Hanania v Parramatta Wholesale Cars Pty Ltd - [2022] NSWSC 806

Supreme Court

New South Wales

Medium Neutral Citation: Hanania v Parramatta Wholesale Cars Pty Ltd [2022] NSWSC 806
Hearing dates: 2; 3; 4; 5; 6 Sept; 26; 27; 28; 29; Oct; 4 December 2020
Date of orders: 21 June 2022
Decision date: 21 June 2022
Jurisdiction: Common Law
Before: Campbell J
Decision:
See paragraph 329

Catchwords:
EQUITY – trusts and trustees – remedial constructive trusts – Baumgartner principles – where the land is included as an asset of a partnership – quantification of contributions of parties - whether there has been relevant premature termination constituting unconscionability of retaining sole legal title – whether appropriate relief required imposition of a constructive trust over the property as tenants-in-common
CORPORATIONS – shares – rectification of share register – application to correct the register pursuant to s 175 Corporations Act 2001 (Cth)
LEASES AND TENANCIES – rent and outgoings – payment of rent – where rent not paid by a tenant in common

Legislation Cited:
Conveyancing Act 1919 (NSW), s 66
Corporations Act 2001 (Cth), ss 175, 178A, 178C
Evidence Act 1995 (NSW), s 140
Partnership Act 1892 (NSW), ss 22, 32
Real Property Act 1900 (NSW)
Residential Tenancies Act 2010 (NSW)

Cases Cited:
Aerolink Air Services Pty Ltd v Bankstown Airport Ltd [2022] NSWSC 587
Austin v Hornby (2011) 16 BPR 30,623; [2011] NSWSC 1059
Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Cobbe v Yeoman’s Row Management Limited [2008] 1 WLR 1752
Darby v Darby (1856) 3 Drew 495; (1856) 61 ER 992
Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51
Federal Commissioner of Taxation v Everett (1980) 143 CLR 440; [1980] HCA 6
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10
Grant v John Grant & Sons Pty Ltd (1950) 82 CLR 1; [1950] HCA 54
In the matter of Motasea Pty Ltd [2014] NSWSC 69
Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78
Nicolitsa Togias v State of New South Wales [2021] NSWSC 1588
Priestley v Priestley [2017] NSWCA 155
Re Mogul Stud Pty Ltd [2012] NSWSC 1639
State of New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247
Watson v Foxman (1995) 49 NSWLR 315
Woods v McKinley (No 2) [2021] NSWSC 1510

Texts Cited:
Nil

Category: Principal judgment
Parties: George Shukri Hanania;
Raymond Hanania;
Ghada Hanania (Plaintiffs)
Issa Hanania (Defendant and cross-claimant)
Elias Hanania (Fifth Cross Defendant)
Representation:
Counsel:
A Duc (Plaintiff)
C.D. Wood SC and NCC Simone (Defendants)
B Balasubramanian (Solicitor) (Fifth Cross Defendant)
Solicitors:
Williams the Law Firm (First and Second Defendants)
Attia Lawyers and Consultants (Plaintiffs)
Marsdens (Fifth Cross Defendant)

File Number(s): 2018/16534
Publication restriction: Nil

Judgment

These proceedings are concerned with a dispute about land holdings among members of the Hanania family. The immediate subject matter of the dispute involves commercial premises at 301 Church Street, Granville (“the land”) forming part of the land on which a used car sales business, known as GR Quality Wholesale Cars (“GRQWC”) is conducted. The business is also run from adjoining land at 305 Church Street, which property is not in dispute in these proceedings. A second issue concerns the control of the first defendant, Parramatta Wholesale Cars Pty Ltd (“PWC”), which according to the view I have formed of the evidence, is the corporate entity through which the used car sales business is now conducted. The particular interest of the parties in that company for present purposes relates to its ownership of other commercial premises, Lots 3 and 4 Parramatta Rd, Granville. Title to that land is not questioned.
Without intending any disrespect, for clarity, I will refer to the various members of the Hanania family involved in the proceedings, one way or another, by their given names.
The plaintiffs are George Shukri, the patriarch, his son Raymond and daughter-in-law, Ghada, who is married to Raymond. They are the registered proprietors of the land: George Shukri as to 50 percent as tenant in common; and Raymond and Ghada jointly as to the remaining 50 percent as tenants in common with George Shukri. The relief they seek is judgment for possession of the land and recovery of, what they say is, unpaid rent. The basis of the claim for possession is PWC’s failure to pay the rent formerly paid to Raymond and Ghada for its use of the land.
George Shukri also seeks an order under s 175 Corporations Act 2001 (Cth) for a correction of the register of PWC so that he is shown as having the sole shareholding, i.e.100 percent of the shares in the company to the exclusion of another of his sons, Issa, the second defendant (see Further Amended Statement of Claim (“FASOC”) [33] and [35]).
Issa resists the claim for possession by arguing he has an equitable proprietary interest in the land. By the first cross claim he seeks a declaration that George Shukri, Raymond and Ghada hold a one-third, or alternatively one-quarter, interest in the land on a remedial constructive trust for him, a transfer of his interest and, in the alternative, equitable compensation. He also seeks orders under s 175 Corporations Act setting aside a purported transfer of PWC shares to George Shukri. I should say that according to the evidence before me (Exhibit 1) Issa has already had George Shukri’s name removed and his own restored. Accordingly, I apprehend that those orders are otiose. Issa denies that George Shukri has any entitlement to any shares in PWC. For clarity I record that the first to fourth cross-defendants respectively are George Shukri, Raymond, Ghada and PWC, the last because of the orders originally claimed in relation to what Issa styled the purported share transfer.
The fifth cross-defendant is yet another son of George Shukri, Elias. The circumstances in which Elias came to be a party are fully set out in my judgment of 6 September 2019 published with this judgment. For present purposes suffice it to say, he was at one time an active partner in GRQWC. He too claims an interest in the land and for this reason has been joined as the Fifth Cross Defendant. Elias has filed the second cross claim claiming a one-third, or in the alternative one-quarter, equitable interest in the land by way of estoppel by representation. He also claims a remedial constructive trust in respect of his interest and the transfer of it to him. It is appropriate to say contextually that Elias conducts his own used car business from premises at 299 Church Street which also adjoin the land. Various members of the Hanania family including George Shukri, Issa and Elias are registered proprietors.

Other members of the Hanania Family

Among the persons who will be mentioned in the narrative are other members of the Hanania family and associates. While these persons are not of central significance it is appropriate to identify them now for context. Elen (sometimes referred to as Elaine) is George Shukri’s wife; Fayrouz (sometimes referred to as Feroz) is Issa’s wife; and Lucy is Elias’s wife. Each of them and Ghada are mentioned in various accounting and tax records as recipients of parts of the distribution of the profits of GRQWC, presumably under a Federal Commissioner of Taxation v Everett (1980) 143 CLR 440; [1980] HCA 6 arrangement with her husband. But the evidence does not make this explicit.
George, the son of Raymond and Ghada, was involved with his father, and Elias as it happens, in what appears to have been a clandestine operation on or about 16 January 2017 to wrest possession and control of one-half of the land from Issa and PWC by running a fence along the notional centre line of the land, presumably representative of Raymond and Ghada’s “share”. George runs his own used car business from this portion of the land.
Issa’s son, Steve, gave evidence about a conversation amongst George Shukri, Raymond, his father and himself during which Issa asserted an entitlement to one-third ownership in December 2018. His evidence does not extend to an acknowledgment of this entitlement by either Raymond or George Shukri.
Mrs Sylvia Alkhas is a niece of the brothers, the daughter of a sister, not otherwise involved in the proceedings. She is a licensed conveyancer by profession and gave evidence about having prepared a transfer of an interest in the land in Issa’s favour in or around 2011. Evidence about that topic was also given by a colleague of Mrs Alkhas, Ms My Yen Vuong. I will return to their evidence at the appropriate time.
An exception to the general statement that other members of the family were not centrally involved is Nida, one of four daughters of George Shukri and Elen. Nida’s evidence is of some importance as she was involved administratively in the running of the business of GRQWC and PWC for many years. She kept such primary books of account as were maintained for the purpose of the business. Essentially this came down to a handwritten notebook referred to as the “Red Journal” (MFI 5). The original was not tendered in evidence, but various copied extracts of it were attached to affidavits of the principal witnesses. There were other handwritten records prepared by Nida. Although called in her father’s case and generally supportive of George Shukri’s position, Nida’s evidence was not especially damaging to the case of Issa or, for that matter, Elias.

Distillation of the issues

Certainly, of the position of Issa and PWC it can be said that unless Issa establishes an interest in the land, the claim for possession must succeed given his admitted discontinuance of the rental payments and a somewhat informal notice to quit (Exhibit B) served on behalf of Raymond, Ghada and, curiously, George Shukri. I say curiously, because PWC, the company George Shukri claims to own and control, runs its business from the only portion of the land occupied by it. Possibly, some unpaid rent is due.
Although in the way of these things, the question about ownership of the land was presented with a great deal of elaboration, it perhaps, in my view could have been reduced to the question in substance of whether it formed part of the property of the partnership which carried on business as GRQWC when it was entered into. However, the case for each of Issa and Elias is not formulated by reference to the Partnership Act 1892 (NSW) and there may be legal reasons for that. The partnership agreement was not reduced to writing by deed or otherwise. Indeed, Mr Wood SC, who appeared with Mr Simone for Issa, urged me not to approach the case by reference to the question whether the land was partnership property.
Elias is not in possession of any part of the land and no relief is sought against him by George Shukri, Raymond and Ghada. His claim is therefore freestanding and unrelated to the issues joined between Issa, on the one hand, and George Shukri, Raymond and Ghada, on the other. Naturally, the factual matrix is common and his cross-claim is similar to Issa’s.
Likewise beneficial ownership of the shares in PWC to my mind turns on the question of who was or were the active participant or participants in the business of GRQWC when PWC was incorporated on 7 April 1997. Although others were involved at PWC’s inception, as I will explain, by 17 March 1998 at the latest the company was, to use a neutral expression, wholly controlled by Hanania interests and operated GRQWC business from the land. Although Issa presented it as a “new business”, I am satisfied that it eventually assumed conduct of the previous business. Indeed, on 6 April 1998 PWC became proprietor of the business name, (Exhibit 8, tab 71, p. 6770) GRQWC (Exhibit 8, tab 71, p. 6770). By about the 2000 financial year the GRQWC partnership appears to have ceased to trade in used cars although there is no evidence it was dissolved in any formal sense: cf s 32(b) Partnership Act.
Each camp of the Hanania family has engaged in various machinations over the decades to wrest control from the other. I am, of course, not concerned so much with these machinations as with the substance of the case. To a large extent the machinations have been a distraction.

A cautionary note

The central events occurred nearly 25 years ago. While there are many contemporaneous documents extant, as I have pointed out the arrangements governing the entry into the GRQWC partnership by George Shukri, Raymond, Issa and Elias were not reduced to writing. As Mr Duc of Counsel, who appeared for the plaintiffs, argued, the oft-cited passage from the judgment of McClelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315, the different context notwithstanding, has application. Essentially, the thrust of the evidence of George Shukri and Raymond is that they bought the land, it never formed part of the partnership property and Issa and Elias were invited to join the partnership upon the payment of the consideration of $100,000 each to work in the business and take an equal share of the profits. An interest in the land was not offered to them. George Shukri and Raymond, especially the latter, were adamant that they intended to keep the land for themselves.
Although their interests are not identical, Issa and Elias were equally adamant that they were offered a share of the land as well as the profit. Each maintained that they would not have entered the partnership were it otherwise.
When one bears in mind that the contract for the purchase of the land was completed as long ago as 11 April 1998 (Exhibit 7, tab 7) and that the business conducted from it was enough of a going concern by the end of the 1987-1988 financial year to have turned a profit for taxation purposes, the difficulties of decision making are obvious. It also needs to be borne in mind that the legal onus of proof is borne individually by Issa and Elias. That is to say, so far as property in the land is concerned, the cross-claimants who propound an unregistered, equitable interest must prove their respective entitlements on the balance of probabilities.
In Watson v Foxman (at 319) McClelland CJ in Eq said:

“… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.” (My emphasis.)

As Leeming JA (sitting at first instance) recently pointed out, where the decision at hand requires the resolution of conflicting, indeed diametrically opposed, testimony, “the convenient course is to start with context and the contemporaneous documents”: Aerolink Air Services Pty Ltd v Bankstown Airport Ltd [2022] NSWSC 587 at [21]. With respect, in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31], Gleeson CJ, Gummow and Kirby JJ referred to the modern trend for judges, including trial judges “to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.”

