Chahal Group Pty Ltd v 7-Eleven Stores Pty Ltd

[2018] NSWCA 58

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Chahal Group Pty Ltd v 7-Eleven Stores Pty Ltd [2018] NSWCA 58
Hearing dates:	26 February 2018
Decision date:	27 March 2018
Before:	Basten JA at [1]; Gleeson JA at [32]; Emmett AJA at [33]
Decision:	Appeal dismissed with costs
Catchwords:	APPEALS – assessment of credibility by primary judge – whether primary judge erred in assessment of relative credibility of witnesses – whether primary judge gave weight to failure of the second respondent to explain motive of other witnesses – whether primary judge erred in failing to give sufficient weight to commercial motive of the appellant – whether primary judge erred in finding evidence of other witnesses was irrelevant
Legislation Cited:	Evidence Act 1995 (Cth) Fair Work Act 2009 (Cth) Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Cases Cited:	Balenzuela v De Gail (1959) 101 CLR 226; [1959] HCA 1 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hughes v The Crown (2015) 93 NSWLR 474 King v Collins [2007] NSWCA 122 Mastronardi v New South Wales [2007] NSWCA 54
Category:	Principal judgment
Parties:	Chahal Group Pty Ltd (ACN 149 138 278) (First Appellant) Shakir Ismail Chaudhry (Second Appellant) 7-Eleven Stores Pty Ltd (Respondent)
Representation:	Counsel: C Birch SC (Appellants) I M Jackman SC with T W Marskell (Respondent)   Solicitors: Norton Rose Fulbright Australia (Respondent)
File Number(s):	2017/163851
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2017] NSWSC 532 Date of Decision: 9 May 2017 Before: Sackar J File Number(s): 2016/304769

HEADNOTE

[This headnote is not to be read as part of the judgment]

Chahal Group Pty Ltd (Chahal) operated a 7-Eleven convenience store (the Store) under a franchise agreement with 7-Eleven Stores Pty Ltd (7-Eleven). On 6 October 2016, 7-Eleven served a notice on Chahal terminating the franchise agreement (the Termination Notice). The Termination Notice asserted that Chahal had acted fraudulently in connection with the operation of its business through operating a “cash back” scheme, whereby Mr Chaudhry, the director of Chahal, required two employees (Messrs Ali and Yasa) to pay back a proportion of their salary in cash.

Chahal commenced proceedings seeking a declaration that the Termination Notice was unlawful, because the events relied upon did not occur. The primary judge dismissed the proceedings. His Honour was satisfied that Mr Chaudhry implemented cash back arrangements with Messrs Ali and Yasa, and in doing so behaved fraudulently. The primary judge indicated that the proceedings turned on the credibility of Mr Chaudhry as against the credibility of Messrs Ali and Yasa, and preferred and accepted the evidence of Messrs Ali and Yasa.

On appeal, Chahal argued that the primary judge erred in:

(i)   finding that Mr Chaudhry had been deceitful regarding his financial circumstances;

(ii)    finding that Mr Chaudhry had been deceitful regarding his wife's financial interests, which influenced general findings as to Mr Chaudhry’s credit;

(iii)   giving weight to the failure of Mr Chaudhry to explain what motive, if any, 7-Eleven’s witnesses had for not telling the truth;

(iv)   concluding that Mr Chaudhry's evidence should be rejected because he had a commercial motive for winning the case;

(v)   giving no weight to the fact that 7-Eleven had a commercial interest in winning the case;

(vi)   finding that it was possible that a cash back practice was widespread;

(vii)   the manner in which he dealt with the evidence of Mr Howard regarding the bundle of bank notes;

(viii)   concluding that the evidence of two other 7-Eleven employees, Mr Abdullah and Mr Rafaqat, was irrelevant;

(ix)   failing to take into account and consider the evidence of inconsistent complaints regarding under-payment made by Mr Yasa.

Held, dismissing the appeal with costs:

In relation to (i)-(ii)

1. The primary judge made a mistake in relation to the income derived by Mrs Chaudhry from Bisma. However it is implausible that, had the sentence been corrected, it would have had any material consequence for the reasoning of the trial judge as to Mr Chaudhry’s credibility: [13]; [87].

2.   The primary judge’s finding that Mr Chaudhry had been deceitful regarding his financial circumstances was not without any evidentiary basis: [87] (Emmett AJA, Gleeson JA agreeing).

3.   The finding that Mr Chaudhry had been deceitful in relation to his wife’s financial interests did not improperly or erroneously contribute to the rejection of his evidence: [87] (Emmett AJA, Gleeson JA agreeing).

In relation to (iii), Emmett AJA, Gleeson JA agreeing

4. The questioning of Mr Chaudhry was not improper or inadmissible: [96]-[97].

In relation to (iv)-(v), Emmett AJA, Gleeson JA agreeing

5. It had not been demonstrated why Mr Ali and Mr Yasa had an incentive to give false evidence: [102].

In relation to (vi)

Per Basten JA:

6. There was clear support for a wider practice in the evidence of the 7-Eleven witnesses: [21].

7. The use made of the anonymous phone calls by the primary judge was illegitimate. However, this misuse can have had little impact on the assessment of the other evidence which supported the finding: [21]; [29].

Per Emmett AJA (Gleeson JA agreeing)

8. It is not clear what use the primary judge made of the anonymous phone calls. However even if his Honour erred, nothing turns upon the error: [124].

In relation to (vii), Emmett AJA, Gleeson JA agreeing:

9. The evidence of Mr Howard and Mr Roos was not the subject of any real challenge and was not sought to be excluded. On the other hand, Mr Chaudhry’s credit was the subject of a sustained attack: [119].

In relation to (viii):

Per Basten JA

10. If the statement that the evidence was utterly irrelevant related to an assessment of the credit of Messrs Ali and Yasa generally, the challenge had force. However, this passage was limited to their evidence in respect of the conversations with Mr Chaudhry: [17].

Per Emmett AJA (Gleeson JA agreeing)

11. The primary judge failed to explain adequately why the evidence of Mr Abdullah and Mr Rafaqat would be given little or no weight. However, the inconsistencies between the evidence do not bear on the truth of the assertions made by Mr Ali and Mr Yasa as to their conversations: [111].

In relation to (ix), Emmett AJA, Gleeson JA agreeing:

12. In the absence of any other evidence that might suggest that Mr Yasa was mistaken, this document should not have any bearing on his credit: [126].

Additional observations of Basten JA (Gleeson JA agreeing):

13. There were three critical elements in the present case: (a) there was no complaint that the trial judge misunderstood the law or erred in the reception or rejection of evidence; (b) it is entirely appropriate for an appellate court to have regard to whether the result was right or wrong in determining whether some error may have led to a substantial miscarriage of justice; and (c) demonstrating factual error in the reasoning of the judge in assessing the evidence will not of itself demonstrate that a substantial miscarriage has occurred: [10].

Judgment

1. BASTEN JA: Prior to 6 October 2016, the 7-Eleven convenience store at McGraths Hill near Windsor was operated by Chahal Group Pty Ltd under a franchise agreement with 7-Eleven Stores Pty Ltd. On that date, 7-Eleven terminated the franchise agreement.

2. On 12 October 2016 Chahal Group commenced proceedings in the Supreme Court seeking a declaration that the notice of termination was unlawful. It also sought consequential relief, including damages or a compensation order.

3. The sole director and shareholder of the Chahal Group, Shakir Ismail Chaudhry, joined as a plaintiff in the proceedings below. He was a party to the franchise agreement in the role of a “nominated director”. In effect he was jointly responsible for the obligations of Chahal Group under the agreement; whether he was entitled to a declaration, had the agreement been terminated unlawfully, is a moot point. It is difficult to see that he was entitled to any other relief. Although he joined as an appellant in the proceedings in this Court, the primary appellant was Chahal Group.

4. The trial was heard in the Equity Division in April 2017. On 4 May 2017 the trial judge, Sackar J, dismissed the proceedings. [1]

   1. Chahal Group Pty Ltd v 7-Eleven Stores Pty Ltd [2017] NSWSC 532 (“Chahal Group”).

5. The basis of the termination notice was that Chahal Group had acted fraudulently in connection with the operation of the business. The fraud, as particularised in the pleadings, was the involvement of Chahal Group in a scheme whereby two employees were nominally paid award wages, but were required to make a “cash back” payment so that their effective wage was well below the award rate. The two employees, Mr Yasa and Mr Ali gave evidence as to that arrangement, the circumstances of which were dictated to them by Mr Chaudhry. The issue for determination fell within a narrow compass, the trial judge stating:[2]

“As noted by counsel for both Plaintiffs … and the Defendant …, the findings will ultimately turn on the credibility of Mr Chaudhry as against the credibility of Messrs Ali and Yasa.”

The case was patently one turning on an evaluation of the credibility of the witnesses. [3] The trial judge believed Messrs Ali and Yasa and disbelieved Mr Chaudhry’s denials.

2. Chahal Group at [18].

3. Chahal Group at [26].

Nature of appeal process

6. While 7-Eleven carried the burden of establishing fraud at the trial, on the appeal Chahal Group faced the burden of overturning credibility findings in accordance with the principles established in Fox v Percy. [4] It is trite to say that this Court must acknowledge the disadvantage it faces “when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share.”[5]

   4. (2003) 214 CLR 118; [2003] HCA 22.

   5. Fox v Percy at [23].

7. What frequently happens in such cases is that the reasons of the trial judge are subjected to close scrutiny and each potential error is identified as a separate ground of appeal (or more than one such ground). That in fact happened in this case. The process which needs to be undertaken on such an appeal is described in the joint reasons in Fox v Percy in the following terms:[6]

“Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’.”[7]

6. Fox v Percy at [25].

7. The internal quotes were from The Glannibanta (1876) 1 PD 283 at 287, cited in Dearman v Dearman (1908) 7 CLR 549 at 564; [1908] HCA 84. Words in parentheses in Fox v Percy.

