Supreme Court New South Wales Medium Neutral Citation: Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd In the matter of Combined Projects (Arncliffe) Pty Ltd [2020] NSWSC 1778 Hearing dates: 11 - 15, 18, 21 - 22, 25 - 29 November 2019, 3 - 6, 9 - 13, 17 - 20 December 2019, 30 January 2020, 5 February 2020 Date of orders: 14 December 2020 Decision date: 14 December 2020 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Order that the parties, by 29 February 2021, bring in short minutes of order to give effect to these reasons, including as to costs, and any brief written submissions dealing with those orders, with a view to those orders being made in chambers, if possible. 2. Order that the parties, if they consider that it is necessary, address in those submissions why it is necessary for the Court to hear oral submissions in relation to the orders referred to in Order 1. Catchwords: PARTNERSHIPS AND JOINT VENTURES — Dissolution — Where panoply of claims and cross-claims — Proust's In Search of Lost Time EQUITY — Equitable fraud — Sham transactions — Bribes EQUITY — Fiduciary duties — Breach RESTITUTION — Nature of restitutionary liability — Availability of restitution — Quantum meruit and quantum valebat BANKING AND FINANCE — Banks — Duties — Duty to adhere to mandate of customer OCCUPATIONS — Solicitors — Professional negligence Legislation Cited: Acts Interpretation Act 1901 (Cth), s 36 Cheques Act 1986 (Cth), ss 3, 32 Civil Liability Act 2002 (NSW), s 35 Civil Procedure Act 2005 (NSW), s 56 Competition and Consumer Act 2010 (Cth), ss 87CD and Sch 2 ss 18, 21, 60, 236 Conveyancing (Powers of Attorney) Amendment Bill 1983 (NSW) Conveyancing Act 1919 (NSW), s 163B Corporations Act 2001 (Cth), ss 9(b), 114, 135, 136, 137, 175, 180, 198C, 198E, 201A, 201M, 231, 233, 237, 247A, 292, 461, 1274A, 1274B, 1317H, 1322 Evidence Act 1995 (NSW), ss 69, 135 Family Provision Act 1982 (NSW), ss 22, 23 Interpretation Act 1987 (NSW), s 33 Limitations Act 1969 (NSW) Partnership Act 1892 (NSW), ss 1, 2, 5, 38 Powers of Attorney Act 1971 (UK), s 10 Powers of Attorney Act 2003 (NSW), ss 7, 8, 9, 10, 11, 12, 13, 38, 43, Sch 2 Property, Stock and Business Agents Act 1941 (NSW) Property, Stock and Business Agents Act 2002 (NSW), ss 36, 55, 55A Property, Stock and Business Agents Regulation 2014 (NSW), reg 8(1)(a) and Sch 7 Trustee Act 1925 (NSW), ss 53, 64, 67 Trustee Act 1925 (UK), s 25 Uniform Civil Procedure Rules 2005 (NSW), rr 12.6(2), 14.14(3), 14.14(4), 15.4(1), 15.4(2) Cases Cited: Abergeldie Contractors Pty Ltd v Fairfield City Council [2017] NSWCA 113 Adrenaline Pty Ltd v Bathurst Regional Council (2015) 97 NSWLR 207; [2015] NSWCA 123 Aequitas Ltd v Sparad No 100 Ltd (formerly Australian European Finance Corp Ltd) [2001] NSWSC 14 AGC (Advances) Ltd v West (1984) 5 NSWLR 590 Aged Care Services Pty Ltd v Macedonian Aged Case & Accommodation Ltd [2012] NSWSC 531 Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353 Al-Atabi v Zaidi [2009] NSWCA 433 Alati v Kruger (1955) 94 CLR 216; [1955] HCA 64 Alghussein Establishment v Eton College [1991] 1 All ER 267; [1988] 1 WLR 587 Allen v Tobias (1958) 98 CLR 367; [1958] HCA 13 Allpro Building Services Pty Ltd v C&V Engineering Services Pty Ltd [2009] NSWSC 127 Alonso v SRS Investments (WA) Pty Ltd [2012] WASC 168 Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd (2018) 265 CLR 1; [2018] HCA 43 Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205; [2012] HCA 30 Angelina Spina v Permanent Custodians Ltd [2008] NSWSC 561 Anthony v Morton [2018] NSWSC 1884 ANZ v Widin (1990) 26 FCR 21; [1990] FCA 674 APX Projects Pty Ltd v The Owners – Strata Plan No 64025 [2015] NSWSC 1250 Arab Bank Australia Ltd v Sayde Developments Pty Ltd (2016) 93 NSWLR 231; [2016] NSWCA 328 Ardern v Bank of New South Wales [1956] VLR 569 Associated Midland Corporation Ltd v Bank of New South Wales (1983) 1 NSWLR 533 Attorney General for HK v Reid [2994] 1 AC 324 Attorney Generals Reference (No 1 of 1985) [1986] QB 491 Attorney-General v Scott (1750) 1 Ves Sen 413; 27 ER 1113 Austotel Pty Ltd v Franklins Self-Serve Pty Ltd (1989) 16 NSWLR 582 Australasian Brokerage Ltd v Australian and New Zealand Banking Corporation Ltd (1934) 52 CLR 430; [1934] HCA 34 Australia and New Zealand Banking Group Ltd v Frenmast Pty Ltd [2013] NSWCA 459 Australia and New Zealand Banking Group Ltd v Hunter BNZ Finance Ltd [1991] 2 VR 407 Australia Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd; Guan v Linfield Developments Pty Ltd (2017) 18 BPR, 36; [2017] NSWCA 99 Australian Broadcasting Commission v Australasian Performing Right Association Ltd Association (1973) 129 CLR 99; [1973] HCA 36 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293; [2010] FCA 784 Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119 Australian Financial Services and Leasing Pty Ltd (ACN 105 657 681) v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14 Australian Guarantee Corporation Ltd v Balding (1930) 43 CLR 140 140; [1930] HCA 10 Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1; [2019] HCA 18 Awad v Australian Sales & Leasing Pty Ltd [2018] VSC 627 Bagnall v Carlton (1877) 6 Ch D 371 Baker v Palm Bay Island Resort Pty Ltd (No 2) [1970] Qd R 210 Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 Balog v Independent Commission Against Corruption (1990) 169 CLR 625; [1990] HCA 28 Baltic Shipping Co v Dillon (1993) 176 CLR 344; [1993] HCA 4 Barescape Pty Ltd v Bacchus Holdings Pty Ltd [2012] NSWSC 984 Barker v Harrison (1846) 2 Coll 546 Barnes v Addy (1874) LR 9 Ch App 244; 22 WR 505 Bartram & Sons Ltd (1904) 90 LT 357 Baulderstone Hornibrook Pty Ltd v Queensland Investment Corp [2006] NSWSC 522 BB Australia Pty Ltd v Danset Pty Ltd [2018] NSWCA 101 Belfield v Belfield (2012) 83 NSWLR 189; (2012) 16 BPR 31,177 Betts v Conolly (1970) 120 CLR 417; [1970] HCA 18 Bhullar v Bhullar [2003] 2 BCLC 241 Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060 Blatch v Archer (1774) 1 Cowp 63 Blendell v Byrne; The Estate of Noeline Joan Blendell [2019] NSWSC 583 Boardman v Phipps [1965] Ch 992 Boardman v Phipps [1967] 2 AC 46 Boensch v Pascoe [2019] HCA 49; (2019) 375 ALR 15 Boston Deep Sea Fishing and Ice Co v Ansell (1888) 39 Ch D 339 Bowes v City of Toronto (1858) 11 Moo PC 463 Boyd & Forrest v Glasgow and South-Western Railway Co 1915 SC (HL) 20 BP Exploration Co (Libya) Ltd v Hunt (No 2) [1979] 1 WLR 783 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Bradley v Matloob [2015] NSWCA 239 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 Brewarrina Shire Council v Beckhaus Civil Pty Ltd (2003) 56 NSWLR 576; [2003] NSWCA 4 Brick and Pipe Industries Ltd v Occidental Life Nominees Pty Ltd [1992] 2 VR 279 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bristol and West Building Society v Mathew [1998] Ch 1 Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410 Brockway v Pando [2000] WASCA 192 Brogden v Metropolitan Railway Co (1876-77) 2 App Cas 666 Brott v The Queen (1992) 173 CLR 426; [1992] HCA 5 Brown v Tavern Operator Pty Ltd (2018) 98 NSWLR 586; [2018] NSWSC 1290 Browne v Dunn (1894) 6 R 67 Buckby v Speed [1959] Qd R 30 Burdick v Garrick (1870) LR 5 Ch App 233 Burns v McFarlane (1940) 64 CLR 108; [1940] HCA 25 Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26 Cambridge Gulf Holdings NL v CLC Corporation (Full Court of the Federal Court of Australia, 28 August 1998, unrep) Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321; [1974] HCA 22 Cappe v Tsung [2018] NSWCA 86 Carbone as Trustee for the S & N Carbone Family Trust v Mills [2019] NSWCA 15 Caringbah Investments Pty Ltd v Caringbah Business and Sports Club Ltd (in liq) [2016] NSWCA 165 Case) Cavendish Square Holding BV v El Makdessi [2016] AC 1172; [2015] UKSC 67 CH Real Estate Pty Ltd v Jainran Pty Ltd [2010] NSWCA 37 Chan v Zacharia (1984) 154 CLR 178; [1984] HCA 36 Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101 Chen v Gu; Chen v Nguyen [2011] NSWSC 1622 City Bank of Sydney v McLaughlin (1909) 9 CLR 615; [1909] HCA 78 Clarey v Permanent Trustee Co Ltd [2005] VSCA 128 Collins v O'Reilly (1940) 41 SR (NSW) 281 Commerce Consolidated Pty Ltd v Johnstone [1976] VR 724 Commercial and General Acceptance Ltd v Nixon (1981) 152 CLR 491 at 520; [1981] HCA 70 Commercial Union Insurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Commonwealth Bank of Australia v Muirhead [1997] 1 Qd R 567 Commonwealth Trading Bank v Sydney Wide Stores Pty Ltd (1981) 148 CLR 304; [1981] HCA 43 Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39 Con-stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226; [1986] HCA 14 Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373; [1975] HCA 8 Cook v Deeks [1916] 1 AC 554 Cory Brothers & Company v Owners of Turkish Steamship 'Mecca' [1897] AC 286 Crantrave Ltd v Lloyd's Bank Plc [2000] QB 917 Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 Danby v Coutts & Co (1885) 29 Ch D 500 Daraydan Holdings Ltd v Solland International Ltd [2005] Ch 119 David Securities Pty Ltd v Commonwealth Bank of Australia (1990) 23 FCR; [1990] FCA 186 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353, [1992] HCA 48 Day v Couch [2000] NSWSC 230 De Bussche v Alt (1878) 8 Ch D 286 Deeley v Lloyds Bank Ltd [1912] AC 756 Dickinson v NAL Realisations (Staffordshire) Ltd [2019] EWCA Civ 2146 Dimitrovski v Australian Executor Trustees Ltd [2014] NSWCA 68 Diplock v Blackburn (1811) 3 Camp 43 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 Doyle v Blake (1804) 2 Sch & Lef 231 DPC Estates Pty Ltd v Grey [1974] 1 NSWLR 443 E Co v Q [2018] NSWSC 442 Eden v Ridsdale's Railway Lamp & Lighting Co (1889) 23 QBD 368 Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599 EIC Services Ltd v Phipps [2003] EWHC 1507 (Ch); [2004] 2 BCLC 589 Electric Life Pty Ltd v Unison Finance Group Pty Ltd [2015] NSWCA 394 Electric Life Pty Ltd v Unison Finance Group Pty Ltd [2015] NSWCA 394 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Elias v George Sahely & Co (Barbados) Ltd [1982] UKPC 31 Emanuel Management Pty Ltd v Foster's Brewing Group Ltd [2003] QSC 2015 Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50 Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 Ex parte Belchier (1754) Amb 218; 27 ER 144 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 Falcke v Scottish Imperial Insurance Co (1886) 34 Ch D 234 Falk v Haugh 53 CLR 163; [1935] HCA 35 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 98; [2007] HCA 22 Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678; [2004] NSWCA 140 Fawcett v Whitehouse (1829) 1 Russ & M 132 9 FHR European Ventures LLP v Cedar Capital Partners LLC; sub nom FHR European Ventures LLP v Mankarious) [2015] AC 250; [2014] UKSC 45 Film Bars Pty Ltd v Pacific Film Investments Pty Ltd (1979) 1 BPR 9251 Fitzgerald v Masters (1956) 95 CLR 420; [1956] HCA 53 Fouche v The Superannuation Fund Board (1952) 88 CLR 609; [1952] HCA 1 Fox v Percy (2003) 214 CLR 188; [2003] HCA 22 Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 Fried v National Australia Bank (2001) 111 FCR 322 Fry v Tapson (1884) 28 Ch D 268 Furs Ltd v Tomkies (1936) 54 CLR 583; [1936] HCA 3 Fyffes Group Ltd v Templeman [2000] 2 Lloyds Rep 643 Galaxidis v CBFC Leasing [2005] NSWCA 347 General Reinsurance Australia Ltd v HIH Casualty & General Insurance Ltd [2009] NSWCA 22 Globe Church Inc v Allianz Australia Insurance Ltd (2019) 99 NSWLR 470; [2019] NSWCA 27 Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd [2016] NSWCA 224 Gore v Montague Mining Pty Ltd [2000] FCA 1214 Grant v Gold Exploration and Development Syndicate Ltd [1900] 1 QB 233 Grant v John Grant & Sons Pty Ltd (1950) 82 CLR 1; [1950] HCA 54 Greenwood v Martins Bank Ltd [1932] 1 KB 371 Grimaldi v Chameleon Mining (No 2) (2012) 200 FCR 296; [2012] FCAFC 6 Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 357; (1999) 43 IPR 545 Harkness v Partnership Pacific Ltd (1997) 41 NSWLR 204 Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298; 2003] NSWCA 10 Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549 Hexiva Pty Ltd v Lederer [2006] NSWSC 318 Hoath v Connect Internet Services Pty Ltd [2006] NSWSC 158; (2006) 229 ALR 566 Hodgson v Amcor; Amcor v Barnes [2012] VSC 94 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64 Hovenden v Millhoff (1900) 83 LT 41; [1900-3] All ER Rep 848 Hunter BNZ Finance v C G Maloney Pty Ltd (1988) 18 NSWLR 420 Hyder Constulting (Australia) Pty Ltd v Wilk Wilhelmson Agency Pty Ltd [2001] NSWCA 313 In re Caerphilly Colliery Co (1877) 5 Ch D 336 In re Cleadon Trust Ltd [1939] Ch 286 In re Maidstone Palace of Varieties Ltd; Blair v Maidstone Palace of Varieties Ltd [1909] 2 Ch 283; [1908–10] All ER Rep 678 In re Metropolitan Amalgamated Estates Ltd; Fairweather v the Company [1912] 2 Ch 497 In re Morvah Consols Tin Mining Co (1875) 2 Ch D 1 (McKay's Case) In re North Australian Territory Co [1892] 1 Ch 322 (Archer's Case) In re Western of Canada Oil, Lands and Works Co (1875) 1 Ch D 115 (Carling, Hespeler, and Walsh's Cases) In the matter of Combined Projects (Arncliffe) Pty Ltd [2019] NSWSC 1070 In the matter of Combined Projects (Arncliffe) Pty Ltd [2019] NSWSC 1082 In the matter of Indoor Climate Technologies Pty Ltd [2019] NSWSC 356 In the matter of Macquarie Americas Holdings Pty Ltd [2015] NSWSC 2073 In the matter of Matlic Pty Ltd (in liq) [2014] NSWSC 1342 In the matter of Mosman & Co Pty Ltd [2019] NSWSC 1155 In the matter of Whitsunday Clean Sands Pty Ltd [2017] NSWSC 1199 Indeco Pacific Pty Ltd v Geneva Investments Pty Ltd [2012] VSC 621 Industries & General Mortgage Company Ltd v Lewis [1949] 2 All ER 573 Investmentsource Corp Pty Ltd v Knox Street Apartments Pty Ltd (2002) 56 NSWLR 27; [2002] NSWSC 710 Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 Isis v Clarence [2004] NSWSC 73 Jackson v White and Midland Bank Ltd [1967] 2 Lloyd's Rep 68 Jacobs v Morris [1902] 1 Ch 816 Janssen Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526 Jennings Construction Ltd v QH & M Birt Pty Ltd (1986) 8 NSWLR 18 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Jones v Southall & Bourke Pty Ltd [2004] FCA 539 Junker v Hepburn [2010] NSWSC 88 Kakavas v Crown Melbourne (2013) 250 CLR 392; [2013] HCA 25 Karak Rubber Co Ltd v Burden (No 2) [1972]; 1 WLR 602; 1 All ER 1230 Katwell Pty Ltd v National Australia Bank Ltd [2012] NSWSC 513 Keech v Sandford (1726) Sel Cas Ch 61 Keogh v Dalgety & Company Ltd (1916) 22 CLR 402; [1916] HCA 69 Kilbee v Sneyd (1828) 2 Mol 186 Kinsela v Russell Kinsela Pty Ltd (in liq) (1986) 4 NSWLR 722 Kocic v Deputy Commissioner of Taxation [2011] NSWCA 322 Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; [1995] HCA 68 Kreditbank Cassel GmbH v Schenkers Ltd [1927] 1 KB 826; [1927] All ER Rep 421 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Laidlaw v Hillier Hewitt Eisley Pty Ltd [2009] NSWCA 44 Langford v Gascoyne (1805) 11 Ves 333; 32 ER 1116 Laurelmont Pty Ltd v Stockdale & Leggo (Queensland) Pty Ltd [2001] QCA 212 Lewis v Condon (2013) 85 NSWLR 99; [2013] NSWCA 204 Liebe v Molloy (1906) 4 CLR 347; [1906] HCA 67 Liggett (B) Liverpool Ltd v Barclays Bank Ltd [1928] 1 KB 48 Lister & Co v Stubbs (1890) 45 Ch D 1 Logicrose Ltd v Southend United FC [1988] 1 WLR 1256 London International Trust Ltd v Barclays Bank Ltd [1980] 1 Lloyd's Rep 241 Lucas Earthmovers Pty Ltd v Anglogold Ashanti Australia Ltd [2019] FCA 1049 Lumbers v W Cook Builders Pty Ltd (In liq) (2008) 232 CLR 635; [2008] HCA 27 Lysaght Bros & Co Ltd v Falk 2 CLR 421; [1905] HCA 7 MacDonald Dickens & Macklin (a firm) v Costello [2012] QB 244 Maddocks v DJE Constructions Pty Ltd (1982) 148 CLR 104; [1982] HCA 17 Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181; [2001] HCA 70 Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633 Majesty Restaurant Pty Ltd (In liq) v Commonwealth Bank of Australia (1998) 47 NSWLR 593 Manks v Whiteley [1912] 1 Ch 735 Mann v Paterson Constructions Pty Ltd [2019] HCA 32 Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336; [1973] HCA 23 Massey v Wales (2003) 57 NSWLR 718 Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579; [2000] HCA 65 McCarthy v McIntyre [1999] FCA 784 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457; [1933] HCA 25 McLean v Discount & Finance Ltd (1939) 64 CLR 312; [1939] HCA 38 McRae v Coulton (1986) 7 NSWLR 7 644 McVeigh v National Australia Bank Ltd [2000] FCA 187; (2000) 278 ALR 429 Metro-Goldwyn-Mayer Pty Ltd v Greenham [1966] 2 NSWR 717 Metropolitan Bank v Heiron (1880) 5 Ex D 319 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Miller Heiman Pty Ltd v Sales Principles Pty Ltd (2017) 94 NSWLR 500 Minister for Lands and Forests (NSW) v McPherson (1991) 22 NSWLR 683 Mita Copiers Australia Pty Ltd v Condor OA Pty Ltd (Supreme Court (NSW), Hunter J, 10 October 1994, unrep) Moratic v Gordon (2007) 13 BPR 24,213; [2007] NSWSC 5 Morison v Thompson (1874) LR 9 QBD 480 Moses v Macferlan (1760) 2 Bur 1005 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Nant-y-glo and Blaina Ironworks Co v Grave (1878) 12 Ch D 738 National Australia Bank v Dionys atf the Angel Family Trust [2016] NSWCA 242 National Australia Bank v Hokit Pty Ltd (1996) 39 NSWLR 377 National Commercial Banking Corporation of Australia Ltd v Batty (1986) 160 CLR 251; [1986] HCA 21 Nielsen v Capital Finance Australia Ltd [2014] QCA 139 Nominal Defendant v Gabriel (2007) 71 NSWLR 150; [2007] NSWCA 52 North v Walthamstow Urban Council (1898) 67 LJ QB 972 O'Donnell v Reichard [1975] VR 916 O'Halloran v R T Thomas & Family Pty Ltd (1998) 45 NSWLR 262 O3 Capital Pty Ltd v WY Properties Pty Ltd [2016] WASCA 82 Old v McInnes and Hodgkinson [2011] NSWCA 410 Oneflare Pty Ltd v Chernih [2017] NSWCA 195 Orr v Ford (1989) 167 CLR 316; [1989] HCA 4 Orr v Slender (2005) 64 NSWLR 671; [2005] NSWSC 1175 Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305; (2004) Aust Contract R 90-181 Ovidio Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd (2006) V ConvR 54-713; [2006] VSCA 6 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525; [2016] HCA 28 Paciocco v Australia and New Zealand Banking Group Ltd [2014] FCA 35 Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50 Panama and South Pacific Telegraph Co v India Rubber, Gutta Percha and Telegraph Works Co (1875) LR 10 Ch App 515 Parker v McKenna (1874) LR 10 Ch App 96 Parr's Banking Co Ltd v Yates [1898] 2 QB 460 Pascali v Carr [2019] NSWCA 151 Patsalis v New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5 Payne v Parker [1976] 1 NSWLR 191 Peninsula and Oriental Steam Navigation Co v Johnson (1938) 60 CLR 189; [1938] HCA 16 Peninsula Balmain Pty Ltd v Abigroup Contractors Pty Ltd [2002] NSWCA 211 Peninsula Gold Pty Ltd v Sunbeam Victa Holdings Ltd (1996) 20 ACSR 553 Perini Corporation v Commonwealth of Australia (Redfern Mail Exchange Case) [1969] 2 NSWR 530 Permanent Trustee Australia Company Ltd v FAI General Insurance Company Ltd (2001) 50 NSWLR 679 Perochinsky v Kirschne [2013] NSWSC 400; 16 BPR 31,481 Peter's of Kensington Pty Ltd v Seersucker Pty Ltd [2008] NSWSC 897 Petersen v Moloney (1951) 84 CLR 91; [1951] HCA 57 Phipps v Boardman [1964] 1 WLR 993 Phipps v Boardman [1965] Ch 992 Pianta v National Finance and Trustees Ltd (1964) 180 CLR 146 at 152; [1964] HCA 61 Pitcher v Langford (1991) 23 NSWLR 142 Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 Powell & Thomas v Evan Jones & Co [1905] 1 KB 11 Priestley v Priestley [2016] NSWSC 1096 Priestley v Priestley [2017] NSWCA 155 R v Bishop of Salisbury [1901] 1 QB 573 R v Lavender (2005) 222 CLR 67; [2005] HCA 37 Randfield v Randfield (1860) 1 Dr & Sm 310; 62 ER 398 Re Bradford Roofing Industries Pty Ltd (in liq) & Companies Act [1966] 1 NSWR 674 Re Brentwood Brick and Coal Co [1876] 4 Ch D 562 Re Brier (1884) 26 Ch D 238 Re Cambridge Credit Corporation Ltd (Receiver Appointed) (1991) 6 BPR 13,894 Re Duomatic Ltd [1969] 2 Ch 365 Re Estate of Evans [2010] SASC 193 Re Gasbourne Pty Ltd [1984] VR 801 Re Hetling and Merton's Contract [1893] 3 Ch 269 Re Hodgson (1886) 31 Ch D 177; [1881-85] All ER Rep 931 Re Hunter Resources Ltd (1992) 34 FCR 418 Re Meyer Douglas Pty Ltd [1965] VR 638 Re National Safety Council of Australia (in liq); Elders Finance Group Ltd v Perrins (1992) 10 ACSR 101 Re Rectron Electronics Pty Ltd [2013] VSC 384 Realtek Pty Ltd v Wetamast Pty Ltd [2019] NSWSC 1869 Rebenta Pty Ltd v Wise [2009] NSWCA 212 Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134 Retail Employees Superannuation Pty Ltd v Pain (2016) 115 ACSR 1 RHG Mortgage Ltd v Rosario Ianni [2015] NSWCA 56 Robertson v Grigg (1932) 47 CLR 257; [1932] HCA 29 Robinson v Campbell (No 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Cross on Evidence (8th ed, 2010, LexisNexis) Heydon, J D, Heydon on Contract (2019, Lawbook Co) Jones, G, "Delegation by Trustees: A Reappraisal" (1959) 22 Modern Law Review 381 Law Commission, Powers of Attorney: Report on a Reference under Section 3(1)(e) of the Law Commissions Act 1965 (September 1970, Cmnd 4473) Law Reform Commission of New South Wales, Powers of Attorney (1974, LRC 18) Law Reform Commission of New South Wales, Working Paper 10 Powers of Attorney (1973) Lehane, J, "Fiduciaries in a Commercial Context" in P D Finn (ed), Essays in Equity (1985, Lawbook Co) Mason, K, J W Carter and G J Tolhurst, Restitution Law in Australia (2nd ed, 2008, LexisNexis) Meagher, R P, and W M C Gummow, Jacobs' Law of Trusts in Australia (4th ed, 1977, LexisNexis) Meagher, R P, J D Heydon, and MJ Leeming, Meagher, Gummow and Lehane (4th ed, 2002, LexisNexis) Millett, P, "Bribes and Secret Commissions" (2012) 71 Cambridge Law Journal 583 Paget, J, and M Hapgood, Paget's Law of Banking (12th ed, 2002, LexisNexis) Smith, L, "Constructive Trusts and the No Profit Rule" (2013) 72 Cambridge Law Journal 260 Swadling, W, "Constructive Trusts and Breach of Fiduciary Duty" (2012) 18 Trusts and Trustees 985 Tyler, E P Young and C Croft, Fisher & Lightwood's Law of Mortgage (3rd ed, 2013, LexisNexis) Watts, P, "Tyrrell v Bank of London: an Inside Look at an Inside Job" (2013) 129 Law Quarterly Review 527 Watts, P, and F M B Reynolds, Bowstead and Reynolds on Agency (18th ed, 2010, Sweet & Maxwell) Worthington, S, "Fiduciary Duties and Proprietary Remedies: Addressing the Failure of Equitable Formulae" (2013) 72 Cambridge Law Journal 720 Category: Principal judgment Parties: Broadway Proceedings 2016/00282940 Broadway Plaza Investments Pty Ltd (Plaintiff/First Cross-Defendant to First Cross-Claim/Cross-Defendant to Second Cross-Claim/First Cross-Defendant to Fifth Cross-Claim/First Cross-Defendant to Sixth Cross-Claim/Second Cross-Defendant to Seventh Cross-Claim/First Cross-Claimant to Eighth Cross-Claim) Broadway Plaza Pty Ltd (Defendant/Cross-Claimant to First, Second and Fifth Cross-Claims/Cross-Defendant to Third Cross-Claim/Second Cross-Defendant to Sixth Cross-Claim/First Cross-Defendant to Eighth and Ninth Cross-Claims) Commonwealth Bank of Australia (Second Cross-Defendant to First Cross-Claim/Second Cross-Defendant to Fifth Cross-Claim/Cross-Claimant to Seventh Cross-Claim/Third Cross-Defendant to Eighth Cross-Claim) HWL Ebsworth (First Cross-Defendant to Fourth Cross-Claim) Fouad Deiri (Third Cross-Defendant to Fifth Cross-Claim/First Cross-Defendant to Seventh Cross-Claim/Second Cross-Claimant to Eighth Cross-Claim) Deiri Nominees Pty Ltd (Fourth Cross Defendant to Fifth Cross-Claim/Fourth Cross-Defendant to Seventh Cross-Claim/Cross-Claimant to Ninth Cross-Claim) Combined Projects (Gibbons) Pty Ltd (Fifth Cross-Defendant to Fifth Cross-Claim; Fifth Cross-Defendant to Seventh Cross-Claim) Combined Property Investments Pty Ltd (Sixth Cross-Defendant to Fifth Cross-Claim; Sixth Cross-Defendant to Seventh Cross-Claim) Combined Projects (Redfern) Pty Ltd (Seventh Cross-Defendant to Fifth Cross-Claim; Seventh Cross-Defendant to Seventh Cross-Claim) Combined Projects Holdings Pty Ltd (Eighth Cross-Defendant to Fifth Cross-Claim/Eighth Cross-Defendant to Seventh Cross-Claim) Matthews Street Pty Ltd (Ninth Cross-Defendant to Fifth Cross-Claim/Second Cross-Defendant to Ninth Cross-Claim) Deicorp Pty Ltd (Tenth Cross-Defendant to Fifth Cross-Claim; Cross-Claimant to Sixth Cross-Claim; Third Cross-Defendant to Seventh Cross-Claim) Combined Projects (Arncliffe) Pty Ltd (Eleventh Cross-Defendant to Fifth Cross-Claim; Ninth Cross-Defendant to Seventh Cross-Claim) Moustafa Sayour (Second Cross-Defendant to Eighth Cross-Claim) Arncliffe Proceedings 2017/00180712 Sayour Holdings Pty Ltd atf Sayour 2 Family Trust (Plaintiff; First Cross-Defendant to Third Cross-Claim) Combined Projects (Arncliffe) Pty Ltd (First Defendant/Cross-Claimant to First Cross-Claim; Fourth Cross-Defendant to Third Cross-Claim) Deiri Nominees Pty Ltd (Second Defendant/Second Cross-Defendant to First Cross-Claim; Cross-Claimants to Third Cross-Claim) Fouad Deiri (Third Defendant/First Cross-Defendant to First Cross-Claim; Second Cross-Claimant to Third Cross-Claim) Konstructions Pty Ltd (Third Cross-Defendant to First Cross-Claim) Moustafa Sayour (Second Cross-Defendant to Third Cross-Claim) Zapphire Investments Pty Ltd (Fourth Cross-defendant to First Cross-Claim) Deicorp Properties Pty Ltd (Fifth Defendant to First Cross-Claim) Deicorp Constructions Pty Ltd (Sixth Cross-defendant to First Cross-Claim/Cross-claimant to Second Cross-Claim) Yesmine Sayour (Third Cross-Defendant to Third Cross-Claim) Representation: Counsel: Broadway Plaza proceedings 2016/00282940 NC Hutley SC with CN Bova SC, B Michael and D Reynolds (Plaintiff/First Cross-Defendant to First Cross-Claim/Cross-Defendant to Second Cross-Claim/First, Third and Fourth Cross-Defendants to Fifth Cross-Claim/First Cross-Defendant to Sixth Cross-Claim/Second Cross-Defendant to Seventh Cross-Claim/First Cross-Claimant to Eighth Cross-Claim) D Smallbone with JP Gatland (Defendant/Cross-Claimant to First, Second and Fifth Cross-Claims/Cross-Defendant to Third Cross-Claim/Second Cross-Defendant to Eighth Cross-Claim) MLD Einfeld QC with P Jammy (Second Cross-Defendant to First Cross-Claim/Second Cross-Defendant to Fifth Cross-Claim/Cross-Claimant to Seventh Cross-Claim/Third Cross-Defendant to Eighth Cross-Claim) TM Faulkner SC (First Cross-Defendant to Fourth Cross-Claim) V Bedrossian with A Smith (Fifth to Eighth and Tenth to Eleventh Cross-Defendants to Fifth Cross-Claim) Arncliffe proceedings 2017/00180712 D Smallbone with J Wheeldon (Plaintiff and First Cross-Claimant to First Cross/Claim and Cross-Claimant to Second Cross-Claim/Second and Third Cross-Defendants to Third Cross-Claim) V Bedrossian with A Smith (First Defendant and Fifth and Sixth Cross-Defendants to First Cross-Claim) NC Hutley SC with CN Bova SC, B Michael and D Reynolds (Second and Third Defendants; First and Second Cross-Defendants to First Cross-Claim; Cross-Claimants to Third Cross-Claim) J Morris SC (Third Cross-Defendant to First Cross-Claim) H Woods (Fourth Cross-defendant to First Cross-Claim) Solicitors: Broadway Plaza proceedings 2016/00282940 Cornwalls (Plaintiff/First Cross-Defendant to First Cross-Claim/Cross-Defendant to Second Cross-Claim/First Cross-Defendant to Fifth Cross-Claim/First Cross-Defendant to Sixth Cross-Claim/Second Cross-Defendant to Seventh Cross-Claim/First Cross-Claimant to Eighth Cross-Claim) Adams Lawyers (Defendant/Cross-Claimant to First, Second and Fifth Cross-Claims/Cross-Defendant to Third Cross-Claim/Second Cross-Defendant to Eighth Cross-Claim) HWL Ebsworth (Second Cross-Defendant to First Cross-Claim/Second Cross-Defendant to Fifth Cross-Claim) Russells Sydney Partners (Fourth Cross-Defendant to Fifth Cross-Claim) Kreisson Legal Pty Ltd (Fifth, Sixth, Seventh, Eighth, Tenth and Eleventh Cross-Defendants to Fifth Cross- Claim) Arncliffe proceedings 2017/0018072 Adams Lawyers (Plaintiff and Cross-Claimant to First Cross-Claim) Cornwalls (Second and Third Defendants/First and Second Cross-Defendants to First Cross-Claim/Cross Claimants to Third Cross-Claim) Jordan Djundja Lawyers (Third Cross-Defendant to First Cross-Claim) Hajje Solicitors (Fourth Cross-Defendant to First Cross-Claim) Construction Legal Pty Ltd (Fifth Cross-Defendant to First Cross-Claim) Kreisson Legal Pty Ltd (Sixth Cross-Defendant to Fifth Cross-Claim) File Number(s): 2016/00282940; 2017/00180712 Publication restriction: Nil INDEX JUDGMENT – WARD CJ IN EQ [1] Background [4] Broadway Proceedings [7] Investments and related entities [9] Plaza, Sayour Investments and related entities [12] Broadway Partnership and brief background [13] Cross-claims in the Broadway Proceedings [46] First Broadway Cross-Claim [47] Second Broadway Cross-Claim [53] Third Broadway Cross-Claim [56] Fourth Broadway Cross-Claim [58] Fifth Broadway Cross-Claim [60] Sixth Broadway Cross-Claim [65] Seventh Broadway Cross-Claim [66] Eighth Broadway Cross-Claim [69] Ninth Broadway Cross-Claim [71] Arncliffe Proceedings [72] Arncliffe Development and brief background [73] Cross-claims in the Arncliffe Proceedings [79] First Arncliffe Cross-Claim [80] Second Arncliffe Cross-Claim [82] Third Arncliffe Cross=Claim [83] Chronology of events [91] Plaza's incorporation [92] Sayour Family Trust established [94] Westpac #202 Account opened [97] Acquisition by Plaza of properties in Punchbowl [98] Powers of Attorney granted in favour of Jamil in May 2010 [101] Further Westpac account opened – the Westpac # 833 Account [103] Initial proposal for development of Broadway Site – meeting between Jamil and Mr Deiri [104] Mr Zafiropoulos' interest in potential property development in Arncliffe [107] Moustafa's involvement in early 2011 [109] Broadway Coordination Meeting No 1 – January 2011 [113] Proposal for partnership in relation to Broadway Development [117] Matthews Street Pty Ltd (Matthews Street Co) [125] Deicorp Constructions tender and Dyldam quote – September 2011 [127] Stage 1 Construction Contract [142] Agreement re acquisition of half share of Broadway Site [146] Notice of Determination of Development Application [154] Commencement of $10,000 monthly payments [155] Settlement of purchase of Matthews Street Property [163] Instructions for contract of sale for Broadway Site [174] Incorporation of Investments and name change of Plaza [193] Jamil's email of 29 November 2011 [194] Amendment to Rockdale LEP – December 2011 [195] Further Power of Attorney - 8 December 2011 [196] Meeting with CBA at Biomed – 12 December 2011 [197] CBA Discussion Paper re construction funding and refinance [201] Preparation of contract of sale of land [205] Opening of CBA Partnership Account [208] Moustafa requires funds by June 2012 for land in Lebanon [213] Execution of contract for sale of land – 27 December 2011 [215] Registration of Broadway partnership [222] Approval of commercial terms and the First Facility Agreement [224] First cheques drawn on CBA Partnership Account [230] Appointment by Plaza of Parras & Associates as agent [233] Re-submission of Deicorp tender and the Stage 1 Construction and Design Contract [234] Stage 1 Construction and Design Contract – general conditions for design and construct (AS 4300-1995) [240] First Facility Agreement signed 15 February 2012 [261] Meeting with CBA on 20 February 2012 and subsequent instructions [267] Mr Deiri's email on 29 February 2012 [272] Broadway Coordination Meeting No 40 on 7 March 2012 [273] Powers of Attorney in March 2012 [274] Completion of purchase of Matthews Street Property [279] Emails in April 2012 re monthly payments [280] Payment of balance of purchase price for interest in Broadway Site [282] Moustafa overseas from 28 April 2012 to 4 August 2012 [284] Monthly payment emails on 30 July 2012 [292] Moustafa's return to Australia in August 2012 and August payments [295] Opening of Westpac #238 Account [305] Determination of Development Application [309] Mr Zafiropoulos' loan from Mr Fadi Ibrahim [310] Westpac #802 Loan and further payments throughout October to December 2012 [311] Arncliffe Site [323] Opening of Westpac #295 Account and withdrawal of money from Westpac #238 Account [330] Powers of Attorney in February 2013 [333] Moustafa overseas from 5 February 2013 [334] Further payments [336] Application for home loan [339] Query on 8 March 2013 from CBA re cheque signatures (the 2013 CBA cheque query) [340] Cheque signing emails on 30 April 2013 [348] Deicorp Properties – licence to operate under the Property Stock and Business Agents Act 2002 (NSW) [353] Tender for Stage 2 [354] Stage 2 Construction Contract [357] Jamil query of 16 May 2013 [359] Moustafa returns to Australia in May 2013 [361] Second Facility Agreement [362] Emails on 27 June 2013 [366] Emails re leases [371] Payment in August 2013 [372] Construction of the residential units in Broadway Development [374] Rodney Dale's introduction to Jamil in September or October 2013 [375] Mr Deiri's introduction to the Arncliffe Site [387] Mr Kanj's account of events in mid to late 2013 [395] Mr Zafiropoulos' account of events [407] Mr Deiri's account of December 2013 conversation with Jamil [408] Further variation to facility agreement in September 2013 [410] Payments in September 2013 [412] Appointment of MR Gramelis as accountant for Sayour interests [418] Email of 10 November 2013 [419] Completion of Broadway Plaza shopping centre in December 2013 [421] Incorporation of Sayour Holdings Pty Ltd and Moulikyah Pty Ltd [422] Alleged agreement with Jamil re Combined Projects Arncliffe (the Arncliffe Agreement) [427] Mr Zafiropoulos' account of events [436] Incorporation of Combined Projects Arncliffe in late January 2014 [438] Heads of Agreement re Arncliffe site [444] Change in authorisation details for CBA Partnership Account [445] Alleged loan from Jamil to Combined Projects Arncliffe [447] Put and Call Option for purchase of Arncliffe Site [449] Arncliffe Development in March 2014 [453] Final draw down for Broadway Development [455] Email in April 2014 and Moustafa's travel overseas [456] Momentum Project Group Services Agreement in May 2014 [458] Incorporation of Combined Projects Holdings Pty Ltd [464] Incorporation of JS75 Pty Ltd [465] Moustafa returns to Australia and Jamil's diagnosis [467] Events in August 2014 [469] Opening of the Westpac #316 Account [478] Sale of residential units in the Broadway Development [479] Final accommodation notice on 30 October 2014 [480] Payments on 13 November 2014 [481] Transfers out of Westpac #202 Account [484] Sales of residential units [485] Partnership distributions [486] Initial valuation of Arncliffe Site [498] $1.65 million cheque in November 2014 [499] Jamil's contribution to Arncliffe Development [504] The Tripoli meeting on 8 January 2015 [510] Payment of cheques to Moustafa [521] The other Arncliffe sites and payments in relation to those site [524] ANZ Facility Agreement for the Arncliffe Development [538] Arncliffe Loan Agreement [541] Completion of Arncliffe Site purchase [542] Registration of other entities [544] Mr Zafiropoulos' account of conversations re Arncliffe project [546] Mr Gramelis' April 2015 file note [549] Moustafa returns to Australia in April 2015 [550] Construction contract for Arncliffe Development (Arncliffe Construction Contract) [551] Development application for the Arncliffe project [559] Mr Zafiropoulos and Jamil have dinner [560] Valuation of Arncliffe Site and Mr Zafiropoulos [561] Jamil's admissions to hospital in September 2015 [563] Final valuation report for Arncliffe Site [564] Jamil's illness and the "deathbed" conversation [565] Conversation with Mr Vamvakaris [600] Site Identification Fees and Arncliffe Site valuations [606] Other discrepancies re Site Identification Fees [616] Jamil's death [619] Independent quantity surveyor's report for Arncliffe and partnership income [621] Subsequent claims in relation to Arncliffe Development [623] Dispute with Ms Catharine Sayour (Elliott) [626] Arncliffe Construction Contract of 27 April 2015 [642] Commencement of construction works at Arncliffe in December 2015 [650] Claims by Moustafa [651] Yesmine Sayour's discovery of incorporation of Sayour Holdings [652] Development Management Agreement [653] Dissolution of Broadway Partnership [657] Sale of Broadway Plaza shopping centre [659] Sayour Holdings' March 2017 enquiries into the affairs of Combined Projects Arncliffe [661] Deicorp Properties Agency Agreement of April 2017 [664] Deiri Mortgage [665] Section 293 notice [666] Estate proceedings [670] Proportion of further accounting documents [671] Deiri Nominees' disclaimer re Tripoli Minute in July 2017 [673] Commencement of Arncliffe Proceedings in June 2017 [706] Claim by Mr Kanj in mid January 2018 [709] Completion of Arncliffe Development [711] Incorporation of Konstructions [717] Payments to Zapphire and Konstructions [718] Enquiry by Sayour Holdings [730] Development Management Fee [732] Deferred, provisional and other evidentiary rulings [736] Jones v Dunkel, Ferrcom and other such inferences [737] Dr Hemm [739] Finding [742] Mr Gramelis [744] Finding [751] Mr Fadi Ibrahim [753] Finding [755] CBA bank officers (including Mr Small and Ms Shucroft) [756] Finding [761] Mr Deiri's advisers [764] Finding [765] Moustafa's solicitor (Mr Zaid Naef) [768] Finding [770] Expert evidence of Mr Dubedat re Westpac #238 Account [772] Finding [773] Absence of documents and other evidence and other matters [774] Finding [781] Rule in Browne v Dunn [785] Mr Kanj, Konstructions and "sham" allegations [786] Oneflare not a complete statement and proviso does not here apply [804] Determination [808] Alternately, Oneflare proviso here not satisfied [810] Determination [821] "Glaring Improbability" or "inherently illogical" and Browne v Dunn [833] Determination [838] Consideration for moneys paid to Mr Kanj and his state of mind [840] Finding [846] Extent of work performance cf discovery of Arncliffe Site [847] Finding [848] Mr Kanj's use of the moneys [849] Finding [852] $7.2 million figure [853] Finding [854] Absence of documents and other evidence [855] Finding [863] Mr Zafiropoulos and Zapphire [864] Finding [866] Mr Deiri and Deiri Parties re Stage 2 Construction Contract [867] Finding [874] Moustafa and Sayour Parties [875] Finding [876] Concessions by implication from cross-examination [877] Mr Kanj and Konstructions [878] Finding [888] Deferred Rulings [889] Credibility of witnesses [900] Moustafa [909] Finding [923] Mr Deiri [933] Finding [986] Ms Dahdal [991] Finding [996] Mr Kanj [997] Finding [1021] Mr Zafiropoulos [1028] Finding [1051] Mr Dale [1054] Finding [1056] Mr Vamvakaris [1057] Finding [1058] Expert Witness [1059] Mr Dubedat [1060] Mr Milton/Mr Kapouris [1061] Mr Portelli/Mr Sanig [1067] Broadway Proceedings [1071] Key factual findings sought in the Broadway Proceedings [1072] Factual findings sought by CBA in Broadway Proceedings [1073] CBA factual finding #(i): the corporate entities [1074] CBA factual finding #(ii): arrangements for funding and account operation for the Broadway Development [1078] CBA factual finding #(iii): First Facility Agreement [1081] CBA factual finding #(iv): Amended and Restated Cash Advance Facility Agreement and the Second Facility Agreement [1084] CBA factual finding #(v): first drawdown under the Second Facility Agreement on 1 October 2013 [1086] CBA factual finding #(vi): cheques drawn between 1 February 2012 and 16 December 2015 [1087] CBA factual finding #(vii): reduction on 1 October 2013 of balance owing [1088] CBA factual finding #(viii): Moustafa's receipt of quotations for Broadway Development and signing of contracts [1089] CBA factual finding #(ix): Moustafa's involvement in the Broadway Development [1094] CBA factual finding #(x): the Powers of Attorney [1102] CBA factual finding #(xi): Moustafa's attendance at the "Grand Opening" and knowledge of expenditure [1103] CBA factual finding #(xii): cheques drawn on CBA Partnership Account [1104] CBA factual finding #(xiii): Moustafa's acceptance of CBA funding [1111] CBA factual finding #(xiv): Moustafa's acceptance of distributions to Mr Deiri and Investments [1113] CBA factual finding #(xv): Moustafa's knowledge of construction costs [1115] CBA factual finding #(xvi): cheque-signing authority a "mere formality" [1119] CBA factual finding #(xvii): Moustafa's knowledge that construction costs were being incurred without his signature [1125] CBA factual finding #(xviii): "manila folder procedure" and related matters [1130] Factual findings sought by Deiri Parties in Broadway Proceedings [1134] Factual finding #1: Jamil was empowered to run the business of Plaza [1135] Powers of Attorney granted by Plaza and Moustafa to Jamil [1139] Consideration re Powers of Attorney granted by Plaza and Moustafa to Jamil [1168] Jamil's authority to run the business of Biomed [1170] Consideration re Jamil's authority to run the business of Biomed [1178] Moustafa's knowledge of the Westpac #202 Account [1179] Consideration of Moustafa's knowledge of the Westpac #202 Account [1197] Jamil organised the demolition works on the Broadway Site [1201] Consideration re Jamil organised the demolition works on the Broadway Site [1205] Jamil contacted Deicorp and negotiated partnership terms and price [1206] Consideration re Jamil contacted Deicorp and negotiated partnership terms and price [1211] Moustafa did not attend regular project coordination meetings [1212] Consideration re Moustafa did not attend regular project coordination meetings [1215] Representations about Jamil made by Moustafa to Mr Deiri [1218] Consideration re representations about Jamil made by Moustafa to Mr Deiri [1226] All email communications with Plaza were through Jamil [1227] Consideration re all email communications with Plaza were through Jamil [1230] Moustafa left Jamil to undertake the purchase of the Matthews Street Property [1231] Consideration re Moustafa left Jamil to undertake the purchase of the Matthews Street Property [1240] Moustafa knew of the construction and left it to Jamil to manage [1242] Consideration re Moustafa knew of the construction and left it to Jamil to manage [1255] Moustafa was overseas for extended periods of time [1256] Consideration re Moustafa was overseas for extended periods of time [1267] Jamil organised payments to Moustafa (with his knowledge) [1269] Consideration re Jamil organised payments to Moustafa (with his knowledge) [1277] Jamil opened the Westpac #238 Account in the name of Moustafa and related matters [1279] Consideration re Jamil opened the Westpac #238 Account in the name of Moustafa and related matters [1304] Jamil was dealing with Westpac on behalf of Moustafa personally [1308] Consideration re Jamil was dealing with Westpac on behalf of Moustafa personally [1315] Moustafa was told by Jamil when Mr Deiri made payments [1316] Consideration re Moustafa was told by Jamil when Mr Deiri made payments [1320] Jamil opened the Westpac #295 Account in his and Moustafa's name [1321] Consideration re Jamil opened the Westpac #295 Account in his and Moustafa's name [1333] Jamil accepted the loan offer for the Westpac #111 Loan Account [1336] Consideration re Jamil accepted the loan offer for the Westpac #111 Loan Account [1344] Jamil was operating internet banking accounts on Plaza's behalf [1345] Consideration re Jamil was operating internet banking accounts on Plaza's behalf [1347] Jamil provided financial information to CBA about Moustafa and Biomed [1348] Consideration re Jamil provided financial information to CBA about Moustafa and Biomed [1357] Moustafa made no complaint about not receiving payments for the purchase of the Broadway Site for over five years [1358] Consideration re Moustafa made no complaint about not receiving payments for the purchase of the Broadway Site for over five years [1363] Moustafa made no complaint about not receiving partnership distribution payments for eleven months [1364] Consideration re Moustafa's delay in complaints [1369] Moustafa allowed Jamil to run Sayour Holdings [1372] Consideration re Moustafa allowed Jamil to run Sayour Holdings [1374] Sayour Parties' overall response to proposed factual finding #1 [1377] Determination as to factual finding #1 [1410] Factual finding #2: the Broadway Partnership commenced by 29 November 2011 [1413] Conversations between Jamil and Moustafa in August 2011 [1415] No direct discussions between Moustafa and Mr Deiri [1417] Payment of deposit for Broadway Site in October 2011 [1422] Matthews Street joint venture documents executed on 3 November 2011 [1424] $10,000 payments agreed, and commence, in November 2011 [1425] Communications with solicitors in November 2011 [1427] Investments was registered on 25 November 2011 [1428] Plaza changed its name on 29 November 2011 [1429] Other matters prior to registration on the Australian Business Register [1430] Sayour Parties' reply submissions [1432] Determination as to factual finding #2 [1446] Factual finding #3: there was no agreement for the partners to pay $2 million for excavation [1450] Determination as to factual finding #3 [1492] Factual finding #4: Plaza has not proven that only its funds purchased the Matthews Street Property [1497] Determination as to factual finding #4 [1519] Factual finding #5: no comparable competitor quote for construction and a joint venture [1528] Determination as to factual finding #5 [1542] Factual finding #6: that the $10,000 monthly payments were not bribes [1546] Determination as to factual finding #6 [1579] Factual finding #7: the contract for sale of land, Moustafa's knowledge of $400,000 deposit and the $2 million payment [1585] Determination as to factual finding #7 [1621] Factual finding #8: the CBA drawdown process did not require Moustafa to sign [1624] Determination as to factual finding #8 [1660] Factual finding #9: that Moustafa was not required to sign (personally) the partnership cheques [1665] Determination as to factual finding #9 [1672] Factual finding #10: that Investments paid the $6 million purchase price for the land to Plaza [1674] Determination as to factual finding #10 [1705] Factual finding #11: that Investments paid the additional $2 million to Plaza [1715] Determination as to factual finding #11 [1724] Factual finding #12: that the Broadway Partnership accepted the Stage 2 Construction Contract and Stage 2 Loan [1729] Determination as to factual finding #12 [1754] Factual finding #13: that Plaza in fact received its share of the partnership distributions [1755] Determination as to factual finding #13 [1774] Factual finding #14: that Moustafa knew about the partnership distributions [1776] Determination as to factual finding #14 [1810] Other introductory matters [1815] Allegations of forgery and observations thereto [1816] Signing processes within Deicorp (including cheques and accommodation notices) [1825] Observations and findings re signing processes within Deicorp (including cheques and accommodation notices) [1880] The relationship between Moustafa and Mr Deiri [1905] Jamil and his development experience [1912] Allegations of "bribery" [1922] Sayour Parties' submissions [1923] Deiri Parties' submissions [1960] Deicorp Entities' submissions [1977] Determination of "bribery" allegations [1981] Need to show a "corrupt purpose" [2002] Need to show an intention to influence (or presumption thereof) [2011] Need to show the payee was influenced [2035] Need to show the payer's knowledge of concealment [2040] Need to show payment in connection with a particular contract or transaction [2044] Need to show payments in the contract price [2046] Need to show loss or that the transaction was unfair [2050] Remedial response and related issues [2052] Summary re "bribes" allegations [2103] First Broadway Cross claim [2113] Summary of parties' respective positions [2119] Alleged unauthorised payments and moneys [2125] Schedule A: cheques bearing signatures of Mr Deiri and Jamil [2126] Schedule B: cheques bearing Mr Deiri's signature and a non-genuine "Moustafa" signature [2128] Schedule C: cheques bearing