Fransses v Sky Infrastructure Developers Pty Limited (No. 1)

[2023] NSWDC 545

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Fransses v Sky Infrastructure Developers Pty Limited (No. 1) [2023] NSWDC 545

Hearing dates:

17-21, 24-25 October, 1 November 2022, 6-10 February 2023

Date of orders:

10 February 2023

Decision date:

10 February 2023

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

1   I give verdict and judgment for the plaintiff against the first defendant for $265,874.26.

2   I give verdict and judgment for the second defendant against the plaintiff. The cross-claim is dismissed.

Catchwords:

CIVIL – BUILDING CONTRACT – Were certain progress payments made? – Was the Defendant entitled to terminate the contract – Interpretation of contract re taking the deposit into account.

Legislation Cited:

Nil.

Cases Cited:

Nil.

Texts Cited:

Cheshire and Fifoot Law of Contract, 11th Australian edition, Butterworths 2017

Category:

Principal judgment

Parties:

Plaintiff – Monica Fransses
First Defendant – Sky Infrastructure Developers Pty Limited
Second Defendant - Roy Maalouf

Representation:

Plaintiff – Mr Wiggins, P.
First and Second Defendant – Mr Baroni, M.

File Number(s):

2021/00028728

Publication restriction:

Nil.

Judgment

Background

1. HIS HONOUR: These proceedings arise out of an NSW Residential Building Contract for New Dwellings entered into on 2 December 2017. The owner of the property upon which the dwellings were to be erected is described in the contract as Monica Fransses of 43 McIntyre Avenue, St Clair. The builder nominated in the contract is Sky Group Pty Limited. The Plaintiff nominated in the Statement of Claim is in fact the same Monica Fransses. That is despite the fact that she married on 29 September 2018 and now uses her husband's surname, Boctor. She so gave her name in evidence and the transcript records the Plaintiff's name as being Boctor on the foot of each of page of the transcript of 19 October 2022. When she commenced giving her evidence on the preceding day, 18 October 2022, she was merely described as the Plaintiff on the foot of each page of the transcript. The Plaintiff was almost invariably referred to in evidence as Ms Fransses, and I trust she will forgive me if I maintain that name despite her marriage because it will just make life much easier for me. I mean her absolutely no discourtesy by doing so.

2. The Defendant, until earlier today, was Sky Group Pty Limited. However, when I consulted a company search, I found out that the Defendant had changed its name, and the Statement of Claim was amended to show as the correct title of the First Defendant, Sky Infrastructure Developers Pty Limited. However, at the time that the relevant facts occurred, the First Defendant was known as Sky Group Pty Limited, and I trust that I shall be forgiven for referring to it by that name should I need to do so. I shall attempt to describe the First Defendant merely as the Defendant. There is a Second Defendant, Mr Roy Maalouf, but the cause of action against him is different to the principal cause of action and is limited in scope. I shall have more to say about the proceedings against the Second Defendant much later in these reasons.

The Plaintiff

3. At all material times, the Plaintiff was a dental therapist. I understand that she was carrying out her profession at a dental practice in Sutherland. Whilst the former structure on her property was being demolished and two new dwellings were being erected, she was staying elsewhere but nearby. The daily commute between St. Clair and Sutherland would have been monumentally long. I mention the Plaintiff's occupation because it indicates that she would have little knowledge of the working and operation of a building company.

The Defendant

4. The First Defendant company was incorporated on 17 August 2011 under the name, Sky Group Pty Limited. Its name changed on the ASIC register on 30 April 2019. Its original shareholder, the owner of both the ordinary shares and the A class, B class, and C class, shares was Ms Cynthia Maalouf of Gwydir Street, Greystanes. The subsequent owner of all the shares was Mr Jayleb Norman Peter Pringle of Blue Haven. The shares were later transferred by Mr Pringle to Mr Jacques Lahoud of Greystanes.

5. The original director of the First Defendant was Cynthia Maalouf. She ceased to be a director on 12 November 2015. She was replaced by Mr Wissam Riman on 12 November 2015. He ceased to be a director on 24 June 2016 when he was replaced by Mr Pringle who was initially appointed on 4 April 2016, but ceased to be a director on 16 July 2020 when he was replaced by Mr Jacques Lahoud.

6. The appointment of Mr Pringle as a director on 4 April 2016 follows shortly after the registered office of the First Defendant becoming ANCO Accounting Services of the Princes Highway at Carlton on 24 March 2016. The inference to be drawn is that Mr Pringle may have been an accountant. The original registered office of the company was in Guildford. As I have just mentioned, it was transferred to the Princes Highway at Carlton in March of 2016. That ceased to be the registered office on 7 June 2016 when it became 34 Millicent Street, Greystanes. However, on 1 November 2019, the registered address became a unit at 383 Church Street, Parramatta, but more recently, on 6 October 2020, reverted to 34 Millicent Street, Greystanes.

7. It can be seen that Mr Roy Maalouf has never been a director, shareholder or even secretary of the Defendant company. At the commencement of his cross-examination, he referred to Cynthia Maalouf as being his cousin, but towards to the end of his cross-examination he said that she was his wife and then described her as his former wife and admitted that she had not remarried. Of course, it may well be that Cynthia Maalouf was both Mr Roy Maalouf's cousin and former wife.

8. Records relating to the First Defendant's builders licence are Exhibit U. They indicate that a builders licence was granted to the First Defendant on 25 March 2013, but it was cancelled on 3 December 2014, but the licence was reissued on 26 November 2015. It was cancelled again on 26 April 2018 but was reissued again on 3 August 2018, but was cancelled on 23 October 2018. When it was reissued on 3 August 2018, it was subject to conditions. The conditions stipulated are these:

"The nominated supervisor is Lebnan Louis, and he is an employee of the applicant.

That the only building work to be undertaken by the applicant is the outstanding work pursuant to the following contracts:

Contract in respect of residential premises at 15 Stratford Street, Cammeray

Contract in respect of residential premises at 43 McIntyre Avenue, St Clair, NSW

That the applicant is prohibited from carrying out any other residential building work."

It appears that those conditions were to apply until 2 August 2021, but it may well be that that condition expired when the licence was cancelled on 23 October 2018.

9. There is no mention in Exhibit U of the Second Defendant, Mr Roy Maalouf. In cross-examination, Mr Maalouf conceded that Cynthia Maalouf had no builders licence, that Mr Wissam Riman was an engineer who used to work for the First Defendant, that Mr Pringle was an office manager who had no builders licence, that Mr Lahoud was not a licensed builder but was a project manager in the construction industry. Mr Maalouf agreed that the First Defendant was "essentially" his company, a company used by him to carry on his business. He admitted that he supervised the works of the First Defendant and that there was no one who could supervise him, oversee him, or direct him.

10. There is evidence before me that at some stage in 2018, Mr Gorge Gebour described himself as a director of the First Defendant, but he is not shown as such in any of the records produced by ASIC. Mr Roy Maalouf conceded that he did not hold a builders licence and that he "put him on". That was later qualified to his recommending the appointment of Mr Gebour to Cynthia Maalouf, the shareholder at the time.

11. The evidence before me disclosed that at the relevant time, an employee of the First Defendant was Ms Angelina Ishac. She described herself as the "contract administrator". Mr Roy Maalouf conceded that she decided to call herself that at the time she was studying project management at university. Essentially, Ms Ishac was the person who carried out the administrative work in the Defendant's office.

12. His evidence discloses these details: It was up to Mr Roy Maalouf to decide whether to issue a payment claim; sometimes, he would check payment claims, other times he would not; the banking for the First Defendant was done by a director, by Ms Ishac or by Mr Maalouf himself. He told me that the "office", by which I assume he meant Ms Ishac, allocated moneys paid to the company by clients. He said that Ms Ishac issued statements. They were not issued by him. When asked whether he checked them, he said that he tried not to get himself involved in dealing with tax invoices.

The property

13. At all material times, the Plaintiff was the owner of lot 468 in Deposited Plan 263033. That parcel of land was in the Penrith Local Government Area. Its street address was 43 McIntyre Avenue, St Clair. According to Exhibit T, a copy of a page of a street directory, McIntyre Avenue joins Mamre Road on the eastern side of Mamre Road and the T-intersection made by McIntyre Avenue with Mamre Road is on the western end of McIntyre Avenue which runs between Mamre Road and Cook Parade in St Clair. The Plaintiff's property was on the corner of Mamre Road and McIntyre Avenue but set back from Mamre Road.

The contract

14. The building works required the demolition of the existing dwelling at 43 McIntyre Avenue and the erection of a "duplex". These were in fact matching units, but they did not have a common wall. They were disjoined such that a Torrens title subdivision could take place. The contract is a lengthy one. It is based on the HIA copyrighted version dated May 2017. It commences with seven schedules, then contains special conditions, then includes a deed of guarantee and indemnity which has been executed by the Plaintiff and then contains general conditions.

15. The following provisions of this lengthy document should be noted. As I have mentioned earlier, its date is 2 December 2017. Schedule 1, cl 2 stipulates the contract price. In abbreviated form the contract price, excluding GST, was $763,636.36. The GST on that amount was $76,363.63. The contract price inclusive of GST was $839,999.99. Item 2(b) of Sch 1 refers to the deposit. The deposit stipulated is $84,000. That is despite the fact that beneath that stipulation is this note:

"The deposit must not exceed 10% of the contract price."

Of course, it does exceed the contract price by a very small amount, namely one cent. One can be forgiven for permitting that to occur. Item 6 of Sch 1 stipulates the building period. It is this:

"The building works must reach the stage of practical completion no more than 33 weeks after the building period commences, subject to clause 19."