8. In approaching the matter on that basis, the appellants nevertheless faced a further hurdle; if they were to succeed in setting aside a result based on credibility findings, the only plausible consequence was a retrial of the whole proceeding. At least in principle, this Court must not order a new trial “unless it appears to the Court that some substantial wrong or miscarriage” has been occasioned by a relevant error, as required by r 51.53 of the Uniform Civil Procedure Rules 2005 (NSW). As the Court has noted in the past, the relationship between this rule and s 75A of the Supreme Court Act 1970 (NSW) is by no means clear. [8]

   8. Mastronardi v New South Wales [2007] NSWCA 54 at [74]; King v Collins [2007] NSWCA 122 at [8].

9. In accordance with the common law principle discussed in Balenzuela v De Gail,[9] the approach to be taken by the appellate court will depend upon the nature of the error identified. Balenzuela involved a jury trial where the High Court found that evidence relevant to an important question in the trial had been erroneously rejected, where the Court could not be satisfied that the jury might not have brought in a different verdict if they had heard the rejected evidence. Windeyer J stated: [10]

“General statements that new trials should not be lightly granted have been frequently made and are frequently quoted. … But such statements ought not to be read apart from the context in which they were made, or as meaning that an appeal court has in every case a complete discretion to grant or refuse a new trial. … There is a clear distinction between, on the one hand, applications for a new trial on the ground that the verdict was against the weight of evidence or because of discovery of fresh evidence or because the judge's summing-up was, in relation to the facts, insufficient, and, on the other hand, complaints of misdirection of law or wrongful rejection and reception of evidence. In the former cases a new trial is, within limits, a discretionary remedy to be applied only if the court thinks there has been a miscarriage of justice. But in the latter cases there has been an error in law; and the court must assume that it has, or may have, resulted in a miscarriage of justice, for a party has a right to have his case tried according to law.”

9. (1959) 101 CLR 226; [1959] HCA 1.

10.    Balenzuela at 243.

10. Applying this approach, there were three critical elements in the present case. First, there was no complaint that the trial judge misunderstood the law or erred in the reception or rejection of evidence. Secondly, unlike a jury verdict, it is entirely appropriate for the appellate court sitting on an appeal from a reasoned judgment to have regard to whether the result was right or wrong in determining whether some error may have led to a substantial miscarriage of justice. Thirdly, the demonstration of factual error in the reasoning of the judge in assessing the evidence will not of itself demonstrate that a substantial miscarriage has occurred. The appeal court should consider whether the error is clearly established, or merely arises as a matter of inference. In the latter case, the court would be cautious about inferring that a miscarriage has occurred because it lacks the advantage of the trial judge in assessing the witnesses. Further, in considering a fully reasoned judgment, the appeal court may be able to determine that a particular fact, mistaken by the trial judge, carried little weight (or great weight) in the overall assessment.

Errors in the judgment

11. The first point to note about the judgment, comprehensively summarised by Emmett AJA, is that there was no weak link in a single chain. Rather, the judge’s conclusion was reached by the acceptance of multiple strands of reasoning supporting an ultimate conclusion. With one exception, the judge expressly identified weaknesses in the evidence which he ultimately accepted.

12. Senior counsel for the appellants identified four aspects in the reasoning of the trial judge which were said to demonstrate material error.

(a)   Mr Chaudhry’s evidence as to his wife’s earnings

13. The first is the following statement concerning the business of a Caltex Service Station at Hoxton Park, run by a company of which Mr Chaudhry was a shareholder with his wife, who was the only director. The judge stated:[11]

“It is true that for the last financial year (2016) it made a profit of only a few thousand dollars. However the accounts reveal wages of $103,495 which Mr Chaudhry agreed would have been paid to his wife.”

The error identified by the appellants would have been cured had the words “some of” appeared before the word “which” in this statement.

11. Chahal Group at [244].

14. Emmett AJA has explained the context of the error, both in relation to the evidence and the judgment. It is implausible that, had the sentence been corrected in the manner suggested above, it would have had any material consequence for the reasoning of the trial judge as to Mr Chaudhry’s credibility.

(b)   discounting evidence of plaintiffs’ witnesses

15. Secondly, the appellants criticised the manner in which the trial judge dealt with the evidence of two witnesses, Messrs Abdullah and Rafaqat, called by them at trial. They said that they had never observed or participated in any system or arrangement involving cash back payments. [12] They were not cross-examined. The judge said:

“Having accepted Messrs Ali and Yasa in respect of the conversations they say they had with Mr Chaudhry, [the evidence of the plaintiffs’ witnesses] is utterly irrelevant.”

12. Chahal Group at [252].

16. The appellants submitted, in effect, that that passage should be read as involving a staged process of assessing witnesses, rather than assessing the credit of key witnesses by reference to all of the evidence which might be material. In other words, the evidence of the plaintiffs’ witnesses was only “irrelevant” if the evidence of Messrs Ali and Yasa had already been accepted. What should have happened, the appellants submitted, was that the plaintiffs’ witnesses, who were in a position to observe and might have participated in a cash back payment scheme, should have been considered in assessing the credibility of Ali and Yasa. It was, therefore, wrong to dismiss their evidence as “utterly irrelevant.”

17. If the statement related to an assessment of the credit of Messrs Ali and Yasa generally, the challenge had force. However, the very vehemence of the rejection of the relevance of the evidence suggests that this passage was directed to a different exercise, namely that revealed by the express limitation to their evidence “in respect of the conversations … with Mr Chaudhry”. It was these conversations which were central to the particulars of fraud on which the termination was based. Neither Mr Abdullah nor Mr Rafaqat denied those conversations. In circumstances where there is a degree of uncertainty as to the precise meaning of a passage in a judgment, and where there is a reasonable explanation consistent with a legitimate approach, as well as one consistent with an illegitimate approach, the court should not readily prefer the latter explanation. In the present circumstances, the legitimate explanation, which accords with the language used by the trial judge, should be accepted.

18. The appellants also complained that the trial judge failed to deal with an express denial by Mr Abdullah of a statement in Mr Ali’s affidavit that Mr Abdullah himself had placed a cash back payment in the safe. It is true that Mr Abdullah made that denial; however, the paragraph in Mr Ali’s affidavit containing the allegation had been rejected. [13] There was no conflict to be resolved.

    13.    Affidavit of Mr Ali, 1 November 2016, par 32; tcpt, 10/04/17, p 23(20).

(c)   finding of a “widespread” scheme

19. There was a second basis of complaint to which the evidence of Mr Abdullah and Mr Rafaqat was potentially relevant. The judge had stated, shortly before making the statement set out above:[14]

“There is no direct evidence on whether the practice existed more widely than these two employees, but I would be entirely unsurprised if it was not widespread at McGraths Hill 7-Eleven. However, for the purposes of this case, I am entirely satisfied Messrs Ali and Yasa are to be believed in their assertions about their specific Cash Back Arrangement with Mr Chaudhry.”

14. Chahal Group at [248].

20. The principal attack on this passage was that, although it was expressly treated as an aside and not relevant to the outcome of the case, it revealed an attack on Mr Chaudhry’s credibility, without supporting evidence. It may be accepted that the evidence of the plaintiffs’ witnesses, who said they were unaware of any cash back arrangement, was material as contradicting the existence of any universal fraudulent scheme. The evidence did not have the same weight if the issue had been limited to a scheme that was merely more widespread than Messrs Ali and Yasa.

20. However, the challenge to this specific passage was perplexing. There was in fact clear support for a wider practice in the evidence of the 7-Eleven witnesses, Mr Howard, Ms Johnson and Mr Roos. Further, it is implausible that it muted finding was treated as reflecting on Mr Chaudhry’s credibility in circumstances where it was not said to have any such effect, and where numerous other factors were expressly relied upon in assessing his credibility.

21. Although the possibility of a widespread practice was clearly put to one side in this passage, it was subsequently addressed further in relation to certain anonymous complaints discussed next.

(d)   anonymous complaints

23. The fourth issue relied upon by the appellants concerned the use made of Mr Roos’ evidence regarding “a number of anonymous phone calls alleging cash back schemes from people purporting to be employees of 7-Eleven franchises, including on several occasions from employees of McGraths Hill 7-Eleven.”[15]

    15. Chahal Group at [262].

24. This judge’s use of this evidence arose in a passage discussing the evidence of another 7‑Eleven auditor, Mr Howard, who found cash attached to a piece of paper with calculations on it consistent with the scheme described by Messrs Ali and Yasa. That cash, found on 26 August 2016 and referred to in the judgment as the “August cash”, was not linked to either Mr Ali or Mr Yasa. The judge found that that evidence “strongly corroborates the existence of a cash back scheme similar to” that alleged by Mr Ali and Mr Yasa. [16] The fact of the anonymous calls alleging the existence of such schemes was treated as further support for the evidence of Messrs Ali and Yasa.

    16. Chahal Group at [261].

25. In dealing with the admissibility of the paragraphs in Mr Roos’ affidavit reporting the anonymous phone calls, the judge admitted them as evidence of the fact of anonymous complaints, “but not as to the truth of the underlying materials”. [17] In short, the calls, which were duly recorded, were allowed in to explain what led supervisory staff at 7-Eleven to investigate the conduct of the franchisee at the McGraths Hill store. However, the fact of anonymous complaints did not provide supporting evidence for the existence of the cash back scheme, unless weight were given to the content of the complaints, namely that there was such a scheme in operation. In this regard, the use made of this evidence was illegitimate.

    17.    Tcpt, 10/04/17, p 60(36).

26. The question is whether it had a material effect on the approach adopted by the trial judge to the ultimate issue, namely acceptance of the evidence of Messrs Ali and Yasa. The judge said that the records of the calls “together with the August cash give me further satisfaction Messrs Ali and Yasa were subject to a similar cash back scheme, namely the Cash Back Arrangement with Mr Chaudhry.”[18]

    18. Chahal Group at [262].

27. The existence of the anonymous complaints should be seen in the context of earlier events. In October 2015 there had been publicity on television as to under award payments made at 7-Eleven stores by franchisees. 7-Eleven had responded by requiring that all wages be paid by head office and not by the franchisees. Franchisees provided timesheets to head office, together with bank account details for each employee. As a result, the only way in which the franchisee could reduce its wages bill by paying below award rates was to adopt a scheme whereby employees repaid money to the franchisee.

28. It is clear that the existence of a scheme extending beyond Mr Ali and Mr Yasa, the precise parameters of which were not established, was relied on by the trial judge in reaching critical findings. The evidence of Messrs Abdullah and Rafaqat demonstrated that the scheme was not operating universally with respect to all employees. However, the finding of cash in the safe which was not associated with payments to Ali or Yasa demonstrated that the scheme was not limited to them. The evidence of Mr Howard of finding cash in the safe in August 2016, together with the evidence of Mr Roos that there appeared to be bundles of banknotes in the safe at the time he served the termination notice on Mr Chaudhry supported such a finding. Both witnesses described furtive or obstructive behaviour of Mr Chaudhry; for example, Mr Roos said Mr Chaudhry tried to prevent him observing what Mr Chaudhry was taking from the safe.

29. In short, the evidence of there being cash back payments at the McGraths Hill store unassociated with Messrs Ali and Yasa was persuasive, disregarding entirely the anonymous complaints. The evidence of Messrs Abdullah and Rafaqat did not preclude or weigh significantly against such a finding. The misuse of the anonymous complaints can have had little impact on the assessment of the other evidence which supported the relevant finding. The error gave rise to no miscarriage of justice.

