identify any issues with which I might have omitted to deal in the myriad of issues considered in the principal judgment. That observation seems to have been perceived (by at least some of the parties) as an invitation to embark upon further rounds of applications and submissions upon submissions (including the provision of different schedules of errata –descending to the minutiae of the description of parties and legal representatives on the coversheet of the judgment, which on no view of things forms part of the reasons for judgment), culminating in two days of oral submissions (on 13 and 16 April 2021), further written submissions, an application on 20 May 2021 for re-listing at short notice (due to perceived urgency lest a judgment might be in the offing), a short directions hearing on 21 May 2021, further rounds of submissions, a directions hearing in June 2021 and yet more written submissions. Moreover, various of the parties have foreshadowed the making of applications for special costs orders and/or gross sums costs orders after the present applications are determined.

6. Ironically, a process intended to give effect to the statutory mandate for the just, quick and cheap resolution of the real issues in dispute has proved anything but that. Indeed, it is difficult not to be sceptical of the suggestion (in some of the parties’ submissions) to the effect that now putting in place a regime where parties might consult as to steps to be taken (such as in relation to the sale of the Matthews Street Property), or for the quantification of costs by way of gross sum costs orders (rather than by invocation of the usual costs assessment process), would achieve the statutory objective mandate to which I have referred.

7. Nevertheless, as I explain in due course, my attention has been drawn to some matters that were not addressed in the principal judgment and to that extent (despite my concern as to the delay in the process of seemingly never-ending requests to make further submissions) the process has been instructive and I record my gratitude at the assistance of Counsel in that respect.

8. These reasons address the issues that have been raised since the publication of the principal judgment, including the notices of motion filed by Broadway Plaza Investments Pty Ltd (Investments) in the Broadway Proceedings and by Deiri Nominees Pty Ltd (Deiri Nominees) and Mr Deiri (together, the Deiri Parties) in the Arncliffe Proceedings, and the final orders in light of the outcome of the motions to vary the principal judgment. Those final orders will include costs orders, subject to any application to vary those orders to seek special costs orders (but any such application will need to be dealt with in short compass so as not unduly further to delay the final disposition of the respective proceedings at this level of the judicial hierarchy). Insofar as various of the parties have sought a stay of the final orders in order to consider their position as to any appeal, I do not consider that a stay of any length is warranted. The parties have now had many months to pore over the reasons in the principal judgment and I have no doubt that the respective battalions of legal advisers involved in these proceedings are perfectly capable of moving expeditiously if their clients are so minded to appeal. Therefore, any stay granted will be short.

9. As to the various typographical or proofing errors helpfully pointed out in the schedules of errata I do not propose here to address those (but have simply adopted those amendments with which I agree). The only amendment proposed in the schedule which is not of such a nature is the reference to Mr Deiri at [755] of the principal judgment. There, in the context of making rulings on Jones v Dunkel submissions, I said (of the absence of any evidence adduced from a particular potential witness) that I drew no adverse inference of the kind articulated in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 (Jones v Dunkel) but noted that it was in the ability of both sides (relevantly, Zapphire and the Sayour Parties) to have called that witness to enlighten me as to relevant events, adding parenthetically in the group of parties which might have called that witness “any of the other parties with whom it appears there were dealings with [that witness], such as Mr Deiri himself” and that no one had done so.

1. The Deiri Parties in their schedule of errata took issue with the last sentence of that paragraph of the reasons but in fact their real complaint was with the penultimate sentence, on the basis that there was no evidence before the Court of any dealings between Mr Deiri and the potential witness there named; and said that there had been no submissions as to any association or dealings between them (and pointing out that cross-examination had been foreclosed in that regard). The Deiri Parties say that there is no evidentiary basis for that comment and that it is a matter of reputational concern. No submissions were advanced against the deletion of this comment by the Sayour Parties. As would be evident from its context, the observation contained in the second set of parentheses at [755] was no more than an aside. I accept that there is no evidentiary basis for the suggestion of any such association or dealings (it being no more than an assumption). I withdraw the comment and apologise for any offence caused thereby.

2. I do not propose here to summarise the background to the dispute (which is set out in detail in the principal judgment) or the factual findings there made (again set out in detail in the principal judgment). I here adopt the same definitions and abbreviations used in the principal judgment.

Notices of motion

12. The first thing to note is that, with some alacrity following the principal judgment (due, I was told, to the concern to ensure that the motions were filed within the 14 day time period required by the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), lest that be applicable even though final orders had not yet been made), each of Investments (on the one hand) and Mr Deiri and Deiri Nominees (on the other hand) filed a notice of motion on 23 December 2020 (one in each of the respective proceedings). Both notices of motion invoked r 36.16(3A) of the UCPR or, in the alternative, r 36.16(1) of the UCPR or the Court’s inherent jurisdiction for the relief there sought. I do not here set out the relief sought in those notice of motion since that was subsequently amended in notices of motion filed on 12 March 2021 (see below).

13. When the matter came before me for directions on 26 February 2021, the Deiri Parties indicated their desire to amend the December 2020 notices of motion. Orders were made for any amended version of those motions to be filed and served by 12 March 2021. The relief sought in the amended notices of motion filed on 12 March 2021 was as follows.

14. In the Broadway Proceedings (2016/00282940), the relief sought by Investments, relevantly, was:

1. To the extent necessary, an order pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that any judgment of 14 December 2020 (Judgment) and the reasons for judgment of 14 December 2020 (Reasons for Judgment) be varied, set aside, withdrawn and/or supplemented as the Court thinks fit, to:

(a)   Reflect that, in relation to the cheque dated 25 September 2013 for the amount of $200,000 made out to “Broadway Plaza P/L” referred to the Reasons for Judgment at [1716] and [1727]:

(i)   that cheque was received by the defendant;

(ii)   further or in the alternative, the plaintiff is not liable to the defendant for the amount of $200,000 in connection with the amount agreed to be paid for the acquisition of an interest in the Broadway Site;

(iii)   further or in the alternative to (i) and (ii) above;

(A)   that cheque was deposited into the CBA Partnership Account (referred to in the Reasons for Judgment at [210]) on 25 September 2013; and/or

(B)   the deposit of that cheque into the CBA Partnership Account in the amount of $200,000 was a capital contribution by the defendant; and/or

(C)   the said amount of $200,000 paid into the CBA Partnership Account was ultimately returned to the defendant in 2014-2015, as a return of partnership capital; and/or

(D)   the said amount of $200,000 was therefore received by the defendant; and/or

(E)   the plaintiff is not liable to the defendant for the amount of $200,000 in connection with the amount agreed to be paid for the acquisition of an interest in the Broadway Site;

(iv)   further or in the alternative to (i) to (iii) above, such further or other facts in relation to that cheque or payment as the Court may think relevant or relevantly find.

(b)   Reflect that, in relation to the cheques dated 17 August 2012 and 14 August 2013 each in the amount of $150,000 and made out to “Jamil Sayour” referred to the Reasons for Judgment at [1727]:

(i)   those cheques were received by the defendant, as submitted by the Deiri Parties in their Reply Submissions at [20]-[22];

(ii)   further or in the alternative, the plaintiff is not liable to the defendant for the amount of $300,000 in connection with the amount agreed to be paid for the acquisition of an interest in the Broadway Site;

(iii)   further or in the alternative to (i) to (ii) above, such further or other facts in relation to those cheques or payments as the Court may think relevant or relevantly find.

(c)   Remove and/or vary the finding in the Reasons for Judgment at [1728] that $650,000 is owing by the plaintiff to the defendant in respect of the amount agreed to be paid for the acquisition of land be varied, to reflect that:

(i)   no amount is owing (or found owing) by the plaintiff to the defendant;

(ii)   further or in the alternative, to the extent any of the cheques referred to above have been deposited and were received by or are traceable to the defendant or the Sayour family (other than Jamil Sayour), the amount so received or traceable is not owing by the plaintiff to the defendant;

(iii)   in the alternative to (i) above, and further or in the alternative to (ii) above, $300,000 is owing by the plaintiff to the defendant; or

(iv)   in the alternative to (i) and (iii) above, and further or in the alternative to (ii) above, $500,000 is owing by the plaintiff to the defendant.

(d)   Reflect that insofar as the Deed of Variation and Restatement No. 1 and Restated Cash Facility Agreement dated 20 June 2013 did not bind Broadway Plaza Pty Ltd or the partnership, or was otherwise void or of no effect, then nonetheless the establishment fees, interest fees, and line fees charged by CBA to the CBA Partnership Account after that date:

(i)   were entitled to be charged and retained by CBA as pleaded in CBA’s Amended Defence to the Points of Cross-Claim filed on 1 October 2019 at [198](a);

(ii)   further or in the alternative, cannot be recovered by Plaza by reason of the conventional estoppel pleaded in CBA’s Amended Defence to the Points of Cross-Claim filed on 1 October 2019 at [193](c); and

(iii)   further or in the alternative, were entitled to be charged and retained by CBA pursuant to the initial facility dated 20 February 2012 as submitted in the Deiri Parties Reply Submissions at [67];

(e)   Vary the Reasons for Judgment in relation to the tender of documents:

(i)   at [1687], so as to refuse leave to the Sayour Parties to tender part of Mr Deiri’s affidavit of 2 November 2016 to show a different appropriation of payments, for the reasons set out in the Deiri Parties’ Reply Submissions at [222]: and

(ii)   at [1754], so as to grant leave to the Deiri Parties to tender the mortgage memorandum as submitted in the Deiri Parties’ Reply Submissions at [57]-[61];

(f)   Insofar as it is necessary, reflect that Plaza has not established that the amount of $1.75m drawn by cheque numbered 514 on the CBA Partnership Account on 21 November 2014 is recoverable by Plaza (on its own account or on behalf of the partnership), given that:

(i)   the payment was a partnership distribution which was authorised by Plaza, in circumstances where the Court found at [1812] that Jamil Sayour was authorised to manage or direct the receipt of payments on behalf of Plaza in respect of partnership distributions;

(ii) the payment discharged Investments’ entitlement to a partnership distribution of that sum, in circumstances where the Court found that an equivalent sum was paid to and received by Plaza as a partnership distribution (Reasons for Judgment at [4881-[490] and [1775]); and

(iii)   no loss has been established for any breach of mandate by CBA or insofar as the payment was otherwise an unauthorised transaction;

(g)   Vary the findings in the Reasons for Judgment at [3319] and [4451] to reflect that CBA has not established that it is entitled to relief under the Seventh Cross-Claim against Fouad Deiri and Investments in respect of any amount CBA is required to pay to Plaza or to the partnership under the First Cross­-Claim in respect of establishment fees, interest charges, or line fees, in circumstances where:

(i)   CBA has not established any loss arising from the misleading conduct pleaded at [11]-[14] of the Seventh Cross-Claim;

(ii)   CBA did not plead or make any submissions to the effect that Mr Deiri or Investments made representations to CBA by signing any facility agreement that CBA had authority to and should debit the CBA Partnership Account with fees, charges. interest and repayments (as found in the Reasons for Judgment at [3319]); and

(iii)   the Court has made no finding (and should not now make any such finding) that through Mr Deiri and Investments agreeing and acquiescing in the debiting of fees and interest to the CBA Partnership Account, Mr Deiri and Investments thereby represented to CBA that each of the debits were duly authorised (which was the only pleaded basis for the misleading conducting [sic] claim in the Seventh Cross-Claim against Mr Deiri and Investments in respect of these debits on the CBA Partnership Account).