Objective facts and contemporaneous documents

As I have already pointed out, it is an objective fact clearly established by the contemporaneous documents (Exhibit 7, tab 7, p. 57) that the completion of the contract for the purchase of the land occurred on 11 April 1988. The purchase price was $350,000 (before adjustments on settlement) and it was partly financed by a mortgage-back to the vendor, JC Craft Pty Ltd, in the sum of $150,000. A 10 per cent deposit of $35,000 had been paid on exchange and the adjusted balance due on settlement Clear of the mortgage-back) was $167,553.51. George Shukri, on the one hand, and Raymond and Ghada on the other, say they respectively contributed equally to the deposit and the balance due on settlement.
GRQWC’s financial records for the trading period ending on 30 June 1998 (Exhibit 7, tab 10, p. 64ff) do not state the commencement date for the partnership. However, they demonstrate that by the end of the 1998 financial year, the first partial year of trading, sales totalling $297,001.96 had been made, producing a gross profit of $47,610.24, which after expenses beyond the cost of sales left a net profit of $36,199.46. Included in these expenses was the amount of $7,950 for interest. I infer that this “interest” was paid on the mortgage-back to the vendor (see [30] below). That debt is recorded as a liability of the partnership by way of secured loan. The land, while not identified by reference to its address, appears as a fixed asset of the partnership. In the balance sheet it is described simply as “Freehold land and buildings” to a total value (at cost) of $367,043.76. I infer that the amount over the purchase price of the land relates to work done on the buildings or other structures erected on the land. Again, a secured loan is recorded as the most significant liability. It is beyond question that this is the mortgage-back.
The balance sheet, by reference to Note 1 (Exhibit 7, tab 10, p. 65), records the “proprietorship” of each of the partners treating each of the married couples as a single entity. An amount is shown for the capital contribution and share of profit for each entity less drawings. For 1988 financial year profits were distributed equally in the sum of $9,049.87. Drawings were somewhat uneven with Raymond and Ghada drawing $19,451.63 and each of the others drawing what appears to be a fixed amount of $3,900. The various capital contributions are as follow (for ease, I will simply list the names of the male members of the family without intending disrespect to the women):

Raymond $126,804

George Shukri $66,895

Issa $75,764.97

Elias $96,563.14

It is known from Nida’s evidence that payment of at least part of the capital contribution of both Issa and Elias preceded settlement of the purchase of the land.
The amounts reflected in the financial statements of the partnership are perhaps not necessarily inconsistent with George Shukri, Raymond and Ghada purchasing the land separately with their own funds. However, the aggregate, total capital contributions of the partners during this first period of operation of the business is $364,796. This, of course, would leave a significant surplus over the amount $200k paid by the purchasers to acquire the land.
The total cost of purchasing, registering and reconditioning used car stock is shown as $361,897.45 (including “closing stock” of $132,526), approximately $65,000 in excess of gross receipts. Doubtless the reconditioning work added significant value to the stock. The balance sheet shows only $25,044.87 cash at bank. Had George Shukri, Raymond and Ghada paid $200,000 for the land with their own money over and above the capital contributions shown in the financial statement, one would have expected a larger sum of cash on hand to be available at the end of the financial year.
Indeed, if one deducts total costs from capital contributions and adds back total sales, a surplus of $299,900.96 is produced. Total operating expenses over and above the costs of sales are just under $11,500, hardly making a difference. Clearly, the capital contributions of the partners were more than adequate to cover the cost of acquisition of the land (with the mortgage-back) which itself is shown in the accounts of the partnership as a partnership asset.
Taking these matters together, the position established by the partnership accounts tends more to support the case presented by Issa and Elias than that of George Shukri, Raymond and Ghada. Moreover, the detailed partnership accounts proving the contributions of the partners, listing the land as an asset of the partnership and the mortgage-back as its liability strongly suggest that the land was in fact a partnership asset in respect of which each partner had a personal interest: see s 22 Partnership Act.

It is apposite to record here, in her affidavit sworn on 22 August 2019 Nida states (at [17] – [19]) that she paid the mortgage to JC Craft Pty Ltd from the partnership business account. She annexed a “true copy of the ledger” in her handwriting of what was paid to JC Craft Pty Ltd. While the document does not have the look and feel of a primary book of account, no party questioned its authenticity, or its accuracy. It shows, and I accept, that the loan was paid off mainly from the partnership bank account between May 1988 and April 1993. Nida’s ledger shows the total amount paid in the 1988 financial year, effectively for the months of May and June, is $7,950, which tallies with the amount shown as interest in the profit and loss statement I have referred to above.
I interpolate that Mr Duc, doubtless for reasons different from Mr Wood, submitted that no reliance could be placed upon the land being listed as an asset in the GRQWC partnership accounts. He argued, the accounts are not primary records and are clearly unreliable as later accounts list the adjoining land at 295 and 305 Church Street respectively which were not utilised for the partnership business. With respect, this is not correct. It is common ground that George Shukri, Issa, Elias and their wives are the registered proprietors of 295 and 305 Church Street. The balance sheet forming part of the 1990 financials, which appear to be a draft only and which are annexed, inter alia, to Issa’s affidavit of 19 December 2018, also lists freehold land and buildings as a fixed asset. By reference to the value ascribed, I infer this to be another reference to 301 Church Street. However, the balance sheet for the 1991 financial year lists each of 295, 301 and 305 Church Street by name as fixed assets. Other evidence shows that this was after Raymond was said to have been bought out of GRQWC at his own request and before Elias left active involvement in the partnership on what appears to have been 9 January 1992. These three properties continued to be listed as assets of GRQWC at least until the financial statements for the 1999 financial year. Thereafter accounting practices seemed to have changed following a change in accountants and there was a reversion to the practice of simply referring to “freehold land” (see Exhibit 8 generally). Were it an issue, I would regard these partnership accounts as at least some evidence that the three properties were partnership assets; some evidence, perhaps entitled to considerable weight? But the ownership of the adjoining land is not in issue. This gave rise to objections about evidence about its ownership being admitted on relevance grounds which were not hotly contested. However, after Elias’s joinder it became apparent that all of the partners’ dealings for and with the business may have some relevance to issues to be determined in the case and the evidence was later re-introduced without objection.

Raymond ceases to participate in the GRQWC partnership

As with all details in this case, the circumstances and context of Raymond ceasing active involvement in GRQWC are disputed. But it is common ground that Raymond and Ghada received a payment in the sum of $225,000, withdrawn from a bank account kept and maintained in GRQWC’s name on 30 April 1990 (Exhibit 7, tab 21, p. 389). This virtually cleaned out the partnership’s cash reserves, reducing them to $4,388.11. The funds were banked in Raymond and Ghada’s NAB account at Parramatta South on 2 May 1990 (Exhibit 7, tab 28, p. 392). It is also common ground that Raymond later started an independent used car business named “Wheels and Deals”. Issa and Elias regarded this payment as Raymond being “bought out”. Raymond however considered it no more than his due. It is common ground that Raymond withdrew from active participation in GRQWC’s business activities around then to concentrate on his own affairs, but the documents do not make clear when. Australian Security and Investment Commission (“ASIC”) records (Exhibit 8, tab 69) show that a company named Wheels and Deals Pty Ltd was registered on 18 February 1991 and that Raymond and Ghada both become directors on 12 March 1991 continuing until 8 June 2011, when the company was deregistered. Each held a fully paid up $1 share of the 2 ordinary shares issued.
It should be recorded in these reasons that this payment to Raymond is not reflected in the draft accounts for 1990. There was no dispute about the fact of its occurrence and other records prove the payment. The balance sheet for the 1989 financial year showed: Raymond’s “proprietorship” reducing from $116,402 to $70,294.45, notwithstanding the introduction by him of a further $30,229 in capital; and the attribution to him of an equal share of profit in the sum of $35,748.82. The reduction may be accounted for partly by his drawings in the sum of $112,06.20 far in excess of the $9,900 drawn by each of George Shukri, Issa and Elias in the same year. From Elias’s evidence there may have been tension, indeed suspicion, within the partnership about the drawings Raymond and Ghada were taking from the business which were so far in excess of the others and of what proved to be their share of the profit. This falls into that category of “machinations” I referred to above, which I need not resolve.
Only partial financial statements for the financial year ending on 30 June 1991 are produced. They are attached to Issa’s affidavit of 19 December 2018. Although incomplete, it seems clear they show that Raymond (and Ghada) remained a proprietor. From this record I infer that when finalised, the 1990 accounts showed Raymond’s capital account had been reduced from plus $70,294.45 to minus $150,119.89. The difference of course is not far off the $225,000 payment to which I have referred. Drawings were said to have been $254,977.21, and I infer that the payment of $225,000 is included in this figure. Interestingly, for the 1991 year he is recorded as having made an additional capital contribution of $6,500 and receiving a share of profit of $16,293.66; the same amount George Shukri, Issa and Elias received. These payments reduced his indebtedness to $127,326.23. In that same 1991 financial year, George Shukri is recorded as having made a very significant capital contribution of $317,650, Issa $32,450 and Elias $45,200. Raymond is recorded as having taken no drawings and George, Issa and Elias unequal amounts of drawings, but well below their allocated share of profit. The impression from the accounts is that Raymond received a large payout and eventually became a dormant partner , remaining on the books as a proprietor.

The financial records for the period ended 30 June 1992

For the period ending 30 June 1992, the profit and loss account shows that the net profit was distributed to George Shukri and Issa only (Elias had by then left his active involvement in the business, a point to which I will return). However, on the balance sheet, proprietorship remained in the hands of the original partners. Raymond remained on his net, negative $127,306.33 and Elias on a positive $173,653.94. The three properties remain listed as fixed assets of the business. The mortgage-back to the vendor of the land continued to be shown as a liability of the partnership and a new loan by way of a commercial bill to the ANZ Bank also appeared, possibly related to the additional land acquisitions (Exhibit 8, tab 31). The accounts for 1993 are not in evidence but from the 1994 accounts it appears that Raymond made a capital contribution of $50,000 in the 1993 financial year. This contribution is not fully explained by the evidence but may relate to his claim to having made a lump sum contribution of $33,215 to the final discharge of the mortgage-back (see [205] below. This reduced his “indebtedness” to $77,326, rounding the cents, and it has remained at that level ever since, so far as the evidence goes. The last financials for GRQWC in evidence are for the financial year ending 30 June 2003. Raymond’s position remained unchanged at that stage.