16. Item 11 of Sch 1 stipulates liquidated damages of $1 per working day calculated on a daily basis. I observe that that is minimal. Item 12 stipulates the interest on late payment at 20%. That, I observe, is hardly favourable to the Plaintiff. The builder's margin is stated to be 20% which appears to be standard. Schedule 2 is headed "progress payments" and contains this matter:

“

Stage	Percent	Amount
DEPOSIT Adjusted by $.01 to allow for rounding	10.00%	$83,999.99
DEMOLITION	7.74%	$65,000.04
COMPLETION OF CONCRETE PIERS	8.34%	$70,056.00
COMPLETION OF CONCRETE FOOTINGS	8.93%	$75,020.40
COMPLETION OF CONCRETE SLAB	9.53%	$80,060.40
COMPLETION OF TIMBER WALLS	9.53%	$80,060.40
COMPLETION OF TIMBER ROOF	9.53%	$80,080.40
COMPLETION OF ROOF TILES	9.53%	$80,060.40
COMPLETION OF BRICKWORK	9.53%	$80,060.40
LOCK UP STAGE	6.00%	$50,400.00
COMPLETION OF PLASTEBOARD	3.90%	$32,760.00
COMPLETION OF TILING	3.57%	$29,988.00
COMPLETION OF KITCHEN	3.57%	$29,954.40
COMPLETION	.30%	$2,519.18
Total	100.00%	$839,999.99

Note:

The total amount must be the same as the contract price.

The deposit is brought to account in the first progress payment.

Progress stages must be stated in clear and plain language.”

17. Schedule 4 is brief and required a brief description of the building works. That description is this:

"Demolition of existing single storey house.

construction of new dual occupancy dwellings as per council approval."

18. Schedule 5 describes "other contract documents". It contains this matter:

“In addition to these general conditions, any special conditions, the plan and specification, the following documents form part of this contract.

1. RAFLA ARCHITECTURAL PLANS DRAWINGS 1-11

2. STRUCTURAL PLANS DRAWINGS 1-6

3. ELECTRICAL PLANS 1-2

4. WINDOW SCHEDULE SPREADSHEET 1 ONLY

5. DOOR SCHEDULE SPREADSHEET 1 ONLY”.

There are six pages of special conditions, but I have not been referred to any of them by counsel.

19. I turn now to that section of the contract headed "general conditions". Clause 1 is headed "Interpretation". It provides a number of definitions of terms used in the contract. The relevant definitions appear to be these:

“’contract documents’ means these general conditions, any special conditions, the plans, the specifications and other documents specified in Schedule 5;

‘contract price’ means the amount stated in item 2(a) of Schedule 1, as changed by this contract;

…

‘date of practical completion’ means the date that is deemed to be the date of practical completion under Clause 21 except where the date is determined by dispute resolution (including litigation) then it is that date;

‘practical completion’ means when the building works are complete except for minor omissions and defects that do not prevent the building works from being reasonably capable of being used for their usual purpose;

...

‘stage’ means any of the stages described in Schedule 2;”.

20. The owners' obligations are set out in cl 3. They are these:

“3.1 The owner must pay the contract price and other money that becomes payable under this contract in the manner and at the times stated in this contract.

3.2 If there is more than one owner:

(a) the obligations in this contract apply to each of them individually and to all of them as a group;

(b) a quote, notice, claim or any other communication to the owners has only to be given to one of the owners; and

(c) only one of the owners has to sign a quote, notice, instruction, direction or other communication to bind all of the owners.”

21. Clause 17 relates to progress payments. It is this:

“17.1   The owner must pay the deposit stated in item 2(b) of Schedule 1 on the later of the day that:

(a) this contract is signed by the owner; and

(b) warranty insurance described in Schedule 6 is in force and the owner is provided with a certificate of insurance for such insurance.

17.2 The owner must pay the contract price progressively as claimed by the builder.

17.3 The builder must give the owner a written claim for a progress payment for the completion of each stage.

17.4 A progress claim is to state:

(a) the amount claimed and not paid for the stage substantially completed;

(b) the amount claimed and not paid for contract price adjustments;

(c) the amount claimed and not paid for variations; and

(d) the sum of the above amounts.

17.5 The owner must pay a progress claim within 5 working days of the builder giving the claim.

17.6 Other than in relation to the final progress claim:

(a) payment of a progress claim is on account only; and

(b) the owner has no right to set off.”

22. Clause 21 relates to practical completion. It is this:

“21.1 The builder must hive the owner a notice of practical completion at least 5 working days prior to practical completion being reached/

21.2 The notice of practical completion is to:

(a) state the builder’s assessment of the date of practical completion;

(b) state the date and time for the owner to meet the builder on the site to carry out an inspection of the buildings works; and

(c) have attached the builder’s final progress claim.

21.3 The owner must meet the builder on the site for the inspection at the date and time stated by the builder in the notice of practical completion or at a date and time otherwise agreed with the builder and either:

(a) pay the amount of the final progress claim; or

(b) if the owner believes that the building works have not reached practical completion give the builder a written notice detailing anything to be done to reach practical completion.

21.4 If the owner pays the amount of the final progress claim under sub-clause 21.3(a) the date of practical completion is deemed to be the date of practical completion.

21.5 If the owner gives the builder a notice under sub-clause 21.3(b) of work to be completed:

(a) the builder must carry out any work required for practical completion and give the owner a further notice of practical completion;

(b) if the builder does not agree that there is any further work to be carried out to reach practical completion the builder:

(i) must give the owner written notice rejecting the owner’s notice. In this case, such a notice will also serve as notice of the matters in dispute for the purposes of Clause 35;

(ii) is not obliged to carry out any further work on the site while the dispute remains unresolved.

21.6 If the owner does not pay the amount of the final progress claim under sub-clause 21.3(a) or give the builder a notice under sub-clause 21.3(b);

(a) the amount of the final progress claim is deemed to be a debt due and owing from the owner to the builder;

(b) the date of practical completion stated in the notice of practical completion is deemed to be the date of practical completion; and

(c) the owner acknowledges the building works have reached practical completion.

21.7 On the owner paying the final progress claim, the builder must give the keys, certificates, warranty documentation and other documents pertaining to the building works to the owner.”

23. Clause 23 relates to notice. It is this:

“23.1 Unless otherwise stated in this contract, a notice given under this contract must be in writing and in English.

23.2 Notices may be given:

(a) personally;

(b) by sending it by prepaid post to the party’s address shown in Item 3 or Item 4 of Schedule 1 or the address that is last notified in writing;

(c) by sending it by facsimile to the party’s facsimile number shown in Item 3 or Item 4 of Schedule 1 or the facsimile number that is last notified in writing; or

(d) by sending it by email to the party’s email address shown in item 3 or item 5 of Schedule 1 or the email address that is last notified in writing.

23.3 Notice is deemed to be received:

(a) if given personally, by handing it to the other party;

(b) if sent by prepaid post, 5 working days after posting;

(c) if sent by facsimile, at the time of transmission unless the sender’s server or email indicates a malfunction or error in transmission or the recipient immediately notifies the sender of an incomplete or illegible transmission;

(d) if sent by email, at the time of transmission unless the sender’s server or email indicates a malfunction or error in transmission or the recipient immediately notifies the sender of an incomplete or illegible transmission;

(e) if the notice is deemed to be received on a day which is not a working day or after 5pm, it is deemed to be received at 9am on the next working day.

23.4 If two or more people comprise a party, notice to one is effective notice to all.”

24. Clause 27 is headed "Ending the contract - Breach". It is this:

“27.1 A substantial breach of this contract by the builder includes but is not limited to if the builder:

(a) has its licence cancelled;

(b) suspends the carrying out of the building works other than under Clause 25.

27.2 A substantial breach of this contract by the owner includes but is not limited to if the owner:

(a) fails to pay any amount by the due date;

(b) fails to give evidence of ability to pay as requested;

(c) fails to establish and maintain a security account if requested;

(d) interferes with or obstructs the progress of the building works;

(e) fails to give or interferes with the builder’s possession of the site;

(f) fails to give an instruction or direction required within the time specified.

27.3 If a party is in substantial breach of this contract the other party may give the party in breach a written notice stating:

(a) details of the breach; and

(b) that, if that breach is not remedied within 10 working days, that party is entitled to end this contract.

27.4 If 10 working days have passed since the notice of default is given and the breach is not remedied then the party giving the notice of default may end this contract by giving a further written notice to that effect.

27.5 All notices to be given under this Clause must be given by registered post or personally.”

25. Related to that provision is cl 29 which bears the heading "Effect of the Builder Ending the Contract". It is this:

“29.1 If the builder ends this contract under Clause 14, Clause 26, Clause 27 or Clause 28, then at the election of the builder, the owner must pay as a debt due and payable either:

(a) the greater of the cost of or the market value of the building works to date including the cost of any materials on the site or already ordered from suppliers and the cost of quitting the site less the amount already paid by the owner; or

(b) damages.”

26. Clause 35 relates to "Dispute Resolution". It is this:

“35.1 If a dispute arises then a party must give written notice to the other party setting out the matter in dispute.

35.2 The builder and the owner must meet within 10 working days of the giving of the notice to attempt to resolve the dispute or to agree on methods of so doing.

35.3 If the dispute is resolved the parties must write down the resolution and sign it.

35.4 The parties agree that anything don or said in the negotiation cannot be revealed in any other proceeding.”

27. Clauses 42 and 43 are these:

“42.1 Except as provided at law or in equity or elsewhere in this contract, none of the provisions of this contract may be varied, waived, discharged or released, except with the prior written consent of the parties.

…

43.1 Any provision in this contract which is illegal, void or unenforceable will be ineffective to the extent only of such illegality, voidness or unenforceability and will not invalidate any other provision of this contract.”