2. In the alternative to prayer 1 above, to the extent necessary, an order pursuant to the Court’s inherent jurisdiction and/or r 36.16(1) of the UCPR that any Judgment and the Reasons for Judgment be varied, set aside, withdrawn and/or supplemented as the Court thinks fit to reflect the matters in prayers 1(a) to (g) above.

3.   In the alternative to prayers 1 and 2 above, an order pursuant to the Court’s inherent jurisdiction that the Reasons for Judgment be varied, set aside, withdrawn and/or supplemented as the Court thinks fit to reflect the matters in prayers 1(a) to (g) above.

… [marking up omitted]

15. In the Arncliffe Proceedings (2017/00180712), the relief sought by Deiri Nominees and Mr Deiri, relevantly, in their amended notice of motion was:

1. To the extent necessary, an order pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that any judgment of 14 December 2020 (Judgment) and the reasons for judgment of 14 December 2020 (Reasons for Judgment) be varied, set aside, withdrawn and/or supplemented as the Court thinks fit, to:

(a1)   Address and make findings with respect to the Further Amended Defence to the First Cross-Claim filed on 3 December 2019 (FA Defence), and the Further Amended Statement of Cross-Claim in the Third Cross-Claim filed on 3 December 2019 (FA Cross-Claim), which relevantly:

(i)   sought. as part of the primary case (cf. Reasons for Judgment at [1374]-[1376], which ought be amended), particular relief in the event that the Court determines that Moustafa Sayour did consent to become a director or member of Sayour Holdings on (relevantly) 16 December 2013, in which case he had full authority to authorise Jamil becoming a director on 21 August 2014 (which he did), including, in particular:

(A)   a declaration that at all times from 21 August 2014 to 6 October 2015, Jamil Sayour was a director of Sayour Holdings (FA Cross-Claim, paragraph 14);

(B) an order pursuant to s 1322(4)(b) of the Corporations Act 2001 (Cth) or the inherent jurisdiction of the Court that the register kept by the Australian Securities and Investments Commission in respect of Sayour Holdings be rectified, by recording Jamil Sayour as a director of Sayour Holdings for the period 21 August 2014 to 6 October 2015 (FA Cross­-Claim, prayer 15):

(ii)   pleaded facts in support of that relief, which are consistent with the findings recorded in the Reasons for Judgment and which support the relief sought (FA Cross-Claim, paragraphs 6A, 15A, 37A, 37B, 40(b1), 42A, 42B, 45(b1), 48A, 51(b1): FA Defence, paragraphs 112A, 118A, 128A, 128b, 131(b1), 133A, 133B, 136(b1), 139A, 142(b1)); and

(iii)   was supported by Deiri Parties’ Closing Submissions at C.7.9;

(a2)   Address and make findings in relation to Jamil’s authority vis-à-vis Sayour Holdings in light of the findings made with respect to (a1) above, including that Jamil Sayour was a de facto director of Sayour Holdings and/or that Jamil Sayour was an actual director of Sayour Holdings from 21 August 2014 to 6 October 2015; and, in light of those findings, vary the following findings in the Reasons for Judgment;

(i)   that Jamil did not have authority to negotiate the development management fee and site identification fee with Mr Deiri (at [3757]):

(ii)   that there was no irrevocable shareholder’s resolution such that Mr Deiri was under a binding agreement and obligated to make the payments (at [3796]-[3799]);

(iii)   that Moustafa’s assent was required for Sayour Holdings to give shareholder consent or pass a shareholder resolution of CP Arncliffe (at [3799]);

(iv)   that Mr Deiri breached his fiduciary duties in causing the payment of $1.56m to be made (at [4100]-[4101]) and that this amount is recoverable by CP Arncliffe (at [4461]);

(v)   that a number of issues in the Third Arncliffe Cross-Claim do not arise or should be dismissed because of findings concerning Jamil’s authority (at [4423]);

(b)   Reflect that in relation to the $1.56 million Payment referred to in the Reasons for Judgment at [4100] and [4461]:

(i)   that sum, or part of that sum, was received by or is traceable to Sayour Holdings Pty Ltd (Sayour Holdings), Moustafa Sayour, and/or members of the Sayour family (other than Jamil Sayour); and

(ii)   the third defendant is not liable to the plaintiff in respect of the amounts so received or traceable;

(iii)   further or in the alternative to (i) and (ii) above, such further or other facts in relation to the $1.56m Payment as the Court thinks fit or relevant [sic] finds;

(c)   Reflect that, in relation to any other amounts for which Fouad Deiri or Deiri Nominees Pty Ltd (Deiri Nominees) is found to have been liable to the plaintiff, those amounts do not include the sum of $5,299,704.23 charged for interest and received by Deiri Nominees pursuant to the loan agreement between Deiri Nominees and Combined Projects (Arncliffe) Pty Ltd (CP Arncliffe) dated 24 February 2015, and vary the Reasons for Judgment at [4092] and [4461] accordingly.

(d)   For the purposes of (c) above, grant leave to Fouad Deiri and Deiri Nominees to re-open to tender in evidence a loan agreement dated 12 June 2015 between PA General Opportunity Limited, Lord Capital Opportunity IV Limited, Deiri Nominees, CP Arncliffe, and Combined Projects (Kellyville) Pty Limited together with its annexures (PAG Loan Agreement).

2. In the alternative to prayer 1 above, to the extent necessary, an order pursuant to the Court’s inherent jurisdiction and/or r 36.16(1) of the UCPR that any Judgment and the Reasons for Judgment be varied, set aside, withdrawn and/or supplemented as the Court thinks fit to reflect the matters in prayers 1(a) to (d) above.

3.   In the alternative to prayers 1 and 2 above, an order pursuant to the Court’s inherent jurisdiction that the Reasons for Judgment be varied, set aside, withdrawn and/or supplemented as the Court thinks fit to reflect the matters in prayers 1(a) to (d) above.

… [Again, marking up omitted]

16. Pausing here, I note that at the commencement of the hearing of the motions on 13 April 2021, I was informed by Mr Bova SC, appearing for the Deiri Parties, that the relief sought in prayer 1(d) of the amended notice of motion in the Arncliffe Proceedings was not pressed (T 6.3; 13/4/21). I include it in the extract above only for the purpose of indicating what had been sought up to that point (and to note that the Sayour Parties addressed submissions in their written submissions on that issue, which was ultimately abandoned by the Deiri interests).

17. For the hearing of those applications (and submissions regarding final orders) some three volumes of Court Book were provided in advance of the hearing on 13 April 2021. As adverted to above, and as I explain in due course below, that was not by far the extent of the submissions on the applications.

18. I propose to deal first with the applications for variation or amendment to the reasons in the principal judgment before turning to the costs applications and final orders to be made. Before doing so, however, it is convenient here to note the relevant principles where there is an application to vary or amend a court’s judgment or orders.

Relevant principles

19. As evident from the portions of the amended notices of motion extracted above (and the transcript at T 8; 13/4/21), the jurisdiction here invoked by the Deiri interests is variously that under rr 36.16(3A) and 36.16(1) of the UCPR, and the inherent jurisdiction to supplement the reasons of the Court. No one here suggests that there is not such a jurisdiction capable of exercise in the present case.

20. However, it has been said in a number of cases that the purpose of the jurisdiction to vary judgments is not to permit parties to re-agitate arguments or to have a rehearing; and that it is not to be utilised as an appellate process. Caution was sounded in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 (Autodesk) (to which both the Deiri interests and the Sayour interests, as well as CBA, have here referred) in respect of the exercise of the discretion when the application in question would have the effect of re-opening the matter to enable a re-hearing of matters already heard and adjudicated upon. Mason CJ (there in dissent but whose observations on this issue have been taken as seminal) observed at 303 that:

However, it must be emphasised that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases. [my emphasis]

21. Similarly, Brennan J, as his Honour then was, said in Autodesk (at 309):

It is one thing to reopen an appeal after judgment if the Court has reached a conclusion by adopting a proposition of fact or law which the unsuccessful party has not had an opportunity to argue. In that event, natural justice is denied and it can be said that the Court’s jurisdiction to hear and determine the matter is not exhausted. But that is not the present case. Here the ground on which the appeal was determined had been argued in the Courts below and had been the subject of submissions in this Court. The appeal was determined after it was fully heard. That being so, I find no jurisdiction to set aside the judgment already pronounced merely because it is submitted by the unsuccessful party that, on further argument, the Court would be satisfied that it had reached the wrong conclusion in law. [my emphasis]

22. In Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 (at [394E-F]) Kirby P, as his Honour then was, said:

... the jurisdiction to set aside an order and to allow [the applicant] a hearing is not a right but an ‘indulgence’. The reason for this cautious attitude is obvious. It is stated by Mason and Wilson JJ in their judgment [State Rail Authority v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38] to be the public interest in maintaining the finality of litigation. Otherwise, a determined or wealthy litigant could postpone final judgment and exhaust the rights and funds of his opponent by continuously denying the finality of the judgment and seeking to reopen disputes which that judgment was designed to close, at least so far as the courts were concerned.

23. A helpful encapsulation of those principles was set out in the summary by Barrett J, as his Honour then was, in New Cap Reinsurance Corporation Ltd v Grant [2009] NSWSC 950 (New Cap) at [20] (after having referred to the decision of Santow J, as his Honour then was, in Wentworth v Wentworth [1999] NSWSC 638):

It seems to me that these principles, as they apply in a case such as the present, can be summarised in one basic proposition, namely, that a single judge whose decision is susceptible to appeal through readily available channels (with or without any preliminary need for leave to appeal) should allow re­opening after judgment where it is obvious to that judge that the decision has miscarried and that the miscarriage may be rectified and the situation retrieved by attention to the matter by that judge rather than by an appeal court.

What is highly undesirable is that the first instance judge should be cast in the role of hearing what amounts to an appeal against his or her own decision. I adopt, in that connection, the following observation of Rix LJ in Compagnie Noga D’Importation et D’Exportation SA v Abacha [2001] 3 All ER 513:

I do not wish to say anything against the usefulness of the reconsideration jurisdiction, within its proper limits. I have made use of it myself. However, it is in the nature of the legal process that, once judgment has been rendered, analysis thereafter becomes clarified and refined, and citation of authority is applied to the findings made at first instance so as to illuminate that clarification and refinement of analysis of which I speak. But that is the function of the appeal process. In my judgment, to grant this application that I reconsider my judgment would subvert the appeal process itself. In doing so, it would not answer the interests of justice, but would be the antithesis of justice according to law. There are of course cases where an error of fact or law may be too clear for argument. The best test of that is perhaps — but not necessarily — where the judge himself identifies the error which concerns him. In such a case, it is better that the error is corrected without imposing on the parties the need for an appeal. But no parallel to Noga’s application has been cited to me. It is in my judgment wrong for a judge to be treated to an exposition such as would be presented to a court of appeal. If in such circumstances a judge should be tempted to open up reconsideration of his judgment, an appeal would not be avoided, it would be made inevitable. Every case would become subject to an unending process of reconsideration, followed by appeal, both on the issue of reconsideration and on the merits.

24. In Paul’s Retail Pty Ltd v Morgan [2009] NSWSC 1343 at [5], Barrett J referred to the above principles as being well settled. Rix LJ in the Compagnie Noga Case ([2001] 3 All ER 513 at [44]-[45]), had said, in a passage preceding that which was cited by Barrett J in New Cap:

In the present case Noga asks the court to reconsider its judgment because of the submission that it has got the answer wrong. In every case where an appeal is allowed, the court below has, by definition, got it wrong. The solution is to appeal. What is special, what is exceptional about this case? What are the strong reasons? It is not a case of an ex tempore oral judgment. The judgment here, whatever its defects, has been reserved and is the product of substantial reflection. It is not a case where a new binding precedent has immediately reversed the previous law so as to make a judgment simply unsustainable, as in In re Harrison’s Share. It is not a case where a judge has of his own motion immediately come to the conclusion that he is wrong, as in Millensted, or Pittalis (not perhaps a good example of judicial second thoughts), or In Re Australian Direct Steam Navigation Company (1876) 3 Ch D 661, where Sir George Jessel MR realised, after giving an oral judgment, that he had not had his attention directed to the crucial article in the company’s articles of incorporation. If this case is like none of those, what is it then? It is a case where it is said that the judge has got it wrong, on points which have been argued. The very issue for reconsideration is in dispute.

25. In New Cap at [22], his Honour distinguished between a case in which the application for leave to re-open was tantamount to an appeal and a case where it was not sought to disturb any of the court’s findings or reasoning “except to the extent that they have proceeded on a misapprehension” (there about the absence of differentiation between the two groups of defendants and the need to attribute to the respective groups the debts and payments relevant to particular years). His Honour there held that the new evidence sought to be tendered should be received and taken into account so that, in making its decision, the court could proceed upon a correct basis as regards those matters “and thereby remedy the effects of the misapprehension which caused the original decision to miscarry”. In Wentworth v Rogers [2002] NSWSC 921 Barrett J had noted (at [7]) three matters central to the jurisdiction to re-open: first, whether the party seeking to re-open has shown that, without accident or fault on the appellant’s part, he or she has not been heard on a relevant matter; second, whether there has been shown an error in the court’s reasoning because of a misapprehension of the facts; and third, whether there has been an error in the court’s reasoning because of some misapprehension of the relevant law (noting also that such a review had been allowed by Young J (as his Honour then was) in Twenty-First Australia Inc v Shade (Supreme Court (NSW), Young J, 31 July 1998, unrep) where an appeal to correct an inadvertent failure to deal in the judgment with important matters raised by Counsel would involve inevitable delay).

26. The propositions as to the difference between the appellate process and the correction of obvious misapprehensions of fact or law are here pertinent.

27. I note that reference was also made in various of the parties’ submissions on the present application to Aktas v Westpac Banking Corporation Ltd (No 2) (2010) 241 CLR 570; [2010] HCA 47 (Aktas v Westpac) where, at [6], French CJ, Gummow and Hayne JJ made clear that the discretion to re-open to vary a judgment should be sparingly engaged (and see Smith v NSW Bar Association (No 2) (1992) 176 CLR 256; [1992] HCA 36 at 265 per Brennan, Dawson, Toohey and Gaudron JJ). While it is not necessary that an applicant can show that he or she has, without fault on his or her part, not been heard on a particular matter, the fact that there has been a full opportunity to be heard will be a relevant consideration (so, for example, see the outcome in Aktas v Westpac).

28. It is also relevant to note (because at least one of the variations sought would squarely fall within the slip rule) what was said in the context of consideration of the scope of the “slip rule” in Mutual Shipping Corporation v Bayshore Shipping Co Ltd [1985] 1 WLR 625. There, at 633, Donaldson MR said that:

It is the distinction between having second thoughts or intentions and correcting an award or judgment to give true effect to first thoughts or intentions, which creates the problem. Neither an arbitrator nor a judge can make any claim to infallibility. If he assesses the evidence wrongly or misconstrues or misappreciates the law, the resulting award or judgment will be erroneous, but it cannot be corrected …. The remedy is to appeal, if a right of appeal exists. The skilled arbitrator or judge may be tempted to describe this as accidental slip, but this is a natural form of self-exculpation. It is not an accidental slip. It is an intended decision which the arbitrator or judge later accepts as having been erroneous.

29. In Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 (Storey & Keers), McHugh JA (as his Honour then was) said (at 449) in relation to the slip rule and the inherent jurisdiction to correct accidental slips or omissions:

The Courts of Common Law and the Court of Chancery had inherent power to correct any clerical mistake or error in a judgment or order if it was the result of an accidental slip or omission: Lawrie v Lees (1881) 7 App Cas 19 at 34-35. This power was an exception to the general principle that a party is bound by a judgment or order once it has been drawn up unless he can set it aside: Kinch v Walcott [1929] AC 482. But although the principle of the slip rule is clear enough in conception, its application in practice has often proved difficult. The dividing line between a mistake or error which is the result of an accidental slip or omission and a mistake or error which is the product of a deliberate decision has often been difficult to draw. The difficulty became much greater when it was decided that an error might be the result of an accidental slip or omission even though, because of the inadvertence of the party’s legal representative, the point was not raised at the hearing of the action: cf L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590 at 594-595.

30. At 453, his Honour noted that it is only omissions or mistakes which are accidental which can be rectified and said that the rationale of the slip rule requires that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist. (Similarly, in Brew v Whitlock (No 3) [1968] VR 504 at 506-507 the Full Court of the Supreme Court of Victoria (Winnecke CJ, Little and Gowans JJ) said that it was impossible to apply the slip rule where, on the application to correct the judgment, it was necessary to exercise an independent discretion.) At 453F, in Storey & Keers, his Honour postulated the test of accident as being whether, had the matter been drawn to the attention of the court at the time, the correction would “at once have been made”.

31. Finally, I note that, in the context of the slip rule, it has been accepted that, while what is sought is to ascertain the objective intention of the court, and subjective evidence of intention is not necessarily admissible (see Newmont Yandal Operations Pty Ltd v J Aron Corporation and Goldman Sachs Group, Inc (2007) 70 NSWLR 411; [2007] NSWCA 195 (Newmont Yandal) at [91] and [95] per Spigelman CJ (with whom Santow JA and Handley AJA agreed), some account may nevertheless be taken of the trial judge’s ex post facto observations (see, for example, Form-Quip Ltd v Trafalgar Properties Ltd (Supreme Court (NSW), Giles J, 19 July 1991, unrep). In Newmont Yandal, Spigelman CJ said (at [182]):

Satellite litigation and delay should be avoided with respect to both the inherent jurisdiction and the slip rule. I agree with Handley AJA that the judge who made the orders is overwhelmingly the preferable person to make the corrections. That s/he may be influenced by, and even express, her or his subjective intention is not a ground for disqualification.

32. With the above in mind, I turn to the respective applications for variation of the principal judgment.

Amended notice of motion in Broadway Proceedings

33. I deal first with the amended notice of motion in the Broadway Proceedings (the Broadway notice of motion); and I propose to approach the parties’ submissions sequentially in terms of the relief there sought.

Prayer [1](a) – $200,000 cheque dated 25 September 2013

34. Prayer 1(a) of the Broadway notice of motion relates to a $200,000 cheque dated 25 September 2013 drawn in favour of Plaza (which, it will be recalled, is an entity controlled by Moustafa and part of the Sayour interests).