Elias ceases to participate in the partnership

Elias too ceased his active participation in the business to pursue his own interests in used car sales. As with Raymond, the ongoing financial records show him continuing to have a proprietary interest in GRQWC at least until the year 2000, to which I will return.
The financial records strongly suggest that Elias ceased his day-to-day involvement in the partnership on 9 January 1992 because a profit and loss account for the period, I infer, 1 July 1991 to 9 January 1992 was prepared showing a distribution of profit on that date to each of George Shukri, Issa and Elias equally in the sum of $14,283.96 from a net trading profit of $42,851.88.
The profit and loss accounts for the period ending 30 June 1992 show an additional net profit of $18,571 which was distributed equally between George Shukri and Issa only. As I have already said, the balance sheet shows each of the four partners continuing (Raymond’s stake in the capital partnership remained negative). On 30 June 1992, Elias’s capital contributions were $173,653.94. Although not drawing a profit or working in the business, Elias made capital contribution of $1,050 in 1993 and in 1995 he received a share of profit in the sum of $10,997. These brought Elias’s proprietorship funds to a total of $185,700.93, where they remained in subsequent years.
There was a change of accountant in about 1998 (Exhibit 8, tab 44). The new accountant prepared the financials for the year ended 30 June 1997 and thereafter so far as they are in evidence. The financial statements for the 1998 financial year show GRQWC continuing to trade with a strong growth in sales. The profit was divided equally between George and Issa while Raymond and Elias were shown as proprietors with an unchanged position. The three properties at 295, 301 and 305 Church Street were shown as non-current assets at cost with an aggregate value of about $1.23m (Exhibit 8, tab 45). The only document in evidence for the 30 June 1999 year (Exhibit 8, tab 53) is styled, “trial balance as at 30 June 1999”. To my mind it suggests a transition year in the changeover from GRQWC to PWC in which sales dropped from about $2.5m in 1998 to about $134K. This appears to be the last year that GRQWC traded in used car sales. Relevant to the present purposes concerning Elias’s position is an amount of $130,297.17 DR shown as a current liability due to Elias (and Lucy). Their proprietorship funds in the sum of $185,793 are shown as having been wholly taken as drawings, and 295 Church Street with a historical cost value of $577,734, which appeared in the accounts for 1998 has been removed for 1999, reducing the real estate held as non-current assets to a figure of about $656K.
Moving ahead to the year 2000, GRQWC generated no trading income, there were other comparatively modest amounts earned from other sources, and the non-current assets including property remained about the same. This non-trading profit was distributed equally between George Shukri and Issa. While Elias was mentioned in the partners profit summary, there is a nil distribution. And for the summary of proprietor’s funds, I infer erroneously entitled Partners Loan Accounts Summary, the positions of Raymond, George Shukri and Issa remain unchanged, but Elias, who is named, is shown as entitled to no proprietor’s funds (Exhibit 8, tab 54). By contrast, for the year, PWC had gross sales in excess of $2m and a trading profit of $338K.
These financial records tend to suggest that Elias withdrew from the day-to-day business of the partnership on 9 January 1992, but had some continuing involvement as evidenced by the small capital contribution and distribution of profits subsequently. Moreover, he remained on the books as a more or less dormant partner, like Raymond, until the 1999 financial year, which seems to have been the last year in which GRQWC traded in used car sales. Given the apparent withdrawal of his proprietorship funds, the raising of the liability on the part of GRQWC to him and Lucy in the sum of $130,000 and the removal of 295 Church Street, where he traded as “Auto Alley Family Cars”, from the books there is the appearance that there may have been a settlement with him whereby he relinquished his interests to “purchase” 295 Church Street.
There are two difficulties with this scenario. First, a real property search of the land known as 295 Church Street dated 25 October 2020 shows the registered proprietorship as unchanged and in the hands of Elias, Issa, George Shukri and their respective spouses as tenants in common in equal shares (Affidavit Muhammad Elias Attia affirmed 26 October 2020, [17], annexure MEA-4, p. 67). This may not be unusual within the Hanania family. Attention to legal detail is not at a premium despite their apparent success in business. Moreover, the land is mortgaged to the Australia and New Zealand Banking Group Limited which other evidence demonstrates continues as PWC’s financier. ANZ is also the banker for other family members including George Shukri. The second point is that although Elias said in an affidavit filed that he was under pressure from George and Issa to buy them out of 295 Church Street, because he had exclusive use of it, none of them give evidence that that is what happened to bring Elias’s involvement in the partnership to an end. Let alone, what appears from the accounts. In the event Elias did not read the pertinent portion of his affidavit (sworn 17 April 2020) dealing with ownership of 295 Church St.

Interim impressions about the partnership position of Raymond and Elias

Until Elias was joined to the proceedings, it was common ground among George Shukri, Raymond and Issa that Raymond had “bought Elias out” by giving him and his wife Lucy a house that Raymond and Ghada owned in exchange for Elias’s GRQWC share. On this basis before Elias showed up out of the blue at court on the fourth day of the hearing, the matter was proceeding on the common assumption that Elias had no possible interest in the land because he had sold out to Raymond. Exhibit 7, tab 23 is a transfer under the Real Property Act 1900 (NSW) apparently dated 31 January 1991 whereby Raymond and Ghada transferred their home at Bossley Park to Lucy. If one is prepared to work on the assumption that 1991 is erroneously recorded for 1992, as sometimes happens early in a new year, the transfer is in close proximity to 9 January 1992, which on the documentary evidence seems to be the date when Elias ceased his day-to-day involvement in the partnership. The difficulty for the acceptance of the common assumption is that the transfer is expressed to be for the consideration of $155,000, the receipt of which is thereby acknowledged.
As recounted in his affidavit sworn on 17 April 2020, Elias’s account is much more nuanced. He acknowledges the purchase of the Bossley Park property and gives an account consistent with a January 1991, not 1992, settlement while stating the house “was paid for in full and was not a trade-off for the purchase of my interest in [301 Church Street]” (Affidavit [38]).
According to Elias, Raymond offered to buy him out of the partnership in or about November 1991, Elias agreed stipulating, “I just want all my money back that I have paid” (Affidavit [39]). This fits in with a 9 January 1992 changeover date. But Elias says that Raymond only paid two instalments by cheque in the sum of $20,000 and $11,500 respectively. Elias also states that he decided that he no longer wished to be part of the business anyway and left. He re-offered sale of his share in the business to Raymond, who did not respond (Affidavit [41]). As I have tried to point out, the financial records of the partnership do not support a finalisation of Elias’ involvement in, or complete retirement from, the partnership in January 1992. Certainly, there is no suggestion in any of the records of Elias being paid anything in respect of his share in the partnership, unlike Raymond, before the trial balance for 1999.
According to GRQWC’s records, the position therefore seems to be that Raymond and Elias separately ceased working in the partnership to pursue other interests at different times. Each seemed to retain a financial interest, even if in Raymond’s case effectively as a debtor of the partnership. While the records support the liquidation of Elias’ interest during the last year of trading in 1999, they do not provide evidence which supports the transfer of Elias’ interest to Raymond. It is notable that no party chose to call evidence from the two different accountants who prepared the accounts or evidence explaining their absence. Their evidence might have clarified the position suggested by the accounts themselves in a meaningful way. Issa and Elias had an interest in clarifying the position given their assertion of a beneficial interest in the land. Equally, George Shukri had an interest in calling such evidence given his assertion that he is the person ultimately entitled to control PWC. There are other aspects of their financial dealings that probably could have been explained by the person who was from time to time the accountant for the business.
I will review and evaluate the oral evidence of the witnesses before making final findings of fact in relation to the position of Raymond and Elias vis a vis the partnership, if I can. Objectively, there can be no real question that Issa and George Shukri continued to carry on business in the partnership after Raymond and Elias ceased day to day involvement to pursue their separate interests.

The payment of rent

The question of the payment of rent to Raymond and Ghada for the occupation and use of the land is said to be significant at two levels. First, there is their claim for the arrears of rent and outgoings in respect of the land from PWC. Rent was originally agreed in the sum of $3,000 per month by Raymond with Issa, I infer on behalf of GRQWC. Cheque butts in evidence (Exhibit 8, tab 35) date back to 23 March 1995. This accords, at least in broad terms, with Raymond and Ghada’s evidence that they relocated to resume living in Jordan in 1995 returning to Australia only when necessary for domestic or business purposes. Council rates in respect of the land are included in GRQWC’s financial records as part of the business expenses over the cost of sales for each year, other than for 30 June 1988 financial year during which the land was acquired. Given that the purchase contract settlement occurred in April 1988, I would infer that rates for that year were probably adjusted between vendor and purchaser: see solicitor’s settlement sheet (Exhibit 7, tab 7, p. 58). For the 1995 financial year rent is shown as $33,667, suggesting payment must have commenced somewhat prior to March 1995. For 1996, 1997 and 1998 rent is shown as an expense in the sum of $36,000, according with the monthly rent paid to Raymond and Ghada . From its financial records, it appears that PWC took over responsibility for the rent when it assumed the conduct of GRQWC’s used car business. The rent reduced to $2,750 per month from an unspecified date during the 2003 financial year (Exhibit 8, tab 58). The plaintiffs’ say that this reduction resulted from the unilateral decision of Issa and although he took no immediate action in relation to it, Raymond did complain, “Rents go up not down” (see Nida’s affidavit, 29 August 2019 [27]-[28]).
According to Issa’s affidavit sworn on 19 December 2018, ([70] – [78]), PWC rather than Issa personally paid the reduced rent to Raymond (and Ghada). Issa implies that the reduction was agreed to by Raymond even if somewhat begrudgingly. Raymond made a demand for payment of an increased rent during 2013 which Issa refused. Again, in August 2015, Raymond demanded an increase in rent saying unless it increased the rent PWC must vacate one-third of the land. Issa refused to pay the additional rent but agreed to remove stock from one-third of the land in accordance with Raymond’s demand. There was an argument about what particular portion of the land Raymond required. After that was resolved, Raymond’s son George commenced to carry on a used car business on the portion of the land which Issa had vacated.

After yet further disputation about financial arrangements in relation to the land, on 16 January 2017, after the expiration of the notice to quit, Raymond, and his son George, with Elias’ assistance, partitioned the land along its notional centre line and erected a fence (as I have stated above). To do so it was necessary for Raymond to move Issa’s stock without his prior permission. Raymond freely admitted to these actions.
There is no dispute about these basic facts relating to the rent case. Essentially, the dispute relates to whether there was ever an intention to create legal relations by way of a commercial lease of Raymond’s interest in the land as a co-tenant. Issa’s case is that the absence of a formal executed lease and the lack of observance of standard conveyancing practice in relation to the formation of commercial leases indicate an absence of any intention to enter into legal relations. Issa says the payment of money to Raymond was a family or domestic arrangement for Raymond’s benefit. I will resolve these issues below.
The second significant matter concerning the payment and acceptance of “rent” is Mr Duc’s argument that this circumstance is a powerful indicium that the land was never part of the property of the GRQWC partnership. Given the unity of the right to possession, which is characteristic of a tenancy in common, the payment of rent by Issa to Raymond and Ghada was powerful evidence that Issa had no beneficial title to the property, nor any belief in such an entitlement.
While I fully accept that the unity of possession shared by tenants in common is characteristic of that form of joint ownership, notwithstanding the consideration that each tenant in common has a distinct share or interest in the property, it is clear that one tenant in common may transfer or lease his, her or its interest to another person, at least, so as not to exclude the rights of a co-tenant: State of New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247 at [32] – [33], Hodgson JA. There seems to be no legal reason why a tenant in common could not lease his, her or its interest to a co-tenant even by way of periodic tenancy permitting the co-tenant to use the land to operate a business to the exclusion of the tenant in common during the term of the lease. Although the unity of possessions means that one tenant in common is not entitled to exclude another from possession, it is otherwise if the excluded tenant has permitted his, her or its co-tenant exclusive possession under a contract supported by valuable consideration. In these circumstances, the payment of rent by Issa to Raymond would not be irreconcilable with Issa having an equitable title to the land as a tenant in common.
It is also important to bear in mind that, legally, Issa was not paying the rent in his own interest or on his own behalf. Initially the rent was paid out of the funds of the GRQWC partnership and later, after PWC became the commercial vehicle through which the business of GRQWC was conducted by PWC which, certainly in later years, Issa effectively controlled. It is not suggested by Issa, or anybody else, that PWC has any beneficial interest in the land.
I do not regard the payment and acceptance of rent as any way decisive in the particular circumstances of this case of the question of whether Issa, and Elias for that matter, have a beneficial interest in the land. It is a consideration that may have some relevance.

What the documents show about Parramatta Wholesale Cars Pty Ltd

PWC was incorporated on 7 April 1997 (Exhibit 8, tab 70). It appears to be common ground that the original idea behind the incorporation of PWC was to provide an opportunity to a salesman employed by GRQWC, Mr Peter Andrews, to participate in some of the profits of the partnership. He was the original director and he and Issa were the original shareholders of PWC. Mr Andrews’ partner who was involved in the incorporation of PWC had initially been appointed a director and secretary. That appointment was very short lived, being for the day of registration only and Nida was appointed secretary to replace her on the very same day. It is interesting to note that the incorporation of the company was proceeded by the registration of a business name of Parramatta Wholesale Cars, in force between 3 March 1997 and 4 April 1997, and of which George Shukri and Issa were the holders.
The arrangement with Mr Andrews was short lived. He ceased to be a director on 17 March 1998 and George Shukri was appointed in his place. This returned control of the company wholly to the Hanania family with George Shukri and Issa as directors and Nida continuing as secretary. Mr Andrews may have continued an association with the business because the annual return lodged on 8 January 1999 showed that the shareholding of him and Issa increased to 5,000 shares each. But this may have been simply erroneous. Mr Andrews appears to have later dropped out of the business and it continued with Issa as the sole registered shareholder.
I have already said that my impression from GRQWC’s documents, especially the trial balance as at 30 June 1999 (Exhibit 8, tab 53), is that 1999 was a transition year during which the used car sales business of GRQWC was being transferred to PWC. By and for the year ending 30 June 2000, GRQWC had no income generated by used car sales (Exhibit 8, tab 54).
It is also instructive for various purposes to record that listed among GRQWC’s “current assets” for 1998 and 1999 (Exhibit 8, tab 53, p. 551) is a large loan to PWC. In 1998 it totalled $461,421.03 and in 1999, $427,737.13. I interpolate that this may relate to the purchase of lots 3 and 4 Parramatta Road, Granville. It is also I think important to bear in mind that as between George Shukri and Issa, the former’s proprietorship funds in GRQWC as at 30 June 1999 totalled $588,807.48, and the latter’s $250,811.97.
From PWC’s figures for the year ended 30 June 2001, sales for 2000 were $2.75m and in 2001, $1.36m. Perhaps surprisingly the gross trading profit was similar in each of those years. In 2000 it was $339K and in 2001, $300K. Its balance sheet recorded, inter alia, interest-bearing liabilities in 2000 in the sum of $802K and 2001 of $765K. It is important to record, having regard to what is behind the dispute about the shareholding in PWC, that those liabilities probably include the loan I have referred to from GRQWC and a mortgage, originally in the sum of $400,000 from ANZ bank in relation to the purchase of lots 3 and 4 Parramatta Road.
Lots 3 and 4 Parramatta Rd., Granville were bought at auction on 7 May 1998 for the purchase price of $405,000 and $465,000 respectively (Exhibit 8, tabs 46 and 47). The purchase was partly financed through a fully drawn advance facility with ANZ Bank in the sum of $400,000. The approval specifically provides that the purpose of the loan is the purchase of two blocks of land at Granville. It stipulates “You must not use the loan funds for any other purpose without obtaining ANZ’s approval in writing” (Exhibit 8, tab 48, p. 532). At the same time an overdraft facility in the sum of $140,000 was provided to PWC by ANZ for working capital. The fully drawn advance was provided to PWC and not to any individual members of the Hanania family. Security for both facilities was to be provided by a registered mortgage over each of lots 3 and 4 and a floating charge over all of the assets and undertakings of PWC. George Shukri (and Elen) and Issa (and Fayrouz) were guarantors.
The purchases settled on 22 June 1998 (Exhibit 8, tabs 51 and 52). Apart from the funds provided by the fully drawn advance, there is an issue about the source of the funds. Exhibit 8, tab 52 is a copy of handwritten working papers of PWC’s then accountant dated 9 June 1999 detailing calculations in relation to the purchase of Lots 3 and 4. I would infer that work was done for the preparation of the financial accounts for the financial year ending 30 June 1998. Mr Duc submits (the plaintiff’s submissions at page 7, [53] to [65]) that the working paper shows George Shukri contributing $328,757.03 of his own money to the purchase. There seems to be no dispute that this is so. The question is whether it was loan to PWC which Issa claims has been repaid.
Given the issue not much turns on this but the calculations are very faint in the form in which they have been reproduced in the original exhibit. For this reason and because they are, albeit quite neatly, handwritten they are quite difficult to decipher. However, I do not read them as attributing that contribution of $328,757.03 to George Shukri personally. There is a notation of “GR Car Sales” contributing “$9000”. But the entry which Mr Duc submits I should attribute to George Shukri seems to be referrable to “ex GR (indecipherable) PC”, although I cannot be sure. Certainly, it does not equate to either GS Hanania or G and E Hanania. There is a separate amount of $30,000 in respect of which the accountant has clearly written “paid by I and F Hanania (partners of G and R)”. It seems to me that the reference to “G R” in the contentious entry is probably a reference to the partnership.
In so concluding, I have taken into account the financial statements for the partnership as at 30 June 1998 (Exhibit 8, tab 45). That document shows that in 1997 there was a loan of $3,000 only to PWC and for 1998 a reference to the loan to PWC I have already made mention of in the sum $461,421.03. The working paper also records that the aggregate purchase price for both lots was $870,000 and that the deposit of $87,000 was paid “ex GR”, clearly a reference to the partnership, leaving a balance of $783,000. The accountant’s workings do not include other related fees and charges including for the bank loan and legal fees. However, if one deducts the $400,000 mortgage, “ex ANZ Bank”, from the $870,000 purchase price, one of course, is left with a figure of $470,000 which is in the near vicinity of the amount of the 1998 loan to PWC.
It is also relevant to record that the “Partners Loan Account Summary” for GRQWC for the 1998 financial year do not show any significant increase in George Shukri’s capital contributions when compared with the 1997 year. Each of George Shukri and Issa are recorded as having made an additional capital contribution in 1998 of $10,000.
Mr Attia has annexed the transfer in respect of each of Lots 3 and 4 to his affidavit of 26 October 2020. Nida, as secretary, and George Shukri, as director, have witnessed the affixation of the common seal of PWC to each transfer. However, this says nothing, with respect, about the source of the monetary contributions to the purchase price. This is only entirely consistent with the usual conveyancing practice at the time whatever the source of the funds.
I re-emphasise however, it is common ground that George Shukri contributed in some form about $300K from funds he had, mainly overseas. This contribution does not show up in the records that were tendered, other than, by implication perhaps, in the loan from GRQWC. On Issa’s account the $300K was a loan from his father that he repaid over the years from PWC funds (340.14T; 341.20T; 342.49T). George Shukri and Nida denied the contribution was a loan (113.15 - 37T; 114.35T) (48.37 - 47T; 49.8T - 50.35T). Looking more closely at PWC’s financial statements for the 2001 financial year (Exhibit 8, tab 55) the non-current liabilities include $460,009.80 described as unsecured loans from other persons (p. 572). The secured bank loan is dealt with separately. PWC’s financials for 2002 show that the category of loans from other persons has grown to $562,361.67 while the secured bank loan (apart from the overdraft) is reducing. PWC’s financials for 2004 year (Exhibit 8, tab 58) give clearer particulars showing the amount of the loan then outstanding due to GRQWC as $530,839.13, which is equivalent to the figure shown in GRQWC’s financial statement for 2003 year (Exhibit 8, tab 57). The PWC 2004 financials show an unsecured loan to George Shukri in the sum of $204,576.83, which is grown from $133,917.80 since the previous year. By 2008, the last year of PWC’s financials in evidence, the unsecured debt due to George Shukri is $289,418.96 and to GRQWC $625,376.82. For each year there was also a loan due to Issa which in 2008 had grown to $320,055.75. When considering the significance of these matters, it needs to be borne in mind that George Shukri and Issa, given Raymond’s negative financial position, were the last partners standing. Incomplete as they may be these financial records support loans from the partnership and from George Shukri and Issa individually to PWC, but not the repayment of those loans. GRQWC’s financials for 2003 (with Comparative figures for 2002) show “other income” over very small bank interest as $24,259.94. Arguably this could be interest on the loan to PWC but there is no corresponding entry in PWC’s financials for 2004, which also recite the 2003 figures. While all of this is not inconsistent with George Shukri’s contribution being made by loan through GRQWC it is not positively probative of it. And the figures do not provide evidence of the repayment of such a loan. I should also say the “the income” provided most of GRQWC’s profit which was divided equally between George Shukri and Issa.
Mr Attia also annexes a number of ASIC documents relating to PWC. From those documents (Annexure MEA – 2) it is apparent that the annual report of 19 January 2000 was still listing Mr Andrews as one of the two shareholders of PWC. By the annual report lodged on 5 February 2001, Issa appears as the sole shareholder. It is also apparent that despite being appointed a director on 17 March 1998, George Shukri was not allocated any shares in PWC. He and Raymond took matters into their own hands in January 2018 by changing the company details in respect of members shareholdings to exclude Issa and substitute George Shukri. Issa rectified this by “ratifying” by resolution the removal of Nida as the company secretary on 31 May 2017 and the removal of George Shukri on 12 January 2018: minute of meeting of 29 August 2019 (Exhibit 8, tab 74). As I have said, at the same time he purported to remove George Shukri as a shareholder restoring his own status as “sole shareholder”.
It is in the context of these matters and PWC apparently assuming the business of the GRQWC partnership that George Shukri seeks correction of PWC’s register under s 175 Corporations Act.
I will now deal with the oral testimony before stating my conclusions about the matters in dispute.

Witness testimony

I have already referred to the Watson v Foxman considerations affecting the quality of the recall of each of the witnesses in this case. Those factors necessarily include the effluxion of time; the events central to each of the two main areas of dispute in the case occurred two and three decades ago. There is no written agreement entered into governing the legal arrangements between the parties in relation to either the GRQWC partnership or their involvement in PWC. Even the putative lease was not reduced to writing. Almost inevitably, where potentially valuable property rights are now involved and disputed, aspects of self-interest including a sense of entitlement affects the quality of their recall. This phenomenon is aggravated by the animosity attending what appear to be entrenched and intractable differences between the parties to a family dispute over property. There was a, perhaps understandable, tendency, especially given the long effluxion of time, on the part of each witness to express themselves in conclusory terms rather than providing direct evidence of what they did, said, saw, heard or otherwise perceived. As I have said, for this reason the evidence of each witness has to be adjudged by reference to such objective facts as there are, facts supported by contemporaneous documents especially the records of the business and the apparent logic of events.

Nida Hanania

Nida was employed by the partnership in an administrative capacity and became the company secretary of PWC. She now resides in Jordan, like George Shukri and Raymond, but her evidence was not, as I have already pointed out, in all respects adverse to the position of Issa and Elias. Her oral testimony was given mostly on 2 September 2019 before Elias was joined to the proceedings. Although she states that her affidavit was made in response to the affidavit of Issa, she was the first witness called to give evidence and much of her cross-examination concerned matters which might be regarded as important contextually.
It was her evidence that she was involved in the administration of the business from the commencement of the partnership between George Shukri and Raymond. Nida states that she was present when George Shukri invited Issa “into the business” (Affidavit [11]), but she does not give evidence of what was said by either of them. She said Issa joined the business from 1988 which is, of course, consistent with the financial accounts to which I have made extensive reference already. Her evidence was that Issa worked primarily as a salesman, earning 25 percent of the profit of the business. She confirmed, as I have referred to already, that the mortgage-back to John Craft Pty Ltd was paid for by cheque “from the partnership business account”. She states, “The partnership did not pay rent to the owners of the business” while Raymond was involved. “Upon Raymond leaving the partnership”, Nida would write a cheque to Raymond drawn on the partnership account for monthly rent of $3,000. (Affidavit [21]). Nida does not put a date on Raymond “leaving the partnership”.
She refers to Mr Andrews as “a very good salesperson” (Affidavit [23]). On her account, Mr Andrews had promised to buy into the business by payment of $200,000, upon which he defaulted, and George Shukri asked Mr Andrews to leave in or about April 1998 when George Shukri became a director, and, Nida says, “shareholder”. The idea that Mr Andrews was only involved for a relatively short time whatever the ASIC records of PWC suggests, is consistent with the impression I have formed from a consideration of the contemporaneous records of the business and the testimony of George Shukri and Issa.
In one respect at least, Nida’s affidavit is inaccurate. She stated that George Shukri directed her to incorporate the company (Affidavit [24]). The ASIC records established that the application for incorporation was made by Mr Andrews’ partner, although Issa and Nida seemed to have intervened with celerity to appoint Nida as secretary in lieu of Mr Andrews’ partner on the very day of incorporation. Nida accepted this in cross-examination. (33.16T - 34.33T; 417.30T; 418.35T).
Nida states that Lots 3 and 4 Parramatta Rd were purchased for PWC by George Shukri providing “around $300,000” and a bank loan from ANZ (Affidavit [26] – [27]). No records are attached or produced corroborating a direct contribution by George Shukri. The only document referred to is the transfer to which I have made reference to above.
After the company was incorporated, the rent to Raymond was paid from the company account. Until she received the advice of her solicitor, Nida was unaware that Issa had removed her from the office of secretary.

Cross-examination

In cross-examination by Mr Wood SC (Mr Wood took Silk during the hearing), Nida said she was paid a salary, she took directions from Issa because he was “one of the owners of the business” (17.17T) and that she kept a record of financial aspects of the business. She said she was not involved when “they were purchasing the property” (17.23T). But at some stage she became responsible for the red journal. By reference to Exhibit 7, tab 5, p. 32 and tab 8, p. 60, she agreed that Issa paid two amounts totalling $52,626 on “the day of the settlement”. Mr Wood assumed this to be the day the agreement to buy into GRQWC “settled” but I took “settlement” to be a reference to the settlement of the purchase of the land. Exhibit 7, tab 8, p. 60, is an ANZ bank statement in the name of Raymond, Ghada and George Shukri, I infer at that time, the business account, shows the first cheque in the sum of $35,700 was deposited on 11 April 1988 and the second in the sum of $16,926.54 on 13 April 1988. An endorsement in Arabic script referrable to each deposit was translated by Nida as meaning “from Issa” (22.1T). Nida also said that Issa had paid the full $100,000 (22.13T), however, she insisted his payment was “not for the land (but) to operate the business”. She confirmed being present when George Shukri “invited [Issa] to the business” (22.26T). But again, she did not give evidence of the conversation between George Shukri and Issa or anyone else who was present. As I have said, her statement that Issa (or Elias) was not invited to be an owner of the land is purely conclusory (24.4T).

She also confirmed that the amount of the mortgage-back was paid out of the profits of GRQWC (25.1T), but said “[the partners] looked at it as to be a rent for the premises” (25.31T).
Nida confirmed she was the secretary of PWC and she worked in administration (25.48T – 26.4T). She accepted that during the period 1997 to 2000, I interpolate when PWC appeared to be assuming carriage of GRQWC’s business, George Shukri was travelling a good deal between Australia and Jordan. It was fair to say that he was spending half of the year in Jordan and the other half in Australia (26.20 - .31T). Nida denied that she asked Issa to give George Shukri “a role in the company”, I infer the meaning, to give him something to do. She said that George Shukri was at GRQWC “anyway and he moved into” PWC (26.47T).
When cross-examined on the ASIC records, Nida agreed that George Shukri was not a director of PWC when it was first established and until March 1998 (38.12 - .25T). Nida insisted that Mr Andrews was supposed to pay a sum of money to George Shukri “to get into the business”. Nida said that Mr Andrews had to leave because of complaints from the Department of Fair Trading about his conduct and because he failed to put the promised money into the business (44.35 - .49T). As I have said, Nida denied that the $300,000 paid by George Shukri in connection with the purchase of Lots 3 and 4 Parramatta Rd was a loan (49.10T). She denied that deposits in George Shukri’s ANZ bank account on 7 January 2010 and 16 February 2010 were examples of periodic loan repayments made by PWC to George Shukri (50.12T). She denied that the $300,000 was repaid to him (50.35T). There was no exploration of when Nida moved to Jordan as her principal place of residence or how that may have affected her opportunity to know relevant facts from her own perception.
After Nida’s evidence had concluded, later in the hearing evidence was taken from Sylvia , the niece who is a licensed conveyancer, who gave evidence of having prepared a transfer for signature by Raymond, Ghada and George Shukri transferring an interest in the land to Issa. Sylvia said that Nida had said to her at court before she gave evidence, “Don’t say you prepared the transfer”. From this I am asked to infer that Nida had sought to influence Sylvia’s evidence in a manner favourable to George Shukri and Raymond and that this reflects poorly upon her credit.
Nida was re-called to allow her the opportunity to answer this charge. She denied that she had said the words attributed to her by Sylvia (416.37T). Nida said Sylvia had said to her that she had prepared the transfer and Nida responded, “if you did, please say it” (416.44T). She denied attempting to influence Sylvia’s evidence. The incident at least suggests there may have been intra-familial agitation about ownership of the land for some time before the dispute ended up in court as Sylvia suggests.

Ghada Hanania

Ghada’s affidavit sworn on 15 September 2018 was read in the proceedings. In her affidavit, Ghada said she married Raymond in 1988 and they formed a business partnership when they purchased the land. She said that she paid her portion of the purchase price of $50,000, herself (Affidavit [4]). She said that George Shukri and Raymond formed the partnership known as GRQWC. She said that she worked there and the three of them contributed to repayment of the vendor finance. She said that Issa did not contribute to the vendor finance and that he was not involved in the purchase (Affidavit [7]). She said there was never an agreement to which she was a party for Issa to purchase any part of the land. She said she was independent and had her own accountant prepare tax returns in relation to the income subsequently derived from the land by way of rent. She and Raymond decided in or about 1995 to relocate to Jordan, but they travelled back and forth. Half of the land was made available to her son George after PWC stopped paying rent (Affidavit [18]). She and Raymond instructed George to erect a dividing fence on the land.
Also in a conclusory way, Ghada said there was an agreement from 1997 that PWC would pay the rent which continued up until 2001 when she discovered that the deposits in her joint account with Raymond had been reduced to $2,750. She did not agree to any change in the rent. She said that PWC and Issa remain on the land against her wishes.
In supplementary evidence in chief by leave, when asked about the purchase of the land, she made it clear that Raymond paid and “[her] name was used to be in that land” (59.33T). When asked how much money had been paid by herself, she said “you mean myself or myself and my husband”. Counsel clarified it was the latter, Ghada responded “I can’t be specific” (59.43T). She said, “He borrowed $150,000 from the owner, who sold us”. I took “him” to be Raymond. Ghada said the mortgage-back was to be repaid “from what we generated from business” (60.10T). She didn’t have any conversation with George Shukri or Raymond about the mortgage-back arrangements (60.25T). When asked about Issa’s involvement in the use of the land Ghada said, “I normally don’t get involved in matters like these. It’s between him and my husband” (60.50T).
Although at paragraph 32 of her affidavit, Ghada purported to attach a schedule of unpaid rent (Annexure “D”), it became apparent that she was not the author of the document. When asked directly about what she had said in her affidavit, she responded through the interpreter, “She’s saying that I wasn’t involved in these details. ‘I don’t quite understand what’s meant by this paragraph’” (63.23T). Mr Duc did not press annexure “D”.

Cross-examination

In cross-examination Ghada was asked about her choice to make an affirmation for her oral testimony and taking an oath for her affidavit. She said:

“Just the way I look at it is different, because I cannot remember everything, to take an oath of something that I’m not sure of – because I cannot remember everything”. (65.13T)

She agreed that when she swore her affidavit, she did not satisfy herself that annexure “D” had been included (66.25T). It became quite apparent to me that preparation of Ghada’s affidavit was a joint effort between her then solicitor and Raymond, which she was prepared to go along with (67.20T). She felt that she “did not need to learn every paragraph and its contents” (67.35T). She did not read all of the affidavit in English but relied upon the explanation given by the solicitor (67.42T). Despite what was said in her affidavit she was not involved in the decision to partition the land. She said “I wasn’t there, I wasn’t here; my husband was here. Let me put it this way to you, I am a partner, but my husband takes care of everything. He owns it, but, you know I am a partner as his wife” (67.48T). The decision to partition the land was wholly Raymond’s decision (68.13T).

Ghada made it quite clear that at the time these events occurred she did not normally get involved in financial matters. She was fully engaged in raising five young children (68.30T). She said Raymond discussed financial matters with her “before he makes a decision” (68.41T). She was unaware of any conversation between Raymond and Issa about Issa buying into the business for $100,000 (69.1T). She said a number of times that she had never heard of any arrangement in February 1988 where each of Issa and Elias were to pay $100,000 to take part in the business (69.5 - .33T). She had no knowledge that Issa and Elias were being paid a share of the profits of GRQWC at any time (70.10T). When asked about the mortgage-back being paid from the profits of the partnership she said “I believe so. I’m not sure” (70.29T). She wasn’t sure whether Issa and Elias had bought an interest in the land at some point (70.46T). Ghada agreed when comparing parts of her affidavit with that of Raymond they were almost identical. She said, “Whoever wrote for Raymond wrote for her” (72.38 - .44T).
Ghada knew that Sylvia Alkhas was Raymond’s niece, but she denied that Sylvia had prepared a transfer of title in relation to the land. She said “I’ve never seen her. I’ve never met her” (76.37T). When asked whether she had signed a transfer giving Issa a one-third share in the property she said that she could not recall. Due to the effluxion of time, “it’s very hard for me to remember whether it’s true or not”. She then seemed to qualify the evidence she had given about Sylvia saying she had never met her for business. “But she is my husband’s niece” (78.5T).
Ghada said that she was not a regular employee of GRQWC, but if asked she would go there “for an hour or two” or to take or bring a document (78.35 - .46T). She agreed that there were disputes at work because Raymond would “make all repayments for whatever we used to spend from profits” (83.20T). She could not recall the details of Raymond leaving the partnership and then seeking to buy back in (83.30 - .40T). Ghada said that when she and Raymond were planning to move to Queensland Elias and Lucy wanted to buy the house. She believed that the transfer did not take place (84.25T).
I interpolate that it’s very difficult to rely upon Ghada’s evidence as being probative of any fact in issue. Without any criticism whatsoever, it is clear that Ghada had her hands full and was working very hard as a homemaker and mother of five young children during the period when the central events occurred. That is entirely understandable. It is apparent to me, as she said herself, that although Raymond would discuss important matters with her, no doubt valuing her opinion, she would leave it to him to make final decisions himself. I am satisfied that she left financial matters in his hands on that basis and that she had no time to take a close interest in all the details, being satisfied that she could rely upon Raymond to make such decisions in the best interests of each or both of them.

Issa Hanania

George Shukri and Raymond gave evidence in the plaintiff’s case before Issa, and before Elias was joined. In the way of things their evidence and cross-examination in an anticipatory way also sought to counter Issa’s, but not Elias’s, cross-claim given that Issa’s affidavit had been served in advance of the hearing. They were both recalled to give further evidence, either in reply or in response to the cross-claims after both Issa and Elias had given evidence. For convenience I think it appropriate to deal with the evidence of Issa and Elias before dealing with the whole of the evidence of George Shukri and Raymond.
Other minor players gave evidence, being Sylvia, Ms Vuong and Issa’s son, Steve, and I will refer to their evidence last.
The evidence of Issa was given in two affidavits. The first sworn on 19 December 2018 was read after rulings on objections, and the second of 28 April 2020 was read without objection. As with other witnesses, I gave leave for the affidavit evidence to be supplemented in some respects by oral evidence.
After the family migrated to Australia in 1979, Issa principally performed factory work for about 8 years until 1987. He also dabbled in the family occupation of buying used cars, fixing them up and selling them for a profit. In about April 1987 he resigned from his factory job and returned to Jordan to marry his now wife, Fayrouz. I should say that Issa is also known within the family as “Alex”.
Issa states that while he was in Jordan, Raymond telephoned him enquiring about whether Issa wished to buy into the land. Issa’s evidence is that Raymond said (Affidavit 19 December 2018, [5]):

“The reason why I am calling is because I found a property at 301 Church Street, Parramatta which I want to buy, but don’t have enough money to buy it myself. Do you have enough money to buy the property with me?”

Issa said he replied in the affirmative and said, “Go ahead buy it”. Issa said that he had substantial savings from his long years of work for the same employer, which included accrued employment benefits paid-out when he resigned.

He did not return to Australia until February 1988, Raymond told him then that contracts had been exchanged and that he and George Shukri are “putting in about $200,000. The balance of about $150,000 is by way of vendor finance”.
A short time later George Shukri spoke to Issa and Elias together. I interpolate that according to Nida, Issa and Elias were living with George Shukri then. Raymond was not present, as he made clear in his oral testimony. Issa states that George Shukri said:

“Alex, we want you and Elias to join us in the caryard business. We don’t have enough money to set up the business or stock. If you pay $100,000 each you will own one-quarter of the land and we will be equal partners in the business”.

Issa says that he initially turned George Shukri down, but the latter was persistent and his mother importuning, so he changed his mind.

There was a later meeting of the family at George Shukri’s home when Raymond and Elias were also present. George reiterated his offer in similar terms saying: “You come to the business, and we go together and get an equal share”. Raymond said:

“The deal is each of you pay $100,000 into the business and you will get one-quarter share each in the land and be equal partners in the business”

Issa said he would “come in on the condition that I get a share in the business, and I get a share in the land”. His evidence is that his father George Shukri said, “OK we will be equal partners in everything”. To which Issa replied “OK, I agree”. Elias too, agreed.

