Mustapha v Naaman - [2007] NSWSC 1348

NEW SOUTH WALES SUPREME COURT

CITATION: MUSTAPHA v NAAMAN [2007] NSWSC 1348

JURISDICTION: EQUITY

FILE NUMBER(S): 5966/2005

HEARING DATE{S): 20, 21 & 22/11/2007

JUDGMENT DATE: 28 November 2007

PARTIES:
Mustapha El Mustapha - Plaintiff
Mohamad Naaman - Defendant

JUDGMENT OF: Bryson AJ

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
T. Marskell - Plaintiff
W. Ward - Defendant

SOLICITORS:
Ledlin Partners - Plaintiff
Koutzoumis Lawyers

CATCHWORDS:
SPECIFIC PERFORMANCE - oral agreement partly evidenced in writing for transfer of Stand 10 Growers Retail at Flemington Markets for $25,000 - order for Specific Performance - many issues about other dealings between parties.

LEGISLATION CITED:

CASES CITED:

DECISION:
1. Order that the agreement between the plaintiff as purchaser and the defendant as vendor for the transfer of one Growers Share relating to Tradeable Space SRI 010 G and Permit relating to Stand 10 – Growers Retail Market Fresh Food be specifically performed and carried into executions under the direction of the Court but subject to the condition in order 2
2. Order that the condition be that all necessary approvals, surrender, grant of a new permit and other matters and things necessary to be obtained from Sydney Markets Limited should be obtained: and further order that each party do all things which the court shall direct in support of and for the purpose of obtaining any necessary decision or act of Sydney Markets Limited
3. Reserve further consideration of the Plaintiff’s remedies in case it shall not be possible to effect specific performance
4. Reserve liberty to apply for directions
5. Order that the Defendant pay the Plaintiff’s costs of the proceedings.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