28. Despite what is stipulated in Sch 5 and the index to the contract which can be found on the two pages following the cover sheet of the contract, annexed to the contract was a document headed "Attachment A" which was a checklist which has been executed by both the Plaintiff and by Mr Maalouf as the construction manager.

29. Then there is a document from the Department of Fair Trading headed the "Consumer Building Guide" which has been signed by both parties, and the signatures have been witnessed, and then a document on the stationery of the First Defendant headed "Project Specification, Selection Schedules and Contract Drawings", each page of which has been signed by each party and by the witnesses to each party. Then there is a document on the stationery of the First Defendant headed "Tender Proposal", bearing date 2 December 2017, which has been signed, it would appear, by each party and by the witnesses to those signatures.

30. The contract which is annexed to the Plaintiff's affidavit commences in vol 1 of the court book at p 98 and concludes at p 167 of the same volume of the court book.

31. The relevant part of the Plaintiff's Amended Statement of Claim is this:

“8. The defendant First Defendant commence the project on 2 December 2017 and was to reach practical completion by 21 July 2018.

Particulars

Clause 2 of the Contract

9. In breach of the terms of the Contract, the works performed by the First Defendant were not:

(a) in accordance with the terms of the Contract including the plans and specifications;

(b) undertaken in a proper and workmanlike manner and with due skill, care and diligence;

(c) reasonably fit for their purpose and use as a residential premise;

(d) completed within a reasonable time or the agreed time frame set out in the particulars above;

10. By reason of the breaches set out in the previous paragraph, the plaintiff suffered loss.

(a) As partly completed, the works were defective (particulars of which will be the subject of evidence and will otherwise be detailed in an expert building report, commissioned but not finalised) and the reasonable and necessary rectification and the estimated costs of repair.

(b) Costs to retain another builder to finalise the defective work and complete the works in accordance with the Contract, particulars of which will be the subject of evidence.

(c) Costs associated with the provision of legal advice and services as well as the provision of expert opinions, particulars of which will be the subject of evidence.

(d) Damages suffered on account of paying rent at alternate premises and additional interest paid on the Applicant Plaintiff’s loan facility, particulars of which will be the subject of evidence.

11. On 2 October 2018, the Respondent First Defendant purported to terminate the Contract.

12. The purported termination was wrongful, in breach of contract, and a repudiation of the

Contract.

Particulars

i. The First Defendant’s notice of termination dated 2 October 2018 asserted that payment claim 25015 in the amount of $29,988 remained unpaid.

ii. In breach of clause 17.1 of the Contract, the First Defendant did not bring the deposit into account with the first progress payment, or with any subsequent progress payment.

iii. As of 2 October 2018 the Plaintiff had paid the First Defendant the sum of $779,357.20 under the Contract, and was in credit in its account with the First Defendant in the amount of $54,184.76.

iv. Progress payment 25015 was not unpaid, and the First Defendant was not entitled to terminate the contract.

12A The Plaintiff accepts the First Defendant’s repudiation of the Contract and claims damages.

13. By reason of the breach and repudiation set out in the previous paragraph, the Plaintiff has suffered loss.

Particulars

Refer to paragraph 10 above.”

32. The amended defence filed in court on 18 October 2022 contains these relevant pleadings:

“8. The First and Second Defendants deny paragraph 8 of the Claim:

a. say the project was commenced on 4 December 2017;

b. was to reach practical completion by 23 July 2018; and

c. but was always subject to the provisions of clause 19 of the Contract.

Particulars:

(i) 19.1 the builder is entitled to reasonable extension of the building period if the building works are delayed by the builder suspending the building works under Clause 25 or from a cause beyond the sole control of the builder including;

(a) a variation or a request for a variation by the owner;

(b) an act of God, fire, explotion, earthquake or civil commotion;

(c) adverse weather;

(d) an industrial dispute;

(e) a dispute with adjoining or neighbouring residents or owner;

(f) anything done or not done by the owner;

(g) delays in getting any approvals;

(h) a dealy in the supply of materials selected by the owner

(i) the need for a survey of or other report in relation to the site; or

(j) the industry shutdown being a 3 week period commencing on or about 22 December in each year if construction during the Christmas period could not have been reasonably foreseen at the date of this contract.\\

(ii) The first and second defendants further state that the plaintiff failed to pay invoices due and payable as pleaded in the Cross-Claim.

9. The First Defendant denies paragraph 9 of the Claim.

10. The First Defendant denies paragraph 10 of the Claim and says:

a. further state that any damages suffered by the Plaintiff were a result of the Plaintiff’s breach of contract and such conduct justified the lawful termination of the contract by the First Defendant;

b. Clause 17.5 of the Contract provided that the Plaintiff would pay the First Defendant’s progress clain within 5 working days;

c. The Plaintiff failed to pay such progress claim on the occasions as pleaded in paragraph 18 of the Cross Claim;

d. Relies and repeats what is pleaded in paragraph 19 of the Cross Claim; and

e. As a consequence, the First Respondent was entitled to terminate the Contract, and did so, in accordance with clause 27 of the Contract.

11. As to paragraph 11 of the Claim, the First Defendant repeats what is pleaded in paragraph 10 above and otherwise deny that paragraph and say the First Defendant did lawfully terminate the contract.

12. The First Defendant repeats what is pleaded in paragraph 10 above and otherwise denies paragraph 12 of the Claim and says:

a. in answer to subparagraph 12(i), as at 2 October 2018, in addition to the amount set out in the First Defendant’s notice of termination, other amounts remained outstanding, as pleaded in paragraph 15 to 17 of the Cross Claim;

b. denies sub-paragraph 12(ii) and, in the alternative, says even if the deposit had been taken into account, the Plaintiff still had unpaid invoices totalling $99,034.59 as pleaded in paragraphs 15 to 17 of the Cross Claim;

c. denies sub-paragraph 12(iii) and says that the Plaintiff had paid to the First Defendant the sum of $663,680.00 under the Contract and, was in deficit to the First Defendant in the amount of:

(i) $183,035.00; or

(ii) even with the deposit taken into account, $99,034.59;

d. denies sub-paragraph 12(iv) and relied and repeats what is pleaded in sub-paragraphs 12(a) to (c); and

e. the Plaintiff:

(i) at no stage raised at dispute in accordance with clause 35 of the Contract, with respect to any invoice issued by the First Defendant;

(ii) did not send any notice(s) as required by clause 23 of the Contract to the First Defendant; or

(iii) dispute that the Works had reached practical completion in accordance with clause 21 of the Contract or issues a notice of such dispute as required by clause 23 of the Contract.

12A. In answer to paragraph 12A of the Claim, the First Defendant:

relies and repeats what is pleaded in paragraphs 18 to 20 of its Cross Claim;

denies that the conduct of the First Defendant in terminating the Contract gave rise to conduct which was repudiatory;

says that, to the extent the Plaintiff now purports to accept the First Defendant’s alleged repudiation, any acceptance occurred in late 2018 by the Plaintiff’s conduct in not paying any or all of the outstabding amounts, as pleaded at paragraphs 15 to 17 of the Cross Claim and, by not requiring the First Defedant to complete any further Works pursuand to the Contract.

13. The First Defendant repeats what is pleaded in paragraph 10 above and otherwise denies paragraph 13 of the Claim.”

The Defendant has brought a cross-claim against the Plaintiff, but I need not consider that at this time.

Termination of the contract

33. Essentially, the First Defendant purported to terminate the contract on 2 October 2018. The notice of termination bears date 2 October 2018 and was contained in a letter sent by registered post which was also sent by email to the Plaintiff. The notice of termination was sent by Ms Jessica Rippon, the principal solicitor of "Construction Legal". The substance of the notice of termination is this:

"Our client has instructed us that the payment claim number 25015 in the amount of $29,988 including GST remains unpaid. We note that you have not responded to the payment claim, paid any part of the payment claim or contacted us in any way to explain your reasons for non-payment.

A final notice of payment and a default notice has also been sent to you by registered post in respect of the unpaid invoice. You have failed to respond to these notices also.

You have left our client with no choice but to activate its termination rights under the Contract and bring the Contract to an end.

Take this notice as written notice of termination under clause 27.2(a), (b) and 27.4 of the Contract, effective immediately."

Invoices and variations

34. At the heart of the validity of the notice of termination is whether certain payments alleged to have been made by the Plaintiff were made, the payment of which is denied by the Defendants. The First Defendant sent to the Plaintiff a number of progress payment tax invoices. I set out below a table giving the tax invoice numbers but only using the last two digits of the numbers, the date of the tax invoice, the date on which the tax invoice was said to be payable, the subject matter of the invoice but omitting from the subject a typical qualification "as per contract" and then the amount of the tax invoice:

No. Invoices	Dated	Payable	Subject	AMT.
00	4-12-17	11-12-17	Deposit (as per contract)	84,000
01	12-12-17	19-12-17	Completion of Demolition Work (as per contract)	65,000
02	21-12-17	28-12-17	Completion of Piers (as per Contract)	70,056
03	12-1-18	19-1-18	Completion of Footings (as per Contract)	75,020.40
04	12-1-18	19-1-18	Completion of Concrete Slab (as per Contract)	80,060.40
05	07-2-18	14-2-18	Survey	1,100
06	22-2-18	1-3-18	Completion of Timber Framed Walls	80,060.40
07	7-3-18	14-3-18	Completion of Timber Framed Roof	80,060.40
08	24-4-18	1-5-18	Completions of Brickwork	80,060.40
09	31-5-18	7-6-18	Completion of Rooftiles & Gutters	80,060.40
10	13-6-18	20-6-18	Completions of Plasterboard	32,760
13	13-8-18	20-8-18	Completion of Lockup Stage	50,400
15	13-8-18	20-8-18	Completion of Tiling	29,988
16	14-9-18	24-9-18	Completion of Kitchen	29,954

There is no tax invoice numbered 11, 12 or 14. Tax invoice 16 is not relied upon by the First Defendant because it is conceded that the work to which it referred had not been completed at the time the tax invoice was sent.