35. Plaza pleaded in its fifth cross-claim (at [530]) that certain payments made by Investments constituted bribes. Investments pleaded that it made those payments to Plaza pursuant to genuine obligations, including an obligation to pay $2 million in addition to the $6 million purchase price for the Broadway Site (amended defence to fifth cross-claim at [18]). It is noted by the Deiri Parties that Investments further pleaded that a number of payments which were not pleaded by Plaza as constituting bribes (or as giving rise to any other liability) were paid pursuant to those obligations, including a payment made by cheque dated 25 September 2013 in the amount of $200,000 made out to “Broadway Plaza P/L” (amended defence to fifth cross-claim at [18](b)(iii)).

36. The Deiri Parties note that, in the Broadway Proceedings, they had sought (as factual finding #11) a finding that Investments paid the additional $2 million to Plaza (and they refer to their closing submissions at [408]-[413]). They point out that the $2 million payment included the payment of $200,000 by the cheque dated 25 September 2013.

37. It is noted that the $200,000 cheque dated 25 September 2013 was first referred to in the chronology of events set out in the principal judgment under the heading “Payments in September 2013” (see from [412]). At [413] I noted that:

On 25 September 2013, it appears that Mr Deiri gave Jamil a cheque for $200,000 and a letter stating that the payment was in full and final settlement in relation to the purchase price and confirming that all of the $8 million was now paid and no other moneys were owing.

38. I further noted that Investments’ position was that this was the “final land/costs payment” (the 13^th of 13 such alleged payments).

39. At [416]-[417], I went on to say as follows:

416.   I note that, also on 25 September 2013, Mr Deiri sent an email attaching a scanned copy of a cheque drawn on the account of Combined Property Investments Pty Ltd (CPI) addressed to Plaza in the sum of $200,000.

417.   It appears that this cheque was deposited to an unknown account.

[My emphasis]

40. At [1716], dealing with the submissions made by the Deiri Parties as to the proposed factual finding #11, I noted that:

1716. It is submitted that those payments were made by the following instalments: ... and on 25 September 2013, by cheque for $200,000 made payable to “Broadway Plaza P/L” (see at [416] above) and provided it to Jamil (though it is not clear where this cheque was banked).

[My emphasis]

41. In my determination as to proposed factual finding #11, I said (at [1727]):

1727. However, I do not accept that Jamil was expressly or impliedly authorised to direct that moneys (due to Plaza) be paid to himself. Accordingly, I consider that the sums paid on 15 August 2013 (of $150,000 payable to “Jamil”) (see at [372] above) and on 17 August 2012 also made payable to Jamil ($150,000) (see at [300] above); and on 25 September 2013 ($200,000) by cheque drawn in favour of “Broadway Plaza P/L”, which was provided to Jamil and which cannot be traced to any bank account in Plaza or Moustafa’s name(s)) (see at [416]) were not moneys received by Plaza; and I so find.

[My emphasis]

42. At [1728], I concluded that, of the amount agreed to be paid for the acquisition of the land, moneys totalling $650,000 could not be apportioned as payments to Plaza and there would be a balance owing by Investments. Pausing here, it is common ground (and I accept) that the amount of $650,000 was an arithmetical error (an egregious error on my part, I must accept – which I can only explain by reference to a slip in the course of the many amendments and revisions of judgment drafts that occurred in the preparation of the principal judgment). The total there set out should have been $500,000. (The principal judgment will at the very least be amended to correct this error under the slip rule.)

43. Insofar as there is a statement at [1727] (in the context of the finding that the $200,000 and other moneys were not moneys received by Plaza) that the cheque dated 25 September 2013 for $200,000 drawn in favour of “Broadway Plaza P/L” which was provided to Jamil cannot be traced to any bank account in Plaza or Moustafa’s names and was not money received by Plaza; and the statement at [1728] that that money “cannot be apportioned as payments to Plaza and there will be a balance owing by Investments”, the Deiri Parties seek (by prayer 1(a) of the Broadway notice of motion) a variation of the principal judgment, to reflect that the $200,000 paid by that cheque was in fact received by Plaza; and, further or in the alternative, that there be no finding that Investments is liable for that sum.

Deiri Parties’ submissions

44. The Deiri Parties say that there are two reasons for making those changes to the principal judgment.

45. First, they say that the $200,000 cheque was in fact deposited by Jamil into the CBA Partnership Account as a partnership contribution from Plaza, and that this sum was later paid out to Plaza and deposited into the Westpac 202 Account as a partnership distribution. It is noted that I found that the partnership distributions paid into the Westpac 202 Account were received by Plaza (see at [1775] of the principal judgment). The Deiri Parties say that the $200,000 was part of a larger payment of $2.9 million back to the Sayour interests as part of the profit by way of partnership distribution (see T 14.37); and that it follows that the $200,000 was also received by Plaza.

46. The evidence of these events to which the Deiri Parties point, in their submissions on the Broadway notice of motion, is as follows.

47. On 23 September 2013, Mr Deiri drew a cheque for $200,000 and caused it to be deposited into the CBA Partnership Account (referring to Mr Deiri’s affidavit sworn 26 November 2019 at [41]). It is noted that this is recorded in the bank statements for the account (the Deiri Parties here referring to Annexure D to Mr Deiri’s affidavit sworn 26 November 2019). Mr Deiri’s evidence is that he did so as a loan from Investments to the Partnership, and it is noted that that loan is recorded in the Partnership ledger (Mr Deiri’s affidavit sworn 26 November 2019 at [41], Annexure E).

48. On 25 September 2013, Mr Deiri emailed Jamil (the email referred to in the chronology of events at [416] of the principal judgment), attaching a copy of a cheque dated the same day drawn on the account of Combined Property Investments Pty Ltd, also in the amount of $200,000, made out to “Broadway Plaza P/L” (Annexure F to Mr Deiri’s affidavit sworn 26 November 2019). The Deiri Parties say that, in his email, Mr Deiri said that he had drawn the cheque in favour of Plaza as the balance of the moneys for the site (i.e., they say, the last portion of the $2 million owed to Plaza) and that he would be depositing the cheque into the CBA Partnership Account as a loan from Plaza; and that Mr Deiri there noted he had deposited an equal sum two days earlier as a loan from Investments.

49. The Deiri Parties point to Mr Deiri’s recollection that he did not himself end up banking the cheque referred to in his email to Jamil; rather, Mr Deiri says that he gave the cheque to Jamil. It is noted that the bank statements for the CBA Partnership Account record that, on 25 September 2013, that cheque was deposited into the CBA Partnership Account (Annexure D to Mr Deiri’s affidavit sworn 26 November 2019) (the Deiri Parties say that the cheque was evidently banked by Jamil). It is noted that the partnership ledger records the $200,000 deposit as a loan (using the narration “Biomed PL-loan from Bp”) (Annexure E to Mr Deiri’s 26 November 2019 affidavit), which the Deiri Parties maintain was a record of a loan from Plaza. (Biomed, it will be recalled, is a company associated with Moustafa.) The Deiri Parties submit that the initials “Bp” in this narration must be a reference to Plaza.

50. Mr Deiri deposed that, on 14 November 2014, the total loan contributions from Investments and Plaza were paid out (Mr Deiri’s affidavit sworn 26 November 2019 at [45]). As recorded in the partnership ledger, the repayment of Plaza’s loans totalled $2.19 million (Annexure G to Mr Deiri’s affidavit sworn 26 November 2019). The Deiri Parties say that this amount included the $200,000 Plaza had loaned on 25 September 2013. It is said that the repayment was by way of cheque dated 13 November 2014 in the amount of $2.19 million made out to “Sayour Family Trust” which was deposited into the Westpac 202 Account. As adverted to above, I found that Plaza received that payment ([1775] of the principal judgment). The Deiri Parties note that the partnership ledger records that Investments’ loans were repaid on the same date (Annexure G to Mr Deiri’s affidavit sworn 26 November 2019) (though the Deiri Parties say that $100,000 more was paid to Investments because it had loaned that much more to the Partnership (referring to Mr Deiri’s affidavit sworn 22 August 2019 at [232]).

44. Accordingly, the Deiri Parties contend that the evidence establishes that the $200,000 cheque dated 25 September 2013 made out to “Broadway Plaza P/L” was in fact received by Plaza; that it was given to Jamil in September 2013 and that the amount was then loaned to the Partnership to match Investments’ loan in the same amount made two days earlier; and that it was later repaid to Plaza.

45. The Deiri Parties say that the principal judgment should be amended as follows in this regard.

46. First, that [418] ([sic], this must surely be a reference to [416]) should be amended insofar as it refers to the cheque dated 25 September 2013 for $200,000 made payable to “Broadway Plaza P/L” having been deposited to an “unknown account”; that [1716] should be amended where it is recorded that it is not clear where that cheque was banked; and that [1727] should be amended where it is recorded that the sum of $200,000 paid by that cheque cannot be traced.

47. Second, that [1727] should be amended where it is recorded that the sum of $200,000 paid by cheque dated 25 September 2013 was not received by Plaza.

48. Third, that [1728] should be amended where it is recorded that the sum of $200,000 “cannot be apportioned as payments to Plaza and there will be a balance owing by Investments” to Plaza in respect of that amount.

49. The Deiri Parties say that, as a matter of justice, if the evidence is clear that the sum of $200,000 was received by Plaza (a premise with which the Sayour Parties cavil) then the principal judgment should be amended.

50. The second reason which the Deiri Parties proffer in support of their application for amendment of the principal judgment in relation to the $200,000 cheque (which they say applies in any event) is that [1728] should be amended where it is recorded that “there will be a balance owing by Investments” in respect of the $200,000 because Plaza made no claim for that amount (which they accept is a pleading point).

Sayour Parties’ submissions

58. The Sayour Parties note that Investments pleaded in its defence to the second cross-claim that a payment was made to Plaza of $200,000 by delivery of a cheque dated 25 September 2013; and they say that Investments bore the onus of proving its defence that the $200,000 (which Investments admits was given to Jamil) was received by or on behalf of Plaza as consideration for the $2 million agreement. The Sayour Parties say that, having failed to prove this amount was received by Plaza at trial, Investments now simply seeks to reargue something that has already failed for want of sufficient evidence.

59. Insofar as the Deiri Parties in their submissions on the motion (at [7]) assert that the $200,000 cheque was in fact deposited by Jamil into the CBA Partnership Account, the Sayour Parties say that there is no evidence to support this contention.