WEDNESDAY 28 NOVEMBER 2007

5966/2005 MUSTAPHA EL MUSTAPHA v MOHAMAD NAAMAN

JUDGMENT

BRYSON AJ: The plaintiff Mr El Mustapha conducts a fruit, vegetable and groceries business in Good Street Granville. He acquires much of the produce, fruit and vegetables he sells at the Sydney Growers Market at Flemington, and he is familiar with operations at the Market. He commenced these proceedings in the District Court on 10 June 2003 and made claims for debts related to the partnership which he alleges. In 2005 he widened his claim to seek specific performance of an agreement about the transfer of Stand 10, and had the proceedings removed into the Supreme Court.
Much of the evidence including oral evidence was difficult for me to assess, as business is done at the markets in unfamiliar ways, with hardly any written records, largely by oral exchanges, among people who speak different languages and do not do business in English, and have cultural bases with which I am unfamiliar. When evidence comes to me through interpretation from foreign languages, from people who are obviously unfamiliar with the courtroom situation and with my understanding of ordinary ways of doing business, I cannot form reliable impressions of demeanour. However the strangeness of the explanations given to me and the difficulties of understanding what the evidence seemed to tell me went beyond anything that can be explained simply by difficulties of interpretation or different cultural assumptions.
Occupation and use of stands in the Market are controlled by Sydney Markets Ltd. In January 2001 Mr El Mustapha agreed with Mr Kheir the proprietor of Stand 15 that he would buy Stand 15 for $50,000; he did so and paid Mr Kheir partly in cash and partly by delivery of grocery stock from his store and other sources. The rights associated with Stand 15 were rights to sell produce on the five ordinary working days of the week, starting of course very early in the morning; the principal operation was to buy stock from wholesalers or from growers and sell it to shop proprietors and similar traders. Mr El Mustapha held informal rights to Stand 15 from Mr Kheir for about two years, and then sold Stand 15 back to Mr Kheir and received the price. Sydney Markets Ltd was never involved in the transfer to Mr El Mustapha of the rights relating to Stand 15: the arrangement was wholly one between Mr Kheir and Mr El Mustapha.
While Mr El Mustapha controlled operations at Stand 15 in this way, the defendant Mr Naaman worked there. Operations at Stand 15 ceased when the stand was delivered back to Mr Kheir in January 2003. There are disputes of fact about the basis on which he worked there, his relationship with Mr El Mustapha and what if anything Mr El Mustapha contributed to the operations there. Mr El Mustapha claims that the relationship was governed by an oral agreement, formed in January 2001 by his agreeing with the defendant in these terms:
Defendant: I have lost my job and I have not been working for 2 months. There is stand owned by Fayez Kheir and he wants to sell it. There are good business opportunities at the Markets. I have a farming licence which means that I can obtain a growers permit to have a stand at the markets. Why don’t we go into business together to buy a stand? I have lots of experience in selling farm products at the Flemington Growers Market and we can make lots of money. I would like to go into business with you because you are honest. I have no money, but if you will buy a stand, it can be registered in my name because of my farming licence and I will work the stand. We will split everything 50/50.
Plaintiff: OK. I cannot work with you at the market because I have my own business at the shop.
Defendant: It is only a 5 day stand, from Monday to Friday but we will rent one for the Saturday.
Mr El Mustapha says that he gave the defendant $8,000 with which to operate Stand 15, and I interpret that as working capital for purchase of stock. Mr El Mustapha's evidence is that he did some work in the business conducted at Stand 15, but his oral evidence makes it difficult to think that he did any more than a few hours’ of work. His main concern was to obtain supply of produce for his shop; and sometimes he sold goods which he had acquired wholesale to Mr Naaman.