35. There were also a number of variations. The variations commence with the initials VN and then give a number, except the first is numbered 011 rather than 001. There are only four variations, and I should just give them their final digit number:

Variations
VN011	25-1-18	1-02-18	Supply & install exlia steel beams & posts as per Amended Structural Engineering delays	5,885
VN002	21-5-18	28-5-18	[Work relating to doors between garages and dwellings]	478.50
VN003	6-6-18	13-6-18	[Garage Doors]	500.00
VN004	25-5-18	1-6-18	Removal of Walls in Master Bedroom for both dwellings	490

It is common ground that the Plaintiff paid for none of the variations.

Invoice 6

36. As to tax invoice 05, the Plaintiff paid the surveyors fee directly to the surveyor. What is hotly disputed is whether there was any payment for tax invoice 06 and tax invoice 10. The Plaintiff's affidavit of 12 November 2021, which is Exhibit C, contains these paragraphs:

“9. On 27 February 2018, I received invoice number 25006 for an amount of $80,060.40 by email from Angelina Ishac (Angelina), an employee of the First Defendant. The invoice was in relation to work by the First Defendant in respect of the timber framed walls... I recall that Angelina called me on the same day and asked if I can pay invoice 25006 by Thursday 1^st of March. I also recall receiving another telephone call relating to this invoice from Roy [Maalouf] (Second Defendant) on the same day. We discussed payment of the invoice in words to the following effect:

SD: …. when are you going to pay the invoice?

Me: I can’t pay during the week as I have work and that, Saturday would be better for me.

SD: …. that's fine – Joe will be there, so give him the money.

10. On Saturday 3 March 2018, I visited the Land with my father, Nabil Fransses, to meet with Joe Ishac.... As the foreman, he oversaw the construction. I recall seeing him a few other workers.

11. I approached Joe Isshac and handed him cash funds in the amount of $80,060.40 for the timber framed walls (invoice number 25006). He took the funds inside the timber framed construction and counted with another worker.

12. My father and I stood there until Joe Ishac completed counting and confirmed the payment in full. He agreed it was exactly $80,060.40 and signed the progress statement confirming that he received payment in full. I annex and mark X a copy of the signed receipt. My father and I left shortly after.”

37. The original of the document, which is alleged by the Plaintiff, to have been signed by Mr Ishac, is Exhibit A. Exhibit A is a copy of the schedule of progress payments. Crossed through in pencil on the first line is the word "deposit" and in the margin on the right-hand side, there is a cross made in green ink. The word "demolition" has been crossed through with pencil and on the right-hand side margin, and it has been ticked using green ink. The words "completion of concrete piers" has also been crossed through in pencil and ticked in the right-hand margin, it would appear, in a pencil, although it could be black ink. It is very difficult for me to discern. The words "completion of concrete footings" has been crossed through with green ink and a green tick appears in the right-hand margin. "Completion of the concrete slab" has been crossed through in green ink and there is a green tick in the right-hand margin. For "completion of timber walls", the word "walls" appears to have been deeply underlined in blue ink, then the words "received by Joe Ishac" have been written but they appear to have been written after a signature had been inserted on that line. The words "received by Joe Ishac" have been written in blue ink and the signature shown there appears also to have been written in blue ink, but it is slightly different. It may just represent a different hand. On the right-hand margin, there is a cross in blue ink and the date, "3/3/18". Exhibit A also shows that the "completion of timber roof" has the word "roof" heavily underlined in blue ink. Also written beside it are the words "received by Joe Ishac" but again, that appears to have been written after the signature appearing on the same line before the percentage point. Written in the right-hand margin is the date "7.4.18". There is no dispute that the signature next to the words "completion of tile roof" is that of Mr Ishac.

38. There is also no dispute that Mr Ishac has signed another document using purple ink. The original document is Exhibit E. Exhibit E is one page of a tender proposal bearing date 2 October 2017 made by the First Defendant for the Plaintiff's property. Exhibit E is in fact p 16 of the 18 pages. Next to the words "completion of brick work" and before the sum of $58,445.83 proposed in that document has been written in purple ink 80,000. Then there is a signature. Then there is printed the name, Joe Ishac. The payment estimated date of 16 March 2018 has been struck through in purple ink and the date "10 May 18" has been inserted again using purple ink.

39. There is no dispute that Mr Ishac's signature is on Exhibit E. Left to me unaided by any expert evidence but using my own powers of comparison and perception, it appears to me that all three signatures have been made by the same person. However, that clearly is not the end of the matter. Mr Ishac strenuously denies that the signature next to the words "completion of timber walls" on Exhibit A is his signature.

40. Mr Ishac was a man who was difficult to get into the witness box and a man who was difficult to keep there. For example, the transcript of Wednesday, 19 October 2020 commences with my asking counsel whether Mr Ishac was present. Mr Baroni, who appeared for the Defendant, then told me that he was arriving at noon. The cross-examination of the Plaintiff then recommenced. After the Plaintiff left the witness box, the transcript continues thus:

"WIGGINS: I note the time, your Honour. I note Mr Ishac--

HIS HONOUR: Well, I was told he was only available this morning, then he didn't arrive until midday. So, I assume he's available this afternoon, is he? Look, it's 12.56. We can't be through his evidence in four minutes, can we?

BARONI: No.

HIS HONOUR: So, is there anything that can be rationally done in these four minutes?

BARONI: No, your Honour. Not for me anyway."

Mr Wiggins then started discussing with me the transcript. The luncheon adjournment was then taken. Mr Ishac was called at 2.16pm. Despite the fact that I was told that he had flown to Sydney from Melbourne, Mr Ishac gave as his address a house in Gerald Street, Greystanes. He then said that he is a business owner in both Melbourne and Sydney. By occupation, he is a carpenter. He made it plain that he did not like being in the witness box and did not like being questioned, but eventually, he settled down to giving his evidence.

41. He admitted that he had collected some cash amounts from the Plaintiff. He was unable to remember when he received them, which was fair enough because he pointed out that it was four years previously. He was then shown Exhibit A. The evidence continued thus:

"Q. The first signatures against the words 'timber walls' and the second signature and writing as next to 'timber roof'. You see that?

A. Yep.

Q. Then you see to the far side - to the right-hand side, you'll see two dates?

A. Yep.

Q. One is 3 March, and one is 7 April. You see that?

A. Yep.

Q. 2018. Now, can you tell his Honour in relation to 3 March where you were?

A. Well, I was not working for Sky Group.

Q. Where were you?

A. Well, I was at another job because I had a little gig that I had to finish off before my wife gave birth. Roy was well aware that I had to take time off because my son was due, and I was not working for Sky Group on that day.

Q. That's on 3 March?

A. Correct. I was at a job from memory in Campbelltown by myself.

Q. Can you have a look at the first signature. Do you recognise that signature?

A. No.

Q. What about the second signature?

A. Yes.

Q. Whose signature is that?

A. The second one is mine, but neither are the handwritings. I did not write any of that and I did not date any of them.

Q. So, as I understand your evidence, the only writing on there that's yours is the second signature?

A. Correct.

Q. And what was that in relation to?

A. Collecting money.

Q. How much?

A. It was 80,000.

Q. You recall what day that was?

A. No.

Q. No?

A. I did have somebody with me on the two occasions. So, the first occasion I picked them up, I had a guy named Joseph Temmo with me and the second time I picked up money, I had three people with me. One George Makdessi, one Joseph Temmo…and my younger brother, Fred Ishac. …I'm not going to pick up that sum of money on my own."

42. Mr Ishac then went on to say that Mr Temmo, Mr Makdessi and his brother Fred were contracting to him and not directly to the First Defendant. Later in-chief, there were put into evidence an affidavit of Mr Ishac sworn on 8 February 2019 in proceedings which were then on foot in the NSW Civil and Administrative Tribunal (“NCAT”) and also a statement made by Mr Ishac on 3 December 2019. They became Exhibits 9 and 10. In Exhibit 9, Mr Ishac admitted collecting $80,000 on Saturday, 7 April 2018 when he met the Plaintiff and her father at the construction site at St Clair. He also admitted that on Wednesday, 10 May 2018, he met with the Plaintiff who introduced him to her brother. The same affidavit refers to the Plaintiff’s handing him a further sum of $80,000 which he counted out with Joe Temmo and George Makdessi and then he left the site and drove to Mr Maalouf and handed him the money. On another occasion, he admitted that he received from the Plaintiff a cheque which he gave to Mr Maalouf after receiving it from the Plaintiff. That occurred on 3 July 2018. In par 5 of his statement of 3 December 2018, Exhibit 10, Mr Ishac said this:

"I didn't receive any payment to give Sky Group on the 3/03/2018 as I wasn't even at work for Sky Group. I had taken time off work on 02/03/2018 up until 12/03/2018. Reason for my time off work is because I had a private job I had booked in on 2 March 2018 until 6 March 2018 and my wife was booked to give birth on 8/03/2018, which both Roy and Monica were aware of. Please see attached copy of correspondence from client."

The copy text messages annexed to that statement indicate that the name of the client at Campbelltown was known as Dhanapal. The relevant message was sent on 2 March 2018 at 6.54am:

"Good morning, Dhanapal. I had two tradies call in sick, so I'll be coming tomorrow, not today, sorry."