60. As to the contention that Plaza made no claim for specific amounts, the Sayour Parties say that this fails to take into account the pleaded defence and the matters expressly pleaded in the second cross-claim. The Sayour Parties point to the pleaded contractual promises to pay $6 million plus $2 million; and that Investments pleaded a defence of payment to the whole $8 million, upon which it has failed as to $500,000.

61. As to the evidence to which I was taken on the present application, the Sayour Parties point out that the ledger (at Annexure E to the affidavit of Mr Deiri sworn 26 November 2019) shows a $200,000 credit on 25 September 2013 with the narration “Biomed PL loan from BP”. The Sayour Parties say that if this is in the Partnership ledger recording that payment as a payment by Biomed by way of loan from Plaza, that is different from the suggestion now made that Plaza in fact contributed that money (see at T 61.19; 13/4/2021). Pausing here, the very fact that there might be an issue on the evidence as to what that payment by Biomed comprised is a powerful reason not to revisit the matter at this stage, particularly in light of the submissions that the Deiri Parties themselves made at the trial.

62. The Sayour Parties say that there is no evidence that the $200,000 cheque in question was a cheque which was deposited into the Westpac 202 Account and they emphasise that the submission that it was is a submission contrary to that which was made at the trial. (In oral submissions the Deiri Parties point to the coincidence of timing in relation to the $200,000 cheque referred to in Mr Deiri’s email and its deposit as evidenced in the material to which my attention was drawn on the present application.)

Conclusion on prayer 1(a)

63. I do not consider it appropriate to revisit the reasons in the principal judgment in relation to the destination of the $200,000 cheque.

64. As to the references in the principal judgment to the effect that it was unclear where the $200,000 cheque was banked (and which the Deiri Parties now want corrected), it would seem that any error on my part in that regard is one into which I was led by the Deiri Parties’ own submissions (and the Sayour Parties say that, on the authorities referred to above, for that reason that matter should not be revisited). Indeed the Deiri Parties accept that their own submissions were in error in this regard.

65. In this regard, reference was made to the written closing submissions of the Deiri Parties (dated 5 February 2020) at the hearing in which (at [409(f)]) reference is made to the 25 September 2013 cheque in question, including in footnotes 331 and 332 details of the cheque itself, the payor statement showing deduction and Mr Deiri’s affidavit of 22 August 2019 at [150]-[155] as to the provision of the cheque to Jamil. It is noted (correctly) by the Sayour Parties that the submissions include the statement (contrary to the submissions made on 13 April 2021) that “[i]t is not clear where this cheque was banked”. Similarly, in the table set out at [413] of those written submissions, summarising the payments comprising the $2 million that it was contended had been paid for the additional $2 million in associate costs in relation to the purchase of the land (see at [411]) the destination on the $200,000 cheque is recorded as being “unknown” (with court book references to 13/21182 and 13/21248). (Hence, the Sayour Parties say that the submission that the destination of the $200,000 cheque was the partnership bank account is a new submission (and one which is contrary to the submission made at trial).)

66. It was not made clear at the course of the hearing on the present applications whether in fact I was taken at the hearing to the bank statements and partnership ledgers to which reference has been made on the present application (see above). Moreover, if the suggestion is that I should have trawled through the bank statements and ledgers in order to reach a finding inconsistent with the Deiri Parties’ own submissions, that seems to me to be surprising to say the least. It was incumbent on the Deiri Parties, if they considered that there was evidence to support the conclusion that the $200,000 cheque had been banked in a Partnership bank account (and treated as a loan) to take me to the relevant material; not to make submissions that the destination of the cheque was unknown. I note in this regard that the Deiri Parties’ reply submissions continued to rely on the summary of payments included in their closing submissions (see footnote 11) and implicitly suggest that the destination of all of those payments was not in evidence, insofar as they state “in so far as the destination of these payments is in evidence, they were paid into bank accounts in the names of Moustafa and Jamil (the Westpac 202 Account) or Moustafa (the Westpac 238 Account) (referring in the footnote thereto, among others, to [413] in which, as noted above, the destination of the $200,000 cheque is recorded as unknown).

67. The clear inference from the above is that it was only after the principal judgment that it was appreciated by the Deiri Parties that there was in fact evidence as to the destination of the $200,000 cheque (albeit evidence to which it is not clear to me that I was taken during the course of the hearing). To the extent that there was a misapprehension of the facts (and I am not persuaded that the evidence to which I have been taken on this application necessarily shows that the $200,000 was traceable to the Westpac 202 Account), that misapprehension (in the words of Mason CJ in Autodesk), appears to be solely attributable to the neglect or default of the Deiri Parties who themselves characterised the destination of the $200,000 as unknown. While that, of itself, is not determinative of an application to vary (see Aktas v Westpac), it does mean that caution should be exercised, particularly where the Sayour Parties maintain that the evidence does not support the contentions now made as to the destination of the cheque. In those circumstances it is not appropriate to revisit this issue (and in the scheme of things the amount in question is hardly material).

68. As to the pleading point (the second reason put forward for the requested changes), I consider that in the context of the claim for relief contained in prayer 1(c) of the Broadway notice of motion (see below).

Prayer [1](b) – Two $150,000 cheques made out to “Jamil Sayour”

69. Prayer 1(b)(i) of the Broadway notice of motion seeks a variation of the principal judgment to reflect that two cheques (dated 17 August 2012 and 14 August 2013, respectively) each for $150,000 and made out to “Jamil Sayour”, were received by Plaza.

70. At [1727] of the principal judgment (which I have extracted above), I said that those cheques were directed by Jamil to be paid “to himself” and, accordingly, they were not moneys received by Plaza. The Deiri Parties point out that, at [1728] of the principal judgment, I concluded that those moneys not received by Plaza “cannot be apportioned as payments to Plaza and there will be a balance owing by Investments”.

Deiri Parties’ submissions

71. The Deiri Parties submit that [1727] and [1728] of the principal judgment should be amended for two reasons.

72. First, the Deiri Parties submit that these cheques were received by Plaza for the reasons in the Deiri Parties’ reply submissions at the trial (at [20]-[22]). The Deiri Parties say that it does not appear from the reasons in the principal judgment that those submissions were considered (albeit noting that there was a reference elsewhere in the principal judgment to the reply submissions – T 18.13), there being no express reference to those submissions. The Deiri Parties submit that those submissions should be considered. The submissions in contention are those extracted below:

20.   The only cheques not deposited into these accounts [seemingly a reference to the Westpac 202 Account and the Westpac 238 Account referred to at [18] of the submissions] were those made out to Jamil on 17 August 2012 and 15 August 2013 each for $150,000. For the same reasons outlined in the Deiri Closing Submissions at [1009], Plaza has failed to show the mere receipt of those funds was to Jamil’s benefit and not for Plaza. In this regard, the mere deposit of money into an account in Jamil’s name would not prove Jamil was acting otherwise than for Plaza when the two cheques were directed and received. The question is not whether the agent’s act benefited the principal. The principle is that an agent “must be acting ‘for’ the principal, since if there is authority to do the act it does not matter if the principal is benefited by it”: Lysaght v Falk Bros & Co Ltd (1905) 2 CLR 421 at 429-430 (Griffiths CJ). [Emphasis as per submissions]

21.   If (contrary to the Deiri Parties’ primary submission [citing the closing submissions at [1132]) Moustafa did not know of the payments to the Westpac accounts, the only logical inference is that he left it to Jamil to manage where moneys were to be deposited [there referring to the Deiri Parties’ closing submissions at [91], [205]-[206], [478]]. Moustafa gave no evidence that he instructed Jamil to direct payments to a specific account. Yet he knew moneys were being paid by Investments, because: Jamil told him [citing the Deiri Parties’ closing submissions at [168]-[172]]; he banked two cheques himself [referring to the Deiri Parties’ closing submissions at [455]-[483]]; and he never complained about missing payments.

22.   In those circumstances, the direction to pay and receipt of the two cheques for $150,000 was conduct for Plaza. If Jamil later applied the funds in an unauthorised way, that would not change the fact Jamil had initial authority to direct payment and receive and hold the funds. Moustafa cannot have it both ways: he cannot leave Jamil to decide where payments were to be made and held, and then complain years later that holding the funds in the “wrong” account was unauthorised.

73. Second, and in any event, it is said (akin to the pleading submission in relation to prayer 1(a)) and in what is acknowledged to be a pleading point – see T 18.50; 13/4/21) that [1728] of the principal judgment should be amended insofar as it is recorded that the sum of $300,000 in respect of the two cheques “cannot be apportioned as payments to Plaza and there will be a balance owing by Investments” because Plaza made no claim in respect of those amounts.

Sayour Parties’ submissions

74. The Sayour Parties note that [1727] and [1728] of the principal judgment, concerned the determination of proposed factual finding #11 contended for by the Deiri Parties in aid of its defence to the second cross-claim (namely, that Investments had paid the sum of $2 million to Plaza). The Sayour Parties say that the determination is predicated on the matters set out at [1705] and [1721], where I took the approach in effect that where Jamil had directed payments to be made to him (and, therefore, for his own benefit) such directions were not within any authority conferred by Moustafa or Plaza.

75. At [1705], I said, in the context of the determination of proposed factual finding #10:

1705.   In relation to this finding, I start from the proposition (which I have accepted above) that Moustafa left it to Jamil to manage the decisions of the Broadway Development and that he impliedly, if not expressly, authorised Jamil to direct where payments were to be made (other than for Jamil’s own personal benefit, which I cannot accept was within any authority conferred on Jamil by Moustafa); and to receive those payments in the sense of collecting and depositing cheques.

76. At [1721], I said:

1721.   The Sayour Parties say that Investments’ case in this regard depends on a finding that Jamil had authority to receive and direct payments. I consider that he did (other than insofar as he directed payments to his own account). I accept that the appropriations depend on alleged oral conversations and the letter of 25 September 2013 which Jamil countersigned to acknowledge payment of the full $8 million; that the conversations depend on the uncorroborated evidence of Mr Deiri; and that the 25 September 2013 letter depends on the case that Jamil had authority.