three signatures [2130] Schedule D: cheques bearing only a non-genuine Moustafa signature [2132] Schedule E: cheques bearing only Mr Deiri's signature [2133] Schedule F: interest, line fees and rollovers [2135] Schedule G: payments made pursuant to accommodation notices [2142] Schedule H: CBA Partnership Account 2147] Sayour Parties' position [2149] CBA's and Deiri Parties' position [2183] Jamil's authority [2191] Actual authority by reason of the Powers of Attorney [2193] Relevant statutory provisions [2194] Relevant Powers of Attorney [2204] Implied revocation of earlier Powers of Attorney? [2211] Manner of signing the documents [2216] Construction of the Powers of Attorney [2220] Sayour Parties' submissions: further observations [2234] Section 11 of the Powers of Attorney Act [2246] Sections 12 and 13 of the Powers of Attorney Act [2251] Section 10 of the Powers of Attorney Act [2259] Delegations under a trust instrument and delegations under statute [2271] Delegations of ministerial acts and common usage delegations [2283] Argument that the Powers of Attorney are valid under the general law [2294] Sayour Parties' submissions in reply [2302] Determination re actual authority by reason of Powers of Attorney [2322] Section 10 and the Powers of Attorney Act [2328] Court of Appeal's decision in Belfield [2337] Plain meaning so wide, as tolerably permits? [2348] The difficulty of "nice distinctions" [2352] Further statutory context [2362] Section 53 of the Trustee Act [2368] Section 10 and ss 53(4) and (6) [2376] The literal or "plain meaning" construction [2385] Construction of cl 7.49 [2397] Implied actual authority by reasons of Jamil's role [2401] Deiri Parties' submissions [2403] CBA's submissions [2413] Sayour Parties' submissions [2419] Determination re implied actual authority by reason of Jamil's role [2430] Actual authority pursuant to Partnership Act [2435] Determination re actual authority pursuant to Partnership Act [2437] Ostensible authority [2447] Determination re ostensible authority [2452] Determination re Jamil"s authority [2453] Estoppel (and acquiescence) [2458] CBA's submissions [2459] Sayour Parties' submissions [2474] Determination re estoppel (and acquiescence) [2502] "No loss" or "Liggett defence(s)" [2513] CBA's submissions [2517] Deiri Parties' submissions [2523] Sayour Parties' submissions [2526] Determination re "no loss" or "Liggett defence(s)" [2547] Cheques and invoices [2569] Payments proved by Mr Deiri affidavits [2571] Mr Deiri's oral evidence [2573] Specific payment categories [2575] Second Broadway Cross-claim [2586] Some further aspects re amounts claimed [2590] Sayour Parties' submissions generally [2595] Deiri Parties' submissions generally [2606] HWLE's submissions generally [2616] Sayour Parties' reply submissions [2621] Determination re the specific aspects of the Second Broadway Cross-claim [2623] Loan agreement never entered into and not binding [2635] Deiri Parties' and HWLE's submissions [2636] Sayour Parties' submissions [2665] Determination re loan agreement never entered into and not binding [2696] Breach of special condition 43.3 [2705] Deiri Parties' and HWLE's submissions [2708] Sayour Parties' submissions [2717] Determination re breach of special condition 43.3 [2718] No request for funds made and none advanced [2720] Deiri Parties' and HWLE's submissions [2723] Sayour Parties' submissions [2726] Determination re no request for funds made and none advanced [2727] Proper construction of interest rate provision (the 9% per month issue) [2730] Deiri Parties' and HWLE's submissions [2736] Sayour Parties' submissions [2760] Determination re proper construction of interest rate provision (the 9% per month issue) [2766] Interest provision void as a penalty [2775] Rectification [2778] Estoppel [2782] Deiri Parties' submissions [2784] Sayour Parties' submissions [2786] Determination re estoppel [2791] Unconscionable conduct [2795] Deiri Parties' submissions [2796] Sayour Parties' submissions [2800] Determination re unconscionable conduct [2806] Loan has been repaid [2810] Third Broadway Cross-claim [2812] Sayour Parties' submissions generally [2817] Interest provision void as a penalty [2828] Deiri Parties' and HWLE's submissions [2829] Sayour Parties' submissions [2838] Determination re interest provision void as a penalty [2854] Rectification [2861] Deiri Parties' and HWLE's submissions [2862] Sayour Parties' submissions [2883] Determination re rectification [2902] Fourth Broadway Cross-claim [2906] HWLE's submissions [2912] Determination [2927] Fifth Broadway Cross-claim [2931] Deiri Parties' position generally [2942] Deicorp Entities' position generally [2952] CBA's position generally [2960] Allegations of bribes and recovery of "undisclosed payments" made to Jamil (prayers 1 to 28) [2962] Prayers 1 to 1 [2965] Prayers 11 and 12 [2966] Prayers 13 and 14 [2968] Prayers 16 to 28 [2971] Determination re allegations of bribes and recovery of "undisclosed payments" made to Jamil (prayers 1 to 28) [2972] Payments made under the construction contracts and related claims (prayers 40 to 56) [2978] Stage 1 Construction Contract [2979] Deicorp Entities' submissions generally [2980] Delay liabilities under the Stage 1 Construction Contract [3004] Determination re delay liabilities under the Stage 1 Construction Contract [3017] Excavation costs [3022] Determination re excavation costs [3028] Stage 1 variations [3029] Deicorp Entities' submissions [3032] Deiri Parties' submissions [3041] Determination re Stage 1 variations [3051] Variation No 8 [3054] Determimation re Variation No 8 [3056] Variations after practical completion [3059] Determination re variations after practical completion [3060] Stage 1 provisional sums [3064] Determination re Stage 1 provisional sums [3069] Stage 2 Construction Contract [3071] Deicorp Entities' submissions generally [3074] Delay liabilities under the Stage 2 Construction Contract [3088] Determination re delay liabilities under the Stage 2 Construction Contract [3094] Stage 2 variations [3097] Determination re Stage 2 variations [3104] Variation No 1 [3106] Determination re Variation No 1 [3110] Variation No 2 [3111] Determination re Variation No 2 [3113] Variation No 3 [3114] Determination re Variation No 3 [3118] Variations after practical completion [3121] Determination re variations after practical completion [3123] Claims against the builder for profits (prayers 57 to 59) [3124] Prayer 57 [3128] Prayers 58 and 59 [3130] Prayer 58 [3131] Prayer 59 [3137] Determination re claims against the builder for profits (prayers 57 to 59) [3140] Deicorp profits, constructive trust and other claims in respect of profits (prayers 60 to 72) [3141] Deiri Parties' submissions generally [3147] Plaza not entitled to both compensation and an account of profits [3152] Account of profits as a remedy for bribes [3155] Equitable compensation [3167] Deicorop Entities' submissions generally [3175] Determination re constructive trust and other claims in respect of profits (prayers 60 to 72) [3177] Claims for moneys had and received by CP Holdings and Deicorp Constructions (prayers 73 to 76) [3183] Determination re claims for moneys had and received by CP Holdings and Deicorp Constructions (prayers 73 to 76) [3187] Matthews Street Property (prayers 29 to 39) [3188] Sayour Parties' submissions [3189] Deiri Parties' submissions [3193] Determination re Matthews Street Property (prayers 29 to 32) [3199] Conventional estoppel [3200] Determination re conventional estoppel [3203] Sixth Broadway Cross-claim [3206] Mr Portelli's expert evidence [3212] Sayour Parties' and Plaza's submissions [3219] Determination [3243] Quantum meruit and the contractually prescribed adjustment method [3266] Quantum meruit and the contractually prescribed time limitation [3282] Summary re Sixth Broadway Cross-claim [3289] Seventh Broadway Cross-claim [3291] CBA's submissions [3296] Deicorp Entities' submissions [3306] Deiri Parties' submissions [3307] Determination [3313] Eighth Broadway Cross-claim [3328] Deiri Parties' submissions re claim against Plaza [3333] Sayour Parties' submissions [3339] Determination re claim against Plaza [3347] Deiri Parties' submissions re claim against CBA [3351] CBA's submissions [3353] Determination re claim against Plaza [3354] Ninth Broadway Cross-claim [3358] Sayour Parties' submissions [3361] Determination [3367] Arncliffe Proceedings [3370] Key factual findings sought in the Arncliffe Proceedings [3371] Preliminary factual findings sought by the Deiri Parties in the Arncliffe Proceedings [3372] Factual finding A: Jamil first told Moustafa about the Arncliffe "project" in 2012 [3373] Deiri Parties' submissions [3375] Sayour Parties' submissions [3379] Deiri Parties' submissions in reply [3390] Determination as to factual finding A [3393] Factual finding B: Sayours changed accountants to Mr Gramelis in September 2013 and appointment of Mr Gramelis [3394] Determination as to factual finding B [3397] Factual finding C: Jamil approached Mr Dale in relation to the Arncliffe Site [3398] Deiri Parties' submissions [3400] Sayour Parties' submissions [3401] Determinations as to circumstances relating to discovery of Arncliffe Site (factual findings A and C) [3409] Factual finding D: Jamil approached Mr Deiri in relation to the Arncliffe Site [3419] Determination as to factual finding D [3420] Factual finding E: Mr Deiri negotiated the purchase of the Arncliffe Site with Mr Dale [3421] Determination as to factual finding E [3423] Factual finding F: Arncliffe Agreement formed in December 2013 or January 2014 [3424] Deiri Parties' submissions [3427] Sayour Parties' submissions [3432] Deiri Parties' submissions in reply [3462] Determination as to factual finding F [4379] Key factual findings sought by the Deiri Parties in the Arncliffe Proceedings [3490] Factual finding #1: Moustafa agreed to be sole director and member of Sayour Holdings in December 2013 [3491] Deiri Parties' submissions [3493] Sayour Parties' submissions [3553] Determination as to factual finding #1 [3554] Factual finding #2: alternatively, Moustafa agreed to become director and member of Sayour Holdings in August 2014 with full knowledge of the company's purpose [3555] Deiri Parties' submissions [3556] Sayour Parties' submissions [3559] Determination as to factual finding #2 (and factual finding #1) [3569] Factual finding #3: Jamil controlled Sayour Holdings with Moustafa's consent or acquiescence [3578] Deiri Parties' submissions [3579] Konstructions' position as to Jamil's authority [3587] Sayour Parties' submissions [3597] Determination as to factual finding #3 [3601] Factual finding #4: Moustafa directed Jamil that he was only permitted to contribute $5 million to the Arncliffe Development if the Sayours had board representation [3603] Deiri Parties' submissions [3604] Sayour Parties' submissions [3606] Determination as to factual finding #4 [3609] Factual finding #5: by 8 January 2015, there was an agreement between Sayour Holdings and Deiri Nominees that profit share would be based on respective contributions (the Tripoli minute) [3614] Deiri Parties' submissions [3615] Sayour Parties' submissions [3655] Determination as to factual finding #5 [3679] Factual finding #6: the meeting on 30 September 2015 occurred as set out in Mr Deiri's affidavit (the "deathbed conversation") [3683] Deiri Parties' submissions [3685] Sayour Parties' submissions [3726] Konstructions' position as to the "deathbed conversation" [3740] Determination as to factual finding #6 [3754] Factual finding #7: that the September 2015 meeting constituted an assent by shareholders [3762] Deiri Parties' submissions [3765] Sayour Parties' submissions [3781] Determination as to factual finding #7 [3795] Summary of the various Arncliffe Cross-claims [3800] First Arncliffe Cross-claim [3802] Deiri Parties position generally [3820] Allegations of dishonesty [3827] Determination re allegations of dishonesty [3832] Impugned payments and some of the relevant evidence [3835] Development Management Fee and Site Identification Fees and [3850] Development Management Fee [3851] Determination re Development Management Fee [3857] Konstructions Fee [3864] Konstructions' submissions [3865] Sayour Parties' submissions [3888] Determination re Konstructions Fee [3914] Zapphire Fee [3921] Zapphire's submissions [3928] Sayour Parties' submissions [3963] Determination re Zapphire Fee [3984] Repayment of interest on loans to Deiri Nominees [3994] Sayour Parties' submissions [3997] Relationship with the Arncliffe Agreement [3998] Alleged forbearance of interest in FY2018 [4015] The Deiri Nominees loan account and Arncliffe Agreement liabilities as recorded in Combined Projects Arncliffe's financial statements [4030] Combined Projects Arncliffe's 2014 financial statements [4032] Combined Projects Arncliffe's audited 2014 Annual Report (produced in 2017) [4040] 2015 Financial Statements [4048] Combined Projects Arncliffe's 2016 Annual Report [4053] 2017 Annual Report [4061] Combined Projects Arncliffe's 2018 Annual Report [4062] Combined Projects Arncliffe's 2019 Annual Report [4067] Deiri Parties' submissions [4074] Sayour Parties' submissions in reply [4089] Determination re repayment of interest on loans to Deiri Nominees [4092] Payment of $1.56 million to Jamil [4093] Determination re payment of $1.56 million to Jamil [4100] Payment of $753,709 as agency commissions [4102] Sayour Parties' submissions [4106] Deicorp Properties' submissions [4138] Sayour Parties' submissions in reply [4156] Determination re payment of $753,709 as agency commissions [4185] Payments under construction contract and "extra over amounts" (PC 24) [4189] Sayour Parties' submissions [4201] Deicorp Entities' submissions [4233] Sayour Parties' submissions in reply [4262] Determination re payments under construction contract and "extra over amounts" (PC 24) [4293] Extant claims and issues: challenge to initial appointments etc [4301] Challenges to initial appointments and resolutions [4302] Determination re challenges to initial appointments and resolutions [4312] Extent of relief and oppression [4313] Determination re extent of relief oppression [4317] • [4319] Second Arncliffe Cross-claim Determination re Second Arncliffe Cross-claim [4334] Third Arncliffe Cross-claim [4337] Outline of various aspects of relief sought [4340] Sayour Holdings' submissions [4350] No jurisdiction to make a s 175 order [4363] No jurisdiction to make a s1322(4)(b) order [4376] ASIC not notified of the s 1322(4)(b) application [4382] The making of a s 1322(4)(b) order would cause substantial injustice to Sayour Holdings as trustee for the Sayour 2 Family Trust and as constructive trustee for the Sayour Family Trust [4384] Any irregularity in the appointment of Moustafa was procedural and has not cause substantial injustice to any person [4385] Estoppel [4388] Deiri Parties' submissions [4395] Membership and directorship of Sayour Holdings [4405] Sayour Holdings bound by Arncliffe Agreement [4412] Site identification Fees and Development Management Fee [4419] Determination re Third Arncliffe Cross-claim [4423] Summary of conclusions [4434] First Broadway Cross-claim [4435] Second Broadway Cross-claim [4440] Third Broadway Cross-claim [4443] Fourth Broadway Cross-claim [4444] Fifth Broadway Cross-claim [4445] Sixth Broadway Cross-claim [4450] Seventh Broadway Cross-claim [4451] Eighth Broadway Cross-claim [4454] Ninth Broadway Cross-claim [4455] First Arncliffe Cross-claim [4456] Second Arncliffe Cross-claim [4463] Third Arncliffe Cross-claim [4464] Conclusion and orders [4465] Judgment 1. HER HONOUR: Late last year, I heard together two sets of proceedings involving a variety of parties and a number of disputes arising out of dealings between, broadly: Mr Moustafa Sayour (Moustafa, also known as Michael) and his late son, Jamil Sayour (Jamil), along with entities associated with them (the Sayour interests), on the one hand; and Mr Fouad Deiri (Mr Deiri) and entities associated with Mr Deiri (the Deiri interests), on the other hand. However, as will become clear, the parties involved in the respective proceedings extend beyond the Sayour interests and the Deiri interests (as I will explain shortly). I refer to Moustafa and Jamil by first name without intending any disrespect, simply so as to distinguish between them. 2. At the outset I note that, when Parker J made orders on 28 February 2019 that the two sets of proceedings be heard together, his Honour ordered that evidence in one proceeding be evidence in the other (see Order 3). That has in the main occurred, save that at the hearing some evidence was not admitted as against particular parties or was only admitted subject to relevance as against particular parties (generally speaking, those being parties other than the Sayour interests or the Deiri interests). 3. The combined hearing of the two sets of proceedings occupied over 28 sitting days, including a day of submissions heard during the Court vacation and a further day of submissions during the first week of the law term this year. The final reply submissions for the Sayour interests, and supplementary reply submissions by various other parties, were dealt with in written submissions. The final tranche of written submissions was not received until April this year. Background 1. Although the background to the disputes between the parties has been briefly set out in earlier interlocutory decisions (see, for example, Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410 and Broadway Plaza Investments v Broadway Plaza Pty Ltd; In the matter of Combined Projects (Arncliffe) Pty Ltd [2019] NSWSC 1082), it is convenient here to reprise (and add to) my earlier summary of the relevant background to the proceedings before turning to the chronology of events. 2. I also note that, to the extent that there is or is perceived to be any inconsistency between the below factual background and my determination of specific factual controversies, the latter is to be taken as my findings of fact. 3. As adverted to above, there are two sets of proceedings: the Broadway Proceedings (2016/00282940) and the Arncliffe Proceedings (2017/00180712). Broadway Proceedings 1. The Broadway Proceedings arise out of a now dissolved partnership (the Broadway Partnership) between the plaintiff, Broadway Plaza Investments Pty Ltd (Investments), and the defendant, Broadway Plaza Pty Ltd (Plaza) (formerly known as Sayour Investments Pty Ltd (Sayour Investments)). 2. The Broadway Partnership was formed to undertake a residential and commercial development (the Broadway Development) of a site in Punchbowl (the Broadway Site) that was comprised of a number of adjacent properties. Investments and related entities 1. Investments is a company the shares in which are held by Deiri Nominees Pty Ltd (Deiri Nominees). Mr Deiri is the director of Investments. Both Deiri Nominees and Investments form part of a group of construction and property development companies (the Deiri Group) run by Mr Deiri. 2. In the context of the Broadway Proceedings, I refer to these three parties (i.e., Investments, Deiri Nominees and Mr Deiri), collectively, as the Deiri Parties. They were represented separately from other entities involved in these proceedings with which Mr Deiri is also associated, those being here generally referred to as the Deicorp Entities. 3. The Deicorp Entities include Deicorp Pty Ltd (formerly known as Deicorp Constructions (NSW) Pty Ltd) (to which I will refer where necessary as Deicorp Constructions (NSW), but generally more simply as, Deicorp), and Deicorp Properties Pty Ltd (Deicorp Properties). It is relevant here to note (lest there be any confusion – as there was in some of the material before me) that Deicorp is a different entity from Deicorp Constructions Pty Ltd (Deicorp Constructions), both of those companies being involved at different stages in the construction of one or other of the developments the subject of the two sets of proceedings here before me. Plaza, Sayour Investments and related entities 1. Plaza is a company the shares in which are held by Moustafa Sayour, a company of which Moustafa is the sole shareholder and a director. Moustafa was previously the sole director of Plaza and I understand that he remains a director of the company. Moustafa owns a medical textiles manufacturing business, Biomed Technology Australia Pty Ltd (Biomed), which was managed for some time during the events in question by Jamil. In the context of the Broadway Proceedings, I will refer collectively to Plaza, Moustafa and Sayour Holdings as the Sayour Parties (and when addressing the submissions filed on behalf of one or more of them I will, simply for convenience, refer to them as the Sayour Parties' submissions). Broadway Partnership and brief background 1. In the period from 2007 to 2010 (before entering into the Broadway Partnership), Plaza purchased a number of properties in Punchbowl which were ultimately amalgamated to form the Broadway Site. 2. As noted above, the Broadway Partnership was formed between Plaza and Investments in or around December 2011 for the purposes of the Broadway Development. There was no written partnership agreement. However, it does not appear to be disputed that the arrangement between the partners was that Investments was to manage the design and construction of a shopping centre and residential apartments; and that Plaza was to manage the leasing of the centre. The profits were to be shared equally. The builder for Stage 1 of the Broadway Development (but not ultimately for Stage 2 – see at [358] below) was Deicorp (then known as Deicorp Constructions (NSW)). 3. The claims brought against the Deicorp Entities (particularly in relation to the fifth cross-claim – to which I refer to throughout as the Fifth Broadway Cross-claim) overlap significantly with claims brought against others of the cross-defendants. As I have adverted to, the Deicorp Entities were represented separately from the Deiri Parties. There was some criticism by the Sayour Parties during the course of the hearing as to the level of representation amongst the various entities associated with Mr Deiri (in effect, there being three sets of solicitors involved and two sets of Counsel). Nevertheless, I accept that there was a reason for the separate representation of various of the entities associated with Mr Deiri and it was apparent that there had been a conscious attempt to confine cross-examination and to avoid unnecessary repetition of submissions between those parties. I did not consider the level of representation to be unreasonable given the issues involved in and quantum of the overall dispute. 4. Mr Deiri's principal dealings with Plaza throughout the Broadway Partnership were (until Jamil's death in October 2015) through Jamil. It does not appear to be disputed that Jamil was relatively inexperienced in property development at the time (as also was Moustafa). The Deiri Parties' case is that Moustafa was "semi-retired" or "essentially retired" (see, for example, at [111] below), and that he relied on Jamil during the course of the Broadway Development to communicate on Plaza's behalf with Investments. Moustafa takes issue with at least some aspects of that characterisation of his involvement in the Broadway Development. Moustafa complains, in essence, that Mr Deiri and Jamil actively concealed from him information and decisions made in relation to the Broadway Development (including, relevantly, the making of various payments in the course of the project). 5. As part of the partnership arrangements, Investments acquired from Plaza an interest in the Broadway Site. It says that it paid the purchase price (specified in the contract of sale) of $6 million in instalments over the course of 2011 to 2012 (see at [282] below) and that it also paid an agreed additional sum of $2 million towards the purchase (i.e., in effect, making a total purchase price for its 50% interest of $8 million). There is a dispute as to whether Investments in fact paid the whole of the purchase price for that half interest in the Broadway Site and a claim is made by Plaza in the Broadway Proceedings (in the second cross-claim – to which I refer throughout as the Second Broadway Cross-claim) for the sum it says remains owing to it ($5.6 million), plus interest calculated at 9% per month, in respect of the purchase. 6. The Broadway Development was in two stages: first, a retail complex and, second, a residential complex. The development was financed by the Commonwealth Bank of Australia (CBA) (although it seems that at one stage the proposed financier had been Westpac Banking Corporation (Westpac)). On 15 February 2012, a loan agreement (the First Facility Agreement) to finance Stage 1 of the Broadway Development (the car park and shopping centre) was executed with CBA in the amount of $45.6 million (the Stage 1 Loan) (see, for example, at [261] below). For reasons that will become apparent in due course, it is relevant here to note that Moustafa accepts that he signed the First Facility Agreement. 7. On 20 June 2013, the Stage 1 Loan was "reinstated" as an investment facility and the balance of the loan became part of a separate facility (the Stage 2 Loan) (see, for example, at [363] below). The documents pursuant to which this occurred included the Second Facility Agreement, which Moustafa denies was signed by him. There is (see, for example, at [1060] below) unchallenged evidence from a forensic expert (Mr Stephen Dubedat) supporting the conclusion that Moustafa did not sign that document (and, indeed, the evidence establishes that Moustafa did not sign a great number of documents bearing his purported signature, relevantly including any of the impugned cheques drawn on the partnership's bank account with CBA (the CBA Partnership Account) – see at [210] below). 8. The construction of the retail shopping centre on the Broadway Site was completed in December 2013 and construction of the residential apartments was completed over the following year. The residential apartments were sold in November 2014 (see at [479]ff below). Following the sale, the Stage 2 Loan was repaid to CBA (leaving outstanding an amount due in respect of the Stage 1 Loan) (see at [483] below). 9. Thereafter, a surplus was distributed out of the proceeds of sale of the residential units in the Broadway Development. Investments contends that Plaza's share of the partnership distributions was paid to Plaza in accordance with Jamil's instructions to Mr Deiri (as, it says, were the payments made to Plaza for the purchase of the Broadway Site). Plaza disputes this. Investments maintains that Jamil directed Investments to make each and every one of those payments and that Jamil received them on Plaza's behalf. Investments points out that most payments were made by cheque drawn payable to the "Sayour Family Trust", of which trust Plaza is the trustee; that almost all of the cheques were banked into two bank accounts designated as trust accounts for the Sayour Family Trust (one in the joint names of Moustafa and Jamil, and another solely in Moustafa's name); and that Moustafa personally banked two of these cheques (totalling $5 million). 10. Jamil died in October 2015. In November 2015 (see the chronology of events from [626]ff below), after the discovery by Moustafa of what he maintains amounted to fraud against Plaza and the Sayour Family Trust in relation to the Broadway Partnership, Moustafa asserted to Mr Deiri that Plaza had not received its share of the partnership profits (and that Jamil had no authority to distribute any partnership moneys). 11. Plaza now seeks several million dollars in interest under an alleged loan agreement in connection with the purchase price for the Broadway Site under which (as adverted to above) the interest rate was specified at 9% per month (the proper construction of which term is here in dispute). Investments points out that neither Moustafa nor Jamil signed that loan agreement (and that, on Moustafa's evidence, he knew nothing about it). Investments contends that it is not binding. There is also a claim for rectification of that loan agreement in the event that (contrary to Investments' submissions) it is found to be binding on Investments. 12. On 21 September 2016, Investments commenced the Broadway Proceedings by way of summons, seeking (among other relief) a declaration that the partnership had been dissolved and orders inter alia that the Broadway Partnership be wound up, that a receiver be appointed and that partnership accounts be taken. 13. Pausing here, I note that Plaza has emphasised throughout its submissions that the constitution of the Broadway Proceedings, as commenced by Investments, was that of a partnership winding up proceeding (in which the taking of partnership accounts was indeed ordered – see at [26]). Plaza's position is that this affects much of what is agitated in the various cross-claims in the proceedings. Nevertheless, as will be explained shortly, the Broadway Proceedings ultimately proceeded by way of points of claim and for practical purposes Plaza was the moving party on a number of those cross-claims. 14. On 29 September 2016, Hallen J made a declaration as to the dissolution of the Broadway Partnership and orders appointing a receiver, Mr Brett Lord (the Receiver), to the Broadway Partnership's assets and undertaking, and for partnership accounts to be taken. By note 6 to the orders made on that occasion, Hallen J noted that Plaza disputed the alleged liability of the partners to CBA. I interpose to note that this was before the payment out, in 2017, of the remaining CBA loan secured over the shopping centre (see below) and CBA was then claiming (and Plaza disputing) that CBA was a secured creditor in respect of a sum of about $34.4 million. 15. Pursuant to the directions made by Hallen J on 29 September 2016 (as part of the partnership accounting process), Investments served on 25 November 2016 a verified list of transactions. Plaza notes that this is in the nature of a pleading, responding to the order of 29 September 2016, and standing as Investments' case as to the transactions of the Broadway Partnership. Plaza points out that the said Exhibits essentially comprise MYOB accounting printouts and notes that they contain numerous items alleging advances to the Broadway Partnership by CBA. Thus, in the partnership accounting, there is in issue the validity of the liability which Investments alleges the Broadway Partnership owed to CBA. 16. Plaza has maintained that many of the transactions asserted by Investments were unauthorised or otherwise improper. Plaza therefore proceeded by way of falsification and surcharge in the partnership accounting. Plaza also sought a number of declarations and directions as to how the partnership account should be taken in respect of specific items and transactions. Plaza notes, in this regard, that Investments did not make any claim for just allowances. 17. On 24 October 2016, the Receiver filed a notice of motion seeking judicial advice as to whether he would be justified in paying amounts on account of the alleged liability to CBA. At that stage, the then current CBA loan facility was due to expire on 24 March 2017. The Receiver's notice of motion concerned all payments alleged to be accruing due to CBA, including a final payment of approximately $34.3 million at the expiry of the facility, as well as intermediate line fees and other payments of, in aggregate, about $600,000. 18. On 28 October 2016, Plaza filed a notice of motion seeking an order joining CBA as second defendant (the object of which, it is said, being to compel CBA to bring its claim into the partnership winding up). 19. On 3 November 2016, on the basis of a concession by Investments (in effect to preserve Plaza's position in relation to its dispute as to the validity of CBA's claim to be a secured creditor), Plaza did not oppose the giving of judicial advice to the Receiver that he would be justified in making the intermediate payments to CBA. The general effect of the concession was to charge Investments' share in the Broadway Partnership with those payments in the event that they were afterwards held to have been payments that were not liabilities of the Broadway Partnership. In that context, judicial advice was given to the Receiver that he would be justified in making the intermediate CBA payments (but not at that stage in relation to the making of the final payment of $34.3 million). 20. On 7 December 2016, Pembroke J directed Plaza to file a cross-summons against CBA and to give notice of the transactions in Investments' list of transactions which it contended were not authorised transactions of the Broadway Partnership or for which it contended the partnership was not liable to CBA. Pursuant to these orders, the first cross-summons was filed by Plaza against CBA and Investments on 19 December 2016. 21. On 28 December 2016, the Receiver filed a further notice of motion for judicial advice (as to the completion of the sale of the shopping centre). On 27 January 2017, Lindsay J ordered that the Receiver would be justified in completing a particular contract for sale of the shopping centre, noting that Plaza's consent was provided on the conditions set out in a letter dated 24 January 2017 from its solicitors, Adams & Partners, to K&L Gates. That letter included that: Plaza did not make any admissions; Plaza continued to dispute the liability accrued by the Broadway Partnership with CBA; and the contract of sale contained a number of contentious documents that Plaza was not able to confirm had been validly signed or executed. 22. On 7 February 2017, an order was made in effect extending the time for compliance with Pembroke J's order in respect of notice of the unauthorised transactions for which Plaza contended the Broadway Partnership was not liable to the CBA. Directions were also made as to the time within which Plaza was to request particulars in relation to certain loan repayments and for Investments to respond thereto. 23. On 17 February 2017, the Receiver wrote to the solicitors for each of Investments, Plaza and CBA, noting Plaza's dispute as to Broadway Partnership's liability to CBA and proposing, notwithstanding that objection, to pay to CBA at completion "the amount secured by the mortgage" in order to "convey clear title in accordance with the Sale Contract", as the Receiver needed to obtain a discharge of mortgage from CBA. The letter stated inter alia that: … the indebtedness of the partnership to CBA is a matter in issue in the Proceedings and the subject of the Cross Summons filed by the defendant … the determination of that issue is a matter for the Court and the Receiver does not express, and does not have, any view on the eventual outcome. The course preferred by the Receiver would ensure that, however that issue is eventually determined, any liability of the partnership for interest and line fees would end as at the date of settlement. Further if the issue is determined in favour of the defendant, there does not appear to the Receiver to be any reasonable basis to consider that the CBA would not be in a position to disgorge any sum to which it may be found not to be entitled. 1. Prior to completion of the sale of the shopping centre, Plaza gave its written consent to the amount claimed by CBA being paid to CBA on completion of the sale of the shopping centre (without it being held or retained by CBA as a separate fund), and consented to that amount being dealt with as part of the general assets of CBA, upon the written undertaking of CBA to deal with the amount in accordance with any judgment or final order of the Court in the proceedings on the first cross-claim within 28 days after judgment or the expiry of the appeal period or after the conclusion of any appeal instituted by CBA. The agreement and the undertaking were expressly made without admissions on either side. 2. On 27 March 2017, Investments moved for a direction that Plaza file and serve points of claim (rather than a list of falsifications and surcharges). Plaza then complained that Investments had not supplied an adequate list of transactions and that it did not know what the transactions on the CBA's facilities had been because there were no account statements on those facilities. It also complained that Investments had not supplied adequate vouching. 3. On 31 March 2017, Plaza moved in turn for: further particulars of Investments' list of transactions; better vouching by Investments; and for CBA to plead the advances it alleged had been made to or at the direction of the partners and the debts that it alleged had become due to it by the partners. 4. Those two motions came before Parker J, who directed: CBA to file and serve a statement of account in respect of the facilities (not including the Broadway Partnership bank account, for which statements were already available); and, following that, for Plaza to file and serve points of claim in respect of its case against CBA. 5. Following the orders made by Parker J, CBA's account was filed on 11 August 2017 (CBA's Account) and Plaza filed the points of cross-claim on the first cross-summons. CBA's Account lists the payments that CBA made and received, to which the points of cross-claim plead Plaza's objections that various of the transactions were unauthorised. 6. Meanwhile, following the judicial advice received from Lindsay J, the sale of the shopping centre settled in March 2017. I understand that the Receiver paid out $34.3 million under the loan to CBA (that payment being made under protest from Plaza, as noted by the Court on 27 January 2019). As adverted to above, CBA gave a written undertaking to disgorge that amount in the event that the Court determined the issue of its entitlement thereto unfavourably to CBA. 7. I interpose to note that the only assets of the Broadway Partnership were the Broadway Development and its associated assets. Hence, by the time of the hearing before me, CBA no longer claimed to be a secured creditor (having been paid out in full). I understand that, as at August 2019, the Receiver held approximately $5 million of partnership funds. 8. Broadly then, by way of overview, Plaza contends that Mr Deiri knew that Jamil was signing cheques (in his own name or in Moustafa's name) and was not doing so under a power of attorney; that this was in breach of CBA's mandate; that Mr Deiri prepared or was in charge of preparing forged accommodation notices under the respective construction facilities; that Mr Deiri was party to Jamil's deception of Moustafa; that Mr Deiri bribed Jamil; that Mr Deiri was party to the misappropriation of Sayour Family Trust money into the (separate) Arncliffe Development (see below); and that Mr Deiri knew that Moustafa trusted him and cynically abused that confidence. 9. To this, the Deiri Parties say that Plaza's case in this regard is no more than a construct or reconstruction of events. 10. The Deiri Parties' adamant position is that: there were no forgeries; there were no bribes; events were not concealed; Mr Deiri was not a party to any misappropriation of Sayour Family Trust money into the Arncliffe Development; and Mr Deiri did not abuse any confidence reposed in him by Moustafa (noting that it does not seem to be disputed that Moustafa did repose confidence in Mr Deiri). The position of the Deiri Parties is that, in reality, Investments and Mr Deiri dealt with Plaza through Jamil and that Moustafa gave Jamil full authority and responsibility to do so (i.e., that Moustafa left Jamil in charge and relied on Jamil to do everything). Cross-claims in the Broadway Proceedings 1. The issues for determination in the Broadway Proceedings are framed by reference to the various cross-claims that have been filed in those proceedings. Those cross-claims are summarised below. First Broadway Cross-claim 1. The amended first cross-claim (the First Broadway Cross-claim) was filed on 12 October 2017 by Plaza against Investments and CBA. 2. By this cross-claim, Plaza seeks sums from CBA. Plaza alleges that CBA breached its mandate, and is liable, in respect of payments made pursuant to forged signatures on facility agreements which funded the Broadway Development and cheques drawn on the CBA Partnership Account. 3. Meanwhile, the cross-claim against Investments relates to the falsification and surcharge of the partnership accounts. Plaza says that, as Investments was not willing to join, as a partner, in the claims made against CBA, Investments was a necessary party to be joined as cross-defendant. 4. Insofar as Investments asserts that various drawings on the CBA Partnership Account and on credit facilities were transactions of the Broadway Partnership, this is disputed by Plaza, which contends that, once those transactions are falsified, CBA is in fact a substantial debtor of the Broadway Partnership. Plaza says that it is the function of the first cross-claim to set out the basis for this contention. 5. As noted above, Plaza has emphasised the above procedural history of the Broadway Proceedings as demonstrating that the First Broadway Cross-claim arose in the course of, and as a step in, the winding up of the partnership and the taking of partnership accounts (superseding in a pleaded form the previous particulars of disputed transactions that had been provided in the course of the accounting under the directions made by Pembroke J and Lindsay J). 6. More particularly, Plaza notes, from a procedural perspective, that after a decree for general administration, a person claiming to be a creditor of a partnership must prosecute its claim in the proceedings in which the decree was made (referring to Collins v O'Reilly (1940) 41 SR (NSW) 281 at 283-284 per Roper J and also, in the context of appointment of a receiver, to In re Metropolitan Amalgamated Estates Ltd; Fairweather v the Company [1912] 2 Ch 497 at 502-503 per Swinfen Eady J; Randfield v Randfield (1860) 1 Dr & Sm 310; 62 ER 398 at 399 per Kindersley V-C; Ward v Swift (1848) 6 Hare 309; 67 ER 1184 at 1186 per Wigram V-C; and In re Maidstone Palace of Varieties Ltd; Blair v Maidstone Palace of Varieties Ltd [1909] 2 Ch 283 at 286; [1908–10] All ER Rep 678 per Neville J). Plaza says that this demonstrates the nature, in particular, of remedies sought on a subsequent cross-claim against the partners and, by implication, against the partnership assets. Second Broadway Cross-claim 1. The second cross-claim (the Second Broadway Cross-claim) was filed on 4 June 2018 by Plaza against Investments. In this cross-claim, Plaza seeks the sum of $35.76 million, plus interest of $504,000 per month, from Investments. As adverted to above, of this claim, almost $30 million is comprised of interest alleged to be payable at an interest rate of 9% per month under the alleged loan agreement (to which I have referred above – see at [23] above). 2. As adverted to above (see at [17] above), Plaza alleges that Investments has not paid the sum of $6 million in consideration for the purchase by Investments of the 50% interest in the Broadway Site; nor a further sum of $2 million payable pursuant to a further contract. The claims against Investments are brought under a collateral contract for sale of land, a collateral loan agreement and a further collateral agreement, each of which was entered into (or allegedly entered into) between Plaza and Investments at the time of entry into their partnership agreement. 3. Prayers 11 and 12 of the Second Broadway Cross-claim also claim directions and orders in the partnership accounting arising by reason of the terms of the agreements between the partners under which they formed their partnership. Plaza says that these agreements are antecedent to the partnership, forming a basis for its inception, but that some of the provisions regulate the terms of the partnership association and thus govern the taking of accounts and the winding up. Plaza says that the Second Broadway Cross-claim thus has elements that are antecedent to, and outside of, the partnership relationship, as well as other elements that arise in the winding up. Third Broadway Cross-claim 1. The third cross-claim (the Third Broadway Cross-claim) was filed on 13 June 2018 by Investments against Plaza. Investments seeks, inter alia, rectification of the contract of sale (and loan agreement) the subject of the Second Broadway Cross-claim, as well as introducing other causes of action (including breach of fiduciary duty). 2. Insofar as the Third Broadway Cross-claim includes a claim for relief based on the assertion that the contract of sale and loan agreement were incidents of the fiduciary relation of partners, Plaza says this proposition is misconceived in that it seeks to attribute to agreements constituting the parties' relations the character of an incident of their resulting partnership. Plaza points out that this claim does not arise in the partnership winding up. Fourth Broadway Cross-claim 1. The fourth cross-claim (the Fourth Broadway Cross-claim) was filed on 26 June 2018 by Investments against the partners of HWL Ebsworth (HWLE), the lawyers who acted for Investments in relation to the contract for sale the subject of the Second Broadway Cross-claim. In the alternative to the Third Broadway Cross-claim, Investments alleges that if (which is denied) it is liable to Plaza in respect of the claim made in the Second Broadway Cross-claim, then HWLE is liable to Investments in respect of that liability (i.e., this is a claim for professional negligence). 2. Again, Plaza points out that this claim does not strictly arise in the partnership winding up. Fifth Broadway Cross-claim 1. The fifth cross-claim (the Fifth Broadway Cross-claim) was filed on 22 August 2018 by Plaza against eleven cross-defendants, including: Investments (the first cross-defendant), Mr Deiri (the third cross-defendant), Deiri Nominees (the fourth cross-defendant), and a number of Deicorp Group entities (as noted below, being the entities to which I will refer collectively, unless the context otherwise requires, as the Deicorp Entities). The Deicorp Entities are: Combined Projects (Gibbons) Pty Ltd (the fifth cross-defendant) (CP Gibbons); Combined Property Investments Pty Ltd (the sixth cross-defendant) (CP Investments); Combined Projects (Redfern) Pty Ltd (the seventh cross-defendant) (CP Redfern); Combined Projects Holdings Pty Ltd (the eighth cross-defendant) (CP Holdings); Deicorp (the tenth cross-defendant) and Combined Projects (Arncliffe) Pty Ltd (the eleventh cross-defendant) (Combined Projects Arncliffe). 2. Plaza alleges that payments to the builder for the Broadway Development (Deicorp for Stage 1 and Deicorp Constructions for Stage 2) were not liable to be paid for various reasons, including a failure to issue payment certificates and invalid variations under the construction contracts. 3. Plaza further alleges that certain payments by Investments or by various of the Deicorp Entities to Jamil (the making of which it is alleged was not disclosed to Plaza) constituted bribes and that, by virtue of those bribes (and the alleged non-disclosures), Jamil was induced to act in certain ways to the detriment of Plaza (including to place his own signature on cheques drawing funds from the CBA Partnership Account, to forge Moustafa's signature on cheques drawing funds from that account and to fail to disclose a lower construction quote for the development (to which I refer as the Dyldam quote) – see below). It is alleged that each of the first, fourth to eighth and tenth cross-defendants has received a benefit as a result of the alleged bribes and breaches of fiduciary duty by the first and third cross-defendants and that the first, third to seventh, tenth and eleventh cross-defendants, by the said bribes paid by each, and by each of them not disclosing the same to Plaza, acted in concert to secure a mutual benefit, namely the enrichment of the Deicorp Group of companies by the several payments alleged. Plaza seeks declaratory and other relief, including equitable compensation. 4. In their respective defences to the fifth cross-claim (filed on 22 February 2019), Deiri Nominees (whose defence is a joint defence with Mr Deiri and Investments) and the Deicorp Entities admit to the making of various alleged payments (although they deny that the payments constituted bribes and they deny the claims for relief made against them). 5. In particular, the Deicorp Entities say that, in the Broadway Proceedings, Plaza's approach to this litigation has been to make wide-ranging allegations, which have neither technical nor substantive merit behind them. The Deicorp Entities maintain that it is extraordinary that Plaza seeks reimbursement from Deicorp of the entirety of the moneys paid for the construction of the Broadway Development, notwithstanding that the Broadway Partnership (comprising Plaza and Investments) received more than $70 million worth of construction work from Deicorp (and noting the expert opinion of their expert witness, Mr Johnny Portelli, that it would have been reasonable for Deicorp (or another builder) to have charged anywhere in the vicinity of $3 million to $8 million more for the very same outcome – as to which, see my comments at [1070] below). Sixth Broadway Cross-claim 1. The sixth cross-claim (the Sixth Broadway Cross-claim) was filed on 22 February 2019 by the builder, Deicorp, against Investments and Plaza, pleading a quantum meruit claim in the event that Plaza were to succeed on the allegations in the Fifth Broadway Cross-claim that payments made to Deicorp were not liable to be paid pursuant to the construction contracts. It is relevant here to note that, although the construction work was carried out by different Deiri entities for the two stages of the Broadway Development, (i.e., Deicorp and Deicorp Constructions respectively) the parties have here relevantly proceeded as if the relevant entity for both was Deicorp. Seventh Broadway Cross-claim 1. The seventh cross-claim (the Seventh Broadway Cross-claim) was filed on 8 October 2019 by CBA against Investments and Mr Deiri, on the one hand, and the Deiri Entities, on the other, raising claims which are premised on the success of Plaza on its claims against CBA. Accordingly, if Plaza does not succeed against CBA on the First Broadway Cross-claim and the Fifth Broadway Cross-claim, CBA seeks no relief on the Seventh Broadway Cross-claim. 2. In the Seventh Broadway Cross-claim, CBA raises: claims for moneys had and received; a claim for civil conspiracy; and a claim for misleading or deceptive conduct (alleging, inter alia, that representations were made that the cheques and payments signed by Mr Deiri were duly authorised, which representations are alleged to be false and misleading if Plaza's claims succeed). 3. I interpolate to note that, because of the lateness of the time (by reference to the then listed commencement date for the hearing) at which the Seventh Broadway Cross-claim was advanced (for the reasons explained in the course of submissions and I make clear that I make no criticism of CBA in this regard) and the concern not to delay the commencement of the hearing (which had by then been fixed for some time), the hearing proceeded on the basis that the change of position defence that the Deiri Entities foreshadowed to the Seventh Broadway Cross-claim as against them would be deferred (i.e., so that, if Plaza failed to make out its case against CBA, and hence there would be no need for CBA to press the Seventh Broadway Cross-claim, there would be no need for the Deiri Entities to agitate the change of position issues that the Deiri Entities would otherwise have wished to raise – see the debate before me on 3 and 4 October 2019). Thus, there has been a deferral of much of the issues arising under the Seventh Broadway Cross-claim pending the outcome of the claims made by Plaza against CBA. Eighth Broadway Cross-claim 1. The eighth cross-claim (the Eighth Broadway Cross-claim) was filed on 15 October 2019 by Investments and Mr Deiri against Plaza, Moustafa and CBA, for misleading conduct in contravention of schedule 2 to the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law) in the event that the Fifth Broadway Cross-claim and/or Seventh Broadway Cross-claim were to succeed. Relevantly, the allegation against Plaza and Moustafa is in sum that they falsely represented that Jamil was a person who could be trusted to act honestly in his dealings with the Broadway Partnership and the allegation against CBA relates to it allegedly falsely representing to Investments that the payments from the CBA Partnership Account were paid in accordance with the bank's mandate. 2. As to the claims against the Sayour Parties, Plaza characterises these as "evidently seeking to place upon the victims liability for implied warranties of the character and authority of someone who, ex hypothesi was corrupted by the cross claimants". Ninth Broadway Cross-claim 1. Finally, the ninth cross-claim (the Broadway Ninth Cross-claim) against Plaza and Matthews Street Pty Ltd (Matthews Street Co) seeks the winding up of the company should Plaza's claim that it has a constructive trust in respect of that company or its assets fail (as to which, see further below). Arncliffe Proceedings 1. The second set of proceedings, the Arncliffe Proceedings (it will be recalled, 2017/00180712), relates to dealings between Mr Deiri and Jamil in respect of a different property development (the timing of which overlapped to some extent with the Broadway Development), this development being in Arncliffe (the Arncliffe Development). Arncliffe Development and brief background 1. In January 2014 (thus after the construction of the retail complex of the Broadway Development but before the completion of the residential apartments), Combined Projects Arncliffe (as noted at [60] above, the eleventh cross-defendant to the Fifth Broadway Cross-claim) was incorporated with two shareholders, Deiri Nominees and Sayour Holdings (see, for example, at [438] below) to develop a property at Arncliffe (the Arncliffe Property) into residential apartments and retail shops. 2. I interpose to note that there are various issues and disputes as to the manner in which Combined Projects Arncliffe was incorporated and as to whether Sayour Holdings ever became a member of the company, but I deal with that below. For present purposes, I simply note that, on incorporation, the Australian Securities and Investments Commission (ASIC) records disclosed the members of the company as referred to above. 3. Mr Deiri is recorded on the company register as the sole director of Combined Projects Arncliffe (though this is one of the issues in dispute in the proceedings). Mr Deiri's dealings with Sayour Holdings, up to the time of Jamil's death, were all through Jamil. Deicorp Constructions performed the construction work in relation to the Arncliffe Development pursuant to the Arncliffe Construction Contract (see below). The Arncliffe Development is now complete. The sale of the last of the residential apartments settled on 11 February 2019 (see at [711] below). 4. In 2017, Sayour Holdings (as trustee for the Sayour 2 Family Trust) commenced the Arncliffe Proceedings, by way of originating process in the Corporations List, against Combined Projects Arncliffe, Deiri Nominees and Mr Deiri. Sayour Holdings (as 50% shareholder of Combined Projects Arncliffe) sought relief to redress the alleged oppressive conduct of the company's affairs by Deiri Nominees (the other 50% shareholder) and Mr Deiri, and alleged breaches of director's duties by Mr Deiri. Sayour Holdings sought relief pursuant to s 247A of the Corporations Act 2001 (Cth) (Corporations Act) for access to Combined Projects Arncliffe's books and to appoint a director to its board. I interpose to observe that that aspect of the claimed relief is now otiose; as are other aspects of the relief initially sought by Sayour Holdings. 5. Pursuant to leave granted on 9 May 2019 in the Arncliffe Proceedings, on 10 May 2019, Sayour Holdings filed an amended statement of first cross-claim in the name of Combined Projects Arncliffe as a derivative action under s 233 of the Corporations Act (leave for the bringing of a derivative suit subsequently being granted pursuant to s 237 of the Corporations Act – see In the matter of Combined Projects (Arncliffe) Pty Ltd [2019] NSWSC 1070). 6. In that amended statement of first cross-claim (the First Arncliffe Cross-claim), claims are made by Sayour Holdings in the name of Combined Projects Arncliffe against the following parties: Mr Deiri and Deiri Nominees (the first and second cross-defendants); Konstructions Pty Ltd (the third cross-defendant) (Konstructions); Zapphire Investments Pty Ltd (the fourth cross-defendant) (Zapphire); Deicorp Properties (the fifth cross-defendant) and Deicorp Constructions (the sixth cross-defendant). Cross-claims in the Arncliffe Proceedings 1. Again, it is convenient to frame the issues for determination by reference to the various cross-claims. First Arncliffe Cross-claim 1. The First Arncliffe Cross-claim alleges that a "development management fee" charged by Deiri Nominees (the Development Management Fee) and "site identification fees" (the Site Identification Fee(s)) paid to each of Konstructions and Zapphire were unauthorised; and that Mr Deiri breached his duties as director of Combined Projects Arncliffe in causing those payments to be made. 2. The relief sought in the name of Combined Projects Arncliffe in the First Arncliffe Cross-claim includes relief relating to a "Development Management Agreement" purportedly of 24 March 2016 (see at [653] below) between Combined Projects Arncliffe and Deiri Nominees as trustee for the F Deiri Family Trust (the Development Management Agreement), which it is alleged is void and of no effect, including a trust claim and other claims relating to: sums of $7,239,425.44 and $723,942.54 paid to Deiri Nominees on about 3 and 17 April 2018, respectively; a sum of $7.92 million paid to Konstructions on about 29 March 2018 and a sum of $7.898 million paid to Zapphire, as trustee for the Zapphire Investments Family Trust, also on or around 29 March 2018 (those payments being the subject of allegations under the heading "the purported Site Identification Fees" – and, see at [690] below); a sum of $5,299,704.23 paid to or for the benefit of Deiri Nominees on or around 28 February 2018; claims for equitable compensation or orders for compensation pursuant to s 1317H of the Corporations Act against the first cross-defendant (Mr Deiri); and other relief. Second Arncliffe Cross-claim 1. On 24 June 2019, Deicorp Constructions, the sixth cross-defendant to the First Arncliffe Cross-Claim, filed its own cross-claim (the Second Arncliffe Cross-claim) in the Arncliffe Proceedings, seeking judgment against Combined Projects Arncliffe in the sum of $3,617,298.76, or such amounts as might be determined, upon a quantum meruit and/or quantum valebat basis, in relation to the goods and services that were allegedly provided by Deicorp Constructions to Combined Projects Arncliffe the subject of the provisional sum adjustment contained in a progress claim made in the course of the Arncliffe Development (being Progress Claim 24, to which I refer as PC 24). Third Arncliffe Cross-Claim 1. On 26 August 2019, Deiri Nominees and Mr Deiri (to whom I will refer in the context of the Arncliffe Proceedings as the Deiri Parties, although it should be noted that in relation to the Broadway Proceedings that term also includes Investments) filed the Third Arncliffe Cross-claim. 2. The Third Arncliffe Cross-claim advances a primary case for relief to correct the company registers held by ASIC: to remove Sayour Holdings as a registered member of Combined Projects Arncliffe; and to remove Moustafa, Jamil and Ms Yesmine Sayour (Jamil's sister, to whom I will refer as Yesmine) as registered members, secretaries or directors of Sayour Holdings. Alternatively, relief is sought to reflect the position that Jamil had authority to act for Sayour Holdings in relation to the Arncliffe Development and to bind it to the alleged Arncliffe Agreement and the transactions which Moustafa impugns in the First Arncliffe Cross-claim. 3. By prayers 1 to 5, the Third Arncliffe Cross-claim seeks declarations to the effect that: Moustafa was never a member or director of Sayour Holdings; Yesmine was never a director of Sayour Holdings; Jamil was never a director of Sayour Holdings; and, since its incorporation, Sayour Holdings has had no directors. 4. By prayer 6, an order is sought pursuant to s 175 of the Corporations Act or the Court's inherent jurisdiction that Moustafa's name be removed from Sayour Holdings' register of members. By prayer 7, an order is sought pursuant to s 1322(4)(b) of the Corporations Act or the Court's inherent jurisdiction, that the register kept by ASIC in respect of Sayour Holdings be rectified: by removing the record of Moustafa as a director, secretary and member since 16 December 2013; by removing the record of Yesmine as a director since 26 March 2018; and by removing the record of Jamil as a director from 21 August 2014 to 6 October 2016. 5. By prayers 8 and 9, orders are sought dismissing Sayour Holdings' leave to proceed in the name of Combined Projects Arncliffe, and dismissing the Arncliffe Proceedings, on the basis that Sayour Holdings had no authority to act, for want of directors. 6. By prayers 10 and 11, a declaration is sought that Sayour Holdings has never been a member of Combined Projects Arncliffe. By prayer 12, an order is sought pursuant to s 1322(4)(b) of the Corporations Act or the Court's inherent jurisdiction that the register kept by ASIC in respect of Combined Projects Arncliffe be rectified by removing the record of Sayour Holdings as a member since 29 January 2014. 7. As an alternative case, the Deiri Parties seek, by prayers 14 and 15, a declaration that at all times from 21 August 2014 to 6 October 2015, Jamil was the sole director of Sayour Holdings; and an order under s1322(4)(b) of the Corporations Act or the Court's inherent jurisdiction that the register kept by ASIC in respect of Sayour Holdings be rectified by recording Jamil as the sole director and secretary from 21 August 2014 to 6 October 2015. 8. I now turn to a detailed chronology of the relevant events. Chronology of events 1. As noted, there was some overlap in the time frame for the Broadway Development and Arncliffe Development and related transactions (and this overlap is of relevance as setting the context for some of the transactions or dealings between the principal players). Accordingly, I have amalgamated within the following chronology the events in both sets of proceedings rather than setting out a separate chronology of events for each. Plaza's incorporation 1. Plaza was incorporated (under the name MJ Distributors Pty Ltd) on 1 December 2005. It changed its name to Sayour Investments on 3 August 2007. Moustafa's evidence is that he intended Plaza to be a trustee of a family trust (see Moustafa's affidavit sworn on 31 May 2019 at [25]-[29]). 2. Jamil formally became a director of Plaza in or around November 2007. Jamil ceased to be a director of the company on or around 30 July 2008 (shortly after the Sayour Family Trust was established – see below). Sayour Family Trust established 1. The Sayour Family Trust was established by trust deed with Plaza (then known as Sayour Investments) as its trustee (the Sayour Family Trust Deed). Under the Sayour Family Trust Deed, there were two classes of beneficiaries: "General Beneficiaries" as defined in cl 1.11; and "Specified Beneficiaries" as defined in cl 1.20. The "Specified Beneficiaries" (as identified in item 6 of the Schedule to the Sayour Family Trust Deed) included Moustafa's wife, Fatima, and daughters, but not Jamil (although Jamil did fall within the class of General Beneficiaries, being a child of Fatima and the brother of the other Specified Beneficiaries). 2. Accordingly, subject to events that might have led Jamil to fall within the definition of "excluded class" for the purposes of cl 1.10.4 of the Sayour Family Trust Deed, Jamil fell within the prescribed categories of relationship to those named so as to be eligible as an object of appointment under the Sayour Family Trust Deed). The explanation for his exclusion from the list of "Specified Beneficiaries" appears to be that Moustafa did not trust Jamil's judgment (see Moustafa's affidavit sworn on 27 October 2016 at [8]-[9]; see also T 314.25-T 315.45). I interpose to observe that Jamil's exclusion from the class of Specified Beneficiaries (i.e., the primary beneficiaries of the Sayour Family Trust) may explain the suggestion that Jamil later wished to pursue the Arncliffe Development as a venture for "his family" (see below). 3. As it becomes relevant in due course to consider the powers of the trustee of the Sayour Family Trust, I note that cl 7 of the Sayour Family Trust Deed conferred, in addition to the powers otherwise conferred upon trustees by law, a number of additional powers. It is relevant here particularly to note cll 7.20 and 7.49, which empowered the trustee: 7.20 to open any account or accounts with any bank or banks credit union building society and other financial institutions and to operate by and in all usual ways any such account or accounts and if thought fit to delegate to any person the authority to sign cheques and operate upon the account without the person being liable or responsible for any loss resulting therefrom; […] 7.49 to confer a power of attorney including an enduring power of attorney on such person which the Trustee determines for the purposes of the administration of the trust Westpac #202 Account opened 1. On or around 12 August 2008, an account was opened with Westpac (the Westpac #202 Account) in the names of Jamil and Moustafa, that account being designated as (and I have elsewhere held it to be – see Sayour v Elliott [2017] NSWSC 713, to which I refer as the Estate Proceedings Judgment) a trust account (i.e., the account was styled a trust account for the Sayour Family Trust). Acquisition by Plaza of properties in Punchbowl 1. According to Moustafa, from 2008, Plaza pursued a programme of acquiring sites containing and adjacent to the Broadway Site, with a view to future development. The first such acquisition was the acquisition of the Punchbowl Returned and Services League (RSL) site, by contract dated 15 March 2008 (the contract being entered into prior to the establishment of the Sayour Family Trust but the purchaser there being described as "Sayour Investments Pty Limited as trustee for the SAYOUR FAMILY TRUST"). I note that, on the transfer, the words "as trustee for the Sayour Family Trust" were crossed out. 2. By contract for sale dated 28 August 2009, Plaza (then known as Sayour Investments) (expressly as trustee for the Sayour Family Trust) acquired further property at Punchbowl (1-9 Broadway, Punchbowl). Again, the transfer did not specify that the transferee was acting as trustee of the Sayour Family Trust. 3. By separate contracts each dated 13 November 2009, Plaza (again expressly as trustee for the Sayour Family Trust) acquired two further properties that subsequently became part of the Broadway Site (18 and 20 Matthews Street, Punchbowl). As I explain in due course, these properties are different from the Matthews Street Property in issue in the Broadway Proceedings (see, particularly, as defined at [125] below). Powers of Attorney granted in favour of Jamil in May 2010 1. On 30 May 2010, each of Moustafa and Plaza (as trustee for the Sayour Family Trust) executed powers of attorney in favour of Jamil (the 30 May 2010 Powers of Attorney). I interpose to note that the scope of the authority conferred on Jamil by those, and subsequent, powers of attorney is hotly in dispute in these proceedings and is dealt with in due course. 2. The 30 May 2010 Powers of Attorney (and a subsequent Power of Attorney – see further below) provided, relevantly, that: The attorney may exercise the authority conferred on the Attorney by Part 2 of the Power of Attorney Act 2003 to do on the Grantor's behalf anything the Grantor may lawfully authorise an attorney to do. The attorney's authority is subject to any additional details specified in part 2 of this document. … Part 2 – Additional powers and restrictions 8. The powers to be exercised under this power of attorney are not limited except to encumbering or selling any of my real estate properties where my attorney IS NOT empowered to sell, dispose of, assign, give, part with or grant any part of my real or personal estates; or seek finance or refinance or provide any guarantee or assurance on my behalf in any form or shape. Further Westpac account opened – the Westpac #833 Account 1. On or around 26 July 2010, another Westpac account was opened (the Westpac #833 Account), again designated as a trustee account. Initial proposal for development of Broadway Site – meeting between Jamil and Mr Deiri 1. By 2010, Plaza (then still known as Sayour Investments) was thus the owner of the various properties that ultimately comprised the Broadway Site (some at least of which had been acquired expressly in its capacity as trustee of the Sayour Family Trust). However, at that stage, the development of the Broadway Site which Moustafa then contemplated appears not to have been as extensive as it ultimately transpired to be. So, for example, a quote for demolition works at the Broadway Site was provided to Biomed (noting that it was expressed "attention: Jamil") by a company (seemingly not associated with the Deiri interests) known as ACE Demolition & Excavation Pty Ltd (ACE Demolition), at a specified cost of $245,000 excluding GST (relevantly, this being much less than the ultimate excavation costs, which were in the order of several million dollars). 2. On 9 August 2010, Jamil met Mr Deiri for the first time. I note that, although in Mr Deiri's affidavit sworn on 26 June 2017, Mr Deiri placed his first introduction to Jamil as occurring around October 2010 (see at [5]), the contemporaneous documents show that this must be incorrect: on 10 August 2010, Jamil sent an email to Mr Deiri referring to a meeting the previous day and asking Mr Deiri to organise a meeting with the banks. 3. In any event, Mr Deiri's evidence is that Jamil expressed interest in Mr Deiri's company, Deicorp, acting as the builder of a shopping centre and units on the Broadway Site; and that, by about the Christmas of 2010, he and Jamil had agreed to Deicorp carrying out design work for the Broadway Development (see, for example, Mr Deiri's affidavit sworn 26 June 2017 at [6]). Mr Zafiropoulos' interest in potential property development in Arncliffe 1. Meanwhile, according to Mr William (Bill) Zafiropoulos (the principal of Zapphire, to which company, much later, Mr Deiri caused an impugned site identification fee to be paid in relation to the Arncliffe Development – see below), in around 2010, Mr Zafiropoulos (a dentist by profession but who also had had involvement in various property developments) obtained knowledge of a change to the relevant Local Environment Plans (LEPs) for the Arncliffe area and became interested in potential Arncliffe developments. This is also when he says he met (as his patient) Mr Fadi Ibrahim (Jamil's cousin), who he says later introduced him to Jamil (see Mr Zafiropoulos' affidavit sworn 9 October 2019 at [21], [25]-[26]). 2. I interpose to note that the eventual amendment to the relevant LEPs does not appear to have been gazetted until late 2011 (see at [195] below). Moustafa's involvement in early 2011 1. It is not entirely clear when Moustafa was first introduced to Mr Deiri. Mr Deiri's account is that this occurred, after several discussions with Jamil, in around early 2011. In his affidavit sworn on 22 August 2019 (at [25]-[26]), Mr Deiri places his first meeting with Moustafa as being in about January 2011. 2. There is evidence that Moustafa returned to Australia from an overseas trip on 28 February 2011 (see the "Movements Details" document). However, it is not clear from that document when Moustafa had departed Australia. Self-evidently, if Moustafa was overseas in January and February 2011, any face to face meeting in early 2011 between the two could not have been until March 2011. However, nothing probably turns on this (other than insofar as it may point to some unreliability in Mr Deiri's recollection of dates). 3. Mr Deiri's evidence is that Moustafa told him that Jamil "will be running the entire project from our side" and that Moustafa said that he (Moustafa) was "semi-retired" and that "Jamil runs everything" (see Mr Deiri's affidavit sworn on 22 August 2019 at [25]-[26]). Mr Deiri also says that Moustafa said (several times during the project) that, "dealing with me is like dealing with Jamil" and "[d]ealing with Jamil is like dealing with me" (see his affidavit sworn on 22 August 2019 at [40]). Moustafa takes issue with this. 4. Mr Deiri further says that Jamil asked him to send emails to his (Jamil's) Biomed email address and that Moustafa did not have email (which the Deiri Parties rely upon as amounting to Jamil being the primary point of contact) (see, for example, Mr Deiri's affidavit sworn on 22 August 2019 at [28]). At least in terms of email communications, it is clear that these were via Jamil's email address; and I accept that Moustafa did not operate his own email account. However, what turns on this is another issue. Broadway Coordination Meeting No 1 – January 2011 1. The first "Punchbowl Plaza" Coordination Meeting occurred on 20 January 2011 (Broadway Coordination Meeting No 1) and was attended by Jamil. 2. The minutes of this meeting (notably, on Deicorp Constructions' letterhead) record, inter alia, Jamil's attendance (on behalf of Biomed) and the attendance of Mr Deiri and Mr Tim Smith on behalf of Deicorp. I interpose to note that it is not until Coordination Meeting No 3 on 2 February 2011 (as to which, see below) that Jamil is recorded as being in attendance for "Sayour Investments". 3. The minutes also record that "HHMA" was to be the architect for the "Retail DA, CC and Construction documentation" and was to "review/comment on the current retail DA proposal". 4. Pausing here, the minutes of project coordination meetings in relation to the Broadway Development record that, together with Jamil, Moustafa attended these meetings from about March to July 2011. It appears that the first such meeting at which Moustafa is recorded as attending was Broadway Coordination Meeting No 6 on 9 March 2011 (again, as to which, see below). Jamil was also recorded as attending that meeting. Moustafa's contact details are there recorded as "c/- Jamil" and Jamil's details are listed as being his Biomed email address. Proposal for partnership in relation to Broadway Development 1. Up until around mid-2011, it seems that the Deiri and Sayour interests were simply negotiating for Mr Deiri's company (Deicorp) to be engaged by Plaza to design and construct the retail development (for around $40 million). 2. Mr Deiri's evidence is that, at some point in around mid-2011, Jamil suggested to Mr Deiri that he buy half the land and develop the project as a partner and that they agreed to leave responsibility for the design, construction and finance to Mr Deiri and that Jamil would handle the leasing (see Mr Deiri's affidavit sworn on 22 August 2019 at [47]). Relevantly, Mr Deiri's affidavit evidence is that he was approached by Jamil about the prospect of a joint venture and agreed upon the terms with him (see at [47]): Jamil said: "I have been talking with my father. This is a big project for us to do. We are working really well together. Would you be interested in buying half our share and developing it with us?" I said: "I am happy to do that. As you said, we seem to be getting along really well." Jamil said: "That's great. As you know by now, dealing with my dad is like dealing with me and dealing with me is like dealing with my dad." I said: "How do you plan on doing this together then? Do you have any ideas?" Jamil said: "Well I know nothing about design and construct. That's why I have engaged you. I want to leave that side of the project for you to manage. I will also leave the finance for you to arrange through all your contacts. I have started working with Woolworths to get them locked into a lease. If you are happy, I can continue this and manage the leasing of the centre and you can manage the design and construction." I said: "Okay." 1. Meanwhile, Moustafa's evidence is that, in around mid-2011, he told Jamil that he did not want to do the development if it would cost $70 million; that Jamil then proposed that Mr Deiri be a partner and said he would try to lower the construction cost; that Jamil said the land was worth $12 million and Moustafa said it was worth more; that Jamil returned a few days later and said he had another valuation for $16 million; and that a few days after that Jamil told Moustafa that Mr Deiri was prepared to enter into a joint venture with them (see Moustafa's affidavit sworn on 31 May 2019 at [90]-[94]): Jamil: "Father, I want to talk about the development." Me: "I've made my decision." Jamil: "What if Fouad fully came into the project, not just as a builder, what if we did it as a joint venture?" Me: "Even if we did it as a joint venture, I am not going to pay 70 million dollars." Jamil: "Would you reconsider if I could squeeze Fouad and make the price less?" Me: "How much can you get it down?" Jamil: "64 or 65 million?" Me: "Maybe. What do you mean about a joint venture anyway?" Jamil: "It means that Fouad will own half of the land." Me: "Will Fouad pay me for the land? I bought that land with my money." Jamil: "He will have to pay you for the land if he joint ventures with us." Me: "How much will he pay me for?" Jamil: "I will have to get a valuation of the land." Me: "Fine." 1. More specifically, Mr Deiri has deposed to discussions with Jamil about the purchase of 50% of the Broadway Site; that Jamil asked for $6 million and later said that they (i.e., the Sayour interests) wanted an additional $2 million to cover costs incurred so far; and that he (Mr Deiri) agreed to pay the $2 million progressively, after he paid the $6 million (see Mr Deiri's affidavit sworn on 22 August 2019 at [49]-[51]). Mr Deiri says that they then agreed to proceed and to an equal (50%) profit split on the project. 2. There is in evidence a document headed "'Broadway Plaza' Retail Feasability [sic]", date stamped 12 August 2011, (apparently prepared by Mr Deiri – see [127] below). This would seem to place the above discussions as taking place around August 2011 (and certainly before 12 August 2011). 3. There is a dispute (which I will address in due course) as to who was to be liable for the excavation costs and, in particular, whether they were to be funded by the parties out of the construction facility. However, what does not appear to be disputed is that Moustafa met with Mr Deiri on a number of occasions in late 2011, that they discussed the overall price of the Broadway Development to be funded using loans from CBA and that they contemplated that CBA would be repaid as soon as the residential component of the Broadway Development was complete. 4. Moustafa's evidence, which the Deiri Parties say should not be accepted, is that in mid-2011 he had a conversation with Mr Deiri in which Mr Deiri said words to the following effect: Uncle, the DA that we are going to get is a special DA for digging only. The digging will take time. It will take 6, or 7 months to finish. We don't have to borrow money from the bank. Why we have to pay interest for now. We can use our money now and then borrow the money from the bank when we get the DA. You put in 2 million now and when that is used up, I will put in 2 million. We will put on the contract [of sale of land] 6 million dollars. After the project finishes, we can get this money back. 1. Pausing here, as adverted to earlier, the purchase by Investments of a half share in the land comprising the Broadway Site is identified by Plaza as one of the agreements entered into at the time of entry into the Broadway Partnership. Plaza says that the parties also agreed to bring the land into the partnership as partnership property and on other terms. The agreement to bring the land in as partnership property is said by Plaza to be reflected in the partners' equity shares in the statement of assets and liabilities prepared by Investments provided in accordance with the directions made by Hallen J for the partnership accounting. Matthews Street Pty Ltd (Matthews Street Co) 1. According to Mr Deiri (see Mr Deiri's affidavit sworn on 22 August 2019 at [84]), in the second half of 2011 (i.e., before construction on the Broadway Development had commenced), Jamil suggested to him a new development of properties next to the Broadway Site, including buying a property at 14 Matthews Street (the Matthews Street Property). Mr Deiri says he agreed and that they decided to set up a special purpose vehicle (to which I have referred to above at [71] as Matthews Street Co) (and see at [164] below). It is relevant to note, as already adverted to at [100], that the Matthews Street Property the subject of this discussion (being the property at no 14) is distinct from the two other Matthews Street properties that ultimately became part of the Broadway Site (being the properties at no 18 and no 20). 2. Meanwhile, Moustafa's evidence is that, at some time in around 2011, Moustafa had negotiated the purchase of the Matthews Street Property with the vendor, Ms Riley, for an amount of $590,000. He says that he instructed a solicitor (Mr Naef) to act on the conveyance on behalf of Plaza and that he left it to Jamil to complete instructions for the mechanics of that purchase on behalf of Plaza (see, for example, Moustafa's affidavit sworn on 31 May 2019 at [47]ff). There is in evidence a draft printed form contract, apparently prepared by the vendor's solicitor, on which the purchaser's name is shown as "Sayour Investments" (it will be recalled, the previous name of Plaza), albeit that the copy of the contract in evidence has the purchaser's name crossed out by a hand drawn line). This is consistent with Moustafa's evidence that the purchase of the Matthews Street Property was intended by him to be in Plaza's name and that this was communicated at some stage to the vendor's solicitor. I interpose to record that no evidence was adduced from Mr Naef in the proceedings. Deicorp Constructions tender and Dyldam quote – September 2011 1. By September 2011, it appears that Mr Deiri was foreshadowing a need for further partnership contributions. On or around 16 September 2011, Mr Deiri sent an email to Jamil referring to a discussion the previous day in relation to, "the additional monies required", and attaching the August 2011 feasibility document (see at [121] above), saying: In regards to our discussion yesterday in relation to the additional moneys required, the reason we have to put in additional funds is due solely to the fact the valuation did not come in were [sic] we needed it to be, it has nothing to do with the construction cost, what a project costs to complete is what it costs. In my originally [sic] feasibility which I gave to you the bank and the valuer, I factored in the retail component at a 7.25% cap rate on a net rental income of $4.1m which gave us a value of $56.0 Million, yes that was a bit on the high side and I knew it, but I was hoping the valuation would came in around $53.0 or $54.0 million, which meant we would not of needed to put in any additional funds, the valuation only came in at $49.0 million and even that took a lot of hard work to get the valuer up to $49.0 million. Attached is the original feasibility I issued out to everyone, based on that feasibility no additional funds were required, if you re call I have mentioned to you on more than one occasion if the valuation does not come in were we need it to be we will require additional monies to be put in, so when you say to me it doesn't make sense because the land is encumbered [sic], that is an enormous help that the land is unencumbered, but the final position is all to do with the valuation, and all valuers are guided by their codes and the banks. … I can assure you 99% of all projects that require additional funds are due to the valuations. … 1. There is also evidence that, in September 2011 (consistent with Moustafa's account that Jamil had said to him in mid-2011 that he would try to lower the construction cost – see [119] above), Jamil approached another entity, Dyldam Developments Pty Ltd (Dyldam) to obtain a quote for the project. 2. By reference to an email Jamil sent to Mr Sam Fayad of Dyldam on 16 September 2011, stating "[n]ice to meet you yesterday", it appears that, on 15 September 2011, Jamil met Mr Fayad. Jamil's email attached a "geo tech" report. On 18 September 2011, Mr Fayad responded by email to Jamil that he would provide, "the quote for your project by the end of the week max" (see Ex 15 at p 116). 3. The following day, on 19 September 2011 at 11.25am, Jamil sent an email to Mr Deiri, as follows: Hi Fouad, Look I want to be honest with you so I thought this time I will email you that way you have more time to absorb what I am saying. I'm finding it difficult understanding how someone I don't know quotes me a price of $55,000,000 (32,000,000) retail (23,000,000) residential. And on top of that is a lump sum with no variation all along you have been telling me that the bank needs to see this well not in this case. Also this company is a very reputable company and well known they also are willing to invest as a joint venture 50% at a land value between 22-24 million. Fouad as I mentioned to you on Friday we have come a long way but at the end of the day you are the one that told me never to emotional [sic] attach yourself to a project therefore [sic] I have done that, at the end of the day you are at 62,400,000 plus variations (3-5million). A quick feasibility - 55,000,000 construction 3,000,000 woolies 1,200,000 consultants 1,200,000 council contribution 5,500,000 interest 22,000,000 land value 1,000,000 agent fees 300,000 agent fees (commercial) Total 89,200,000 Overall Value is $119,000,000 therefore giving you a 25% return. Even if you sell all the units and pay 5,500,000 GST you still end up with a 22% return. The engineering plans for Anthony hasham are 3-4 million extra then what they should be so [sic] are the units around 3,800,000 more as I discussed with you Friday. I therefore would like you to go over those plans and see how you can match that pricing. Please understand Fouad that as a person I really respect you and the whole crew at deicorp [sic] but at the end of the day we are talking in a difference of millions of dollars…. 1. Pausing here, there seems to be no documentary evidence to suggest that, at this stage, Jamil had any written quote from any other company (let alone from Dyldam). Indeed, Mr Fayad's 18 September 2011 email referred to a quote that would be provided by the "end of the week max". It is, of course, conceivable that Jamil was referring at paragraph 2 of the email to Mr Deiri to an oral quote, but that is not what the 19 September 2011 email to Mr Deiri on its face appears to convey; nor does there appear to have been any suggestion in the correspondence between Jamil and Mr Fayad of a joint venture with Dyldam at this stage. This would support the inference that Jamil was here trying to do no more than bargain down the construction cost (as he had indicated to Moustafa he would do); and not that there was a viable competing quote at that stage (which is reinforced by the later 23 September 2011 email from Mr Fayad – see at [134] below). Mr Deiri's evidence is that that some time after this email, he telephoned Jamil and told him he was disappointed, and said "[i]f the other guy is offering you less, I can't do it for that price" (see, for example, Mr Deiri's affidavit sworn on 22 August 2019 at [30]). Thus, if this was indeed a negotiating tactic by Jamil and assuming Mr Deiri's account is correct, it would seem that Mr Deiri was here calling Jamil's bluff, so to speak. 2. In any event, on 22 September 2011, Mr Deiri copied to Jamil an email sent by him to Colliers International (Colliers) and to Westpac (again, the then anticipated financier), advising that all costing for the project had been completed and setting out final feasibility figures. The email stated that, "Deicorp Constructions will be entering into two Australian Standards Design and Construct Lump Sum Contracts with the JV entity: the first contract will be for Stage One been [sic] the two Basement Levels and both Retail Levels, up to the Residential Podium Slab for a lump sum price of [$40 million]. The email went on, "Stage Two for the 152 apartments above the Podium Slab for a lump sum of [$24 million]". The email advised that, based on the revised feasibility, the total development cost for the first stage would be $59.75 million; and for the second, $51.32 million. The email attached revised feasibility figures dated 22 August 2011 for both stages. 3. Mr Deiri, therefore, clearly seems to have been proceeding on the basis that the joint venture was still going ahead, despite receipt of Jamil's email on or around 19 September 2011 and whatever was said in the conversation which Mr Deiri says he then had with Jamil. 4. On 23 September 2011 (a Friday), Mr Fayad (it will be recalled, of Dyldam) sent an email to Jamil asking for until 5 pm on 26 September 2011 (the Monday) to finalise a quote (see Ex 15 at p 122), saying that, "[a]bout the quote for your project can u please give me til Monday 5 pm to finalized [sic] it for you it's a big project and we need to get it write [sic] for u". Again, I note that this does not indicate that there had been any agreement nor does it reveal any suggestion at that stage of a joint venture with Dyldam. 5. On 26 September 2011 (i.e., the following Monday), at 10.10 am, Jamil (apparently chasing the promised quote) sent an email to Mr Fayad, asking "[w]ill you be emailing the quote today?". The email went on to ask (this seemingly being, at least by reference to the written documents, for the first time): Can you also advise if you wanted to do a Joint venture what would be your offer and how would you do it. Please all discussion are confidential thank you. 1. Mr Fayad responded the same day (at 11.06 am) that: HI JAMIL HAVE U GOT TIME TO GO OVER A FEW THINGS AT 5pm today at dyldam office ? I have worked out the cost but it's a quick one need to ask for ur opinion on few things ... and about joint venture. yes will have to work out a deal to suit u and dyldam [sic] 1. Jamil replied, "[y]es I will see you at 5pm thanks" (see Ex 15 at pp 120-121). 2. Pausing here, again none of the above communications suggests that there was at that stage any competing joint venture proposal at all (let alone one that would have been capable of acceptance by the Broadway Partnership); nor even that Jamil was at that stage seriously considering such a proposal. This is relevant particularly in the context of Moustafa's complaint in the Broadway Proceedings as to the non-disclosure to him of the competing quote and his contention that the making of bribes was intended or calculated to induce Jamil not to disclose the quote (and, indeed, to proceed with the partnership with Mr Deiri's company). 3. On the same day (26 September 2011), on the letterhead of "DeiCorp Construction Pty Ltd", a tender was submitted to Plaza (addressed to Jamil) for the design and construction works of the "proposed retail/residential retail" development at a lump sum fixed price of $40 million plus GST. I note that the Australian Business Number (ABN) for the tendering entity is ABN 15 117 191 885 (i.e., that of Deicorp Constructions cf the party issuing the subsequent tender on 7 February 2012 – see at [234] below). 4. The 26 September 2011 tender noted that it allowed for "complete Bulk Excavation and Detailed Excavation" (item 8) and that it allowed for construction up to the "Residential Podium Level". The Deiri Parties note that the quote expressly allowed for excavation work as part of that price (inconsistent with Plaza's assertion that Investments was to bear the cost of excavation). Moustafa says that Jamil gave the tender to him (see Moustafa's affidavit sworn on 31 May 2019 at [100]). 5. On 27 September 2011 at 3.42 pm, Dyldam sent an email to Jamil attaching a quote, addressed to Jamil at his Biomed email address, quoting the sum of $59.7 million plus GST for the Broadway Development, comprising $20.68 million plus GST for the basement; $21.7 million plus GST for the apartments; and $17.32 million plus GST for the retail ("Shell Only"); and excluding excavation works. As adverted to above, Moustafa and the Sayour Parties complain in the present proceedings that the Dyldam quote was not disclosed to him. I interpose to note that this quote is not on all fours with the prices to which reference was made in Jamil's email on 19 September 2011 – see [130] above). Stage 1 Construction Contract 1. On 28 September 2011, Plaza executed a "Formal Instrument of Agreement" (Australian Standard AS 4950-2006) with "Deicorp Constructions Pty Ltd ABN 15 117 191 885)" for the contract sum of $40 million (the Stage 1 Construction Contract). 2. It is not disputed that this was the construction contract for Stage 1 of the Broadway Development (it will be recalled, being the retail component), nor that it was signed by Moustafa on behalf of Plaza as Principal and by Mr Deiri on behalf of Deicorp Constructions as Contractor (though the subsequent tender was confusingly by Deicorp, not Deicorp Constructions). It is also not disputed that Moustafa was not aware, when he signed the Stage 1 Construction Contract, of the Dyldam quote. 3. The Stage 1 Construction Contract expressly incorporated the tender submission dated 26 September 2011 and referred to standard form "General conditions of contract for design and construct". 4. It would seem that agreement was later reached on a Deicorp Constructions' tender to design and construct the residential development for $23.5 million. Plaza says that there was an agreed tender for Stage 2 (at $23.5 million) and that the subsequent change to $24.85 million was not agreed by Plaza (as to which, see at [356] below). Agreement re acquisition of half share of Broadway Site 1. As noted earlier, Investments' case is that it purchased from Plaza a 50% interest in the Broadway Site for a total sum of $8 million (the $6 million contract price and an additional amount of $2 million). It says that it paid the purchase price in instalments over the period from 2011 to 2012; and it says that the first of those instalments was an amount paid by Mr Deiri in October 2011 of $400,000 (prior to the contract being signed), which Mr Deiri says was a deposit towards the purchase of the Broadway Site, as a sign of good faith, before the written contract of sale was executed. 2. In that regard, Mr Deiri deposes (see Mr Deiri's affidavit sworn on 22 August 2019 at [60]) to a conversation with Jamil that he says took place in early October 2011: Jamil said: "If you want to proceed as partners, as a sign of good faith could you pay $400,000 of the $8 million. " I said: "Yes. That's fine." 1. Mr Deiri's evidence in that respect is that, when he agreed to pay for a $400,000 deposit for the land (again, he says as a sign of good faith), he (Mr Deiri) said that it would have to be a deferred balance for the deposit, to which Jamil said "[t]hat's fine" (see Mr Deiri's affidavit sworn on 22 August 2019 at [60]-[63]). Mr Deiri's evidence is that he and Jamil agreed that Investments would pay the balance of the ($8 million) purchase price progressively, and that no interest would be charged unless Investments "pulled out" of the purchase altogether. 2. Relevantly, there is in evidence a copy of a cheque dated 10 October 2011 drawn on a bank account in the name of "Deiri Nominees Pty Limited ATF the F Deiri Family Trust" made payable to "Micheal [sic] Sayour" and signed by Mr Deiri. The Deiri Parties say that this was the first of the thirteen payments in respect of the land/costs (i.e., one of 13) and that it represented the deposit payable under the contract of sale for the Broadway Site. There is in evidence a bank statement showing that that amount was debited from Deiri Nominees' bank account on 11 October 2011. At this stage, Investments had not yet been incorporated (see at [193] below). 3. Plaza complains that this payment was not disclosed by Mr Deiri to Moustafa and maintains that it was a bribe (indeed Plaza says that, so far as is known, this is the first "bribe" that Mr Deiri paid to Jamil). Plaza says that this is an example of the price of a bribe being "loaded into" a contract (using the terminology to be found in one of the leading cases on bribes, Hovenden v Millhoff (1900) 83 LT 41 at 42; [1900-3] All ER Rep 848 (Hovenden v Millhoff) per Smith J (Williams and Romer JJ agreeing at 43), pointing to the fact that (in late September 2011) Plaza had engaged Deicorp as builder of the retail development for a price of $40 million, in circumstances where it emerges from Jamil's emails that Jamil had been negotiating with Mr Deiri and another would-be-contractor (it will be recalled, Dyldam) for a lower price for the overall development but the $40 million "price tag" remained the price in the replacement contract for Stage 1 entered into by the partnership with Deicorp. Plaza also notes that $400,000 is "neatly 1% of this price". 4. In this regard, and furthermore, the Sayour Parties say that there is no evidence that the payment of $400,000 was received by or on behalf of Plaza; that there is no record of where the "Micheal Sayour" cheque was deposited; and that attempts to find any trace of the payment have been unsuccessful, including by subpoena issued to the National Australia Bank (NAB) on which the $400,000 cheque was drawn. It is said that Jamil's "known" bank accounts have been interrogated and no cheque deposit has been found; and that Moustafa has given discovery of all his bank accounts, both in Australia and internationally (and nothing has been found). It is said that the only other person associated with people in this case whose name is or has been Michael Sayour, or Moustafa, is Jamil's eldest son "Moustie" and that subpoenas seeking copies of Moustie's bank accounts to the Newcastle Permanent Building Society (NPBS) and CBA, respectively, have uncovered nothing. 5. Nevertheless, what is clear is that this amount was debited from Deiri Nominees' account and it is not disputed that Moustafa was also known as "Michael" Sayour. The characterisation of the payment of $400,000 as a deposit for the land is consistent with, inter alia, the contract for sale of land itself (see below) and it is described as such in email communications between Mr Deiri and Jamil (see, for example, the reference to this payment in Jamil's later email to Mr Deiri). The Sayour Parties accept that payment of $400,000 is stated on the contract for sale of land and asserted to be the deposit paid on the purchase but they point out that, in equity, a receipt for consideration contained in the body of a deed is not conclusive. To my mind, however, at the very least, the acknowledgment contained in the contract for sale would arguably amount to the retrospective appropriation of that payment by Investments to the debt, assuming the payment was received by Plaza in some way or by some manner. 6. Plaza notes that, according to the records in evidence, Moustafa attended project co-ordination meetings on 5 and 26 October 2011, but not the meeting on 12 October 2011 (presumably to dispel any suggestion that the "Micheal Sayour" cheque could have been given to Moustafa at the 12 October 2011 project meeting, though no such suggestion has here been made). Notice of Determination of Development Application 1. On or around 14 October 2011, notice of determination of development application was given to Deicorp Constructions in relation to the excavation and bulk earthworks for the Broadway Site. Commencement of $10,000 monthly payments 1. Mr Deiri has deposed (see Mr Deiri's affidavit sworn on 22 August 2019 at [54]) that, in October or November 2011, he agreed with Jamil to pay him $10,000 a month. These $10,000 monthly payments are some of the payments here impugned by Plaza as "bribes". 2. There is some inconsistency in the evidence as to what those payments were said to represent. For example, an 18 November 2011 email from Mr Deiri to an internal company accountant, Mr Hon Leong (as to which, see at [159] below) referred to an agreement to pay $10,000 monthly "until we settle", which Plaza contends connects the payments clearly to the land purchase (and meant that such payments should on this assumption have continued until the final payment of the purchase price in 2013). Meanwhile, Mr Deiri's affidavit evidence refers to an agreement to pay this amount as relating to Jamil's work in relation to the leasing of the retail centre. 3. On 18 November 2011 at 10.32 am, Jamil sent an email to Mr Deiri, with the subject header "Monthly arrangement", stating: This is my account for monthly payment, Mr M & J Sayour Bsb: 0xxx Acc: xxx202 westpac lakemba 1. It will be recalled (see at [97] above) that the Westpac #202 Account was styled as a trust account and hence Plaza has argued (not only in the Estate Proceedings but also in the present proceedings) that moneys deposited into that account became impressed as trust moneys. If so, then the $10,000 monthly payments were held on trust for Plaza and, in that sense, it did receive the impugned payments. 2. Mr Deiri forwarded Jamil's email of 18 November 2011 to Mr Leong at 11.19 am that day, copied to Jamil, stating: Hi Hon, Attached below are the bank account details for Jamil. As you are aware we are in partnership with Jamil and his father, our settlement date is June 2012, as agreed we are to pay $10,000.00 monthly until we settle, the agreement we reached is that the monthly payment commences from the end of November, can you please set Jamil up in our system to ensure that he receives his payment at the end of each month. [My emphasis] 1. Pausing here, while Jamil's email of 18 November 2011 refers to "my" account for monthly payments, it also is clear from the details contained in the email that the account was an account in joint names ("Mr M & J Sayour"). Moreover, the email from Mr Deiri to Mr Leong makes reference to a "partnership" with "Jamil and his father", albeit referring to setting "Jamil" up in our system to ensure he received "his" payment(s). The reference to the payments being "until we settle" is, I accept, suggestive of the payments relating to the purchase of the half share of the land (at least in a temporal sense). There is no explicit reference in the contemporaneous emails to these payments being made as compensation for or by reference to Jamil's leasing work. 2. It is also convenient here to clarify that this series of payments is different from the land/costs payments. 3. The first such monthly payment (of which there were nine in all) was made at the end of November 2011. Settlement of purchase of Matthews Street Property 1. It seems that what transpired in relation to the acquisition of the Matthews Street Property (and Plaza complains that this was by the intervention of Jamil and Mr Deiri) was that the Matthews Street Property was in fact purchased not by Plaza but in the name of a newly incorporated company, Matthews Street Co, as trustee of a newly created unit trust (the Matthews Street Unit Trust), of which Moustafa says he had no knowledge. 2. Mr Deiri has deposed that, in the second half of 2011, he had a conversation with Jamil to the following effect (see Mr Deiri's affidavit sworn on 22 August 2019 at [84]): Jamil said: "You know those two properties next to the property have been rezoned. The owners got the benefit from the rezoning. I know one of the owners, Jane, and she wants to sell. Why don't we buy it and we can use it for the construction of Broadway and then maybe we'll then try to buy number 10 next door. We could do a separate development on there with ground floor retail and apartments on top at some point." I said: "That makes sense. I'd be in on that if it works for me." Jamil said: "How do we buy it? Through the Broadway [P]artnership?" I said: "No, then it would be caught up with the security documents on the current project. We can simply set up an SPV." Jamil said: "What's an SPV?" I said: "It's called a special purpose vehicle. We set up a company and put number 14 in there, and when we buy number 10 we'll put that in there, so they'll be ready when we want to develop it." Jamil said: "Ok. What should we call it? Broadway Plaza Number 2?" I said: "Let's call it Matthews Street Pty Ltd because it's on Matthews Street." 1. It seems that, on 3 November 2011, an application for registration of the ninth defendant (it will be recalled, Matthews Street Co) was lodged, through Parras & Associates (Mr Deiri's accountants), naming, inter alios, Jamil as a director and Deiri Nominees and Plaza as its shareholders. Jamil later resigned as a director. There is also in evidence a document purporting to be a consent by Moustafa to his appointment as a director of the company. I understand that Moustafa maintains that the signature on this document is a forgery. 2. Also on 3 November 2011, a deed purportedly establishing the Matthews Street Unit Trust (the Matthews Street Unit Trust Deed) was executed and Deiri Nominees and Plaza were noted as the subscribers to all available units. Again, Moustafa says that the purported Moustafa signatures on behalf of Plaza and Matthews Street Co on those documents are forgeries. A subscription for units was purportedly also signed on behalf of Plaza. 3. Also on 3 November 2011, at 11.00 am (by reference to what appears to be a handwritten note), it seems that Mr Naef (it will be recalled, Moustafa's solicitor) was informed by Jamil that the name of the purchaser was to be changed to Matthews Street Co. 4. Two cheques were drawn, each for $14,750, one by Biomed (signed by Jamil who was an authorised signatory on Biomed's account) and the other by Deiri Nominees (signed by Mr Deiri). Both were drawn payable to the purchaser's solicitor, Equity Lawyers. It seems that those cheques were not presented for payment. I interpolate to note that this may have been because Mr Naef's firm did not have a trust account (which might explain why the cheques were not presented for payment). 5. On 7 November 2011, two further cheques were made out to Equity Lawyers, in the same amounts by the same drawers. The four cheques together amounted to 10% of the purchase price. It seems that these cheques were also not presented. 6. On 30 November 2011, two further cheques were drawn by the same drawers, each for $29,500, apparently superseding the earlier cheques. Notably, this was the same day as the making of the first $10,000 monthly payment (see at [162] above). 7. On 2 December 2011, contracts for the sale of the Matthews Street Property were exchanged in the name of Matthews Street Co as purchaser (see, for example, Mr Deiri's affidavit sworn on 22 August 2019 at [91]). 8. On 16 December 2011, an ASIC Form 484 was signed by Mr Deiri, notifying the appointment of Moustafa as a director of Matthews Street Co on 3 November 2011. 9. Later in December 2011, HWLE wrote to Deicorp, enclosing the originals of some of the above documents (see, for example, Mr Deiri's affidavit sworn on 22 August 2019 at [89]). Instructions for contract of sale for Broadway Site 1. Returning then to the Broadway Site, it is apparent that, on or before 18 November 2011, Mr Deiri had sought advice from HWLE as to the structure of the proposed Broadway Plaza transaction. 2. By letter dated 21 November 2011, Mr Ari Schachna (a partner of HWLE in Melbourne) wrote to Mr Deiri, providing advice as to the structure for the transaction. Pausing here, I note that the letter contained a section in it headed "Matthews Street". The Deiri Parties say that this is consistent with Mr Deiri's evidence that the Matthews Street Property was connected with the Broadway Partnership (although I note that it does not appear that it ultimately became part of the Broadway Development as such). 3. Relevantly, as to the Broadway Site, Mr Schachna recorded, in his memorandum of advice, his instructions (presumably given to him by or on behalf of Mr Deiri) as to the background to the matter as including that: Sayour Investments (i.e., Plaza, as it later became known) as trustee of the Sayour Family Trust was the current registered proprietor of the land to be developed; it was proposed that a discretionary trust called the "Broadway Deiri Trust" would acquire a 50% interest in the land and another entity related to Deicorp would manage the "development and construct [sic]" of the building on the land; the development would consist of residential and commercial retail stratum; it was proposed to "[s]tratum subdivide" and sell the residential component of the development and retain the commercial retail component as an investment asset; and that Plaza and the Broadway Deiri Trust proposed to share in the profits and losses of the development on an equal (50%) basis. 4. The letter noted, inter alia, the proposal that the name of the trustee of the Sayour Family Trust would be changed to "Broadway Plaza" (see at [2(a)]); that the sale of a 50% interest in the land would be by way of a contract of sale of land; and that the land would be developed through an unincorporated joint venture arrangement which should be treated as a partnership for tax purposes. 5. The letter also recorded that the company, Matthews Street Co, had purchased a certain portion of the property in its capacity as trustee of the Matthews Street Unit Trust; that the unit holders in that unit trust were a discretionary trust associated with the Sayour family as to 50% and a discretionary trust associated with the Deiri family as to 50%; and that the unit trust would conduct a development of the property for the purpose of leasing and not to be sold off the plan. 6. Mr Schachna later forwarded a copy of that memorandum (referring to a telephone conversation with Mr Deiri the previous Friday morning) to Mr Deiri and copied it to Mr Nicholas Parras (again, it will be recalled, Mr Deiri's accountant) and to Ms Wendy Thornton (also Mr Deiri's accountant) and Mr Elias Stephen (of HWLE). 7. By email on 22 November 2011 to Mr Schachna and Mr Deiri, Mr Stephen responded that "[n]ow that the structure of the transaction is confirmed, as recorded in Ari's note last night, we can proceed to finalising the property documentation". 8. This email also noted that Investments was to purchase one half of the property for $8 million (requesting confirmation of the price); that settlement of the acquisition transaction was to be effected on settlement of the Westpac financing (Westpac, at this stage, still being the contemplated financier, not CBA); and asking what portion of the price would be vendor financing. As to the latter, it was said that this would be documented by a simple loan agreement (asking what was the interest rate) and noting that the loan would be repayable on 30 June 2012 to allow completion of another project (referred to as the "Redfern RSL project"). 9. Furthermore, the email from Mr Stephen raised the question whether the vendor finance was to be secured by caveat or second mortgage in favour of the Sayour Family Trust, noting that this would need to be disclosed to Westpac and advising that a caveat would be easier because a second mortgage would require a deed of priority, which would be time consuming and costly, and that banks "these days" generally did not allow mezzanine or second mortgage financing. As to the joint venture arrangement, the email noted that Mr Stephen needed to discuss further capital injections in the project and exit by the respective trusts. 10. Pausing here, the then suggested price of $8 million is consistent with the parties (or at least the Sayour interests) proceeding, at that stage, on an understanding or assumption that the Broadway Site was valued at $16 million (see Moustafa's evidence as to Jamil having referred to a valuation at $16 million at [119] above), so it is conceivable that this was the price discussed at some stage in relation to the purchase of a half interest in the site. Certainly, it is reasonable to infer that Mr Schachna obtained the understanding that a price of $8 million was being considered from Mr Deiri (since there is no suggestion that Moustafa had had any involvement with Mr Schachna and it is implausible that Mr Schachna came up with that figure of his own volition). Ultimately, however, the contract proceeded with the price as being $6 million and there was a collateral agreement in relation to the additional $2 million. The reason for this change is unclear. Moustafa's explanation for it in his affidavit evidence seemed to relate to the excavation works, but this was not consistent with his oral evidence. It may well be referable to Moustafa's apparent need for a $2 million payment to be made by 30 June 2012 for the purpose of the purchase of some other land in Lebanon. 11. In any event, Mr Deiri's evidence is that he telephoned Mr Stephen on about 23 November 2011 and asked him to prepare a contract of sale for the Broadway Site with a deferred settlement; that Mr Stephen said there needed to be a loan and suggested a 9% per annum interest rate (see Mr Deiri's affidavit sworn on 22 August 2019 at [64]). Mr Deiri goes on to depose that he spoke to Jamil and told him that there would need to be a loan agreement with a 9% per annum rate; that Jamil agreed but that he said he would not actually charge interest unless Mr Deiri did not proceed (see Mr Deiri's affidavit sworn on 22 August 2019 at [65]). Mr Deiri's evidence is that he then telephoned Mr Stephen to instruct him to go ahead and draft the contract of sale and loan agreement with a purchase price of $6 million and 9% interest per annum (see Mr Deiri's affidavit sworn on 22 August 2019 at [66]). That is consistent with the contemporaneous record by Mr Stephen of his instructions. 12. By email on 23 November 2011, Mr Stephen wrote to Mr Schachna and Mr Deiri, referring to a conversation with Mr Deiri and advising that "[a]ll is agreed" by Mr Deiri with Mr Schachna's letter, but for two things: that he (Mr Deiri) wanted his company to be Broadway Plaza (No 2) Pty Ltd and the Sayour group company to be Broadway Plaza (No 1) Pty Ltd; and that he was querying the ownership position for Mr Deiri in the Matthews Street Unit Trust. Specifically, the email noted: On the property documents: 1. The purchase price is $6,000,000 (excluding GST). 2. Settlement will be the earlier of (a) 20 December 2011; (b) 3 business days after Fouad gives notice in writing. We will insert a sunset date of 30 June 2012 for completeness. This settlement date is to marry in with settlement of the Westpac development finance. 3. There will be a simple loan agreement based on vendor finance of $5.6 million (of which $400,000 has already been paid towards the price), and to be repaid by Fouad on or before 30 June 2012. If Fouad is late, interest is payable at 9% per annum accruing until the amount is paid. There will be no security given by Fouad – no personal guarantee, no charge, no mortgage or no caveat. […] 5. I have spoken to Fouad about the need for a joint venture agreement to cover exits, defaults, need for further capital etc, particularly since the shopping centre part of the project will be a long term hold. Fouad doesn't want us protecting his position on this, and doesn't want me to prepare such an agreement because his relationship with Sayour is one of trust and handshake, and this is how he wants to conduct his business dealings with Sayour. … [My emphasis] 1. Mr Stephen advised Mr Deiri that his associate (Ms Gray) would work with him in respect of the property documents. 2. Pausing here, this email is consistent with Mr Deiri's understanding being that the sum of $400,000 had already been paid toward the purchase price; and it clearly records Mr Deiri's instructions to HWLE that the interest rate would be 9% per annum (not 9% per month). 3. By email sent at 2.41 pm on 23 November 2011, Mr Deiri instructed Mr Stephen and Mr Schachna that Jamil had "changed with [sic] mind" and requested him to change Sayour Investments to Broadway Plaza and to set up Mr Deiri's company to be Broadway Plaza Investments Pty Ltd (i.e., Investments). 4. The instructions given by Mr Stephen to Ms Gray at that stage were that the documents needed to be fairly simple; and that "there likely would be no negotiations but likely many telephone calls". I interpose to observe that the basis on which Mr Stephen made that assumption is not made clear in the evidence (noting, for example, that some file notes were not admitted, over objection, while others were admitted with redactions – see, for example, at T 237.1-9). 5. Mr Deiri has deposed that he had a conversation with Mr Stephen, relevantly as follows (see Mr Deiri's affidavit sworn on 22 August 2019 at [64]): I said: "But I'm not in a position to pay straight away so we will have to do it as a deferred settlement. The site is unencumbered so there are no issues there. The only issue is that we need to go on title now because we are finalising a bank loan and the bank want me on it for the loan." Elias said: "That's fine, I understand all that, but if you need to go on title, you can't do it as a deferred settlement because you wouldn't have settled the site yet." I said: "But I don't have the money now for a settlement." Elias said: "Then you will need to do what is called a vendor finance arrangement which means your contract for sale will have a simple loan agreement attached to it." I said: "What do you mean a loan agreement?" Elias said: It will achieve the same outcome for you as a deferred settlement and we can just apply a standard interest rate. It will be around 9% per annum." I said: "Interest rate? Why will there be interest. I am not paying Jamil any interest." Elias said: You need an interest rate for a loan. Otherwise the bank won't characterise it as a real vendor finance." 1. Furthermore, Mr Deiri has deposed to the following conversation with Jamil (see Mr Deiri's affidavit sworn on 22 August 2019 at [65]): I said: "I have explained to our lawyer our intentions. He said that if we need to go on title, which is what the bank needs to give us the construction facility to build the shopping centre, we can't do it as deferred settlement. We have to go on title straight away and the only way Investments can come straight onto the title is if we pay the stamp duty now and pay the balance to you through a loan agreement." Jamil said: "What does that mean? What loan?" I said: "Because you need me to come onto title straight away to get the construction facility and am not paying you the full purchase price upfront. It's called a vendor finance. It's a loan that attaches to the contract for sale. Elias said 9% per annum is the standard rate on these agreements." Jamil said: [Jamil then laughed] "Habib, like I am going to charge you interest. As long as I get my $8 million I don't care what the contract says. But if you don't proceed, then we have to take the site back, then I will apply interest. Habibi, you are my older brother, I love you and trust you, god willing [in Arabic] may this be the first of many." I said: "Habibi, we are both working in good faith here, there will be no issues. I already gave you the deposit before there was a contract. That demonstrates my intent with you." 1. Inconsistently (at least on its face) with the instructions recorded by Mr Stephen, HWLE then prepared a loan agreement (based, by reference to its header, on a banking and finance precedent) which specified an interest rate of 9% per month. It is this which has led to the claims by and against HWLE in these proceedings. Incorporation of Investments and name change of Plaza 1. Consistently with the record of Mr Deiri's instructions that I have outlined above, Investments was incorporated on or around 25 November 2011; and, on 29 November 2011, the name change from Sayour Investments to Plaza was registered. Jamil's email of 29 November 2011 1. On 29 November 2011, Jamil sent an email to Mr Deiri saying: Before I forget, if we put the 6 million around June does that mean we borrow 34,000,000 for the retail section from the bank? Amendment to Rockdale LEP – December 2011 1. Returning to the Arncliffe Site, which is within the Rockdale Council area, it is relevant to note that the Rockdale LEP was amended in 2011 and gazetted in December 2011. Mr Zafiropoulos gives evidence that, by reason of that gazettal coming to his attention, he undertook research into the industrial buildings in the Arncliffe area (though, I observe here, that there seemed little in the way of work product arising from, or evidencing, any such research – see particularly at T 1350.16ff). Hence this rests largely on Mr Zafiropoulos' assertions. Further Power of Attorney – 8 December 2011 1. Plaza (as trustee for the Sayour Family Trust) executed another Power of Attorney in favour of Jamil on 8 December 2011 (the 8 December 2011 Plaza Power of Attorney). It contained the same terms, relevantly, as the Power of Attorney of 30 May 2010 (as to which, see at [102] above). Meeting with CBA at Biomed – 12 December 2011 1. On 9 December 2011, Mr Deiri sent an email to Mr Bennett of CBA, copied to Jamil, organising a meeting with the bank, confirming a meeting with Mr Bennett and "my JV partner Jamil". 2. Consistently with the above email, it seems that, on 12 December 2011, there was a meeting at Biomed, attended by Moustafa, Jamil and two officers of the CBA (Mr Michael Bennett and Mr Nicholas Jackson). Moustafa deposes that he was given a list of documents that CBA needed from him and that he said he would get Jamil to send them. He says that he later told Jamil to get the documents together for CBA (see Moustafa's affidavit sworn on 16 September 2019 at [202]-[209]; [212]). 3. After the meeting on 12 December 2011, Jamil sent an email to Mr Bennett of CBA providing asset and financial information of Biomed and Moustafa. Plaza here notes that it would seem that no financial information of Jamil was either requested or provided. 4. The email setting out the asset and financial information of Biomed and Moustafa stated: Very nice to meet you and Nicholas [sic] attached are the requested documents. My father Michael is the sole director of Biomed technology [sic] Australia Pty Ltd ABN: 55 106 244 008 Also my father is the sole director of Sayour Family Trust trading under Broadway Plaza Pty Ltd: ACN 117 382 626 Michael Sayour – Assests [sic] [then setting out a list of assets and liabilities, including various properties and the value attributed to them as well as cash in local and overseas bank accounts] That's it if you require anything else please don't hesitate to call me thanks. CBA Discussion Paper re construction funding and refinance 1. By letter dated 20 December 2011, Mr Bennett (of CBA) forwarded to each of Plaza and Investments a "Discussion Paper" (the CBA Discussion Paper) outlining broad terms and conditions for the construction funding and refinance at the Broadway Site. The facility limit for Stage 1 was up to $45.954 million, comprising Tranche A (up to $5.5 million for excavation and early works package) and Tranche B (up to $45.954 million, inclusive of Tranche A, for construction of parking spaces and two levels of retail facilities. 2. Stage 2 involved the refinancing of those facilities. The Facility Limit was estimated at $34.3 million, subject to further due diligence. 3. At about 4.45pm on 21 December 2011, the quantity surveyors appointed by CBA (Mr Hammond) prepared a file note of a telephone call that he had received from Mr Deiri which suggests that his quantity surveyor report was to be sent to CBA and that construction was planned to commence at the Broadway Site by 9 January 2012. Mr Hammond's file note records that a construction certificate for early works was expected on 24 December 2011. 4. By email on 21 December 2011 at 6.26 pm, Mr Deiri forwarded to Mr Bennett (copied to Mr Jackson and Jamil) a letter from the Broadway Partnership confirming acceptance of the Discussion Paper and attaching a signed "Mandate of the Discussion Paper" together with a copy of the construction certificate that Mr Deiri said had been issued that day for the excavation and shoring. It may be noted that this appears to be the first time that the Broadway Partnership letterhead was used. Moustafa says that the "Moustafa" signature on this document is not his signature (see T 377.27-42); and the forensic expert, Mr Dubedat, confirms that it is not a genuine signature. Preparation of contract of sale of land 1. On 21 December 2011, Ms Gray of HWLE was asked by Mr Stephen of HWLE to print out the contract for sale and loan agreement so that he could take it to Mr Deiri (see Ms Gray's affidavit sworn 9 October 2019 at [21]). Ms Gray also prepared a covering letter. Execution copies of the contract for sale were forwarded by courier to Mr Deiri. The execution copies of the contract for sale given to Mr Deiri, included the following information on the front page: the "Vendor" (Plaza); the property details (1-9 Broadway Punchbowl); the "Purchaser" (Investments); the purchaser's solicitor's details (HWLE); the "Price" ($6 million); the "Deposit" ($400,000); and the balance of the purchase price ($5.6 million). Annexed to the contract for sale was the loan agreement referred to in special condition 43 (see below). The letter dated 21 December 2011 from HWLE refers to enclosing execution copies of the contract for sale and the loan agreement. The contract for sale provided for the sale from Plaza to Investments of a half interest in the Broadway Site. 2. Mr Deiri has deposed that he took the unsigned contract and loan agreement to Jamil and Moustafa at Biomed for signing a few days after Christmas 2011. Mr Deiri's evidence is that he signed the contract and the loan agreement and handed the documents to Jamil; and that he does not recall Jamil providing to him an executed copy. Plaza's counterpart of the contract for sale, signed by Moustafa, is in evidence. The copy put into evidence by Plaza did not contain a handwritten annotation that it is accepted was signed at the time of execution of the contract for sale. 3. Also on 21 December 2011, the second monthly payment of $10,000 was paid to the Westpac #202 Account. As adverted to earlier (see at [162] above), there were nine such payments in total. Opening of CBA Partnership Account 1. On 22 December 2011, Moustafa (on behalf of Plaza) and Mr Deiri (on behalf of Investments) signed an "Application and Authority for Business Accounts" to open a partnership account with CBA. Moustafa does not dispute his signature on those documents. 2. The terms of operation of the account were recorded in a series of emails commencing on 21 December 2011, when Mr Jackson (of CBA) sent an email to Mr Deiri in which he returned the account opening forms and gave instructions on the completion of those forms (Ex 15 p 150). In one of the emails in this chain of communication, Mr Jackson stated: Please refer to the attached account opening form which we require completed, signed and returned prior to opening the account. If you email a copy to me and post the original I will start the process which usually takes 24 hrs (max). I've completed a few of the details already, however please pay attention to the following:- 1) Section 2 - Select whether one or two people are required to authorise transactions. 2) Sections [sic] 5 - Both you and Moustafa sign. Add Jamir [sic] or anyone else you wish to be an authority on the account. 3) Section 3 - Include anyone you wish to obtain information on the account (aside from authorities above), but not be able to conduct transactions. 4) Section 6A - Both you and Moustafa sign. 1. The partnership bank account (#9176) (the CBA Partnership Account) was operative by at least 1 February 2012, since that was the date on which the first cheque was drawn on the account. I note that Plaza says it was opened by at least 4 January 2012 (see the communications from CBA in Ex 15 pp 149-151, which refer to the "new account"); but nothing relevantly turns on the exact date of opening of the account. 2. The authorised signatories were Moustafa and Mr Deiri. Relevantly, the terms of the appointment of the signatories in this application form contained the following statement by the partners as to the method of operation of the account: "Any two of the authorised signatories specified in section 5 can operate on the above account(s)". 3. More specifically, Section 5 named Moustafa and Mr Deiri as the authorised signatories and contained their signature specimens. Section 6 contained the "declaration and acknowledgement" of the partners. Moustafa requires funds by June 2012 for land in Lebanon 1. According to Moustafa (see Moustafa's affidavit sworn on 31 May 2019 at [116]), in late December 2011, he told Jamil that he needed $2 million to buy some land in Lebanon by June. 2. Pausing here, this June 2012 date is consistent with the time frame put on the sunset date for completion of settlement of the purchase of the 50% interest in the Broadway Property as per Mr Stephen's 23 November 2011 email (see [185] above), but that seems to be no more than a coincidence since Mr Stephen's email recorded the 30 June 2012 sunset date as referable to the time for settlement of Westpac development finance (it will be recalled that, at that stage, Westpac was the proposed financier). Execution of contract for sale of land – 27 December 2011 1. On 27 December 2011, Investments and Plaza signed counterpart contracts for sale of land (the Law Society's 2005 standard edition) at a purchase price of $6 million. The contract specified a deposit of $400,000, with the balance of $5.6 million payable on completion. Special Condition 42 contained an acknowledgement by the vendor that the purchaser had paid the deposit to the vendor prior to the date of the contract. Annexed to the contract for sale was a pro forma loan agreement, in effect providing for a loan to the purchaser (Investments) of the balance due on completion of the contract of sale ($5.6 million). 2. Special condition 43 of the contract of sale (headed "Condition precedent") provided as follows: 43.1 For the purpose of this clause 43, the following definitions apply: (a) loan agreement means the loan agreement substantially on the same terms and conditions as the loan agreement attached as annexure A to this contract. (b) sunset date means 30 June 2012. 43.2 Completion is subject to and conditional on the vendor and purchasing [sic] entering into the loan agreement on or before the sunset date. 43.3 If the vendor and purchaser have not already done so, the vendor and purchaser must take all reasonable steps to enter into the loan agreement as soon as possible. 43.4 The purchaser may waive the benefit of this clause by serving a notice on the vendor at any time before 2 business days after the sunset date. 43.5 If the vendor and purchaser have not entered into the loan agreement before the sunset date, the purchaser may rescind within 2 business days after the sunset date and clause 19 applies. 1. The contract of sale was signed by Mr Deiri on behalf of Investments and by Moustafa on behalf of Plaza. I understand that Moustafa does not dispute his signature on this document. The contracts were stamped as being exchanged on 20 January 2012. 2. Mr Deiri's copy of the contract for sale (as annexed to his affidavit sworn on 22 August 2019) included a handwritten addendum, signed by Mr Deiri, to the annexed pro forma loan agreement in the following terms: 8.8 Default If by the 31st [sic] September 2012 Broadway Plaza Investments PTY LTD has not paid the Loan in Full, Broadway Plaza PTY LTD has the right to terminate the whole agreement and refund the deposit in Full excluding any interest paid and interest owing. 1. Curiously, it appears that the copy of the contract for sale exhibited to Moustafa's sworn on 31 May 2019 did not contain that handwritten clause (see Mr Deiri's affidavit sworn on 22 August 2019 at [72]-[73] as to this additional clause) – rather, page 9 of the draft loan agreement as exhibited to Moustafa's affidavit is blank. Plaza nevertheless accepts that the handwritten cl 8.8 in the pro forma loan agreement was evidently to be read with the contract for sale of land. 2. Investments executed the pro forma loan agreement on 27 December 2011. Relevantly, Plaza did not. There was also a handwritten note signed by Mr Deiri and Moustafa, and dated 27 December 2011, which provided: 27/12/2011 Agreement between BROADWAY PLAZA PTY LTD and BROADWAY PLAZA Investments PTY LTD as agreed 2 million Dollars to be Paid overseas by no later than the 30 June 2012. this is for the sale of No 1 the Broadway Plaza for 50% share. 1. Plaza here emphasises that the contract for sale documents were presented to Moustafa (not Jamil) for execution and that the handwritten changes were made on the occasion of execution of the documents by negotiation with Moustafa. Registration of Broadway Partnership 1. The Broadway Partnership was registered on the Australian Business Register on 18 January 2012. 2. I interpose to note that, in the Broadway Proceedings, the Deiri Parties contend for a factual finding that this partnership came into existence earlier than January 2012 when it was formally registered (see at [1413]ff below). Approval of commercial terms and the First Facility Agreement 1. On 23 January 2012, a document entitled "Approved Commercial Terms and Conditions", prepared by CBA, was signed by Moustafa, Mr Deiri and Mr Bennett of CBA in relation to "Construct and hold of Shopping Centre located at 1 The Broadway, Punchbowl". The document contained a term sheet setting out a summary of approved terms and conditions (of the kind that had been contemplated in the CBA Discussion Paper – see at [201] above) but did not purport to specify or summarise all the provisions that were to be contained in the financing documents. The document stated that, except for the provisions in relation to confidentiality and the borrower's obligation to pay CBA's legal and other costs and expenses, "no party will be bound unless and until final terms are agreed and formal documentation is signed". 2. The Approved Commercial Terms and Conditions involved a construction loan advanced by way of a facility of $45,597,000 for a term of 26 months for the Stage 1 construction of the retail complex and car park, following which that facility was to be converted to an investment facility of $34,300,000 for a 36 month term. Investments notes that the description of Tranche B of the Stage 1 amount (which included a funding table allocating amounts in respect of client contribution and bank funding to particular tasks) did not include a contribution for excavation works in the funding table (but I note that the purpose of Tranche A of Stage 1 was noted as being for bulk excavation and early works). 3. On page 2 of that document, there is a summary of the amounts involved for the facilities, which includes the following summary of Stage 1: Amount: Stage 1: $45,597,000 comprising of; Tranche A: $5,500,000 Tranche B: $45,597,000 (inclusive of Tranche A) allocated as follows: 1. On page 3 of the approved terms and conditions, the purpose of the facility was described, in relation to Stage 1, as follows: Stage 1: Tranche A: Bulk excavation and early works. Tranche B: Construction of 577 parking spaces and 2 levels of retail facilities. 1. There was also an acknowledgement by the borrower in terms that: … [p]rogress payments will be calculated on a cost to complete basis to the Bank approved development budget. The Bank approved external property consultant quantity surveyors certificate must state: i. The value of the work completed ii. The amount required to complete the works, and iii. That on enquiry of both the borrower and the major subcontractors, they have confirmed that there are no disputes pending either in respect of the standard of work completed or payment of moneys due under the subcontracts. Note: When calculating these items, GST is to be separately itemised. GST reconciliation to the project budget is to accompany each progress payment/drawdown request. 1. I will return to consider this in due course. First cheques drawn on CBA Partnership Account 1. As noted (see at [210] above), the CBA Partnership Account was opened by 1 February 2012. 2. I note that, where reference is made in these reasons to numbered cheques, it is a reference to the cheques as enumerated in the lists of cheques prepared for the purposes of these proceedings. 3. The first cheque drawn on the CBA Partnership Account (cheque #101), was for the sum of $19,250.00 and was drawn payable to the real estate agents, Colliers, in respect of advertising connected to the Broadway Development. Cheque #104 (which CBA notes is omitted from Plaza's list of cheques in Schedule A to its points of cross-claim) was in the sum of $77,234.50 and paid to Biomed (it is said by way of reimbursement for expenses incurred with respect to the Broadway Development). Appointment by Plaza of Parras & Associates as agent 1. On 1 February 2012, Plaza changed the address of its registered office to that of Parras & Associates (it will be recalled, Mr Deiri's accountants) and appointed that firm as its registered agent. The minute recording the resolution for the address change was signed by Jamil (dated 1 February 2012) and the ASIC form recording the appointment of the registered agent was in the name of Moustafa but signed by Jamil. Re-submission of Deicorp tender and the Stage 1 Construction and Design Contract 1. On 7 February 2012, the tender for the design and construction of the proposed retail/residential development (see at [139] above) appears to have been re-submitted (this time on slightly different letterhead and in the name of "DeiCorp Constructions (NSW) Pty Ltd" with a different ABN (ABN 55 138 180 337) – that being the ABN for the entity now known as Deicorp), addressed to "Broad Way Plaza Punchbowl Plaza" and marked to the attention of Jamil. The tender price was the lump sum of $40 million excluding GST. 2. Pausing here, the seeming lack of attention to detail on the tender submissions (in that no one seems to have suggested that there was to be a new building company responsible for the design and construction but a different corporate entity was there named) is perhaps indicative of the manner in which documentation was prepared in the Deicorp office (or the Deicorp Entities' offices). This is an issue that is not irrelevant when it comes to the vexed question of cheque preparation (as to which I say more in due course). I say this because the two tender submissions (of 26 September 2011 and 7 February 2012, respectively), other than for the letterhead logo, addressee and entity disclosed as the tenderer, were relevantly identical even down to the typographical error in the lump sum price ("fourty million dollars"). Similarly, there was seeming inattention to detail in the names typed on the various progress claims (the first dozen or so being "Broad Plaza" or "Broad Plaza Investments", not "Broadway", and Moustafa's name being printed as "Mustafa", not "Moustafa"). 3. Annexure A to the "Australian Standard General Conditions of Contract for Design and Construct" signed by Plaza, on acceptance of the 7 February 2012 tender, refers to the "Contractor" as "Deicorp Constructions (NSW) Pty Ltd" with an ACN corresponding to the ABN for the 2012 tendering entity (ACN 138 180 337) (i.e., Deicorp, not Deicorp Constructions as here defined – see at [11] above). 4. In any event, the 7 February 2012 tender submission for construction of Stage 1 of the Broadway Development (issued to the partnership entity and not simply to Plaza) was accepted on 8 February 2012. On that date, a new construction contract was executed by Mr Deiri on behalf of Investments and Moustafa on behalf of Plaza, for the car park and shopping centre component (the Stage 1 Construction and Design Contract). It is noted that this contract replicated the terms of the initial construction contract, but was with the partnership entity "Broadway Plaza Punchbowl" (ABN 19 494 808 795) with a re-executed "Formal Instrument of Agreement" referring to the 7 February 2012 tender submission. Again, I understand that Moustafa accepts that his signature on this document is genuine. 5. Investments notes that the letter from Moustafa to Deicorp Constructions advising that the tender is accepted by Plaza refers to the tender of 26 September 2011 and says that this appears to be an error and that it should read 7 February 2012. 6. Plaza also points out that the Stage 1 Construction and Design Contract of 8 February 2012 included the sum of $4,559,472 for groundworks and shoring, exclusive of GST. Plaza says that, under the partnership terms as between the partners, it was the responsibility of Investments to procure this work and therefore, it says, to pay for it. Stage 1 Construction and Design Contract – general conditions for design and construct (AS 4300-1995) 1. As I have just adverted to, the Stage 1 Construction and Design Contract between the Broadway Partnership and Deicorp is constituted by a formal instrument of agreement to the contract dated 8 February 2012, which provides that the contract sum is $40 million. The formal instrument of agreement does not stipulate whether this price is inclusive or exclusive of GST. Meanwhile, the tender submission stipulates that the lump sum price is exclusive of GST. Relevantly, Item 11 of Part A of Stage 1 Construction and Design Contract provides that the project requirements are set out in that tender submission dated 7 February 2012. 2. By that tender submission, Deicorp offered to carry out the Stage 1 design and construction works for the retail shopping centre and car park at the Broadway Site for the lump sum price of $40 million, comprised of "Construction Cost" ($38,547,305.00) and "Provisional Sums Allowance" ($1,452,695.00). That $1,452,695.00 allowance for provisional sums as contemplated by the Stage 1 Construction and Design Contract is specified in an attachment to the tender. 3. It is relevant to note various of the provisions of the general conditions accepted by the parties in connection with the Stage 1 Construction and Design Contract. 4. "Contract Sum" was there defined as meaning: (a) where the Principal accepted a lump sum, the lump sum; (b) where the Principal accepted rates, the sum ascertained by calculating the products of the rates and the corresponding quantities in the Schedule of Rates; or (c) where the Principal accepted a lump sum and rates, the aggregate of the sums referred to in paragraphs (a) and (b), including provisional sums but excluding any additions or deductions which may be required to be made under the Contract; 1. For the Deicorp Entities, it is said that these are lump sum contracts but that the lump sum is plus variations. Meanwhile, for Plaza it is said that the cap on quantum means that the rates cannot be exceeded. 2. There are also different definitions of "Date for Practical Completion" and "Date of Practical Completion" as contained in those general conditions: 'Date for Practical Completion' means - (a) where Annexure Part A provides a date for Practical Completion, the date; or (b) where Annexure A Part A provides a period of time for Practical Completion, the last day of the period, but if any extension of time for Practical Completion is granted by the Superintendent or allowed in any arbitration or litigation, it means the date resulting therefrom. […] 'Date of Practical Completion' means - (a) the date certified by the Superintendent in a Certificate of Practical Completion to be the date upon which Practical Completion was reached; or (b) where another date is determined in any arbitration or litigation as the date upon which Practical Completion was reached, that other date… 1. Relevantly, "direction" is defined as including "agreement, approval, authorisation, certificate, decision, demand, determination, explanation, instruction, notice, order, permission, rejection, request or requirement". 2. "Practical Completion" is defined as: 'Practical Completion' is that stage in the execution of the work under the Contract when – (a) the Works are complete except for minor omissions and minor defects – (i) which do not prevent the Works from being reasonably capable of being used for their stated purpose; (ii) which the Superintendent determines the Contractor has reasonable grounds for not promptly rectifying; and (iii) rectification of which will not prejudice the convenient use of the Works; (b) those tests which are required by the Contract to be carried out and passed before the Works reach Practical Completion, have been carried out and passed; and (c) documents and other information required under the Contract which, in the opinion of the Superintendent, are essential for the use, operation and maintenance of the Works, have been supplied… 1. "Superintendent" and "Superintendent's Representative" are defined as follows: 'Superintendent' means the person stated in Annexure Part A as the Superintendent or other person from time to time appointed in writing by the Principal to be the Superintendent and notified as such in writing to the Contractor by the Principal and, so far as concerns the functions exercisable by a Superintendent's Representative, includes a Superintendent's Representative; 'Superintendent's Representative' means a person appointed by the Superintendent pursuant to Clause 24. 1. Clause 11 (headed "Provisional Sums") provides: A provisional sum included in the Contract shall not itself be payable by the Principal but where at the direction of the Superintendent the work or item to which the provisional sum relates is performed or supplied by - (a) the Contractor, the work or item shall be valued under Clause 40.5; and (b) a sub-contractor to the Contractor, the Principal shall pay the Contractor the amount payable by the Contractor to the subcontractor for the work or item, disregarding any damages payable by the Contractor to the subcontractor or vice versa, plus an amount for profit and attendance calculated by using the percentage thereon stated in Annexure Part A or, where not so stated, as stated elsewhere in the Contract. The amount payable to a subcontractor for materials or goods is to be taken to be the nett cost to the Contractor (disregarding any deduction of cash discount for prompt payment). 1. The Deicorp Entities point to this clause as meaning that, in respect of a provisional sum which was included in the contract, there is an entitlement on the part of Deicorp Constructions to be paid the amount that it (i.e., Deicorp Constructions) paid to that sub-contractor or supplier plus 15% (being the additional percentage set out in Item 45 of Annexure Part A to the contract). 2. Clause 12, headed "Latent conditions", includes within it cl 12.3: 12.3 Extension of Time and Cost Delay caused by a Latent Condition may justify an extension of time under Clause 35.5. If a Latent Condition causes the Contractor to – (a) carry out more work; (b) use more Constructional Plant; or (c) incur more cost (including but not limited to extra costs for delay or disruption), than the Contractor could reasonably have anticipated at the time of tendering, a valuation shall be made under Clause 40.5. 1. Clause 23 expressly contemplates that the Superintendent may give a direction orally (except where the contract otherwise provides), but provides that the Superintendent shall as soon as practicable confirm it in writing. As noted at [246] above, the definition of "direction" in cl 2 is expressed in broad terms. 2. As adverted to, cl 24 permits the Superintendent (being, on this contract, Mr Deiri himself) to appoint a "Superintendent's Representative", to whom could be delegated the power to exercise any functions (but that not more than one Superintendent's Representative shall be delegated the same function at the same time). The Deiri Entities refer to this as relevant to the validity of the role played by Mr Hammond (CBA's quantity surveyor) in relation to the Stage 1 and Stage 2 construction contracts on the Broadway Development; and they say that it illustrates the width of the power and discretion conferred upon the Superintendent. 3. Clause 35.5 of the Stage 1 Construction and Design Contract, which contains a number of relevant sub-paragraphs, deals with the extension of time for "Practical Completion". 4. Clause 35.6 provides for liquidated damages for delay in reaching practical completion (at the rate stated in Annexure Part A). Relevantly, the liability of the Contractor under cl 35.6 is limited to the amount stated in Annexure A Part A (per cl 35.7). Clause 35.8 provides for a bonus for "Early Practical Completion". 5. Clause 40 deals with variations. Clause 40.1 gives the power to direct variations to the Superintendent but does not mandate that any such direction must be in writing. The clause sets out provisions for the pricing of the variation (cl 40.3), variations for the convenience of the Contractor (cl 40.4) and for the valuation of variations (cl 40.5). 6. Clause 42 deals with certificates and payments: 42.1 Payment Claims, Certificates, Calculations and Time for Payment. At the times for payment claims or upon completion of the stages of work under the Contract stated in Annexure A Part A and upon the issue of a Certificate of Practical Completion and within the time prescribed by Clause 42.5, the Contractor shall deliver to the Superintendent claims for payment supported by evidence of the amount due to the Contractor and such information as the Superintendent may reasonably require. Claims for payment shall include the value of work carried out by the Contractor in the performance of the Contract to that time together with all amounts then otherwise due to the Contractor arising out of the Contract. […] Within 14 days of receipt of a claim for payment, the Superintendent shall assess the claim and shall issue to the Principal and to the Contractor a payment certificate stating the amount of the payment which, in the Superintendent 's opinion, is to be made by the Principal to the Contractor or by the Contractor to the Principal. The Superintendent shall set out in the certificate the calculations employed to arrive at the amount and, if the amount is more or less than the amount claimed by the Contractor, the reasons for the difference. The Superintendent shall also set out, as applicable, in any payment certificate issued pursuant to Clause 42, the allowances made for … […] Arising out of the Contract resulting in the balance due to the Contractor or the Principal, as the case may be. If the Contractor fails to make a claim for payment under this Clause 42.1, the Superintendent may nevertheless issue a payment certificate and the Principal or the Contractor, as the case may be, shall pay the amount so certified within 14 days of that Certificate. […] Payment of moneys shall not be evidence of the value of work or an admission of liability or evidence that work has been executed satisfactorily but shall be a payment on account only, except as provided under Clause 42.6. 1. Clause 42.3 (headed "Certificate of Practical Completion") provides that: The Contractor shall give the Superintendent at least 14 days notice of the date upon which the Contractor anticipates that Practical Completion will be reached. When the Contractor is of the opinion that Practical Completion has been reached, the Contractor shall in writing request the Superintendent to issue a Certificate of Practical Completion. Within 14 days of the receipt of the request, the Superintendent shall give to the Contractor and to the Principal a Certificate of Practical Completion certifying the Date of Practical Completion or give the Contractor in writing the reasons for not issuing the Certificate. When the Superintendent is of the opinion that Practical Completion has been reached the Superintendent may issue a Certificate of Practical Completion, whether or not the Contractor has made a request for its issue. 1. Clause 42.4 (headed "Effect of Certificate") provides that" The issue of a payment certificate or a Certificate of Practical Completion shall not constitute approval of any work or other matter nor shall it prejudice any claim by the Principal or the Contractor. 1. Clause 42.5 (headed "Final Payment Claim") provides that: Within 28 days of the expiry of the Defects Liability Period, or where there is more than one, the last to expire, the Contactor shall provide the Superintendent with a final payment claim and endorse it 'Final Payment Claim'. In addition to claims for payment required to be included in a payment claim under Clause 42.1, the Contractor shall include in the Final Payment Claim all claims for moneys which the Contractor considers to be due from the Principal arising out of any alleged breach of the Contract. All such claims, whether under Clause 42.1 or this Clause 42.5, which have not already been barred, shall be barred after the expiration of the period for lodging a Final Payment Claim. [emphasis added] First Facility Agreement signed 15 February 2012 1. On 15 February 2012, officers of the CBA met with Moustafa and Mr Deiri, explained the terms of the funding, and finance for the first stage of the development (comprising the car park and shopping centre) in the amount of $45.6 million (under a "Cash Advance Facility Agreement" – to which I will refer as the First Facility Agreement). Moustafa accepts that he signed the First Facility Agreement on behalf of Plaza. 2. Clause 13 of the First Facility Agreement authorised CBA to debit all fees and interest payable on the First Facility Agreement to the CBA Partnership Account (as defined at [210] above). 3. As part of the funding requirements, Mr Hammond of Napier & Blakeley was appointed as a quantity surveyor to approve progress claims before CBA would pay drawdowns under the facility. 4. Clause 13(b) of the First Facility Agreement provided for "Line Fees" of 1.59% per annum monthly in advance on the "Accommodation Limit" for Tranche A. The Accommodation Limit for Tranche A was defined in cl 1.1 as $5.5 million. 5. It was also a term of the First Facility Agreement that payments were only to be made pursuant to "Accommodation Notices" in the form prescribed in the schedule to that agreement and conforming with cl 3.2, which prescribed various requirements (including that each such notice had to be signed by one nominated authorised officer on behalf of each of Plaza and Investments, or by a director or secretary of each). More specifically, cl 3.2 relevantly provided: 3.2 Accommodation Notice Subject to the terms and conditions of this Agreement, the Borrower may give notice to the Bank that it requires the Advance to be provided under this Agreement. Such a notice must: […] (c) be in writing, substantially in the form set out in Annexure "A", signed by or on behalf of the Borrower by one Authorised Officer, or a Director or the Secretary of the Borrower, and be given in accordance with clause 20, and will be effective on receipt by the Bank and once given is irrevocable. An Accommodation Notice which does not comply with paragraphs (a) to (c) will not be an effective Accommodation Notice for the purposes of the Cash Advance Facility. 1. "Borrower" is defined under the "Parties" section of the First Facility Agreement to mean Plaza and Investments. The initial notice given to CBA authorising accommodation notices contained the specimen signatures of Mr Deiri and Moustafa and then provided: Method of Operation [delete as appropriate] Any to sign Jointly, Category A and Category B to sign Minimum two signatures to sign Other [please advise details] Meeting with CBA on 20 February 2012 and subsequent instructions 1. On 20 February 2012, Mr Deiri (on behalf of Investments) and Moustafa (on behalf of Plaza) executed a number of other instruments, including mortgages, company charges and deeds of guarantee. One of those instruments dated 20 February 2012 was a "Business Loan Authority (Borrowers)" directing CBA to pay any amount drawn on the facility only into the CBA Partnership Account. 2. Earlier, on 15 February 2012, a CBA "Authority to Accept Facsimile Instructions" form was executed by the partners. 3. On 22 February 2012, template "Accommodation Notice" on Plaza letterhead was signed by Moustafa and Mr Deiri. Pausing here, there was therefore at all relevant times (as the Deiri Parties emphasise) a signed template for accommodation (or drawdown) notices to the CBA in relation to the Broadway Development. However, as things turned out, that template was in fact not used. There were at least two (perhaps more) versions of the template used for the accommodation notices and progress claims (see below). 4. By letter dated 23 February 2012, the first progress certificate was issued by Napier & Blakeley certifying Progress Claim 1 (PC 1). 5. On 29 February 2012, the first drawdown on the First Facility Agreement, in an amount of $1,240,165.00, was paid to Deicorp on account of building costs for Stage 1 of the Broadway Development. There appears to be no copy of the accommodation notice issued for this payment. Mr Deiri's email on 29 February 2012 1. Also, on 29 February 2012, Mr Deiri sent an email to Landerer & Company, copied to Jamil, apparently referring to a discussion on that day (and, relevantly placing the agreement between the partners as occurring back in early November 2011): … further to our discussion earlier today, Jamil and I agreed to a [sic] partner the above development back in early November 2011, Jamil also informed David Carroll from Woolworth back in November 2011 that he will be partnering the Project with myself. Broadway Coordination Meeting No 40 on 7 March 2012 1. On 7 March 2012, Moustafa attended what seems to have been the fortieth coordination meeting (Broadway Coordination Meeting No 40). Plaza points out that Moustafa received reports from Jamil from time to time as to progress of the construction and ongoing costs; and that Moustafa also attended the building site from time to time, in the company of Jamil and (at least at times) Mr Deiri. Powers of Attorney in March 2012 1. On 20 March 2012, Jamil received advice from a solicitor (Mr David Malouf of Landerer & Company) raising a query as to whether the Power of Attorney that was held by Jamil authorised him to execute agreements for lease or leases. Mr Malouf advised that a fresh power of attorney should be granted to make this clear (see Ex 15 at p 197). Mr Malouf in that email stated: I have a few issues with it, the main one being that I am not sure that it actually authorises execution of agreements for lease and leases. The reason I say this is because clause 8: • expressly prohibits "encumbering" real estate, and I would argue that a lease constitutes an encumbrance and is therefore prohibited; and • expressly prohibits "dispose of…part with or grant any part of my real estate…". I believe a grant of a lease does all of these things and is therefore prohibited. I believe that a fresh power of attorney is required to clearly authorise [sic] the execution of the agreements for lease and leases… 1. On 23 March 2012, Plaza formally revoked the 8 December 2011 Plaza Power of Attorney (referred to at [196] above) that had been granted to Jamil. 2. On 26 March 2012, further Powers of Attorney were executed in favour of Jamil, expressly authorising leasing. It seems that Plaza's Power of Attorney was registered on 30 March 2012 (the 26 March 2012 Plaza Power of Attorney). 3. The 26 March 2012 Plaza Power of Attorney (as did the later Power of Attorney of 4 February 2013 – see at [333] below) referred in terms to leasing (but the Deiri Parties point out that they do so in inclusive terms), adding to the text of the earlier Powers of Attorney the following: The powers granted herein allows my attorney to make representations negotiate grant and execute leases and or licences and or agreements for leases or licences in respect of all and or any part of the real estate properties owned by Broadway Plaza Pty Limited ATF Sayour Family Trust. 1. Around this time, according to Mr Deiri, Jamil telephoned him and told him that Moustafa had given him a "full" power of attorney. Mr Deiri said that Jamil gave him a copy of this a month later (see Mr Deiri's affidavit sworn on 22 August 2019 at [113]-[114]). I note that Mr Deiri, in cross-examination disavowed having relied on the power of attorney (see, for example, at T 859.45). Completion of purchase of Matthews Street Property 1. It appears that the completion of the purchase of the Matthews Street Property took place on 4 April 2012 (after, apparently, the vendor had issued a notice to complete). Equity Lawyers sent a facsimile transmission with cheque directions on 30 March 2012. The balance of the purchase money was supplied in the form of bank cheques and some small cheques drawn on the account of Biomed. The bank cheques were supplied by the Bank of Sydney. It seems that Jamil had transferred over $141,000 between February and April 2012 into an account in his name with the Bank of Sydney. The sum of $130,000 was withdrawn from Biomed's account on 2 April 2012 with the entry "payment 14 Matthews Street". This money covered in part the issue of the bank cheques; the balance was obtained from a term deposit (which Jamil terminated before the expiry of its term) that had been held with the Bank of Sydney since at least February 2011. Emails in April 2012 re monthly payments 1. Also on 4 April 2012, there was an email exchange between Jamil and Mr Deiri (and Mr Leong) as to the monthly payments. Jamil sent an email on that date to Mr Deiri asking that Mr Leong be reminded to effect the monthly payment "tomorrow". Mr Deiri, shortly after this, sent an email to Mr Leong (which the Sayour Parties say is indicative that the payment was for Jamil's benefit), stating, "[h]i Hon, can you please stay on top of the monthly payments for Jamil" (my emphasis). 2. As noted above (at [279]), 4 April 2012 was the day of completion of the Matthews Street Property purchase. Payment of balance of purchase price for interest in Broadway Site 1. Mr Deiri's evidence (as adverted to at [17] above) is that, from about 1 May 2012 to 25 September 2013, he paid the balance of the purchase price for Investments' 50% interest in the Broadway Site in instalments. He says that some payments were by cheque and some by domestic or international transfer, including to Moustafa's overseas account in Lebanon. Mr Deiri's evidence is that he made each payment in accordance with Jamil's instructions. 2. Relevantly, Mr Deiri also says that, after the final payment in September 2013, Moustafa never complained of any money owing until Plaza filed its second cross-claim in December 2017. Moustafa overseas from 28 April 2012 to 4 August 2012) 1. On 28 April 2012, Moustafa departed Australia for a trip to Lebanon. While he was overseas, a number of payments were made to his bank accounts in Lebanon (see below). 2. On 1 May 2012, Deicorp Constructions sent Moustafa the sum of $500,000 via international telegraphic transfer to Blom Bank in Lebanon. Mr Deiri's evidence is that he told Jamil he wanted to make a payment of that amount towards the purchase price and that Jamil directed him to transfer it to the Lebanon bank account (see Mr Deiri's affidavit sworn on 22 August 2019 at [118]-[119]). Investments says that this represented the second of thirteen payments towards the land and the additional costs that it had agreed to pay (i.e., two of 13). 3. Moustafa's evidence is that, between April and August 2012, while he was overseas, Jamil telephoned him and said that Mr Deiri had sent $500,000 (see Moustafa's affidavit sworn on16 September 2019 at [67]). 4. On 15 June 2012 (two weeks before the payment for the full purchase price for the Broadway Site was due under the Contract for Sale), Jamil sent an email to Mr Deiri, stating: In regards to payment for punchbowl [sic] Total 8,000,000 received 400,000 + 500,000 = 900,000 bal 7,100,000 1. Pausing here, this relatively contemporaneous email corroborates Mr Deiri's evidence that the sum of $400,000 was paid towards the price for the land and is consistent with the acknowledgement in the contract of sale (see at [215] above) that a deposit of $400,000 had been paid; and confirms that the $500,000 payment to Lebanon was also a payment relating to the acquisition of the land. The email stated that the balance was $7.1 million and requested that Mr Deiri transfer $1.5 million to Moustafa's overseas account and $200,000 to "my acc" (specifying Jamil's Bank of Beirut, now Bank of Sydney #414 Account). Jamil further stated that: The balance when we receive the DA would be 5,400,000 to be put into a westpac [sic] account I will provide you later thanks. 1. On 9 July 2012, Mr Deiri drew a cheque on CP Redfern's account payable to Jamil in the sum of $200,000. This was deposited to the Westpac #202 Account with a small addition on 10 July 2012. 2. Investments says that this is the third of the land/costs payments (i.e., three out of 13). 3. Meanwhile, on 3 July 2012 (before the ninth monthly payment for August 2012) was due, Jamil sent Mr Leong an email asking him, "please advise when you will make this month's payment thanks?". The Sayour Parties submit that the apparent urgency of, or solicitude for, these payments strongly reinforces the probability that they were important in Jamil's mind. Monthly payment emails on 30 July 2012 1. On 11 July 2012, Mr Deiri transferred the sum of $500,000 by international telegraphic transfer to Moustafa's Blom Bank account in Lebanon. 2. Investments says that this is another land/costs payment (i.e., four of 13). 3. On 30 July 2012, there were further emails from Jamil and Mr Deiri to Mr Leong regarding the $10,000 monthly payments. Relevantly, these included, for example: "Hi Hon, Please advise when you will make this months [sic] payment thanks". Moustafa's return to Australia in August 2012 and August payments 1. On 1 August 2012, it appears that the last of the $10,000 monthly payments was made. On 4 August 2012, Moustafa returned to Australia. 2. On 10 August 2012, Mr Deiri transferred the sum of $1 million to the Westpac #202 Account. 3. Investments says that this is another land/costs payment (i.e., five out of 13). Meanwhile, in their submissions, the Sayour Parties suggest that this was a "balloon" payment for Jamil's benefit. (That, however, seems to be no more than suspicion, particularly since the money was deposited into an account that Plaza has accepted was a trust account.) 4. In his affidavit evidence (see [57] of his affidavit sworn 22 August 2019), Mr Deiri has deposed that, at around the time of the 1 August 2012 payment, he told Jamil that: Jamil, I'm not going to pay you anymore because we are paying Ray White to lease the rest of the shopping centre. You have been paid for some of the leases you have organised and now the agent will do the rest. 1. Plaza says that this evidence should not be accepted (see further below). 2. On 17 August 2012, Mr Deiri drew a cheque for $150,000 from CP Redfern made payable to Jamil. 3. Investments says that this is another land/costs payment (i.e., six of 13). 4. On the same day, Mr Deiri drew a cheque for $3.25 million made payable to "Moustafa & Jamil Sayour Trustee for Sayour Family Trust". 5. Investments says that this is a further land/costs payment (i.e., seven out of 13). 6. Mr Deiri's evidence is that he had a conversation with Jamil in which he said, "I've now paid the $6 million. We're all done and dusted" and Jamil said "That's fine. Its all good" (see Mr Deiri's affidavit sworn on 22 August 2019 at [128]). (That, however, does not take into account the additional $2 million sum that the Deiri interests accept was agreed to be paid towards the land acquisition costs.) Opening of Westpac #238 Account 1. On 27 August 2012, another account was opened with Westpac in Moustafa's name (the Westpac #238 Account), again designated as a trust account (i.e., "ATF SAYOUR FAMILY TRUST"). Mr Kieran Turner of Westpac emailed Jamil in relation to the newly opened Westpac #238 Account on 27 August 2012, stating: I have opened the account as "MOUSTAFA SAYOUR ATF SAYOUR FAMILY TRUST" Can you please email me your fathers TFN as we don't seem to have it on record, without it tax will be withheld. Also I can get you a discounted rate for the construction loan. If you were willing to put up $1,580,000 then we would be able to lend $1,501,000, we lend 95% on cash secured loans. What I would need is: - Your 2010 and 2011 Notice of Assessment - Your fathers 2010 and 2011 Notice of Assessment Depending if you were going to arrange the loan as both of you in name of the family trust or just your father or just you. 1. Jamil responded by email thereto, providing Moustafa's tax file number. 2. On the same day, amounts totalling about $4 million (by way of numerous transfers of $100,000 each) were paid into the Westpac #238 Account. 3. I interpose to note that an aide memoire handed up by Counsel for Plaza during the course of submissions illustrates the flow of funds between accounts (by reference to documents in the Court Book) and was generally not the subject of criticism (though there was some debate about certain entries thereon). Determination of Development Application 1. On 17 September 2012, a notice of determination of development application was issued by the City of Canterbury. Mr Zafiropoulos' loan from Mr Fadi Ibrahim 1. Mr Zafiropoulos' evidence is that, in October 2012, he obtained a loan from Mr Fadi Ibrahim for development costs at "Belmore" (see his affidavit sworn on 9 October 2019 at [27]). Westpac #802 Loan and further payments throughout October to December 2012 1. On 2 October 2012 at 3.40 pm, Ms Dahdal sent an email (Ex 12) (the 2 October 2012 email), forwarding to Mr Deiri and Jamil a request by Mr Kanellopoulos (a real estate agent at Ray White) that, "Fouad [Mr Deiri] and Jamil" sign a cheque in payment of his firm's invoice. Mr Kanellopoulos' email to Ms Dahdal had attached an invoice and stated: "Can you please process and have Fouad and Jamil sign". Ms Dahdal forwarded this email to Mr Deiri and Jamil, and wrote: Can you advise whether you are happy to pay the above inv as he is coming in tomorrow & wants to pick up chq. Also note I am currently writing out chq's that require your signatures, pls make sure to bring your pens ☺☺☺☺ 1. Pausing here, I note that CBA points out that in this email Ms Dahdal asked Mr Deiri and Jamil to note that she was currently writing out cheques "that require your signatures". It is submitted by CBA that Ms Dahdal's use of the plural was not accidental; but deliberate; and that Ms Dahdal knew very well that the cheque for Mr Kanellopoulos was to be signed by Mr Deiri and Jamil. It is said that, in light of her assumption that Jamil would be signing the cheques referred to in her email, Ms Dahdal had no reason to give Jamil a folder containing cheques for him to take away and have signed by anyone else. This is relevant to the disputed evidence as to cheque signing practices, to which I refer in due course below. 2. On 9 October 2012, an application was made for a loan (the Westpac #802 loan) for $480,000. Relevantly, it appears that Jamil completed the loan application for the Westpac #802 Loan Account (see Ex 15 at p 232), Moustafa denying that the signatures on the loan application form are his signatures, but accepting that he did in fact take out the loan in that amount (see at T 426.6-428.22) (and he appears also to have accepted that he signed the subsequent formal Westpac loan offer – see at T 427.17-35). 3. On 29 October 2012, Mr Deiri drew a cheque on Deiri Nominees' account made out to the Sayour Family Trust for $250,000. It was deposited into the Westpac #202 Account on 30 October 2012. Investments says this is another land/costs payment (i.e., eight out of 13). 4. On 31 October 2012, there was an exchange of emails between Mr Deiri and Jamil, copied to Ms Dahdal, in relation to the partnership's cheque book, on which both CBA and Plaza place some significance. Relevantly, on 31 October 2012, Mr Deiri sent an email to Jamil (the 31 October 2012 email), saying: Hi Jamil, I have real good news to share with you, we just received our second cheque from the CBA with another 200 cheques, so now we have a new cheque book where we can keep writing out cheques. Aren't you happy knowing that. 1. Jamil's email of 31 October 2012 in response to Mr Deiri, copied to Ms Dahdal, was, "I am thrilled, so excited, Nola can you make sure we have some cheques to write out by Friday thanks". 2. On 23 November 2012, Mr Deiri transferred $500,000 from CP Redfern to Moustafa's Blom Bank account in Lebanon (the payment being received on 24 November 2012). 3. Again, Investments says this is another land/costs payment (i.e., nine out of 13). 4. On 17 December 2012, Mr Deiri transferred a further $500,000 from CP Redfern to Moustafa's Blom Bank account in Lebanon. This was received on 18 December 2012. 5. Investments says this is another land/costs payment (i.e., 10 out of 13). 6. According to Moustafa, at the end of 2012, Jamil told him that Mr Deiri had paid $2 million; and he later said that Mr Deiri had paid $3 million (all up $5 million) (see Moustafa's affidavit sworn on 31 May 2019 at [118]-[119]). 7. Meanwhile, on 17 December 2012 (see Ex 13 p 80), Mr Kanellopoulos sent an email to Jamil asking Jamil to, "sign the 2 cheques in Fouad's office" so that he could meet staff payments. I interpose to observe that this may, or may not, have been Mr Kanellopoulos chasing up the cheque referred to by Ms Dahdal in the 2 October 2012 email – see at [311] above). Arncliffe Site 1. There is much contention as to the precise timing and circumstances of Jamil's discovery of the Arncliffe Site (which I will deal with in due course). 2. I have already noted above (see at [195] above) Mr Zafiropoulos' evidence as to his research into sites in Arncliffe. Mr Zafiropoulos has deposed that he attended the Arncliffe Site (a company named AFCO Pty Ltd) to have a sign fabricated and that he had a conversation with Mr Zac Bazzi (a lessee at the site) in which Mr Bazzi told Mr Zafiropoulos about demolition clauses in the leases (the significance of which being as to the ability of a purchaser to obtain vacant possession, even though the site was then tenanted – a matter clearly regarded by Mr Zafiropoulos as being of some value). 3. Pausing here, there is some discrepancy as to references to the Arncliffe Site (some witnesses referring to it as, for example, the "AFCO site" some to the "EFCO site"). So, for example, Mr Dale, the then owner, referred to the site as "EFCO"; Mr Zafiropoulos referred to it as "AFCO" (which was the name of a metalworking business operated or owned by Mr Bazzi, that business being the biggest tenancy on the Arncliffe Site at the time); and Mr Kanj, the principal of Konstructions, referred to it as the "EFCO site". Nothing turns on this (other than, for example, that the discrepancy of itself is relied on by Konstructions as pointing against collusion between the witnesses). Relevantly for present purposes, it is not disputed that the Arncliffe Site had formerly been used as the EFCO lock factory and that there remained a large sign still on the building in that name, despite the departure by then of that company from the site. 4. According to Mr Zafiropoulos, at some stage in 2012, he and Mr Fadi Ibrahim had a discussion about Rockdale Council LEPs and Mr Ibrahim suggested that Mr Zafiropoulos speak to Jamil (see Mr Zafiropoulos' affidavit sworn on 9 October 2019 at [28]-[35]). Mr Zafiropoulos has deposed that he then had an initial meeting with Mr Fadi Ibrahim and Jamil at the Sake Restaurant (in about December 2012) (the First Sake Restaurant meeting). It seems that it was at this meeting that, according to Zapphire, Mr Zafiropoulos told Jamil about the Arncliffe Site (see Zapphire's defence at [57]). 5. Moustafa's evidence is that Jamil first mentioned the Arncliffe Site (or project) to him in 2012 (see Moustafa's affidavit sworn on 27 October 2016 at [39]-[40]) that: 39. I recalled that the Arncliffe Project was meant to be a joint venture between Jamil and Fouad. I knew this because Jamil had spoken about it occasionally to me over the years. 40. The first time I recall having a conversation about this construction project was in about 2012. I remember we said to each other words in the Arabic language to the following effect: Jamil: "I have found a good site to make a new development and I am thinking of going into business with Fouad to build some apartments on it." Me: "Good on you." Jamil: "We will make a lot of money." Me: "From where are you going to get the money?" Jamil: "I'm going to lend it from Marwan, my accountant. You remember he divorced his wife. He's deposited 1.7 million into my account. I'll use it to contribute to the deposit for the land." 1. In his affidavit sworn on 16 September 2019, Moustafa deposed (at [192]): 192. I first heard of the "Arncliffe Project" in 2012. I recall that Jamil had said to me in passing words to the following effect: Jamil: "I have found a good site to make a new development and I am thinking of going into business with Fouad to build some apartments on it". 1. Moustafa confirmed in cross-examination the 2012 timing of the discussion in relation to the Arncliffe Site (see, for example, at T 652.10-12). Opening of Westpac #295 Account and withdrawal of money from Westpac #238 Account 1. On 1 February 2013, the Westpac #295 Account was opened in the names of Moustafa and Jamil (see Ex 15 at p 295). 2. On 1 February 2013, the sum of $4 million was withdrawn (by 40 transfers of $100,000 each) from the Westpac #238 Account and deposited into the Westpac #295 Account. 3. I interpose to observe that the explanation for such a series of transfers is unclear and this has no doubt fuelled (perhaps not unreasonable) suspicion by Moustafa as to the transfer of those funds. Powers of Attorney in February 2013 1. On or about 4 February 2013, Moustafa and Plaza (as trustee for the Sayour Family Trust) gave further Powers of Attorney to Jamil. Moustafa overseas from 5 February 2013 1. On 5 February 2013, Moustafa left Australia for overseas (returning 22 May 2013). 2. On the same day, the sum of $3 million was withdrawn from the Westpac #295 Account at the bank's Pennant Hills branch. The following day, 6 February 2013, the sum of $3 million was received into Moustafa's Blom Bank account in Lebanon. Further payments 1. According to Mr Deiri, in February 2013, he told Jamil that he had another $400,000 to pay, which Jamil directed be paid by cheque to Plaza (see Mr Deiri's affidavit sworn on 22 August 2019 at [143]-[144]). 2. On 8 February 2013, Mr Deiri drew a cheque for $400,000 on the CP Redfern account made out to "Sayour Investments Pty Ltd" (i.e., Plaza) (see Ex 15 at p 280). Investments says that this cheque was deposited on 13 February 2013. Plaza says that this was deposited into the Westpac #295 Account. Investments says that this is another land/costs payment (i.e., 11 out of 13). 3. On 19 February 2013, Jamil sent an email to Mr Deiri saying, "Fouad whos [sic] gonna visit us in jail". Application for home loan (Westpac #111 Loan Account) 1. On 21 February 2013 (i.e., at a time when Moustafa was still overseas), Westpac made an offer of a home loan following an application in the names of Moustafa and his wife, Fatima (for $864,000) (see Ex 15 at p 281). This is the Westpac #111 Loan Account, which was an offer accepted by Jamil while Moustafa was ovserseas, and discharged in November 2014 from funds applied from the Westpac #202 Account (see at [1338] below) as was an earlier loan account (the Westpac #980 Loan Account). Query on 8 March 2013 from CBA re cheque signatures (the 2013 CBA cheque query) 1. At 9.15 am on 8 March 2013, Ms Sue Marven (of CBA's Operations Officer, Payment Exceptions Processing Services) sent an email to Mr Stephen Small of CBA, with a request to "action the large cheque verification attached and advise this office … with an answer by 3 pm", extracting a copy of cheque #226 dated 26 February 2013 (which was for the sum of $202,720 in favour of Deicorp Constructions). The cheque bore a "Jamil" signature and the signature of Mr Deiri. The email noted that the cheque had been "presented to your client's account yesterday" (i.e., on 7 March 2013). The email stated that the cheque was referred because "[s]ignatures unlike specimen held" and called for branch action to verify the cheque or direct its dishonour. 2. Plaza says that Mr Small undoubtedly knew that Mr Deiri, as well as being the director of Investments, was the sole director of Deicorp Constructions because CBA had entered into a "Builders' Side Deed" with Deicorp Constructions (and Plaza), and Mr Small usually received the construction progress reports from CBA's quantity surveyors, Napier & Blakeley. It is noted that Mr Small was the CBA relationship executive responsible for CBA's relationship with the Broadway Partnership. 3. At 9.34 am on 8 March 2013, Mr Small forwarded that email to Ms Samantha Schucroft (Account Manager, Property Corporate Financial Services Business and Private Bank), requesting her to, "… check these signatures to the Authority. They do not look right to me, I am sure they are OK but". 4. At 9.50 am that day, Ms Schucroft sent an email to Ms Jennifer (Mengjie) Luo, of Deicorp, with a copy of the bank's signature specimen for Moustafa and a copy of the bank's internal request for verification, extracting the cheque. It is noted that the email does not contain any direction or request for information. 5. At 9.58 am, Ms Schucroft forwarded the same email to Mr Deiri. Plaza notes that Mr Deiri did not refer to this in his affidavit evidence. 6. At 10.00 am, Ms Schucroft sent an email to the Core Large Transactions email address, copied to Mr Small, stating, "[d]ear Team, Confirmed with the client approved to proceed". Plaza notes that the relevant bank statement shows that cheque #226 was debited to the account as at 7 March 2013. 7. On 11 March 2013, Mr Deiri forwarded the 8 March 2013 email from Ms Schucroft to Jamil at 9.39 am. There does not appear to have been any response by Jamil thereto. 8. I refer to this query by CBA as to the signature on this cheque as the 2013 CBA cheque query. There does not appear to have been any other such query. Cheque signing emails on 30 April 2013 1. On 30 April 2013, there was another exchange of emails in relation to the signing of cheques on which Plaza places reliance. 2. Relevantly, an email was sent on 30 April 2013 to Jamil (the 30 April 2013 email), which referred to Jamil attending Mr Deiri's office the following day and included: … pls make sure to sign the cheques I'll leave in the folder on fouad's desk 1. Jamil replied, "[d]epends if its [sic] a lot not coming". 2. There were three cheques dated 30 April 2013, those being cheques #234, #235 and #236. Crucially, each bears an "imitation" (that is, a signature purporting to be that of Moustafa but which the authenticity of which is disputed or has otherwise been proven to not be Moustafa's hand – see below) Moustafa signature as well as the signature of Mr Deiri. Hence, unsurprisingly, Plaza submits that it should be concluded that Jamil in fact attended Mr Deiri's office, as requested, the day after to sign cheques #234, #235 and #236; and that he signed them and left them there to be dispatched by Mr Deiri's staff. 3. Relevantly, the email corroborates at least part of Mr Deiri's account as to the cheque signing practice within the Deicorp offices, in that it refers to cheques being left in a folder on Mr Deiri's desk. Further, I consider that if Ms Dahdal was arranging for cheques (on their face dated 30 April 2013) to be signed according to her email the "following day", this strongly suggests that some cheques, at least, were dated in advance of their signing by one or both of the signatories thereto. Deicorp Properties – licence to operate under the Property Stock and Business Agents Act 2002 (NSW) 1. On 10 May 2013, Deicorp Properties obtained a licence to operate under the Property, Stock and Business Agents Act 2002 (NSW). Tender for Stage 2 1. On 14 May 2013, a letter of tender was issued from Deicorp Constructions to the Broadway Partnership for the design and construction of the Stage 2 residential development. The letter was addressed to the attention of Jamil. The sum quoted was a lump sum price of $24.85 million. 2. This sum comprised of: "Construction Cost" ($22,570,033.00); and "Provisional Sums Allowance" ($2,279,967.00). This Stage 2 tender submission provided that, for that lump sum price, 148 units would be constructed. 3. Jamil (as "Development Manager") signed a letter dated 15 May 2013, on Broadway Partnership letterhead, accepting the tender. As noted earlier, Moustafa's evidence is that Plaza did not agree to the increase from $23.5 million to $24.85 million. Stage 2 Construction Contract 1. On 15 May 2013, a "Formal Instrument of Agreement" for the Stage 2 construction contract (again, the residential units) was signed by Jamil (on behalf of Plaza) and Mr Deiri for $24.85 million (the Stage 2 Construction Contract). 2. I note that the contract in question was as between the Broadway Partnership and "Deicorp Construction Pty Ltd" (whereas on the Fifth Broadway Cross-claim, Plaza has pleaded its claim against "Deicorp Pty Ltd" – see at [60] above). I understand that the relevant parties have accepted that this was a pleading error and they were content to proceed upon the basis that, insofar as the Stage 2 Construction Contract is concerned, the Fifth Broadway Cross-claim and the Sixth Broadway Cross-claim each permits the liabilities and the entitlements of Deicorp Construction Pty Ltd to be pursued. Jamil's query of 16 May 2013 1. On 16 May 2013, Jamil sent Mr Deiri an email (the 16 May 2013 email) in relation to the pricing of the Stage 2 Construction Contract. In that email (which the Sayour Parties note was sent the day after the Stage 2 "replacement" contract was signed, increasing the price from $23.5 million to $24 million) (as to which, see earlier, where the cost of the apartments was $21.1 million plus GST), and on which they placed no little weight as showing that Jamil knew he was to account to his father), Jamil wrote that: Just some questions I would like elaborating a bit from you. I have noticed that we have spent a lot of money already on the residential units from the 45,000,000 first stage payments. I have identified $1,486,791 that clearly states payments for residential in the progress claims. Now the bulk excavation and ground works is all together as one so as we have 2 levels of basement the residential is a quarter of all area. So to work out cost paid for residential is it fair to say divide all costs by 4 to find out residential approx area.? [sic] If you have worked it out already please provide the reason I say this I would like to know what the units are costing us as a whole. As you know anything you ask me to sign I do it straight away because I trust you. But as I have my father and God keep him with us forever I need to always tell him what's going on. My father will be asking me these questions and I must answer him. Also in regards to all provisional sums can [sic] I see all invoices and payments we pay in this section for retail and residential thanks. Fouad you and your brother Jason are my brothers forever [sic] I love you both dearly more then you can think, so please don't think anything of this email but my best intentions. I will need to justify to my father what the units are costing us in full especially that they have increased 850K more as you know I have only mentioned 23,500,000 to my father. 1. Specifically, the Sayour Parties place weight on the statement in the above email that "[a]s you know anything you ask me to sign I do it straight away" as an admission by Jamil that he would sign whatever Mr Deiri asked him to sign. It is, of course, not implausible that this was not intended as a serious statement in the sense here pressed by the Sayour Parties; indeed, for example, it might simply have been Jamil trying to placate Mr Deiri and assuring him that he was on top of things, so to speak (it is certainly redolent of hyperbole in my opinion). Moustafa returns to Australia in May 2013 1. On 22 May 2013, Moustafa returned to Australia. Second Facility Agreement 1. On 31 May 2013, approved terms and conditions were executed for a new CBA loan to fund Stage 2 of the Broadway Development comprising the 148 residential units. Moustafa disputes that he signed this document. 2. On 20 June 2013, the Stage 2 facility documents were signed. As I have adverted to at [19] above, the Stage 1 Loan was reinstated as an investment facility and the balance of the loan became part of a separate facility (and, defined above as the Second Facility Agreement) for Stage 2 of the Broadway Development (Stage 2 Loan). A "Deed of Variation and Restatement No. 1" dated 20 June 2013 was purportedly executed and an "Amended and Restated Cash Advance and Facility Agreement" dated 20 June 2013 was purportedly executed. Again, Moustafa's evidence is that he did not sign any of these documents (and the forensic examiner has given evidence that the "Moustafa" signatures on these documents were not genuine). 3. Clause 13 of the Second Facility Agreement again authorised CBA to debit to the CBA Partnership Account of all fees and interest. Under the Second Facility Agreement, funds were made available for the construction of Stage 2 of the Broadway Development. The First Facility Agreement was amended to reduce the facility limit to $34.3 million. 4. On 25 June 2013, a Deed of Guarantee entitled "Commercial Deed of Guarantee – Limited" was purportedly executed by Moustafa. Again, Moustafa denies signing the document and the forensic examiner has given evidence that it is not his signature. Relevantly, this "Moustafa" signature was purportedly attested by Ms Dahdal (a matter about which Ms Dahdal was cross-examined – as to which see at [995] below). Emails on 27 June 2013 1. There was a further exchange of emails to which both CBA and Plaza point on 27 June 2013 in relation to the signing of cheques. 2. First, at 10.57 am, Ms Dahdal sent an email to Mr Deiri and Jamil in which she said, "Jamil I need you to come in & sign another chq thanks". I note that it is said by CBA that Ms Dahdal asked this because there was an invoice which had to be paid, which CBA says meant that she had to get Mr Deiri and Jamil to sign the cheque; and that Mr Deiri, to whom the email had also been sent, made no protest of any kind to Ms Dahdal to the effect that Jamil did not sign cheques. 3. Then, at 4.34 pm, Ms Dahdal emailed Jamil, saying, "the chq is for blackstone water house, I thought you signed me enough chq's also I have another inv for Napier too". I note that CBA says (and, I agree) that this is indicative of a practice whereby Jamil signed blank cheques in advance. 4. Jamil replied, "Nola, give the cheque book to Fouad make sure he brings it with him on Sunday" (and Ms Dahdal responds that an event is to take place on Saturday). 5. As to this last email exchange, Mr Deiri proffered the explanation that Moustafa was also attending the Mayoral Ball to which this email refers (see T 904.10-30). Emails re leases 1. On 12 August 2013, Mr Kanellopoulos (it will be recalled, the real estate agent) sent an email expressing dissatisfaction and alleging that he had assisted Mr Deiri and Jamil with fabricating "false leases" to meet bank funding requirements. Mr Deiri responded (not, I might add, disputing such an occurrence or expressing any complaint at such a suggestion) rather, by asking Mr Kanellopoulos and Jamil to stop sending emails (which rather suggests dissatisfaction with there being any paper trail of such assertions). Payment in August 2013 1. On 14 August 2013, Mr Deiri drew a cheque on CP Gibbons account for $150,000 made payable to Jamil. It was deposited to an unknown account on 15 August 2013. 2. As above, Investments says this was another land/costs payment (i.e., 12 out of 13). Construction of the residential units in Broadway Development 1. It appears that construction of the residential units began in August 2013. Rodney Dale's introduction to Jamil in September or October 2013 1. There is a dispute as to when (and how) Jamil first discovered the Arncliffe Site (which is relevant in the context of the claim made against Zapphire, in respect of the so-called a Site Identification Fee(s) in respect of the site (see at [81] above); and, indirectly, to the claim against Konstructions, which was also paid a substantial amount in relation to the site – originally also claimed as a site identification fee, for reasons that Mr Kanj explained in his evidence. 2. Mr Rodney Dale, the proprietor of Purnell Motors (a high end luxury car dealership), gave evidence (see Mr Dale's affidavit sworn on 9 August 2019 at [15]-[16]) that he was introduced to Jamil in the second half of 2013 by one of his sales staff. 3. Pausing here, it is relevant to note that (as set out at [327] above) Moustafa's evidence is that Jamil first mentioned the Arncliffe Site (or project) to him in 2012 and that, according to Mr Zafiropoulos, Mr Zafiropoulos had already by this time had a conversation about the site with Jamil and Mr Fadi Ibrahim at the First Sake Restaurant meeting (as set out at [326] above). 4. Mr Dale's evidence was that in about 2012 or 2013, he came to the view that it would be a good time to sell the Arncliffe Site (which was owned by his company, Brano Pty Ltd (Brano)); he then asked his employees to keep a look out among Purnell Motors' high-end, wealthy customers for someone who might be interested in acquiring the site; at some time in the second half of 2013, Mr Dale was introduced to Jamil through one of his sales staff, who told Mr Dale of a customer involved in real estate development who had recently purchased a Range Rover from Purnell Motors; the salesman told Mr Dale that he had mentioned the Arncliffe Site to the customer and the customer expressed an interest in meeting Mr Dale; and that, shortly thereafter, Mr Dale met Jamil at the Purnell Motors showroom (i.e., not at the Arncliffe Site itself). Mr Dale's evidence is that Jamil told Mr Dale that one of Mr Dale's employees had told him (Jamil) that he (Mr Dale) had a site for development that he was looking to sell, and that he (Mr Dale) responded, "[y]es, it's a block of land on the Princes Highway at Arncliffe…" (see Mr Dale's affidavit sworn on 9 August 2019 at [16]). 5. Mr Dale's evidence is that, in that initial meeting (which he recalled was some time in the second half of 2013), Jamil also told him that Jamil represented his family businesses and investments, including in property development and that there was someone Jamil would like Mr Dale to meet; and that Jamil suggested that they "grab a bite for lunch to eat sometime" (see Mr Dale's affidavit sworn on 9 August 2019 at [19]). 6. The Sayour Parties say (and, I accept) that the date of this initial meeting can be fixed with reasonable certainty by reference to an email exchange between Jamil and Mr Dale. On 14 October 2013, Mr Dale sent an email to Jamil with a survey of the Arncliffe Site (see Annexure A to Mr's Dale affidavit sworn on 9 August 2019), stating inter alia: The site is not on the market officially until sometime in early 2014. I will take a few networking opportunities (including yourself) to discuss the site as it may be something that can progress without agents/intermediaries. 1. Jamil sent an email to Mr Dale, copied to Mr Deiri, on the same day (14 October 2013) in which Jamil said: Rodney, Just got off the phone with my partner [Mr Deiri] we are both interested in the site and would like to discuss further with you over lunch. We were thinking this Thursday at Le sands restaurant at Brighton le sands around 12.30pm? 1. Mr Dale's evidence is that, about two weeks after he first met Jamil, he had lunch with Jamil and Mr Deiri to discuss the Arncliffe Site (see Mr Dale's affidavit sworn on 9 August 2019 at [23]-[27]). 2. Relevantly, the Sayour Parties submit (and, again, I accept) that Jamil's reference to "this Thursday" in his email of 14 October 2013 suggests that this meeting happened on 17 October 2013. 3. Mr Dale's evidence is that, at the lunch meeting with Mr Deiri and Jamil (i.e., the meeting that followed this 14 October 2013 email), Mr Deiri told him that he owned Deicorp, a building and property development company. Mr Dale's evidence is that Mr Deiri and Jamil gave him the impression that they got along well and worked well together, with Mr Deiri as "senior partner" (see Mr Dale's affidavit sworn on 9 August 2019 at [26]). 4. Mr Dale's evidence is that, after the initial lunch meeting, he continued to liaise directly with Mr Deiri, and that they started to discuss a purchase price for the Arncliffe Site. He gave evidence that he and Mr Deiri had "maybe one or two more lunches together to discuss the details of the purchase of the Site" and that neither Jamil nor anyone else attended those lunches (see Mr Dale's affidavit sworn on 9 August 2019 at [30]). 5. There are emails between Mr Deiri and Mr Dale over the following months that make reference to their ongoing discussions (including further lunch meetings). Mr Deiri's introduction to the Arncliffe Site 1. According to Mr Deiri (see Mr Deiri's affidavit sworn on 16 October 2019 at [7]), in around November 2013, Jamil approached Mr Deiri and told him that he had found a development site at Arncliffe (being the Arncliffe Site) and suggested that they develop it into residential apartments and shops. 2. In his affidavit sworn on 26 June 2017 (at [19]), Mr Deiri deposes (consistently with Mr Dale's account of the conversation with Jamil, though not as to the precise month – see at [378] above) that Jamil told him in or around November 2013 that: I have bought a car from a guy that owns a development site at Arncliffe. His name is Rodney. Rodney asked me whether he knew anyone that wanted to buy the site as he needed the money. I told him that I knew Deicorp, we were partners on a project we were working on at Punchbowl and that I would ask Deicorp. Rodney said that he knew of Deicorp and would be interested to talk to them to sell the Arncliffe site. 1. Further, in Mr Deiri's affidavit sworn on 16 October 2019 (I note, sworn after Mr Kanj and Mr Zafiropoulos had filed and served their initial affidavits setting out their versions of the identification of the Arncliffe site), Mr Deiri gives evidence that Jamil said that, "I've found a development site at Arncliffe" but there was no reference to Jamil buying a car. 2. Accordingly, although on 16 October 2019 put this initial conversation as around November 2013, it must have been earlier than that (around September or October) by reference to the 14 October email referred to at [381] above. 3. Mr Deiri's evidence is that he had not been looking for development sites in the Arncliffe area prior to this meeting with Jamil. 4. According to Mr Deiri, about a week after his initial conversation with Jamil, he had another conversation in which Jamil said, "if you are interested in the Arncliffe Site, we can go 50/50 just like we did at Punchbowl" (see at [7]-[9] of Mr Deiri's affidavit sworn on 16 October 2019); and that Jamil said to him, "I'm bringing this to you because you're my brother and I'd like to do the project with you". 5. Pausing here, references to the Broadway Development in the context of the proposal to develop the Arncliffe Site would make it more likely that the first conversations between Jamil and Mr Deiri took place closer to the time Mr Dale has suggested. 6. Mr Deiri also gave evidence that the two visited the Arncliffe Site and met with Mr Dale (see, for example, at T 824.6-22). Mr Kanj's account of events in mid to late 2013 1. According to Mr Kanj (the principal of Konstructions and who was also employed as a finishing foreman at various of the Deiri Group's projects), Jamil told him of Jamil's interest in the Arncliffe Development some time in the period from January to June 2013 (i.e., placing this before the 14 October 2013 email from Jamil to Mr Dale and the subsequent lunch meeting between Mr Dale, Mr Deiri and Jamil). 2. Mr Kanj says (see Mr Kanj's affidavit sworn on 20 September 2019 at [20]-[27]) that he met with Jamil in mid to late 2013 and Jamil told him (see at [22]): I Don't want you to tell anyone about it. I'm thinking of buying a site in Arncliffe, but at this stage I don't know if it's worth it … come and look at it with me, and we can talk about it? 1. Mr Kanj 's evidence is that he wanted to become involved in the management of the Arncliffe Development at a rate of cost plus 15% and a share of the profit. Mr Kanj says that Jamil engaged him on those terms (see Konstructions' defence at [14A]ff). 2. Mr Kanj then says (see Mr Kanj's affidavit sworn on 20 September 2019 at [33]-[35]) that he met with Jamil in mid to late 2013 and Jamil said (see at [34]-[35[): I can't do this by myself I'm going to ask your boss Fouad to do it with me, and I can't do it with you … Don't worry I won't let you down. I'll look after you … I've got to look after someone else as well. I'll tell Fouad he has to pay you and the other guy. He can fund it and he can pay it. It's just site cost. 1. Mr Kanj says that he had a further conversation a short time later (see Mr Kanj's affidavit sworn on 20 September 2019 at [36]-[42]) where Jamil said (at [37]-[38]): I've done the deal with Fouad. At the end of the project, he'll pay you $7.2 million plus GST. You will probably have to issue an invoice … put that it is a fee for assistance with the site identification. 1. Pausing here, the time frame placed by Mr Kanj on these conversations is not consistent with Mr Deiri's recollection (see at [387] above) that he first heard about the Arncliffe Site in either November 2013 or (as seems more likely having regard to the contemporaneous documents) in about September or October 2013). Moreover, the suggestion that Jamil was able to put a fixed price ($7.2 million plus GST) at this stage seems inherently unlikely. 2. Indeed, the Sayour Parties say that a fatal flaw in Mr Kanj's "story" is his assertion (in his affidavit sworn on 20 September 2019 at [37]-[39]) that Jamil told him in 2013 that he had "done the deal with Fouad" and that Mr Deiri would, at the end of the Arncliffe Development, pay him exactly $7.2 million plus GST. 3. It is noted that $7.2 million happens to be exactly half of the uplift amount identified by reference to a valuation prepared in October 2015 (see at [564] below). The Sayour Parties say that it is simply impossible that Jamil could have known to nominate that $7.2 million figure to Mr Kanj in 2013. It is said that this is enough reason to reject Mr Kanj's account of his dealings, and his alleged agreement, with Jamil. 4. Further, the Sayour Parties say that, contrary to Konstructions' submission, Mr Kanj has had ample opportunity to explain the circumstances in which Jamil nominated the $7.2 million figure. More specifically, the Sayour Parties point to the following: first, the letter from the solicitors for Sayour Holdings to Konstructions of 12 November 2018, where Konstructions was asked to detail what services were performed in exchange for the $7.2 million plus GST and to provide all relevant documentation; second, that Konstructions admitted (at [12] of its amended defence) that Sayour Holdings sent it the letter, and that it never responded thereto; and third, further, that Mr Kanj gave clear and unambiguous affidavit evidence that Jamil nominated that precise figure of $7.2 million plus GST to him in 2013 (see at [37]-[39] of his affidavit sworn on 20 September 2019), and he confirmed the evidence in cross examination (see at T 1286). 5. In this regard, I note that, in cross-examination, Mr Kanj was repeatedly pressed to explain exactly what words Jamil used in the conversation in which Jamil supposedly told him that he had "done the deal" with Mr Deiri (see T 1285.23 – T 1287.30), culminating in the following exchange (at T 1287.21-30): Q. So you seriously tell her Honour that he promised you effectively that you would get paid without doing years of work that you would otherwise have had to have performed -- A. I don't know -- Q. -- for years in order to earn? A. I don't know what Jamil was thinking. Q. You don't know what he was thinking. A. Yeah. 1. The Sayour Parties say that Konstructions' submission that Mr Kanj was denied an opportunity to explain why Jamil nominated the precise sum of $7.2 million plus GST ought to be rejected and that Mr Kanj said quite clearly that he did not know what Jamil was thinking when he nominated that sum. 2. Mr Kanj also gave affidavit evidence (see his affidavit sworn on 20 September 2019 at [50]-[56]) that, in around January 2018, he approached Mr Deiri and Mr Gav to provide the invoice for $7.2 million plus GST. Mr Kanj says he prepared an invoice "for the amount Jamil had told me" (i.e., $7.2 million plus GST). Again, it is noted that this happened to amount to exactly half of the sum said to have been nominated by Jamil to Mr Deiri in the "deathbed" conversation of 30 September 2015 (see at [268] below), allegedly derived from a valuation report prepared in late 2015 (see at [564]; [608] below). Mr Zafiropoulos' account of events 1. Mr Zafiropoulos (see his affidavit sworn on 9 October 2019 at [37]) says that, in mid to late 2013, he had a further meeting with Jamil and Mr Fadi Ibrahim at the Sake Restaurant (the Second Sake Restaurant meeting); and that Jamil said: I am progressing the Arncliffe Site … If [it] does occur, then my partner and I Fouad Deiri [sic] will give you the opportunity to invest in the development of the site and share in the benefits of its development. If you invest $1,000,000.00 in the development site, then you can receive 50% of the uplift value of the site, resulting from the grant of a development consent… Mr Deiri's account of December 2013 conversation with Jamil 1. Meanwhile, Mr Deiri has deposed (see his affidavit sworn on 16 October 2019 at [12]) to a conversation with Jamil in around December 2013 to the following effect: I said: "Jamil, I'm happy to do this project by myself, and just pay you a fee. You are not adding any value to this project. I am doing the rezoning, the DA, the finance, the construction, the marketing – everything. There is no value in me bringing you on." Jamil said: "Please Fouad, I need to do something for my family. I've got three kids." I said: "OK. But you'll need to match dollar for dollar in contributions to the project. We can split profits 40% to you and 60% to me. I've got a project a[t] Kogarah which is the same deal – we each put in 50/50, but profits are split 40% to the other party and 60% to me, because I am taking all the risk. This is how it should be for us." Jamil said: "No, that's not fair. I brought it to you. Profits should be 50/50, or I'll take it to someone else." I said: "OK. Fine, we can go 50/50 but only on the basis that we each contribute the same amount of money on the project. But I am going to treat you like a passive investor as I will be doing everything. I will remain in full control and will be the sole director and secretary." Jamil said: "Yes this is fine." I said: "A project like this we would probably need to contribute around $10 million each. We'll have to put in $5 million now and $5 million after construction. That could vary depending on the loan ratio from the bank. Are you fine with this?" Jamil said: "Yes OK. I just need a bit of time to get the money together." 1. I note that there have been different versions of this conversation. Further variation to facility agreement in September 2013 1. Returning to the Broadway Development, in September 2013, a "Deed of Variation and Restatement No. 1" dated 3 September 2013 and an "Amended and Restated Cash Advance and Facility Agreement" dated 3 September 2013 were signed. The documents reduced the number of qualifying apartment presales prior to obtaining funding under the Stage 2 Loan and enabled structural works to start earlier. 2. Again, Moustafa says the "Moustafa" signatures on these documents are not genuine (and the forensic examiner supports this conclusion). Payments in September 2013 1. On 24 September 2013, a letter was sent to CBA in relation to the facility payout, requesting CBA to arrange to pay-out the early works facility in the sum of $5,513,308.49. The letter was addressed to Ms Schucroft (of CBA) and signed by Mr Deiri under his printed name, with a non-genuine Moustafa signature above the name "Mustafa [sic] Sayour". 2. On 25 September 2013, it appears that Mr Deiri gave Jamil a cheque for $200,000 and a letter stating that the payment was in full and final settlement in relation to the purchase price and confirming that all of the $8 million was now paid and no other moneys were owing. 3. More specifically, this 25 September 2013 letter stated: Further to signing of the contract of sale for the purchase price of $6.0 million and additional $2.0 million payment in regards to the above named property, please find attached payment of $200,000.00 from Combined Property Investments Pty Ltd, cheque number 300002 as the full and final settlement in regards to purchase of the above land as per agreement, confirming the full $8.0 million has now been paid. I further confirm there are no other moneys owing or outstanding in regards to the purchase of the property… 1. Investments says that this was the final land/costs payment (i.e., 13 out of 13). 2. I note that, also on 25 September 2013, Mr Deiri sent an email attaching a scanned copy of a cheque drawn on the account of Combined Property Investments Pty Ltd (CPI) addressed to Plaza in the sum of $200,000. 3. It appears that this cheque was deposited to an unknown account. (Note: following publication of these reasons the Deiri Parties have informed the Court that, insofar as their submissions recorded as unknown the destination of the said amount or amounts, this was incorrect - see subsequent reasons.) Appointment of Mr Gramelis as accountant for Sayour interests 1. On 25 September 2013, it seems that Mr Kon Gramelis was appointed as the Sayour family's new accountant (see Ex 15 at p 318). Email of 10 November 2013 1. Meanwhile, on 10 November 2013, presumably in the context of the 3 September 2013 variation to the CBA facilities (see at [410] above), Jamil sent an email to Mr Deiri, as follows: Me and my father were going over all the payments we have paid to date, and I was explaining how much things have costed and what we are paying for especially the agent fees which is a good thing and all the contribution we need to pay this week and marketing etc etc. My father then brought up the residential costing and I told him the price is $23,500,000 he said that it should be less cause at the time this was agreed to for 152 units. I then thought to myself 23,500,000 was agreed at the time between December 2011. But one day at your office in Petersham you told me that the price has to increase to 24,850,000 and I thought WOW what's changed you know me I don't like saying NO to you and I Love you dearly like my Older brother so didn't want to take it further. But now when I think about it why was the figure increased was it steel and concrete? If so with an increase of 1,350,000 then this is a 25% increase of the total sum for the residential since December 2011. You always tell me that your concrete and steel prices are locked in for 3 years. Fouad I'm saying this cause if my father finds out that the price has gone up $1,350,000 he will Fukien Loose it. Things has been tough between me and my father lately he loses it at the smallest things I don't know why maybe his age or I don't know. I just feel bad that I have lied to him I don't lie to anyone yet this to my Dad. […] 1. I interpose to note that the Sayour Parties place no little weight on this email, not least because of the statement by Jamil in the email that he had "lied" to his father. Completion of Broadway Plaza shopping centre in December 2013 1. The completion of the Broadway Plaza shopping centre occurred by 3 December 2013. There was an opening ceremony on 5 December 2013 which Mr Deiri, Jamil, Moustafa, CBA representatives, and the Mayor of Canterbury attended. It appears that an agreement for McKenzie Hall to manage the shopping centre was signed by Jamil and Mr Deiri in December 2013. Incorporation of Sayour Holdings Pty Ltd and Moulikyah Pty Ltd 1. On or about 16 December 2013, documents were signed by Moustafa for the incorporation of Sayour Holdings and another entity, Moulikyah Pty Ltd (Moulikyah); and for the establishment of the Sayour 2 Family Trust. 2. On 17 December 2013, Mr Gramelis emailed Jamil advising that, for the purposes of acquiring 50% of the shares in the new (Arncliffe) development, a new discretionary trust had been created for Moustafa, the trustee being Sayour Holdings (see Ex 15 at p 349): Dear Jamil For the purposes of acquiring 50% of the shares in the new development we have created a new discretionary trust for your father. The legal entity is known as:- Sayour Holdings Pty Ltd ATF Sayour 2 Family Trust. Should you need any help, please feel free to contact me or alternatively Roni Kumar at the office. 1. Mr Dale sent an email to Mr Deiri on 13 January 2014, stating that it would take Mr Dale some time to review the cost file and suggesting that he and Mr Deiri meet on 28 January 2014 in order to give Mr Deiri enough time to "do the work". Mr Dale stated in that email that, "the exclusivity will remain throughout that period from my end". Mr Deiri agreed to that proposal and noted that that would, "give [him] a bit more time finalise costings from [his] end". Mr Deiri forwarded that email chain to Jamil with the message, "FYI". 2. Mr Deiri's evidence is that, in January 2014, he and Mr Dale had a meeting and that, at either this meeting or an earlier one, they spoke about getting the site rezoned. Mr Deiri says that he explained to Mr Dale that Deicorp had the expertise to get the site rezoned itself, without needing to wait for the new draft planning controls for the Arncliffe Site to be gazetted. Mr Deiri's evidence is that Mr Dale offered to sell the site for $18.1 million, to which Mr Deiri agreed on condition that the sale be effected through a put and call option contingent upon Deicorp succeeding in having the site rezoned within 12 months (and that Mr Dale agreed thereto) (see, for example, Mr Deiri's affidavit sworn on 16 October 2019 at [15]ff). 3. More specifically, in his affidavit sworn on 26 June 2017, Mr Deiri says that he and Jamil met with the owner of the Arncliffe Site (it will be recalled, Mr Dale) and negotiated a price of $18.1 million (see at [21]); and his later affidavit sworn on 16 October 2019, Mr Deiri has deposed that he and Jamil had lunch with Mr Dale in around January 2014 and agreed to purchase the site for $18.1 million subject to a put and call option to complete the purchase within 12 months in order to have the property rezoned (see at [14]-[15]; and see, for example, email of 29 January 2014). Alleged agreement with Jamil re Combined Projects Arncliffe (the Arncliffe Agreement) 1. Mr Deiri's evidence is that, following further discussions with Jamil in January 2014, he and Jamil came to an understanding in January 2014 that: they would incorporate a company as the special purpose vehicle for the venture to be named Combined Projects (Arncliffe) Pty Ltd (i.e., the company referred to in these reasons as Combined Projects Arncliffe); the company would have two equal shareholders, being one entity nominated by Mr Deiri and one entity nominated by Jamil; any profits would be distributed proportionately to the loan contributions made by each shareholder as a percentage of total shareholder contributions; Mr Deiri would be the sole director and secretary of the company and Jamil would be a "passive investor"; and Mr Deiri's company, Deicorp Constructions, would be the builder (see, for example, Mr Deiri's affidavit sworn on 26 June 2017 at [22]). 2. Furthermore, Mr Deiri deposes (in his affidavit sworn on 16 October 2019 at [13]) that in January 2014 there was a conversation with Jamil at Deicorp's office to the following effect: I said: "We'll set up a company called Combined Projects Arncliffe. 'Combined Projects' is the name I use to develop sites. You can be a shareholder in that company but I will be the sole director and secretary, because you'll just be a passive investor. I've done similar developments at Meadowbank and Kogarah, where the other shareholders is not actively involved. If you can accept that, we'll use the 'Combined Projects' name." Jamil said: "Ok, that's fine." I said: "Let me know what company you want as shareholder." Jamil said: "I've just changed accountants. I'll get back to you on that." I said: "Any profits will be based on what you contribute. If you want 50% of the profits, you'll need to contribute 50%. If you can't do that, let me know, because I'm not going to give you 50% of the profits in that case. You'll only get back in proportion to what you put in. We'll need about $20m total - $10 million each." Jamil said: "That's fine. I'll be right." 1. Mr Deiri's evidence is thus that he told Jamil, inter alia, that any profits would be based on what Jamil contributed. 2. On 28 January 2014, Jamil emailed Mr Deiri, forwarding an email from Mr Gramelis stating that the "legal name is SAYOUR HOLDINGS PTY LTD ATF SAYOUR 2 FAMILY TRUST") (and see also, for example, Mr Deiri's affidavit sworn on 16 October 2019 at [17]). 3. Mr Deiri nominated Deiri Nominees as his shareholding entity. Mr Deiri instructed his accountants to incorporate Combined Projects Arncliffe with Sayour Holdings as a 50% shareholder (see at [17]). 4. On the same day (being 29 January 2014), Mr Deiri sent an email to his accountant (it will be recalled, Ms Thornton), copied to Mr Vamvakaris, stating that: We have just negotiated another site, can you please set up Combined Projects (Arncliffe) Pty Ltd. The new entity will have two shareholders being 50% Deiri Nominees Pty Ltd and 50% SAYOUR HOLDINGS PTY LTD ATF SAYOUR 2 FAMILY TRUST. I will be the sole Director/Secretary 1. On 29 January 2014, Mr Deiri emailed Mr Dale (copied to Jamil) a draft "Heads of Agreement" for the sale of the Arncliffe Site, stating: Hi Rodney, Hope all is well, further to our meeting yesterday and reaching an agreement to purchase the above site, please see attached Heads of Agreement I have prepared. Can you please fill in your solicitors details, sign the heads of agreement and send back. I have spoken with our lawyer Brendan Maier, he is happy to prepare the contract of sale in conjunction with your lawyer to ensure contracts are exchanged quickly. Thank you once again and I look forward to a proper celebration once contracts are exchanged. 1. Mr Deiri has deposed that he told Jamil that there was no need for Sayour Holdings to be a party to this Heads of Agreement in respect of the purchase of the Arncliffe Site because Combined Projects Arncliffe (of which Sayour Holdings was a shareholder) was to be the purchaser of the Arncliffe Site and thus, "[t]here was no need for [Combined Project Arncliffe's shareholders] to be party to the agreement" (see at [23] of Mr Deiri's affidavit sworn on 16 October 2019). 2. Mr Deiri has further deposed that Jamil had told Mr Deiri, "that he [Jamil] wanted to do something for his family" (see at [32] of Mr Deiri's affidavit sworn on 16 October 2019) and that he (Mr Deiri) assumed that that was the reason Jamil wanted to be involved in the Arncliffe development. Mr Deiri says that he did not ask Jamil who owned Sayour Holdings and that he "was not concerned about the details of the company [Jamil] nominated, which was a matter for him [Jamil]" see at [32] of Mr Deiri's affidavit sworn on 16 October 2019). Mr Zafiropoulos' account of events 1. Meanwhile, on Mr Zafiropoulos' account of events (see his affidavit sworn on 9 October 2019 at [38]), in early 2014, Mr Fadi Ibrahim called him and said: Fouad and Jamil are currently in negotiations with the [v]endor on the purchase of the Arncliffe Site and Jamil told me to tell you he will keep you posted if they reach an agreement 1. Mr Zafiropoulos's evidence is (see his affidavit sworn on 9 October 2019 affidavit at [39]) that, also in early 2014, Jamil called him and said: Fouad and I have reached an agreement to purchase the Arncliffe Site for $18,100,000 and I will ensure you are involved as we have previously agreed. Just make sure you have your funds available when they are required to secure your position in the Development. Incorporation of Combined Projects Arncliffe in late January 2014 1. As adverted to (see at [73] above), on 29 January 2014, Combined Projects Arncliffe was incorporated with two equal shareholders, Sayour Holdings and Deiri Nominees, with Mr Deiri as sole director and company secretary. The company was set up by an incorporation agent. 2. It is necessary here to detail the sequence of events relating to the incorporation of Combined Projects Arncliffe (relevant particularly in the context of the Eighth Broadway Cross-claim and in the Arncliffe Proceedings). The sequence of those events was as follows. 3. An interim constitution was signed prior to registration of the company. Clause 4 of that interim constitution provided that: members may appoint any director to the office of managing director and confer all of the powers of the directors upon that person; and may authorise the managing director to exercise those powers alone and without conferring or meeting with the other directors of the company. 4. On 29 January 2014, an application to register Combined Projects Arncliffe was lodged with ASIC, and the company was registered (the interim constitution taking effect on registration under s 136(a) of the Corporations Act). Mr Maurice Howe and Ms Marea Howe were named as directors and Subscriber 1 Pty Ltd was named as the sole shareholder. 5. It appears that there was a meeting of members at which the sole member, Subscriber 1 Pty Ltd, resolved to appoint Ms Howe as managing director. A special resolution was then passed by Subscriber 1 Pty Ltd that Combined Projects Arncliffe adopt a new constitution. The new constitution was adopted and took effect pursuant to s 136(b) of the Corporations Act. 6. There was a meeting of directors at which Ms Howe, as managing director (exercising the powers of the directors), resolved that Mr Deiri be appointed as director and secretary, that shares be issued to Deiri Nominees and Sayour Holdings, that the share in Subscriber 1 Pty Ltd be redeemed and that the resignations of Ms Howe and Mr Howe as directors be accepted. For the Deiri Parties, it is said that the appointment of Mr Deiri was made under cl 8.2 of the adopted constitution, which provides for the directors to appoint a director and that Mr Deiri was thereby appointed sole director and company secretary of Combined Projects Arncliffe. Heads of Agreement re Arncliffe site 1. On or about 31 January 2014, Mr Deiri (on behalf of Combined Projects Arncliffe) and Mr Dale (on behalf of Brano) signed the Heads of Agreement (as to which, see at [433] above) for the purchase of the Arncliffe Site at a price of $18.1 million, with a 5% deposit payable on exchange and with settlement to occur on the earlier of 12 months from the date of the contract or 12 weeks after development approval. The Heads of Agreement noted that, "[p]ut and call option to be discussed". Change in authorisation details for CBA Partnership Account 1. On 7 February 2014 (by a letter misdated 7 February 2013), a request was made to CBA that the authorisation on the CBA Partnership Account be changed so as to permit only one signatory to sign (the Cheque Authorisation Alteration Instruction). Mr Deiri's evidence is that Jamil had complained of constantly "running around" obtaining Moustafa's signature. He says that he provided the letter to Jamil to obtain his father's signature and that Jamil returned the letter apparently signed by Moustafa. The letter was sent by Mr Deiri to Ms Schucroft via email (see, for example, Mr Deiri's affidavit sworn on 2 November 2016 at [48]). 2. Moustafa alleges that his signature on that letter was forged. The forensic examiner's opinion is that it is not a genuine Moustafa signature. Alleged loan from Jamil to Combined Projects Arncliffe 1. Mr Deiri says that, on 17 February 2014, Jamil lent the sum of $300,000 to Combined Projects Arncliffe (see Mr Deiri's affidavit sworn on 16 October 2019 at [54]). This is also evidenced by a NAB bank statement, evidencing a transaction on that date with the narrative "RTGS (LBA 002897) Jamil Sayour Australia". 2. Relevantly, there is an email between Jamil and Ms Luo (copied to Mr Deiri) on 17 February (see Ex 15 at p 549): Jennifer which branch did you open the NAB account for combined projects Arncliffe? I will deposit a cheque for 300,000 into it today and present my ID so they can have me as a signatory. Put and Call Option for purchase of Arncliffe Site 1. As to the put and call option to which reference has been made (see at [444] above), on 21 February 2014, $620,000 was deposited into the account. 2. On or about 24 February 2014, Combined Projects Arncliffe entered into a put and call option deed to purchase the Arncliffe Site. 3. The contract for sale provided that settlement would not occur until after approval for the proposed development by consent authorities. 4. The Sayour Parties note that, according to Mr Deiri's evidence, by around this time Mr Deiri was contemplating in his discussions with Jamil that the value of the Arncliffe Site, once rezoned and with a development approval for around 200 units, would be over $30 million. Arncliffe Development in March 2014 1. Mr Kyrikos of Momentum Project Group Pty Ltd (Momentum) met with Mr Deiri in March 2014 to discuss the Arncliffe Development (see Mr Kyrikos' affidavit affirmed on 8 October 2019 at [12]). 2. In March 2014, Combined Projects Arncliffe lodged a rezoning proposal for the Arncliffe Site (see, for example, Mr Deiri's affidavit sworn on 26 June 2017 at [24]). Final draw down for Broadway Development 1. On 18 March 2014, a letter was sent to CBA regarding an accommodation notice for the $34.3 million facility. The letter contains a "forged" signature of Moustafa. The letter authorised the final draw down of $420,000 to be paid into the CBA Partnership Account on 19 March 2014. Email in April 2014 and Moustafa's travel overseas 1. On 7 April 2014, Jamil sent an email to Mr Deiri, "[r]egarding monthly payments from centre" and stating, "we need to start collecting our profit [sic] I need some money at the moment" and suggested each take $40,000. 2. On 19 April 2014, Moustafa travelled overseas (returning 25 June 2014). Momentum Project Group Services Agreement in May 2014 1. On or about 6 May 2014, Momentum entered into a services agreement in respect of development and project management services for the Arncliffe Development (the Momentum Agreement). 2. The Momentum Agreement identified the "Client" as "Deicorp Constructions Pty Ltd/Combined Projects Arncliffe Pty Ltd". The document was signed by Mr Deiri in his capacity as "Director". The Momentum Agreement provided, inter alia, for Momentum to superintend the Construction Contract for the Arncliffe Development. 3. The Momentum Agreement was entered into under cover of a letter from Mr Kyrikos (director of Momentum) addressed to Mr Deiri, "Managing Director of Deicorp Constructions", in which letter Mr Kyrikos stated that he, "look[s] forward to the opportunity to further assisting Deicorp/Combined Projects Arncliffe with delivering successful and profitable projects". 4. Pursuant to cl 1.1 of the Momentum Agreement, Momentum agreed to perform the services agreed upon and to exercise all skill and care in a manner generally accepted as competent development/project management. Pursuant to cl 2.1, Momentum was to be given "instructions adequate to define your requirements and to perform the services agreed, including making decisions required by you throughout the course of the project". 5. A "fee structure" in relation to the provision of service by Momentum under the Momentum Agreement was set out in the contract, which provided that Momentum was to receive a fee of $300,000 upon achievement of a development approval for the Arncliffe Development, and a further $300,000 upon achievement of the "Interim Occupation Certificate". That fee structure provided that Momentum reserved the right for the total amount of $600,000 (exclusive of GST) to be offset against the purchase price of a completed apartment in the Arncliffe Development. 6. At that stage, the Arncliffe Construction Contract (see at [642] below) had not been signed. However, it is relevant to note that when it was signed (see below), cl 23 of the Arncliffe Construction Contract provided, inter alia, that the "Principal" shall ensure that at all times there is a "Superintendent" and that, in the exercise of the functions of the Superintendent under the contract, the Superintendent must act honestly and fairly, and arrive at a reasonable measure or value of work, quantities or time. Clause 23 also provided that if the Superintendent gives a direction pursuant to the contract, the "Contractor" shall comply with the direction and, except where the Contract otherwise provides, a direction may be given orally but the Superintendent shall as soon as practicable confirm it in writing. Incorporation of Combined Projects Holdings Pty Ltd 1. In May 2014, Combined Projects Holdings Pty Ltd (defined at [60] above as CP Holdings) was incorporated. Incorporation of JS75 Pty Ltd 1. It appears that, at around this time, Jamil caused JS75 Pty Ltd (JS75) to be incorporated, with himself as the sole director and shareholder of this company. 2. Pausing here, and for reasons that will become relevant in due course, the Deiri Parties pose, rhetorically, the question why, if Jamil had set up Sayour Holdings without Moustafa's knowledge or consent (again, as to which, see further below), he arranged to have Moustafa listed as shareholder or director, rather than simply listing himself as a director and shareholder as he did with JS75. Moustafa returns to Australia and Jamil's diagnosis 1. As noted at [457] above, on 25 June 2014, Moustafa returned to Australia. 2. In July 2014, Jamil was diagnosed with advanced lung cancer (see Moustafa's affidavit sworn on 27 October 2016 at [14]). It appears that Jamil took a period of leave (see, for example, the email from Mr Z Salah at Biomed of 31 July 2014, stating that Jamil was "away on leave until the end of August 2014" – see Ex 15 at p 572). Events in August 2014 1. On 21 August 2014, Mr Gramelis recorded a file note in which he made reference to a conversation with Jamil the previous evening about changing the structure of Sayour Holdings to appoint Jamil as a director and equal shareholder (see Ex 15 at p 615). Mr Gramelis recorded in this file note that he said he would only do this if Moustafa agreed. 2. On 21 August 2014 at 6.50 am, Mr Gramelis sent an email to Mr Salah (at Biomed), copied to Jamil, saying that the entity set up for the Arncliffe project was Sayour Holdings as trustee for the Sayour 2 Family Trust, the director and shareholding of which company was solely Moustafa who was also the trust's appointer but that Moustafa could distribute to himself and to Jamil. The email noted that Moulikyah was a, "deposit (tax minimisation) entity for trust distributions resulting from the profits earnt and for asset protection in the event of a liquidation" and that Moustafa was also the director (see Ex 15 at p 580). 3. On 21 August 2014 at 7.40am, Jamil emailed Mr Gramelis saying that his instructions were that he (Jamil) was still a director (of Sayour Holdings) and that his father was now a director (see Ex 15 at p 577). At 7.52 am, Mr Gramelis emailed Jamil, copied to Mr Salah and Mr Gramelis' assistant (Roni Kumar), asking his assistant to, "prepare and submit [sic] 484 form to ensure Jamil is Director and equal shareholder of Moulikyah and Sayour holdings [sic]" and to provide to Mr Salah the forms for Moustafa to sign (see Ex 15 at p 577). 4. On 21 August 2014 at 9.53 am, Mr Kumar emailed Mr Salah (of Biomed) attaching ASIC forms signed by Moustafa at the meeting, notifying the appointment of Jamil as director of Sayour Holdings and as transferee of 50% of its shares (see Ex 15 at p 596). The email also attached a print-out from ASIC's "Forms Manager" page for registered agents, showing that these two ASIC forms had been received that day and were "Processed – awaiting imaging". That page recorded both Moustafa and Jamil as directors and shareholders of Sayour Holdings from 21 August 2014 onwards. The page also indicated that Moustafa had been a director since 16 December 2013. 5. As adverted to above, Mr Gramelis prepared a file note dated 21 August 2014 of a meeting with Jamil and Moustafa at Biomed (see Ex 15 at p 615). I understand that it is not disputed that Jamil was overseas at this time, so Investments says his attendance at the meeting must have been by phone or Skype. The file note records a discussion of the ASIC Form 484 ("change to company details") and structure changes, and outstanding business activity statements (BAS) for Moulikyah (noting that it had no activity and it was agreed to lodge a nil return). The file note records that Mr Gramelis encouraged Jamil and Moustafa to ensure that they were both happy with the arrangements because the prior evening (again, as adverted to above) Jamil had contacted Mr Gramelis wishing to make changes to the structure and that Mr Gramelis said he would only do this if Moustafa agreed and had organised to meet both the next day (i.e., 21 August 2014). 6. On 5 September 2014, Moustafa signed account opening forms (see Ex 4 and Ex 5) with Westpac, signing in the names of Sayour Holdings and Moulikyah (those being Sayour Holdings' Westpac #332 Account and Moulikyah's Westpac #340 Account), both of which, it seems, were opened at the Lakemba branch. 7. As to the Westpac #340 Account, the Deiri Parties point to the following features of these forms: the registered address and mailing address for the company is listed as the address of Biomed's offices in Belmore; the account designator is "The Trustee for Sayour 2 Family Trust"; the form was signed by Moustafa, described as "Manager Director" (two lines below the organisation name, "Sayour Holdings Pty Ltd"); the account holder name was listed as "Sayour Holdings Pty Ltd", followed by the "Trading Name OR Account Designator" of "The Trustee for Sayour 2 Family Trust"; the form then provided the details of the two authorised persons "to operate and sign on behalf of the account holder" (those being Moustafa and Jamil, Moustafa's residential address there being listed and Jamil's residential address being listed as the Biomed offices in Belmore); and the final signing page contains Moustafa's signature, and records him describing both himself and Jamil as "Manager Director" of the account holder. 8. It is noted that Ex 4 includes signed forms and declarations by Moustafa in relation to the trust, in which he is repeatedly described as "Manager Director"; and also contains a materially similar set of forms in relation to the opening of a second account for Sayour Holdings, a cheque account numbered #332. Relevantly, again, each of Moustafa and Jamil is there described as "Manager Director" throughout. 9. The Deiri Parties note that a difference between the forms opening the Westpac #340 Account and the forms opening the Westpac #332 Account is that the latter included a "Business Debit MasterCard Application". It is noted that that form described the "Company Name" as "Sayour Holdings Pty Ltd", the "Contact Name" as "Jamil" and his "Job Title" as "Manager Director". Opening of the Westpac #316 Account 1. On 5 September 2014, the Westpac #316 Account was opened in the name of Moulikyah (see Ex 15 at p 896). Sale of residential units in the Broadway Development 1. In late September 2014, Moustafa and Mr Deiri met to discuss the possibility of selling the retail complex at Broadway Plaza. Moustafa's evidence is that, by November 2014, Moustafa believed that CBA had been fully repaid from the proceeds of the sale of residential units (see his affidavit sworn on 27 October 2016 at [60]). Moustafa signed a Power of Attorney to enable solicitors, Blackstone Waterhouse, to deal with settlement of the units. Final accommodation notice on 30 October 2014 1. By letter dated 30 October 2014 a final accommodation notice was issued on the CBA facility (for the sum of $1.076 million to be paid to Deicorp Constructions. The letter contains a "non-genuine" Moustafa signature. Payments on 13 November 2014 1. On 13 November 2014, Mr Deiri signed a cheque drawn on the CBA Partnership Account (cheque #507) made payable to "Sayour Family Trust" in the sum of $2.19 million. The cheque bore a "non-genuine" Moustafa signature. It was deposited into the Westpac #202 Account. 2. Investments says this is the first of seven partnership distributions (i.e., one of 7). 3. Also by that date, the Stage 2 Loan of $42,031,226 was repaid to CBA in discharge of the amount owing under the Second Facility Agreement (with a sum of approximately $5.78 million paid to the ATO by way of GST). Mr Deiri deposes that, after payment of expenses, $19.28 million was left for distribution (see Mr Deiri's affidavit sworn on 22 August 2019 at [211]-[212]). Following these payments, it is said that an amount of $34.3 million remained owing on the loan facilities, being the balance under the First Facility Agreement. Transfers out of Westpac #202 Account 1. On 17 November 2014, a series of transfers was made out of the Westpac #202 Account to Moustafa's accounts (see Ex 15 at p 734ff). Sales of residential units 1. On 14 November 2014, an exclusive agency agreement was signed between Combined Projects Arncliffe and Aust Sunshine Marketing Pty Ltd trading as Home789 (Home789) (the Home789 Agreement). It specified a commission of 4.4%. Partnership distributions 1. Mr Deiri's evidence is that, following repayment of the loan to CBA and payment of expenses and GST, there was $19.28 million available for distribution; and that, from mid-November 2014 to January 2015, Mr Deiri distributed this surplus to Investments and Plaza. Mr Deiri's evidence is that each payment was made in accordance with Jamil's instructions (see, for example, Mr Deiri's affidavit sworn on 22 August 2019 at [228]). 2. Moustafa accepts that he himself banked two of these cheques (one for $3.35 million and another for $1.65 million) (see, for example, Moustafa's affidavit sworn on 16 September 2019 at [143]ff). 3. On 19 November 2014, cheque #513 was drawn on the CBA Partnership Account for $1.75 million in favour of the "Sayour Family Trust", signed by Mr Deiri. 4. Again, Investments says that this is partnership distribution (i.e., two out of 7). 5. The cheque was deposited into the Westpac #202 Account and subsequently that amount was transferred to an account in the name of Moulikyah. 6. The same amount was withdrawn from Moulikyah and paid to Combined Projects Arncliffe. Mr Deiri's evidence is that Jamil gave him a cheque for this amount and said it was a contribution to the Arncliffe project, "towards my share of the Arncliffe Development" (see Mr Deiri's affidavit sworn on 16 October 2019 at [61]). Mr Deiri's evidence is that, after Jamil left, Mr Deiri instructed Ms Jennifer Luo to bank the cheque in Combined Projects Arncliffe's bank account (see Mr Deiri's affidavit sworn on 16 October 2019 at [62]). Combined Projects Arncliffe's bank account statement records that a cheque for $1.75 million was deposited on 21 November 2014. 7. On 20 November 2014, cheque #514 was drawn on the CBA Partnership Account, signed by Mr Deiri, in favour of CP Redfern for $1.75 million. The cheque was given to Mr Deiri. 8. Mr Deiri's evidence is that, on or around 24 November 2014, Jamil returned to the Deicorp offices and told Mr Deiri that he needed the money back; that Mr Deiri asked "the whole lot?", to which Jamil replied, "why don't you give me $1.56 million"; and that Mr Deiri drew a cheque made out to Jamil in the amount of $1.56 million (see Mr Deiri's affidavit sworn on 16 October 2019 at [64]-[66]). Combined Projects Arncliffe's bank account statement records a deduction of $1.56 million upon the deposit of a cheque on 24 November 2014. 9. On 24 November 2014, cheque # 517 was drawn on the CBA Partnership Account in favour of the Sayour Family Trust in the amount of $3.35 million. 10. Investments says this is a partnership distribution (i.e., three out of 7). 11. It appears that the cheque was deposited into the Westpac #238 Account by Moustafa on 25 November 2014 at the Lakemba branch. The cheque was signed only by Mr Deiri. According to Moustafa, he was told that this was for settlement from units (see Moustafa's affidavit sworn on 27 October 2016 at [88]-[93]). 12. On 25 November 2014, Westpac advised that the loan in the name of Moustafa and Fatima had been repaid and the security documents were available for collection (see Ex 15 at p 742). It appears that, on 27 November 2014, Moustafa attended the Westpac branch and collected the title documents acknowledging that he had collected them following the discharge of loans (see Ex 15 at p 743). Initial valuation of Arncliffe Site 1. Meanwhile, on 26 November 2014, LandMark White provided what appears to be the first valuation of the Arncliffe Site (at $31 million) (see Ex 19). $1.65 million cheque in November 2014 1. On 28 November 2014, Mr Deiri drew a cheque (cheque #522) on the CBA Partnership Account made out to "Sayour Family Trust" for $1.65 million. The cheque was signed only by Mr Deiri. It was deposited into the Westpac #238 Account by Moustafa on 1 December 2014. 2. Investments says this is a partnership distribution (i.e., four out of 7). 3. On 1 December 2014, according to Moustafa, Jamil gave Moustafa the $1.65 million cheque saying that it was more settlement funds and asking Moustafa to deposit it (see Moustafa's affidavit sworn on 27 October 2016 at [96]). As noted (see at [499] above), it was signed only by Mr Deiri. Moustafa banked the cheque at the Lakemba branch (see Moustafa's affidavit sworn on 27 October 2016 at [96]). 4. On 11 December 2014, according to Mr Deiri, Jamil asked Mr Deiri to make a distribution from the partnership of $100,000 by payment of a cheque to Combined Projects Arncliffe as a contribution, along with $300,000 to the Sayour Family Trust. On 11 December 2014, Mr Deiri drew a cheque (#527) on the CBA Partnership account in favour of Combined Projects Arncliffe for $100,000. On the same day, a cheque for $300,000 drawn from the CBA Partnership Account was deposited into Westpac #238 Account. 5. Investments says these are partnership distributions (i.e., five and six of 7) (see, for example, Mr Deiri's affidavit sworn on 16 October 2019 at [70]-[71]; and sworn on 22 August 2019 at [217]-[227]). Jamil's contribution to Arncliffe Development 1. Mr Deiri's evidence is that, in or around late December 2014, Jamil attended the Deicorp offices and handed Mr Deiri a cheque for $5 million (as Sayour Holdings' contribution to the Arncliffe Development); that Jamil told Mr Deiri that the cheque was for his loan contribution, and asked him to wait until the new year to bank the cheque (see at [74] of Mr Deiri's affidavit sworn on 16 October 2019). 2. Between 2 and 5 January 2015, a total of $4.45 million was transferred from the Westpac #238 Account to the Westpac #833 Account, and then transferred to (Moulikyah's) Westpac #316 Account (see Ex 15 at pp 785, 1436-9). The transfer from the Westpac #238 Account to the Westpac #833 Account was by five transfers of $100,000 on 2 January 2015 and thirty nine transfers of $100,000 plus one transfer of $50,000 on 5 January 2015. Each of these transfers appears as a debit in the relevant Westpac #238 Account statement. A record of the 2 January 2015 transfers shows the Westpac #833 Account as the receiving account. 3. In addition, sums of $13,000, $250,000, and $80,000 were deposited or transferred into the Westpac #316 Account on 5 January 2015 (bringing the total to $4,793,000), and further sums of $50,000, $20,000, $50,000 and $80,000 were deposited on 8 and 9 January 2015 (bringing the total to $4,993,000). 4. Therefore, the total transferred or deposited into the Westpac #316 Account in the period 2 to 9 January 2015 was $4,993,000, taking the account balance in that account to $5,020,074. The final payment to the account was entitled "Jamil loan Arncliffe". 5. On 5 January 2015, Mr Deiri drew a cheque (#530) for $250,000 on the CBA Partnership Account, made payable to Moulikyah). Investments says this is the last partnership distribution (i.e., seven out of 7). 6. The Deiri Parties say that Jamil's request for the cheque not to be banked until the new year is consistent with the evidence of the above bank transactions around that time, as it was not until 9 January 2015 that there was enough money in the Westpac #316 Account to clear the payment of a $5 million cheque. Indeed, according to Mr Deiri's evidence, the cheque was given to Ms Luo, to be banked in the new year. The Tripoli meeting on 8 January 2015 1. The Deiri Parties say that, on the morning of 8 January 2015, Mr Gramelis telephoned Ms Luo, demanding that Jamil be appointed a director of Combined Projects Arncliffe. Mr Gramelis emailed Ms Luo on 8 January 2015 at 11.30 am reiterating that request in the following terms: Dear Jennifer As per our telephone conversation today, Jamil has formally requested that he be a director on the Arncliffe Project. I understand that you need to speak with Fouad however, this will not change our clients position in anyway. Can you please send through a company extract and minutes to that effect once you have spoken to Fouad. 1. The Deiri Parties note that this email ultimatum is consistent with Mr Deiri's own account of the events of that morning. Mr Deiri has deposed (see Mr Deiri's affidavit sworn on 26 June 2017 at [27]; and sworn on 16 October 2019 at [77]) that, after Ms Luo received the phone call from Mr Gramelis, she called him, when he was in Tripoli (Lebanon) (as were Jamil and his family), and they had a conversation to the following effect: Jennifer said: "Fouad, I just got a call from Kon, Jamil's accountant." I said: "Jen, what has happened, why do you sound so upset?" Jennifer said: "Kon screamed at me and demanded that we put Jamil as a director of Combined Projects Arncliffe and otherwise give the $5 million cheque back." I said: "That is not what I agreed with Jamil. Don't bank that cheque. I will go and speak to Jamil today. He is here in Lebanon." 1. Mr Deiri's evidence is that, later that day, he met with Jamil in Lebanon. He says that Jamil told him that he wanted to be a director of Combined Projects Arncliffe, and that this was a condition of his contributing a $5 million loan to the company (see his affidavit sworn on 16 October 2019 at [78]ff). 2. It is noted that this account is consistent with what is recorded in Mr Gramelis' email of the same day. 3. Furthermore, Mr Deiri has deposed that he refused this demand and, instead, reiterated his and Jamil's original agreement (see Mr Deiri's affidavit sworn on 16 October 2019 at [78]ff). Mr Deiri's evidence is that this was a departure from the Arncliffe Agreement (under which Jamil was to be a "passive investor" only); and that he told Jamil that he could do the development without Jamil, if need be, and would give back his contributions. Mr Deiri gives evidence that Jamil agreed that Mr Deiri would remain as the sole director (as, again, Mr Deiri says they had originally agreed). Mr Deiri says he said that he would instruct Ms Luo to tear up the cheque and that Ms Luo then did so deposed (see, for example, Mr Deiri's affidavit sworn on 16 October 2019 at [78]ff). 4. Thus, it is said by the Deiri Parties that Jamil never contributed any more than $670,000 in loans to Combined Projects Arncliffe; and Mr Deiri maintains that those loans have all been repaid. 5. More specifically, Mr Deiri's evidence is that, at the meeting with Jamil in Tripoli, he said (see, for example, Mr Deiri's affidavit sworn on 26 June 2017 at [28]): When I get back to Sydney, I am going to document this shareholders meeting and prepare minutes so that our arrangement is absolutely clear… 1. Mr Deiri's evidence is that, on his return to Australia, he documented the meeting with Jamil in a minute (the Tripoli Minute), stated to be a minute of the meeting of the shareholders of Combined Projects Arncliffe held on 8 January 2015, at which Mr Deiri and Jamil were present (as to which there was much debate – see further below) (see Mr Deiri's affidavit sworn on 16 October 2019 at [78]-[82]). 2. In cross-examination, Mr Deiri confirmed that his evidence is that he prepared the Tripoli Minute on his return to Sydney (see T 968.10). He could not recall if he had typed it up himself (and said that he may have got his assistant at that time to sit down with him) (see T 968.16-17). Mr Deiri said that he used some notes that he had prepared that night when he got back to the hotel and which he had brought back to Australia with him, but that he had not kept those notes (see T 968.21-27). The Tripoli Minute bears a hard copy signature. 3. The Sayour Parties challenge the contemporaneity of this document, and allege it was created later in time. However, the Deiri Parties point out that the Tripoli Minute cannot have been created any later than 1 May 2017 because a copy of it was provided to Sayour Holdings' solicitors on that date. The Tripoli Minute (drafted, self-evidently, in the third person) is as follows: • Fouad and Jamil met to discuss the project located at 108 Princes Highway, Arncliffe which is known as Endeavour Apartments. • Fouad insisted that Jamil and Sayour Holdings had added no value to the project or to the partnership. Fouad, Deiri Nominees and Deicorp had done everything to date including running approvals, arranging finance, pre-sales and construction. • Jamil had given Jennifer [Luo], before he left Australia, a cheque for $5 million with specific instructions that it wasn't to be banked until the new year. • Jamil's accountant contacted Jennifer earlier that day and asked that the cheque for $5 million from Sayour Holdings not to be banked until an agreement was reached for Jamil to be appointed as director. • Fouad had insisted that Jamil will not be appointed as a director and that the cheque of $5 million from Sayour Holdings would not be banked by Combined Projects (Arncliffe). Fouad advised Jamil he would contact Jennifer not to bank the $5 million cheque from Sayour Holdings. • Fouad had stated that Jamil and Sayour Holdings will be treated purely as a passive investor and that Combined Project Arncliffe will pay a profit share portion to Sayour Holdings only against the $670,000 account put in by Jamil and his associated entities. • Fouad had insisted that he did not need Jamil or Sayour Holdings as a partner on this project and was only doing this transaction to help Jamil. Fouad insisted that Jamil or Sayour Holdings has added no value to the project or to Deicorp and repeated that Fouad, Deicorp and Deiri Nominees have carried out everything involved with the project, including finance, marketing, design and construction and the like. Fouad will also be providing his personal guarantee and company guarantees to secure the construction loan. Jamil or Sayour Holdings will not have to provide any guarantee. • Fouad also said he would have a directors meeting to reflect that Jamil and associated entities have only contributed $670,000 and that Jamil and/or Sayour Holdings will be paid a profit share based on their contribution. The share would be based on the total contribution provided by the shareholders and their respective associated entities – for example, if the total contribution provided by the shareholders and their respective associated entities is $15 million then Savour Holdings profit after company tax will be calculated as $670,000/$15 million = 4.5%. • All [moneys] required for the project and all resources necessary to run the project would be arranged or provided by Fouad, Deicorp and Deiri Nominees. • Fouad also reiterated that Sayour Holdings had put no money into Combined Projects (Arncliffe) and the $670,000 had come from Jamil himself. 1. The Sayour Parties in their submissions point to a number of features of this document that they maintain are "oddities" (see at [3666]ff below). Payment of cheques to Moustafa 1. Mr Deiri has given evidence that, in early January 2015, he received a telephone call from Moustafa in which Moustafa asked whether he had given Jamil the cheques and Mr Deiri says that he said, "[y]es he came to pick them all up. We wrote them out in accordance with his instructions. There was about $9 million in total and I told Jamil that we need to leave about $6 million in the account to pay the GST" (see Mr Deiri's affidavit sworn on 22 August 2019 at [228]). 2. On 2 February 2015, Moustafa departed Australia on another overseas trip (returning on 16 April 2015). 3. On 9 February 2015, two bank cheques (one for $3 million and one for $2 million) payable to Jamil were purchased from the Lakemba branch of Westpac. The other Arncliffe sites and payments in relation to those sites 1. The Sayour Parties note that, in cross-examination, Mr Deiri gave evidence (the Sayour Parties say that this was volunteered by him) that he was aware, as early as November 2014, that Jamil was going to use the profits generated by the Broadway Development to invest in the project at Arncliffe. In particular, reference is made to the following exchange (at T 892.30-50): Q. Did you have any ideas how he was going to get that money? A. The only thing he said, the only thing that he indicated to me was, you know, when, when the project at Punchbowl was finishing he was going to recycle money out of that. Q. That was always your view thereafter wasn't it, that the money was going to come from Punchbowl? A. Well that's what he told me. That he'd recycle money out of Punchbowl. Q. Well did you think to mention that to Moustafa? A. No, I didn't. Q. Why not? A. Because I always assumed that Jamil was in complete control of Punchbowl and he always told me, as he told everyone, it was his project that he ran. Q. But he's basically telling you that he's going to take Moustafa's money to use in his own company for his own venture with you in Arncliffe? A. Well I didn't see it as Moustafa's money because I don't know, nor would I be across, what money belonged to who in the family. 1. The Sayour Parties say that Jamil's "recycling" of funds was not limited to his "rebuffed attempt" to contribute $5 million to Combined Projects Arncliffe. It is said that he was also involved with Mr Deiri in the early stages of development in other Arncliffe sites (including two sites which were immediately adjacent to the Arncliffe Development). The Sayour Parties refer to the following answer in cross-examination as to the events after the 8 January 2015 meeting and Mr Deiri's evidence that Jamil brought other sites to him (see T 962.37-49): A. When he came back he wanted to - he never spoke to me about Arncliffe itself but he wanted to stay involved in doing - getting involved in the properties, property market, but more or less just doing some options, optioning up some sites and the intention I was recalled, you know, if we'd option up some sites and maybe get some approvals, because I was never going to build with him again, but the intention was to potentially option up some sites, get some approvals and offload them and pick up a quick buck or two. 1. It is submitted that the evidence by Mr Deiri that he and Jamil were to "option up some sites" and "offload them and pick up a quick buck or two" under stated the extent of both Jamil's financial commitment and Mr Deiri's long-term involvement. In this regard, reference is also made to Ex P (which contains a series of emails, agreements, cheque vouchers, bank statements, reports, maps, caveats, transfers title searches and cadastral maps in respect of other sites at Princes Highway in Arncliffe). It is noted that Mr Deiri conceded that he, through a series of similarly named companies, had obtained options to purchase those other sites and that the option fees were paid by Jamil. It is said that, subsequent to Jamil's death, the options were either transferred to other companies controlled by Mr Deiri or the land sold by the owners to one of Mr Deiri's companies. 2. The Sayour Parties submit that (relying on Mr Deiri's evidence, Ex P and Ex 18) the following amounts were paid. 3. First, with respect to the property at 132-138 and 140 Princes Highway, it is said that Jamil paid a total of $1.2 million in two amounts ($560,000 and $640,000) in April 2015. 4. It appears that copy of the first of those cheques was sent in an email by Mr Deiri. Furthermore, a Heads of Agreement was signed by Mr Deiri and Jamil (both signatures purportedly being witnessed by Ms Dahdal) and an option was granted in favour of Combined Projects (Arncliffe) No 2 Pty Ltd (Combined Projects Arncliffe No 2, a company whose shareholders were CP Holdings and JS75). It is said that Ex 18 shows that, in about April 2018, another of Mr Deiri's companies, Combined Projects (Wickham St) Pty Ltd (which had been incorporated shortly after Jamil's death), purchased the site and the property was transferred to it on 24 April 2018. It is said that the source of the funds used to pay for this option were the funds Jamil had "taken" from Plaza through a series of transfers from multiple bank accounts, eventually being deposited into his Bank of Sydney #590 Account (the Bank of Sydney #590 Account). 5. The Sayour Parties say that Mr Deiri attempted to explain the transactions by tendering a cheque for $640,000; and appeared to suggest, in re-examination, that Ms Catharine Sayour (Elliot) or "Jamil's Estate" had been reimbursed for this amount. The Sayour Parties say that there is no proof of this. It is said that the all-moneys mortgage granted by Ms Sayour (Elliot) to Mr Deiri in May 2017 (as to which, see at [665] below) contradicts that evidence. The Sayour Parties note that, when asked about the mortgage, Mr Deiri responded that he had loaned Ms Sayour (Elliot) nearly $800,000 but, despite being re-examined at length and in detail, his evidence to explain where Jamil's payments finally ended up was expressed at its highest in the following terms (see T 1119.22-27): Q. Just in the context of that file letter, can you explain to her Honour why the remainder of the $1.2 million was not reimbursed? A. I am - I wasn't aware of the 580-odd thousand, but as I've previously stated, you know, in, in the washup of everything, you know, I have - for me it's estate money and I have given Catherine in excess of 7, $800,000 and I, I, I would sort of flush it all through later. 1. Second, with respect to the property at 172-182 Princes Highway, it is said that, in April 2015, Jamil paid a total of over $1.692 million in two amounts ($200,000 and $1,492,670); and that an option was granted in favour of Combined Projects (Arncliffe) No 3 Pty Ltd (Combined Projects Arncliffe No 3, a company whose shareholders were Combined Projects Holdings and JS75). As above, it is said that the source of the funds used to pay for this option were the funds Jamil had "taken" from Plaza, again through a series of transfers from multiple bank accounts, eventually being deposited into his Bank of Sydney #590 Account. It is said that Ex 18 shows that the option granted to Combined Projects Arncliffe No 3 was rescinded and a new option granted. The deed of revocation states at cl 3(b) that "the Option Fee paid under the Option will be applied to and treated as if it was the Option fee paid under the New Option". Hence, the Sayour Parties say that the option fee paid under the original April 2015 agreement was to be transferred and stand as the option fee under the newly-granted option in favour of another of Mr Deiri's companies, Combined Projects (Arncliffe) No 3 Pty Ltd (Combined Projects Arncliffe No 3). 2. It is also noted that Ex 18 also includes a cheque payable in December 2016, of Combined Projects Arncliffe No 1. The Sayour Parties say that no explanation as to the source of those funds has been provided ("merely a heavily redacted bank statement" and Mr Deiri's "rather circumspect explanation" that there was only ever a single amount of $1,692,670 paid and no amount of that money was "recycled" or "flushed" or otherwise paid to Jamil or Ms Sayour (Elliot)). 3. Third, with respect to the property at 70-6 Princes Highway, it is said that Jamil paid $280,000 in about July or August 2015. The Sayour Parties say that it appears that a contract for sale was entered into between Combined Projects (Arncliffe) No 4 Pty Ltd (Combined Projects Arncliffe No 4, a company whose shareholders were Deicorp Projects (Arncliffe) No 4 Pty Ltd and JS75) and the owner of the land, Ms Ng. A caveat was lodged on the title. As above, the Sayour Parties say that the source of the funds used to pay for this deposit were the funds Jamil had "taken" from Plaza, again through a series of transfers from multiple bank accounts, eventually being deposited into his Bank of Sydney #590 Account. 4. The Sayour Parties note that, in November 2015, just weeks after Jamil's death and before Mr Deiri proffered the draft deeds to Moustafa and Ms Catharine Sayour (Elliot), the caveat secured by the option was withdrawn and a new caveat registered against the title in favour by another Deiri company, Combined Projects (Princes Hwy) Pty Ltd (Combined Projects Princes Hwy). 5. Relevantly, Ex 18 shows that the contract for sale entered into by Combined Projects Arncliffe No 4 was rescinded on condition that a new contract for sale be entered into with Combined Projects Princes Hwy). In similar terms to the deed of rescission with respect to the property at 172-182 Princes Highway, the deed of rescission states at cl 3(b) that, "the deposit paid under the Contract will be applied as the deposit under the New Contract", hence the deposit paid under the original August 2015 agreement was to be transferred and stand as the deposit under the newly-granted contract in favour of Combined Projects Princes Hwy. 6. In re-examination, Mr Deiri asserted that he had paid $280,000 to Ms Sayour (Elliot) and that this was a reimbursement to the estate of the option fee paid by Jamil (see, for example, at T 1116). The Sayour Parties say that there is no evidence to support this assertion. It is submitted that the all-moneys mortgage granted to Mr Deiri over Ms Sayour (Elliot)'s property (see at [665] below) tends to suggest that there was no such reimbursement. 7. The Sayour Parties say that the significance of the above to the pleaded cases is as follows: first, that Mr Deiri knew of Jamil's intention to use profits from the Broadway Development to invest in sites, including the Arncliffe Site, with Mr Deiri; second, that Mr Deiri did not tell Moustafa and, on his evidence, considered that the money was family money or sourced from within the Sayour family (cf his assertion that the investment by Jamil in the sites at Arncliffe, including the Arncliffe Site, was in favour of Jamil alone); third, that the destination of the balance of the remainder of the moneys taken by Jamil is established (namely, that it went into the other Arncliffe sites and has not been returned to Plaza; fourth, that the proposition that Mr Deiri "shut [Jamil] out" of Arncliffe "because of petulance or that he had had enough of him" is inconsistent with their continued and close involvement together in respect of adjacent sites. I interpose to note that Mr Deiri cavils with this suggestion that there was much ongoing involvement – talking simply about "optioning" up sites. ANZ Facility Agreement for the Arncliffe Development 1. Meanwhile, on 20 February 2015, an Australia and New Zealand Banking Group (ANZ) facility with Combined Projects Arncliffe to fund the Arncliffe Development was executed (for $98 million, representing 80% of the development costs). Mr Deiri provided guarantees from Deiri Nominees and personally as part of the security (see Mr Deiri's affidavit sworn on 16 October 2019 at [34]-[38]). Relevantly, I interpose to note also that Mr Deiri's evidence is that Jamil and Sayour Holdings played no part in obtaining the funding and put up no security (see Mr Deiri's affidavit sworn on 16 October 2019 at [39]). 2. The remaining 20% of development cost was funded by loans from Combined Projects Arncliffe's shareholders. The Deiri Parties say that, ultimately, Deiri Nominees contributed approximately $21.7 million in shareholder loans to Combined Projects Arncliffe and Jamil contributed $670,000 in shareholder loans. Thus, as a percentage of total shareholder loan contributions, the Deiri Parties say that Deiri Nominees contributed 97% and Jamil contributed 3%. 3. ANZ later commissioned a valuation report for the Arncliffe Site from LandMark White (Mr Wiltshire). The report valued the Arncliffe Site at approximately $32.58 million subject to development consent being approved. ANZ also appointed a quantity surveyor to the project, Mr Hammond of Napier & Blakeley, to approve payment claims from Deicorp Constructions (the builder for the payment). An external superintendent, Mr Alex Kyrikos of Momentum, was appointed for the purposes of the Arncliffe Construction Contract (as to which, see at [458]-[460] below). Arncliffe Loan Agreement 1. On 24 February 2015, a document (the "Arncliffe Loan Agreement") headed "Arncliffe Loan Agreement" between Deiri Nominees as lender and Combined Projects Arncliffe as borrower was signed by Mr Deiri (for both entities) (and see Mr Deiri's affidavit sworn on 16 October 2019 at [43]). Completion of Arncliffe Site purchase 1. The completion of the Arncliffe Site purchase took place on 24 February 2015 at a purchase price of $18.1 million. I understand that Mr Deiri says that interest started accruing at that time on Deiri Nominee's loan to Combined Projects Arncliffe. I interpose to note that the Sayour Parties dispute this. 2. More particularly, as to the allegation that, on the same date as the settlement of the purchase (being 24 February 2015) of the Arncliffe Site from Brano, there was a loan agreement entered into between Combined Projects Arncliffe and Deiri Nominees providing for compound interest to accrue at 15% on all further advances from Deiri Nominees to Combined Projects Arncliffe, the Sayour Parties say that there is no evidence of any such agreement or acknowledgment by Jamil (or anyone representing the Sayour interests) that Deiri Nominees would be entitled to 15% compound interest on moneys advanced to Combined Projects Arncliffe in addition to Deiri Nominees earning an enhanced profit share on all such moneys, or that Sayour Holdings would not receive any interest on the funds it had advanced to Combined Projects Arncliffe. Registration of other entities 1. On 10 March 2015, Combined Projects Arncliffe No 2 was incorporated and registered. 2. On 11 March 2015, a "Heads of Agreement & Sales Proposal" for the Arncliffe Site was signed by Mr Deiri and Jamil (relating to Combined Projects Arncliffe No 3) (see Ex P). Then, on 23 March 2015, Combined Projects Arncliffe No 3 was incorporated and registered. Mr Zafiropoulos' account of conversations re Arncliffe project 1. In late March or early April 2015, according to Mr Zafiropoulos, Mr Fadi Ibrahim called Mr Zafiropoulos to invite him to Jamil's 40th birthday party and said, "[Jamil] mentioned to me [Mr Fadi Ibrahim] that the money for the Arncliffe Development required from you will be needed soon. You should think about getting your money ready as soon as possible" (see Mr Zafiropoulos' affidavit sworn on 9 October 2019 at [40]). 2. Mr Zafiropoulos says that he subsequently attended Jamil's 40th birthday party in or around April 2015 and Jamil introduced Mr Deiri as "my business partner" (see Mr Zafiropoulos' affidavit sworn on 9 October 2019 at [43]-[45]). He says that Jamil said that, "you should get your money ready within the next few weeks". 3. On or around 10 April 2015, according to Mr Zafiropoulos, he received approval in principle for a loan in the sum of $1.2 million from CEG Direct Securities to Zapphire (see Mr Zafiropoulos' affidavit sworn on 9 October 2019 at [2]). Mr Gramelis' April 2015 file note 1. On 13 April 2015, Mr Gramelis prepared a file note recording having met Jamil and "Moe" at the Broadway Site, having discussed further (via telephone conversation with Jamil) the Moulikyah and Sayour 2 Family Trust activity, and noting that there had been no activity and the nil returns had been agreed to be lodged (see Ex 15 at p 863). Moustafa returns to Australia in April 2015 1. As noted above, on 16 April 2015, Moustafa returned to Australia. Construction contract for Arncliffe Development (Arncliffe Construction Contract) 1. On 27 April 2015, Combined Projects Arncliffe entered into a construction contract with Deicorp Constructions in respect of the Arncliffe Development. (the Arncliffe Construction Contract) (see Mr Deiri's affidavit sworn on 16 October 2019 at [84]). 2. According to Mr Zafiropoulos, in May 2015, Jamil called him and said that, "[t]he Arncliffe project is proceeding. I need the agreed investment amount of [$1 million] fast. I will prepare the paperwork for it" (see Mr Zafiropoulos' affidavit sworn on 9 October 2019 at [46]). 3. Mr Zafiropoulos' evidence is that he transferred moneys to Jamil by electronic funds transfer over the period 31 May 2015 to 8 June 2015 (see Mr Zafiropoulos' affidavit sworn on 9 October 2019 at [48]). Mr Zafiropoulos says that, on 15 June 2015, he paid Jamil the sum of $169,500 in cash (see Mr Zafiropoulos' affidavit sworn on 9 October 2019 at [49]). I here note that there was also evidence from a concrete contractor that he observed a bag of cash being given to Jamil, though he could not verify the amount. 4. Mr Zafiropoulos says that Jamil told him that he did not have the written agreement for the Arncliffe deal but he would prepare it (see Mr Zafiropoulos' affidavit sworn on 9 October 2019 at [49]-[52]). 5. By letter dated 16 June 2015, CEG Direct Securities confirmed loan approval. 6. Mr Zafiropoulos also gives evidence that he called Jamil in late June 2015 telling him that, "[a]s previously requested the agreement needs to be in writing. Have you prepared it or should I prepare it". He says that Jamil later called him and told him that he had prepared "the written agreement" (see Mr Zafiropoulos' affidavit sworn on 9 October 2019 at [54]-[63]). 7. Mr Zafiropoulos' evidence is that he attended Biomed's offices in late June and that Jamil gave him a one page written agreement. Mr Zafiropoulos says that this agreement stated that Mr Zafiropoulos had identified and introduced the Arncliffe site, that Mr Zafiropoulos or his nominee company "would invest" $1 million in the development of Arncliffe and that, in return, Mr Zafiropoulos or his nominee company would receive 50% of the uplift value to be paid from the proceeds at completion. Mr Zafiropoulos says that he insisted that the name of Combined Projects Arncliffe be added to the document and that this was written on the document and he and Jamil initialled it. He says that he took the signed agreement and placed it in his gun safe (see Mr Zafiropoulos' affidavit sworn on 9 October 2019 at [54]-[63]). Mr Zafiropoulos' evidence is that he no longer has a copy of the document (following a robbery at his home). 8. I interpose to note that no written or electronic copy of any such document has been produced, but for Konstructions it is said that not all of Jamil's computer records were accessible after his death (and Zapphire points to Mr Zafiropoulos' evidence of a robbery at his home in which he says his copy of the agreement was stolen as adverted to at [557] above). Development application for the Arncliffe project 1. On or around 13 July 2015, Combined Projects Arncliffe submitted a development approval application for the Arncliffe Site to Rockdale City Council (see Mr Deiri's affidavit sworn on 16 October 2019 at [87]). Development approval was granted in November 2015, in relation to the Arncliffe Development. Mr Deiri says that Jamil had "no meaningful involvement" with the approval process (see Mr Deiri's affidavit sworn on 16 October 2019 at [89]). Mr Zafiropoulos and Jamil have dinner 1. Mr Zafiropoulos' evidence is that, in July 2015, he and Jamil had dinner and Jamil told him that, once Arncliffe was complete and "you get paid your fee", they could redevelop some other sites (see Mr Zafiropoulos' affidavit sworn on 9 October 2019 at [64]). I interpolate to observe that such a conversation seems somewhat implausible (i.e. about the redevelopment of other sites) moot since, by this time (see at [468] above), Jamil had been diagnosed with stage four lung cancer. Valuation of Arncliffe Site and Mr Zafiropoulos 1. On 28 August 2015, a valuer, Mr Peter Wiltshire was engaged by ANZ to do an "as is" and "as if complete" valuation of the Arncliffe Site and the Arncliffe project (and see at [564] below). 2. Mr Zafiropoulos' evidence is that, in August or September 2015, he contacted Mr Fadi Ibrahim and asked him. "[h]as Jamil got the bank valuation? I need a copy for my records as our deal relies on it" and that Mr Ibrahim said he was not sure but would ask (see Mr Zafiropoulos' affidavit sworn on 9 October 2019 at [65]). (I note that no evidence was adduced from Mr Fadi Ibrahim as to this or any of the other conversations to which Mr Zafiropoulos deposes that included him or were allegedly in his presence.) Jamil's admissions to hospital in September 2015 1. In late August or September 2015, Jamil was admitted to Royal North Shore Hospital (see, for example, Moustafa's affidavit sworn on 8 November 2019 at [49]). Later, in mid-September 2015, Jamil was admitted to St Vincent's Hospital (see, for example, Moustafa's affidavit sworn on 8 November 2019 at [49] and [53]-[54]). Final valuation report for Arncliffe Site 1. The final valuation report issued for the Arncliffe Site was dated 28 September 2015. That, however, was the date of Mr Wiltshire's inspection of the Arncliffe Site. His evidence is that the valuation report dated 28 September 2015 was issued to ANZ on about 5 October 2015. Jamil's illness and the "deathbed" conversation 1. By the end of September 2015, it appears that Jamil was gravely ill and was to leave Australia for Europe for medical treatment. 2. On 29 September 2015, a doctor in Tasmania (Dr Reinheard Hemm) came to Sydney (staying at the Meriton Serviced Apartments in Waterloo from 29 September though to 3 October 2015) for the purpose of providing treatment to Jamil. 3. On 30 September 2015, Jamil discharged himself from St Vincent's Hospital. On his way home from the hospital, he visited the Meriton Serviced Apartments to receive treatment from Dr Hemm (see Dr Hemm's notes – Ex 8; and see Moustafa's cross-examination at, for example, T 486.8 – T 487.10; T 622.33-36; T 664.39-665.24). 4. Mr Deiri's evidence is that, while in hospital, he visited Jamil daily (see Mr Deiri's affidavit sworn on 16 October 2019 at [92]-[93]). Crucially, Mr Deiri also gives evidence that he visited Jamil at the Meriton Serviced Apartments on the day that Jamil left for Germany. Mr Deiri's account of the conversation on that occasion is that Jamil told Mr Deiri that the Arncliffe Site had been introduced to him through a couple of people, and that Jamil had agreed to pay them a site identification fee (referred to above as the Site Identification Fee(s) – see at [81] above) in the amount of the difference between the valuation of the site and the purchase price, being about $14.4 million. Mr Deiri says, in effect, that Jamil begged him to ensure that Combined Projects Arncliffe paid the Site Identification Fee(s) (see at [94]ff of his affidavit sworn on 16 October 2019). 5. Mr Deiri's mobile telephone records from that month (see Ex 9, and again see, for example, Mr Deiri's affidavit sworn on 16 October 2019 at [93]ff) show four very short calls between Mr Deiri and Jamil in the morning of the alleged meeting. Mr Deiri says that these were calls asking what apartment number Jamil was in and letting Jamil know he was on his way. The Deiri Parties submit that this itself is corroborative of Mr Deiri's evidence, as the most logical explanation for there being a flurry of four separate phone calls in such short succession is that the parties to those calls were about to meet and were liaising about logistics, so to speak. 6. Additionally, the Deiri Parties say that the progression of locations from which these calls were originating (Kings Cross, Waterloo and Moore Park) shows: first, that Mr Deiri was "on the move"; and second, that by 8.44 am, he was exactly in the area where the meeting is said to have taken place (noting that Moore Park is adjacent to Waterloo and Zetland across the Eastern Distributor). The Deiri Parties note that, from 8.44 am onwards (which Mr Deiri says is the final call before the meeting with Jamil), there was a period of about half an hour without any telephone calls at all. It is said that this is consistent with Mr Deiri being in a meeting with Jamil at this time. 7. At 10.01 am, there is a final call between Mr Deiri and Jamil which lasted for one minute and 23 seconds. Mr Deiri says that, in this call, he (Mr Deiri) vented his frustration about Jamil's imprudent actions, but confirmed he would keep to their "deal". There then seems to have been no further telephone calls between Mr Deiri and Jamil for the rest of the day. 8. It is noted by the Deiri Parties that these telephone records were not obtained until 20 November 2019 (that is, after Mr Deiri swore his 16 October 2019 affidavit setting out the terms of the conversation). It is said that there is no possibility, therefore, that Mr Deiri tailored his evidence by reference to those records and that those records further corroborate Mr Deiri's recollection of the events of that morning. 9. The Deiri Parties say that the fact that Jamil was at the Meriton Serviced Apartments on 30 September 2015 is consistent with Dr Hemm's notes of the treatments that he gave Jamil while he was in Sydney. The notes relevantly show that Dr Hemm administered treatments to Jamil first on 29 September 2015 and then on 30 September 2015. 10. The Deiri Parties say that it is clear from the notes that Dr Hemm administered the very same treatments and/or medications on each of 29 and 30 September 2015, namely: "IUC 30, illy [?], Zinc x 2 – B DOSE, Glut +B12 → 360". It is noted that the reference to this treatment on 30 September 2015 starts with the word "repeat", suggesting that it was a repeat of the previous day's treatment (which the identical description of the treatment already suggests). The treatment was described by Yesmine as "vitamin infusion therapy". It is noted that it also appears that Dr Hemm took Jamil's blood pressure, obtaining readings of 132/82 and 118/78. 11. The Deiri Parties say that it follows that this appointment of 30 September 2015 occurred face-to-face (rather than, for example, by teleconference) and that there can therefore be no question that Jamil attended upon Dr Hemm on 30 September 2015 for a medical appointment. 12. Next, it is noted that the Meriton reservation confirmation records show that Dr Hemm was originally booked to stay at the Meriton Serviced Apartments at 30 Danks Street, Waterloo from 29 September 2015 to 3 October 2015 but that he ultimately stayed from 8.24 pm on 29 September 2015 to 9.20 am on 1 October 2015. 13. It is noted that there are two links between the Meriton records and Dr Hemm's own notes from this period. Relevantly, Dr Hemm's notes contain these notations: M. Hotel 990 My card! → add. 1. It is said that the notes in Dr Hemm's diary were a record of his disbursements, presumably as a reminder for him to "add" these to his invoice to the Sayours ($990 for the two days' accommodation, and $20 for the swipe card that he evidently lost). It is submitted that this further confirms that Dr Hemm was staying at the Meriton Serviced Apartments and that these notes relate to that period of time. 2. The Deiri Parties say that there is also corroboration in Moustafa's evidence that Jamil went to the Meriton Serviced Apartments at Waterloo on his discharge from hospital, referring to the fact that Moustafa (asked about Jamil's self-discharge on 30 September 2015 and about his affidavit evidence that Jamil then went straight home) confirmed that Jamil did go to see Dr Hemm at the Meriton Serviced Apartments in Waterloo to receive injections. 3. It is noted that, in re-examination, the Sayour Parties suggested that this line of questioning was ambiguous as to dates, and that Moustafa's confirmation that Jamil went to receive treatment from Dr Hemm at the Meriton Serviced Apartments in Waterloo was not necessarily a confirmation that this occurred on 30 September 2015 (as opposed to 29 September 2015). However, I note that, in clarification by me, Moustafa confirmed that his answers were about 30 September 2015 (see at T 664 – T 665). The Deiri Parties contend that Moustafa expressly confirmed in cross-examination what was already suggested by Dr Hemm's records: that there was a visit by Jamil to Dr Hemm at the Meriton Serviced Apartments in Waterloo on 30 September 2015. They say that this further corroborates Mr Deiri's account of the events of that morning. 4. Insofar as Yesmine and her husband (Mr Assad), in their respective affidavits, each give evidence of Jamil's movements and whereabouts in the final days of September 2015 (said by the Deiri Parties to be with the evident purpose of contradicting Mr Deiri's evidence that he met with Jamil on 30 September 2015, since each refers to the relevant paragraphs of Mr Deiri's affidavit sworn on 16 October 2019), the Deiri Parties say that neither affidavit is focussed on the correct day. 5. More particularly, the Deiri Parties note that Yesmine gives an account of Jamil's visit to Dr Hemm at the Meriton Serviced Apartments on 29 September 2015; that she recounts that the Meriton Serviced Apartments was the location chosen for the treatments because St Vincent's Hospital would not allow Dr Hemm to provide the vitamin infusion therapy to Jamil at the hospital; that Yesmine took Jamil to see Dr Hemm at the serviced apartments, along with her husband, and her sisters' husbands; that the treatment did not take too long; and that, after it was done, Jamil returned to St Vincent's Hospital. Mr Assad corroborates this evidence, recording that he was one of the parties who took Jamil to the Meriton Serviced Apartments at Waterloo on 29 September 2015. He records that the visit took no more than two hours. Mr Assad's affidavit adds that, during this 29 September 2015 visit to Dr Hemm, Jamil did not have any visitors. 6. The Deiri Parties emphasise that Mr Deiri has never claimed that he visited Jamil on 29 September 2015: his evidence is that he visited Jamil on 30 September 2015. 7. As to the 30 September 2015 date, the Deiri Parties note that Mr Assad says nothing about what occurred on 30 September 2015. They accept that it may well be that Mr Assad was not with Jamil on that date. However, they contend that Yesmine's affidavit is misleading in this regard, noting that (at [71]-[74] of her affidavit sworn on 8 November 2019) Yesmine deposes as follows: 71. Jamil was discharged from St Vincent's Hospital on the morning of 30 September 2015. After he was discharged, the family took him home to Kyle Bay so that he could pack up, get any of his belongings, and pick up his luggage. 72. An ambulance took Jamil to the airport. 73. Dr Serge met Jamil and the family at the airport. 74. There were many people at the airport - both friends and family. I don't remember seeing [Mr Deiri] there. 1. It is submitted that this evidence (again, said to be clearly intended to be responsive to Mr Deiri's evidence that he had a meeting with Jamil on 30 September 2015) is calculated to undermine or contradict Mr Deiri's evidence and is apt to suggest that Jamil was taken straight home from St Vincent's Hospital and, thence, straight to the airport. The Deiri Parties say that it is clear from Dr Hemm's notes that Jamil was taken to the Meriton Serviced Apartments in Waterloo a second time to see Dr Hemm; yet Yesmine did not mention this second visit. It is conceded that one possibility is that Yesmine was not with Jamil that morning (which it is said "might explain the careful and conspicuous absence of any references to her own involvement that morning until the farewell at the airport", referring to statements such as, "the family took him home", "an ambulance took Jamil to the airport" and "Dr Serge met Jamil and the family at the airport". However, it is submitted that, if Yesmine was not with Jamil during those hours that morning before Jamil arrived at the airport, then the drafting of these paragraphs "suggests that Yesmine was at pains to conceal this", and to leave instead the impression created by her earlier evidence (at [56] of her affidavit sworn on 8 November 2019) that: 56. … I spent nearly two weeks by his side, speaking with him, holding his hand, and giving him encouragement. The only times that I wasn't by Jamil's side during this time period was when I briefly left the room for a short walk and a stretch, when I went to the cafeteria for some food, or when I used the facilities to freshen up… 1. It is submitted that, if Yesmine was not with Jamil in those hours before the airport, then her evidence on this topic is "worthless"; on the other hand, if Yesmine was with Jamil, the omission of any reference to the second visit to the Meriton Serviced Apartment in Waterloo that morning is said "even more damning". It is said that, if Yesmine was with him, then she must have known that Jamil went to see Dr Hemm that morning, and yet she deliberately refrained from making any mention of it (despite her detailed account of the visit of the earlier day, and despite her appreciation of the importance of the issue of whether Jamil was at the serviced apartments that morning, as Mr Deiri had deposed). 2. The Deiri Parties say that the motive for concealing the fact that Yesmine went with Jamil to visit Dr Hemm a second time is obvious: that she was there when Mr Deiri visited Jamil, and that she is not putting forward her recollection of their conversation. It is submitted that that conversation must necessarily have been adverse to interest, otherwise she would have simply given her account of it. 3. In these circumstances, the Deiri Parties submit that an inference of the kind described by Handley JA in Commercial Union Insurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 (Ferrcom) at 418E-419G (with whom Kirby P (as his Honour then was) agreed) should here be drawn (i.e., that, because the Sayour Parties could have adduced evidence about Jamil's whereabouts on the morning of 30 September 2015 and have failed to do so, inferences adverse to their case can more confidently be drawn; as to which, see below). It is said that somebody in the Sayour family helped Jamil to discharge himself from St Vincent's Hospital on the morning of 30 September 2015 and then took him to the serviced apartments, and yet that someone has not given evidence about this. 4. The Deiri Parties further contend that the evidence here goes beyond a Fercomm inference. It is submitted that Yesmine's affidavit supplies an affirmative basis for an adverse inference. It is said that, whether Yesmine was with Jamil on the morning of 30 September 2015 prior to the airport or not, the drafting of her affidavit makes clear that she has sought to conceal something (either her absence from the morning's events, or Jamil's second visit to Dr Hemm) and that, either way, this was done with a view of leading to a conclusion (which the Deiri Parties say is contrary to the fact), that Jamil was not at the Meriton Serviced Apartments on the morning of 30 September 2015 and was not visited by Mr Deiri. 5. As to which members of Jamil's family were with him at the Meriton Serviced Apartments, insofar as the Sayour Parties submit that Mr Deiri has given evidence that Jamil had no family members with him at the Meriton apartment (and argue that Mr Deiri's account is improbable, because some family must have been with Jamil), the Deiri Parties say that the submission by the Sayour Parties is simply wrong. More specifically, the Deiri Parties note (see particular at T 1009fff) that what Mr Deiri said, when asked who opened the door to the apartment, was "I can't recall"; and that, in the course of answering a question about what he saw when he went inside, he said "I think someone had opened the door and there was someone lying on the floor"; when asked whether he recognised the person on the floor, he said "No"; and when asked whether he spoke to the person who opened the door, he answered "I can't remember who I spoke to but obviously I would have said 'Hello' to someone". 6. It is noted that Mr Deiri was not asked whether the person who opened the door could have been a member of Jamil's family nor was he asked whether the person on the floor could have been a member of Jamil's family, or as to the extent to which he was able to recognise every such member. It is submitted that, "[b]oth the person who opened the door and the person lying on the floor are candidates to be members of Jamil's family" and that the Sayour Parties' submission is therefore based on a false factual premise. 7. The Deiri Parties say that the Sayour parties' failure to call Dr Hemm also enables the inference more confidently to be drawn that his evidence in relation to the events of 30 January 2015 would not have assisted. It is noted that Dr Hemm is the only person from whom there exists objective documentary evidence showing that he was at the meeting with Jamil at Meriton Serviced Apartments on 30 January 2015; and that Dr Hemm could have given evidence about what treatments he administered to Jamil, how long the appointment lasted, how many people were in the room, whether any of them left came or went and what conversations took place. As Dr Hemm was not called as a witness, it is submitted that it should be inferred that the evidence that he would have given on these matters would not have assisted the Sayour Parties. 8. Pausing here, I note that, on 3 July 2019, Mr Deiri and Deiri Nominees filed their third cross-claim in the Arncliffe Proceedings (again, the Third Arncliffe Cross-claim) (see at [56] above), in which it was alleged that, at this 30 September 2015 meeting, Jamil told Mr Deiri: that the Arncliffe Site was introduced to him by Mr William Zafiropoulos (see [47](a)); that Jamil had agreed to pay Mr Zafiropoulos a fee for introducing the site, assessed by the difference between the valuation of the site with an approved development consent for the construction of residential apartments, on the one hand, and the purchase price of the site, on the other hand (see [47](b)); that the Arncliffe Agreement was then varied to the effect that Combined Projects Arncliffe would pay the Site Identification Fees (as I have defined above) that Jamil had agreed with Mr Zafiropoulos (see [48]); that, on about 28 March 2018, Mr Deiri received two invoices from Mr Zafiropoulos which directed payment in respect of the Site Identification Fees (see [61]); and that, on about 29 March 2018, Mr Deiri caused Combined Projects Arncliffe to pay the amounts invoiced to the entities nominated by Mr Zafiropoulos (see [62]). 9. Furthermore, the Sayour Parties note that: on 19 July 2019, Konstructions filed a defence in the proceedings, in which it pleaded (at [16]) that the payment of to it of $7,920,000 "was moneys owed to Konstructions as a fee for site assistance"; on 22 July 2013, Zapphire filed its defence to Combined Projects Arncliffe's first cross-claim, in which Zapphire pleaded that Mr Zafiropoulos agreed with Jamil that he would receive one half of the uplifted value amount (at [59]) and that Combined Projects Arncliffe then ratified the agreement by paying the sum of $7,898,000 to Zapphire in March 2018 (at [63]); and on 29 August 2019, Konstructions filed and served an amended defence which no longer pleaded that the fee paid to Konstructions was "a fee for site assistance", and instead alleged (at [14B]-[14S]) that the fee was for various other services rendered by Mr Kanj to Jamil after the site had already been identified, and in consideration for the cancellation of Jamil's alleged agreement to engage Mr Sam Kanj as manager of the Arncliffe Site at the rate of cost plus 15% plus a share of profit. 10. The Sayour Parties say that the problem then faced by Mr Deiri, after the recipients of the "site fees" had filed and served their defences, was that they "had not got their stories straight", noting that Mr Deiri had originally pleaded that only Mr Zafiropoulos had assisted with identifying the site, and that 100% of the uplift amount was paid to, or at the direction of, Mr Zafiropoulos. 11. The Sayour Parties place significance on the fact that, when Mr Deiri made swore his affidavit of 16 October 2019, he recounted his alleged conversation with Jamil of 30 September 2015 without mentioning Mr Zafiropoulos' name. It is noted that (at [96] of that affidavit) Mr Deiri says that Jamil told him that, "the Arncliffe site was introduced to me through a couple of people", and that Jamil had agreed to pay "them" the difference between the valuation and the purchase price. The Sayour Parties say that, having resiled from his initial story (that Jamil told him that Mr Zafiropoulos had identified the site), Mr Deiri was "now left with a story where Jamil does not tell him, and he does not ask, who identified the site". It is submitted (and I agree) that it strains credulity that Mr Deiri would not seek to find out from Jamil the persons to whom this very substantial fee would have to be paid. The Sayour Parties point to the fact that it was not until well after the hearing of this matter had commenced that Mr Deiri gave "a definitive account" of that meeting. 12. The Sayour Parties also say that fatal to the credibility of Mr Deiri's account of the 30 September 2015 meeting is his statement that Jamil told him (see at [96] of Mr Deiri's affidavit sworn on 16 October 2019) that: … I agreed to payment of a fee. We agreed it would be the difference between the purchase price of the land and the valuation price. That works out to be about $14.4 million… 1. I discuss in due course the significance of the timing of the valuation evidence in light of the specificity of what Mr Deiri says Jamil told him at this meeting about the quantum of the fee. Mr Deiri's evidence is that he was alarmed and upset at the disclosure of the agreement to pay Site Identification Fee(s). However, he has deposed that he was concerned that if he did not agree that Combined Projects Arncliffe would make the payments, Combined Projects Arncliffe could be pursued for payment or a caveat might be lodged in respect of it; and that this could disrupt the Arncliffe project and cause ANZ to withdraw its funding. His evidence is that, at the time, there was a significant number of pre-sales of residential apartments for the development (and, if the funding was withdrawn, it is said that those purchasers would be left aggrieved) and also that various of the Deicorp Entities had facilities with lenders of over $400 million and he was concerned that, if ANZ withdrew its funding, other lenders would do the same, disrupting those other projects. 2. Mr Deiri's evidence is that he agreed with Jamil that Combined Projects Arncliffe would pay the $14.4 million site fee but also that Deiri Nominees would charge a development management fee of about 7% of overall costs of the development. Conversation with Mr Vamvakaris 1. Mr Deiri's evidence is that when he got back to the office after the meeting with Jamil, he asked an employee (Mr John Vamvakaris) to prepare a development management agreement to document the Development Management Fee and Site Identification Fee(s). 2. In particular, the Sayour Parties note that Mr Deiri's evidence is that, when he got back to the Deicorp office after his meeting with Jamil, he went "straight to John Vamvakaris' office", where they had a conversation where Mr Deiri says he told Mr Vamvakaris: that Jamil told him he had "made some deal with some people who introduced the site to pay him [sic] an uplift fee"; that the fee was "around $14.4 million"; and that Jamil told Mr Deiri that that figure was "the difference between the purchase price of the land and the valuation of the site with approvals" (again, see at [100] of Mr Deiri's affidavit sworn on 16 October 2019). 3. Mr Vamvakaris (who says he was overloaded with work at the time) says he did not prepare the agreement until March 2016. Mr Vamvakaris also deposes to a conversation broadly consistent with Mr Deiri's account, though relevantly, Mr Vamvakaris did not depose to a figure of around $14.4 million being the fee or as to how exactly the difference between the valuation and the purchase price was to be used to work out the site fee (see Mr Vamvakaris' affidavit sworn on 5 November 2019 at [21]-[23]). 4. In that regard, Mr Deiri has deposed to the conversation specifically as follows (see Mr Deiri's affidavit sworn on 16 October 2019 at [100]): I said: "John, do you have a minute, are you busy?" John said: "Yeah sure." I said: "I just saw Jamil. You won't believe what he's done now." John said: "What?" I said: "He has made some deal with some people who introduced him to the site to pay him an uplift fee." John said: "How much is the fee?" I said: "Around $14.4 million." John said: "What? How did he come up with that figure?" I said: "He told me that it's the difference between the purchase price of the land and the valuation of the site with approvals." John said: "What did you say to him? Did you tell him that's not going to happen?" I said: "I started going off at him, but then I had to calm down because he started tearing up. Unbelievable. I'm so bloody angry. He said the agreement was a locked in deal. What am I supposed to do? I agreed the company would pay it. But I said I would charge a development management fee." John said: "What did he say to that?" I said: "He agreed that I should charge a fee. I told him the market standard for a development management fee was around 5-9% so we agreed to lock in a fee for 7%." John said "That rate sounds about right." I said "Can you prepare a DMA for Arncliffe please. Use the Meadowbank one as a baseline, refer to a site finder's fee, calculated using the formula I gave you as well as the management fee of 7%." John said: "Do I need to do it right now? I want to focus on the launch for Kirrawee, it's taking up most of my time." I said "Fine, but don't forget to prepare this soon, its [sic] important." John said: "Ok. No problem." 1. The Sayour Parties say that there is a compelling Allen v Tobias (1958) 98 CLR 367; [1958] HCA 13 inference against Mr Vamvakaris' evidence, he being "firmly tied economically" to Mr Deiri. It is noted that Mr Vamvakaris says that he only kept the draft agreement on a USB stick (and "momentarily" on a laptop of which he has since disposed). It is said that Mr Vamvakaris' account of the valuation fee conversation cannot be true because the valuation was not available at that time. The Sayour Parties say that Mr Deiri and Mr Vamvakaris have not been frank about how and when they obtained the valuation figure, and say that, as a consequence, their only explanation is one that is not the truth; and they have withheld the true explanation. The Sayour Parties say that Mr Vamvakaris' testimony should not be accepted as truthful. 2. I deal with credibility issues and other contested factual findings in due course. Site Identification Fees and Arncliffe Site valuations 1. With the preceding in mind, it is convenient here briefly to make some further observations regarding the impugned Site Identification Fees. 2. As to the Development Management Agreement (defined at [81] above), the definition of "Site Identification Fee" is that: Site Identification Fee means the difference between the Project Funding valuation amount of $32,580,000 and the purchase price of the Land of $18,100,000. 1. As adverted to (at [564] above) Mr Wiltshire (of Landmark White) prepared the Landmark White valuation from which the $32.58 million figure is derived. The valuation date is stated to be 28 September 2015. 2. I understand that the Sayour Parties accept that if the Landmark White valuation had been given to Mr Deiri or to Jamil or to Combined Projects Arncliffe, on the valuation date of 28 September 2015, it would have been possible: for Jamil to have referred to a figure derived from that valuation of "about $14.4 million" in his 30 September 2015 conversation with Mr Deiri; and for Mr Deiri then to have immediately told Mr Vamvakaris that the fee was around $14.4 million, based on the difference between the Landmark White valuation and the purchase price for the site. (I interpose here to note that, by September 2015, Jamil was by all accounts gravely ill. He had been admitted to hospital in September 2015. On 29 and 30 September 2015 he was receiving treatment from Dr Hemm in preparation for his flight to Germany for further (as I understood it radical) treatment. It seems implausible that Mr Wiltshire's valuation report would have been central to Jamil's mind even if it was provided to him at that time which is unlikely since it was not formally issued to ANZ until 5 October 2015 (see below). 3. The Sayour Parties point to Mr Wiltshire's evidence (in his affidavit affirmed on 14 October 2019) to the effect that: he is a certified practising valuer and was, in 2015, a director of Landmark White (at [4]-[5]); Landmark White was engaged by ANZ on about 28 August 2015 to prepare an "as is" valuation of the Arncliffe Site (at [11]); on about 28 September 2015, he inspected the Arncliffe Site for the purpose of carrying out the valuation for ANZ; and on or around 5 October 2015, he issued the valuation report for the Arncliffe Site dated 28 September 2015 to ANZ (at [16]). Further, they note that Mr Wiltshire's engagement letter from ANZ provides that the "contents and purpose of the report and the value estimate must not be revealed by you to anyone including the customer other than ANZ". 4. It is noted that Mr Wiltshire said in cross-examination (see T 1156.42 – T 1157.5) that he would have read ANZ's engagement letter; that it is not his practice to disregard an instruction from his principal such as that; and that he has no recollection of having disclosed his value estimate to anyone other than ANZ. 5. The Sayour Parties say that Mr Deiri has not given evidence to explain how Jamil supposedly knew, as of 30 September 2015, what valuation amount would be stated in a valuation report that was not issued until after that date; and they submit that his evidence that he remembered that he had received the valuation figures while the report was still being prepared (which they say would require a finding that Mr Wiltshire disregarded his instructions) is a "transparent ruse". 6. The Sayour Parties say that the inference that the reference to the $14.4 million figure is a concoction devised after Jamil's death is strengthened by Mr Kanj's evidence, in his affidavit sworn on 20 September 2019 (see at [37]), that Jamil told him in mid to late 2013 or possibly "[a] short time later (maybe weeks)", that Jamil had "done the deal with Fouad" and that Jamil assured Mr Kanj that "[a]t the end of the project, he'll pay you $7.2 million plus GST". It is noted that in cross-examination Mr Kanj said (see T 1284.12-13) that his initial conversation with Jamil regarding the Arncliffe Site "would have been July or June or something", which the Sayour Parties say would place the conversation in which Jamil adverted to the $7.2 million plus GST figure some time well before the end of 2013. 7. The Sayour Parties regard as suspicious the fact that the $7.2 million figure that Jamil is said to have nominated to Mr Kanj sometime in 2013 is exactly half of the $14.4 million figure that Jamil allegedly nominated to Mr Deiri on 30 September 2015. It is said that, even if one assumes that Mr Wiltshire (in breach of his duty to his principal) told Mr Deiri (or Mr Vamvakaris) before 5 October 2015 that the valuation amount would be $32.58 million, it is not possible that Jamil knew in 2013 that half of the uplift amount would be $7.2 million because not only had no valuation been conducted as of 2013, but the purchase price had not yet been agreed with Mr Dale. It is noted that it is common ground that the purchase price for Arncliffe of $18.1 million was not agreed between Mr Deiri and Mr Dale until January 2014. 8. The Sayour Parties say that Mr Kanj's assertion that Jamil happened precisely to identify in 2013 half of the uplift amount of the Arncliffe Site as $7.2 million is preposterous, and they say that Mr Deiri's corresponding assertion that Jamil identified the full amount of the uplift as $14.4 million several days before the valuation report was even issued to ANZ bank is "only slightly less so". Other discrepancies re Site Identification Fees 1. The Sayour Parties say that there are other discrepancies and incongruities in Mr Deiri's account of how the alleged site identification fee arrangement came to be. 2. First, insofar as Mr Deiri says that Jamil had no family members with him (as to which, see at [590] above) at the Meriton Serviced Apartments (again, see T 1009ff), the Sayour Parties say that it seems inherently improbable that Jamil (dying of cancer and about to fly to the airport and leave Australia for the last time) would abandon (or be abandoned by) all of his family members after having discharged himself from hospital to receive treatment to give him the strength to fly to Europe. It is noted that Jamil left the hospital around 6.00 am, and yet was at the Meriton Serviced Apartments at 8.20 am (again, the Sayour Parties say that, according to Mr Deiri's account, this was with no family support but the Deiri Parties dispute this). It is also noted that, on Mr Deiri's evidence, Mr Deiri drove through peak hour traffic, parked the car, got to the Meriton Serviced Apartments and found the room, only then to have "a 15-minute meeting with his dear friend whom he is seeing for the last time, before leaving". (Pausing there, while it transpired that this was the last time that Mr Deiri would have seen Jamil, there is nothing to say that it was necessarily understood by Mr Deiri, or others, at the time that Jamil would not return alive to Australia. Presumably, the trip to Germany was with a view to prolonging Jamil's life). Nevertheless, it is submitted by the Sayour Parties that the "story" had to fit the meeting between the phone calls in the Telstra record; and that it is nonsense. The Sayour Parties say that all that happened that day were "a few phone calls". It is also said that it is fiction to suggest that there was a Combined Projects Arncliffe shareholders' meeting of the same day (notwithstanding that Mr Deiri was unwilling to concede this). 3. Second, that Mr Deiri says that he sought no legal advice in respect of the Development Management Agreement, despite Mr Vamvakaris having expressed incredulity to Mr Deiri regarding Jamil's insistence that site fees were payable and that, despite Mr Deiri being so worried about a possible caveat, he "did not bother" to consult one of his lawyers. Jamil's death 1. Jamil left Australia for Germany on 30 September 2015. Jamil died in Germany on 5 October 2015. 2. Jamil's funeral was held on or around 9 October 2015. Moustafa says that on or around that date he had a discussion with Mr Deiri in which Mr Deiri told him that Jamil had more than $5 million in his bank accounts (see Moustafa's affidavit sworn on 27 October 2016 at [27]). Meanwhile, Mr Deiri's account is that, some time in October 2015, Moustafa called him to ask for help in retrieving money that Jamil had left in the Bank of Sydney account (see Mr Deiri's affidavit sworn on 22 August 2019 at [243]ff). Independent quantity surveyor's report for Arncliffe and partnership income 1. In or around early October 2015, ANZ asked Mr Peter Hammond of Napier & Blakeley to provide a quote for an independent quantity surveyor's report on Arncliffe (see Mr Hammond's affidavit sworn on 12 September 2019 at [6]). 2. On 9 November 2015, Moustafa signed a tax return for the Sayour Family Trust declaring partnership income of some $12 million from the Broadway Development (see Ex 15 at p 1071). (This is highly relevant as gainsaying Moustafa's claim that Plaza did not receive partnership distributions). Subsequent claims in relation to Arncliffe Development 1. Mr Deiri's evidence is that, some time after Jamil's death, he received a telephone call from an acquaintance, Mr Greg Gav (a property developer with whom Mr Deiri had worked previously) and had a conversation in which Mr Gav told him that he had received a telephone call from a dentist named "Bill", who had said he "has done some deal with [Jamil] at Arncliffe property". Mr Deiri says that he replied that "I know about the deal. Jamil spoke to me before he went to Germany. [Moustafa] is accusing me of all these things. Arncliffe has years to go before completion, I just need to get the project completed. I will talk to Bill later". The "Bill" to which this conversation referred is understood to be Mr Zafiropoulos (and see Mr Deiri's affidavit sworn on 16 October 2019 at [103]). 2. Mr Zafiropoulos has given evidence that when Jamil died he (Mr Zafiropoulos) wanted to contact Mr Deiri but did not have his number; that about two weeks after Jamil's death he contacted Mr Gav who he knew had a close relationship with Mr Deiri and asked him to contact Mr Deiri about "a fee that my company Zapphire is to be paid in relation to a development site in Arncliffe" and that he needed to discuss it with Mr Deiri. He says that Mr Gav responded to him a week later and said that Mr Deiri "knows who you are and how much is to be paid to you but he will deal with it once the site is completed" (see Mr Zafiropoulos' sworn on 9 October 2019 affidavit at [72]-[74]). 3. Mr Gav's evidence is that (see his affidavit affirmed on 25 October 2019 at [11]): [In about October or November 2017] … I called Fouad and we had a conversation in words to the following effect: I said: "Fouad, a guy came to see me. His name is Bill Zafiropoulos. He is a dentist in Miranda. He says he's done a deal on your site at Arncliffe with Jamil. He wants to meet you to get his site fee." Fouad said: "Yes I know about the deal, Jamil only told me on his death bed. But I don't want to see Bill until the job's finished. I need to finish the job – that's my main focus. Tell him we can meet around March or April next year when we hit practical completion." I said: "Okay, I will let him know." Dispute with Ms Catharine Sayour (Elliott) 1. Mr Deiri has deposed that, in early October 2015 (after Jamil had died and his body had been returned to Australia but before a meeting which took place on 14 October 2015 – see at [627] below), he spoke to Ms Sayour (Elliott), Jamil's partner and the mother of their three children, and that: Ms Sayour (Elliott) told him that she was aware of a project at Arncliffe; Mr Deiri confirmed his involvement; Mr Deiri told her that when the project was finished and the units sold, she would receive some of the proceeds of the sale; and that this, "should be enough for you and your kids to get back on your feet" (see Mr Deiri's affidavit sworn on 2 November 2016 at [22]). 2. At around this time, there was a dispute between Moustafa and Ms Sayour (Elliott) in relation to the moneys held in Jamil's Bank of Sydney account. Mr Deiri gave evidence that a meeting took place between Moustafa and Ms Sayour (Elliott) at Mr Deiri's office on or around 14 October 2015 (see Mr Deiri's affidavit sworn on 2 November 2015 at [24]); and that a further meeting took place some days later at Mr Deiri's office (on which occasion it seems that a lawyer was present (see Mr Deiri's affidavit sworn on 2 November 2016 at [27]). 3. On 8 December 2015, Mr Deiri sent an email to Moustafa, via Jamil's email account, attaching two draft settlement deeds providing for a resolution of the dispute with Moustafa and Ms Sayour (Elliott), with a note by Mr Deiri that "I've made sure they stayed [sic] simple, which is better for everyone". The proposed deeds were between Moustafa and his related entities, on the one hand, and Ms Sayour (Elliott). 4. The first deed set out (at cl 2) that: 2. Moustafa and his Related Entities release their interest in and will not propose or make any claim in relation to the Arncliffe Project at 108 Princes Highway, Arncliffe. The interest that Moustafa has in the Arncliffe Project through his Related entities will go to the Jamil Sayour Family Trust. 1. The second deed was drafted as a loan agreement. Clause 2 of that draft sets out that: 2. Once Catherine Sayour is appointed executor of the estate of Jamil, an amount of $5,700,000 will be released from the estate of Jamil Sayour from funds available from Bank of Sydney. Catherine Sayour will pay Moustafa Sayour or his nominated related entity an amount of $3,700,000 as soon as possible. Catherine Sayour will retain an amount of $2,000,000 as a loan to be repaid to Moustafa in full after the Arncliffe Project, at 108 Princes Highway, Arncliffe, is complete. 1. As to the draft deeds prepared in December 2015, the Sayour Parties note that, in cross-examination of Mr Deiri, there was the following exchange (see T 956.46 – T 957.7): Q. In 2015, October 2015, did you understand that the return to shareholders was likely to be minimal? A. I knew it would be minimal, yes. Q. Yet you said to Catherine Sayour in a meeting in October 2014 [2015], "You will get back on your feet through Arncliffe," or words to that effect, is that right? A. Well I knew that there was 600 or 760,000 that would have gone to her, yes. Q. So she was going to get back on her feet through 670,000, is that what you meant? A. Well when you're out on the street, 670,000, 700,000 is a lot of money. 1. Mr Deiri admitted in cross-examination that deeds were prepared regarding the proposed settlement (see, for example, at T 1076.38ff). (Pausing there, a hallmark of Mr Deiri's approach at least in documentation the subject of these proceedings seems to have been to "keep them simple" – see for example at T 1046.41-42.) 2. The Sayour Parties point out that the first draft deed acknowledges that Moustafa has an interest in the "Arncliffe Project" as defined and the deed seeks to assign that interest to the "Jamil Family Trust". They say that there is no evidence that a trust known as the "Jamil Family Trust" existed at the time or exists now. 3. Clause 3 contains a definition of "Moustafa Sayour" and his "Related Entities" and it is noted that it would encompass both Plaza and Sayour Holdings as well as the Sayour Family Trust and the Sayour 2 Family Trust. 4. The Sayour Parties also note that there is no mention in the draft deeds of Jamil's contributions (by payment of option fees) in respect of three other properties at Arncliffe, although (by the time of his death) Jamil had paid sums of $1.2 million, $280,000 and $1,692,000 in options fees from his personal accounts at the Bank of Sydney (it is said for the benefit of companies of which Mr Deiri was sole director and which other of Mr Deiri's companies would eventually "pick up" after his death). 5. The Sayour Parties say that the proposal in the deed assumes that Ms Sayour (Elliot) would be in a position to recover from the Arncliffe Development an amount of at least $2 million. It is said that, were this not the case, she would have been placed (by lawyers retained on her behalf) in a position where she was being advanced a sum which she could not hope to repay beyond the possible receipt of $670,000. It is noted that, in circumstances where the shareholder debts were subordinate to the bank, even this sum was not certain to be paid to her. 6. It is noted that Mr Deiri in cross-examination said the following in relation to this issue (see at T 1027.6-22): Q. … in effect she wouldn't be able to use 1.33 million without putting herself in a position of being unable to comply with her obligations, is that right? A. Yes. Q. What was the point of borrowing two million if she would have to keep 1.33 on ice? A. That would have been an agreement between her and I when I would have had to try and assist her, and at that time when we were doing the deeds nothing was clear cut onto how it was going to end up. I was simply trying to assist Moustafa and Catherine resolve their differences over the money in the account. Q. I suggest to you at the time this was drafted you expected that there would be very substantial returns for Sayour Holdings from the project at 108 Princes Highway, Arncliffe, what do you say to that? A. No I didn't suspect to be substantial returns. 1. Pausing here, I note that the Sayour Parties say that the draft deeds presented to Moustafa and Ms Sayour (Elliot) are evidence that in December 2015: Mr Deiri knew that Moustafa was a director of Sayour Holdings or that Plaza's profits from the Broadway Development had been applied to the development carried out by Combined Projects Arncliffe (in that, if this were not the case, the first "release" deed would not have been necessary); Mr Deiri believed that the Sayour family was likely to receive a substantial profit from the Arncliffe Development (it is said that this belief is evidenced by the proposal predicated upon more than $2 million profits from Combined Projects Arncliffe; Mr Deiri was unaware of the alleged claims of Mr Kanj (and Konstructions) and Mr Zafiropoulos (and Zapphire) and there was no Development Management Fee agreement and nor was there an agreement to pay substantial interest (since those arrangements have the practical effect of giving no assurance that there would be any amount of profit available to the shareholders of Combined Projects Arncliffe); and there was no concern that Moustafa or Ms Sayour (Elliot) was likely to assert or protect an interest in the Arncliffe Site by way of caveat. 2. The Sayour Parties say that these conclusions are reinforced by the "total silence" concerning any of the Development Management Agreement, Site Identification Fees, Arncliffe Agreement and interest agreement. 3. It is noted that, on receiving the proposed deeds, Moustafa contacted Mr Deiri; told him the proposed deeds did not reflect his understanding; and threatened to take Mr Deiri to court. The Sayour Parties place emphasis on the fact that Mr Deiri accepted in the course of cross-examination that Mr Sayour threatened legal action against Mr Deiri after receipt of the proposed deeds. It is said that Moustafa's threat to sue occurred only after he was presented with the proposed deeds, the subject matter of which was entirely directed towards releasing any interest Sayour Holdings had in Combined Projects Arncliffe. It is submitted that it follows that Mr Sayour did not abandon Sayour Holdings' interest in Arncliffe; rather, when that proposal was proffered to him in the draft deeds, he threated (and then commenced) legal action to enforce Sayour Holdings' rights. 4. The Sayour Parties say that this episode was an attempt "to get Moustafa out of Arncliffe" and that, by this conduct, Mr Deiri implicitly recognised that Moustafa had a real and substantial interest in the Arncliffe Development. Arncliffe Construction Contract of 27 April 2015 1. On or about 27 April 2015, the Arncliffe Construction Contract was entered into between Deicorp Constructions (i.e., Deicorp Constructions as here defined, not Deicorp – see at [11] above). 2. Clause 40 of the Contract, entitled "Variations", provided (see cl 40.1) that the "Superintendent" may direct the "Contractor" inter alia: to increase or decrease any part of the work under the Contract; to change the character or quality of any material or work; and/or to execute additional work. 3. Clause 40.2 provided that, upon receipt of a notice from the Superintendent notifying the Contractor of a proposed variation under cl 40, the Contractor shall notify the Superintendent whether the proposed variation can be effected and, if the variation can be effected, the Contractor shall: notify the Superintendent of the effect which the Contractor anticipates that the variation will have on the "Contractor's Program" and time for "Practical Completion"; and provide an estimate of the cost (including delay or disruption costs, if any, and the cost or effect on any applicable warranty) of the proposed variation. 4. Clause 42, entitled "Certificates and Payments", contained cl 42.1 (entitled "Payment Claims, Certificates, Calculations and Time for Payment"), which provided, inter alia, that: At the times for payment claims or upon completion of the stages of the work under the Contract stated in Annexure Part A and upon the issue of a Certificate of Practical Completion and within the time prescribed by Clause 42.5, the Contractor shall deliver to the Superintendent claims for payment supported by evidence of the amount due to the Contractor and such information as the Superintendent may reasonably require. Claims for payment shall include the value of work carried out by the Contractor in the performance of the Contract to that time together with all amounts then otherwise due to the Contractor arising out of the Contract… [my emphasis] Within 14 days of receipt of a claim for payment, the Superintendent shall assess the claim and shall issue to the Principal and to the Contractor a payment certificate stating the amount of the payment which, in the Superintendent's opinion, is to be made by the Principal to the Contractor or by the Contractor to the Principal. The Superintendent shall set out in the certificate the calculations employed to arrive at the amount and, if the amount is more or less than the amount claimed by the Contractor, the reasons for the difference… Payment of moneys shall not be evidence of the value of work or an admission of liability or evidence that work has been executed satisfactorily but shall be a payment on account only, except as provided under Clause 42.6… 1. Pausing here, I note that the Sayour Parties submit that a purported payment certificate of the Superintendent under cl 42.1 of the Arncliffe Construction Contract is not given in accordance with the requirements of that contract unless: it is supported by evidence and information (as required by cl 42.1); and the Superintendent, in exercising his functions under cl 42.1, honestly and fairly arrived at a reasonable measure or value of the work as required (by cl 23). That, however, does not take into account that it was for the Superintendent to determine what evidence and information was reasonably required and any breach by the Superintendent of his duties would not necessarily invalidate the payment certificate. 2. Further, cl 42.1 of the Arncliffe Construction Contract provided that: Subject to the provisions of the Contract, within 28 days of receipt by the Superintendent of a claim for payment or within 14 days of issue by the Superintendent of the Superintendent's payment certificate, whichever is the earlier, and within 14 days of the issue of a Final Certificate, the Principal shall pay to the Contractor or the Contractor shall pay to the Principal, as the case may be, an amount not less than the amount shown in such certificate as due to the Contractor or to the Principal… 1. Clause 11 of the Arncliffe Construction Contract (entitled "Provisional Sums") provided: A provisional sum included in the Contract shall not itself be payable by the Principal but where at the direction of the Superintendent the work or item to which the provisional sum relates is performed or supplied by – (a) the Contractor, the work or item shall be valued under Clause 40.5; and (b) a subcontractor to the Contractor, the Principal shall pay the Contractor the amount payable to the subcontractor for the work or item, disregarding any damages payable by the Contractor to the subcontractor or vice versa, plus an amount for profit and attendance calculated by using the percentage thereon stated in Annexure Part A or, where not stated, as stated elsewhere in the Contract. The amount payable to a subcontractor for materials or goods is taken to the nett cost to the Contractor (disregarding any deduction of cash discount for prompt payment). 1. The relevant amount for profit and attendance under "Part A" of the Arncliffe Construction Contract is 15%. Commencement of construction works at Arncliffe in December 2015 1. In about December 2015, construction works began at Arncliffe (see Mr Deiri's affidavit sworn on 16 October 2019 at [90]). As noted (at [551] above), the building contract with Deicorp Constructions was signed on 27 April 2015. Claims by Moustafa 1. In around November 2015, Moustafa allegedly accused Mr Deiri of assisting Jamil to defraud him of moneys belonging to Moustafa's partnership entity in the Broadway Development (see Mr Deiri's affidavit sworn on 22 August 2019 at [271]ff). More specifically, Mr Deiri says that Moustafa asserted to Mr Deiri that Plaza did not receive its share of partnership profits and that Jamil had no authority to receive any partnership moneys on behalf of Plaza. Yesmine Sayour's discovery of incorporation of Sayour Holdings 1. Ms Yesmine Sayour (as noted above, Jamil's sister and now a director of Sayour Holdings) gives evidence (see, for example, her affidavit sworn on 8 November 2019 at [9] and [12]) that, after Jamil's death, she started looking, in about January and February 2016, into Jamil's affairs and determined that Sayour Holdings had been incorporated, with her father (Moustafa) as its director and shareholder. Development Management Agreement 1. In March 2016, Mr Vamvakaris provided Mr Deiri with the Development Management Agreement (as referred to at [81] above) between Combined Projects Arncliffe and Deiri Nominees, which Mr Deiri signed on behalf of both entities. 2. As to the Development Management Agreement, the definition of "Site Identification Fee" is that: Site Identification Fee means the difference between the Project Funding valuation amount of $32,580,000 and the purchase price of the Land of $18,100,000. 1. It is noted that the difference is $14.48 million. 2. As will be recalled (see, for example, at [564] above), Mr Wiltshire of Landmark White prepared the Landmark White valuation, and the valuation date is there stated to be 28 September 2015. As to various of the submissions in relation to this, I refer to what I have recorded above (see, for example, at [402]). Dissolution of Broadway Partnership 1. By letter dated 20 September 2016, Investments notified Plaza that the Broadway Partnership was dissolved. 2. As noted above, on 29 September 2016, Hallen J made a declaration to that effect and ordered the taking of accounts. Sale of Broadway Plaza shopping centre 1. The sale of the Broadway Plaza shopping centre settled in March 2017 (see, for example, Mr Deiri's affidavit sworn on 22 August 2019 at [308]). 2. As alluded to above (see at [41]), on 30 March 2017, the Receiver paid $34,345,783.45 to CBA from the proceeds of the sale of the land on which the Broadway Development was situated, in discharge of the Broadway Partnership's obligations under the First Facility Agreement (see, for example, Mr Deiri's affidavit sworn on 22 August 2019 at [308]-[310]). Sayour Holdings' March 2017 enquiries into the affairs of Combined Projects Arncliffe 1. On 23 March 2017, Sayour Holdings (by its solicitors) wrote to Combined Projects Arncliffe and its solicitors, regarding, inter alia, Sayour Holdings' shareholding in Combined Projects Arncliffe, its access to Combined Projects Arncliffe's books and records (along with information regarding the progress of the Arncliffe development) and requesting that Sayour Holdings be entitled to appoint a representative to Combined Projects Arncliffe's board. 2. On 31 March 2017, Sayour Holdings' solicitors sent a further letter reiterating these requests. 3. On 1 May 2017, the solicitors then acting for Combined Projects Arncliffe (Corrs Chambers Westgarth) responded to the two March 2017 letters from Sayour Holdings' solicitors, and provided a number of documents, including "a copy of the minutes of a meeting of Combined Projects Arncliffe's members held on 8 January 2015". Notably, the Tripoli Minute (see at [519] above) was attached to that letter. Corrs Chambers Westgarth declined to provide any further material and denied any obligation to do so. There was no mention in the letter of any site fees or development management fee or development management agreement. Deicorp Properties Agency Agreement of April 2017 1. Meanwhile, in or around April 2017, Mr Deiri says that, having observed a "slow down" in the market and sales for Arncliffe, he told Mr Vamvakaris on behalf of Deicorp Properties to complete a standard form agency agreement (see Mr Deiri's affidavit sworn on 16 October 2019 at [180]-[182]). I interpose to note that there appears to be no copy of any such document in evidence. Deiri Mortgage 1. On 8 May 2017, Mr Deiri registered a mortgage (the Deiri Mortgage) over property owned by Ms Sayour (Elliott) allegedly in relation to moneys that he had lent to her. Section 293 notice 1. On 15 May 2017, Sayour Holdings gave a formal notice pursuant to s 293 of the Corporations Act, inter alia, requiring annual financial statements to be provided and audited; and a notice convening a general meeting of Combined Projects Arncliffe. 2. It appears that Combined Projects Arncliffe subsequently disputed the entitlement of Sayour Holdings to access Combined Projects Arncliffe's books and records (other than its Constitution and the Tripoli Minute, said to be a minutes of a general meeting held on 8 January 2015 at Tripoli, attended by Mr Deiri and Jamil). 3. Furthermore, it appears that Combined Project Arncliffe's position at that time was that Sayour Holdings had no general entitlement to access the company's books and records or information regarding the development and that Sayour Holdings would not be given any board representation. 4. Finally, it appears that Combined Project Arncliffe also then asserted that Sayour Holdings was bound by an agreement between shareholders constituted by the discussions recorded in the Tripoli Minute. Estate Proceedings 1. On 6 June 2017, I published my reasons for judgment in the Estate Proceedings. Provision of further accounting documents 1. On or about 23 June 2017, Combined Projects Arncliffe provided unaudited financial statements for financial year ending June 2016. 2. Later, it also agreed to supply a number of other documents to Sayour Holdings. Deiri Nominees' disclaimer re Tripoli Minute in July 2017 1. It is relevant at this point to note the changing stance taken by the Deiri Parties in relation to the Tripoli Minute, as well as the communications between the legal representations in relation to the Site Identification Fees and provenance of the Development Management Agreement. In that regard, the Sayour Parities say that Mr Deiri, "caused his solicitors to make a series of affirmatively misleading representations to Sayour Holdings regarding its financial position and obligations". 2. It will be recalled that, after the correspondence in April 2017 from Corrs Chambers Westgarth on 22 May 2017, Minter Ellison (acting for Combined Projects Arncliffe) wrote to Adams & Partners, advising that the Arncliffe project was "subject to arrangements with the lender which would prevent any profits or distributions to shareholders being made until such time as the lender's security is discharged in full" and that, "our client maintains that the agreement recorded in the minutes of the meeting of the shareholders held on 8 January 2015 accurately records the arrangements between the parties as to the distribution of profit in due course". It is said by the Sayour Parties that that statement was not true if the Tripoli Minute "arrangements" had by then been qualified by the "site fee" deal. 3. On 6 June 2017, Adams & Partners wrote to Minter Ellison, advising: that Mr Deiri and Deiri Nominees had "by the 8 January 2015 minute [the Tripoli Minute] threatened to dispose of the Company's assets in a manner contrary to the interest of Combined Projects (Arncliffe) