Dabboussi v Akra [2020] NSWDC 364

District Court New South Wales

Medium Neutral Citation: Dabboussi v Akra [2020] NSWDC 364 Hearing dates: 1, 2, 3 July 2020 Date of orders: 15 July 2020 Decision date: 15 July 2020 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Judgment for the plaintiff against the defendant for $554,699.25. (2) Order the defendant to pay the plaintiff's costs. Catchwords: CONTRACT – Joint venture to establish and operate two restaurants – no written agreement – dispute arose concerning the obligations of the parties to meet the establishment and running expenses of restaurant businesses – parties agreed to participate in an Islamic Mediation – oral agreement reached between parties to settle their dispute – conflicting versions of settlement agreement EVIDENCE – evidence concerning conversations forming settlement agreement – corroborative evidence by Imam present when agreement made – failure to call lay person also present when agreement made – quality of and weight to be given to evidence of spoken words Cases Cited: John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 Category: Principal judgment Parties: Ahmad Dabboussi (Plaintiff) Ziad Akra (Defendant) Representation: Counsel: C Robinson (Plaintiff) S Stanton (Defendant)

Solicitors: Cambridge Law (Plaintiff) Future Legal (Defendant) File Number(s): 2018/280258

Judgment

Introduction 1. In 2014 the plaintiff Mr Ahmad Dabboussi and the defendant Mr Ziad Akra entered into a business venture to carry on two restaurants in Liverpool known as "Jasmins" and "Thai Me". The parties incorporated two companies. Zam Zam Functions Pty Limited (ZZ Functions) was to carry on the business of Jasmins and Zam Zam Foods Pty Limited (ZZ Foods) was to carry on the business of Thai Me. Mr Dabboussi and Mr Akra each acquired 50% of the shares in these companies and became directors of the companies. 2. In 2016 a dispute arose concerning the obligations of the parties to meet the establishment and running expenses of Jasmins and Thai Me. 3. Mr Dabboussi and Mr Akra participated in meetings held at the Masjid Al Noor Mosque in South Granville. Three Imams participated in the discussions. A lay person Mr Wissam Chamma was also present for some of the meetings. 4. The plaintiff's claim litigated in these proceedings is that at a final meeting at the mosque, attended by Mr Dabboussi, Mr Akra, Mr Chamma and Sheikh Omar El Banna, an agreement was reached to settle the dispute. I will refer to the Sheikh in this judgment as Sheikh Omar. That is how the parties referred to him, and when the Sheikh gave evidence, he indicated that this was a proper form of address. 5. The plaintiff's version of the agreement set out in par 8 of the Statement of Claim filed on 12 September 2018 is that Mr Akra would pay Mr Dabboussi a total sum of $800,000 made up as follows: 1. Mr Akra would assign to Mr Dabboussi his title and right to repayment of a $200,000 loan which Mr Akra had made to a mosque. 2. Mr Akra would pay $150,000 to Mr Dabboussi by August 2016. 3. Mr Akra would pay Mr Dabboussi $200,000 by November 2016. 4. Mr Akra would pay Mr Dabboussi $250,000 by February 2017. 1. Thus by assignment of the right to receive repayment of the $200,000 loan and three further payments, Mr Dabboussi would be paid the agreed amount of $800,000. 2. Mr Akra accepts that he and Mr Dabboussi entered into an oral agreement in May 2016 in the presence of Sheikh Omar – par 7 of the Defence filed on 27 April 2019. 3. In par 8 of the Defence Mr Akra pleaded that the agreement reached had the following elements: 1. Mr Akra would pay Mr Dabboussi $130,000. 2. Mr Akra would forego his share of the earnings from Thai Me from early 2015 (when Thai Me was opened) to May 2016. 3. Mr Akra would forego his share of earnings from Jasmins from January 2016 to May 2016. 4. Mr Akra would forgive the outstanding debt owed by Mr Dabboussi to Mr Akra for fruit and vegetables supplied by Mr Akra to Jasmins and Thai Me from early 2015 to May 2016. 5. Mr Akra would transfer his shareholdings in ZZ Foods to Mr Daboussi and would resign from his position as director. 6. Mr Daboussi would transfer his shareholdings in ZZ Functions to Mr Akra and would resign from his position as director. 1. In short, there are two conflicting versions of the verbal agreement reached during the final meeting at the mosque, in the presence of Sheikh Omar and Mr Chamma.