43. In cross-examination, Mr Ishac admitted that he was the foreman for the First Defendant at the St Clair site. He said that from memory, he had been working for the First Defendant for "a couple of years" at the time. He admitted that he was authorised to accept payments from Ms Fransses in cash. He said that whenever he received money from Ms Fransses, he gave it to Mr Roy Maalouf. He admitted that Angelina Ishac, who was the "contracts administrator" for the First Defendant, was his sister. He denied that it was possible that he attended the site briefly on 3 March 2018.

44. It was suggested to him that he attended the site on 3 March 2018 and received a cash payment from the Plaintiff, but he denied that. This evidence was then given:

"Q. Did you have any correspondence with the plaintiff on that day by text message?

A. On what date?

Q. 3 March 2018.

A. I wasn't there.

Q. I didn't ask you if you were there. I asked you if you had any text message correspondence with her on that day?

A. No.

Q. Are you sure of that?

A. Yes."

He was then given a mobile telephone containing text messages and eventually answered:

"Q. And when she answered--

A. I don't remember receiving this message."

45. He again repeated that it was a long time ago and he could not remember receiving any text message. The text message eventually became Exhibit Q. On 3 March 2018 at 10.27am, the Plaintiff sent to Joe, the construction manager, which it is conceded was Mr Ishac, a message which says this:

"Hey, can you please bring a receipt today that you've received today's payment. Thanks."

46. Mr Ishac was then invited to click on "Joe construction manager" on the telephone and that showed up his own phone number. He then agreed that there was no response from him on 3 March to the text message sent to him by the Plaintiff. He accepted that there were other text communications between himself and the Plaintiff which again show up under "Joe construction manager" in the Plaintiff's telephone. Exhibit Q also shows that on 5 March 2018 at 8am, Mr Ishac sent the Plaintiff this message:

"Good morning, Monica.

The electrician just got back to me.

it's 63 amps each side."

47. To that, the Plaintiff replied "Thank you" at 12.20pm. Exhibit Q also shows another exchange between the Plaintiff and Mr Ishac on 20 March 2018. The text message of 5 March 2018 clearly shows that Mr Ishac, although he may not have been on site, was still actively working for Sky Group, albeit that he was, to use his own words, "doing my own thing". The text message sent by the Plaintiff on 3 March 2018 clearly indicates that she expected to meet with Joe and give him money for which she wanted a receipt. It has not been explained to me how the text message of 3 March 2018 recorded at 10.27am on that day could be bogus or subsequently invented.

48. It points strongly to the Plaintiff’s being correct in her recollection of what happened. The initial denial of Mr Ishac of having any communication with the Plaintiff about a visit on 3 March 2018 was incorrect. Clearly, he could not remember it. Clearly, he subsequently remembered receiving two lump sums of cash from the Plaintiff, but it is possible that he forgot about a lump sum payment on 3 March 2018. I find it very difficult to accept that the first signature on Exhibit A, the signature next to "completion of timber walls", is not the same signature as the second signature on Exhibit A.

49. It is not the same signature as is on Exhibit E. Further examples of Mr Ishac's signature are of course on Exhibits 9 and 10. The Plaintiff I found to be a witness on whom I could rely, a lady who in my view was highly unlikely to be deliberately giving false evidence. I accept her statement that she did give $80,060.40 to Mr Ishac on 3 March 2018. It appears to me that Mr Ishac forgot that. I accept however that he passed on any money he received from the Plaintiff to the Second Defendant, Mr Maalouf.

50. The evidence of Ms Fransses has been criticised in that she deposed to being in the company of her father, Nabil Fransses, in her affidavit, but no evidence about that was given by Mr Fransses, nor was he cross examined about not being there when that occurred. Many people can forget things, including older men. I accept that the payment of $80,060.40 was made in cash on 3 March 2018 as deposed by the Plaintiff.

51. I cannot leave the issue of the payment of 3 March 2018 without mentioning this about the evidence of Mr Ishac. Initially, Mr Ishac was joined as the Third Defendant in these proceedings. It was alleged that Mr Ishac was employed and/or retained by the First Defendant company to collect progress payments made to the First Defendant. The First Defendant alleged that the sum of $80,000 or $80,060.40 was paid to Mr Ishac, but he had not passed on the payment to the First Defendant. It would appear, by inference and not by pleading, that the cause of action against the Third Defendant was for money had and received to the use of the Plaintiff.

52. The proceedings against the Third Defendant were discontinued on the first day of the hearing, 17 October 2022, when the Plaintiff was unable to prove service of the initiating process upon Mr Ishac or service of any notice advising him of the hearing commencing on 17 October 2022. It was only after the proceedings against Mr Ishac were discontinued that Mr Baroni, who appeared for the First and Second Defendants, advised the Court that Mr Ishac would be called in the case for the Defendants. One can infer that Mr Ishac was upset by the fact that he had been joined in proceedings, and that it was alleged that he had done the wrong thing with a sum of approximately $80,000. He may have seen it as some sort of allegation that he had taken the money for his own particular use. That may have coloured his approach to the case, and may have caused him to deny the authenticity of the first signature on Exhibit A.

53. Clearly, there must have been some familiarity, perhaps a friendship, between Mr Ishac and Mr Maalouf, as not only did Mr Ishac work for Mr Maalouf and his company, but also Mr Ishac’s sister, Angelina, worked for Mr Maalouf and his company.

Statements

54. In addition to that consideration, there is another consideration. From time to time, the First Defendant issued statements. There are four statements before me. Three of them are annexed to the affidavit of the Plaintiff, which is Exhibit C. A further one of them is annexed to the affidavit of Mr Maalouf, which is Exhibit 11. The statements are variously described. The first one of which I am aware is headed “Statement to date”, and bears date 7 March 2018 (“the March Statement”). It can be found at court book volume 1, p 225. The second statement is headed “Progress payment statement”, and bears date 31 May 2018 (“the May Statement”). The third statement is called “August statement”, and bears date 23 August 2018 (“the August Statement”). The fourth statement is titled “September statement” (“the September Statement”), and is the additional statement annexed to the affidavit of Mr Maalouf. It can be found at court book volume 2, p 524. The other statement is headed “November statement” and bears date 20 November 2018 (“the November Statement”), and is found at court book, volume 1, p 267.

55. The March Statement is this:

Invoice number	Description of goods or services	Unit/rate	Totals
INV #25000	Deposit	Lump sum	$84,000.00
INV #25001	Completion of Demolition Work	Lump sum	$65,000.04
INV #25002	Completion of Concrete Piers	Lump sum	$70,056.00
INV #25003	Completion of Concrete Footings	Lump sum	$75,020.40
INV #25004	Completion of Concrete Slab	Lump sum	$80,060.40
INV #25005	Survey and Placing of Mark	Lump sum	$-------------
INV #25006	Completion of Timber Framed Walls	Lump sum	$80,060.40
VN #011	Supply and Install Extra Steel	Lump sum	$5,885.00
INV #25007	Completion of Timber Framed Roof	Lump sum	$80,060.40
Total (incl. GST)	$540,142.65
Amount Paid	$454,197.24
Amount Owing	$85,945.40

56. Variation 01 and invoice 2, and invoice 00 and invoice 07 were both issued on 7 March 2018, the same date as the statement is dated. Variation 01 was allegedly payable on 1 February 2018. Invoice 07 was allegedly payable on 14 March 2018. The total of $540,142.84 includes all of the sums, including VN 01 and invoice 07. The amount unpaid was the sum of the two last items before the total. This, according to counsel for the Defendants, was an incorrect reading of the statement. As invoice 07 was not payable until 14 March 2018, it could not be “owing” and, therefore, the sum of $80,060.40 that was “owing” was that for invoice 06. I do not read the document in that fashion. Invoice 07 is taken into account in the total. If it were not payable, if it were not "owing", it would not have been included in the statement.

57. In any event, what the statement means could only be explained not by counsel but by the person making the statement who would appear to be, on the evidence, Angelina Ishac. She was not called nor was her absence from the witness box explained.

58. The substance of the May statement is this:

Invoice Number #	Description of Goods or Service	Unit/Rate	Amount invoiced $	Amount Paid $	Amount Owing $
INV #25000	Deposit	Lump sum	$84,000.00	$84,000.00	$0.00
INV #25001	Completion of Demolition Work	Lump sum	$65,000.04	$65,000.04	$0.00
INV #25002	Completion of Concrete Piers	Lump sum	$70,056.00	$70,056.00	$0.00
INV #25003	Completion of Concrete Footings	Lump sum	$75,020.40	$75.020.40	$0.00
INV #25004	Completion of Concrete Slab	Lump sum	$80,060.40	$80,060.40	$0.00
INV #25005	Survey and Placing of Mark	Lump sum	$------------	$-------------	$-----------
INV #25006	Completion of Timber Framed Walls	Lump sum	$80,060.40	$80,060.40	$0.00
INV #25007	Completion of Timber framed Roof	Lump sum	$80,060.40	$80,060.40	$0.00
INV #25008	Completion of Brick Work	Lump sum	$80,060.40	$80,000.00	$60.40
INV #25009	Completion of Roof Tiles and Gutter	Lump sum	$80,060.40	$0.00	$80,060.40
VN #011	Supply and Install Extra Steel	Lump sum	$5,885.00	$0.00	$5,885.00
VN #002	Internal Garage Door	Lump sum	$478.50	$0.00	$478.50
VN #003	Garage Doors	Lump sum	$960.00	$0.00	$960.00
VN #004	Master Wardrobes	Lump sum	$440.00	$0.00	$440.00
$702,141.94	$614,257.64	$87,884.30

59. One will see that that shows payment of invoice 06, and payment of invoice 07, payment of the main part of invoice 08, and the non-payment of invoice 09, invoice 09 being payable on 7 June 2018. Again, the statement of 31 May 2018 includes sums that were not theoretically payable until a later date as did the March Statement.