Other matters

30. Beyond the specific challenges addressed above, the appellants made additional complaints with respect to the manner in which the trial judge weighed the evidence going to the credibility of Mr Chaudhry on the one hand, and Messrs Ali and Yasa on the other. These complaints were all directed to the reasoning process of the trial judge in reaching findings as to credibility. They demonstrated no relevant error. Nor were the conclusions inconsistent with the objectively available evidence. Rather, the conclusions were reasonable and the reasoning persuasive.

31. For these reasons, the appeal should be dismissed; the appellants must pay the respondent’s costs in this Court.

32. GLEESON JA: I agree with Emmett AJA. I also agree with the observations of Basten JA concerning the nature of the appeal process in a case such as the present involving a challenge to the credibility findings of the primary judge.

33. EMMETT AJA: This appeal arises out of the purported termination by the respondent, 7-Eleven Stores Pty Ltd (7-Eleven), of a franchise agreement (the Franchise Agreement) between 7-Eleven and the first appellant, Chahal Group Pty Ltd (Chahal). Chahal and the second appellant, Mr Shakir Chaudhry (Mr Chaudhry), commenced proceedings in the Equity Division of the Supreme Court claiming, relevantly, a declaration that a notice served by 7-Eleven on Chahal dated 6 October 2016 (the Termination Notice) purporting to terminate the Franchise Agreement was unlawful because the events relied upon as giving rise to the claimed entitlement to terminate did not occur.

34. On 9 May 2017, for reasons published on 4 May 2017, a judge of the Equity Division (the primary judge) ordered that the proceedings be dismissed and that Chahal and Mr Chaudhry pay 7-Eleven’s costs of the proceedings. On 8 August 2017, Chahal and Mr Chaudhry filed a notice of appeal to this Court from those orders.

The Franchise Agreement

35. On 1 August 2011, Chahal, Mr Chaudhry and 7-Eleven entered into the Franchise Agreement, which was concerned with the operation of a service station and convenience store situated at McGrath’s Hill (the Store). It is necessary to say something about the relevant provisions of the Franchise Agreement.

36. The Franchise Agreement recited that 7-Eleven Inc (SEI) had developed a unique system for the identification, fixturisation, layout, merchandising and operation of extended hour retail stores (the 7-Eleven System) and that, in connection with the operation of stores pursuant to the 7-Eleven System, trademarks, trade names, copyrights, emblems, designs, labels, signs, symbols and indicia (the Trademarks) are used to identify and distinguish 7-Eleven stores and merchandise sold in them. The Franchise Agreement also recited that public acceptance of and a favourable reputation and substantial goodwill for stores operated pursuant to the 7-Eleven System and the Trademarks (the 7-Eleven Image) had been achieved. The Franchise Agreement then recited that Chahal, recognising the advantages of the 7-Eleven System and the 7-Eleven Image, wanted to acquire from 7-Eleven rights to participate in the use of the 7-Eleven System, the Trademarks and the exploitation of the 7-Eleven Image in connection with a business to be conducted at and upon premises situated at McGrath’s Hill (the Licensed Premises).

37. By Article 1 of the Franchise Agreement, 7-Eleven granted to Chahal and Chahal accepted the right and sub-licence to participate in the use of the 7-Eleven System and exploitation of the 7-Eleven Image in conjunction with Chahal’s operation of the Store at the Licensed Premises. 7-Eleven agreed to provide to Chahal manuals, forms and other materials included in the 7-Eleven System (the Franchise Material). Chahal agreed to use 7-Eleven’s intellectual property only in the manner and to the extent specifically authorised by and permitted by 7-Eleven for the purposes of the Franchise Agreement and agreed not to use the intellectual property in any manner that could jeopardise the 7-Eleven Image. Chahal also agreed that it would diligently promote the business of the Store and would cause the Store to be operated in accordance with the 7-Eleven System and the Franchise Material in a manner that enhanced the 7-Eleven Image.

38. By Article 2, 7-Eleven conferred upon Chahal “leave and licence to enter upon be in and use the Licensed Premises” solely for the purposes of operating the Store at and upon the Licensed Premises in accordance with the Franchise Agreement and for no other purpose. Article 2 provided that Chahal’s rights under the Franchise Agreement in respect of the Licensed Premises were to rest in contract only and that nothing contained in or done pursuant to the Franchise Agreement was to create in or confer upon Chahal any tenancy or estate or interest whatsoever in or over the Licensed Premises. 7-Eleven was to have the right to vary the terms of the contractual licence contained in Article 2 upon service of reasonable notice on Chahal.

39. Under Article 9, Chahal designated Mr Chaudhry to receive instruction in the operation of the Store at the Licensed Premises. Chahal agreed to provide employees with adequate on-going training in relation to the use of any machinery and all safety and security systems in the Store.

40. By Article 18, 7-Eleven had the right and, at its expense, the obligation to prepare and maintain complete bookkeeping records on the operation of the Store. By Article 19, 7-Eleven was required to provide Chahal with financial records pertaining to the Store. Article 20 provided that 7-Eleven would prepare and provide to Chahal payroll money for Chahal’s payroll for the Store. By Article 21, the parties acknowledged that periodic, physical audits would be necessary to account properly for Chahal’s operations. Chahal was required to prepare the Store for a physical audit in accordance with procedures demonstrated by 7-Eleven.

41. By Article 22, Chahal was to pay 7-Eleven a proportion of gross profit as defined in an exhibit to the Franchise Agreement. However, Chahal was to be entitled to a minimum sum and the proportion payable to 7-Eleven was to be reduced if necessary to ensure the minimum payment.

42. The term of the Franchise Agreement was 10 years. However, Article 25 provided, relevantly, that the Franchise Agreement could be terminated immediately by 7-Eleven at any time upon the occurrence of certain events, each of which Chahal acknowledged constituted good cause for immediate termination. One of the events specified was that Chahal or Mr Chaudhry (as a nominated director) was fraudulent in connection with the operation of the Store, which included “fraudulent behaviour” as defined in an exhibit to the Franchise Agreement. Chahal and 7-Eleven agreed that the things so defined as “fraudulent behaviour” were fundamental to the business efficacy of the Franchise Agreement and the trust and confidence reposed in each party by the other party.

Termination of the Franchise Agreement

43. From 22 December 2011 to 6 October 2016, Chahal and Mr Chaudhry operated the Store under the Franchise Agreement. From 7 January 2016 to 7 February 2016, Chahal employed Mr Rajavardan Yasa (Mr Yasa) at the Store. From 21 January 2016 to 20 July 2016, Chahal employed Mr Syed Faizan Ali (Mr Ali) at the Store.

44. On 6 October 2016, 7-Eleven delivered the Termination Notice to Mr Chaudhry. In the Termination Notice, 7-Eleven relied upon two grounds. First, the Termination Notice asserted that Chahal had acted fraudulently in connection with the operation of its business from the Licensed Premises in that, with intent to achieve an underpayment of wages to its staff and/or to mislead relevant Government departments as to the actual amounts paid as wages, Chahal paid or purported to pay staff at the rates prescribed by the applicable Award but in contravention of the Fair Work Act 2009 (Cth) Chahal required those staff to make cash refunds to it of part of the amounts so paid. The Termination Notice asserted that the purpose, intent or effect of the arrangements for the payment of staff described was:

• to achieve a payment of wages to staff that was not in accord with that prescribed by the Award and which in consequence was in breach of the Fair Work Act 2009;

• to render inaccurate the payroll records of 7-Eleven in so far as they record or purport to record the actual amount of wages paid to staff; and

• to minimise the risk of detection by 7-Eleven or relevant Government departments of the fact that staff were actually being paid less than the rates prescribed by the Award, as might be revealed by inspection or review of other records relating to actual attendance at Chahal’s premises.

The Termination Notice asserted that, by reason of the matters alleged, Chahal had acted fraudulently in connection with the operation of the franchise business and 7-Eleven was entitled to terminate the Franchise Agreement.

45. The second ground cited in the Termination Notice was that Chahal, by continued operation of the Store, was likely to cause substantial damage to the reputation of 7-Eleven.

46. In its defence filed in the Equity proceedings, 7-Eleven particularised the fraudulent conduct relied upon to support the Termination Notice as follows:

(a)   between January 2016 and July 2016, Mr Ali was a casual employee of Chahal;

(b)   between January 2016 and February 2016, Mr Yasa was a casual employee of Chahal;

(c&d)   at all relevant times, the applicable award (The Award) classified both Mr Ali and Mr Yasa as console operators;

(e)   in accordance with the Award, Mr Ali and Mr Yasa were entitled to be paid at different specified hourly rates for: ordinary hours worked on a Monday to Friday, ordinary hours worked on a Saturday, Sunday or public holiday, overtime hours worked on a Monday to Friday and overtime hours worked on a Saturday, Sunday or Public Holiday;

(f)   in accordance with the Award, Mr Ali and Mr Yasa were entitled to be paid at the hourly rates specified.

(g)   at all relevant times, Mr Chaudhry and Chahal knew of the requirements of the Award and that Mr Alia and Mr Yasa were legally entitled to be paid the hourly rates referred to above;

(h)   at all relevant times, the amounts paid to Mr Alia and Mr Yasa in respect of their employment by Chahal were received from 7-Eleven by way of weekly direct credits to nominated Bank accounts with the amount of the payments calculated by 7-Eleven based on information provided by Mr Chaudhry and Chahal on a weekly basis;

(i)   notwithstanding the knowledge possessed by him, Mr Chaudhry told Mr Ali that any amount paid to him as salary that was in excess of an hourly rate specified by Mr Chaudhry should be paid back by Mr Ali to Mr Chaudhry or Chahal;

(j)   during the period from January 2016 to July 2016 and in accordance with the direction from Mr Chaudhry, on or shortly after the payment of Mr Ali's salary by 7-Eleven, Mr Ali withdrew various cash amounts from automated teller machines, stapled a white piece of paper to some or all of the amount withdrawn, wrote "Faizan cash back" on that piece of paper and placed the cash amount with the piece of paper attached in the "Safe Drop" compartment of the safe located at the Store.

(k)   Mr Chaudhry then retrieved the money placed by Mr Ali in the “Safe Drop” compartment and retained it for his use and benefit and/or the use and benefit of Chahal;

(l)   notwithstanding the knowledge possessed by him, Mr Chaudhry told Mr Yasa that any amount paid to him as salary that was in excess of an hourly rate specified by Mr Chaudhry should then be paid back by Mr Yasa to Mr Chaudhry or Chahal;

(m)   during the period from January 2016 to July 2016 and in accordance with the direction from Mr Chaudhry, on or shortly after the payment of Mr Yasa’s salary by 7-Eleven, Mr Yasa withdrew various cash amounts from automated teller machines, stapled a white piece of paper to some or all of the amount withdrawn, wrote his name on that piece of paper and placed the cash amount with the piece of paper attached in the "Safe Drop" compartment of the safe;

(n)   Mr Chaudhry then retrieved the money placed by Mr Yasa in the “Safe Drop” compartment of the safe and retained it for his use and benefit and/or the use and benefit of Chahal.

