The Cleaning Doctor NSW Pty Ltd v Fonseca - [2022] NSWSC 253

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: The Cleaning Doctor NSW Pty Ltd v Fonseca [2022] NSWSC 253
Hearing dates: 9, 10, 11, 12, 13, 16, 17, 18, 19, 20 and 23 November 2020, 2 and 3 December 2020, with further written submissions received on 4, 10, 11, 16 and 18 December 2020
Date of orders: 11 March 2022
Decision date: 11 March 2022
Jurisdiction: Equity
Before: Williams J
Decision:
Proceedings dismissed at [563].

Catchwords:
EQUITY – trusts and trustees – beneficial ownership of real property – express trust – resulting trust – Quistclose trust – where Torrens title land allegedly transferred to be held on trust for transferor and/or for purpose which later failed and/or with no consideration for transferor’s “equity” in the land or for false consideration
ESTOPPEL – proprietary estoppel – where first plaintiff transferred property to second defendant allegedly assuming it would be reconveyed to him and claims that property was held in trust for him – whether second defendant is estopped from denying the trust

BANKING AND FINANCE – cheque account – whether first plaintiff was the legal and beneficial owner of “the money” standing to the credit of its bank account – where first plaintiff provided defendants with signed blank cheques and signed debit card for first plaintiff’s bank account and online access to that account – scope of the defendants’ authority to withdraw from the account by completing signed blank cheques as payable to cash in specified amounts, by using debit card and by making online transactions – whether the moneys withdrawn were stolen and held on trust for the first plaintiff in the hands of the defendants
RESTITUTION – money had and received – whether defendants unjustly enriched by receipt of moneys withdrawn form and allegedly stolen from first plaintiff’s bank account
TORTS – alleged conversion by defendants of signed blank cheques for first plaintiff’s bank account – alleged conversion by defendants of notes and coins received from the bank when defendants made withdrawals using signed blank cheques competed by defendants

Legislation Cited:
Australian Consumer Law, s 18
Australian Consumer Law, s 236
Cheques Act 1986 (Cth), ss 3, 10-24, 36, 71, 88
Civil Procedure Act 2005 (NSW), ss 56-58
Conveyancing Act 1919 (NSW), s 44
Corporations Act 2001 (Cth), ss 198B, 601AB
Evidence Act 1995 (NSW), s 136
Trade Practices Act 1974 (Cth), s 52
Trade Practices Act, s 82

Cases Cited:
Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567
Barnes v Addy (1874) LR 9 Ch App 244
Bhana v Bhana [2002] NSWSC 117
Black v S Freedman & Co (1910) 12 CLR 105
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420
Calverley v Green (1984) 155 CLR 242
Citigroup Pty Ltd v National Australia Bank Ltd (2012) 82 NSWLR 391; [2012] NSWCA 381
Cousens v Grayridge Pty Ltd [2000] VSCA 96
Croton v R [1967] HCA 48; (1967) 117 CLR 326
Donaghue v Donaghue [2015] QSC 54
Drayson v Drayson [2011] NSWSC 965
ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24
Foley v Hill (1848) 2 HL Cas 28; 9 ER 1002
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gas & Fuel Corporation of Victoria v Barba [1976] VR 755
Greer v Kettle [1938] AC 156
Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168
Joachimson v Swiss Bank Corp [1921] 3 KB 110 at 127
John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451
Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102
Peterson v Moloney (1951) 84 CLR 91
R v Parsons [1999] HCA 1; (1999) 195 CLR 619
Radoman Pty Ltd Vexapu Pty Ltd [2008] NSWSC 8
Re Association for Visual Impairment The Homeless and The Destitute Inc [2014] VSC 183
Singh v Singh [2004] NSWSC 109
Watson v Foxman (1995) 49 NSWLR 315
Wirth v Wirth (1956) 98 CLR 228

Category: Principal judgment
Parties: The Cleaning Doctor NSW Pty Ltd (ACN 139 483 926) (First Plaintiff)
Ali Itawi (Second Plaintiff)
Jeffrey Fonseca (First Defendant)
Orlando Fonseca (Second Defendant)
Vilma Fonseca (Third Defendant)
Joselyn Fonseca (Fourth Defendant)
7/49-51 Stanley Street Pty Ltd (Fifth Defendant)
147 Holt Road Pty Ltd (ACN 602 121 404) (Sixth Defendant)
Representation:
Counsel:
Mr M Ashhurst SC with Mr Q Rares (Plaintiffs)
Mr F P Carnovale (Defendants)
Solicitors:
McEvoy Legal (Plaintiffs)
Antunes Lawyers (Defendants)

File Number(s): 2015/158796
Publication restriction: N/A

Judgment

Introduction

Summary of Evidence

Ali’s referral of work from Prestige Property Services to the Fonseca businesses: 1997 to 2002
Purchase of the Bardwell Property: 2001
Ali resides in the Bardwell Property: November 2001 to early 2003
Ali’s move to work with Tempo and continued referral of work to the Fonseca businesses: 2002
Alleged partnership agreement and transfer of the Bardwell Property to Orlando: November 2002 to January 2003
Ali continues to reside in the Bardwell Property after 2003
Ali’s continued referral of work from Tempo to the Fonseca businesses: 2003 to 2004
Ali’s referral of work from TBM to the Fonseca businesses: 2005 to March 2009
Change in Ali’s role with TBM and continued referral of UNSW maintenance work from TBM to the Fonseca businesses: March 2009 to September 2009
Alleged agreement in September 2009
Establishment of Cleaning Doctor and its bank account
Working relationship between Ali and the Fonseca businesses and transactions on the CD Account: October 2009 to April 2010
Working relationship between Ali and the Fonseca businesses and transactions on the CD Account: April 2010 to October 2012
Cessation of payments to Cleaning Doctor and closure of the CD Account
Matters emerging from evidence relating to the CD Account during the period September 2009 to October 2012
Ali’s employment with the Fonseca businesses from late 2013
The winding up of Clean & Clear and the fate of that company’s records
Financial affairs of the Fonseca family members and their related entities during the period 2009 to 2015
Transfer of the Bardwell Property to Goodman Court Pty Ltd in January 2015 and the resulting dispute between Ali and Orlando in March 2015
Commencement of these proceedings

Claims and Defences

Claims and defences relating to the Bardwell Property
Claims and defences relating to the CD Account

Consideration and Determination

Observations in relation to witnesses
Findings of fact in relation to the Bardwell Property
The parties’ submissions
Findings

Ali’s claims in relation to the Bardwell Property
Cleaning Doctor’s claims in relation to the allegedly stolen money

Conclusion and Orders

Introduction

These proceedings arise out of dealings between the plaintiffs and the defendants during the period from the early 2000s until 2015.
The first plaintiff, The Cleaning Doctor NSW Pty Ltd ACN 139 483 926 (Cleaning Doctor) was established in September 2009.
The second plaintiff, Mr Ali Itawi, has been the sole shareholder and director of Cleaning Doctor at all times.
The first defendant, Jeffrey Fonseca (Jeffrey) is the son of the second defendant, Mr Orlando Fonseca (Orlando) and the third defendant, Mrs Vilma Fonseca (Vilma).
The fourth defendant, Joselyn Fonseca (Joselyn) is the daughter of Orlando and Vilma.
My use of first names to refer to the first to fourth defendants is intended to avoid confusion between them as they share the same surname. I have adopted the same convention in relation to Ali, his wife Ms Laura Martin (Laura), his sister Ms Hala Itawi (Hala) and his niece Ms Tania Itaoui (Tania). No disrespect is intended.
The plaintiffs refer to Orlando, Vilma, Jeffrey and Josleyn collectively as the Fonseca family, and I will use the same terminology.
By the time of the final hearing, the fifth defendant was no longer an active party to the proceedings.
The plaintiffs claim, and the defendants deny, that the sixth defendant, 7/49-51 Stanley Street Pty Ltd (SSPL), is owned or controlled by members of the Fonseca family.
The seventh defendant, 147 Holt Road Pty Ltd (HRPL), is the trustee of the Nexx Projects Trust. The plaintiffs claim, and the defendants deny, that HRPL is also owned or controlled by members of the Fonseca family.
At all material times, Orlando operated cleaning and maintenance subcontracting businesses under various business names and through various corporate entities. Orlando gave evidence that, whilst he managed each business and referred to each business as “my business”, he was not a director or shareholder of the corporate entities through which the businesses were conducted, with the exception of Endeavour Cleaning Group Pty Limited. In respect of the other corporate entities referred to below, Orlando gave evidence that: “Members of my family or persons working in the business were the directors and shareholders.”^[1] The business names and corporate entities were:
1. Orlando 18/9/18, paragraphs 22-27. Footnoted references to affidavit evidence adopt the convention: deponent name, date of affidavit in the format mm/dd/yy, specific paragraph reference.

JAF Ambassador, which is the business name used for a cleaning business that operated until at least the late 1990s. Orlando has given inconsistent evidence about whether the business conducted under that name during the late 1990s and early 2000s was owned by Orlando or owned by Jeffrey and managed by Orlando.^[2] The business name was registered in September 1998 with Jeffrey as the owner until December 2001, when it was cancelled. It was then registered again with Orlando as the owner in June 2003, until September 2006 when its registration was cancelled again;^[3]
2. Orlando 18/9/18, paragraph 22; Orlando 8/9/17, paragraphs 3-8.
3. Exhibit 3, pp 7218-7219.

Endeavour Cleaning Services, which is a business name registered as being owned by Mr Mark Lombardo from September 2003 to November 2004 and by Orlando from November 2004 until December 2009 when the business name was deregistered. Mr Lombardo is Joselyn’s former husband;^[4]
4. Orlando 8/9/17, paragraphs 3-8; Exhibit 3, p 7214.

Endeavour Cleaning Group Pty Ltd, which was incorporated on 6 April 2006. Orlando and Jeffrey each held one share in the company and a Mr Luis Duran held 8 shares. Mr Duran is a friend of the Fonseca family. Orlando, Jeffrey and Mr Duran were also the directors of the company for one week after it was incorporated. On 13 April 2006, Orlando and Jeffrey ceased to be directors, Mr Duran remained a director and a Mr Luis Arango was appointed as a director. In April 2007, Mr Duran ceased to be a director and Mr Arango was then the sole director until August 2009 when he resigned or was removed and a Ms Karen Foster became the sole director. The company was deregistered on 1 April 2011 following a creditors’ voluntary winding up which commenced in September 2009;^[5]

Clean & Clear Group Pty Ltd (Clean & Clear) was incorporated on 16 October 2008. The company had one issued share and share capital of $1.00. The share was initially held by Jeffrey, who was also the sole director from incorporation until 25 November 2011. Jeffrey was replaced by Joselyn on that date (shortly before he became bankrupt in January 2012)^[6] and the sole issued share appears to have been transferred to Joselyn at the same time. Joselyn was the sole director of the company until 1 April 2013. The directorship was then held by a Mr George Bancs from 1 April 2013 until 1 January 2014 and by Mr Duran from that date until 2 October 2016 when the company was deregistered after being wound up pursuant to an order made by the Federal Court of Australia on 4 April 2014.^[7] From 22 April 2010 until 4 February 2016, Clean & Clear was the registered holder of the business name “CCG Projects”;^[8]

Crew Hire Pty Ltd (Crew Hire) was incorporated on 3 December 2008 and deregistered on 15 July 2012 following a creditors’ voluntary winding up. The company had a share capital of $1.00 and Mr Duran was its sole shareholder and sole director for the duration of its corporate life;^[9]

Link Cleaning Group Pty Ltd (Link) was incorporated on 6 August 2010 and was deregistered on 13 January 2013 by the Australian Securities and Investments Commission pursuant to s 601AB of the Corporations Act 2001 (Cth). The company had a share capital of $1.00 and Mr Duran was its sole shareholder and sole director at all times;^[10] and

CCG Projects Pty Ltd (CCG Projects) was incorporated on 24 May 2013, at a time when Orlando, Vilma and Jeffrey were bankrupt. The company has a share capital of $1.00 and Joselyn was the sole shareholder and director from the time of its incorporation until 1 December 2014, when Vilma became the sole shareholder and director after having been discharged from bankruptcy on 23 March 2014. CCG Projects is in the process of being wound up pursuant to a winding up order made by the Federal Court in April 2018 on the application of the Deputy Commissioner of Taxation.^[11] As noted above, Clean & Clear had registered the business name “CCG Projects” in April 2010, some three years before the corporate entity CCG Projects was established.
5. Orlando, 18/9/18, paragraph 24; Exhibit 3, pp 7209-7213; T625.41-625.42.
6. Exhibit 3, pp 3927, 7327.
7. Orlando 8/9/17, paragraphs 3-8; Exhibit 3, pp 7173-7189; Exhibit 12, Exhibit 15.
8. Exhibit 3, p 7172.
9. Orlando, 18/9/18, paragraph 24; Exhibit 3, pp 7196-7203.
10. Orlando, 18/9/18, paragraph 24; Exhibit 3, pp 7232-7234.
11. Orlando 8/9/17, paragraphs 3-8; Exhibit 3, pp 7160-7170.

Orlando’s evidence did not put forward any reason for the use of so many different corporate entities for the cleaning businesses that he managed, and this was not explored with Orlando or any other member of the Fonseca family in cross-examination.
In these reasons, I use the term Fonseca business or Fonseca businesses to refer to one or more of the businesses or entities listed above where it is not possible or not necessary to distinguish between them.
Ali’s claims in these proceedings relate to a property at Bardwell Valley in New South Wales of which Ali was the registered proprietor from about November 2001 until about January 2003 and Orlando was the registered proprietor at all relevant times thereafter until January 2015 when the property was transferred to Goodman Court Pty Ltd (the January 2015 transfer). Ali claims that Orlando held the property on trust for him at all relevant times after January 2003 and that the January 2015 transfer was a breach of that trust. Ali makes several alternative claims for relief, including that the traceable proceeds of the benefits received by Fonseca family members from the January 2015 transfer are held on constructive trust for Ali. Those traceable proceeds allegedly include part of the equity in HRPL’s property at 147 Holt Road, Sylvania Waters (via the sale of SSPL’s property at 51 Stanley Street, Sylvania Waters).
Cleaning Doctor’s claims relate to the withdrawal of $2,695,078.51 from its bank account by Orlando and Jeffrey during the period from October 2009 to October 2012. Cleaning Doctor seeks an account in respect of that money, which it claims was stolen from its account or was obtained by fraud, deceit or misleading or deceptive conduct. Cleaning Doctor also claims to be entitled to repayment of the money as money had and received and claims damages for the alleged fraud, deceit or misleading or deceptive conduct and damages for alleged conversion of the cheques used to make most of the withdrawals from its account and alleged conversion of the notes and coins withdrawn.
For the reasons that follow, Ali’s claims and Cleaning Doctor’s claims fail and the proceedings must be dismissed.

Summary of Evidence

The following narrative of facts, matters and events is drawn from the affidavit, oral and documentary evidence adduced by the parties. Where matters referred to are in dispute, I have identified the dispute and incorporated within the narrative my findings of fact in relation to those disputed matters.
The affidavit and documentary evidence adduced by both parties was extensive.
The plaintiffs read eleven affidavits sworn or affirmed by Ali in addition to affidavits sworn or affirmed by other witnesses. The defendants read eleven affidavits sworn or affirmed by Jeffrey, nine affidavits sworn or affirmed by Orlando and seven affidavits sworn or affirmed by Vilma, in addition to affidavits sworn or affirmed by other witnesses.
As will become apparent, the evidence of each witness about key factual matters, including conversations that occurred as long ago as 1997 and 2001, has evolved over the course of their affidavits. Aspects of the account given by each witness in later affidavits are inconsistent with aspects of their evidence in their earlier affidavits. To this must be added inconsistences between their affidavit evidence and their testimony during cross-examination, and inconsistencies within the oral testimony of the key witnesses.
The following summary does not endeavour to reconcile these inconsistencies. The inconsistencies are addressed in later sections of these reasons in which I set out my assessment of the credibility and reliability of evidence given by the witnesses and my findings of fact.

Ali’s referral of work from Prestige Property Services to the Fonseca businesses: 1997 to 2002

Ali was born in Lebanon and is an Australian citizen. He moved to Australia from Lebanon permanently in 1997.^[12] That same year, Ali commenced work as an Area Manager for Prestige Property Services (Prestige). Prestige provided property management services, including cleaning services, for large buildings and developments. Prestige engaged subcontractors and providers of subcontract labour to undertake the necessary work. Ali was introduced to Orlando by one of Prestige’s other Area Managers in 1997 as one of the bosses of a subcontractor engaged by Prestige to provide cleaning services.^[13]
12. Ali 27/5/15, paragraph 10.
13. Ali 27/5/15, paragraphs 12-13.
As an Area Manager for Prestige, Ali had authority to decide which subcontractors Prestige engaged to perform work within his designated area.^[14]
14. Ali 27/5/15 paragraphs 13-17; T252.42.
According to Ali, Orlando actively pursued work, gave Ali gifts, took him out to restaurants, night clubs and casinos, let him use his cars and would even bring women to Ali’s apartment.^[15]
15. Ali 27/5/15 paragraphs 13-17.
Ali understood Orlando’s cleaning business to be operated in substance by Orlando and members of his family, although the corporate entities through which the business operated changed from time to time.^[16]
16. Ali 27/5/15, paragraph 20.
The Fonseca business was one of the main subcontractors to whom Ali allocated work in his role as Area Manager for Prestige.^[17]
17. Ali 27/5/15, paragraph 20.
In his affidavit sworn on 8 September 2017, Orlando deposed that, when Prestige subcontracted cleaning work to the Fonseca business, Orlando would sometimes hire the subcontract labour to carry out the work but these cleaning workers were usually arranged by Ali or by the relevant Prestige Area Manager who had engaged the Fonseca business. Orlando deposed that, after he had been paid for the job by Prestige, he would arrange for the wages for the cleaning workers to be deposited into Ali’s personal bank account so that Ali could pay the cleaning workers in cash. Ali provided timesheets to Orlando which recorded the hours worked by Ali and the cleaning workers so that Orlando could calculate the amount of wages to be paid into Ali’s account for each job.^[18]
18. Orlando 8/9/17, paragraphs 14-15.
In an affidavit affirmed a little over one year later on 18 September 2018, Orlando deposed that the payment arrangement referred to immediately above only commenced in about 2000 at Ali’s request.^[19]
19. Orlando 18/9/18, paragraph 31-32.
In his affidavit of 18 September 2018, Orlando also deposed that he had a conversation with Ali in about 1997, in which Ali said to him:^[20]

“I have joined Prestige as a site manager. I manage various sites where Prestige has the contract. I am in charge of giving jobs to subcontractors. I can give you more jobs for Prestige but I want 15% of the profit for myself personally on some jobs and 20% on others. I will let you know which jobs are 15% and which are 20%.”
20. Orlando 18/9/18, paragraphs 28-29.

Orlando deposed that he agreed to this in the same conversation and that, from about 1997 to about 2000, he paid Ali money from time to time that was equivalent to 15 per cent or 20 per cent of the profits that the Fonseca business made on Prestige jobs allocated by Ali. Orlando deposed that he calculated the profit as the difference between what Prestige paid him for the work for a given period, less what Orlando had paid his workers during the same period.^[21]
21. Orlando 18/9/18, paragraph 30.
Orlando also deposed that he continued to make these payments during the period after 2000 in respect of profits on jobs that Ali, on behalf of Prestige, subcontracted to Orlando’s business. Orlando said that, in the period after 2000, he calculated the profit as the difference between what Prestige paid to the Fonseca business in respect of a particular period less what Orlando had paid to Ali for the wages of cleaning workers during the same period.^[22]
22. Orlando 18/9/18, paragraph 33.
Ali replied to Orlando’s affidavit of 18 September 2018 in his affidavit affirmed on 9 May 2019. Ali disputed that he provided timesheets to Orlando and described the cleaning workers as being sub-contractors or employees of the Fonseca business. However, Ali confirmed Orlando’s description of the arrangements for payment of the cleaning workers and did not deny that he requested these arrangements. Ali said:^[23]

“I approved the sub-contractors’ [referring to Orlando’s business and other subcontractors to Prestige] invoices for payment by the contractor.
I required the sub-contractors to pay me the labour cost in cash or to my account. I withdrew the labour cost weekly and paid this to the site manager in cash. The site manager paid the labour on site weekly.
…
The amounts of money paid to me in cash or to my account for labour cost were often large: in some weeks the amount that would be paid to sub-sub-contractors or employees in total could be in the tens of thousands of dollars, though the amount was variable.”
23. Ali 9/5/19, paragraphs 32-40.

Ali gave further evidence in cross-examination confirming that he arranged the workers for cleaning jobs subcontracted by Prestige, and that he paid those workers out of funds that Orlando paid to him.^[24] Ali said:^[25]

“Regardless of the subbie on-site, cleaners on-site has to be inducted and trained to do work on every site and supposed to have, for big venues, a photo ID. That’s why, if I change the sub-contractor, we always remain the cleaners on-site. All their jobs supposed to raise an invoice and pay for the cleaners. That’s all their job. They never get involved in internally training or anything. We have our branch to do the training and do everything. That’s why we prefer to keep all the cleaners on-site, the same crew and we don’t change, because, regularly, the subcontractor will supply someone for three months and they disappear. So, we had our casual and our permanent staff and for a reason, the company I work for, need to have subbies, so that they can save on costs. That’s what – how we worked at that time.”
24. T255.11-255.17.
25. T253.47-254.8.

However, Ali then gave further evidence suggesting that the arrangements whereby the workers’ wages were paid to Ali personally and he then paid the workers in cash applied only to workers that he arranged for “ad hoc jobs and extras” beyond the scope of the work that Prestige had sub-contracted to the Fonseca business.^[26] That is inconsistent with Ali’s evidence in his 9 May 2019 affidavit referred to at [32] above, where he described those arrangements as applying to all workers who performed work that had been subcontracted by Prestige.
26. T259.30-260.33, 266.5-266.10.
In his affidavit of 9 May 2019, Ali denied that he had asked Orlando in 1997, or in 2000, to pay him 15 per cent to 20 per cent of the profits on Prestige jobs that Ali allocated to the Fonseca business. Ali deposed that Orlando did not pay him 15 per cent to 20 per cent of profits during the period in which Ali worked for Prestige.^[27] However, in cross-examination, Ali gave evidence to the effect that he had been receiving a percentage of profits from some time prior to 2000.^[28] Ali then denied that he received a percentage of profits, and said that he received a dollar amount for each hour of work subcontracted by his employer to Fonseca businesses.^[29] At a later stage of his cross-examination, Ali denied receiving any profit share from the Fonseca businesses prior to 2009.^[30]
27. Ali 9/5/19, paragraphs 135-138.
28. T260.34-261.18.
29. T264.50-265.25.
30. T351.15-351.25.
Neither Ali nor Orlando purported to offer any explanation as to why workers undertaking the cleaning work subcontracted to Orlando’s business by Ali on behalf of Prestige were paid by Ali, rather than being engaged and paid directly by Orlando’s business. Nor did they offer any explanation for workers being paid in cash. Whilst the considerations referred to by Ali in his evidence set out at [33] above explain why Prestige would wish to specify the workers to be engaged by its subcontractors, they do not explain why those workers needed to be paid by Ali rather than by the Fonseca business. Nor do they explain why the workers were paid in cash.

Purchase of the Bardwell Property: 2001

On 1 November 2001, Ali became the registered proprietor of property at 38 Dowling Street, Bardwell Valley, New South Wales.^[31] The suburb is also known as Arncliffe. The parties referred to the property as the Bardwell Property and I will adopt the same terminology.
31. Exhibit 3, pp 655-656, 7304.
The purchase price for the Bardwell Property was $580,000.^[32]
32. Exhibit 3, p 656.
Orlando arranged for Hancock Alldis, solicitors, to act on the purchase of Bardwell Property^[33] and subsequently paid their fees.^[34]
33. Ali 27/5/15, paragraph 26(iii); Orlando 8/9/17, paragraph 35.
34. Ali 27/5/15, paragraph 26(iii); Orlando 18/9/18, paragraph 9.
Of the $580,000 purchase price, Orlando paid the deposit of $14,500 (which Ali described as a loan that Orlando made to him)^[35] and $464,000 was financed by a loan from Perpetual Trustees Victoria Ltd, secured by registered mortgage over the Bardwell Property.^[36]
35. Ali 9/5/19, paragraph 73; Orlando 18/9/18, paragraph 9.
36. Exhibit 3, p 657.
There is a dispute between the parties about how the balance of the purchase price was funded, whether Ali acquired the property for Orlando’s benefit on the basis that Ali would transfer the title to Orlando after about a year, and who made the repayments under the Perpetual Trustees mortgage after Ali’s completion of the purchase.
Ali gave evidence that Orlando had helped him by showing him some properties that were for sale, and Ali decided that he would like to buy the Bardwell Property. Orlando then introduced Ali to a broker by the name of Nabil Beydoun to arrange finance for the purchase. According to Ali, he negotiated the purchase price directly with the vendor of the Bardwell Property.^[37]
37. Ali 23/2/17, paragraphs 26-43.
A settlement sheet prepared by Hancock Alldis on or about 3 September 2001 shows that, after deducting the deposit of $14,500 and making adjustments as between vendor and purchaser for rates, the amount payable to the vendor on settlement was $566,920.47.^[38] A statement of account subsequently issued by Hancock Alldis indicates that the following additional amounts were also payable in connection with the purchase: $21,735.00 for stamp duty on the contract for sale of land, transfer and a “Mortgage to Fonseca”, a $60.00 registration fee in respect of a caveat, $2,439.00 for registration and stamp duty in relation to the Perpetual Trustees mortgage and Hancock Alldis’ fees of $1,438.05.^[39]
38. Exhibit 3, p 654.
39. Exhibit 5.
On 2 October 2001, Hancock Alldis wrote to Ali in relation to the purchase of the Bardwell Property stating: “We confirm your instructions that you handed direct to the Vendor the balance of purchase monies in the sum of $105,000.00.”^[40]
40. Exhibit 3, p 655; Exhibit 5.
A revised settlement sheet prepared by Hancock Alldis dated 19 September 2001 deducts the $105,000 that the firm was instructed Ali had paid directly to the vendor, reducing the amount payable to the vendor on settlement to $461,290.47.^[41]
41. Exhibit 5.
The settlement proceeded, and Ali became the registered proprietor of the Bardwell Property on 1 November 2001 as I have referred to above. There is no evidence to suggest that Hancock Alldis’ settlement figures were adjusted further after 19 September 2001 or that the vendors required payment of an amount greater than $461,290.47 on settlement.
In his affidavit sworn on 27 May 2015, Ali deposed that he paid $100,000 in cash to the vendor of the Bardwell Property because he was eager to lock in the sale.^[42] In his affidavit sworn on 23 February 2017, Ali deposed that:^[43]
42. Ali 27/5/15, paragraph 26(ii).
43. Ali 23/2/17, paragraphs 20-42.

shortly before he departed Lebanon for Australia in 1997, his father had given him US$75,000 for himself and the same amount for Ali to give to his sister when he arrived in Australia;

when he moved to Australia, he brought both his own share and his sister’s share of that money;

on arrival in Australia, he gave his sister “her share of the money” and kept his own share in cash at his sister’s home in Auburn where he was living;

after he began working in Australia, Ali withdrew his entire wage from his bank account each week in cash. Any cash that he did not spend was added to his cash savings at the Auburn property;

he took the cash with him when he moved to another property owned by his sister in Guildford in about mid-2001. He continued withdrawing his wages in cash and adding to any excess cash to the pool of cash that was now kept at Guildford; and

by about July or August 2001, he had saved approximately $100,000. At that time, he started to look for a property to buy and he paid the cash to the vendor of the Bardwell Property as a deposit on the same day that he verbally agreed to purchase the property.

In cross-examination, Ali referred to this cash payment as being an amount of $105,000, consistently with Hancock Alldis’ letter dated 2 October 2001, rather than $100,000.^[44] He described having kept the growing pile of cash in a locked cupboard in his sister’s home where he lived before he purchased the Bardwell Property in November 2001. Ali gave evidence that he was not interested in the interest that he could have earned on the money if it had been deposited with a bank rather than kept in cash. He believed the interest rate was low. He was hoping to buy a property and said that he had been advised by a friend “to take it out and leave it with me [that is, keep it with himself] as cash, because when you have cash, you can get a better bargain than having money in the bank, you can go out and buy something better.” Ali “always had the idea that I could buy something straight away and I need the money and it’s ready for me to buy”.^[45]
44. T207.25.
45. T172.20-182.10, especially at 174.35-174.48 and 177.45-177.50; T312.19-313.30.
Ali gave no account of the source of funds from which the stamp duty and registration fees referred to at [43] above were paid. In cross-examination, Ali confirmed that the $105,000 cash payment referred to above was the only payment that he made out of his own funds towards the purchase of the Bardwell Property.^[46] In his affidavits sworn on 7 July 2015 and 23 February 2017, Ali denied having borrowed any funds from Orlando to purchase the Bardwell Property. At that stage, Ali did not even acknowledge that Orlando had paid the $14,500 deposit, although he did accept that Orlando had paid Hancock Alldis’ fees.^[47]
46. T207.9-207.25.
47. Ali 27/5/15, paragraph 26(ii)-(iii); Ali 7/7/15, paragraph 10; Ali 23/2/17, paragraph 20.
In his 9 May 2019 affidavit, Ali accepted that Orlando had paid the $14,500 deposit (which he described as a loan) and deposed that Orlando may have lent him other money to purchase the Bardwell Property. Ali said that this was reflected in a mortgage that he had signed securing repayment of $50,000. Ali immediately added that, shortly after the purchase of the property, Orlando had told him that he did not need to repay the loan.^[48]
48. Ali 9/5/19, paragraphs 74-76.
Ali had earlier denied signing the $50,000 mortgage when responding to a notice to admit facts. Ali was given the opportunity to explain this earlier denial in cross-examination, but no satisfactory explanation emerged. Ali denied changing his position after the defendants served a report of a forensic document examiner concerning his signatures on the mortgage and an affidavit of the solicitor whose signature appears on the mortgage as a witness to Ali’s signature. Despite the cross-examiner showing Ali his denial in his response to the notice to admit facts, Ali asserted in cross-examination: “I never denied signing the mortgage paper at all from day 1.”^[49]
49. T193.15-198.50, 237.38-237.49; affidavit of Mimi Kappos sworn 30 August 2018; report of Melanie Holt dated 11 July 2018 at Exhibit 3, pp 6169-6214.
In cross-examination, Ali gave evidence seemingly inconsistent with his affidavit evidence referred to immediately above, in that he denied that he had ever received $50,000. However, it was not entirely clear whether he was denying that a loan of $50,000 had been made to him or whether he was merely denying that a sum of $50,000 had been paid directly to him by way of loan (as opposed to paid to third parties to discharge his liabilities for the $14,500 deposit, stamp duty, registration fees and solicitors’ fees).^[50] Consistently with Ali’s 19 May 2019 affidavit, the plaintiffs’ closing submissions accepted that Orlando and Vilma had provided financial assistance of about $50,000 for the purchase of the Bardwell Property and that this was reflected in the $50,000 mortgage.^[51]
50. T188.35-189.43.
51. Plaintiffs’ closing submissions (25/11/20), paragraph 19.
The $50,000 mortgage is not dated.^[52] A licensed conveyancer employed by Hancock Alldis witnessed the signatures of both the mortgagor and mortgagee. Hancock Alldis lodged a caveat over the Bardwell Property on 11 December 2001 on behalf of Vilma, claiming an interest or estate in the land pursuant to a mortgage between herself (as mortgagee) and Ali (as mortgagor) dated 26 September 2001.^[53]
52. Exhibit 3, pp 6932-6933.
53. Exhibit 3, pp 659-661, 7304.
Orlando gave a very different account of the transaction by which Ali became the registered proprietor of the Bardwell Property in November 2001.
In his affidavit sworn on 8 September 2017, Orlando deposed that he said to Ali words to the following effect:^[54]

“I want to buy a house but my broker says I cannot get a loan at the moment. He told me that I need to wait about six months. I do not want to wait. Here is my plan. I want you to buy the house in your name and take out a mortgage in your name. I will lend you some money to help you buy the house and pay the deposit. You will need to get a mortgage but I will pay the mortgage repayments. You can live in the house for nothing for one year. As soon as I can borrow the money from the bank, you have to transfer the house back to me. I will pay out your mortgage.”
54. Orlando 8/9/17, paragraph 31.

Orlando deposed that Ali had agreed to this, and that Orlando had then said that he would ask his solicitor to prepare “all of the documents”.^[55]
55. Orlando 8/9/17, paragraph 31.
In his affidavit affirmed on 18 September 2018, Orlando added to the account of his conversation with Ali in 2001 that he had given in his 8 September 2017 affidavit. Orlando deposed that the conversation also included words to the following effect:^[56]

“The property is 38 Dowling Street Bardwell Valley. To live there rent-free you have to give me work.”
56. Orlando 18/9/18, paragraph 8.

I will refer to the agreement that Orlando claims to have entered into with Ali as the alleged September 2001 agreement. It was not documented by Hancock Alldis or, indeed, at all. In cross-examination, Orlando gave three inconsistent answers about why the solicitors he had engaged did not document the alleged agreement (my emphasis):^[57]
57. T691.23-692.6 (incorporating the parties’ agreed transcript corrections).

“Q.   … as you say, you had a solicitor available to you to prepare all of the documents to record this deal that you had with Ali, didn’t you?
A.   Yes.
Q.   Why didn’t you get your solicitors, then, to record in an agreement that Ali had to transfer the house back to you?
A.    Because I don’t think that it’s necessary because that’s the agreement I got with Ali it’s going to be transferred.
Q.   It’s not necessary, you could trust him; is that it?
A.   Yeah.
Q.   It was not necessary to get anything in writing from Ali about this agreement?
A.   That’s the big mistake I make, not making everything in writing.
Q.    Is the reason why you say you didn’t get this deal recorded in writing by your solicitors was because you say you could trust Ali?
A.   No, because the solicitor never asked me to do that document. If the solicitor asked me to do that document, I do it.
Q.   You claim you told your solicitors about this deal with Ali where Ali would buy this property on your behalf and transfer it back to you?
A.   Yes.
Q.   You say you told your solicitors about that?
A.   To be transferred, the property to me, later on?
Q.   Yes.
A.   I can’t remember if I told the solicitors.
Q.   Is there any reason why you wouldn’t have told your solicitors about this arrangement?
A.   I can’t remember.”

Orlando gave evidence that he had negotiated the purchase price for the Bardwell Property through his mortgage broker and paid the deposit of $14,500. Ali had not contributed any money to the purchase. Orlando and Vilma had lent Ali an amount of $110,000 to purchase the Bardwell Property, which was recorded in two separate loans in the amounts of $50,000 and $60,000.^[58]
58. Orlando 8/9/17, paragraphs 34-42, 59-61 and 64; Orlando 18/9/18, paragraph 9.
The $50,000 loan is the subject of the mortgage I have already referred to at [50]-[53] above.
In relation to the alleged $60,000 loan, the defendants rely on correspondence from Hancock Alldis to Vilma dated 9 April 2002 referring to an additional advance of $60,000 and a letter from Hancock Alldis to Ali dated 19 June 2002. The letter to Vilma dated 9 April 2002 encloses a copy of an invoice said to have been sent to Ali for Hancock Alldis’ fees of $554.95 in respect of “the additional advance of $60,000”. The enclosed invoice refers to a “Variation of Mortgage”.^[59] The letter dated 19 June 2002 is addressed to Ali. It refers to previous correspondence concerning the “Variation of Mortgage to Vilma Fonseca for the additional $60,000 loan advance” and demands payment of Hancock Alldis’ tax invoice immediately. The letter also states: “Our client has also given us instruction to request the repayment of the loan amount in full within three months, otherwise proceedings for recovery will be commenced.”^[60]
59. Exhibit 3, pp 662-663.
60. Exhibit 3, p 664.
There is no evidence of any variation of mortgage signed by Vilma and Ali. The only documentary evidence concerning the alleged loan of $60,000 is a handwritten document dated 6 November 2002 on “JAF Ambassador” letterhead. The handwriting is Vilma’s. It states:^[61]

“I’m Ali Itawi of 38 Dowling Street Arncliffe 2144 NSW, Declaret that I recibe from Orlando Fonseca of 8 Goolagong Pl, Menai 2234 NSW, as loan, the sum of $60,000 (sixty thousand dollars) and I agree to put my house of 38 Dowling St Arncliffe as garante, and all the money that will be relize from Austar Finance will be deposit direct to Orlando Fonseca solicitors Trust Account.”
61. Exhibit 3, p 670 (the spelling and grammatical errors are in the original text); Vilma 1/9/17, paragraph 15; Vilma’s evidence at T777.21 (“I do the letter”).

In his affidavit affirmed on 9 May 2019, Ali said that he did not recall Orlando lending him a further $60,000 in about April 2002. Ali also denied signing the handwritten document dated 6 November 2002.^[62]
62. Ali 9/5/19, paragraph 77.
It was put to Orlando in cross-examination that the agreement that he claims to have made with Ali was not consistent with the $50,000 mortgage and the further mortgage that Orlando claims Ali signed in November 2002, one year after the acquisition of the Bardwell Property. Orlando gave the following evidence:^[63]
63. T693.5-694.35 (incorporating the parties’ agreed transcript corrections).

“Q.    We just went through this process a few minutes ago and I think you agreed with me when you added up everything that you’d - you say you paid--
A.   Yeah, if you add it up there, it’s at least 150.
Q.   Right. Why didn’t you get a mortgage for $150,000?
A.   I don’t remember why or not did that document.
Q.   My other question is this: if Mr Itawi was buying this property on your behalf, why were you getting a mortgage from him in respect of a property that he was buying for you?
A.   Why you mean the mortgage for the $50,000?
Q.   Yes, because on your version of events, Mr Itawi is buying this house for you, isn’t he?
A.   Yes.
Q.   Right. Why do you need a mortgage from him for a house that he’s buying for you?
A.   If in case he doesn’t want to be transferred later to us.
Q.   Right. Well, if he doesn’t want to, later, if he doesn’t want to agree to transfer it, didn’t you need an agreement so that he would be made to transfer it to you?
A.   I did that agreement verbally.
Q.   But why have a written agreement for the $50,000, but only a verbal agreement for the deal to transfer the property back to you?
A.   That’s what I tell you, I can’t remember why the lawyer doesn’t do for 150.
Q.   Now, you wanted to talk about the - sorry - you say in addition to the 50,000, there was also 60,000, don’t you?
A.   Yes.
Q.   But I want to suggest to you that the agreement you rely on for the 60,000 came almost 12 months after the transaction for the purchase by Mr Itawi of the Bardwell Valley property was completed, didn’t it?
A.   I can’t remember.
Q.   Well, we were just there. I want to suggest to you that the property was transferred into Mr Itawi’s name - your Honour, it is court book 656 - at least it was registered - I want to suggest to you that the transfer of that property was registered into Mr Itawi’s name on 5 November 2001, the transfer was stamped on 26 September 2001 and the $60,000 document you rely upon was not dated until 6 November 2002, more than 12 months after the transfer to Mr Itawi was stamped?
A.   I can’t remember at the time, the date.
Q.   And the document that you rely upon for what you say was part of the $110,000, that is the $60,000, actually says these words, ‘I, Ali Itawi, declare that I receive from Orlando Fonseca as loaned, the sum of $60,000 and I agree to put my house of 38 Dowling Street ..(not transcribable).. as guarantee.’ Do you see that? Sorry, you don’t see that. Do you recall that that’s what the document says?
A.   Yeah.
Q.   So, that seems to be recording something that is happening on 6 November 2002, doesn’t it?
A.   I can’t remember the date, the time.
Q.   See, if you really had advanced $60,000 with the $50,000, you would have got a mortgage for $110,000, wouldn’t you?
A.   I think - I can’t remember why I not do the 110 or 150 my lawyer to the mortgage.
Q.   Is it because it didn’t happen? Is that why you can’t remember it?
A.   It happened, mate. This happened.
Q.   See, what I want to suggest to you is that if it was you who had provided the $110,000 rather than Mr Itawi providing the $110,000, you would have got your solicitors to have produced a mortgage for $110,000, wouldn’t you?
A.   Probably we do a mistake not produce that document, but we put that money.
Q.   And if, as you say, the deal was that Mr Itawi was buying this property for you and was going to transfer it to you at a later period of time, you would have got your solicitors to have recorded that in an agreement in writing, wouldn’t you?
A.   I don’t know why they not do that.
Q.   Well, I suggest to you the reason why you didn’t do it is because it never happened?
A.   That’s what you think.”

It was also put to Orlando in cross-examination that he had no record of having advanced $60,000 to Ali in November 2002. Orlando’s answers in response to this series of questions were argumentative and incoherent:^[64]
64. T695.25-696.15.

“Q.   You don’t have any record of advancing $60,000 to Mr Itawi in November 2002, do you?
A.   What records?
Q.   You don’t have any record of advancing $60,000 to Mr Itawi in November 2002, do you?
A.   Probably ..(not transcribable).. in the accounts of my companies ..(not transcribable).. the money and we took the money.
Q.   You haven’t - you’ve got access to the accounts of your companies, don’t you?
A.   Yes.
Q.   Including access to the accounts of your companies for Clean & Clear - yes?
A.   Yes.
Q.   So, you could have, if you had a record of advancing $60,000 to Mr Itawi in November 2002, you could have produced those accounts showing that advance, couldn’t you?
A.   Do you know why I not use that, because you friend think Cassaniti, he’s got all the statement, he’s got all the documents for my companies for the last ten years.
Q.   You just said you had access to them. I’m not asking you whether Mr Cassaniti has also got access, but you said you had access to them, didn’t you?
A.   That’s correct, yeah.
Q.   So, you could have produced your copies of the accounts--
A.   How can I produce the copies now?
Q.   Now, you have - you and your solicitors have subpoenaed many bank documents for these proceedings, haven’t they?
A.   Yes.
Q.   You could have subpoenaed bank records showing the $60,000 coming out of one of your company’s accounts and going into Mr Itawi’s account. You haven’t done that, have you?
A.   Reason because we write some - so many cheques, we take cash and move money from one account to the other account. I don’t know if you - my solicitors gave the accounts from my companies to show you the money withdraw from their companies, the 60 and the 50,000 withdraw in cash to Ali Itawi.”

Following the questions and answers referred to immediately above, it was put to Orlando that his evidence that he and Vilma had lent $110,000 to Ali was false. Orlando replied: “That’s what you think. Can you prove that?” ^[65]
65. T696.24.
Adding the $50,000 loan and the alleged $60,000 loan referred to above to the $14,500 deposit, stamp duty and legal fees that he paid, Orlando claimed in cross-examination to have lent Ali about $150,000 in total for the acquisition of the Bardwell Property.^[66] Orlando said that he (not Ali) had made the $105,000 payment directly the vendor.^[67] Orlando gave the following evidence about this in cross-examination:^[68]
66. Orlando 8/9/17, paragraphs 34-42, 59-61 and 64; Orlando 18/9/18, paragraph 9; T689.19-689.40
67. T689.40-689.50.
68. T690.1-690.42 (incorporating the parties’ agreed transcript corrections).

“Q.   How do you say you paid that $105,000? Do you say you gave it to your solicitors?
A.   It was paid to the vendor.
Q.   Who do you say paid it to the vendor: you or Mr Itawi?
A.   I pay myself. Mr Itawi never meet the owner of the property.
Q.   So you’re the one who paid it, not Mr Itawi?
A.   That’s correct
Q.   Do you know why, then, there is a letter from the solicitors who acted on this matter who write to Mr Itawi saying, ’Dear Mr Itawi, we confirm your instructions that you handed direct to the vendor the balance of purchase moneys in the sum of $105,000’? Do you know why it referred to Mr Itawi and not to you?
A.   Because when we do the paperwork, we put that Ali Itawi as the buyer but the person who buy the property was myself and I’m the one that put the money.
Q.   That doesn’t explain, though, does it, why the letter didn’t say, “We confirm your instructions that Mr Fonseca handed direct to the vendor the balance of purchase moneys in the sum of $105,000 on your behalf”? Why didn’t the letter from the solicitors say that?
A.   I don’t remember why.
Q.   Do you claim that you gave this $105,000 to the vendors before settlement?
A.   Of course before settlement.
Q.   Why do you say it was necessary to give the vendors $105,000 before settlement?
A.   Because it’s like the deposit.
Q.   You’d already paid the deposit? That’s your evidence, isn’t it, you already paid the deposit?
A.   I had given $5,800/$5,000.
Q.   No. In your evidence you say that the deposit was $14,500, don’t you?
A.   It’s not $14,000. I think this is what we paid for the lawyers.
Q.   I suggest that you got a settlement sheet from your solicitors showing the deposit as $14,500, didn’t you?
A.   I don’t remember that.”

Orlando’s claim in cross-examination that he personally paid the $105,000 to the vendor is inconsistent with his affidavit sworn on 8 September 2017 in which he had deposed that he had not dealt directly with the vendor of the Bardwell Property and that he had conducted the transaction through his broker, Mr Ali Hussain.^[69]
69. Orlando 8/9/17, paragraph 34.
As referred to at [55] above, Orlando gave evidence that, at the time that he says he wanted to buy the Bardwell Property in 2001, his broker had told him that he “cannot get a loan at the moment” and that he would need to wait about six months before he could get a loan. In cross-examination, Orlando gave inconsistent evidence about whether his broker had told him that he could not get a loan because he first needed to save a percentage of the purchase price for the Bardwell Property before he could borrow the remainder (probably 20 per cent, according to Orlando), or because he already had too many loans.^[70] The second answer (that Orlando already had too many loans) was given only after it was put to him that the $150,000 that he claims to have lent to Ali to fund the November 2001 purchase of the Bardwell Property was equivalent to 26 per cent of the purchase price, and that Orlando could have used those funds to acquire the property in his own name with a loan for the balance of the purchase price.
70. T687.19-687.40, 688.25-689.2.
Orlando’s broker, Mr Ali Hussain, was not called to give evidence.
It was put to Orlando in cross-examination that the agreement that he claims to have made with Ali when the Bardwell Property was acquired in November 2001 was a story that Orlando had made up at some time after these proceedings were commenced in May 2015. Orlando was aware that the proceedings had been commenced in May 2015 and he knew that Ali’s allegations included that Orlando had asked him to transfer the Bardwell Property to Orlando in November 2002 on the basis of Orlando’s promise to transfer the property back to Ali at a later time. The first affidavit served on behalf of the defendants was an affidavit of Jeffrey sworn on 1 July 2015. Jeffrey spoke with Orlando for the purpose of obtaining information to swear that affidavit. In cross-examination, Jeffrey accepted that he would have ensured that Orlando had first been provided with a copy of Ali’s 27 May 2015 affidavit or that he had explained to Orlando the contents of it. Jeffrey also accepted that he would have been careful to record what Orlando told him at the time. The information recorded in Jeffrey’s 1 July 2015 affidavit in relation to Ali’s claims about the Bardwell Property was that Ali had transferred the property to Orlando in January 2003 in satisfaction of two loans that Ali owed to Orlando. Jeffrey nevertheless disputed that Orlando had not told him for the purpose of his 1 July 2015 affidavit that Ali had purchased the Bardwell Property on Orlando’s behalf in November 2001. In cross-examination, Orlando could not recall whether he had told Jeffrey for the purpose of Jeffrey’s 1 July 2015 affidavit that Ali had purchased the Bardwell Property on behalf of Orlando in November 2001, as Orlando now claims.^[71]
71. T622.20-, 625.31, 683.20-685.24.
It was put to Orlando in cross-examination that he did not in fact make any agreement or deal with Ali for Ali to purchase the Bardwell Property in his name on Orlando’s behalf and to transfer it to Orlando later. Orlando answered: “I make the deal from the first day we purchased the property with Ali”.^[72] Ali denied making the alleged “deal”.^[73]
72. T699.6-699.10.
73. Ali 9/5/19, paragraphs 69-70, 132.

Ali resides in the Bardwell Property: November 2001 to early 2003

It is common ground that Ali resided in the Bardwell Property from completion of the purchase in November 2001.
There is a dispute between the parties about who made the Perpetual Trustees mortgage repayments during the period until February 2003 when the Bardwell Property was transferred to Orlando.
In his affidavit sworn on 8 September 2017, Orlando deposed:^[74]

“In late 2001, Ali Itawi bought the Bardwell property for about $580,000. I negotiated the amount of the purchase price myself. I did not deal directly the vendors. I dealt with Ali Hussain. At [251] of OF-1 is a copy of a settlement statement with the date ‘19/09/2001’.
I arranged for Hancock Alldis Lawyers to act for Ali Itawi in relation to the conveyance. Kevin Hancock was the solicitor but I understand he has now passed away. I paid the mortgage repayments on this loan using money from Endeavour. I do not recall how much I paid. I no longer have copies of Endeavour’s bank statements from this time to show these mortgage payments.”
74. Orlando 8/9/17, paragraphs 34-35.

I have set out these two paragraphs in full (excluding sentences that were not read) so that the context of Orlando’s evidence that he made the mortgage repayments is clear. It is plain from that context that Orlando was giving evidence that from the time Ali purchased the Bardwell Property in November 2001, Orlando had made the mortgage payments, using funds of the Endeavour Cleaning Services business or Endeavour Cleaning Group Pty Ltd. I note that the business name Endeavour Cleaning Services was first registered in September 2003 and Endeavour Cleaning Group Pty Ltd was incorporated on 6 April 2006.^[75]
75. Orlando 8/9/17, paragraphs 3-8; Exhibit 3, pp 7209-7214.
Ali affirmed an affidavit on 9 May 2019 responding to Orlando’s affidavit of 8 September 2017. Paragraph 72 of Ali’s 9 May 2019 affidavit responded specifically to the two paragraphs of Orlando’s affidavit that I have set out above. The parts of paragraph 72 read by the plaintiffs at the final hearing did not include any response to Orlando’s evidence that he made the mortgage repayments on the Bardwell Property from November 2001 onwards.^[76] Paragraph 72 included the following further sentence that was not read by the plaintiffs, but was the subject of cross-examination: “‘He [Orlando] admits that he paid the mortgage repayments on the loan using money from Endeavour, which I say is consistent with our agreement about paying off my house.’”^[77]
76. Ali 9/5/19, paragraph 72.
77. T214.41-215.5.
On 10 November 2020, Ali affirmed an affidavit in which he deposed that he had assumed, when reading the two paragraphs of Orlando’s affidavit referred to above, that Orlando was referring to the mortgage payments after the Bardwell Property was transferred to Orlando in 2003. Ali deposed:^[78]

“Having read those paragraphs more carefully, it is now apparent to me that what Orlando may be saying in those paragraphs is that he made the mortgage repayments on the loan that was in my name before the property was transferred to him in 2003. If that is what he is saying, it is not correct. I paid my mortgage repayments on the Bardwell Property up until the date of the transfer of the Bardwell Property from me to Orlando.”
78. Ali 10/11/20, paragraph 5.

Ali annexed to his 10 November 2020 affidavit a copy of a statement of account prepared by Austar and addressed to him at the Bardwell Property. The statement of account is a mortgage account in respect of a loan commencing on 19 September 2001. The amount of the loan was $464,000. The statement relates to the period 1 July 2002 to 31 December 2002. The statement records 12 payments of $1,337.95 made during this period. Each payment is described on the statement as “Payment 1”. The statement does not identify the source of the payment. Ali’s evidence in his 10 November 2020 affidavit and in cross-examination is that he made those payments. The amount owing as at 31 December 2002 was $464,310.^[79]
79. Ali 10/11/20, paragraphs 5 and 7; T209.30-211.13.
The statement of account records three dishonoured payments during the period from 1 July to 21 December 2002. It appears from the evidence referred to at [107] below that the mortgagee had commenced proceedings prior to completion of Ali’s transfer of the property to Orlando in January 2003.
In cross-examination, Ali gave evidence that: “I paid the mortgage from my account. … I paid it and it shows on my statement I paid it, and the reason why I got one dishonoured payment because was short about $15 from my account. That’s exactly what happened.”^[80] Ali’s assertion that only one payment had been dishonoured is plainly wrong, as revealed by the statement annexed to his own affidavit. However, it is clear from this evidence that the manner in which Ali says that he paid the Bardwell Property mortgage during the period from November 2001 to January 2003 was by transferring funds from his bank account to the mortgage account.
80. T213.38-213.43.
Orlando was cross-examined about his claim to have made the Bardwell Property mortgage repayments during the period in which the property was registered in Ali’s name:^[81]
81. T696.38-697.39.

“Q.   Now, you claim, don't you, that you paid all the mortgage payments on the Bardwell Valley property after Mr Itawi had purchased the property in September 2001?
A.   Yes.
Q.   You say you did this because of what you say was the agreement that you had with Mr Itawi, that he would buy this property on your behalf; correct?
A.   Correct.
Q.   Now, if that was correct, you would never have had - sorry, you would have wanted to have received the loan statements that Mr Itawi had for this mortgage, so that you could monitor the loan account, wouldn't you?
A.   Can you ask the question again?
Q.   Yes. If, as you claim, Mr Itawi bought the Bardwell Valley property on your behalf--
A.   Mm-hmm.
Q.   --and if, as you claim, you'd said you were going to be making all the mortgage payments, you would have wanted the bank - the mortgage statements to have been sent to your address, wouldn't you?
A.   I think the statements coming to my address.
…
Q.   And I want to suggest to you, Mr Fonseca, that up until at least 31 December 2002, the mortgage statements were being sent to the address of Mr A Itawi, 38 Dowling Street, Arncliffe, New South Wales, 2205, weren't they?
A.   I can't remember.
Q.   And that's because, Mr Fonseca, it's simply not true, is it, that you were making the mortgage payments prior to the property being transferred to you by Mr Itawi?
A.   (No verbal reply)
Q.   It's not true, is it?
A.   What do you mean it's not true? I can ask the bank, I'll give you statement who's been paying the loans for all the time.
Q.   So, you could produce a bank statement showing that you were making the mortgage payments on this property when Mr - when the property was in Mr Itawi's name? Is that what you're telling the Court?

A. Whatever repayments I've been making, we can request the statements from the banks. Yes.”

I note the inconsistency between Orlando’s two answers that I have emphasised in the extract above.
Senior counsel for the plaintiff then called for “any bank statements showing any payments by any of the Fonseca entities to the mortgage account in Mr Itawi's name prior to December 2002”. The defendants’ response was that there was nothing to produce.^[82]
82. T697.40-697.45.
In his affidavits sworn on 27 May 2015 and affirmed on 9 May 2015, Ali deposed that he made various improvements to the Bardwell Property at his own expense during the period from 2001 to 2015. In the period prior to 2003, Ali deposed that he installed new curtains, installed two new air conditioning units and carried out concrete work at the back of the house, at his own cost.^[83]
83. Ali 27/5/15, paragraph 104; Ali 9/5/19, paragraphs 26-27.

Ali’s move to work with Tempo and continued referral of work to the Fonseca businesses: 2002

In about 2002, Prestige was taken over by another cleaning contracting company called Tempo. Ali’s role as Area Manager continued unchanged.^[84] Ali worked for Tempo from the time that it took over Prestige in 2002 until about 2004 or 2005.
84. Ali 27/5/15, paragraph 19; Ali, 9/5/19, paragraph 47.
According to Orlando, he and Ali continued the same practice they had adopted while Ali was an Area Manager with Prestige. When Ali (on behalf of Tempo) engaged Orlando’s business to undertake cleaning work, Ali would arrange the cleaning workers and Orlando would cause the wages for those workers and for Ali, as calculated by Ali, to be paid into Ali’s bank account so that Ali could pay the workers in cash.^[85] This is consistent with Ali’s evidence of their arrangements for the payment of the workers. Ali described the Fonseca businesses as sub-contractors of Tempo and the cleaning workers as sub-sub-contractors.^[86]
85. Orlando 8/9/17, paragraph 21; Orlando 18/9/18, paragraphs 31-32.
86. Ali 9/5/19, paragraphs 45-51.
Orlando also deposed that he continued to pay to Ali between 15 per cent and 20 per cent of the profits that Orlando’s business made on Tempo jobs allocated to him by Ali, calculated as the difference between the amount that Tempo paid to Orlando’s business in any given period and the amount that Orlando’s business paid to Ali to cover the wages of workers in that same period.^[87]
87. Orlando 18/9/18, paragraph 33.
In his affidavit of 9 May 2019, Ali deposed that Orlando did not pay him 15 per cent to 20 per cent of profits during the period in which Ali worked for Tempo.^[88] It is not clear whether, by this evidence, Ali was disputing that Orlando had agreed to pay him a percentage of profits as opposed to a dollar amount (as referred to at [35] above), or whether he disputing that Orlando had paid him profits that he claims to have been entitled to, or both.
88. Ali 9/5/19, paragraph 138.
In his affidavit affirmed on 18 December 2019, Orlando introduced a further variation to his account of the arrangements he made with Ali concerning the payment of cleaning workers in the whole of the period prior to January 2003. Orlando deposed that, when he was arranging to pay money into Ali’s account so that Ali could pay workers, Ali frequently asked Orlando to pay a specified extra amount and promised to repay Orlando.^[89] In his affidavit affirmed on 12 February 2020, Ali denied asking for these additional amounts.^[90] Orlando introduced this variation into his account of the arrangements in the context of putting forward an explanation for why he did not pay any moneys to Ali in consideration for the transfer of the Bardwell Property in January 2003.
89. Orlando 18/12/19, paragraph 8.
90. Ali 12/2/20, paragraph 11.
It is not in dispute that Orlando periodically caused cash deposits to be made into Ali’s accounts. The defendants adduced evidence of receipts for some deposits made during the period from 2002 until about 2010, although they did not put these receipts forward as a complete record of all such cash payments. In his affidavit affirmed on 9 May 2019, Ali said that these cash payments were for the cleaning workers he arranged to perform the work for jobs that he caused to be subcontracted to Orlando’s businesses.^[91] The receipts in evidence for cash payments made in 2002 totalled $6,800 paid during the period from 20 July 2002 to 20 December 2002. During that same period, additional payments totalling $26,370 were made from Jeffrey’s account to Ali’s accounts.^[92]

Alleged partnership agreement and transfer of the Bardwell Property to Orlando: November 2002 to January 2003

91. Vilma 1/9/17, paragraphs 10-11; Orlando 8/9/17, paragraph 16; Vilma 18/9/18, paragraphs 4-5; Exhibit 3, pp 7829-7867; Ali 9/5/19, paragraphs 40-41.

92. Exhibit 3, p 7071 and 7859.

On 11 December 2002, Ali signed a contract for the sale of the Bardwell Property to Orlando.^[93] The contract was completed on 21 January 2003^[94] and Orlando became the registered proprietor of the Bardwell Property on 11 February 2003.^[95]
93. Exhibit 3, p 671.
94. Exhibit 3, p 6935.
95. Exhibit 3, pp 703-705.
There is a dispute between Ali and Orlando about the circumstances in which and the terms on which the Bardwell Property was transferred to Orlando.
Ali gave evidence that Orlando frequently asked Ali to go into partnership with him.^[96] In his affidavit sworn on 27 May 2015, Ali gave evidence of a conversation that says he had with Orlando in about November 2002.^[97] According to Ali, Orlando asked him again to become his partner and said that he wanted to borrow money in order to be able to hire more workers and undertake more work. Orlando proposed that:^[98]
96. Ali 27/5/15, paragraph 18.
97. Ali 27/5/15, paragraph 26(vi).
98. Ali 27/5/15, paragraph 26(vi).

he would take out a bank loan in order to fund the cost of hiring more workers, as the workers have to be paid before the subcontractor is paid;

Ali would transfer the Bardwell Property to Orlando so that Orlando could secure that loan against the property so as to achieve a lower interest rate;

Orlando would not pay Ali for the Bardwell Property, but would take out a loan in his own name to refinance Ali’s mortgage over the property (in addition to a further loan to be taken out later to fund the payroll of his expanded workforce);

Ali would be entitled to 20 per cent of the profits of the business (or 50 per cent if Ali came to work directly with Orlando);

Orlando would pay Ali’s share of those profits directly into the part of the mortgage over the Bardwell Property that Ali was responsible for;

Orlando would also pay to Ali “the shortfall on the transfer of the property” but would need five years to do this in order to free up money to expand in the meantime; and

eventually, the Bardwell Property would be transferred back to Ali with any mortgage paid off.

Ali says that he agreed to this proposal.^[99] It is convenient to refer to this as the alleged November 2002 agreement.
99. Ali 27/5/15, paragraph 26(vi).
In cross-examination, Ali was asked what he understood Orlando to be referring to when he said (according to Ali) that he would pay to Ali “the shortfall on the transfer of the property” but that he would need time to do so. It is convenient to set out the whole of the relevant exchange in cross-examination (my emphasis in bold, with the italicised text indicating cross-examination about a different conversation that Ali says he had with Orlando in September 2009):^[100]
100. T242.1-245.24.

“Q.   Now, in the same volume that you have in front of you, and this is volume 1 of the court book, at page 133 is your affidavit of 27 May 2015. Please turn to that?
A.   Page again please?
Q.   133 is the first page of that affidavit.
A.   Yes.
Q.   If you go to page 137 at the bottom there is the start of paragraph 26 – tell me when you’ve found it please?
A.   Yep.
Q.   If you just turn the page, you will see that’s a very long paragraph and then at page 139 –
A.   Yeah.
Q.   --towards the top is where you start or where you say that in about November 2002, you had a conversation with Orlando. Are you there at that spot in the affidavit?
A.   Yeah.
Q.   Then, in the course of this long conversation, on the next page, this is page 140 of the court book … Orlando says, and I quote, ‘I will need some time to grow.’ Do you see that?
A.   Yes.
Q.   Now in that passage you have there of Orlando speaking, if you keep reading it, you see that he then says towards the end of that passage, ‘I’ll also pay you the shortfall on the transfer of the property, but I’ll need five years for that. That’s to free up money to expand in the meantime.’ Do you see that?
A.   Yeah.
Q.   What did you think he meant by the shortfall?
A.   Anything that he wants to pay me, he pay me in five years’ time, not that time.
Q.   Anything he wants to pay, is that what you said?
A.   Anything he wants to pay me –
Q.   And if he wanted to pay you a dollar, that would have been okay, too?
A.   I never disagree on any conversation I had with myself and Orlando in regard to the property.
Q.   I’m really asking you now about an amount of money, you see. I’m asking you what you thought he meant when you say he used the words ‘I’ll also pay you the shortfall on the transfer of the property, but I’ll need five years for that.’ What did you think he meant by that?
A.   I didn’t put a figure on five years. On trust, as I said from day 1, we agreed on doing this, all this exercise, to get what we’re going to get after selling the house.
Q.   You didn’t have a figure in your mind at all?
A.   None at all.
Q.   And you didn’t know what figure Orlando had in his mind, if any; is that right?
A.   Not at all. All my understanding was –
Q.   But neither – I’m sorry. Go on?
A.   Sorry. All my understanding was that I’ll have my property back as soon as it paid off. That’s all I understood at that time.
Q.   If you continue on in this affidavit at paragraph 51, you come to a paragraph where you recite conversation you had with Orlando in about September 2009 concerning Bardwell Valley and the Cleaning Doctor?
A.   Yes.
Q.   Now, at the end of that page – this is page 147 of the book – in the course of that conversation, you say – you write there that you said, ‘You also owe me the rest of the purchase price on my house.’ Then you say that Orlando replied, ‘Yes. The business can’t afford to pay this at the moment. I agree it’s owed though.’ You’ve read that now?
A.   Yes, I do.
Q.   What did you mean by ‘you still owe me the rest of the purchase price’?
A.   We had our agreement and he dishonoured the agreement and that’s why I was talking to him about my debt with him to be honoured.
Q.    Mr Itawi, you just said a short time ago that you didn’t know what price was on the contract and that you and Orlando hadn’t talked about any particular price--
A.    I’m not talking about the price, sorry.
Q.   So, when you used the words - you say you used the words to him, ‘You still owe me the purchase’ - sorry - ‘You also still owe me the rest of the purchase price on my house’, what did you mean when you used the word ‘purchase price’?
A.   Because he need to transfer the property back to me.
Q.   Are you saying that they are the same things, are you?
A.   They’re the same thing.
Q.    I’m just--
A.   Not the money thing. I think to sign the property back to me.
Q.   Just go back to page 140. This is the November 2002 conversation. At about a third of the way down, Orlando says, ‘It would go like this’, and then he keep talking. Do you see that passage?
A.   Which line again, please?
Q.   Page 140, about a third of the way down, where Orlando starts talking, ‘It would go like this’, and he continues talking; do you see that?
A.   I can’t see it, sorry. One second.
Q.   You are at page 140 of the book?
A.   I’m at 140. It got me, Orlando, me, Orlando, me, Orlando ..(not transcribable)..
Q.   So, the top of the page there’s ‘me’ then there’s ‘Orlando’--
A.   Yes.
Q.   --do you see, ‘Orlando: It would go like this’?
A.   ‘It would go like this’, yeah.
Q.   Then he asked you or suggest to you that you transfer the property to him, he pays out the mortgage, he puts on a new mortgage in the short term and then he says, ‘And you will end up getting it back with any mortgage paid out soon.’ Do you see that?
A.   Yeah.
Q.   You say he’s referring there to you getting the property back?
A.   Yes.
Q.   Then about three or four inches down the page where Orlando starts talking again, he says, ‘I will need some time to grow.’ Do you see that passage again?
A.   Yeah.
Q.   In that passage, he says, ‘I’ll also pay you the shortfall on the transfer, but need - I’ll need five years for that.’ Do you see that passage?
A.   Yes.
Q.   You’re writing here, aren’t you, in this affidavit, you are writing that he said that he would do both things, he would transfer the property back to you; ‘mortgage-free soon’, and will also pay you the shortfall of the transfer. Don’t you agree that you were saying both those things?
A.   Can I answer, please, yeah, he borrowed more money on the house and I been paying the mortgage back. So, I’ve been paying his money that he took from the house extra. So, I need that difference back to me, because I’ve been paying for it all this time. All these years I’ve been paying for it. My house was $465,000. I had to pay the mortgage. I was paying for the $800,000 mortgage.
Q.   So, do you say now that your deal with him did not involve him paying you the balance of the purchase price that was on the contract?
A.   We didn’t talk about the balance whatsoever, myself and Orlando.
Q.   You never said to him - you never said to him that he still owed you the rest of the purchase price, did you?
A.   What I meant by the purchase price, it’s a different. I was paying for mortgage. If you can see when I start paying for the mortgage was $1,300, then I end up paying $15,000 a month for the mortgage, including the car rent and everything. That increased dramatically and that different, I only supposed to pay 1300 for I give my property at that time, not the whole amount for the money he borrowed under that house.
Q.    The conversation that you claim you had with him in November 2002 did not happen, Mr Itawi; what do you say to that?
A.    What do you mean? I didn’t understand what you are trying to say.
Q.   The conversation that you claimed you had with Mr Orlando concerning the Bardwell property in November 2002, never happened?
A.   What do you mean never what happened? Which conversation, sorry?
Q.   I’m saying - I’m suggesting to you it never happened. Do you agree or disagree?
A.   I don’t understand what conversation you’re referring to.
Q.   The conversation that you set out in your affidavit of 27 May 2015 which starts off at page 139 of the court book--
A.   Yeah.
Q.   -- it never happened, Mr Itawi?
A.   It did happen, Mr Frank.”

Within that relatively short series of questions and answers in cross-examination, Ali gave inconsistent evidence about what he understood Orlando meant by the “shortfall” on the transfer of the Bardwell Property that, according to Ali, Orlando agreed he would pay to Ali. Ali initially said that he thought the shortfall was “anything he [Orlando] wants to pay me” and that Ali had no amount in mind and did not understand Orlando to have any amount in mind. A short time later, Ali described the shortfall as the “difference” between amounts that he said he had paid for “the $800,000 mortgage” secured against the Bardwell Property and the repayments for Ali’s “$465,000 mortgage”.
In relation to the second of Ali’s two inconsistent answers, I note that there is no evidence of there being any mortgage secured against the Bardwell Property as at November 2002 other than the $464,000 mortgage securing the loan that Ali had taken out to purchase the property in November 2001, under which $464,310 was owing as at 31 December 2002. Moreover, there is no evidence of any $800,000 loan ever having been secured by mortgage against the Bardwell Property, even after the property was transferred to Orlando in January 2003.^[101]
101. See [79], [107] and [126] below.
The second of Ali’s two inconsistent answers is also inconsistent with Ali’s affidavit affirmed on 10 November 2020 in which he disputed Orlando’s evidence that he (that is, Orlando) had made the mortgage payments for the Bardwell Property only insofar as Orlando claimed to have done so for the period between Ali’s purchase of the property in November 2001 and the transfer of the property to Orlando in January 2003. Ali did not suggest that he (that is, Ali) had paid the mortgage, or any part of the mortgage in the period after the Bardwell Property was transferred to Orlando. In cross-examination the day prior to giving the evidence set out at [96] above, Ali had given the following evidence:

“… Orlando paid after he bought the house, the mortgage. I didn’t have to pay after. Before … Before I paid it, after that I didn’t have to pay. He has to pay.”^[102]
102. T211.10-211.12.

Orlando does not recall asking Ali to go into partnership with him. Indeed, he says that he would not have asked Ali to go into partnership with him because he liked Ali, but did not trust him.^[103]
103. Orlando 8/9/17, paragraph 58; Orlando 18/9/18, paragraph 3(a).
Orlando denied that he had needed to borrow money for the Fonseca businesses in late 2002 and denied the alleged November 2002 agreement. According to Orlando, his dealings with Ali about the Bardwell Property were on the terms referred to [54]-[56] above. He had allowed Ali to live at the Bardwell Property rent-free for many years, but he had never promised to give Ali the property. Orlando acknowledged that he would have said to Ali prior to November 2001 that he would help him to buy the Bardwell Property, but maintained that the way he was to help Ali was as part of the “deal” referred to [54]-[56] above. Orlando specifically denied telling Ali in November 2002 that the Bardwell Property would “still be yours” or that Ali would receive the Bardwell Property back with any mortgage repaid.^[104]
104. Orlando 8/9/17, paragraphs 62-64; T699.6-699.15.
In his 8 September 2017 affidavit, Orlando said that the Bardwell Property was transferred to him in January 2003 because, by that time, he was able to arrange finance to buy the property.^[105] On the same date as the settlement of the sale of the Bardwell Property to Orlando, Joselyn (as settlor) and Orlando (as trustee) entered into a deed establishing a discretionary trust known as the 38 Dowling Street Trust and Orlando signed a resolution as trustee “to acquire/take transfer on behalf of the Trust the property at 38 Dowling Street, Bardwell Valley NSW”.^[106] In his 9 May 2019 affidavit, Ali deposed that Orlando did not tell him about this trust at any time prior to this proceeding, and he did not agree to Orlando holding the Bardwell Property on the terms of this trust.^[107]
105. Orlando 8/9/17, paragraph 43.
106. Orlando 18/9/18, paragraphs 12-13; Exhibit 3, pp 679-702.
107. Ali 9/5/19, paragraph 103.
The contract for sale of the Bardwell Property from Ali to Orlando names Hancock Alldis as the solicitors acting for both vendor and purchaser.^[108]
108. Exhibit 3, p 671.
The purchase price stated in the contract is $808,000.^[109] The purchase price was based on a valuation.^[110]
109. Exhibit 3, p 671.
110. Orlando 8/9/17, paragraph 44; Ali 9/5/19, paragraph 78.
As I have already mentioned, the transaction was settled on 21 January 2003. The contract was stamped with payment of duty in the amount of $31,850 on that date.^[111] On 22 January 2003, Hancock Alldis wrote to Orlando reporting on the settlement the previous day. The letter stated:^[112]
111. Exhibit 3, p 671.
112. Orlando 8/9/17, paragraphs 48-49; Exhibit 3, pp 703-704, 6935.

I reject the defendants’ submission that the plaintiffs should not be permitted to advance these unpleaded contentions. Although I respectfully consider that both contentions are misconceived for the reasons explained immediately below, they emerged from the evidence served prior to trial and adduced at trial that the Orlando discharged the 2001 mortgage on settlement of the 2003 transaction. In making the pleading objection, the defendants identified no prejudice that they would suffer if the plaintiffs were permitted to advance the contentions. In the circumstances of this particular case, to uphold the defendants’ pleading objection would be unjust and would erroneously elevate the pleadings to “an end in themselves” rather than “a means to the ultimate attainment of justice between the parties to litigation”: see Re BBY Limited (Receivers and Managers Appointed) (in liq) and BBY Holdings Pty Ltd (Receivers and Managers Appointed) (in liq) (No 2) [2022] NSWSC 30 at [22]-[27] (Gleeson J) and the authorities there referred to.
I also reject the plaintiffs’ submission that the defendants should not be permitted to rely on s 44 of the Conveyancing Act 1919 (NSW) in response to the “no consideration for Ali’s equity” and/or “false consideration” resulting trust claim. In my opinion, it would be unjust to permit the plaintiffs to advance these iterations of the resulting trust claim, yet deny the defendants the opportunity to rely on a statutory provision that they contend negates any presumption of resulting trust that may arise if the plaintiffs succeed in establishing that a presumption otherwise arises. The plaintiffs’ submissions did not identify any prejudice that they would suffer if the defendant were permitted to rely on s 44, save that they would wish to make some additional submissions about the construction and operation of s 44. As will become apparent below, s 44 is not determinative of the plaintiffs’ claims and I therefore did not consider it necessary for call for such additional submissions from the plaintiffs.
I now turn to the substance of the “no consideration for Ali’s equity” or “false consideration” resulting trust claim.
The “no consideration for Ali’s equity” resulting trust claim fails because consideration was provided for the transfer of the Bardwell Property in that (at least) Orlando paid out the 2001 mortgage. “Ali’s equity” is not something that was transferred, and in respect of which consideration was required, separately from the title to the Bardwell Property. In any event, for the reasons explained at [471]-[496] above, Ali has not established that no consideration was provided for his equity because he has not established that the discharge of the 2001 mortgage was the only consideration moving from Orlando for the transfer of the Bardwell Property.
The “false consideration” resulting trust claim relied on the judgment of Dixon CJ in Wirth v Wirth (1956) 98 CLR 228. The parties in that case were former husband and wife. They had purchased a property in Queensland as joint tenants and, prior to their marriage, the husband had transferred his undivided interest as joint tenant to his future wife for a consideration that was expressed in the transfer as £100. However, his future wife had not paid him that monetary sum. Chief Justice Dixon held that there was no presumption of resulting trust because the transfer was made in contemplation of marriage and a presumption of advancement arose. In the course of his reasons for judgment, the Chief Justice referred to differing opinions about whether the expression of a substantial consideration precludes a resulting trust, and said (at 236-237, my emphasis):

“But it must be remembered that if the consideration expressed was one agreed upon though it was in fact unpaid or unsatisfied, the consequence is not a resulting trust but a lien in favour of the grantor. If on the other hand it is a false consideration, the reason for inserting it will bear directly upon the true character of the transaction and from that it will appear whether or not it was intended to transfer the beneficial interest as well as the legal estate. The present is not a case in which one can be sure that the consideration expressed was a mere sham. It is at least clear that before a presumption of resulting trust can arise upon a transfer expressing a consideration, it must be shown that the expression of the consideration was false and the transfer was intended as a voluntary assurance. I am not prepared to say that the meagre evidence on the subject satisfactorily establishes so much.”

As is clear from that passage, and from subsequent cases in which the courts have considered whether a presumed resulting trust arises from a transfer of property for “false consideration”, the reference to false consideration is a reference to a consideration that is expressed in a contract or transfer notwithstanding that the parties intend that no consideration will move from the transferee and that the transferee will receive the property as a volunteer. When referring to Wirth v Wirth in Calverley v Green (1984) 155 CLR 242, Gibbs CJ described it as a case of a voluntary transfer (at 249). The plaintiffs submissions referred to Re Association for Visual Impairment The Homeless and The Destitute Inc [2014] VSC 183 and Donaghue v Donaghue [2015] QSC 54 as cases in which the “false consideration principle has been applied”.^[622] In the first case, the transfer stated a substantial consideration but there was no intention that any consideration would be paid (and no consideration was in fact paid). In the second case, the Court rejected a “false consideration” resulting trust claim because, although the consideration was falsely stated, there was consideration in the form of the transferees paying out the transferor’s existing mortgage.
622. T962.20-962.35.
In the present case, the consideration of $808,000 was not “false consideration” in the sense referred to by Dixon CJ in Wirth v Wirth. Even assuming in the plaintiffs’ favour that no consideration moved from Orlando other than the payment of the amount owing under the 2001 mortgage, no presumed resulting trust arises.
The conclusion renders it unnecessary to determine whether s 44 of the Conveyancing Act precludes a presumption of resulting trust arising from a voluntary transfer of Torrens title land in New South Wales, as the defendants submitted. Section 44 applies where there is an absence of consideration. There is no absence of consideration in this case. If there had been an absence of consideration, I would have held that no resulting trust was implied from the transfer without consideration by reason of s 44, respectfully adopting the reasons of Hamilton J in Bhana v Bhana [2002] NSWSC 117 and the observations of Barrett J (as his Honour then was) in Singh v Singh [2004] NSWSC 109 at [33]-[36] and Ward J (as her Honour then was) in Drayson v Drayson [2011] NSWSC 965 at [57]-[60], with which I agree.
The fiduciary claim referred to at [374] above fails for the same reasons as the claims referred to at [516]-[518] above have failed.
It follows from the failure of all of these claims that Ali has also failed prove that members of the Fonseca family are liable to him as volunteers on the basis that they benefitted from Orlando’s transfer of the Bardwell Property to Goodman Court Pty Limited: see [375] above. That conclusion does not depend on the merits of the parties’ respective submissions about the terms and effect of the Deed of Release dated 16 June 2014.
In light of those conclusions, I need not address the plaintiffs’ submissions concerning constructive trusts and tracing remedies.

Cleaning Doctor’s claims in relation to the allegedly stolen money

I have considered all of the parties’ extensive written and oral submissions.^[623]
623. The submissions referred to at [438] above and, in addition, the parties’ written submissions received between 4 December 2020 and 18 December 2020 concerning the defendants’ application for leave to amend the defence.
Cleaning Doctor’s contention that it was the legal and beneficial owner of the money in the CD Account is wrong as a matter of law. Money deposited in the CD Account became the property of the bank, which was under an obligation to pay an equivalent sum to Cleaning Doctor on demand and to pay any amount due by the bank to Cleaning Doctor as its customer against the written order of the customer addressed to the bank. Cleaning Doctor’s only property in respect of the CD Account was a chose in action, being the right to recover from the bank on demand a sum equivalent to the amount standing to the credit of the account at any given time. Cleaning Doctor was neither the legal owner nor the beneficial owner of “the money” in the CD Account: Foley v Hill (1848) 2 HL Cas 28 at 36; 9 ER 1002 at 1005; Joachimson v Swiss Bank Corp [1921] 3 KB 110 at 127; Croton v R [1967] HCA 48; (1967) 117 CLR 326 (Croton) at 330-331; R v Parsons [1999] HCA 1; (1999) 195 CLR 619 (Parsons) at [17]; Citigroup Pty Ltd v National Australia Bank Ltd (2012) 82 NSWLR 391; [2012] NSWCA 381 at [41].
Contrary to the plaintiffs’ submissions, the defendants’ pleaded non-admission of Cleaning Doctor’s allegation that it was the legal and beneficial owner of the money in the CD Account does not constitute an admission that Cleaning Doctor was the owner of that money or an admission that the defendants were not the owner of that money. It is simply a non-admission of a proposition that is incorrect as a matter of law. The bank was the owner of the money.
As I have referred to above, the bank’s obligations in respect of the CD Account included an obligation to pay any part of the sum standing to the credit of the account against the written order of Cleaning Doctor addressed to the bank.
A cheque, as defined in s 10 of the Cheques Act, is an unconditional order addressed to a bank by its customer (the drawer of the cheque) requiring the bank to pay the amount specified in the cheque on demand. In order to be an unconditional order, a cheque must indicate a sum certain to be paid. That sum is payable either to the person specified in the cheque as the payee or indorsee or to the bearer of the cheque: Cheques Act, ss 10-24. A cheque does not assign to the holder or bearer any funds that are available in the hands of the bank to honour the cheque: Cheques Act, s 88. Nor does a cheque operate as an assignment to the holder or bearer of the drawer’s chose in action against their bank or any part thereof. Rather, a cheque is a mandate addressed by the drawer to their bank “to effect a pro tanto satisfaction of the indebtedness of the banker to the drawer by honouring the cheque drawn on the banker”: Parsons at [27].
In the present case, there is no dispute that Ali, the sole director of Cleaning Doctor, signed an entire cheque book of blank cheques within one week of the CD Account being opened, a second book in about December 2011 and a third book in about October 2012. According to Westpac records, one cheque book contained 50 cheques. Ali also signed the debit card for the CD Account and left it with Orlando.^[624]
624. See [199], [208]-[209] and [211]-[214] above.
The documents in each cheque book, although signed by Ali as Cleaning Doctor’s sole director,^[625] were not unconditional orders to pay unless and until the sum certain to be paid was completed. By delivering the signed blank documents to Orlando, Ali plainly authorised Orlando to complete the documents so as to create “cheques” within the meaning of the Cheques Act that would operate as an order to pay when presented to the bank. That is the only available inference and Cleaning Doctor did not submit to the contrary. It is the scope of the authority that is in dispute.
625. Corporations Act 2001 (Cth), s 198B.
In those circumstances, each of Cleaning Doctor’s causes of action referred to at [392]-[399] above requires Cleaning Doctor to establish on the balance of probabilities that the scope of that authority did not extend to the completion of each cheque with the amount specified on the cheque made payable to cash, and the withdrawal of those amounts by presentation of the completed cheques. Paragraphs 20 to 22 of the plaintiffs’ pleading correctly reflect that the alleged lack of authority is an element of Cleaning Doctor’s claims.
Whether the completion and presentation of the cheques amounted to “theft” of “the money” in the CD Account turns on whether the defendants acted outside the scope of their authority. The allegation that the money obtained by completing and presenting the cheques was “stolen” is the foundation of Cleaning Doctor’s Black v S Freedman & Co trust claim and its claim for moneys had and received.^[626]
626. Plaintiffs’ closing submissions (25/11/20), paragraphs 140-149.
Cleaning Doctor’s claim in conversion in respect of the cheques requires it to establish that it had an immediate right to possession of the cheques and that Orlando and/or Jeffrey acted in a manner repugnant to that right by presenting each completed cheque to the bank: Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420; [2011] NSWCA 342 at [124] (Allsop P, Giles and Macfarlan JJA agreeing); and see Parsons at [32]-[33] in relation to the availability of a claim in conversion in respect of negotiable instruments such as cheques. Here, the blank instruments signed by Ali as sole director of Cleaning Doctor and delivered to Orlando were not cheques until they were completed and became unconditional orders to pay. In my opinion, whether Cleaning Doctor had an immediate right to possession of each cheque at the time it came into existence turns on the scope of the defendants’ authority to complete the cheques (and present them to the bank) and whether they acted outside that authority in completing each cheque, thereby conferring on Cleaning Doctor a right to possession of the completed cheque.^[627]
627. Plaintiffs’ closing submissions (25/11/20), paragraph 155.
To the extent that Cleaning Doctor’s claim in conversion relates to “notes or coins withdrawn from its bank account”, the claim is misconceived.^[628] As I have already explained, “the money” in the CD Account was not a chattel to which Cleaning Doctor had any right of possession. The credit balance of the account represented a chose in action of Cleaning Doctor against the bank. Nor did Cleaning Doctor have possession, or a right to possession, or any notes or coins that the bank paid to any person presenting a cheque drawn on the CD Account to the bank for payment: Croton at 330-331.
628. Plaintiffs’ closing submissions (25/11/20), paragraphs 150-154.
Cleaning Doctor’s claims for alleged fraud, deceit and misleading or deceptive conduct turn on the proposition that Orlando and Jeffrey knew that they were not authorised to make the withdrawals made by presenting the completed cheques, and that they committed a fraud on the bank or misled the bank as to their authority to make the withdrawals, thereby causing loss to Cleaning Doctor.^[629] Again, the scope of authority conferred on Orlando (and his agents, including Jeffrey) by the delivery of the signed blank cheques (and the signed debit card) is central to the determination of these claims.
629. Plaintiffs’ closing submissions (25/11/20), paragraph 157.
I reject Cleaning Doctor’s submission that its claims must succeed if the defendants fail to establish on the balance of probabilities that they were entitled to withdraw from the CD Account for the purpose of paying workers’ wages, and that the withdrawals were in fact made and the money withdrawn was in fact used for that purpose.^[630] That submission is based on the contention that the defendants' defence was one of authority to make withdrawals for that purpose only. As I have already explained at [403]-[405] above, that misstates the scope of the pleaded defence and the defendants’ evidence. The evidence of Jeffrey and Orlando concerning the payment of workers’ wages occupied much time in cross-examination during the hearing. However, it is clear from the pleadings and the affidavit and oral evidence as a whole that the contentions that they were authorised to and did withdraw money from the CD Account to pay workers’ wages did not constitute the whole of their defence to Cleaning Doctor’s claims. On the contrary, the defendants contend that, by signing and delivering blank cheques for the CD Account together with the signed debit card, Ali was conferred general authority on Orlando and Jeffrey (or on Orlando who, in turn, authorised Jeffrey) to withdraw funds from the CD Account.
630. Plaintiffs’ closing submissions (25/11/20), paragraphs 110-112, 128-129.
Cleaning Doctor contends that Orlando and Jeffrey had authority to make withdrawals from the CD Account only for the purpose of making repayments under the Bardwell Property mortgage. For the following reasons, Cleaning Doctor has failed to establish on the balance of probabilities that the authority conferred on Jeffrey and Orlando by the delivery of the signed blank cheques and the signed debit card was so limited.
First, the only evidence that the payments made by the Fonseca businesses into the CD Account represented Cleaning Doctor’s share of profits from a partnership is the uncorroborated evidence of Ali.^[631] No accounts or tax returns were prepared for either Cleaning Doctor or the alleged partnership. I do not accept Ali’s uncorroborated evidence for the reasons explained at [419]-[423] and [429]-[430] above.
631. See [147]-[154] and [158]-[159] above.
Contrary to the plaintiffs’ submissions, the evidence of Mr Cong Hoang and Mr Raphael Grossman does not establish or support the proposition that the CD Account was the repository for Cleaning Doctor’s share of profits from the alleged partnership. It was submitted on behalf of Cleaning Doctor that this proposition was supported by the evidence of Ali, who estimated that the amount deposited into the CD Account represented approximately 50 per cent of profits of the alleged partnership between Cleaning Doctor and the Fonseca businesses. I reject those submissions. Ali gave evidence of the workbooks in which he recorded the amounts of invoices issued by the Fonseca businesses to Spotless for work at UNSW during the period of the alleged partnership with Cleaning Doctor. However, Ali’s evidence as to the percentage of those invoiced amounts that represented profit for the alleged partnership, and his estimate of the 50 per cent share of profits that he claims Cleaning Doctor was entitled to, did not rise above the level of bare assertion and was admitted into evidence subject to a limiting order under s 136 of the Evidence Act 1995 (NSW).^[632] Mr Hoang is an accountant who performed a calculation of profits based on the invoice amounts in Ali’s workbooks for the period from 2010 to 2015 and assuming a profit margin of 65 per cent. As the defendants submitted, Mr Hoang’s evidence does not assist Cleaning Doctor because his calculation relates to a five year period that extends beyond the three year period in which deposits were made to the CD Account. In addition, as the defendants submitted, Mr Hoang’s calculation assumes a profit margin that the plaintiffs have failed to prove.^[633]
632. Ali (27/5/2015), paragraph 67; Ali (9/5/19), paragraphs 9 to 11.
633. Affidavit of Mr Cong Hoang (10/5/19).
Second, it is inherently improbable that Ali would have signed blank cheques for the CD Account in order to facilitate cash withdrawals from that account by Orlando in order to pay the Bardwell Property mortgage. The signing of blank cheques and handing over of a signed debit card required a high degree of trust in Orlando if he was permitted to withdraw from the CD Account for a limited purpose, as Ali acknowledged in his evidence. Yet Ali’s own evidence is that he did not trust Orlando in September 2009 when he signed the first book full of 50 cheques and handed over the signed debit card for the CD Account without asking any questions about why Orlando required this. It is inherently probable that, if Ali had understood and agreed with Orlando that money from the CD Account would be used to pay the Bardwell Property mortgage from September 2009 onwards, Ali would have made those payments electronically from the CD Account to Orlando’s mortgage account (the details which he would have sought from Orlando) or would have required Orlando to use the online access to make those payments electronically.^[634] That is particularly so in circumstances where Ali’s evidence is that he paid the Bardwell Property mortgage directly from his account in the period before the property was transferred to Orlando.^[635]
634. See [208]-[209] and [211]-[213] above.
635. See [81] above.

Third, it is also inherently implausible that Ali believed that the sum of $36,320 that he withdrew from the CD Account in cash and handed to Jeffrey on 30 September 2009, in denominations as little as $5 and $10, was being withdrawn in order to pay the Bardwell Property mortgage.^[636]
636. See [205]-[207] above.
Fourth, the timing of the establishment of Cleaning Doctor and the opening of the CD Account, and the commencement of substantial payments by the Fonseca family into the CD Account, does not coincide with any relevant change in the capacity in which Ali was involved in cleaning and/or maintenance work at UNSW.^[637]
637. See [271] and [288]-[290] above.
Fifth, whilst there is no evidence of a conversation between Ali and Orlando in which Ali (on behalf of Cleaning Doctor) expressly conferred general or unlimited authority on Orlando to make withdrawals from the CD Account, the objective evidence of Ali’s conduct during the period after the incorporation of Cleaning Doctor and the opening of the CD Account points strongly to the conclusion that Cleaning Doctor did confer such authority on Orlando. I refer, in particular to:

the evidence that Ali permitted the CD Account to be established on terms that Westpac would send statements and other information concerning the account to a post office box and/or fax number that Ali did not operate or control;^[638]
638. See [199] and [272] above.

the evidence that Ali treated the online access to the CD Account as being for the use and benefit of the Fonseca family and not for him as the sole director of Cleaning Doctor;^[639]
639. See [199] above.

the evidence that Ali handed over the signed debit card for the CD Account to Orlando and signed three cheque books full of blank cheques that he gave to Orlando “on trust” at a time when, according to his own evidence, Ali did not trust Orlando;^[640]

the evidence that Ali made no inquiries with Westpac at any time about the balance of the CD Account or transactions on the CD Account. I reject Ali’s explanation that he made no such inquiries because he trusted Orlando, because it is inconsistent with other evidence he has given that he did not trust Orlando;^[641]

the evidence that Ali made no objection to a withdrawal of $10,000 from the CD Account that Ali says he was told would be used “to pay business expenses”^[642];

the evidence that Ali left it to Orlando in October 2012 to attend to the fact that Cleaning Doctor had been deregistered and its property vested in the Commonwealth, and that ASIC had written to Westpac to stop all transactions on the CD Account. In circumstances where Ali’s evidence is that he did not trust Orlando, this conduct is irreconcilable with Ali having any interest in knowing what was happening to monies paid into the CD Account or holding any genuine belief that Cleaning Doctor (and he, as sole shareholder of Cleaning Doctor) stood to benefit from any money standing to the credit of the CD Account;^[643] and

Ali’s evidence that, in April 2015, and in the context of providing information for the purpose of applying for an apprehended violence order against Vilma and Orlando, Ali claimed that Orlando had created Cleaning Doctor fraudulently in Ali’s name. I reject Ali’s evidence that this was not true and that he said it because he was upset. If Ali had been upset by the transfer of the Bardwell Property to Goodman Court and the deregistration of Cleaning Doctor (which he claims he had only recently discovered) and had genuinely believed (as he says he told Mr Cassaniti) that there was a lot of money in the CD Account that belonged to him and his family, it is inherently improbable that he would have ventilated his distress by claiming that Orlando had fraudulently created Cleaning Doctor in Ali’s name. Such a claim is fundamentally inconsistent with Ali’s claim to have been entitled to any money in the CD Account as the sole shareholder of Cleaning Doctor.^[644]
640. See [208]-[214] above.
641. See [272] and [286]-[288] above.
642. See [279] above.
643. See [291] above.
644. See [291] and [356] above.

The evidence does not support a finding that Orlando and Jeffrey made the withdrawals from the CD Account for the purpose of paying workers’ wages, or that the moneys withdrawn were used for that purpose. In particular, if Cleaning Doctor was a subcontractor to Clean & Clear as Orlando and Jeffrey claimed, it is inherently implausible that Clean & Clear would have paid in excess of $1,000,000 to Cleaning Doctor without tax invoices on which Clean & Clear could rely to substantiate claims for tax deductions. The evidence referred to at [229], [242] and [307] above strongly suggests that no such tax invoices were issued. If Cleaning Doctor tax invoices had been amongst the Clean & Clear archived records located at CAP Accounting,^[645] it would have assisted the defendants to obtain those invoices (on subpoena or otherwise) and tender them. They did not do so. The defendants do not suggest that Cleaning Doctor was a subcontractor to any other Fonseca business and there is no evidence that explains payments totalling approximately $1,500,000 that Crew Hire and Link made to Cleaning Doctor in the period from October 2009 to October 2010. The notion that these amounts were paid into the CD Account by Crew Hire, Link and Clean & Clear for the purpose of Orlando and Jeffrey withdrawing cash from the CD Account and handing it to Ali to pay workers may resemble the unorthodox practice adopted by Ali and Orlando prior to September 2009, but it is inherently implausible in circumstances where Orlando claims that Cleaning Doctor was a subcontractor to Clean & Clear in the period after September 2009 and that Ali could not be trusted to pay workers because he had a gambling problem and had failed to pay them in the past.
645. See [311] above.
This is a most unusual case. The parties’ competing claims about the scope of the authority conferred on Orlando and Jeffrey were based on the uncorroborated evidence of Ali on the one hand and Orlando and Jeffrey on the other hand. The evidence of each witness suffers from the difficulties referred to at [414]-[437] above. The defendants’ failure to prove the authority on which they relied for most of the withdrawals and which they claimed in their evidence was expressly conferred on them in conversations between Orlando and Ali does not result in Cleaning Doctor’s claims succeeding. The Court is not constrained to accept either Cleaning Doctor’s evidence or the defendants’ evidence where both parties’ evidence is inherently implausible and the objective evidence referred to at [550] above points to a conclusion that is contrary to both parties’ contentions.
For those reasons, Cleaning Doctor has failed to discharge its onus of proving that the withdrawals from the CD Account were made without the authority of Cleaning Doctor. It follows that all of Cleaning Doctor’s claims fail.
That conclusion does not turn on the application of any presumption under s 18(1) of the Cheques Act.
In my opinion, the defendants’ application for leave to amend^[646] their defence to plead reliance on the presumption in s 18(1) was misconceived. Section 18(1) must be read in the context of section 18 as whole, which provides:

“(1) Where the drawer of an instrument that is signed, but is otherwise wanting in a material particular necessary for the instrument to be, on its face, a complete cheque, delivers the instrument to another person in order that the instrument may be filled up as a complete cheque, any person in possession of the instrument shall be presumed, unless the contrary is proved, to have authority to fill up the instrument as a complete cheque in any way the person sees fit.
(2) Subject to subsection (4), an instrument to which subsection (1) applies is not enforceable against the drawer or a person who becomes an indorser of the instrument before the instrument is filled up as a complete cheque unless the instrument is filled up within a reasonable time and strictly in accordance with the authority given.
(3) Reasonable time, for the purposes of subsection (2), is a question of fact.
(4) An instrument of the kind referred to in subsection (1) that has been filled up as a complete cheque shall, as regards a holder in due course, be conclusively presumed:
(a) to have been delivered to another person in order that the instrument might be filled up as a complete cheque; and
(b) to have been filled up within a reasonable time and strictly in accordance with the authority given.”
646. See [410] above.

By reason of s 18(2), the position as between the drawer of the cheque and the holder of the cheque turns on actual authority, unless the holder is a holder in due course. The evidence does not establish that Orlando or Jeffrey was a holder in due course because the “cheques” were blank save for Ali’s signature when they took possession of them: Cheques Act, s 50.
Even if I am wrong about this and Orlando and Jeffrey are entitled to the statutory presumption under s 18(1), my conclusion has been reached independently of any presumption under s 18(1) and is based on consideration of the evidence adduced by the parties over the three week hearing. As I have explained above, Cleaning Doctor bears the onus of proving that Orlando and Jeffrey lacked authority to make the withdrawals.
The defendants’ proposed amendments were also misconceived insofar as they invoked s 36 and s 71(1)(a) of the Cheques Act. For the reasons I have already explained, the success or failure of Cleaning Doctor’s claims turned on the question of the scope of the defendants’ authority to withdraw money from the CD Account and not on whether Cleaning Doctor received (or is presumed by reason of s 36 to have received) valuable consideration for any authority conferred on the defendants by delivery of the signed blank cheques. Section 71(1)(a) provides that, by drawing the cheque, the drawer undertakes to the holder that the cheque will be paid on presentment. As I have already explained, the signed blank cheques in this case did not become cheques drawn by Cleaning Doctor until they were completed to meet all of the elements of the definition of a cheque in Part II of the Cheques Act. Thus, s 71(1)(a) merely confirms that the central inquiry in this case is the scope of the defendants’ authority to complete the cheques and present them to the bank.
For those reasons, I do not consider that it would be in the interests of justice and consistent with ss 56-58 of the Civil Procedure Act 2005 (NSW) to grant leave for the defendants to amend after the conclusion of the hearing to raise matters that are not relevant to the real issues in dispute between the parties in relation to Cleaning Doctor’s claims. The defendants’ informal application for leave to amend made by email to my Associate on 4 December 2020 is therefore dismissed.
It is not strictly necessary to consider whether, if Cleaning Doctor’s claims had succeeded, Orlando and Jeffrey would have been released from any liability to Cleaning Doctor on the discharge of their bankruptcies on 8 March 2014 and 26 January 2015 (respectively). I would ordinarily be inclined to express a view about that lest my dismissal of Cleaning Doctor’s claims be overturned in any subsequent appeal. However, I do not think it is appropriate to do so in this case because I did not have the benefit of any submissions as to whether any liability of Orlando or Jeffrey under any of the Cleaning Doctor’s claims (if any liability had been found) would be a debt provable in their respective bankruptcies within the meaning of s 82 of the Bankruptcy Act 1966 (Cth). I refer in particular to the provisions of s 82(2) of that Act.^[647]
647. FAD, paragraphs 16-19; T901.20-901.27, 939.27-939.44.

Conclusion and Orders

For all of the foregoing reasons, all of the plaintiffs’ claims fail and the proceedings must be dismissed.
I am not aware of any reason why costs should not follow the event, but I will hear the parties in relation to costs and in elation to any orders in addition to those set out below that any party contends is necessary to finally dispose of the proceedings (including orders relating to previous freezing orders and an money paid into court).
I make the following orders:

Proceedings dismissed.

The costs of the proceedings are reserved to be determined on the papers.

Direct that each party file and serve written submissions in relation to costs and any other order sought consequential of the dismissal of the plaintiffs’ claims for relief by no later than 4pm on 18 March 2022, such submissions not to exceed five pages in length.

Direct any party wishing to respond to any submission filed and served by the other in accordance with order 3 above to file and serve their responsive written submissions not exceeding five pages in length by 1 April 2022.
**********

Endnotes

Amendments

11 March 2022 - Coversheet

15 March 2022 - At [543] amend 'The Cleaning Doctor's defence' to read 'the defendants' defence' pursuant to reg 36.17 of the Uniform Procedure Rules (2005).

Decision last updated: 15 March 2022

Medium Neutral Citation:	The Cleaning Doctor NSW Pty Ltd v Fonseca [2022] NSWSC 253
Hearing dates:	9, 10, 11, 12, 13, 16, 17, 18, 19, 20 and 23 November 2020, 2 and 3 December 2020, with further written submissions received on 4, 10, 11, 16 and 18 December 2020
Date of orders:	11 March 2022
Decision date:	11 March 2022
Jurisdiction:	Equity
Before:	Williams J
Decision:	Proceedings dismissed at [563].
Catchwords:	EQUITY – trusts and trustees – beneficial ownership of real property – express trust – resulting trust – Quistclose trust – where Torrens title land allegedly transferred to be held on trust for transferor and/or for purpose which later failed and/or with no consideration for transferor’s “equity” in the land or for false consideration ESTOPPEL – proprietary estoppel – where first plaintiff transferred property to second defendant allegedly assuming it would be reconveyed to him and claims that property was held in trust for him – whether second defendant is estopped from denying the trust BANKING AND FINANCE – cheque account – whether first plaintiff was the legal and beneficial owner of “the money” standing to the credit of its bank account – where first plaintiff provided defendants with signed blank cheques and signed debit card for first plaintiff’s bank account and online access to that account – scope of the defendants’ authority to withdraw from the account by completing signed blank cheques as payable to cash in specified amounts, by using debit card and by making online transactions – whether the moneys withdrawn were stolen and held on trust for the first plaintiff in the hands of the defendants RESTITUTION – money had and received – whether defendants unjustly enriched by receipt of moneys withdrawn form and allegedly stolen from first plaintiff’s bank account TORTS – alleged conversion by defendants of signed blank cheques for first plaintiff’s bank account – alleged conversion by defendants of notes and coins received from the bank when defendants made withdrawals using signed blank cheques competed by defendants
Legislation Cited:	Australian Consumer Law, s 18 Australian Consumer Law, s 236 Cheques Act 1986 (Cth), ss 3, 10-24, 36, 71, 88 Civil Procedure Act 2005 (NSW), ss 56-58 Conveyancing Act 1919 (NSW), s 44 Corporations Act 2001 (Cth), ss 198B, 601AB Evidence Act 1995 (NSW), s 136 Trade Practices Act 1974 (Cth), s 52 Trade Practices Act, s 82
Cases Cited:	Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 Barnes v Addy (1874) LR 9 Ch App 244 Bhana v Bhana [2002] NSWSC 117 Black v S Freedman & Co (1910) 12 CLR 105 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420 Calverley v Green (1984) 155 CLR 242 Citigroup Pty Ltd v National Australia Bank Ltd (2012) 82 NSWLR 391; [2012] NSWCA 381 Cousens v Grayridge Pty Ltd [2000] VSCA 96 Croton v R [1967] HCA 48; (1967) 117 CLR 326 Donaghue v Donaghue [2015] QSC 54 Drayson v Drayson [2011] NSWSC 965 ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24 Foley v Hill (1848) 2 HL Cas 28; 9 ER 1002 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gas & Fuel Corporation of Victoria v Barba [1976] VR 755 Greer v Kettle [1938] AC 156 Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 Joachimson v Swiss Bank Corp [1921] 3 KB 110 at 127 John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 Peterson v Moloney (1951) 84 CLR 91 R v Parsons [1999] HCA 1; (1999) 195 CLR 619 Radoman Pty Ltd Vexapu Pty Ltd [2008] NSWSC 8 Re Association for Visual Impairment The Homeless and The Destitute Inc [2014] VSC 183 Singh v Singh [2004] NSWSC 109 Watson v Foxman (1995) 49 NSWLR 315 Wirth v Wirth (1956) 98 CLR 228
Category:	Principal judgment
Parties:	The Cleaning Doctor NSW Pty Ltd (ACN 139 483 926) (First Plaintiff) Ali Itawi (Second Plaintiff) Jeffrey Fonseca (First Defendant) Orlando Fonseca (Second Defendant) Vilma Fonseca (Third Defendant) Joselyn Fonseca (Fourth Defendant) 7/49-51 Stanley Street Pty Ltd (Fifth Defendant) 147 Holt Road Pty Ltd (ACN 602 121 404) (Sixth Defendant)
Representation:	Counsel: Mr M Ashhurst SC with Mr Q Rares (Plaintiffs) Mr F P Carnovale (Defendants) Solicitors: McEvoy Legal (Plaintiffs) Antunes Lawyers (Defendants)
File Number(s):	2015/158796
Publication restriction:	N/A