60. The substance of the September statement is this:

Invoice #	Invoiced:	Due Date:	Paid:	Method of Payment:	Invoice Description:	Amount Invoiced (incl. GST):	Amount Received:	Amount Outstanding:
#2500	2/12/2017	4/12/2017	4/12/2017	Cheque	Deposit	$84,000.00	$84,000.00	$-
#25001	12/12/2017	19/12/2017	22/12/2017	Cheque	Completion of Demolitional Stage	$65,000.00	$65,000.00	$0.04
#25002	21/12/2017	28/12/2017	28/12/2017	Cheque	Completion of Concrete Piers	$70,056.00	$70,056.00	$-
#25003	12/01/2018	19/01/2018	24/01/2018	Cheque	completion of concrete footings	$75,020.40	$75,020.40	$-
#25004	12/01/2018	19/01/2018	24/01/2018	Cheque	completion of concrete slab	$80,060.40	$80,060.40	$-
#25006	22/02/2018	01/03/2018	9/04/2018	Cash Paid to Joe Ishac & banked by Roy	completion of timber framed walls	$80,060.40	$80,060.40	$0.40
#25007	7/03/2018	14/03/2018	10/05/2018	Cash Paid to Joe Ishac & banked by Roy	completion of timber roof	$80,060.40	$80,060.40	$60.40
#25008	24/04/2018	01/05/2018	5/07/2018	Transferred by Client Monica Fransses	completion of brickwork	$80,060.40	$80,000.00	$60.40
#25009	31/05/2018	07/06/2018	completion of Roof Tiles	$80,060.40	$ -	$80,060.40
#25010	13/06/2018	20/06/2018	Cash Paid by Robert	completion of plasterboard	$32,760.00	$30,000.00	$2,760.00
#25015	13/08/2018	20/08/2018	Cash Picked up by Roy from Ferrum Office	completion of tiles	$29,988.00	$19,000.00	$10,988.00
#25013	13/08/2018	20/08/2018	lock up stage	$50,4000.00	$50,400.00
#25016	14/09/2018	24/09/2018	completion of Kitchen	$29,954.00	$29,954.00
$837,480.40	$663,257.20	$174, 283.64

61. Again, in the second part of that statement, there are errors. It refers to invoice 05, but what it was really referring to is in 09, which was the invoice for completion of the roof tiles and gutters. It refers to invoice 06, but it was really referring to invoice 13 which was completion of the lock up stage, an invoice that was alleged to have been payable by 20 August 2018. It does not allege that the real invoice 06 had not been paid.

62. The substance of the November statement is this:

Invoice Number #	Description of Goods or Service	Unit/Rate	Amount Invoiced $	Amount Paid $	Amount Owed $
INV #25005	Completion of Roof Tiles	Lump Sum	$80,060.40	$0.00	$80,060.40
INV #25006	Lump sum	$50,400.00	$49,000.00	$1,400.00
INV #25010	Completion of Plaster Board	Lump Sum	$32,760.00	$	$32,760.00
INV #25015	Completion of Tiling	Lump Sum	$29,988.00	$0.00	$29,988.00
INV #25016	Completion of Kitchen	Lump Sum	$29,954.40	$0.00	$29,954.40
INV #25017	Completion	Lump Sum	$2,519.16	$0.00	$2,519.16
Variations
VN #002	Internal Garage Doors	Lump Sum	$478.50	$0.00	$478.50
VN #011	Supply and Install Extra Steel	Lump Sum	$5,885.00	$0.00	$5,885.00
VN #003	Garage Doors	Lump Sum	$590.00	$0.00	$590.00
VN #004	Master Bedroom timber wall	Lump Sum	$440.00	$0.00	$440.00
TOTAL	$49,000.00	$184,075.46
CREDITS REQUESTED BY CLIENT
Lump Sum	$3,000.00
Lump Sum	$960.00
GRAND TOTAL	$180,115.46

63. Again, there is a misnumbering of invoices 09 and 13 and, again, it does not allege that the real invoice 06 had not been paid. Counsel maintained that what had happened was that any moneys received were allocated to the longest outstanding account, such that the first payment of $80,060.40 was allocated to invoice 06 when it was in fact referable to invoice 07. That is a possibility but, again, the person who made the statements was not called to give evidence to explain what actually happened.

64. Furthermore, there is no forensic accounting evidence called, nothing akin to an audit of funds deposited in the accounts of the First Defendant which might show that there was no cash payment banked in the week following 3 March 2018, presumably on Monday 5 March 2018 or very shortly thereafter and that the first payment of $80,060.40 was in fact for invoice 07. Counsel's submissions do not take the place of evidence. The First Defendant's own records that are before me all indicate that invoice 06 was paid.

Invoice 10

65. The next issue is whether invoice 10 for $32,760 was paid. The Plaintiff in par [27] of her affidavit of 12 November 2021, which is Exhibit C, refers to receiving invoice 10 on or about 13 June 2018, at the same day when she was disputing invoice number 09. She does not give any direct evidence about the payment of that invoice. The invoice was paid in a strange fashion, according to the Plaintiff's case.

65. As I mentioned earlier, the Plaintiff's father is Mr Nabil Fransses. He swore an affidavit on 12 November 2021 which was filed on 16 November 2021. It became Exhibit J. That affidavit contains these paragraphs:

“6. My involvement in the matter is to the extent of the ‘cash funds’. I assisted the Applicant by contributing to the ‘cash’ funds on two separate occasions and by passing other additional funds to my friends to then be given to Roy (outlined below).

7. In early August 2018, I made the first of the two payments to Roy, in the amount of $25,000. Roy refused to count the amount of cash funds because he was in a rush.

…

10. To my understanding, all funds given to Robert, Billy and Sonia had given to Roy in full. Roy signed a document confirming receipt of funds from Robert in the amount of $30,000, and a secondary document confirming receipt of funds from Billy and Sonia in the total amount of $19,000.

11. I made the second payment in August 2018 in the amount of $11,000. At this instance, I made Roy count the funds and confirm the amount to avoid any further issues.

12. I annex and mark ‘A’ a copy of a document signed by Roy acknowledging receipt of the total funds, in the amount of $35,000.”

67. On the application of Mr Baroni, I struck out pars [8] and [9] of that affidavit but granted the Plaintiff leave to adduce the appropriate evidence orally from Mr Fransses. Mr Fransses was called and gave evidence orally on 19 October 2020. No interpreter was sworn on that day. However, an interpreter was sworn on the morning of Thursday 20 October 2022 to translate the Arabic into the English language and vice versa. The cross-examination of Mr Fransses then continued.

68. One will see at the commencement of the transcript that Mr Fransses was asked what was his native language, which the interpreter interpreted as "Egyptian". I then asked whether that meant the Arabic as spoken in Egypt or the Coptic language. The interpreter made it clear that Mr Fransses was speaking Arabic as it is spoken in Egypt. As I understand it, Mr Maalouf has a Lebanese background. In his broken English at the commencement of cross-examination, Mr Fransses was asked whether he knew the date when he is alleged to have made payments to Mr Maalouf. He answered in this fashion:

"I can't remember the date, but I give to him the money house, Monica house, the new house 25 May and second day, he call me, they have a less 1000. He come in my work. He take it, 11,000. I give him 10,000 extra and 1,000 for the less one. I got angry with him..(not transcribable)..less 10,000. I give already 25. He told me less 1,000, and second day he come take 11,000 because one place 1,000. Around $25,000 second day.”

The witness was trying to tell me that, on one day, he gave to Mr Maalouf $10,000, and Mr Maalouf later told him that he was short $1,000. That led to his giving to Mr Maalouf on the second day a further $10,000, plus an extra $1,000 to account for the shortfall found by Mr Maalouf.

69. Other moneys that Mr Nabil Fransses had given to others were given by those others to Mr Maalouf. The others were Ms Sonia Bartolo, who swore an affidavit on 12 November 2021 which became Exhibit L. Paragraphs [6], [7], and that part of [8] which was not struck out are these:

“6. I am a friend of… Nabil and assisted him with one of the cash payments, since he does not speak or read English well.

7. In early September 2018, I received cash funds in the amount of $8,000 from Nabil. I provided this entire cash sum to the second defendant

The second defendant counted the cash amount and confirmed the amount of $8,000.”

70. An affidavit was sworn by Mr Billy Bou Francis on 11 November 2021. It contains these paragraphs:

“5. I am a friend of… Nabil and assisted him with one of the cash payments, since he does not speak or read English well.

6. In early September 2018, I received cash funds the amount of $11,000 from Nabil, which was to be paid to the second defendant. On the same day, the second defendant attended my place of work to collect the funds.

7. The second defendant counted the cash amount and confirmed it to be the amount of $11,000.

8. I witnessed the second defendant write and sign an acknowledgement confirming receipt of funds in the amount of $19,000.”

71. According to Mr Nabil Fransses, he paid $35,000 in cash to Mr Maalouf for invoice 10, the invoice for the completion of plasterboard, which was for the sum of $32,760. According to Mr Nabil Fransses’s affidavit of 22 June 2022, which is Exhibit K, that $35,000 was paid in this fashion. His affidavit contains these paragraphs:

“6. I assisted the Applicant by directly making cash payments to Roy on two separate occasions, and by passing other additional funds to my friends, who then provided the money to Roy. I set out those matters in detail, below.

7. In early August 2018, I met Roy at the Site to make the first of my two payments to him. I handed to him cash in the sum of $25,000. I know that was the amount because I said words to the effect of: “can you make sure that it is $25,000”, to which he responded: “I am in a rush, I have to leave but I’ll count it later and let you know”.