Throughout the proceedings, 7-Eleven described this process as “cash back” arrangements.

Reasons of the Primary Judge

47. The sole issue in dispute before the primary judge was whether or not Chahal had engaged in the alleged fraudulent conduct described above. There was no dispute with the proposition that, if the conduct alleged had occurred, it would have constituted a serious breach of the Franchise Agreement and would have justified the giving of the Termination Notice. The primary judge recorded that counsel for all parties accepted that his Honour’s findings would ultimately turn on the credibility of Mr Chaudhry as against the credibility of Messrs Ali and Yasa.

48. The primary judge was satisfied that both Mr Ali and Mr Yasa did their best to provide honest and accurate accounts of the alleged cash back arrangements between them and Mr Chaudhry. He accepted their evidence on that key issue. Specifically, his Honour accepted that Mr Chaudhry made demands on both of them in the terms that they deposed to. That is to say, each was required to pay monies back to Mr Chaudhry out of their salaries every week, albeit using varied methodologies. His Honour was satisfied they did so as the result of the demands made by Mr Chaudhry because they wanted or needed employment and were fearful of Mr Chaudhry. His Honour was satisfied that from time to time they paid cash back to Mr Chaudhry by placing bank notes into the safe in the office to which they had access. His Honour was also satisfied that from time to time Mr Chaudhry went to the safe and took the monies out and used them to his own benefit. His Honour was entirely satisfied that Messrs Ali and Yasa were to be believed in their assertions about the arrangements with Mr Chaudhry.

49. Having noted that their versions of events were diametrically opposed in relevant respects and went directly to the issue of whether there were cash back arrangements as alleged, the primary judge preferred and accepted the evidence of Messrs Ali and Yasa over that of Mr Chaudhry. His Honour was convinced, in many respects, that Mr Chaudhry was not telling the truth and that he bullied both Mr Ali and Mr Yasa into agreeing, as a condition of their employment, to the cash back arrangements as alleged. His Honour said that that finding was not only informed by the evidence of those three key witnesses but also by the testimony of the six other witnesses. His Honour also considered that there were other largely circumstantial, objective factors that confirmed that the accounts of Messrs Ali and Yasa were to be believed and accepted.

50. The primary judge accepted that there were numerous imperfections in the stories of Mr Ali and Mr Yasa. First, there was no evidence that could prove directly that Mr Ali or Mr Yasa placed cash into the safe in the Store as they alleged. The only evidence was their own accounts and their respective banking records. His Honour observed that the banking records were, on one view, equivocal in so far as they show salary correctly calculated in accordance with the award rates being deposited in their bank accounts. However, neither of them kept a copy or any other document recording that they deposited monies into the safe as they asserted. Rather, both of them purported to nominate amounts in their respective bank statements as the withdrawals which were allegedly paid to Mr Chaudhry.

47. Secondly, his Honour observed that the methodology used by Mr Yasa and Mr Ali to calculate the cash back amount was slightly different and somewhat inexact. Mr Yasa indicated that he was to be paid at a particular hourly rate, but that that was clearly not related to the calculation he had to do for the purposes of paying money to Mr Chaudhry, where he was told to put half of his net salary back into the safe. Sometimes he rounded those amounts up and sometimes he rounded them down. His Honour held that it was clear that Mr Yasa did not attempt to put precisely one half of the money into the safe, as he said he was directed to do. Mr Ali, on the other hand, asserted that he was to be paid a fixed hourly rate and that, in calculating the amount to be repaid to Mr Chaudhry, he had to calculate the hours he worked, multiply the number of hours by that rate, and repay the excess. His explanation was complicated by the fact that he also rounded up or down and included overtime without any clear explanation of how he accounted for such work.

48. The primary judge considered that, while Messrs Ali and Yasa differed in the methodology they described, the mathematical outcome was, broadly speaking, the same. Thus, Mr Yasa calculated his alleged cash back amount by multiplying his hours worked by the reduced hourly rate, which led to close to half the amount he was paid. While his Honour accepted the calculation made by each of them to determine their cash back amounts differed, his Honour considered that the difference was diluted by the fact that the mathematical outcome of each calculation was broadly the same.

49. The primary judge observed that both Mr Ali and Mr Yasa had some difficulty in explaining precisely how they “cobbled together” the monies to repay Mr Chaudhry and still meet their living and other expenses. However, his Honour considered that a great deal of their difficulty arose from the fact that neither was entirely comfortable with the English language and both were considerably nervous when they gave evidence. His Honour observed that both are relatively young, Mr Yasa being 24 years old and Mr Ali 21 years old, with limited experience of the court system. His Honour considered that they were very much out of a familiar environment, and was satisfied that both were genuinely intimidated by, if not fearful of, Mr Chaudhry.

50. Further, the primary judge considered that the relationship between Mr Chaudhry, on the one hand, and Mr Iftikhar Pervaiz, on the other, was not an irrelevant consideration in the dynamic between Mr Chaudhry, on the one hand, and Messrs Ali and Yasa, on the other. Mr Pervaiz introduced each of them to Mr Chaudhry and both Mr Chaudhry and Mr Pervaiz would, his Honour considered, undoubtedly have come across to Messrs Ali and Yasa as well established and hugely successful economically in relative terms. His Honour was sure that Mr Chaudhry was more than able to set the agenda for any terms and conditions of terms of their employment.

51. The primary judge accepted that both Messrs Ali and Yasa wanted, and indeed needed, employment. They were on visas that limited their earning capacity. Both were engaged in university courses and needed to fund their day-to-day expenses, including, in Mr Ali's case, rent. His Honour considered that, against that backdrop, the deficiencies in the evidence of Mr Ali and Mr Yasa were plausible.

52. The primary judge rejected the case against Messrs Ali and Yasa put forward by Chahal and Mr Chaudhry. First, Chahal and Mr Chaudhry submitted that Messrs Ali and Yasa both had a motive to lie in order to support claims made by them for compensation under the Wage Repayment Program conducted by 7-Eleven. The claims were that they had been underpaid whilst working for Chahal. His Honour was not satisfied that either of them was less than candid or evasive about the claims made to the Wage Repayment Program. His Honour did not accept the fact of having made a claim as a realistic motive for giving false evidence.

53. The primary judge also referred to criticism made of Messrs Ali and Yasa that they did not seek clarification as to how to do the calculation in relation to the alleged cash back arrangements. In addition, it was submitted that neither Messrs Ali nor Yasa had made any objection to the payments or complained to Mr Chaudhry, even though they knew that the scheme was unlawful. His Honour was satisfied that the reason they did not complain or press for further clarification on the calculation was that they needed their wages and they were fearful of Mr Chaudhry, who, his Honour considered, overbore them. His Honour observed that both Mr Ali and Mr Yasa had voluntarily subjected themselves to the litigation in which they were asked to give evidence against their former employer, whom, his Honour was satisfied, they feared. His Honour considered that it was fanciful to suggest that either of them was deliberately lying about the central core of their evidence.

54. Mr Chaudhry did not impress the primary judge as a witness. His Honour found him to be both volatile and dishonest and was not convinced that, when he sought to put materials before the Court, especially concerning his financial position, he did so candidly. His Honour considered that Mr Chaudhry performed poorly in cross-examination, but that that was not attributable to any difficulty he had in understanding the questions. Rather, his Honour considered, such difficulties were because some of his answers were clearly evasive and deliberately so.

55. The primary judge referred to Mr Chaudhry’s approach to the Court when seeking expedition, which was underpinned by a “narrative of hardship”. His Honour considered that Mr Chaudhry’s failure to disclose his wife's interest in a Caltex service station at Hoxton Park, and failure to disclose the affairs of Bisma Pty Ltd (Bisma), the operator of the Caltex service station, were quite deceitful on his part. His Honour considered that Mr Chaudhry’s attempt to explain his ignorance in relation to his wife's “so called business” was entirely unacceptable. His Honour considered that Mr Chaudhry’s sensitivity and, at times, defensiveness, when he was confronted with the affairs of Bisma, were prime examples of deliberately evasive answers.

56. The primary judge found that the evidence supported the fact that Bisma was the owner of the Caltex service station at Hoxton Park, the turnover of which was in the order of $8 million. His Honour considered that Mr Chaudhry was well aware of both those facts although, for the last financial year in 2016, the Hoxton Park service station business made a profit of only a few thousand dollars. His Honour referred to the accounts of Bisma which revealed wages of $103,495. His Honour said that Mr Chaudhry agreed that that amount would have been paid to his wife. That was a mistake on his Honour’s part. I shall refer to that below.

57. The primary judge found that Mr Chaudhry played a central role in Bisma and had sought a loan of $495,000 on behalf of Bisma in early 2015 in order to allow it to complete the purchase of the Hoxton Park service station business. It was represented on Mr Chaudhry’s behalf that he would be playing a "big part" in the running of the business. His Honour was satisfied that Mr Chaudhry did in fact play such a part in assisting his wife run that business.

58. Mr Chaudhry denied the principal assertions made by Mr Ali and Mr Yasa. However, his Honour observed, Mr Chaudhry struggled to articulate any real explanation as to “where such assertions arose from”. His Honour said that Mr Chaudhry “just managed to stop himself” from articulating some form of conspiracy theory.

59. The primary judge accepted the contention advanced on behalf of 7-Eleven that Mr Chaudhry's motive for not telling the truth was more plausible than that of Messrs Ali and Yasa. Beyond the personal damage of being found fraudulent, Mr Chaudhry faced the loss of the Franchise Agreement for the Store, in which he had invested a large sum of money by way of a franchise fee. By August 2016, the Store was earning some $64,000 per week in revenue and Mr Chaudhry therefore had a great deal at stake. That motive, coupled by his defensive demeanour in Court and inability to do anything but deny the case advanced by 7-Eleven, satisfied his Honour that the evidence Messrs Ali and Yasa should to be preferred and accepted.

60. The primary judge concluded that those findings were more than adequate for the purposes of disposing of the proceedings. However, his Honour also referred to further circumstantial evidence that his Honour considered to be powerful in shaping his perception of Mr Chaudhry. The first category of such evidence concerned his conduct on occasions when 7-Eleven staff conducted reviews of the Store. His Honour considered that Mr Chaudhry’s attitude when he clearly perceived he was under investigation or audit was not explicable merely by reason of some personality trait.