It is Mr El Mustapha’s case that in 2001 he agreed with Mr John Mifsud, who then owned Stand 10 in the Sydney Markets, to buy Stand 10 from him for $50,000. Mr El Mustapha paid the price to Mr John Mifsud, by a deposit and instalments over several years and Mr Mifsud gave evidence and regarded himself as properly paid. There is much in dispute however about who provided the money for this to happen and the basis on which it was provided. In a similar way as he did for Stand 15, Mr Naaman carried on the actual operations at Stand 10, which was available on Saturdays only. In April 2002 Mr Mifsud transferred his interest in Stand 10 to Mr Naaman in a formal way involving Sydney Markets Ltd. The documents provided to Sydney Markets Ltd were appropriate for and spoke only in terms of a transaction between Mr Mifsud and Mr Naaman; Mr El Mustapha was not mentioned in these documents as a party or as the purchaser from Mr Mifsud. There was an application in writing to Sydney Markets Ltd for a surrender and grant of a new permit, and according to the terms of the application the permit was available to Grower Sellers. Mr Naaman’s name and home address were given, and also a farm address at Fifteenth Avenue, West Hoxton Park. It is evident from the application form that Sydney Markets Ltd regarded it as significant that Mr Naaman was a Grower Seller and had a farm address. There was a reference to a Casual Stand Holders Card in the Growers Sellers market which Mr Naaman already held. Sydney Markets Ltd was told in Mr Mifsud’s application that the sale price was $40,000 (not $50,000) and was told that there was no written sale agreement. The application was supported by a statutory declaration by Mr Mifsud, and (surprisingly, as he does not read and hardly speaks English) by a statutory declaration by Mr Naaman, in English, saying that the price was $40,000. (So there are two written references to the price and both say it was $40,000, not the $50,000 which Mr El Mustapha says it was and no-one disputes. There is no refuge in relying on written records.) As part of the transaction one share in the Share Class Growers was transferred by Mr Mifsud to Mr Naaman, the expressed consideration being one dollar. According to the Constitution of Sydney Markets Ltd a Tradeable Space referred to as SRI010G is stapled to that share.
For some reason which was not explained, the transfer by Mr Mifsud took place in April 2002, a little over 12 months after the payments began. Mr El Mustapha's evidence is that he arranged for the transfer to be a transfer to Mr Naaman. He says that Stand 10 was in Mr Naaman's name because "Mr Naaman holds the farm licence and I trust him." This explanation does not finally show whether Mr Naaman was intended himself to be the owner of Stand 10 or whether in some way it was understood that he held on behalf of Mr El Mustapha. There is simply no basis for resolving this conundrum.
Mr Naaman could put himself forward as a grower because he leased some farmland, whereas Mr El Mustapha could not as he had no farmland and ran his own shop business. (Mr Naaman could not remember dates and could not clearly state that he actually had leased farm land in 2001. This is not an important question. What matters is that Sydney Markets Ltd accepted him as a tenant in April 2002, when it is more likely that he had leasehold farmland.)
The right to occupy and sell from a stand stapled to a share conferred by the Constitution of Sydney Markets Ltd is a licence, not an interest in land. However it has a unique character in that it is a share in a company in which shares are not freely transferable, and the right to use a particular stand is annexed to that share. This unique character makes it an appropriate subject for specific performance, but with the qualification that specific performance can only be enforced subject to all reasonable steps being taken to obtain the concurrence of Sydney Markets Ltd and registration of the transfer.
The rights which Mr Naaman has and Mr El Mustapha claims to Stand 10 can be understood by referring to the Articles of Association of Sydney Markets Ltd (Exhibit A). In the Company's capital there are Initial Shares, which relate to formation of the Company in 1997 and need not be considered further, and Ordinary Shares, which are divided into five classes according to classes of market users. Mr Naaman's one share is in Class 2.2(a)(ii) Growers Ordinary. Under Article 2.9 each Ordinary Share of "… is irrevocably linked to the Tradeable Space to which it relates and neither the share nor the Tradeable Space can be dealt with in any way without the other."
Tradeable Space is defined in Article 1.1 and includes many units of space at the markets including a stand in the Growers Market. Under Article 2.5 only a Tenant is entitled to be registered as the holder of a share. The definition of Tenant in Article 1.1 and the entitlement of a Tenant to his share in Article 3.1 work together. "Tenant” is defined and it does not necessarily mean the holder of an interest in land under real property law; the definition refers to a Tenant as a person holding Tradeable Space under arrangements with Sydney Markets Ltd. Each Tenant is entitled to one share and a Tradeable Space is stapled to each share. Under Article 5.1 there is a qualified right to transfer shares "… provided that a share may only be transferred with the Tradeable Space to which it is stapled". Under Article 3.2 a member will cease to be a member in several ways including:
(a) That member ceases to hold the Tradeable Space to which the share is stapled.
So the shares and Stand 10 are not freely assignable. As a result of these provisions, Mr Naaman's share cannot be transferred to Mr El Mustapha unless Mr El Mustapha is accepted by Sydney Markets Ltd as a Tenant holding Tradeable Space, that is, unless the Company agrees to him occupying Stand 10.
Mr George Macri, who has had many years of experience trading at the market and is a member of a committee representing traders, explained how transfers are considered. A transfer of a share in Tradeable Space in the Growers Market is accepted by Sydney Markets Ltd if the transferee is a farmer or has some other close connection to farmland; leasing it, or having a share farming agreement; and there may be other connections. Mr Macri's committee sometimes makes representations about a pending transfer, but the decision is made by an officer of Sydney Markets Ltd.
If the court makes an order for specific performance and compels Mr Naaman to sign a transfer, the transfer will not be effective unless Sydney Markets Ltd decides to accept Mr El Mustapha as Tenant of Stand 10. This is a discretionary decision that the Company will make; the court cannot control it. It is for Mr El Mustapha to acquire a lease or share farm farmland or in some way put himself in a position where he will be accepted by Sydney Markets Ltd as a Tenant. The orders for specific performance must to allow for this.
The plaintiff Mr El Mustapha paid Mr Mifsud the price of $50,000 by a long series of payments from 24 March 2001 to 1 February 2004, for many of which he produced copies of receipts. He was vague and indefinite about how long the payments continued to be made. Not the whole $50,000 is covered by receipts. In a similar way as with Stand 15 Mr Naaman conducted business on Stand 10 from the time possession was obtained, within the limits available, Saturday morning; he still does.
Involved in the plaintiff's case is a claim that he was the principal in the purchase of Stand 10 from Mr Mifsud, that he paid the purchase price with his own money, and that the transfer of the share and other rights relating to Stand 10 to the name of Mr Naaman is to be explained by an overall arrangement under which they were operating, in which Mr Naaman and Mr El Mustapha were partners in the business which Mr Naaman was operating. Mr El Mustapha claims that he is the equitable owner of Stand 10 under a resulting trust because he paid for it with his own money. The indications in the evidence offered by Mr El Mustapha about the partnership that the stands were not to be partnership assets are very faint.
Mr Naaman gave a very different account of the circumstances of the purchase. According to him he initiated the purchase of Stand 10 and got Mr El Mustapha to help him deal with Mr Mifsud. According to Mr Naaman’s case Mr El Mustapha did not pay Mr Mifsud with Mr El Mustapha’s money: the money was provided by Mr Naaman. He gave no clear or understandable explanation why he involved Mr El Mustapha in dealing with Mr Mifsud; as far as I can see he was in just as good a position to deal with Mr Mifsud himself.
According to Mr Naaman, there was an arrangement between him and Mr El Mustapha under which Mr Naaman gave Mr El Mustapha the purchase money (and it is difficult to understand whether his evidence means that he gave Mr El Mustapha $47,500 in one payment, or $40,000 in one payment and $7,500 in another). Under this arrangement, Mr El Mustapha was to pay Mr Mifsud by instalments but was to keep most of Mr Naaman’s money in his own hands for a while and use it for his own advantage, eventually paying out Mr Mifsud.
Mr Naaman gave this explanation for paying money to Mr El Mustapha:
Mr Naaman: "I want to buy Stand 10 but I don't know John Mifsud.
Plaintiff: “ I know John well. I can arrange the sale for you at a good price."
Mr Naaman “What do you want?"
Plaintiff: “I will arrange to pay Mifsud over a period of time as I know him and you can pay me upfront. I will use this money to operate my new fruit market/business at Granville and is well I will buy all the fruit from you."
Mr Naaman: “That sounds good."
I am not able to believe this. If Mr Naaman had the money to pay for Stand 10 and intended to buy it, he could have dealt with Mr Mifsud himself, whether or not he already knew him. He is obviously likely to have got a better price if he paid all the price over forthwith rather than arranging for instalments taking one or two years to pay. It is very unlikely that he would leave his money with Mr El Mustapha and allow Mr El Mustapha to pay by instalments and get the benefit of deferring the payments; if anyone was to get the benefit of deferring payments, it would be rational for Mr Naaman to get that benefit from himself. Getting Mr El Mustapha to promise to buy all the fruit from Mr Naaman is not a sufficient explanation. In any event according to Mr Mustapha's evidence he did not know Mr John Mifsud well.