77. The Sayour Parties emphasise that the two $150,000 cheques were made out to Jamil (noting that the tables in the Deiri Parties’ closing submissions at [407] and [413] recorded as much). As to the first of the cheques, the table records the destination of that cheque as unknown (with a reference to CB 13/19514; 13/19512) and that the destination of the second cheque was to Jamil’s Westpac 490 account (referring to 13/20983; 13/20986).

78. The Sayour Parties say that there was a finding that Jamil’s authority did not extend to receiving cheques made out to himself; and that there is no occasion to alter the outcome in the principal judgment in that respect.

79. Insofar as the Deiri Parties (in their reply submissions at [16]) had submitted that “Jamil was not directing payments ‘to himself’”, the Sayour Parties say that insofar as this is to be understood as a submission of primary fact, it was not supported by the evidence. It is noted that Jamil was paid those amounts; that the cheques were addressed to him specifically; and that he deposited the cheques into accounts in his own name (and not, relevantly, into accounts associated with Plaza or Moustafa such as the Westpac 202 Account).

80. The Sayour Parties say that these were considered findings and dealt with the point that the Deiri Parties wanted to agitate. It is noted that the authority submissions were extensively considered in the principal judgment.

81. As to the first complaint by the Deiri Parties in this regard (that their submissions in reply dated 27 April 2020 at [20]-[22]) were not specifically referred to in the principal judgment, the Sayour Parties say that it does not follow that they were not considered. In this regard the Sayour Parties point to authority for the proposition that a trial judge is not required to spell out every detail of his or her reasoning process; rather the obligation is to expose the reasons for resolving a point critical to the contest between the parties (Nominal Defendant v Clancy [2007] NSWCA 349 at [124] per McColl JA (in dissent but where the majority at [14] expressly agreed with the proposition there stated).

82. As to the Deiri Parties’ second (pleading) complaint in this context, the Sayour Parties repeat their submission above.

Conclusion as to prayer 1(b) of the Broadway notice of motion

83. Insofar as it is suggested by the Deiri Parties (here and elsewhere) that I failed to consider their reply submissions, I can only say that my recollection is that I had regard to all of the submissions from all of the parties (opening, closing and reply submissions) when preparing my reasons and made copious notes in the context of the preparation of the numerous drafts of the principal judgment (albeit now shredded in accordance with my usual practice after delivery of the published reasons). However, I did not refer specifically in the reasons to every paragraph of one or more of those numerous sets of submissions (not least because I was conscious of the desirability of minimising the length of the judgment and had been deluged with submissions and other material in which there was some degree of repetition); and, relevantly, I accept that I have not referred expressly to the specific paragraphs to which the Deiri Parties have pointed. (Ironically, rather than being criticised for the length of my reasons, which is the more frequent occurrence, it seems to be suggested that in order to be comprehensive they should have been longer.)

84. My attention now having been drawn specifically to the paragraphs extracted above from the reply submissions, I remain of the view that Jamil was not authorised to direct and receive payments in his own name (which I consider to be the significant factor here) and I do not accept that payments made to Jamil personally and not deposited into the Partnership bank account can be said properly to have been authorised or for the benefit of Plaza. What is apparent from the extracted submissions is that there was copious reference therein to the closing submissions as to these matters (and the Deiri Parties make no complaint that I have failed to address those submissions).

85. As to the pleading point, again I address this below in the context of the relief sought in prayer 1(c).

Prayer [1](c) – $650,000 “owing by Investments”

86. Prayer 1(c) of the Broadway notice of motion seeks a variation of [1728] of the principal judgment, in which I said that “of the amount agreed to be paid for the acquisition of the land”, $650,000 “cannot be apportioned as payments to Plaza and there will be a balance owing by Investments”. The Deiri Parties note that that conclusion was based in part on the fact that the cheque for $200,000 dated 25 September 2013 made out to “Broadway Plaza P/L”, and the two cheques for $150,000 made payable to “Jamil Sayour”, were not received by Plaza (see the submissions as to those matters above). As noted above, it is common ground that the sum of $650,000 was an arithmetical error and (on the basis that the Deiri Parties’ present contentions in relation to prayers 1(a) and (b) are not accepted) should be $500,000.

827. The Sayour Parties say that, in a case where there are many cross-claims, and various results between the different claims, it will be difficult on assessment to apportion costs between the different claims; and that it is a case where the appropriate approach, to avoid delay and complication, is to make a broad evaluation of the overall costs to be recovered. Insofar as the Deiri Parties have proposed a lump sum order be formulated (after directions for preparation for the hearings in April had already been made), the Sayour Parties complain that they have not adduced the necessary evidence, nor otherwise explained how the conditions for such an order described in the authorities are established.

828. The Sayour Parties say that the Deiri Parties’ proposals would involve continuing the proceedings in this Court for an unspecified further period. The Sayour Parties say that this is not an appropriate approach to the litigation (and it is noted that it is not supported by any party outside the Deiri and Deicorp Parties).

829. Recognising that Plaza’s cross-claims have had much less than the desired result, but nonetheless some substantial success, the Sayour Parties submit that the appropriate order is that the Deiri Parties should pay 25% of Plaza’s costs incurred after 30 September 2016 (the date of the winding up order) up to 28 November 2019. (In respect of CBA, the Sayour Parties submit that the same approach be taken; but limited to 25% of Plaza’s costs of the first cross-claim.)

Determination as to costs of Broadway Proceedings

832. There is no dispute as to the costs of the Broadway Proceedings up to and including the date of the Partnership winding up order on 29 September 2016. I consider that, for the reasons put forward by the Sayour Parties the same order should be made in relation to costs to the date of filing of the first cross-claim.

833. As to the first cross-claim, Plaza should pay CBA its costs of the first cross-claim on the basis that CBA has substantially succeeded in the defence of that cross-claim (and, to the extent that Plaza was successful against CBA, the costs of that exercise were disproportionate to the relief claimed and do not warrant a deduction from the overall costs order). However, and subject to CBA’s foreshadowed special costs application, I would not order those costs on an indemnity basis. That is because I am not persuaded that, despite the very limited success, it was unreasonable for Plaza to seek an account of the sums that had been expended, particularly in the context of the partnership winding up in which the issue of an accounting for those costs arose.

834. As to the position vis-à-vis Investments, I do not accept that the first cross-claim was hopeless or raised groundless contentions (as the Deiri Parties contend). It arose in the context of a partnership accounting and there was a reasonable basis for Plaza to have had suspicion as to the amounts expended out of the CBA Partnership Account (and seems to have had little co-operation from Investments in determining the appropriate partnership accounting as far as I can see). Nor do I accept that the behaviour of Plaza was such as to warrant an indemnity costs order (as has been submitted).

835. To reflect the fact that there was substantial success on Investments’ part in relation to the claim, but noting also that Investments was necessarily required to be involved in the partnership accounting process, and taking a broad brush view of the matter, I consider that the appropriate order is that Plaza pay 50% of Investments’ costs of the first cross-claim.

836. As to the second cross-claim, as noted above, I consider that the appropriate order is that Plaza pay 80% of Investments’ costs of the second cross-claim on the ordinary basis.

837. As to the costs of the third cross-claim, I consider that these should follow the outcome of the second cross-claim since the third cross-claim only arose because of the second cross-claim.

838. As to the fourth cross-claim, I consider that, vis-à-vis HWLE, the general rule should follow, i.e., that Investments should pay HWLE’s costs of the fourth cross-claim.

839. However, I do not consider that Investments should pay HWLE’s costs on an indemnity basis. The submission by HWLE is that a special costs order is warranted because of the unreasonableness of the conduct of the parties in not acceding to the requests for separate determination of the issues relating to HWLE. I do not accept that it was unreasonable for the parties not to accede to such a regime. Indeed, it was debated in the context of various directions hearings before me and I did not consider it appropriate at the time for there to be a separate determination of the issues relating to HWLE. Even if the parties had agreed to this suggestion I would have been most unlikely to have acceded thereto. Further, accommodation was made in order to minimise the amount of time required for attendance in Court by HWLE’s representatives at the hearing. There was certainly no “relevant delinquency” that would give rise to a special costs order of the kind here sought in HWLE’s favour.

840. I do not accept that it is appropriate for there to be an order such that Plaza should be required effectively to bear, or to reimburse Investments for, those costs irrespective of the fact that Investments’ claim against HWLE was responsive in a practical sense to the second cross-claim.

841. The principles relevant to the making of a Bullock or Sanderson order need here to be considered in the context that Plaza was not itself a party to the fourth cross-claim. In effect what is sought, in circumstances where Plaza had no control over the bringing or conduct of the fourth cross-claim, is that it should be ordered (as the unsuccessful cross-claimant to the second cross-claim) to be responsible for the costs incurred by another party (HWLE) in defending a claim (which was not ultimately required to be determined but which I considered would have succeeded) that was brought against that other party by a cross-claimant seeking protection against claims made in that second cross-claim.

842. In that regard, I accept that Plaza’s claim no doubt precipitated both the rectification and penalty case in the third cross-claim and the bringing by Investments of the fourth cross-claim and that there was an inevitable overlap in those claims. However, that can be dealt with as part of the ultimate costs assessment process. I do not accept that it was unreasonable for Plaza to have brought the second cross-claim (albeit that it ultimately failed) and I do not consider that the fate of that claim was unarguable. Similarly, I accept that it was not unreasonable for Investments to bring the fourth cross-claim against HWLE. To the extent that HWLE’s participation in the proceedings was directed to resisting Plaza’s claim against Investments on the second cross-claim and supporting Investments’ rectification and penalty case against Plaza on the third cross-claim, again that is a matter that can be reflected in the overall costs assessment.

843. However, I do not consider that it is appropriate for Plaza to be exposed to two sets of costs for the conduct of the same defence; nor that it is appropriate to expose Plaza to the costs of a claim over which it had no control.

844. I have concluded that the ordinary rule that costs follow the event should here apply and that Investments should pay HWLE’s costs (but on an ordinary, not indemnity, basis). I do not consider that Plaza should bear the costs of the fourth cross-claim, which was instituted for Investments’ protection and in respect of which the limitation issues were apparent from the outset.