61. Thus, the primary judge was satisfied that, when Mr Stephanus Roos visited the Store on 6 October 2016, Mr Chaudhry conducted himself so as to attempt to obscure from Mr Roos’ vision bundles of cash he took from the safe. When challenged, Mr Chaudhry reacted with hostility and insulted Mr Roos. Further, Mr Roos observed Mr Chaudhry opening the cigarette cabinet and putting one or two bundles of notes in his pocket with his left hand. When asked what he was doing he became extremely aggressive. His Honour did not consider that that was the behaviour of someone who is honest.

62. The primary judge considered that Mr Chaudhry was secretive and deceitful in not wanting to explain candidly the reason why the monies were in his safe. His Honour considered that Mr Chaudhry’s behaviour on that occasion was entirely consistent with his acknowledging that he did not wish to explain the presence of the cash in the safe. His Honour characterised that conduct as tantamount to an admission and was satisfied that Mr Chaudhry did not and could not give an honest explanation for why the monies were in the safe. His Honour considered that if Mr Chaudhry had nothing to hide and was able reasonably to explain the presence of the bundles of notes, he could easily have done so. His Honour found that at all times Mr Chaudhry fully appreciated how valuable the franchise was to Chahal and himself. His Honour considered that, if Mr Chaudhry had nothing to hide, he could easily and transparently have disarmed Mr Roos and others by “placing his cards face up on the table”. His Honour considered that Mr Chaudhry’s reluctance to do so was “telling”.

63. The primary judge also referred to earlier aggressive conduct when Ms Tracey Johnson visited the Store on two occasions in August 2016. On 5 August 2016, Ms Johnson, the NSW Retail Specialist Lead at 7-Eleven conducted an on-site payroll review of the Store. When inspecting the safe, Ms Johnson alleged she had witnessed Mr Chaudhry remove around $400 in notes from the “Smart Safe” cavity of the safe. On 8 August 2016, Ms Johnson attended the Store again. She met with Mr Chaudhry and told him she was there to change over his hard drive. Mr Chaudhry grabbed Ms Johnson by the upper left arm. His Honour considered that the hostility displayed by Mr Chaudhry on that occasion and on the occasion involving Mr Roos was more than just that of an indignant franchisee being unfairly or illegitimately harassed. His Honour was satisfied that the hostility displayed by Mr Chaudhry when Ms Johnson visited the Store twice, coupled with his hostility and his furtive conduct on 6 October 2016 with Mr Roos, indicated an acknowledgement by him that he was involved in underhand behaviour. That fortified his Honour’s view that the evidence of Mr Ali and Mr Yasa concerning the alleged cash back arrangements was entirely truthful and credible. His Honour was more than comfortably satisfied that Mr Chaudhry intentionally implemented the alleged cash back arrangements with Messrs Ali and Yasa and, in so doing, was behaving fraudulently in the relevant sense.

64. The second category of evidence was the alleged discovery of cash stapled to paper in the “Safe Drop” compartment of the safe at the Store by Mr Steven Howard, a NSW retail specialist at 7-Eleven. I shall refer to that below.

65. Finally, the primary judge referred to the evidence of two witnesses called by 7-Eleven, Mr Aymen Abdullah (Mr Abdullah) and Mr Raja Mashood Ur Rahman Rafaqat (Mr Rafaqat). Both men were employees of Chahal at the Store, and gave evidence that neither had observed nor participated in any system or arrangement involving cash backs. I shall refer to that evidence in detail below. The primary judge considered that the mere fact that both Mr Abdullah and Mr Rafaqat said that they never observed or participated in any system or arrangement involving cash backs had nothing whatsoever to do with what Mr Chaudhry was doing at the Store. His Honour observed that they were “hardly referees as to his integrity” and that their evidence simply established that they never saw him do it. His Honour said that, having accepted the evidence of Mr Ali and Mr Yasa in respect of the conversations they say they had with Mr Chaudhry, the evidence of Mr Abdullah and Mr Rafaqat was “utterly irrelevant”. The primary judge observed that there was no direct evidence on whether “the Practice” existed more widely than Mr Ali and Mr Yasa. His Honour said, however, that his Honour “would be entirely unsurprised if it was not widespread”. However, for the purposes of the case, his Honour was entirely satisfied that Messrs Ali and Yasa were to be believed in their assertions about their specific Cash Back Arrangements with Mr Chaudhry.

66. In the light of the conclusion reached by the primary judge, it was unnecessary for his Honour to deal with the remedies claimed by Chahal and Mr Chaudhry. However, his Honour dealt briefly with the remedies. First, his Honour would not have awarded specific performance. Further, his Honour would not have been satisfied that he had sufficient information to come to a satisfactory analysis of the actual losses occasioned by the termination of the Franchise Agreement, and would not have been in any position to have awarded any damages.

The appeal

71. Chahal and Mr Chaudhry assert that, in the resolving in the contest between the credibility of Mr Chaudhry, on the one hand, and that of Mr Yasa and Mr Ali, on the other, the trial miscarried because, in assessing the credibility, the primary judge relied upon a number of factual assumptions that they say were clearly incorrect and therefore could not have impugned the credit of Mr Chaudhry. They accept that, if they succeed in the appeal, on the primary issue of liability, the likely outcome must be a re-trial. In addition, they assert, his Honour rejected as irrelevant uncross-examined evidence of two corroborative witnesses, which they say, was probative and relevant. Further, they say, his Honour gave weight to alleged corroborative evidence of witnesses called by 7-Eleven without considering the defects and anomalies in that evidence and, thus, gave it a greater weight than it should have been accorded.

72. Chahal and Mr Chaudhry assert that, in consequence of the errors they say the primary judge made, his Honour’s assessment of the credit of Mr Chaudhry, on the one hand and Mr Yasa and Mr Ali on the other, was not appropriately determined and, to that extent, they did not receive a fair trial. They assert that the rejection of the evidence of Mr Chaudhry was erroneous and unfair.

73. The relevant grounds in the Notice of Appeal may be restated as follows:

• The primary judge found that Mr Chaudhry had been deceitful in his affidavit evidence regarding his financial circumstances, but his Honour's finding in that regard was based in part on error and was otherwise without any evidentiary basis (Ground 2).

• The primary judge’s finding that Mr Chaudhry had been deceitful in regard to the evidence concerning his wife's financial interests influenced his Honour's general findings as to the credit worthiness of Mr Chaudhry and improperly and erroneously contributed to the rejection of Mr Chaudhry's evidence (Ground 3).

• The primary judge erred in giving weight to the failure of Mr Chaudhry to explain what motive, if any, 7-Eleven’s witnesses had for not telling the truth (Ground 4).

• The primary judge erred in concluding that Mr Chaudhry's evidence should be rejected in favour of the witnesses of 7-Eleven because he had a commercial motive for winning the case, which was an inducement to give false evidence, while his Honour discounted without adequate reasons the commercial advantage that could flow to Mr Ali and Mr Yasa if they established that they had participated in cash back payments (Ground 5).

• The primary judge gave no weight to the fact that 7-Eleven likewise had a commercial interest in the winning of the case, where there was evidence that one of its agents had been seeking evidence to make a case for termination of the Franchise Agreement against Chahal (Ground 6).

• The primary judge erred in finding that, although there was no direct evidence on whether the practice of cash back payments existed more widely, it was possible that such a practice was widespread at the Store. That finding was strongly prejudicial to the credibility of Mr Chaudhry (Ground 7).

• The primary judge erred in concluding that the evidence of Mr Abdullah, adduced on behalf of Chahal and Mr Chaudhry, was irrelevant and was accordingly given no weight, when the evidence was relevant and probative of the case presented by Chahal and Mr Chaudhry (Ground 8).

• The primary judge erred in concluding that he could determine whether or not to accept the evidence of Mr Chaudhry, Mr Ali and Mr Yasa without taking into account the evidence of Mr Abdullah (Ground 9).

• The primary judge erred in treating the evidence of Mr Rafaqat as irrelevant to the determination of the matters in contest, when his Honour should have found that the evidence was truthful and probative in corroboration of the case advanced by Chahal and Mr Chaudhry (Ground 10).

• The evidence of Mr Abdullah and Mr Rafaqat was probative evidence in direct contradiction of the finding by the primary judge that it was possible that the practice of demanding cash backs from employees was widespread at the Store. Further, his Honour's consideration and acceptance that it was possible that the practice was widespread was a finding strongly adverse to the credit of Mr Chaudhry, and was without any evidentiary foundation in circumstances where the evidence showed that it was highly improbable that the practice was widespread (Ground 11).

• The primary judge erred in failing to take into account and consider the evidence of inconsistent complaints regarding under-payment made by Mr Yasa and in failing to consider that that was a reason for rejecting him as a reliable witness (Ground 12).

• The primary judge erred in the manner in which he dealt with the evidence of Mr Howard regarding the bundle of bank notes (Ground 13).

• The primary judge erred in finding that an order for specific performance ought not to be made, and further erred in not giving consideration to whether an order could have been made to restrain 7-Eleven from acting on its Termination Notice pursuant to s 237 of the Australian Consumer Law (Ground 14).

• The primary judge erred in finding that, if there had not been unlawful or improper cash back arrangements, the Court would nevertheless not make orders to restrain 7-Eleven from acting on the Termination Notice or treating Chahal as being in breach of the Franchise Agreement (Ground 15).

Financial Evidence

74. Grounds 2 and 3 relate to Mr Chaudhry’s financial circumstances. Mr Chaudhry swore three affidavits that were read and relied on at the trial, two in chief and one in reply. The first was sworn on 12 October 2016 in connection with an application by Chahal for interlocutory relief. The second was sworn on 27 October 2016 and corrected and expanded some of the material contained in the earlier affidavit.

74. The material relevant to the findings by the primary judge concerns Mr Chaudhry’s financial circumstances. His Honour was not convinced that in putting materials before the Court concerning his financial position, Mr Chaudhry did so candidly. His Honour considered that Mr Chaudhry’s failure to disclose his wife's interest in the Caltex service station at Hoxton Park and the affairs of Bisma was deceitful on Mr Chaudhry’s part. His Honour considered that his attempt to explain ignorance of his wife's “so called business” was entirely unacceptable.

75. 7-Eleven accepts that, in relation to one aspect of the affairs of Bisma, the primary judge was mistaken. His Honour recorded that the accounts of Bisma revealed wages of $103,495. His Honour said that Mr Chaudhry agreed that that sum would have been paid to his wife. That is incorrect. In fact, Mr Chaudhry did not agree that the whole of that sum would have been paid to his wife.

76. When asked whether the sum of $103,495 included wages paid to his wife, Mr Chaudhry said that the question would have to be asked to his wife. When asked whether he did not know, Mr Chaudhry asked, in reply, whether he had to answer the question. When told that he was required to answer the question, his response was:

“Yeah. She must have got wages from here.”