8. Later that day, I received a telephone call from Roy, and we had a conversation to the following effect: “you were short $1,000, you only gave me $24,000”, I said: “that’s not true, both my wife and I carefully counted the cash and confirmed that it was $25,000”. He said: “I’m telling you, it is only $24,000”.

9. I reluctantly agreed to make another $1,000 payment (accounted for in my second cash payment, particularised below).

…

14. In or around August 2018, I made a further payment of $11,000 to Roy at a factory located in Smithfield, known as the “Smithfield Steel Fabrication Factory”. I handed the cash to Roy and we had a conversation to the following effect: “This is $11,000. Please count the money and give me a receipt confirming everything I gave to you.” I insisted that Roy count the funds while I was there and confirm the amount to avoid any further issue.

15. I also requested that he prepare and sign a receipt confirming that he received a total amount of $35,000 directly from me (being, $24,000 at the first instance, and a further $11,000 at the second).

16. I witnessed Roy preparing and signing the receipt confirming my two cash payments, amounting to $30,000. I annex and mark A, a copy of the receipt that I saw Roy prepare and sign.”

72. In evidence are three documents which are alleged to be original receipts signed by Mr Maalouf. The original of annexure A to the affidavit of Mr Nabil Fransses, which I have just cited, is Exhibit G. There are also in evidence documents allegedly signed by Mr Maalouf on 9 August 2018, which is Exhibit F, and another document allegedly signed by Mr Maalouf on 12 September 2018, which is Exhibit H.

73. There is no dispute that Mr Maalouf’s signature is contained on the receipt of 9 August 2018, the original of which is Exhibit F. For reasons which are given in due course, I cannot be satisfied that the receipt allegedly signed by Mr Maalouf on 12 September 2018 is his signature. It bears no resemblance to the signature on Exhibit F, nor does not bear any resemblance to any of any other signature of Mr Maalouf which is before me including, in particular, his signature on his affidavit, which is Exhibit 11. The next question for my determination is whether the receipt of 21 August 2018 has been signed by Mr Maalouf. The first thing to note about the document is that the date and the words “I have received $35,000 in cash towards project cost of build in St Clare. Regards”, are in black ink and appears not to me to be a ballpoint pen. The signature on it is in blue ink and appears to be a blue biro/ballpoint pen. Why it is signed in a different pen to the receipt itself is unclear. Mr Maalouf said that he did not write the words in black ink and I can accept that.

74. Furthermore, Mr Maalouf said he did not write the words on the receipt of 9 August 2018 which contains his genuine signature and I accept that. Each of those documents have misspelt the word “received” by spelling it “recieved”. The same misspelling also occurs on the receipt of 12 September 2018, but clearly the hand that wrote that document was different to the handwriting contained on Exhibits F and G. Modern standards of education do not greatly insist upon correct spelling, however even for a person of my vintage it is common enough to see people misspelling words by always putting an I before an E, even following the letter C. The mark on Exhibit G is similar to that on exhibit F, but there is a subtle difference.

75. Having considered the matter closely, I just cannot be satisfied that Mr Maalouf’s signature is contained on Exhibit G and it appears to have been made by somebody attempting to replicate his signature. It may be that the person who was someone seeking to replicate his signature has relied upon Exhibit F in making Exhibit G. Having said that, although the evidence of Mr Nabil Fransses can be criticised, I did not form the view that he was seeking to mislead me, that he was attempting to give false evidence. Indeed, one could understand a man such as Mr Nabil Fransses seeking to assist his daughter in the project she had of building two dwelling houses on her block of land at St Clair and, if he could, giving her financial assistance which he says he did. In not providing financial assistance which his daughter needed, he would be jeopardising the very project she had undertaken. I am prepared to accept that Mr Nabil Fransses did give to Mr Maalouf the $35,000 to which he has deposed.

76. The fact that he sought to introduce a receipt, which I cannot accept as genuine, does not redound to his credit at all, but, underlaying his action was his attempt to support his daughter's case. However, the reliance upon a false receipt does not, in my view, make it unlikely or implausible that he did assist his daughter by paying moneys demanded of her by the defendant to assist her in the project which she had undertaken.

77. Again, one must then look to the statements issued by the First Defendant about invoice 10. The August statement which I have quoted above clearly indicates that payment was received for invoice 10. Invoice 10 is not mentioned in the September statement as being outstanding but it is said to be outstanding in the November statement. However, the November statement was generated on 20 November 2018 and the First Defendant had purported to rescind the contract in order to terminate the contract on 2 October 2018, so that the November statement was issued well after a dispute had arisen between the parties to the contract. Again, there is proof of the receipt of the payment in the defendant's own documents.

78. I have been addressed at some length by Mr Baroni for the defendants about the allegation that consistently throughout the statements one can see a missing $80,000 approximately. However, one cannot see and I was not addressed to the effect that since the issue of invoice 10 on 13 June 2018 there has been consistently a difference of $115,000 thereafter. What counsel had to say about a consistently missing $80,000 does not reflect the deficit in payment of $115,000 from 20 June 2018 when invoice 10 was theoretically payable. In any event, I am not persuaded that there is a continuous absence of some $80,000 at all material times because that is inconsistent, indeed, with the defendant's own statements.

79. Just returning to the signature issue, exhibit H is the statement in which Mr Billy Bou Francis says that he witnessed Mr Maalouf write and sign on 12 September 2018 for sums of money which were paid for invoice 15, tiling. There is no dispute that the $19,000 referred to in the receipt of 12 September 2018 was actually received by the defendant. It appears to have been allocated to invoice 15. The making of the receipt, the original which is Exhibit H, was not necessary and appears perhaps to have been a document that was made by Mr Billy Bou Francis and is entirely in blue ink.

80. As I said earlier, I am not persuaded that the signature on it is that of Mr Maalouf and it bears no resemblance to any signature of Mr Maalouf. It was a completely unnecessary document, no doubt generated by somebody who wished to corroborate his evidence. Who may have been the decision maker in the making of that receipt, I do not know. In any event, it is largely irrelevant because the First Defendant admits that it received that money.

Further arguments

81. It is common ground that if I accept that the Plaintiff paid invoice 06 and invoice 10, the First Defendant was not entitled to terminate the contract as there was nothing outstanding at the time. There are a number of arguments which I need to canvas which were canvassed in addresses. The first thing to note is that at no time did the First Defendant take into account the deposit of $84,000. There was no dispute that it was actually paid on 4 December 2017.

82. Under cl 17.1 of the contract, which I cited earlier, the deposit was to be brought into account with the first progress payment. The first progress payment, invoice 01, was for $65,004. The Plaintiff should have been given a credit for that sum from the $84,000. Insofar as the $84,000, it was not entirely taken into account by payment of the first progress payment, one would expect the remaining $19,000 "credit" to be taken into account on the second progress payment. However, each progress payment was paid for separately without the deposit being taken into account. According to the computation of Counsel for the Plaintiff, Mr Wiggins, as at 2 October 2018 the Plaintiff had been invoiced $809,172.43, which included the deposit sent to the Plaintiff by the First Defendant totalled $809,172.43. At 2 October 2018 the Plaintiff had paid to the First Defendant $779,357.20 but that included the deposit which was a credit in favour of the Plaintiff. In fact, the Plaintiff was in credit in the sum of $54,184.76. That, of course, does not allow for the variations which it is common ground were not paid for by the Plaintiff. The variations were billed in the sum of $8,872.20 but have been agreed by the experts retained by the parties in the experts' joint report, which is Exhibit O, to be $6,803.50.

83. The submissions made on behalf of the Defendants in essence asked me to ignore the fact that the First Defendant allowed no credit to the Plaintiff for the deposit as required by the contract. According to Mr Baroni, cl 17 applies despite any failure of the defendant to bring the deposit into account with the first progress payment. He relies upon cl 17.2 despite his client's failure to observe the ultimate provision in cl 17.1. In his submission, any time the builder served a progress payment invoice, the Plaintiff was required to pay it within the five working days stipulated in cl 17.5. In his submission, cl 17.6 required the Plaintiff to ignore the fact that the First Defendant had not given her credit for the deposit - and the only way to deal with an issue of this type was by the invocation of the dispute resolution procedure in cl 35.

84. In argument, I postulated that it might be possible that somebody might pay, for example, half the contract price at the beginning of the works if the cash were readily available to the owner of the property - and that cash payment could be eaten up in the same way as the deposit is supposed to be eaten up under the contract. That is, each progress payment could be taken from the lump sum paid at the commencement of the project until the lump sum had been fully allocated to progress payments, and then the obligation would arise upon the owner of the property to pay to the builder each progress payment in accordance with the contract.

85. According to Mr Baroni, the contract could not allow such a mechanism. Learned Counsel for the Plaintiff referred me to [10.34] of Cheshire and Fifoot Law of Contract, 11th Australian edition, Butterworths 2017. I also considered [10.35] of the same work, and the case law referred to therein. One could infer or import into cl 17.2 a rider “unless the owner is in credit on account”. Such an implication of words would give the contract business efficiency and efficacy. Similarly, the last sentence of cl 17.1 could have inferred into it that the deposit was to be brought into account with the first progress payment, and any subsequent progress payment, until the deposit be exhausted.

86. However, fortunately, the issue does not arise. Mr Maalouf, when giving his evidence, sought to justify not giving the Plaintiff credit for the deposit because of all the work that he had done on the project from September 2017 until 4 December 2017 - that is, the work that he did in providing the quotation and the like. With the utmost respect to him, that is not permitted under the contract at all. Sometimes, those seeking quotations make an offer to pay the cost of preparing a quotation - but I do not understand that to apply to ordinary home building contracts. Such often occurs with large commercial projects, and sometimes with large government contracts. However, the work to be done in a home building contract is much less. The work in preparing a tender and making a quotation can be seen as analogous to a shopkeeper who rents a shop, fits it out at his own expense, then orders in stock to display in the shop in the pious expectation that customers will enter the shop and buy what is on sale. Of course, a number of businesses fail because the latter does not occur. Any proprietor of any business necessarily takes risks, and a person such as a home builder takes the risk of preparing quotations which ultimately are not accepted. That is part and parcel of carrying on the business.

87. If Mr Maalouf wanted a person to whom he was giving a quotation to pay for the work in preparing the quotation, he should have told the person concerned that initially, and make a collateral or additional contract for payment for such work. However, that did not occur. The First Defendant cannot use the deposit for an extraneous consideration.

88. Necessarily, I have not accepted the evidence of Mr Maalouf who said that the payments for invoice 06 and invoice 10 did not occur. His evidence I found to be unsatisfactory in that when cross-examined about the structure of his business, the First Defendant, its directorships, how it was operated and the like, and why there were so many changes of directors, and who had the builder’s licence. After all, a company is a legal fiction and has no mind or body, has no hands with which to build anything, and must act through human agents. There had to be somebody with a builder’s licence. And that appears to have been Mr Maalouf at material times. I found his evidence about such matters to be completely unsatisfactory. When I look at the work which was actually done for the Plaintiff, the photographs taken by Mr Capaldi and the Plaintiff’s expert, the work was very unsatisfactory. Indeed, a lot of it could be classified as “shoddy”.

89. I prefer, as I said, the evidence of Ms Fransses - and, to the extent that I did, of her father, Mr Nabil Fransses.

90. It follows from my finding, and concession made by learned Counsel for the Defendants, who accepted that if invoices 06 and 10 were paid, as alleged by the Plaintiff, the First Defendant had no right to terminate the contract. As the First Defendant was not justified in terminating the contract, then the claim for quantum meruit must fail.

Quantum

91. The quantum of the case for the Plaintiff has not been particularised in any way in the Statement of Claim. The claim made by the Defendant in the Defendant’s cross claim has been particularised to an extent. For example, in par [15] there is a claim for $144,208.40. In cl 16 there is a reference to Annexure A, a statement made by Mr Maalouf on 1 October 2019 which is Exhibit S, being a document prepared by Mr Maalouf for use in NCAT. In cl 17, there is a claim for $8,872.20 being the charges made for the variations. However, underneath that quantification are these words which were clearly inserted by whoever drafted the document; “ROY - the margin needs to be included in each variation,” which was clearly a direction to Mr Maalouf. In par 23, the cross-claimant sought judgment in its favour against the cross-defendant, the Plaintiff, for $183,034.60 in the alternative on a quantum meruit and interest at the contractual rate of 20% per annum, on the sum of $110,233.76 in accordance with cl 33.1 of the contract.

91. The Plaintiff obtained a quotation from Ambassador Services Pty Ltd of Auburn. The quotation bears date 21 December 2020 and was for the sum of $198,630 plus GST. Plaintiff conceded in cross-examination that that firm was retained and performed the work. Learned Counsel for the Plaintiff conceded that that was the quantum of his case. When one adds GST to $198,630, one reaches a figure of $218,493. Counsel for the Plaintiff concedes that amount should be reduced by the amount agreed by the experts retained by the parties for the value of the variations, which was $6803.50.

92. It should be noted that there was a further invoice numbered 25100 issued on 20 November 2018, that is, after termination. The amount was a back charge for work done to the lock up stage. However, the amount paid to Ambassador Services Pty Ltd is in addition to that work.

93. Despite the Plaintiff’s obtaining that quotation and engaging that company to do the work in question, each party retained an expert. The Plaintiff retained Mr Anthony Capaldi of Tyrrells Property Inspections Pty Ltd of Gladesville. The material prepared by Mr Capaldi is the contents of volume 3 of the court book, being pp 777 to p 1086, a very lengthy report and replete with large numbers of photographs which show the poor workmanship about which I have already commented. The cost to complete unit 1 according to Mr Capaldi’s report was $113,676.08. He estimated that the costs to complete unit 2 were $114,715.85. He also estimated the cost of rectification on the work done on unit 1 was $36,880.25, and the cost to rectify the faulty workmanship on unit 2 was $61,248.77.

94. On the other hand, Mr Hall estimated that the total cost to complete both units was $102,232.12. Mr Hall commented on rectification costs but provided no total for what he said they were. I am told by learned counsel for the plaintiff that they amount to $60,672.18. One might be forgiven for thinking that this was a contest between Mr High and Mighty and Mr Stout and Skinny. There was a joint report, Exhibit O, but in Exhibit O the experts were not able to agree on everything. Fortunately, because the damage was rectified and the works were completed by Ambassador Services Pty Ltd for a sum of money in between those of Mr Capaldi and Mr Hall, I do not need to go through laboriously each item about which there has been disagreement.

95. The problems with the expert evidence is that each expert provided an assessment on a different basis. Mr Capaldi went through each room of each of the two units separately, and by room I include the internal garages. He provided an estimate of the costs of making good as far as rectification was concerned and completing work as far as completion was concerned. Mr Hall proceeded on the basis of looking at the work in globo and then estimating the cost of the various trades to, for example, complete the works. For example, in his cost to complete the works there is a division into “supply and install kitchen benchtops and complete kitchen.” But then a section for plumbing, a section for air-conditioning, a section for electrical work, a section for caulking, a section for wardrobes, a section for painter, a miscellaneous section, and external works. He also allowed a global sum for all the painting work which he estimated would take some 64 hours and the rate for a painter was $58.50 per hour.

96. The problem is that I have been asked to compare apples with oranges. The methodology of Mr Capaldi whilst acceptable in theory, suffers from a defect. For example, in the cost to complete unit 1 he considered firstly, ceiling insulation, then the roof access hatch, then air-conditioning, and then turned to each individual room. For the first-floor bathroom his first item was to install a window restrictor which cost $14.90, but would take one hour to install at the rate of $59.75 per hour. The same provision was made for the walk-in wardrobe, the first-floor study, the second bedroom, the third bedroom, and the fourth bedroom. However, the evidence suggests that the installation of a window restrictor might take only five minutes. The methodology adopted by Mr Capaldi allows too much for certain work. All the window restrictors to be installed in unit 1 might only have taken an hour to complete in total, if that. The minimum unit of time that was used by Mr Capaldi appears to have been a half hour when certain jobs would take nowhere near such an amount of time.

97. One might compare solicitors charging in units of six minutes as a minimum, but if they charged in minimum times of half an hour, their bills would be much greater than they are already. In that one way the sums provided by Mr Capaldi may be seen as too great. On the other hand, the methodology adopt used by Mr Hall does not give an adequate explanation of what work was needed

98. Suffice to say I need not approach the matter any further, other than to point out that Mr Hall’s primary report bears date 9 December 2019. Mr Capaldi’s primary report bears date May 2019, that is both experts were retained by the parties prior to the quotation given by Ambassador Services Pty Ltd to the plaintiff on 21 December 2020, and prior to it completing the works, and doing the necessary rectification. One can understand, therefore, why the experts were retained and when they had been retained, the lawyers thought it necessary to favour the Court with their very lengthy reports.

99. Now, there is no evidence before me as to when the work was completed by Ambassador Services Pty Ltd, nor when the work was paid for by the plaintiff, and, therefore, I do not know from what date any interest would be payable for that work. The sum of $218,493 less the amount agreed by the experts for the variations of $6,803.50 is the gross sum paid to Ambassador Services Pty Limited, reduced by the amount agreed by the experts for the value of the variations is $211,689.50. Counsel for the Plaintiff also points out that when one takes into account the value of the deposit, that the plaintiff was still in credit in the sum of $54,184.76 as at the date of termination of the contract, and even after some further payments were made by the Plaintiff on 20 November 2018. If one adds that credit, which should have been allowed by the defendant, one reaches a sum of $265,874.26.

100. On the remaining issue, I shall hear from the parties as to what to do with the claim against Mr Maalouf personally, the claim for money had and received by him, to the use of the Plaintiff. The cause of action is pleaded in par [19] of the Amended Statement of Claim. I do not know what became of the $80,060.40 which was given to Mr Ishac on 3 March 2018. He said it was given to Mr Maalouf. Mr Maalouf said that he did not receive it. It is of course possible that he did receive it and forgot about it. There is no evidence that it was used by Mr Maalouf for his own purposes. He may, if he received it, have given it to Angelina Ishac and she could have banked it, but misallocated it to the wrong client. I just don’t know what happened to it.

101. The Plaintiff bears the onus of proving the cause of action against Mr Maalouf personally. The only sum actually claimed that could fall within the claim is the $35,000.00 paid by Mr Nabil Fransses to Mr Maalouf in or around early August 2018. That is the amount for invoice 10. Although I accept that it was handed by Mr Fransses to Mr Maalouf, I do not know what happened to it. Mr Maalouf may have given it to Angelina Ishac for her to bank it, and she may have lost it, or she could have banked it and made no record of it, or allocated it to the wrong account. Again, I just do not know.

102. The Plaintiff, as I said has the onus of proving that the money was had and received by Mr Maalouf, to the use of the Plaintiff, and I am afraid that that has not been established. For those reasons the claim against Mr Maalouf is dismissed. It follows from my findings that the cross-claim should also be dismissed.

Orders

104. I give verdict and judgment for the Plaintiff against the First Defendant for $265,874.26.

105. I give verdict and judgment for the Second Defendant against the Plaintiff. The cross-claim is dismissed.

Amendments

02 February 2024 - 2/2/24

1. Defendant changed to state First Defendant throughout.

2. Grammatical corrections.

Decision last updated: 02 February 2024