845. As to the fifth cross-claim and sixth cross-claim as noted above, costs should follow the event.

846. As to the seventh cross-claim, I consider that the Deiri Parties should pay CBA’s costs in accordance with the general rule. I do not accept that it is appropriate for the Deiri Parties and CBA respectively to bear their or its own costs; nor do I consider that Plaza should bear these costs. This was an independent cause of action and costs should simply follow the event. I accept the Sayour Parties’ submissions that they should not bear the costs flowing from misrepresentations by Mr Deiri.

847. As between CBA and the Kreisson Parties, each should bear its or their own costs, as suggested by the latter.

848. Finally, as noted above, I consider that Deiri Nominees should pay Plaza’s costs of the ninth cross-claim.

849. I consider below, in the context of both proceedings, the submissions in relation to a stay of the orders pending commencement of foreshadowed appeals and in relation to any applications for special costs orders or gross sum costs orders.

Costs in relation to Arncliffe Proceedings

850. The Deiri Parties say that it is common ground that Konstructions and Zapphire should pay Combined Projects Arncliffe’s costs of the claims against them (Deiri Parties’ proposed orders 12 and 13 and Sayour Parties’ proposed orders 27 and 28).

851. The Sayour Parties’ proposed costs orders are as follows.

27.   ORDER that Konstructions Pty Limited pay the costs of Combined Projects (Arncliffe) Pty Limited, including the costs of Sayour Holdings Pty Limited in suing on behalf Combined Projects (Arncliffe) Pty Limited, of the case against Konstructions Pty Limited.

28.   ORDER that Zapphire Investments Pty Limited pay the costs of Combined Projects (Arncliffe) Pty Limited, including the costs of Sayour Holdings Pty Limited in suing on behalf Combined Projects (Arncliffe) Pty Limited, of the case against Zapphire Investments Pty Limited.

29.   ORDER that Deiri Nominees Pty Limited and Fouad Deiri pay the costs of Combined Projects (Arncliffe) Pty Limited, Sayour Holdings Pty Limited, Moustafa Sayour and Jasmine Sayour of the proceedings.

30.   ORDER that the costs payable by Deiri Nominees Pty Limited and Fouad Deiri under Order 29 be assessable on the ordinary basis up to 28 November, 2019 and thereafter on the indemnity basis.

31.   ORDER that the requirement for security for the undertaking directed on 22 August, 2019 be now discharged.

32.   ORDER that the bank guarantee given by Westpac Banking Corporation and lodged with the Court on behalf of the Plaintiff be now returned to the Plaintiff. [Note this last order is unnecessary as the guarantee has already been returned.]

852. In the Arncliffe Proceedings, the Sayour Parties say that they (and Combined Projects Arncliffe) have had very substantial success and ought to have their costs paid by Mr Deiri and Deiri Nominees.

853. The Sayour Parties say that they have also demonstrated oppressive conduct and that they ought to have their costs of the Originating Process. They note that they have previously obtained had the relief they sought under s 247A of the Corporations Act. It is said that this provides further support for a costs order in their favour, as well as in favour of Combined Projects Arncliffe in respect of its costs. The Sayour Parties further suggest that it is discriminatory for the Deiri Parties want to confine any favourable costs order to the name of Combined Projects Arncliffe but to visit adverse costs orders on Sayour Holdings directly.

854. The Deiri Parties resist the proposition that they should pay the whole of the Sayour Parties’ costs of the proceedings (cf the Sayour Parties’ proposed order 29) in circumstances where there Sayour Parties have succeeded only in some but not all claims. Rather, the Deiri Parties say that they should pay only the costs of Combined Projects Arncliffe’s costs of the claims against them which have succeeded (i.e., Combined Projects Arncliffe’s costs of the claims against them in the first and third cross-claims – see the Deiri Parties’ proposed orders 11 and 19). (In my view, since the claims were maintained by Sayour Holdings in the name of Combined Projects Arncliffe, the costs orders should include Sayour Holdings’ costs.)

855. The Deiri Parties say that the Sayour Parties have been wholly unsuccessful against the Deicorp Parties and, for that reason, the Sayour Parties should pay the whole of their costs of the first cross-claim and second cross-claim (Deiri Parties’ proposed orders 14, 15, 17). The Kreisson Parties and Deicorp Properties support the Deiri Parties proposed orders 14 and 15 (namely that Sayour Holdings pay Deicorp Properties’ and Deicorp Constructions’ costs of the first cross-claim). They say that the claim against Deicorp Properties (see [4102]-[4188]) entirely failed and that there is no reason why Sayour Holdings ought not pay the costs incurred by Deicorp Properties (which was separately represented) in defending that claim. As to the claims against Deicorp Constructions, again it is said that those claims failed in their entirety (see [4189]-[4299]) and that there is no reason why costs would not follow the event.

856. The Deiri Parties propose (similarly to the order proposed in the Broadway Proceedings) an order (at order 20) that the matter be listed for directions with a view to setting a timetable for any affidavits and brief written submissions on the quantum of costs, with a view to costs payable being fixed in a lump sum or sums. It is submitted that this approach will be considerably more efficient and less costly than a protracted costs assessment process. The Kreisson Parties and Deicorp Properties support this submission.

857. As to the second cross-claim (see at [4319]-[4335]), the Kreisson Parties maintain that this was a defensive cross-claim, which was brought in order to protect against a circumstance in which Sayour Holdings (in its derivative claim in the name of Combined Projects Arncliffe enjoyed some success on the first cross-claim). It is said that the essence of this defensive second cross-claim was that Deicorp Constructions (or Deicorp) had delivered a valuable benefit to Combined Projects Arncliffe by having completed construction works (and complain that the Sayour Parties never really grappled with the difficulty as to the retention of the benefit of the construction work in circumstances where they wished to have the costs of that construction work reimbursed). It is submitted that Sayour Holdings ought to pay Deicorp Constructions’ costs of the second cross-claim.

858. As to the remaining parties, Zapphire did not dispute the interest calculation incorporated into the Sayour Parties’ proposed order 11 and did not oppose the final order in respect of Zapphire being in the form, or to the effect, of that proposed at order 7 of the Deiri Parties’ proposed orders or 11 of the Sayour Parties’ proposed orders. Zapphire did not oppose a costs order in the form of the Deiri Parties’ proposed order 13 or the Sayour Parties’ proposed order 28. Zapphire seeks a stay (as the Deiri Parties propose) of the orders to be made against Zapphire and adopts the Deiri Parties’ submission in support of the stay.

859. Konstructions did not contest the proposed orders.

Determination as to costs of Arncliffe Proceedings

860. As to the first cross-claim, the position in relation to Konstructions and Zapphire is not complicated. On the basis that costs follow the event, each of Konstructions and Zapphire should pay the costs of the cross-claim as against it.

861. I accept that the costs orders against the Deiri Parties should be more nuanced in circumstances where certain claims succeeded against one or more of them and others did not. I do not consider that the Deiri Parties should pay the entirety of the Sayour Parties’ costs of the first cross-claim. Nor do I consider that an exercise in apportionment of costs across the various issues in dispute will be an efficient way of reflecting the overall success on the issues raised on the first cross-claim. Rather, and again on a broad-brush impressionistic basis, I will limit the costs orders in favour of Sayour Holdings such that Deiri Nominees and Mr Deiri are liable to pay 80% of the costs of Combined Projects Arncliffe and Sayour Holdings of the first cross-claim (other than the costs of the belated tax/GST submissions).

862. I accept that Sayour Holdings should pay Deicorp Constructions’ and Deicorp Properties’ costs, since they successfully defended the claims against themselves.

863. As to the second cross-claim, costs should follow the event.

864. As to the third cross-claim, which I consider should be dismissed, I would again proceed on the basis that costs follow the event.

Both proceedings

865. First, as to the submissions made in relation to a gross sum costs order, it has been recognised that the discretion to make a gross sum costs order may be appropriately exercised in complex litigation where the costs assessment process could cause considerable expense and delay (see Idoport at [7]; Hadid v Lenfest Communications Inc [2000] FCA 628 at [24]). However, it can only be appropriate where the Court has “sufficient confidence in arriving at an appropriate sum on the materials available” and can exercise the power fairly between the parties (Idoport at [7]).

866. It is not possible, on the material before me, to determine whether such an order would be properly made. While it has been said that a gross sum costs order is particularly suited to complex litigation, in the present case I have my doubts as to whether the power would appropriately be exercised having regard to the manner in which the litigation has proceeded to date. However, if the parties wish to bring an application with the necessary material to enable a proper determination of this issue then that is a matter for them. I will make directions to enable such an application to be made. It will be dealt with (if made) on the papers (and with restrictions on the length of submissions and on the number of reply submissions permitted).

867. As to the question of any stay, as already noted, the parties have had ample time to consider the prospects of any appeal. I will allow no more than a 28 day stay.

868. The directions will also afford the opportunity requested for any special costs order applications (other than already made by HWLE).

Orders

869. For the above reasons, I make the following orders:

Broadway Proceedings

1. As to the costs, as between Broadway Plaza Pty Ltd (Plaza) and Broadway Plaza Investments Pty Ltd (Investments), of the Broadway Proceedings up to and including 29 September 2016 (the making of the Partnership winding up order), direct payment by the Receiver from the Partnership funds to each of Investments (the plaintiff) and Plaza (the defendant), respectively, for its costs assessed on the indemnity basis.

2. As to the costs of the Broadway Proceedings, from 30 September 2016 to the filing of the first cross-claim on 12 October 2017, again direct payment by the Receiver from the Partnership funds to each of Investments (the plaintiff) and Plaza (the defendant), respectively, for its costs assessed on the indemnity basis.

3. As to the first cross-claim, judgment for Broadway Plaza Pty Ltd (Plaza) against Commonwealth Bank of Australia (CBA) in the amount of $8,050.80, plus interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) from the date of the debiting of the amounts comprising that sum to the date of judgment, on terms that Plaza pay 50% of that amount to Broadway Plaza Investments Pty Ltd (Investments) within 7 days of receipt of the said sum.

4. Order Plaza to pay the costs of CBA of the first cross-claim and to pay 50% of the costs of Investments of the first cross-claim on the ordinary basis.

5. Otherwise dismiss the first cross-claim.

6. As to the second cross-claim, judgment for Plaza against Investments in the sum of $774,892.04 (being $500,000 plus interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) up to and including 16 April 2021), plus interest of $56.01 per day from 16 April 2021 to the date of payment of the judgment sum.

7. Otherwise dismiss the second cross-claim.

8. As to the costs of the second cross-claim, order Plaza to pay 80% of Investments’ costs of the second cross-claim on the ordinary basis.

1. Dismiss the third cross-claim.

2. Order Plaza to pay 80% of Investments’ costs of the third cross-claim on the ordinary basis.

3. Dismiss the fourth cross-claim.

4. Order Investments to pay HWLE’s costs of the fourth cross-claim assessed on the ordinary basis and fixed in a gross sum at $200,000.

5. As to the fifth cross-claim:

1. declare that the Matthews Street Unit Trust purportedly constituted under a purported deed dated 3 November, 2011 is void and of no effect and order that the purported Matthews Street Unit Trust Deed be delivered up to the Court for cancellation;

2. declare that the land comprised in Lot B, Deposited Plan 319465 known 14 Matthews Street, Punchbowl, in the State of New South Wales, is held by Matthews Street Pty Ltd upon trust for Plaza and Investments as tenants in common in equal shares;

3. otherwise dismiss the fifth cross-claim.

14. Order Plaza to pay the cross-defendants’ costs of fifth cross-claim on the ordinary basis.

15. Dismiss the sixth cross-claim.

16. Order Plaza to pay the costs of the cross-claimant on the sixth cross-claim on the ordinary basis.

17. As to the seventh cross-claim, judgment for (CBA) jointly and severally against the first cross-defendant (Mr Fouad Deiri) and the second cross-defendant (Investments) in the sum of $8,050.80.

18. Order Investments and Mr Deiri to pay CBA’s costs of the seventh cross-claim on the ordinary basis. As between CBA and the Kreisson Parties, those parties should bear its or their own costs.

19. Dismiss the eighth cross-claim.

20. Order that Investments and Mr Deiri pay the costs of the cross-defendants of the eighth cross-claim.

21. As to the ninth cross-claim, order that Matthews Street Pty Ltd be wound up and a liquidator be appointed (Mr Brett Stephen Lord) but stay this order for 28 days in order to give Plaza and Investments a final opportunity to reach agreement on an orderly process for the sale of the Matthews Street Property and the winding up of the company, failing which the order for winding up will automatically take effect 28 days from the date of these orders.

22. Order that Deiri Nominees pay Plaza’s costs of the ninth cross-claim on the ordinary basis.

23. Order that the appointment of the Receiver to the Broadway Partnership be discharged, following the application of the Partnership funds in accordance with these orders.

24. Direct the Receiver to the Broadway Partnership to apply the funds held in his capacity as Receiver as follows:

1. in discharge of any unpaid remuneration of the Receiver and any outstanding legal fees or disbursements in respect of the Receivership;

2. to each of Plaza and Investments its costs, assessed on an indemnity basis, of the Broadway Proceedings up to and including the date of filing of the first cross-claim;

3. as to one-half of the remaining funds (including any recoveries pursuant to the orders made in this proceeding) to each of Plaza and Investments.

25. Other than as reflected in these orders, dismiss the amended notice of motion filed on 12 March 2021 in the Broadway Proceedings.

Arncliffe Proceedings

1. Order that there be judgment for Combined Projects (Arncliffe) Pty Limited against Deiri Nominees Pty Limited and Mr Fouad Deiri jointly and severally for $9,169,240.37 (being $7,239,425.44 plus interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) from 4 April 2018 to and including 16 April 2021 of $1,097,636.01), plus additional interest from 16 April 2021 to the date of payment at the rate of $894.52 per day.

2. Order that there be judgment for Combined Projects (Arncliffe) Pty Limited against Konstructions Pty Limited in the sum of $9,126,791.31 (being $7,920,000 plus interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) from 30 March 2018 to 16 April 2021 ($1,206.791.31), plus additional interest from 16 April 2021 to the date of payment at the rate of $889.64 per day.

(2A)    Order that there be judgment for Combined Projects (Arncliffe) Pty Limited against Mr Fouad Deiri in the sum of $9,126,791.31 (calculated as per order 2) plus additional interest from 16 April 2021 to the date of payment at the rate of $889.64 per day, and that such liability be joint and several with the liability of Konstructions Pty Limited in order 2.

3. Order that there be judgment for Combined Projects (Arncliffe) Pty Limited against Zapphire Investments Pty Limited in the sum of $9,101,439.11 (being $7,898,000 plus interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) from 30 March 2018 to 16 April 2021 ($1,203,439.11), plus additional interest from 16 April 2021 to the date of payment at the rate of $887.17 per day.

4. Order that there be judgment for Combined Projects (Arncliffe) Pty Limited against Mr Fouad Deiri in the sum of $9,101,439.11 (calculated as per order 3) plus additional interest from 16 April 2021 to the date of payment at the rate of $887.17 per day, and that such liability be joint and several with the liability of Zapphire Investments Pty Limited in order 3.

5. Order that there be judgment for Combined Projects (Arncliffe) Pty Limited against Deiri Nominees Pty Limited and Mr Fouad Deiri jointly and severally for $6,130,393.14, plus additional interest from 16 April 2021 to the date of payment at the rate of $595.31 per day.

6. Order that there be judgment for Combined Projects (Arncliffe) Pty Limited against Mr Fouad Deiri for $2,103,573.54 (calculated as $1,560,000.00 plus interest pursuant to s 100 from 25 November 2014 to and including 16 April 2021 ($543,573.54), plus additional interest from 16 April 2021 at the rate of $175.23 per day. (Note that the amount of $1,560,000.00 is to be treated as a loan by Sayour Holdings Pty Limited to Combined Projects (Arncliffe) Pty Limited, such that its receipt by Combined Projects (Arncliffe) is to be dealt with in that way.)

7. Order that Combined Projects (Arncliffe) Pty Limited be wound up and appoint Brett Lord as liquidator.

8. Otherwise dismiss the fourth amended originating process and first cross-claim in the Arncliffe Proceedings.

9. Order that Deiri Nominees Pty Limited and Mr Fouad Deiri pay the costs of Sayour Holdings Pty Limited of the Originating Process (having regard to the finding of oppressive conduct and noting the relief granted in relation to the s 247A application by consent) on the ordinary basis.

10. As to the costs of the first cross-claim:

1. order that Konstructions Pty Limited pay the costs of Combined Projects (Arncliffe) Pty Limited, including the costs of Sayour Holdings Pty Limited in suing on behalf of Combined Projects (Arncliffe) Pty Limited, of the case against Konstructions Pty Limited;

2. order that Zapphire Investments Pty Limited pay the costs of Combined Projects (Arncliffe) Pty Limited, including the costs of Sayour Holdings Pty Limited in suing on behalf of Combined Projects (Arncliffe) Pty Limited, of the case against Zapphire Investments Pty Limited;

3. order that Deiri Nominees Pty Limited and Mr Fouad Deiri pay 80% of the costs of Combined Projects (Arncliffe) Pty Limited, including the costs of Sayour Holdings Pty Limited in suing on behalf of Combined Projects (Arncliffe) Pty Limited, of the first cross-claim (other than the costs referred to in (vi) below which should be borne in full);

4. order that Sayour Holdings Pty Limited pay the costs of the Deicorp Parties but only to the extent that those costs are separate from and specifically referable to the Deicorp Parties’ defence of the first cross-claim and their conduct of the second cross-claim;

5. order that Sayour Holdings Pty Limited pay Deicorp Properties’ and Deicorp Constructions’ costs of the first cross-claim;

6. order that Deiri Nominees Pty Limited and Mr Fouad Deiri pay the costs of Sayour Holdings Pty Limited of the post-hearing submissions in relation to the tax and GST issues raised and bear their own costs of those issues;

such costs to be on the ordinary basis.

11. Order that the second cross-claim be dismissed.

12. Order that Sayour Holdings Pty Limited pay Deicorp Constructions’ costs of second cross-claim on the ordinary basis.

13. Order that the third cross-claim be dismissed.

14. Order that Deiri Nominees Pty Limited and Mr Fouad Deiri pay the costs of Combined Projects (Arncliffe) Pty Ltd, including the costs of Sayour Holdings Pty Limited, of the third cross-claim on the ordinary basis.

15. Other than as reflected in these orders, dismiss the amended notice of motion filed on 12 March 2021 in the Arncliffe Proceedings.

Both proceedings

870. In both proceedings I make the following additional orders:

1. Stay the above orders for 28 days pending the commencement of any appeal from the principal judgment or this judgment.

2. Direct that any written submissions (not exceeding 2 pages) (and evidence) in support of any application for an order to vary any of the above costs orders to seek special costs orders or any application to seek a gross-sum costs order be filed and served within 7 days, with any response by parties to the other parties’ submissions (again not exceeding 2 pages) within 7 days thereafter, noting that such applications will be dealt with on the papers and that no further reply submissions will be permitted.

871. Finally, for completeness, I note that (apart from the correction of typographical errors) I have amended the principal judgment in the Broadway Proceedings as follows, pursuant to the slip rule and/or pursuant to the relief sought in the amended notice of motion:

1. Add to [417], [1716], [1727] words to the effect (Note: following publication of these reasons the Deiri Parties have informed the Court that, insofar as their submissions recorded as unknown the destination of the said amount or amounts, this was incorrect – see subsequent reasons.)

2. Amend [755] to delete words in parentheses.

3. Amend [1728] to delete “650,000” and replace with “500,000”.

4. Amend [2141] to include before the words “they are recoverable” the following words in parentheses “(subject to consideration of the matters raised by CBA)”.

5. Amend [4101] to delete the words in parentheses.

6. Amend [4431] to read “prayers 16-18” rather than referring to prayers 14-18.

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Amendments

03 December 2021 - Amendments to representation on coversheet and orders

Decision last updated: 03 December 2021