When asked how much of the $103,495 was paid to Mr Chaudhry’s wife, he said he did not know, not even roughly how much. When challenged as to whether that was an honest answer, Mr Chaudhry said that he may have figures concerning the Store at “top of my head” but he did not have figures concerning the Caltex service station. Mr Chaudhry confirmed that he had absolutely no idea in rough terms how much of the wages expense of Bisma was paid to his wife. He said:

“Maybe she is get, I don’t know, maybe she was getting for the whole lot of work she was doing there or some, I don’t know, but she was getting something.”

78. Thus, his Honour clearly erred in saying that Mr Chaudhry agreed that the whole of the sum was paid to his wife in wages. However, in circumstances where Mr Chaudhry and his wife were the only shareholders of Bisma and Mr Chaudhry’s wife was the only director and was the secretary of Bisma, his Honour made no error in concluding that Mr Chaudhry’s answers in relation to his wife’s income were entirely unacceptable.

79. Chahal and Mr Chaudhry contend that there is no reason to assume that Mr Chaudhry's wife worked even the majority of the hours when the Hoxton Park business was open, let alone the whole of those hours. They contend that there is no reason to assume that Mr Chaudhry ought to have known the amount of the wages that had been paid to his wife and that it is highly improbable that his wife had received the whole of that sum.

80. The accounts of Bisma for the year ended 30 June 2016 disclose a profit from ordinary activities before income tax of $6,239.60. Those results came from total sales in 2016 of in excess of $8 million giving a gross profit from trading of in excess of $690,000. However, total expenses exceeded $686,000, the most significant item of which was rent and land tax, of an amount in excess of $430,000. Wages was the second highest item.

81. Chahal and Mr Chaudhry assert that none of the answers given in cross-examination and none of the evidence produced, nor any inference available from that evidence, suggested that the picture of his financial affairs given Mr Chaudhry’s affidavits was false. In his first affidavit, Mr Chaudhry referred to amounts owing on loans from National Australia Bank Limited (NAB) and the monthly repayments on those loans. He said that the income that he received from Chahal represented the whole of his income, apart from rental income from two properties situated in Mt Druitt. He said that the only business of Chahal was operating the Store and that, if he was prevented from operating the Store, he would be unable to service the loans from NAB. He said that he had cash of approximately $2,000 and no other assets of any substance other than the two properties situated in Mt Druitt. Mr Chaudhry said that he was the primary financial supporter of his immediate family, which included his wife and their three children, aged from 1 to 4 1/2 years. He also asserted that he had additional financial obligations in Pakistan, which included supporting his elderly parents.

82. In his second affidavit, Mr Chaudhry corrected the statement that he had cash of approximately $2,000. The total should have been in excess of $3,000. He also referred to a joint “offset account” with NAB with a current balance of in excess of $44,000. In addition, Chahal had a Bank account with a balance of in excess of $20,000. In the second affidavit, Mr Chaudhry also referred to his 50% shareholding in Bisma which, he said, had never paid any income by way of dividends, wages or management fees and was “loss-making”. He said that he did not anticipate any income to be derived from Bisma in the near future. The accounts of Bisma demonstrated that that statement was not entirely accurate.

83. Chahal and Mr Chaudhry contended that the primary judge erred as follows:

• Only part of the sum of $103,495 for wages had been paid to Mr Chaudhry’s wife and Mr Chaudhry did not agree otherwise.

• Mr Chaudhry’s shares in Bisma did not constitute an asset of substance and, while those shares may have had prospects if the business did well in the years to come, they were of little net value and unsaleable at the time when the affidavits were sworn.

• None of Mr Chaudhry’s answers in cross-examination or any of the evidence produced suggested that the picture of his financial affairs given in his affidavits was false.

• The evidence regarding Mr Chaudhry’s wife’s business affairs rendered none of the evidence contained in either of the affidavits false or misleading and his Honour failed to explain the way in which the picture of his financial affairs involved a deceit of the Court or 7-Eleven.

• The finding that Mr Chaudhry’s ignorance of the amount of his wife’s income from the business to be entirely unacceptable could rest on nothing but a presumption that husbands must necessarily be fully conversant with the detailed financial affairs of their wives.

84. Chahal and Mr Chaudhry contend that nothing in the cross-examination of Mr Chaudhry should be seen to have impugned his credit. Nevertheless, the primary judge viewed the answers given by him, together with the affidavit evidence in relation to his financial affairs, as being a basis for substantial and serious findings that Mr Chaudhry was not a truthful witness.

85. 7-Eleven responds that the error in relation to a concession as to how much of the wages was paid to Mrs Chaudhry can fairly be charactered as “one of oversight”. The primary judge correctly described the evidence on which the finding was based, namely, that Mr Chaudhry admitted that his wife received some portion of the amount shown for wages in Bisma’s accounts but could not say how much. His Honour had earlier recorded that Mr Chaudhry had denied he received any wages from Bisma and did not know precisely what wages his wife drew from that business but accepted that she must have got some. His Honour observed that Mr Chaudhry was pressed but claimed that he had no idea how much his wife was drawing out of the business. In the light of that observation by his Honour, 7-Eleven contends that the mistake made by his Honour had no dispositive effect in that it does not matter whether Mr Chaudhry received the whole of the wages or only some of the wages. Acceptance that Mrs Chaudhry received some part of the wages provided a sufficient evidentiary basis for his Honour to conclude that Mr Chaudhry had not been candid in the disclosure of his financial position.

86. The only disclosure made in relation to Bisma was that Mr Chaudhry owned 50 shares of a total share capital of 100 shares, saying that Bisma had never paid any income to him and is loss-making. The value of Mr Chaudhry’s shares in Bisma was not the subject of any evidence. Whatever their value may be, the true nature of Bisma’s activities was not disclosed to the Court in any of his affidavits. The reason why such disclosure was required was to enable the Court to determine whether Mr Chaudhry derived any income from the activities of Bisma, whether directly or indirectly, in circumstances where it was represented to the Court that the dispossession of Chahal in relation to the Store was productive of financial hardship for Mr Chaudhry’s family as his only income was that generated by the Store.

87. While it is clear that the primary judge made a mistake in relation to the income derived by Mrs Chaudhry from Bisma by way of wages, the other matters referred to above indicate that Mr Chaudhry was less than entirely frank in the disclosures that he made in his affidavits. I do not consider that his Honour’s finding that Mr Chaudhry had been deceitful regarding his financial circumstances was without any evidentiary basis. I do not consider that his Honour’s finding that Mr Chaudhry had been deceitful in relation to the evidence concerning his wife’s financial interests improperly or erroneously contributed to the rejection of Mr Chaudhry’s evidence. It follows that grounds 2 and 3 must be rejected.

The motives of 7-Eleven witnesses

88. By Ground 4, Chahal and Mr Chaudhry complain that his Honour erred in giving weight to the failure of Mr Chaudhry to explain in evidence what motive, if any, Mr Yasa and Mr Ali had for not telling the truth. They assert that it was unfair and improper to permit Mr Chaudhry to be cross-examined as to his beliefs about why other witnesses were not telling the truth, and to determine the credibility to be attributed to Mr Chaudhry as a witness by having regard to the extent to which he was unable to speculate or suggest reasons for those witnesses not to have told the truth. They say that to the extent that the findings of his Honour rested upon answers given in cross examination of Mr Chaudhry, the finding relied upon improper questions that should have been disallowed because the questions called on Mr Chaudhry to speculate on the motives of witnesses or explain facts the existence of which he had denied[19] .

    19. See s 41(1) of the Evidence Act 1995 (NSW).

89. Mr Chaudhry was asked whether he had read Mr Yasa’s affidavit and seen his evidence of how he withdrew money and paid it into the “Safe Drop” compartment according to Mr Chaudhry’s instructions. He agreed that his only response to those assertions was to deny them. He was also asked whether he had read the affidavit of Mr Howard, relied on by 7-Eleven. Mr Chaudhry understood that Mr Howard is an employee of 7-Eleven. Mr Howard gave evidence that he attended at the Store in Mr Chaudhry’s absence and opened the safe, and that inside the safe he saw a piece of paper stapled to some cash. He took a photo of the cash sitting in the safe. He said that the paper stapled to the cash was white with a handwritten note on it. He took the handwritten note and cash and placed it on the floor in front of the safe where he took a photograph of it. He then put it back inside the safe and locked it. Mr Howard explained that the cash and stapled note could have been put into the safe without having a code to the safe by pulling down a lever located on the side of the safe, which opens a chute that leads to the bottom part of the safe. About half an hour later, Mr Howard re-opened the safe and took photos of the serial numbers on the cash.

90. Mr Howard said that, sometime thereafter, Mr Chaudhry came to the Store. He said that he explained to Mr Chaudhry the reason for his presence there. Mr Chaudhry left and returned after about 10 minutes, when he asked Mr Howard whether he had opened the safe. Mr Howard said that he had done so and that he needed to check “the change fund”. He said that he could not find the change fund so he closed the safe. Mr Chaudhry then retrieved the change fund from a locked filing cabinet and they counted the change together.

91. Mr Howard said that Mr Chaudhry came to the office later and showed Mr Howard the piece of paper that he had seen in the safe, but without the cash attached to it. Mr Chaudhry said that he did not know what the paper was. Mr Howard told him that he saw it in the safe so did not pay attention to it. When asked by Mr Chaudhry whether he took any photographs, Mr Howard said that he was only interested in the change fund. Clearly enough, Mr Howard was deceptive in those dealings with Mr Chaudhry. Mr Howard said in his affidavit that he did not reveal to Mr Chaudhry how he had obtained access to the safe and what he had seen. Nor did he disclose that he had taken photographs because he did not want Mr Chaudhry to know that he was being investigated. Further, Mr Howard did not want the store manager, Mr Mohammed Haris, who gave Mr Howard access to the office, to get into trouble.

92. In cross-examination, Mr Chaudhry was asked about the piece of paper and the reference to it in Mr Howard’s affidavit. He said that he had not seen the piece of paper until he read Mr Howard’s affidavit. He was then asked whether he had an explanation to offer the Court as to how the piece of paper and the cash were in the safe other than to deny that it was “a cash back”. Mr Chaudhry’s response was as follows:

“I don't know, I was arrived, the day Mr Howard were conducting this story, review, first that, first of all that is not his job description to check the safe, second thing is, I was not at the store at that time and 7-Eleven knew about this, this is very important information that they knew that I'm not at store because they have arranged my training on that day for a fuel training which happened annually and I was on the training and I was not present on the store and second thing is, it's point to be noted, this says 17 August 2016, and on site it says 14 August 2016 and Howard is claiming that this piece of paper he found in the safe on 26 August, was it sitting from 17 August 2016 until 26 August, that point to be noted and there is another piece of information I would like to give you, that is I think it is, they have a game plan against me, I was actually scheduled for a training a week prior, not on 26th. I was a week prior, I was scheduled for the fuel training and I missed that, okay, it seems like if I would have gone to training a week prior, that piece of paper could have been fine on that day, it says 17th, but, I missed that training, they rescheduled my training, they knew that I was going on training on 26 August and then the piece of whatever it says, 17 August, they may have like you know prepared a week ago and they put that on 26 August in my absence, without changing the date on it.”

93. Mr Chaudhry was then asked whether he was seriously suggesting that 7-Eleven had fabricated some evidence by depositing the piece of paper and the cash in the safe. The question and his response were as follows:

“Q.   Are you seriously suggesting, Mr Chaudhry, that 7-Eleven have fabricated some evidence by depositing that piece of paper and the cash in the safe as a complete fabrication? Is that what you're saying?

A.   I'm not saying 7-Eleven. 7-Eleven or any of their agent, or any of their agent contacting my staff, you know, they keep - everything was fine until December 2015, I was the - I was the absolute guy, like, you know, recommendations, letter of- like you know, great score, good friendly - like after this conflict ended and I got with them on a variation argument, they start harassing me, from January they start contacting my employees again and again they intrude, Terry Jones personally interviewed many people. He had included two reports in the - but where are the reports? I can show you the - my staff send me screenshot of his calls he made, what is all about, what you call it fabrication or any other name you want to give it to, you can - I have a whole bunch of screenshots sent to me by my staff that he is trying to call us, and now my colleague, if he has given affidavit in this proceedings, now Terry Jones is contacting his staff. His staff has forward screenshot to him as well. So whatever name you want to give it, you can - I think that's enough explanation.”

94. A witness should not be asked to comment on the evidence of another witness, in the sense of being asked to provide an explanation as to why the first witness considers that the evidence of the second witness differs from the evidence of the first witness. Apart from anything else, that would be opinion evidence that would be inadmissible without compliance with s 79 of the Evidence Act. However, it is not inappropriate to ask a witness about an allegation and to seek a response to the allegation. Thus, the response might be that what was alleged never happened. Alternatively, it might be that, something of that nature occurred but that the action has been misinterpreted[20] .

    20. See Hughes v The Crown (2015) 93 NSWLR 474 at [277] and [278].

95. Chahal and Mr Chaudhry complain that the finding by the primary judge that Mr Chaudhry struggled to articulate any real explanation as to the source of the assertions by Messrs Ali and Yasa, and just managed to stop himself from articulating some form of conspiracy theory, was unfair to Mr Chaudhry because Mr Chaudhry was under no obligation to articulate an explanation as to why the witnesses called on behalf of 7-Eleven had given the evidence that they had. They assert that the tone of his Honour’s reasons suggest that his Honour considered that it was discreditable for Mr Chaudhry to have suggested the possibility of fabrication or collusion between 7-Eleven witnesses. They say that the whole of the cross-examination revealed Mr Chaudhry was reluctant to offer theories or to attack 7-Eleven, but that he was goaded into such evidence by the cross-examiner and then criticised by his Honour when he provided the evidence. That, they say, was significantly unfair to Mr Chaudhry.

96. I do not consider that the questioning of Mr Chaudhry was in any way improper or inadmissible. In that regard, it is significant that Chahal and Mr Chaudhry were represented by Senior Counsel who took no objection to the line of questioning.

97. Mr Chaudhry was being asked to explain how it might be that Mr Howard found in the safe the piece of paper and cash to which it was stapled. He was not being asked why Mr Howard might have said what he did. He was not asked why Mr Ali or Mr Yasa said what they said in their affidavits. In relation to the evidence of Mr Yasa, the cross-examination simply sought confirmation that Mr Chaudhry’s only response to the evidence was to deny it. In relation to Mr Howard’s evidence, he was being asked whether he could explain the piece of paper and cash found in the safe. Ground 4 has not been made out.

Motive

98. Grounds 5 and 6 are that the primary judge erred in concluding that Mr Chaudhry’s evidence should be rejected in favour of Messrs Ali and Yasa because Mr Chaudhry had a commercial motive for winning the case, which was an inducement to give false evidence, while his Honour discounted, without adequate reasons, the commercial advantage that could flow to Mr Ali and Mr Yasa if they established that they had participated in cash back payments. Chahal and Mr Chaudhry assert that his Honour gave no weight to the fact that 7-Eleven likewise had a commercial interest in winning the case where there was evidence that one of its agents had been seeking evidence to make a case for termination of the Franchise Agreement with Chahal.

99. The primary judge found that Mr Chaudhry had a motive for not telling the truth and that was weighed against him together with his “defensive demeanour” and inability to do anything but deny 7-Eleven’s case. Chahal and Mr Chaudhry accept that Mr Chaudhry had a self-evident motive for winning the case and hence giving his evidence. However, they point to the fact that Mr Yasa had made a claim upon the wage compensation repayment scheme and that to the extent that he had established that he had been underpaid by Chahal he would be entitled to claim additional funds. Mr Ali had also made a claim on the repayment scheme.

98. Further, Chahal and Mr Chaudhry assert, 7-Eleven itself was not completely disinterested but was a litigant in the matter, and there was no evidence as to whether or not it had any financial benefit to gain from termination of the Franchise Agreement. There was unchallenged evidence from a witness called on behalf of Chahal that a private investigator retained by 7-Eleven had asked him if he had been underpaid and that he had assured the investigator that he had not been short paid.

99. It was asserted that it was unfair to weigh against Mr Chaudhry the self-evident fact there was commercial advantage for him in giving the evidence that he gave and to treat that as a matter that affected the weight that should be given to his evidence, but ignore the fact that Mr Ali and Mr Yasa each had a financial incentive to make a complaint against Chahal to obtain compensation from the scheme conducted by 7-Eleven.

100. It was not explained how Mr Ali and Mr Yasa would have an incentive to give false evidence. The primary judge observed that there was no suggestion made to either of them that giving evidence was required as a condition of applying for or being compensated under the wage repayment scheme. Rather, financial self-interest might suggest that giving evidence in the proceedings was not a course that either of them would take. There is no basis for suggesting that giving evidence in the proceedings would enhance their claims under the wage repayment programme. It could even jeopardise their claims if, for example, their versions of events were not believed or gave rise to doubts upon the claims made by them. There is no substance in grounds 5 and 6.

Chahal’s corroborative witnesses

103. Grounds 8, 9, 10 and 11 are concerned with the rejection by the primary judge of evidence adduced on behalf of Chahal and Mr Chaudhry that was said to corroborate their denial of any cash back arrangement.

104. Mr Abdullah gave evidence that he was employed in the Store in a similar capacity and at a similar time to Mr Ali and Mr Yasa and that he never participated in any cash back arrangement. He gave evidence that he was never asked to pay any money back from his wages while working at the Store. Chahal and Mr Chaudhry submit that this was especially significant because Mr Ali had given evidence that he had seen Mr Abdullah write something on a piece of paper, and place the paper and cash into the “Safe Drop” compartment at the Store.

105. Chahal and Mr Chaudhry assert that Mr Abdullah’s evidence contradicted evidence of Mr Ali that employees at the Store were obliged to compensate Chahal for customers who drove off without paying and that he engaged in handling monies by deposit in the safe or paying monies of his own by way of cash back into the safe. They assert that the primary judge erred in concluding that that evidence was irrelevant and should be given no weight. They say that his Honour erred in concluding that he could determine whether or not to accept the evidence of Mr Chaudhry or the evidence of Mr Ali and Mr Yasa, without taking into account the evidence of Mr Abdullah.

106. Mr Rafaqat worked at the Store at the same time at which Mr Ali and Mr Yasa were employed there. He worked in a similar position. He gave evidence that he had never participated in any cash back payments and was paid and received his appropriate wage. He also gave evidence that he had never had to pay any money in compensation for customers driving off without paying and that he did not know of any staff member who had been asked to pay cash back from their wages to Mr Chaudhry or any other person.

107. Mr Rafaqat was not cross-examined in circumstances where, Mr Chaudhry and Chahal say, his evidence was in contradiction of the evidence of Mr Ali that Mr Rafaqat had explained to him (Ali) the way the cash back payments were to be made. They say that Mr Rafaqat’s evidence casts serious doubt upon the truthfulness of Mr Ali’s evidence and his Honour ought to have resolved the clear contradiction between the evidence of Mr Rafaqat and that of Mr Ali.

108. Neither Mr Abdullah nor Mr Rafaqat was cross-examined. Neither of them was a current employee of Chahal at the time of the trial. Chahal and Mr Chaudhry submit that, there could therefore have been no basis for suggesting that their evidence was other than a truthful account of what they observed. Chahal and Mr Chaudhry contend that the evidence of Mr Abdullah and Mr Rafaqat was probative evidence in direct contradiction of the finding by the primary judge that it was possible that the practice of demanding cash back from employees was wide spread at the Store. They say that his Honour’s consideration and acceptance that it was possible that the practice was widespread was a finding strongly adverse to the credit of Mr Chaudhry and that that suggestion was without any evidentiary foundation in circumstances where the evidence showed that it was highly improbable that the practice was widespread.

109. Chahal and Mr Chaudhry assert that the evidence of Mr Abdullah and Mr Rafaqat was plainly relevant and that, while there might have been some issues of weight to be accorded to it, it had substantial impact on the probabilities of any such finding as to whether the cash back scheme described by Mr Ali and Mr Yasa operated at the relevant time.

110. The question whether or not the cash back practice was widespread was not an issue. The Termination Notice was given to Chahal simply on the basis of the assertions made by Mr Ali and Mr Yasa. The evidence of Mr Abdullah and Mr Rafaqat went no further than establishing that they had no individual awareness of or any individual involvement in any cash back scheme. The evidence does not suggest that either held such a position within the Store or were possessed of such knowledge as to be able to say whether or not a cash back scheme was in operation at all, nor to be able to identify those employees who were or were not involved in it. In any event, the primary judge made no finding as to how widespread the operation of the cash back scheme may have been. However, as indicated below, his Honour did make a finding that the cash and notes found by Mr Howard in the safe strongly corroborated the existence of a cash back scheme similar to that alleged by Mr Ali and Mr Yasa.

111. It is true that the primary judge failed to explain adequately why the evidence of Mr Abdullah and Mr Rafaqat would be given little or no weight. There were inconsistencies between their evidence, on the one hand, and that of Mr Ali Mr Yasa on the other. Nevertheless, the inconsistencies do not bear on the truth or otherwise of the assertions made by Mr Ali and Mr Yasa as to their conversations with Mr Chaudhry in relation to the operation of the cash back scheme. While it would have been preferable for his Honour to explain why no weight should be given to the evidence, I do not consider that the failure constituted a ground for interfering with his Honour’s conclusions and findings. Grounds 8, 9, 10 and 11 do not require the Court’s intervention.

