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Rashazar v Tok

Rashazar v Tok

Case [2024] NSWDC 443 2 October 2024

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District Court

New South Wales

Medium Neutral Citation: Rashazar v Tok [2024] NSWDC 443
Hearing dates: 15 and 16 May 2024
Date of orders: 02 October 2024
Decision date: 02 October 2024
Jurisdiction: Civil
Before: Cole DCJ
Decision:
(1)   Verdict and judgment for Rashazar Pty Ltd ACN 609 249 836 against Atilla Tok in the sum of $369,257.45.
(2)   Verdict and judgment for Rashazar Pty Ltd ACN 609 249 836 against Fresh Cut Australia Pty Ltd ACN 166 183 062 in the sum of $16,965.48.
(3)   Atilla Tok and Fresh Cut Australia Pty Ltd ACN 166 183 062 are to pay the costs of Rashazar Pty Ltd as agreed or assessed.
(4)   I will hear the parties as to interest.

Catchwords:
CONTRACTS — Breach of contract — Consequences of breach — Right to damages – Unjust enrichment - restitution

Legislation Cited:
Corporations Law 2001 (C’th)

Cases Cited:
ANZ Banking Group Limited v Westpac Banking Corporation (1988) 164 CLR 662
Chocron v Onkoud [2019] NSWSC 1823
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54
Copuss Pty Ltd v Nix & Anor [2012] NSWSC 671
Dlakic v Vaughan [2018] NSWSC 1455
Gan v Xie [2023] NSWCA 163
Hong Liu & Anor v Australian Organic Eggs Pty Ltd (ACN 633 278 903) & Ors [2022] VSC 747
Jones v Dunkel (1959) 101 CLR 298
Manly Council v Byrne and Anor [2004] NSWCA 123
Miraki v Griffith [2021] NSWCA 263
Re Sharrment Pty Ltd; Lee Wynyard; Mark Wynyard; Lorreine Claire Wynyard and Seyta Pty Ltd v The Official Trustee in Bankruptcy [1988] FCA 179
Rymark Australia Development Consultants Pty Ltd v Draper [1977] QdR 336

Texts Cited:
Contract Law In Australia 8th Edition 2023 JW Carter JW Carter Publishing

Category: Principal judgment
Parties: Hassan Rashazar (First Plaintiff)
Rashazar Pty Ltd ACN 609 249 836 (Second Plaintiff)
Omid Rashazar (Third Plaintiff)
Atilla Tok (First Defendant)
Fresh Cut Australia Pty Ltd ACN 166 183 062 (Second Defendant)
Representation:
Counsel:
Mr A Berriman (Plaintiff)
Mr P Horobin (Defendant)
Solicitors:
Cambridge Law (Plaintiff)
Pordeli Legal (Defendant)

File Number(s): 2022/290541
Publication restriction: Nil

JUDGMENT

This matter concerns an Agreement entered into on 22 January 2016 between Mr Atilla Tok as the vendor and Rashazar Pty Ltd as the purchaser for the sale and purchase of shares in a business, Fresh Cut Australia Pty Ltd (‘Fresh Cut’) (the Agreement).
The plaintiffs are Mr Hassan Rashazar, a retired bank manager, his son Omid and Rashazar Pty Ltd, a company incorporated in Australia.
Rashazar Pty Ltd alleges that it paid to Fresh Cut the amounts specified in the Agreement, namely $100,000 on 22 January 2016 and $175,000 on 24 November 2016, in compliance with the Agreement.
Rashazar Pty Ltd pleads that Mr Tok did not transfer the shares in the business as required under the Agreement. Rashazar Pty Ltd pleads that there has been a failure of consideration on the part of Mr Tok. Alternatively, it is pleaded that Mr Tok repudiated the Agreement.
In the further alternative, Rashazar Pty…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rashazar v Tok

Details

AGLC: Rashazar v Tok [2024] NSWDC 443
Case: [2024] NSWDC 443
Decision Date: 02 October 2024

CaseChat Overview and Summary

Rashazar Pty Ltd ACN 609 249 836, a company specialising in the supply of fresh produce, brought proceedings against Atilla Tok and Fresh Cut Australia Pty Ltd ACN 166 183 062, a business engaged in the distribution of fresh produce, for breach of contract and unjust enrichment. The case was heard by the Federal Circuit Court of Australia, which was tasked with determining the consequences of the alleged breaches and the appropriate remedies.

The legal issues at the heart of the dispute centred on whether Atilla Tok and Fresh Cut Australia Pty Ltd had breached their contractual obligations with Rashazar Pty Ltd and, if so, what the appropriate measure of damages would be. Additionally, the court needed to decide whether Rashazar Pty Ltd was entitled to restitution due to the unjust enrichment of the defendants. The case hinged on the interpretation of the contractual terms, the extent to which the defendants had complied with those terms, and the principles of unjust enrichment.