There is no written material recording or confirming this arrangement. There is no rhyme or reason in the arrangement, no reason appears why Mr Naaman would put off paying Mr Mifsud for Stand 10 if he had the money available, or why he would let Mr El Mustapha use his money for his own advantage and pay off Mr Mifsud over many months. It seems to me that he could have tried to get a lower price if he had ready money. Compared with these difficulties, the fact that he only claims to have paid $47,500 whereas the price was $50,000 (although Sydney Markets Ltd was told it was $40,000) is a minor anomaly. Mr Naaman's explanation of these events never assumed a form that was believable or made any commercial sense, or any sense at all.
According to Mr El Mustapha's interpretation and his claim, the arrangements under which he provided first Stand 15 and later Stand 10 as well was a partnership. He contributed the use of the stands which he paid for and were his, and initial working capital of $8,000, while Mr Naaman did all the work. One object of this was to give Mr Naaman an occupation when he was unemployed and another object was to earn profits for Mr El Mustapha as well as for Mr Naaman. According to Mr El Mustapha he could not get Mr Naaman to comply with any reasonable requirement about running the partnership business such as showing him books and reporting on profits; and with great difficulty he got Mr Naaman to make payments to him, although the payments were not properly explained or accounted for. He says that on three occasions Mr Naaman turned up at his house and gave him sums of money in cash without any explanation. There were three bundles of money from September 2001 to July 2002 and they totalled $48,000. According to Mr El Mustapha nothing was said such as that the money was a share of profits, or was to pay for Stand 10: nothing was said at all.
What Mr El Mustapha says about these payments does not correspond in any way with any part of Mr Naaman’s case, according to which these payments did not happen. It should not be supposed that these payments support the view that Mr Naaman provided the money to pay Mr Mifsud the purchase price of Stand 10; what Mr Naaman said he did was not make a series of payments but give $47,500 to Mr El Mustapha either all at once or in two payments early in the events. My finding is that I believe that these payments were made and they were probably made for some good reason but I cannot establish what it was. I do not disbelieve Mr El Mustapha's evidence that Mr Naaman paid him money totalling $48,000; it does not seem possible that he would state and admit this unless there was a basis for it. However I do not believe that Mr Naaman handed over such large sums of money without any explanation. On the evidence I do not know and cannot make a finding about what the payments were for. It should not be assumed that this money was a share of business profits.
The usual (not necessary conclusive) indication that there is a partnership is that profits are shared: it has not been proved that that happened in this case. There is no confirmation in records or circumstances that there was any partnership. The proposition that there was a partnership depends wholly on accepting what Mr El Mustapha says was the original arrangement, and on interpreting it as having the effect that they were partners. Where there is a partnership, ordinary business prudence and respect for the law including taxation law means that it was the obligation of both partners to see that proper books and records were kept and if there was income, that there were Taxation Returns. There is no indication that Mr El Mustapha ever did anything about this, apart from (he says) repeatedly asking Mr Naaman to produce records which he did not ever do. Mr Naaman did not produce any records in evidence and there is no real indication that he ever had any systematic business records. Mr El Mustapha says that Mr Naaman kept books recording sales; no books were produced at the hearing. Nor is there any indication that Mr Naaman ever had any records from which profits could be understood. The end of a financial year went by twice – 30 June 2001 and 30 June 2002 – without Mr Naaman giving or Mr El Mustapha getting any information for Tax Returns: if a partnership really existed it is very unlikely to have continued after a partner did this once, let alone twice. Yet Mr El Mustapha, who claims that he owned both stands, let Mr Naaman go on using them. This is very unlikely.

Mr Naaman did the buying and the selling, made the decisions and kept the cash. As is the way of the Markets, transactions were conducted with bundles of cash. Not all transactions were invoiced. Mr Naaman paid the charges in the nature of rental to Sydney Markets Ltd. There was no common bank account. There are no bank records. When Mr Naaman wanted to rent a forklift truck for use in the business, he rented it and the invoice for rent was sent to him naming only him. When he wanted to buy a forklift truck he purchased it on a five-year lease arrangement and only he signed the lease documents; Mr El Mustapha is not named in the lease and undertook no responsibility for this long-term obligation. Mr El Mustapha says he knew of this in advance; but there is no reason to think that he was involved in the lease arrangement. The lease finance was $30,815.40, a huge expenditure in the scale of money under discussion. When Mr Naaman wanted a car he bought one. Mr Naaman employed Mr Berri without consulting Mr El Mustapha. When he wanted to employ someone he hired him. There are no records about employment of staff. There is no reference to a business name. A number of people who did business with Mr Naaman gave evidence showing that they had no idea that they were dealing with anyone other than Mr Naaman, and in some cases they gave evidence that they did not ever see Mr El Mustapha working in the business. This is not surprising as even on his own evidence he hardly ever did. On the other hand one or two witnesses said that Mr Naaman had spoken of or treated Mr El Mustapha as in business with him. Mr Berri says that Mr Naaman referred to Mr El Mustapha as his business partner.
The difficulty about accepting Mr El Mustapha's evidence and interpreting the oral agreement as meaning that there was a partnership is that there is no sign of any later activity which can be fairly interpreted as partnership activity. Part of this difficulty is that there is no sign of any arrangement under which Mr Naaman either had an interest in Stand 15, or had some established right to use Stand 15. His own evidence is that he had nothing to do with the purchase of Stand 15 or its sale. If some outside creditor had wished to claim that Mr El Mustapha was liable as a partner for a debt incurred by Mr Naaman he would have had absolutely nothing to put in evidence.
I am left to conclude that there was some arrangement between these two men relating to Mr Naaman conducting business on these two stands, but there is no reliable basis on which to make a finding about what it was, and in particular there is no reliable basis for finding that it was a partnership in which profits were to be shared but the stands were to be the property of Mr El Mustapha although Stand 10 was to be in the name of Mr Naaman. There is no believable evidence on which I am able to find what the arrangement or venture was. I have no confidence in any of the evidence that had been given to me about who contributed the money used to purchase Stand 10 from Mr Mifsud. A large difficulty for Mr Naaman’s case is that he gave no reliable evidence that he had money available from which to pay Mr Mifsud for Stand 15: he said he borrowed it from Mr Kheiallah Taleb, but there was no evidence confirming this from Mr Taleb, and as Mr Naaman’s credibility was under severe attack he should, in all prudence, have obtained Mr Taleb’s evidence that there really was a loan and a sum of actual money. This might have cleared up just how much money there was. It is extremely strange that Mr El Mustapha should pay $50,000 for Stand 10, as he says he did, and put it in Mr Naaman’s name yet take no written confirmation of his own interest. A large difficulty on Mr El Mustapha's part is that in a much disputed arrangement made in December 2002 of which there is a partial written record, Mr El Mustapha agreed to pay Mr Naaman $25,000 on the transfer to him of Stand 10. It is anomalous that he made an arrangement like this if the truth was that he already was entitled to be the owner of Stand 10.
I am not satisfied that Mr El Mustapha was or is the beneficial owner of Stand 10. It was probably his money that he used to pay for it, but he did so under some arrangement with Mr Naaman the terms of which cannot be established. What Mr Naaman says about this is not credible, and what Mr El Mustapha says about a partnership is very unlikely. There was some arrangement between them about Stand 10 and I do not know what it is. Mr Naaman is the legal owner and there is nothing to override that.
A record was made, in Arabic, of the outcome of the meeting of December 2002. This was translated in Exhibit B.
I my signature Mr. Mustapha Hassan Mustapha, declare and admit that I owe Mohammed Naaman AUD $25, 000 and payment to him is to be made upon receipt and signature on stand at the market.
Signatures: El Mustpha
[Illegible]
Wittesses: Tawfic Hamzi
Second Wittness: [signature Illegible]