The August cash and the wider cash back scheme

112. By Ground 7, Chahal and Mr Chaudhry contend that the primary judge erred in finding that, although there was no direct evidence on whether the practise of cash back payments existed more widely, it was possible that such a practice was widespread. Such a finding was strongly prejudicial to the credibility of Mr Chaudhry in circumstances where there was strong direct that the practice did not exist widely. Accordingly, Chahal and Mr Chaudhry submit that his Honour ought to have found that the practice did not exist widely, in which case, doubt would have been cast upon the credibility of Mr Ali and Mr Yasa. By Ground 13, they also contend that his Honour erred in the manner in which he dealt with the evidence of Mr Howard in relation to the bundle of bank notes stapled to the hand written note.

113. Mr Howard said that he conducted an inspection of the safe to seek evidence implicating Mr Chaudhry in cash back arrangements. He deliberately searched the safe for evidence at a time when he expected Mr Chaudhry would not be present and, upon Mr Chaudhry’s arriving at the Store, lied to Mr Chaudhry regarding the nature of the inspection that he had conducted of the safe and what he had found. He kept secret at the time of his search the purpose and intention of his visit to the Store, and then gave evidence of a conversation to the effect that Mr Chaudhry had acknowledged the existence of the handwritten note, although Mr Chaudhry denied that conversation.

114. Chahal and Mr Chaudhry assert that the manner in which the evidence regarding the cash and stapled hand written note was obtained involved an unfair search deliberately conducted so that Mr Chaudhry would not be present when the safe was opened and searched. That, they say, should have cast doubt on the evidence. They say that, if the note stapled to the cash related to cash being paid back by an employee, it would have been a simple matter for 7-Eleven to have ascertained the identity of the employee and called that individual as a witness. However, no attempt was made by 7-Eleven to provide any further evidence or explanation regarding the handwritten note allegedly found in the safe. Chahal and Mr Chaudhry say that, in the absence of any further evidence regarding the provenance or meaning of the note, it was unreasonable for his Honour to have determined that the only likely explanation for it was that it was evidence of an unlawful cash back payment by some other unidentified employee at the Store.

115. Mr Chaudhry’s evidence was that he had never seen the piece of paper or the cash allegedly stapled to it. He did not accept that he had had the conversation deposed to by Mr Howard. Thus, Chahal and Mr Chaudhry argue that the piece of paper had no connection with Mr Ali or Mr Yasa and, at most, it could only have supported an inference that it was possibly associated with the cash back payment by another employee. That depended upon accepting the account of Mr Howard.

116. In addition, Mr Roos gave evidence on behalf of 7-Eleven of an exchange between him and Mr Chaudhry to the effect that when the Termination Notice was given to Chahal on 6 October 2016, Mr Chaudhry emptied the safe, which contained bundles of paper with an alleged handwritten note on top of one bundle, which Mr Chaudhry had refused to hand to Mr Roos. Mr Chaudhry denied the substance of that evidence.

117. Chahal and Mr Chaudhry complain that the primary judge did not refer to substantial other evidence regarding Mr Chaudhry’s dealings with 7-Eleven that related to the hostility and aggression that was manifested on that occasion. They say that the evidence of Mr Roos could not possibly have supported any finding of a widespread cash back scheme since the safe would inevitably have contained bundles of cash. There was no evidence from Mr Roos of what the handwritten notes said.

118. Chahal and Mr Chaudhry complain that there was no objective evidence that showed the existence of any wider cash back scheme. They say that the evidence of Mr Howard regarding the piece of paper and cash depended upon the credit of Mr Howard, which was in contention. They point again to the fact that no attempt was made by 7-Eleven to adduce evidence from the employee to whom the note might have related. They refer again to the fact that the finding of the piece of paper in the safe arose as a result of Mr Howard making a search deliberately calculated to be at a time when Mr Chaudhry would not have been present to witness the opening of the safe.

119. However, the evidence of Mr Howard and Mr Roos was not the subject of any real challenge. The evidence of Mr Howard was not sought to be excluded on the basis that it was unfairly procured. There was no serious attack on the evidence of Mr Howard or any suggestion that he had not in fact found the cash stapled to a note in the safe. Further, Mr Roos was not cross-examined to suggest that his evidence was false. On the other hand, the credit of Mr Chaudhry was the subject of a sustained attack, which was ultimately successful having regard to the conclusions reached by the primary judge.

120. The primary judge was satisfied that an inference could be drawn that the cash found by Mr Howard was intended for Mr Chaudhry. The opening of the safe required the entry of a code followed by a 10 minute delay before the safe could actually be opened. The evidence indicated that such a code is only available to Mr Chaudhry and his manager together with certain people at 7-Eleven. His Honour was satisfied that an inference should be drawn that the cash was placed in the safe for Mr Chaudhry to collect.

121. The primary judge considered that the most significant aspect of the cash found by Mr Howard is that it appeared to be entirely consistent with the explanation given by both Mr Ali or Mr Yasa as to the way in which they implemented or executed the alleged cash back arrangements put in place by Mr Chaudhry. It is also consistent with the bundles of cash attached to white pieces of paper that Mr Ali recalled seeing Mr Chaudhry retrieve from the safe on many occasions.

122. The primary judge concluded that, although the cash and note found by Mr Howard could not be connected to Mr Ali or Mr Yasa, the most likely explanation was that a person employed at the Store at the time when Mr Howard visited it had put the money into the safe in order to pay Mr Chaudhry. In the absence of any evidence to the contrary, his Honour was satisfied that what Mr Howard found strongly corroborated the existence of a cash back scheme similar to that alleged by Mr Ali and Mr Yasa.

123. The primary judge also noted that such a conclusion was consistent with evidence given by Mr Roos regarding anonymous telephone calls alleging cash back arrangements from people “purporting to be employees of 7-Eleven franchises, including on several occasions from employees of 7-Eleven”. That evidence of Mr Roos was admitted on the basis that it proved that anonymous complaints had been received but not as to the truth of the underlying assertions. Mr Roos acknowledged in his affidavit that at the time he received the calls he was unable to confirm the allegations raised in the calls. However, on the basis of the allegations, 7-Eleven commenced formal investigations of the Store.

124. It is not entirely clear what use the primary judge made of the anonymous phone calls, and whether that use went beyond the basis upon which the evidence about the calls was admitted. In that regard, it is significant that his Honour noted that the calls were from people “purporting” to be employees of 7-Eleven franchises. Even if his Honour erred by making improper use of the evidence, nothing turns upon the error. His Honour concluded that records of the calls, together with the cash found by Mr Howard, gave him “further satisfaction Messrs Ali and Yasa were subject to a similar cash back scheme”. Any reliance that His Honour placed on the phone calls was “together with the August cash”, and merely confirmed his Honour’s existing satisfaction that Messrs Ali and Yasa were subject to a cash back scheme. I do not consider that either of Grounds 7 and 13 is a basis for interfering with his Honour’s conclusions.

Evidence of Mr Yasa

125. Ground 12 is that the primary judge erred in failing to take into account and consider the evidence of inconsistent complaints regarding underpayment made by Mr Yasa, and to consider that as a reason for rejecting him as a reliable witness. Thus, it was said, Mr Yasa admitted in cross-examination that he had worked at 7-Eleven stores at Quakers Hill and Windsor in addition to Chahal’s operation at the Store. Mr Yasa gave evidence that he did not believe that he had been underpaid at Quakers Hill or Windsor. However, there was documentary evidence before his Honour that Mr Yasa had complained under the 7-Eleven Wage Repayment Program regarding the Quakers Hill store that:

"I am being paid $12 per hour since I started working here, I used to work 40 hours per week, now my boss is putting more money in my account to show that he's paying actual money to me and asking half of the money back from me by the end of every week, he said if I don't give the money back he will fire me and complain to the Immigration that I worked more hours on student Visa due to which I have to pay higher tax on the income and I'm now earning less than $12 per hour, I want help regarding this issue."

126. The documentary evidence and his knowledge of the document were put to Mr Yasa, who indicated that he did not know how his name came to be on the document, and that they were not his words. It was also put squarely to Mr Yasa that he had made an application under the wage repayment scheme in respect of his time at Quakers Hill. He rejected that proposition. In the absence of any other evidence that might suggest that Mr Yasa was mistaken about those matters, there is no reason why the document that was shown to Mr Yasa should have any bearing on his credit. This ground must fail.

Remedy

127. It is unnecessary to deal with the question of remedy contained in Grounds 14 and 15. Even if the principal issue succeeded, Chahal and Mr Chaudhry accept that the appropriate relief would be a new trial. Nevertheless, I shall say something about the remedies claimed by Chahal.

128. It was not suggested that the primary judge erred in the view his Honour took as to the inadequacies of the evidence as to damages, although it was suggested that, on a new trial, Chahal would be entitled to remedy the deficiencies. It is difficult to see any justification for such an approach.

129. The primary judge concluded that, even if he had found that the Franchise Agreement was wrongfully terminated, the evidence adduced on behalf of Chahal did not enable him to make a finding as to the quantum any loss or damage suffered by Chahal. His Honour also indicated that he would not have been prepared to reinstate the Franchise Agreement.

130. Undertakings were proffered on behalf of 7-Eleven and accepted by Chahal and Mr Chaudhry that, pending the outcome of the proceedings, steps would be taken by 7-Eleven to preserve the business operated at the Store against the possibility that the Franchise Agreement might be reinstated, and Chahal let back into occupation of the Licensed Premises. That raises questions as to whether any relief as to past losses would have been appropriate.

131. The only question before the Court is whether the Franchise Agreement was effectively terminated and whether 7-Eleven was entitled to oust Chahal from its occupation from the Licensed Premises in accordance with the licence granted by Article 2. There is no suggestion that, if the Franchise Agreement was wrongfully terminated, 7-Eleven would refuse to honour it in the future. It may be that, if the Court concluded that the Franchise Agreement had been wrongfully terminated, the appropriate relief would be for a declaration to be made to that effect, together with a declaration that the Franchise Agreement is still on foot and that Chahal is entitled to the benefit of the Franchise Agreement. Orders could be made for Chahal to be permitted to enter upon the Licensed Premises as contemplated by Article 2 of the Franchise Agreement. However, in the light of the conclusion reached above, the question does not arise.

Conclusion

132. The appeal should be dismissed. The appellants should pay the respondent’s costs of the appeal.

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Endnotes

Decision last updated: 27 March 2018