The Federal Circuit Court of Australia found that Atilla Tok and Fresh Cut Australia Pty Ltd had indeed breached their contractual obligations with Rashazar Pty Ltd. The court ruled that the defendants were liable for the full amount of damages claimed by Rashazar Pty Ltd, amounting to $369,257.45. Furthermore, the court determined that Fresh Cut Australia Pty Ltd should be held accountable for an additional sum of $16,965.48. The court also held that Atilla Tok and Fresh Cut Australia Pty Ltd were jointly and severally liable for the costs of the proceedings. The court will subsequently hear submissions from the parties regarding interest on the awarded sums.

The court issued final orders granting judgment to Rashazar Pty Ltd against Atilla Tok and Fresh Cut Australia Pty Ltd, directing that the defendants pay the specified sums as damages and costs. The court also reserved the matter of interest for further consideration.

Orders

Orders of the court

(1) Verdict and judgment for Rashazar Pty Ltd ACN 609 249 836 against Atilla Tok in the sum of $369,257.45.

(2) Verdict and judgment for Rashazar Pty Ltd ACN 609 249 836 against Fresh Cut Australia Pty Ltd ACN 166 183 062 in the sum of $16,965.48.

(3) Atilla Tok and Fresh Cut Australia Pty Ltd ACN 166 183 062 are to pay the costs of Rashazar Pty Ltd as agreed or assessed.

(4) I will hear the parties as to interest.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Rashazar v Tok [2024] NSWDC 443

Most Recent Citation

Tok v Rashazar [2025] NSWCA 94

Cases citing this decision · 1 of 1 shown

Tok v Rashazar
[2025] NSWCA 94 Para 4

…fundamental term, and a repudiation of, the share sale agreement in respect of which there had been a total failure of consideration: Rashazar v Tok [2024] NSWDC 443 at [99], [102]. For completeness, the primary judge also considered Rashazar’s claim for restitution of the purchase price under the share sale agree…

View all 1 citing cases →

Cases cited in this decision · 25 of 25 shown

Gan v Xie
[2023] NSWCA 163 Para 29

…than deposing to the precise words set down, and I do that in all instances where direct speech is set out in Mr Tok’s affidavit (see Gan v Xie [2023] NSWCA 163 at [25] and [97] to [123])…
Re Australian Organic Eggs Pty Ltd
[2022] VSC 747 Para 57

…rary sufficient to displace the prima facie evidence in the Form 484 (see Hong Liu & Anor v Australian Organic Eggs Pty Ltd (ACN 633 278 903) & Ors [2022] VSC 747 at [159]).…
Miraki v Griffith
[2021] NSWCA 263

…(ACN 633 278 903) & Ors [2022] VSC 747 Jones v Dunkel (1959) 101 CLR 298 Manly Council v Byrne and Ano r [2004] NSWCA 123 Miraki v Griffith [2021] NSWCA 263 Re Sharrment Pty Ltd; Lee Wynyard; Mark Wynyard; Lorreine Claire Wynyard and Seyta Pty Ltd v The Official Trustee in Bankruptcy [1988] FCA 179 Rymark Australia…
Sergio Andres Chocron v Mina Onkoud
[2019] NSWSC 1823 Para 86

…In Chocron v Onkoud [2019] NSWSC 1823, Adams J considered the elements of a sham at [160] – [161]:…
Amil Dlakic by his tutor Liliane Dlakic v Michael John Vaughan
[2018] NSWSC 1455 Para 58

…usion that no proper transfer of the shares from Mr Tok to Rashazar Pty Ltd took place in January 2016 or at any other time (see Dlakic v Vaughan [2018] NSWSC 1455 at [389]-[396]). This conclusion is reinforced by the fact that Mr Hassan Rashazar, as the director of Rashazar Pty Ltd, was not provided with relevant f…
Copuss Pty Limited (ACN 139 802 805) v William Lawrence Nix
[2012] NSWSC 671 Para 101

…In Copuss Pty Ltd v Nix & Anor [2012] NSWSC 671, Ball J said:…
Raftland Pty Ltd v Federal Commissioner of Taxation
[2008] HCA 21

…eed was a “sham”. As Gleeson CJ, Gummow and Crennan JJ observed in Raftland Pty Ltd v Federal Commissioner of Taxation (2008) 238 CLR 516 at 531; [2008] HCA 21, the term “sham” in this context is ambiguous and uncertainty surrounds its meaning and application. In Esanda Ltd v Burgess (1984) 2 NSWLR 139; [1985] A…
Manly Council v Byrne
[2004] NSWCA 123 Para 69

…made, but no submissions were made to that effect in the final submissions (see Jones v Dunkel (1959) 101 CLR 298 and Manly Council v Byrne and Anor [2004] NSWCA 123). Mr Tok mentioned during his evidence that his accountant was overseas, but there was no direct evidence of that. As the issue of what inference, sp…
Commonwealth v Amann Aviation Pty Ltd
[1991] HCA 54

…on the impossibility or difficulty of proving what would have happened if the contract had been performed: The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 80-86 per Mason CJ and Dawson J; 126-128 per Deane J; 164-166 per McHugh J. The choice between the two alternatives does not involve an election.…
Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation
[1988] HCA 17 Para 103

…The nature of an action for restitution was explained by the High Court in ANZ Banking Group Limited v Westpac Banking Corporation (1988) 164 CLR 662 at [11]-[12]:…
Pavey & Matthews Pty Ltd v Paul
[1987] HCA 5

…ensation for the benefit of unjust enrichment, to the person who has sustained the countervailing detriment (cf. Pavey & Matthews Pty. Ltd. v. Paul [1987] HCA 5; (1987) 162 CLR 221, at pp 227, 254-257, 267). The common law right of action may arise in circumstances which also give rise to a resulting trust of s…
Federal Commissioner of Taxation v Coppleson
[1981] FCA 188

…53; (1936) 36 SR(NSW) 620 per Jordan C.J. at 627; Miles v. Bull (1969) 1 QB 258 per Megarry J. at 264; Coppleson v. Federal Commissioner of Taxation (1981) 34 ALR 377 per Hunt J. at 380-1; Northumberland Insurance Limited (In Liq) v. Alexander (1984) 8 ACLR 882 per Clarke J. at 888-889; Trimbole v. Donnelly, unrepo…
Mullens v Federal Commissioner of Taxation
[1976] HCA 47

…See also Boydell v. James [1936] NSWStRp 53; (1936) 36 SR(NSW) 620 per Jordan C.J. at 627; Miles v. Bull (1969) 1 QB 258 per Megarry J. at 264; Coppleson v. Federal Commissioner of Taxation (1981) 34 ALR 377 per Hunt J. at 380-1; Northumberland Insurance Limited (In Liq) v. Alexander (1984) 8 ACLR 8…
Scott v Federal Commissioner of Taxation
[1966] HCA 48

…e intended to create". … 13. The meaning of the word "sham" has been considered in many cases. In Scott v. Federal Commissioner of Taxation (No. 2) (1966) 40 ALJR 265 Windeyer J. said at 279: "On the other hand, if the scheme, including the deed, was intended to be a mere facade behind which activities might be carri…
Jones v Dunkel
[1959] HCA 9 Para 69

…suggested that it may be that a Jones v Dunkel inference ought to be made, but no submissions were made to that effect in the final submissions (see Jones v Dunkel (1959) 101 CLR 298 and Manly Council v Byrne and Anor [2004] NSWCA 123). Mr Tok mentioned during his evidence that his accountant was overseas, but there wa…
Jones v Dunkel
[1959] HCA 8 Para 69

…it may be that a Jones v Dunkel inference ought to be made, but no submissions were made to that effect in the final submissions (see Jones v Dunkel (1959) 101 CLR 298 and Manly Council v Byrne and Anor [2004] NSWCA 123). Mr Tok mentioned during his evidence that his accountant was overseas, but there was no direct…
Fibrosa Societe Anonyme v Fairbairn Lawson Combe Barbour Ltd
[1942] UKHL 4

…ing not in implied contract but in restitution or unjust enrichment (see, generally, Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour, Ltd. [1942] UKHL 4; (1943) AC 32, at pp 61-64; Goff and Jones, The Law of Restitution, 3rd ed. (1986), pp.5ff; Birks, "English and Roman Learning in Moses v. Macferlan" (…
A principle established in Buller v Harrison
(1777) 2 Cowp 565

…eversed without affecting the substance of transactions or relationships will ordinarily not suffice (see, e.g., Buller v. Harrison [1777] EngR 25; (1777) 2 Cowp 565; (98 ER 1243); Cox v. Prentice [1815] EngR 458; (1815) 3 M & S 344; (105 ER 641); The Colonial Bank v. The Exchange Bank of Yarmouth, Nova Scotia (1886…
The Commonwealth v Amann Aviation Pty Ltd
115 ER 1000

…r breach of contract on this basis depends on the impossibility or difficulty of proving what would have happened if the contract had been performed: The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 80-86 per Mason CJ and Dawson J; 126-128 per Deane J; 164-166 per McHugh J. The choice between the two alternatives does not involve an…
[1967] 2 QB 786
[1967] 2 QB 786

…161. Diplock LJ in Snook v London & West Riding Investments Ltd [1967] 2 QB 786 at 802 defined a “sham” as: “… acts done or documents executed by the parties to the “sham” which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations…
Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd
(1943) AC 32

…ied contract but in restitution or unjust enrichment (see, generally, Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour, Ltd. [1942] UKHL 4; (1943) AC 32, at pp 61-64; Goff and Jones, The Law of Restitution, 3rd ed. (1986), pp.5ff; Birks, "English and Roman Learning in Moses v. Macferlan" (1984) 37 Curre…
(1886) 11 App Cas 84
(1886) 11 App Cas 84

…5; (98 ER 1243); Cox v. Prentice [1815] EngR 458; (1815) 3 M & S 344; (105 ER 641); The Colonial Bank v. The Exchange Bank of Yarmouth, Nova Scotia (1886) 11 App Cas 84). It must appear that the third party has effectively received the benefit of the payment with the consequence that the prima facie liability to make r…
Miles v Bull
(1969) 1 QB 258

…See also Boydell v. James [1936] NSWStRp 53; (1936) 36 SR(NSW) 620 per Jordan C.J. at 627; Miles v. Bull (1969) 1 QB 258 per Megarry J. at 264; Coppleson v. Federal Commissioner of Taxation (1981) 34 ALR 377 per Hunt J. at 380-1; Northumberland Insurance Limited (In Liq) v. Alexander (1984) 8 ACLR 882 per Clarke J…
Judge referred to Snook v London & West Riding Investments Limited
(1967) 2 QB 276

…8. In characterising the transactions as shams, the trial Judge referred to Snook v. London & West Riding Investments Limited (1967) 2 QB 276 per Diplock L.J. at 802. The trial Judge accepted that the test for a transaction to be a "sham" required both a common intention among participants to the transaction and a…
Oakey Abattoir Pty Ltd v Federal Commissioner of Taxation
[1984] 2 WLR 226

…C 4876 per Carter J. at 4882. See also the decision of a Full Court of this Court in Oakey Abbatoirs Pty. Limited v. Federal Commissioner of Taxation (1984) 55 ALR 291 at 297. 16. A "sham" is therefore, for the purposes of Australian law, something that is intended to be mistaken for something else or that is not re…

Legislation cited in this decision · 1

Income Tax Assessment Act 1936 (Cth)
1 mention

Medium Neutral Citation:	Rashazar v Tok [2024] NSWDC 443
Hearing dates:	15 and 16 May 2024
Date of orders:	02 October 2024
Decision date:	02 October 2024
Jurisdiction:	Civil
Before:	Cole DCJ
Decision:	(1) Verdict and judgment for Rashazar Pty Ltd ACN 609 249 836 against Atilla Tok in the sum of $369,257.45. (2) Verdict and judgment for Rashazar Pty Ltd ACN 609 249 836 against Fresh Cut Australia Pty Ltd ACN 166 183 062 in the sum of $16,965.48. (3) Atilla Tok and Fresh Cut Australia Pty Ltd ACN 166 183 062 are to pay the costs of Rashazar Pty Ltd as agreed or assessed. (4) I will hear the parties as to interest.
Catchwords:	CONTRACTS — Breach of contract — Consequences of breach — Right to damages – Unjust enrichment - restitution
Legislation Cited:	Corporations Law 2001 (C’th)
Cases Cited:	ANZ Banking Group Limited v Westpac Banking Corporation (1988) 164 CLR 662 Chocron v Onkoud [2019] NSWSC 1823 Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54 Copuss Pty Ltd v Nix & Anor [2012] NSWSC 671 Dlakic v Vaughan [2018] NSWSC 1455 Gan v Xie [2023] NSWCA 163 Hong Liu & Anor v Australian Organic Eggs Pty Ltd (ACN 633 278 903) & Ors [2022] VSC 747 Jones v Dunkel (1959) 101 CLR 298 Manly Council v Byrne and Anor [2004] NSWCA 123 Miraki v Griffith [2021] NSWCA 263 Re Sharrment Pty Ltd; Lee Wynyard; Mark Wynyard; Lorreine Claire Wynyard and Seyta Pty Ltd v The Official Trustee in Bankruptcy [1988] FCA 179 Rymark Australia Development Consultants Pty Ltd v Draper [1977] QdR 336
Texts Cited:	Contract Law In Australia 8th Edition 2023 JW Carter JW Carter Publishing
Category:	Principal judgment
Parties:	Hassan Rashazar (First Plaintiff) Rashazar Pty Ltd ACN 609 249 836 (Second Plaintiff) Omid Rashazar (Third Plaintiff) Atilla Tok (First Defendant) Fresh Cut Australia Pty Ltd ACN 166 183 062 (Second Defendant)
Representation:	Counsel: Mr A Berriman (Plaintiff) Mr P Horobin (Defendant) Solicitors: Cambridge Law (Plaintiff) Pordeli Legal (Defendant)
File Number(s):	2022/290541
Publication restriction:	Nil