Issa’s evidence is that he paid his contribution by the two deposits I have referred to already of 11 and 13 April 1988 and the balance by way of stock purchases and other costs of the business. It is convenient to state now that given the evidence, both George Shukri and Raymond were prepared to accept Issa had made the deposits, but Raymond regarded the question of whether he had paid the balance as a matter for Issa still to prove (Raymond: 429.20 - .40T; George Shukri: 102.10 - .15T; 104.30 - .45T: and 105.15 - .22T).
Issa was aware that on completion of the purchase of the land, the registered proprietors were George Shukri, Raymond and Ghada. He was not concerned about this as he “trusted [his] father and brother” (Affidavit [19]). In reliance upon the agreement with his father and brothers, Issa operated the business with them and worked in it in the belief that he would receive what at that time would have been a one-quarter interest in the property. He did not receive a salary and his remuneration consisted of his equal share of the partnership profit.
He was aware that the mortgage-back was paid out of the proceeds of the business and was discharged on 29 April 1993. He would not have agreed to or acquiesced in that mortgage being paid from the proceeds of the business had he not believed that he was a one-quarter owner of the land or that the other partners could refuse to transfer his interest in the land to him (Affidavit [23]).
In the first half of 1990 he became aware that Raymond wanted to leave the business because of tension between him and Ghada on the one hand, and Elias and Issa on the other, about money being drawn out of the business for the personal and private expenditure of the former. This led to a discussion at George Shukri’s house where Raymond said, “Pay me out and I’ll go”. Issa asked him “how much do you want for your one-quarter share of the land and business?” Raymond responded, “Pay me $225,000 and I’ll go”. After a discussion among George Shukri, Issa and Elias it was agreed that the partnership would pay the sum that Raymond required to pay him out (Affidavit [31]). I have referred above to the documentary evidence which establishes that this occurred with a cheque being drawn from a business account on 30 April 1990, deposited into Raymond and Ghada’s account on 2 May 1990. Raymond ceased any active part in the business.
In or around 1991, when Raymond and Ghada returned to Sydney, Raymond worked in the used car industry for other dealers before seeking “to buy back into the property” (Affidavit [38]). Issa refers to the transfer of the Bossley Park property to Elias’s wife, Lucy. He says he was present when Elias and Raymond discussed Raymond buying Elias’s share and stated that Elias agreed to accept Raymond’s offer of the house “and whatever the difference is I will make up in cash”. It’s clear that Elias did leave at least his active participation in the business, but from the financial records this did not occur until 9 January 1992. Assuming that the transfer of the Bossley Park property to Lucy occurred on 31 January 1991 and not 1992, this supports Elias’s account that he and Lucy paid the amount shown on the face of the transfer of $155,000. In any event Raymond did not resume work in the business of GRQWC but established his own car yard at Haberfield.
When Elias left the business, he operated his own car yard “Auto Alley Family Cars” from the adjoining property at 295 or 299 Church Street, of which George Shukri, Issa and Elias and their wives are the registered proprietors as tenants-in-common. According to Issa, GRQWC transferred “one-third of the cars it had in stock to Elias on his exit”. This transaction does not appear on the GRQWC financial records for 1992 either at 9 January 1992 or at 30 June 1992. Although gross and net profit are considerably reduced when the position as at 30 June 1992 is compared to 30 June 1991.
After Elias left the business, Issa said that he ran it with Nida’s administrative assistance as George Shukri was spending much time travelling between Australia and Jordan. When Raymond and Ghada decided to relocate to Jordan in about 1995, Raymond demanded rent for his share of the land. After haggling they agreed on $3,000 a month and outgoings, which Issa said was calculated as one-third of $9,000 a month, which he understood was the market rate for similar sites in the vicinity. He stated:

“I did not know that as a co-owner of the property, I would be entitled to occupy the whole of the property.”

Issa gives an account of the establishment of PWC to accommodate the ambition of Mr Andrews consistent broadly with Nida’s evidence and I will not repeat it. Issa says that Mr Andrews had left PWC in March 1998 to work elsewhere. It was due to an oversight that his “shareholding was not removed until the 2000 annual return of [the] company” (Affidavit [58]). His account is inconsistent with Nida to the extent that he does not mention the idea of Mr Andrews being supposed to pay any money to buy in to George Shukri or anyone else. Issa says that he did not intend George Shukri would be a shareholder in the company (Affidavit [56]).
Issa says that PWC originally commenced operating from 295 Church Street. However, this must be an error, in my opinion, given that Elias conducted his business from that address (Elias’s Affidavit, sworn 17 April 2020 [42]).
As I have said, Issa’s version is that lots 3 and 4 Parramatta Road were bought by PWC at his instigation. The purchase involved a loan from George Shukri in the sum of $300,000 which Issa claims to have repaid with interest over a period of 10 years (Affidavit [62]).
Issa’s evidence in relation to the rent dispute with Raymond and Ghada is that initially in about 2001 Raymond agreed to a reduction to $2,750. It was not until about 2013 that Raymond complained and demanded an increase to $3,500, which Issa refused on the basis that “business is slow” (Affidavit [69]). Issa says that in about August 2015 there was another conversation during which Raymond said if Issa was not prepared to pay more rent he “had better vacate one-third of the land … and put up a fence”. I have referred in general terms to these circumstances above. Issa was prepared to agree to this and moved his stock after some dispute about which particular portion of the land Raymond wanted, leaving the portion adjacent to 295 vacant. Raymond having taken back his “portion”, Issa felt no further obligation to pay the rent. There was a further dispute about the unpaid rent in late 2016 when Raymond insisted that he was “entitled to half the block”. Issa remonstrated with him saying “No that’s not right, you know we own one-third each between you, Dad and me” (Affidavit [75]). This conversation is said to have taken place in the presence of George Shukri and Steve. The dispute escalated. Raymond demanded the sum of $189,880 for Issa to have one-third of the land which Issa refused saying “I won’t be paying you anything”. It was following this discussion that the clandestine operation occurred on 16 January 2017 partitioning the land with the erection of a fence down its notional centre line.

In a somewhat different category is the passage of George Shukri’s evidence, I have extracted above (at [159]; from 91.30T). That evidence was given in response to a question about what arrangement was made with Issa and Elias. It seems to me, as I have already said, George Shukri’s reference to Issa and Elias “putting cars in the streets” was a reference to their part-time previous occupation of buying, modifying and selling individual vehicles. However, if one accepts the statement, “we told them that we are traders, we should buy land and put the cars in the proper land”, and I do, this does appear to be a significant statement by George Shukri that Issa and Elias were invited to participate in GRQWC, buying the land and putting the cars in a proper yard for sale like professional used car dealers. This rather supports Issa’s evidence (see [99] above) that George Shukri invited both him and Elias into the business on the basis of a payment each of $100,000 for which they were would each own one-quarter of the land and be equal partners in the business. It also supports the evidence of Elias (see [141] above) that George Shukri told them to purchase a share of the property and get into the family business. At a later meeting Elias says George Shukri said, “You will get a one-quarter interest in the property and be a partner in the business”. Despite having expressed reservations about certain aspect of the evidence of Issa and Elias, it seems to me that in substance something to that effect was said to them by George Shukri. Given the deference Raymond showed to his father’s views, I infer that George Shukri also spoke for him.
I appreciate there is a very significant dispute about whether Issa and Elias each put in $100,000 upon entry into the partnership. It is apparent that they did not, at least not in full. However that might be, the nature of the arrangement does not suggest that time was of the essence and the partnership financial accounts, again, establish that the capital contribution of each was not far off that mark. In Issa’s case by 30 June 1988, it was slightly over $75,000. And in Elias’s case, it was slightly over $98,500. Both had contributed more according to the accounts than George Shukri at that time but less than Raymond. It is apparent, at least by reference to the course of subsequent events that immediate payment of the contribution of each was not a condition precedent to his entry into the partnership. I say this bearing in mind no claim is brought in contract.
So far as the Baumgartner constructive trust is concerned, I appreciate that it is unnecessary for a claimant to establish that a specific representation about acquisition of an interest in specified property has been made, nor is detrimental reliance required. It is sufficient, according to the principles I have set out above, that the essential elements identified by Parker J in Woods v McKinlay (No 2) are satisfied. Acknowledging that English and Australian law in this area is not the same, in this context, as Lord Scott pointed out in Cobbe v Yeoman’s Row Management Limited [2008] 1 WLR 1752 (“Cobbe’s case”) at 1771 [33] – [35], there is a distinction between property acquired for the purpose of a joint venture, which ultimately failed, and property that was already owned by one of the parties before any joint venture had been embarked upon involving that property. However, in my judgment, the case at hand does not fall into the latter category. On the evidence I prefer and to which I have referred, I am satisfied on the balance of probabilities that the land was acquired for the purpose of the partnership. That is to say, there was a joint venture, i.e. the GRQWC partnership; although I accept that the acquisition of the property was initiated by George Shukri and Raymond prior to the entry of Issa and Elias to the partnership, Issa and Elias did contribute to its acquisition even if legal ownership in accordance with the contract for sale remained with George Shukri, Raymond and Ghada. The close temporal proximity of the acquisition of the land to the formation of the full partnership is another not insignificant factor suggesting that the land was acquired for that purpose. And I so find.
The one difficulty in my mind on this analysis is whether there has been a relevant premature termination of the partnership making it unconscionable for George Shukri, Raymond and Ghada to retain the title to the land to the detriment of Issa and Elias. In the end I am satisfied that this element has also been established. The joint business venture has ended prematurely in the sense that Raymond and Elias have left to devote their energies to their own affairs, and as I have clearly indicated already, in my view the remaining active partners George Shukri and Issa have transitioned the venture from GRQWC into PWC. The termination of the venture is premature in the sense that these developments have occurred before the legal title to the land was transferred equally to all of them as tenants-in-common in equal shares, as I have found was contemplated from the outset. I should say that I accept the evidence of Issa and Elias separately given that as at the outset the business was going well, and as the partners were working well together, they did not worry about the legal niceties. They trusted their father and brother.
In Issa’s case, it is pellucidly clear that George Shukri, Raymond and Ghada are seeking to use their legal right to his disadvantage by ejecting not only PWC, but him from the land. There are other, perhaps more nuanced, considerations affecting the situation given the assumption of GRQWC’s business by PWC, notwithstanding what might be described as the bare legal shell of the partnership continuing for limited purposes. GRQWC is no longer in the used car business.
Elias’s position is not so clear given his voluntary departure from the business about which I will say more. But for the reasons I have given, prima facie, he has made out Parker J’s third element.
I return to the reluctance of the parties to advance an argument based upon the land having become partnership property. From Mr Duc’s point of view, I suspect that treating the land as partnership property may be inconsistent with the case that he wishes to present that the legal owners are the beneficial owners as well and that the land should be regarded, in the terms of Lord Scott in Cobbe’s case, as property that was already owned by George Shukri, Raymond and Ghada before the joint venture embodied in the GRQWC partnership had been embarked upon. For Mr Wood’s case, I suggest his concern is s 22 Partnership Act and the expression implicit in it of the common law doctrine of conversion where land bought for the purpose of a partnership “was to be considered part of the partnership fund, and consequently must be considered as personality, and distributable as such”: Darby v Darby (1856) 3 Drew 495 at 498-499; (1856) 61 ER 992 at 993. The potential difficulty with this for Mr Wood’s argument, of course, is the related consideration that on the dissolution of a partnership, all the property belonging to the partnership is sold and the net proceeds of sale divided amongst the partners according to their respective shares in the capital. The same difficulty besets Elias’s argument. Arguably, therefore, treating the land primarily as partnership property is inconsistent with the assertion of a constructive trust of a proprietary right in the land, especially among persons who are or have been members of the same partnership. It’s for this reason that Mr Wood submitted that I should deal with the land notwithstanding the financial records as a separate asset in the same way as the parties have made in their own minds a distinction between the land and the partnership business.
While the proceedings before me are adversarial and the parties are entitled to choose the ground on which to fight their dispute, parties do not have the power to require a court not to apply the law: Dovuro Pty Ltd v Wilkins at [89], per Kirby J. On the other hand, there is force in Mr Wood’s submission that all the parties have drawn a distinction between the land as an asset and the partnership business as a going concern. This tendency also is evident in the subsequent acquisition of commercial land by members of the family for ongoing business purposes. This can also be seen in how the issues have been defined. George Shukri and Raymond insisted that Issa and Elias had no interest in the land, but only in the business. They adopted the strong line that the Hananias did not part with property in land. On the other hand, Issa and Elias were clear that interests in both the land and the business were specified, separately but in the same construct, by George Shukri. And he seems to have confirmed that in the passage from his evidence at 91.30T. Perhaps the most evidential significant aspect of the inclusion of the land as a fixed partnership asset by the accountants is that it is evidence that all partners agreed that each of them was to have an interest in the land to the purchase of which in effect, and in a practical, i.e., monetary, sense, each had separately contributed.

Proprietary estoppel

Turning then to the alternative question of the case of Issa and the primary case of Elias based on proprietary estoppel by encouragement, of course representation, or promise, and detrimental reliance are necessary matters for the claimants to prove. On the evidence I have accepted and the findings of fact I have so far made, both Issa and Elias have established on the balance of probabilities that George Shukri, on behalf of himself and Raymond, who also spoke for Ghada, represented to each of them that by contributing $100,000 to the business and agreeing to work in the business as partners, they would obtain an equal share in the land and in the business. So far as the equal share in the business is concerned, it was implicit that they would share equally in the net profit of the business and contribute additional capital as required.
I am also satisfied that George Shukri’s representation induced an assumption on the part of each of Issa and Elias that they would in future, perhaps in the near future, acquire a one-quarter share of ownership in the land and that they relied upon the representation and assumption it had induced in making their capital contributions and devoting their energies, including their labour, to furthering the business enterprise of the partnership.
Naturally there may be other factors that would lead a person to take up the opportunity of entering a business in which the senior partner was experienced and the business held the promise in its own terms of generating a profit producing a reliable income stream. However, I am satisfied in the case of each of Issa and Elias that the representation that they would acquire not only a share in the business, but also a share in the land, was a significant factor, taken into account by each of them when deciding both to make the contributions they did to the business, to enable it to complete the acquisition of the land and acquire stock, and by committing themselves to future discharge of the responsibilities of a partner including making additional capital contributions when called upon and working in the business to promote its success. I am satisfied that the assumption or belief induced by the representation made by George Shukri was a very significant contributing cause to the course of conduct followed thereafter by Issa and, for a significant period, by Elias. I would emphasise that in all of this, the significant initial cash contributions made should not be overlooked, notwithstanding Raymond’s belief that their cash contributions were no more than was required to gain entry to the incipient business without an interest in the land.
A question, of course arises, given the potentially valuable opportunity to participate in a profit-making enterprise, inherent in the representation or promise made by George Shukri, can it be said that the established reliance is detrimental to Issa on the one hand and Elias on the other individually? In this regard I bear in mind the statement of Emmett AJA in Priestley v Priestley at [164]:

“The principle of proportionality applies only in unusual cases where proprietary relief would be out of all proportion to the detriment. The proper measure of relief in a case where the detriment to a promisee or representee is something substantial is performance of the promise or representation. The detriment or harm required to ground an estoppel can be any material disadvantage, so long as it is substantial. It need not be quantifiable in the same way as an order for damages. Detriment is not a narrow or technical concept and need not be a quantifiable financial detriment so long as it is something substantial. The evaluation of the substantiality of the detriment must be approached as part of a broad inquiry as to whether repudiation of a promise or representation is or is not unconscionable in all the circumstances.”

I would also bear in mind that in the same case Macfarlan JA (at [18]) laid emphasis upon the claimant’s financial contribution, even when considered separately from the other significant but intangible contributions that the claimant had made. As a starting point here, it seems to me that in the case of Issa and Elias “on purely financial terms”, the detriment to each of them was a material disadvantage. The financial contribution of each is not limited to the amount actually paid upon entry to the partnership. But even that amount is significant and substantial. Financial commitment to the partnership also included, as the record showed, the ongoing requirement to make further capital contributions as required to keep the business going. It should not be overlooked that those contributions included the amount necessary to pay Raymond out when he decided to leave the partnership to pursue other opportunities in April 1990. That, of itself was a very significant sum and George Shukri made clear that he regarded the payment of $225,000 as having been contributed to equally by the remaining partners: himself, Issa and Elias (126.38T; [186] above). I interpolate that Elias, at least, certainly thought that the payment to Raymond ought to constitute buying him out of both the business and the land, although nothing was done to give effect to that expectation. Raymond continued, as I have said, as what I have styled a dormant partner, and nothing was done to put the title to the land in the name of the continuing active partners.
In any event, as I have said in Issa’s case the detriment has been made clear by subsequent events. He has already been denied occupation of one-half of the land, even if he did not resist the move strenuously, and he is facing an ejectment from the rest of the land in these proceedings. It goes without saying that the unity of possession, to which I have already referred would be a complete answer to the plaintiffs claim for possession against Issa. Issa has not otherwise shown what other opportunities he may have pursued had he not been induced by George’s representation to conduct himself as he did. However, I do not regard this as necessary, he was obviously a resourceful person who through his industry, and doubtless thrift, had been able to amass a not insignificant amount of capital to enable him to make the contributions he did, notwithstanding his previous employment as a factory hand, supplementing his income by dealing in a small way privately in used cars. His industry has kept both GRQWC and PWC going on a generally successful trajectory even if George Shukri, the patriarch, regards himself essentially as the boss. Issa is the person who has remained in Australia carrying on the business for the benefit not only of himself but of George Shukri whatever intra-familial resentments have built up over the decades. I am well satisfied that Issa has demonstrated, were it necessary, the elements of detrimental reliance.
Many of the same observations can be made about Elias. I have already pointed out that his capital contributions, including his contribution towards Raymond’s “buyout”, are significant and substantial. He was also, according to his evidence, a reluctant starter, given what he said about incipient tensions among the brothers, which Raymond’s evidence echoed. I think the evidence of each of them in this regard is to be taken with a grain of salt because it is no doubt influenced by a great deal of hindsight given the great differences that have developed over the decades. However, perhaps there is an element of intangible contribution in terms of the satisfaction that George Shukri no doubt derived from the assistance of his sons working in a successful family business, rather than pursuing opportunities of their own.
George Shukri was somewhat dismissive of the prospects of Issa and Elias without his help. He may have been somewhat dismissive of the prospects of all of his sons. He referred to Issa and Elias being unemployed and him being motivated by giving them a job. This is a little unfair to them. Each was unemployed at the time but, as I have said, each had shown considerable industry in the past, sufficient to at a young age, have amassed enough capital to gain the promise of an interest in the land and entry to the business. Their unemployment at the time was for reasons of their own choosing, not manifesting a lack of industry. Issa, of course, had taken a holiday, returned to Jordan and married there.
A matter which concerns me about whether Elias has suffered a detriment is the evidence suggesting that he wished to leave the business, did in fact leave the business on 9 January 1992 and was himself “bought out” by Raymond transferring the Bossley Park property to him for no consideration and making other cash payments. If Elias received other land and the return of some capital to surrender his interest in the land and the business, he could hardly have suffered a detriment and it could hardly be unconscionable for George Shukri, Raymond and Ghada not to have transferred an interest in the land to him.
Raymond, of course, had received the large sum of $225,000 upon ceasing his active participation in the business, which as I have said more than once appears to be shown in the books of GRQWC as a withdrawal of capital, not involving his departure from the partnership given he continued throughout to remain, an albeit dormant, partner notwithstanding his withdrawal from the business activities. Apart from Elias, no one has made any suggestion that he does not retain an interest in the land. As I have pointed out more than once, he did after his withdrawal make capital contributions, including on my view, the payment of $33,215 to discharge the mortgage-back. These are family arrangements, I remind myself, rather than arms-length commercial dealings.
I am satisfied that Elias has proved on the balance of probabilities, that he was not given the Bossley Park property without consideration and a relatively small sum of money in “exchange” for his parcel of rights in relation to the business and land as claimed by Raymond in particular, but also by George Shukri. If I may put it colloquially Issa seems to have run dead on that issue.
There are a number of factors which have led me to this conclusion. First, I accept the transfer of the Bossley Park property was made to Lucy on 31 January 1991, not 1992 despite the possibility of a “new year” slip in dating the transfer; secondly, although related, it is clear that Elias did not depart the partnership until 9 January 1992 on which date there was a distribution of profit for the year to date amongst him, George Shukri and Issa, but not Raymond; thirdly, unlike when Raymond left, Elias’s capital account remained intact with contributions of about $185,000 and no withdrawal of capital; fourthly there is no suggestion of any payment out to Elias, nor is there any re-adjustment of Raymond’s capital account having regard to the putative reintroduction of capital by Raymond to the partnership; and finally, there is no reassignment of any part of the capital in Elias’s account to Raymond’s. I accept that Elias left to commence business on his own account next door to the land and that he did so with the apparent blessing of George Shukri and Issa. But there was no payment out.

An additional important factor is that Elias remained, like Raymond, a dormant partner, but with his capital account intact until GRQWC’s business was transitioned to PWC during the 1999 financial year. I appreciate that at that time the accounts, especially the trial balance (Exhibit 8, tab 53) suggest that Elias had made a withdrawal of his capital or that GRQWC incurred a liability to him for a return of his capital. It also appears that 295 (or 299) Church Street was removed from the assets of GRQWC. These entries suggest some sort of financial settlement with Elias. The difficulty I have with that scenario is that no one conducted a case on the basis that that is what happened; that Elias was bought out not in 1992, but by the transactions appearing in the trial balance for 1999. It was not put to Elias in cross-examination that this had happened and he was given no opportunity to deal with that suggestion at all. In these circumstances, notwithstanding my general preference for the contemporaneous records, I am left in a position where the entries in the trial balance are interesting, but entirely unexplained. This is another example where evidence from the accountant responsible might have shed meaningful light on the significance or otherwise of those matters. One would have expected that those who seek to deny Elias an interest in the land would call that rebutting evidence on the basis that he who asserts must prove, always bearing in mind that Elias carries the persuasive onus of making good his claim.
The final point in relation to Elias’s position is, of course, the admission he seems to have made on 6 September 2019 that he did not pay for the Bossley Park property (see [135] – [136] above). I repeat that he said, “I didn’t pay for the house, but I grabbed it because I couldn’t grab anything out of what I gave [Raymond]”. This is obviously a potentially significant matter. I accept that whether or not one paid for real estate is something one is unlikely to forget or overlook. There is an ambiguity about what was said, because the passage immediately preceding my question (recounted at [135]) above should not be overlooked. There, Elias had said that Raymond made him take the Bossley Park property for $155,000 when it was worth $120,000. It was that statement that prompted my question. I have borne in mind that Elias was unrepresented and that these statements were made in response to questions asked by me when he showed up in court in attempt to tease out what his claim might be. At the time I made it clear I would not accept his statements as evidence. Although to the extent to which they are against interest, and now he is a party, Mr Duc is entitled to rely upon them.
While I have some misgivings and find his statement somewhat puzzling, having had the benefit of all of the evidence in the case, I am of the view that the apparent admission is entitled to little weight, having regard to the other circumstances to which I have referred which I find compelling. I am satisfied, as I have said, that Elias paid Raymond $155,000 for the Bossley Park property, the receipt of which is acknowledged on the face of the transfer itself. In coming to this conclusion, I am in part influenced by the consideration that I found Raymond’s evidence about signing the transfer in blank and intending to transfer the land to a friend of his thoroughly unconvincing. I have also accepted the thrust of Mr Balasubramanian’s cross-examination of Raymond that at the time the transfer of the Bossley Park property was made, Raymond was in need of capital to establish Wheels and Deals. Mr Balasubramanian clearly established that Raymond’s evidence that he had obtained a loan for that from Citibank by mortgaging his new home was erroneous. The new home was not yet completed until in January 1991 and the mortgage to Citibank was not taken out until 1994. Raymond’s late explanation that he may not have traded Wheels and Deals from the caryard until then, I found completely unconvincing and a mere after thought to deal with a difficult line of cross-examination. I accept Elias’s evidence that there was talk of Raymond buying him out but nothing came of it.
I am satisfied that Elias’s detrimental reliance has not been undermined by any of the other possible transactions thrown up in the evidence.
It follows that I am satisfied that George Shukri, Raymond and Ghada hold the land on a proprietary constructive trust for the benefit of Issa as to a one-quarter share as tenant in common and for Elias as to a one-quarter share as tenant in common.

Decision – the shareholding in Parramatta Wholesale Cars Pty Limited

Although I have made it clear that I do not accept the whole of George Shukri’s evidence for the reasons I have rehearsed at length, I accept his evidence (at 497.43T; extracted above at [190]) that GRQWC and PWC, “both of them are the same company” because in my assessment of the evidence this accords better with both the content of the contemporaneous documents and the apparent logic of events than Issa’s case that PWC was an entirely new venture wholly owned and controlled by him and that George’s only involvement was that he was good enough to extend a loan to Issa so he could use the company to buy lots 3 and 4 Parramatta Road. However, I do not accept George Shukri’s evidence that he, and not Issa, wholly owns and controls PWC. His statement that GRQWC and PWC “are the same company” belies that conclusion. What is clear from the financial records of GRQWC including the 1999 trial balance is that when the transition from GRQWC to PWC occurred, George Shukri and Issa were the last two remaining active partners who notwithstanding their differing capital contributions were entitled to share equally in the profits of GRQWC. It would be absurd if Issa was entitled to arrogate the business to himself by the simplest device of incorporating a company.
Having said that, I accept that PWC was incorporated for a different purpose, that purpose being to provide a means of allowing Mr Andrews to participate in the profits of GRQWC. It’s unnecessary to say whether or not Mr Andrews was supposed to make a financial contribution, but the impression I have formed of George Shukri is that probably he was and he failed to do so. I also accept that he was the type of persuasive salesman who made promises he could not keep and there were issues with the Department of Fair Trading. I accept that he left or was forced to leave in or about March 1998 when George Shukri was appointed a director. I am also of the view that from that time the idea developed that it may be more advantageous to run the business of GRQWC through a corporate entity and over the next 12 or so months, the transition I have referred to occurred. I should make clear apropos of my observations above (at [47]) that notwithstanding the annual returns of PWC showing an ongoing shareholding by Mr Andrews after 17 March 1998, that this is “simply erroneous”.
I am satisfied that from 17 March 1998, when he was appointed a director, George Shukri was entitled to be issued an equal shareholding with Issa, given that from that time the process of redirecting the purpose of PWC was initiated. This was evidenced by the purchase of lots 3 and 4 Parramatta Road at auction on 7 May 1998. As I am sure I have made clear already, I am not satisfied that the $300,000 odd contributed by George Shukri was a loan and I am certainly not satisfied that Issa has proved repayment of the loan for the reasons I have set out at [61] – [67]. From this material, I draw the inference that George Shukri was an active participant with Issa in the purchase of those properties through their common involvement in PWC. A most telling consideration is that the balance of funds of purchase of the land was raised by a mortgage with ANZ bank which George Shukri and Elen and Issa and Fayrouz were required to guarantee in addition to the mortgages provided by PWC. If George Shukri was a mere lender, he would hardly have agreed to that. If Issa was a mere working director, he would hardly have agreed to that. I say this bearing in mind their presentation in the witness-box, as well as by reference to the apparent logic of events.
I appreciate in coming to these conclusions, I am rejecting the main thrust of the evidence of each of George Shukri and Issa about these matters. They each have a high degree of self-interest in excluding the other. I am of the view, notwithstanding the impression I have formed, that Issa is the day to day driving force behind PWC, and has been for many years. George Shukri, despite his chronological seniority, retains an active interest in the affairs of the business and, in any event, had by the time of the transition of GRQWC’s business to PWC by far and away contributed the most capital to the enterprise. It may be a small point but having had the opportunity of seeing and hearing all of the principal members of the Hanania family give evidence, including George Shukri, I am of the view that he is not the type of man who would be prepared to lend a large sum of money to his son for the purchase of valuable land. He impressed me very much that he was the type of person, given his long business history in Jordan and Australia who would only be involved in the purchase of land if he could be involved directly as an owner.
For what it’s worth, I record that the trial balance for 30 June 1999 for GRQWC (Exhibit 8, tab 53, p. 552) shows George’s equity as $579,598 and Issa’s as $241,603 (Elias is still shown as $185,700). From that position, as I have said more than once, GRQWC’s profit and loss statement for 2000 (Exhibit 8, tab 54) shows no profit from trading in used cars at all, but a non-trading profit from other unspecified income sources divided equally between George Shukri and Issa. I repeat in that year 2000, PWC made $2.175m as a gross trading profit by dealing in used cars. I would regard these documents and George’s evidence as a clear indication that the common intent of George and Issa adjudged objectively was that they were to be equal shareholders in PWC from at least, or no later than, 17 March 1998 when Mr Andrews left the business.
Applying the principles I have set out above (at [273] ff) I am satisfied that George Shukri has made a case under s 175 of the Corporations Act for the correction of or rectification of PWC’s share register. That is to say, applying those principles I am satisfied that George Shukri has established a personal equity that requires the protection of the Court. In the exercise of my discretion, I propose to order a correction of the register of members. I am not satisfied that there is any reason why that order should not be made.
The orders giving effect to this decision ought to require PWC to comply with ss 178A and 178C Corporations Act within 28 days of the entry of orders.

Decision – the rent claim

The effect of my findings so far is that obviously George Shukri, Raymond and Ghada cannot pursue a claim for arrears of rent against Issa personally as he is, in equity, a tenant in common with them and in any event, it is common ground that since the late 1990s PWC has been the “tenant” on a periodic basis.
Mr Wood advanced a number of detailed arguments about the lease and rent claim (written submissions [72] – [78]). As I have indicated his primary argument was that given the intra-familial aspects of the case and the absence of formality in the establishment of the pre-incorporation arrangement about the payment of “rent”, I would not be satisfied that there was an intention to enter into legal relations in relation to that matter.
I am satisfied that although the arrangements were somewhat informal that there was an intention to create legal relations, even though so far as GRQWC’s possession of the land was concerned, each of its partners at all material times had enjoyed the unity of possession characteristic of tenancy in common. Neither was entitled to exclude the other and all were entitled to use the land for proper, lawful purposes. As I have said, these rights no doubt were capable of being adjusted amongst the tenants in common by agreement. There was no law against tenants in common agreeing that one or more of their number will forsake his or her entitlement to possession of the land for a period provided the arrangement is supported by valuable consideration.
Although PWC is a company, in accordance with my findings, controlled by two of the tenants in common, no doubt a lease may be granted to it by other tenants in common permitting it to use the land to the exclusion of the lessor. And although Mr Woods has set out the formal requirements of the entry into commercial leases in his written submissions, it seems to me that a lease arrangement even over commercial premises can be established on a periodic basis by the proffering and acceptance of rent, as occurred here on a month-to-month basis. And I am satisfied that there was a lease between PWC and Raymond and Ghada by which the latter let their interest in the land including their right to possession, to the exclusion of them by PWC: State of New South Wales v Koumdjiev (p. 361 [33]). I accept that that is what occurred here.
Raymond, on behalf of himself and Ghada, fully appreciated that PWC was controlled by both George Shukri and Issa. I am not satisfied that Issa unilaterally reduced the rent from $3,000 rent per month to $2,750 per month without Raymond’s agreement however highhandedly Issa may have conducted himself. It is notable that in his first affidavit, Raymond said he was informed of the reduction in rent by Issa and George Shukri. Although he says he did not agree to it, I do not accept his evidence. I accept Raymond was not happy about the reduction of the rent, but given his father’s involvement he accepted it, albeit through gritted teeth.
From time to time he complained about the rent to Issa, but Issa did not agree to an increase. When matters came to a head in 2015, really Raymond and Issa agreed to disagree and the impasse about the amount of rent was resolved by PWC surrendering a portion of the land, as requested by Raymond, to Raymond and Ghada for use by their son to whom they, doubtless purported to grant a lease or license over that portion of the land to the exclusion of PWC and, not that it matters for present purposes, Issa. Obviously not satisfied, and after the notice to quit had been given to Issa (but not PWC), Raymond took matters into his own hands and took possession of an additional portion of the land and erected a fence down the notional centre line to exclude both Issa and PWC. In truth by excluding Issa, George Shukri by implication and their company, PWC from the use and enjoyment of that portion of the land in a proper manner, Raymond and Ghada are in effect trespassers: State of New South Wales v Koumdjiev (p. 361 [32]).
In my judgment when Raymond and Issa agreed to PWC surrendering the part of the land demanded by Raymond, any lease and obligation to pay rent was discharged by their agreement. Although I accept that Raymond was acting out of a misunderstanding of the concept of the unity of possession enjoyed by tenant in common, by seizing an additional portion of the land, albeit without Issa’s active opposition (even if he had the tacit agreement of George Shukri and Elias), and erecting a fence to exclude Issa, Raymond was acting well beyond his legal rights as a tenant in common.
I am not of the view that an entitlement to rent has been established.

Possession

As I have said, the notice to quit (Exhibit B) was erroneously issued in purported reliance upon the provisions of the Residential Tenancies Act 2010 (NSW). It was directed only to Issa and his son, Steve and not to PWC which on any basis was the ongoing lessee. The only ground given in the notice was the non-payment of rent, for which on the findings I have made, PWC was not liable as at 26 October 2016 when the notice was given.
The filing and serving of the Statement of Claim may of itself have been sufficient notice of ejectment to a person in adverse possession, but not to a party like PWC which until then had enjoyed a gratuitous licence to occupy that part of the land left to it in January 2018. But, of course, more fundamentally, George Shukri, Raymond and Ghada cannot exclude Issa from land of which he is beneficially a tenant in common. In my view nor can they exclude the corporation by which means he, in common with George Shukri, exercises his right to possess and use the land in a proper manner for lawful purposes. Given Issa’s, and through him PWC’s compliance with Raymond’s request to allow Raymond’s son use of an appropriate use of a portion of the land it can hardly be said that Issa’s possession and use is excessive or unreasonably restricts the use of co-tenants in common. Even if it did, the remedy available to the co-tenant would not be judgment for possession, but a compulsory sale under s 66 Conveyancing Act 1919 (NSW), which the plaintiffs have not sought: State of New South Wales v Koumdjiev (p. 361 [32]).
In the circumstances proceedings for possession should be dismissed.

Orders

For these reasons, I make the following orders:

Declare that George Shukri Hanania, Raymond George Hanania and Ghada Hanania hold the land in folio 44/950742 and known as 301 Church Street, Granville on constructive trust for Issa Hanania as to a one-quarter share as tenant in common and for Elias Hanania as to one-quarter share as tenant in common.

Dismiss the plaintiffs’ proceedings for possession of the said land.

Declare that George Shukri Hanania is entitled to an order under s 175 Corporations Act 2001 (Cth) for the correction of the register of members of Parramatta Wholesale Cars Pty Ltd to show that he holds an equal number of shares in the company to Issa Hanania.

Dismiss the claim for arrears of rent.

The parties to confer and agree upon orders necessary to carry these decisions into effect and bring in short minutes of order by 30 June 2022.

In default of agreement, each party to lodge with the chambers of Campbell J by that date a minute of the orders propounded and a short submission in support not exceeding three pages.

Subject to any application for any special order as to costs made in writing within 14 days of the date hereof, the plaintiffs are to pay the defendants and the first cross-claimant’s costs of the proceedings, excluding the costs referable to the first plaintiff’s claim for an order under s 175 Corporations Act 2001 (Cth), and the second cross-claimant’s costs of his cross-claim.

The second defendant is to pay the first plaintiff’s costs of the application for correction of the register of members of the first defendant under s 175 Corporations Act 2001 (Cth).

Subject to the preceding orders, liberty to apply reserved in respect of the form of orders and the questions of costs.

**********

Decision last updated: 21 June 2022

Medium Neutral Citation:	Hanania v Parramatta Wholesale Cars Pty Ltd [2022] NSWSC 806
Hearing dates:	2; 3; 4; 5; 6 Sept; 26; 27; 28; 29; Oct; 4 December 2020
Date of orders:	21 June 2022
Decision date:	21 June 2022
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	See paragraph 329
Catchwords:	EQUITY – trusts and trustees – remedial constructive trusts – Baumgartner principles – where the land is included as an asset of a partnership – quantification of contributions of parties - whether there has been relevant premature termination constituting unconscionability of retaining sole legal title – whether appropriate relief required imposition of a constructive trust over the property as tenants-in-common CORPORATIONS – shares – rectification of share register – application to correct the register pursuant to s 175 Corporations Act 2001 (Cth) LEASES AND TENANCIES – rent and outgoings – payment of rent – where rent not paid by a tenant in common
Legislation Cited:	Conveyancing Act 1919 (NSW), s 66 Corporations Act 2001 (Cth), ss 175, 178A, 178C Evidence Act 1995 (NSW), s 140 Partnership Act 1892 (NSW), ss 22, 32 Real Property Act 1900 (NSW) Residential Tenancies Act 2010 (NSW)
Cases Cited:	Aerolink Air Services Pty Ltd v Bankstown Airport Ltd [2022] NSWSC 587 Austin v Hornby (2011) 16 BPR 30,623; [2011] NSWSC 1059 Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Cobbe v Yeoman’s Row Management Limited [2008] 1 WLR 1752 Darby v Darby (1856) 3 Drew 495; (1856) 61 ER 992 Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 Federal Commissioner of Taxation v Everett (1980) 143 CLR 440; [1980] HCA 6 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 Grant v John Grant & Sons Pty Ltd (1950) 82 CLR 1; [1950] HCA 54 In the matter of Motasea Pty Ltd [2014] NSWSC 69 Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 Nicolitsa Togias v State of New South Wales [2021] NSWSC 1588 Priestley v Priestley [2017] NSWCA 155 Re Mogul Stud Pty Ltd [2012] NSWSC 1639 State of New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247 Watson v Foxman (1995) 49 NSWLR 315 Woods v McKinley (No 2) [2021] NSWSC 1510
Texts Cited:	Nil
Category:	Principal judgment
Parties:	George Shukri Hanania; Raymond Hanania; Ghada Hanania (Plaintiffs) Issa Hanania (Defendant and cross-claimant) Elias Hanania (Fifth Cross Defendant)
Representation:	Counsel: A Duc (Plaintiff) C.D. Wood SC and NCC Simone (Defendants) B Balasubramanian (Solicitor) (Fifth Cross Defendant) Solicitors: Williams the Law Firm (First and Second Defendants) Attia Lawyers and Consultants (Plaintiffs) Marsdens (Fifth Cross Defendant)
File Number(s):	2018/16534
Publication restriction:	Nil