Findings about what arrangements were made in December 2002 are affected by the besetting difficulty of this case, that many important facts are the subject of no written evidence or objective corroboration, only evidence of oral arrangements in terms which are imprecise. The circumstances of events and the explanations offered for them are often difficult or impossible to follow according to ordinary business considerations. I took a particularly adverse view of the evidence of Mr Hamze, who was a witness of the transaction in December 2002; his difficulties in actually addressing questions were so great and the strangeness of his answers in some instances was so extreme that I treat his evidence as completely unreliable. In a case where there are improbable stories and unlikely explanations on all sides, Mr Hamze stood out.
This document is obviously from its terms not a complete record of the entire agreement; I have to consider evidence of the oral agreement which it partly records in order to understand what it talks about. With the aid of the oral evidence, I am satisfied that there was an oral agreement, only partly recorded in this document, one term of which was that Mr Naaman promised to sell and transfer Stand 10 to Mr El Mustapha for $25,000, and Mr El Mustapha promised to buy Stand 10 and pay for it. It would not be right to read the document completely literally as containing no promise by Mr Naaman, simply that Mr El Mustapha undertakes an obligation to pay $25,000 if Mr Naaman does transfer the Stand.
Although I am unable to say what it was, I do find, on the probabilities and from general considerations, that there was some dispute which was wider than simply whether or not Mr Naaman should transfer Stand 10 to Mr El Mustapha. It could have been some claim by Mr El Mustapha to some proceeds of the business; but I cannot know exactly what it was. In my judgment it is altogether incredible that, as Mr Naaman's evidence and also Mr Hamze’s evidence would maintain, Mr El Mustapha orally agreed that he would also pay another larger sum, it could be $40,000, to Mr Naaman; if there was an arrangement like that, I do not find it credible that the written record signed by both of them would only refer to $25,000. I do not believe it.
It is clear to me that, whatever venture, partnership or arrangement related to business at Stand 15 and Stand 10 the parties may have had up until then, the agreement of December 2002 brought it to an end. On the probabilities I find that there was an agreement under which the transfer of Stand 10 to Mr El Mustapha and the payment of $25,000 to Mr Naaman were to close off all claims, whatever they were, which were then in dispute between them, and that this included the dispute whatever it was about whether or not Mr El Mustapha should be paid something in respect of Mr Naaman having conducted the business, or should be paid for the $8,000 which Mr El Mustapha claims to have paid at an early stage.
It is not possible that there was to be a continuing arrangement for Mr Naaman to conduct the business and in any way share profits or make payments to Mr El Mustapha, whatever the correct classification of the venture was, after Mr Naaman had agreed to hand over Stand 10 and be paid $25,000 for it. If there was any partnership or similar venture, it was brought to an end by this agreement. If there was any entitlement of Mr El Mustapha up until then to share profits, it was resolved. This conclusion is reinforced in that Mr El Mustapha surrendered Stand 15 to Mr Kheir the next month, January 2003.
One group of remedies which Mr El Mustapha claims turn on characterising the arrangement as a partnership. I am not satisfied that there was a partnership, but even if there was, it was brought to a definitive end in December 2002, in a way which closed off all opportunity or need for further accounting. I will not give any partnership remedies.
A second group of remedies related to enforcement by specific performance of the agreement to sell Stand 10 to Mr Mustapha. It is appropriate to enforce this agreement by specific performance because of the unique character of the rights sold. There is no requirement for writing to evidence the transaction. The order for specific performance will require both parties to take all reasonable steps to register the transfer and obtain any necessary approvals by Sydney Markets Ltd. If this cannot be carried out, the remedies will have to be reconsidered, and I will reserve further consideration for that purpose.
The plaintiff also claimed restitution, but there is no basis for this.
My Orders are:
(1) Order that the agreement between the plaintiff as purchaser and the defendant as vendor for the transfer of one Growers Share relating to Tradeable Space SRI 010 G and Permit relating to Stand 10 – Growers Retail Market Fresh Food be specifically performed and carried into executions under the direction of the Court but subject to the condition in Order 2.
(2) Order that the condition be that all necessary approvals, surrender, grant of a new permit and other matters and things necessary to be obtained from Sydney Markets Limited should be obtained: and further order that each party do all things which the court shall direct in support of and for the purpose of obtaining any necessary decision or act of Sydney Markets Limited.
(3) Reserve further consideration of the Plaintiff’s remedies in case it shall not be possible to effect specific performance.
(4) Reserve liberty to apply for directions.
(5) Order that the Defendant pay the Plaintiff’s costs of the proceedings.

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LAST UPDATED: 28 November 2007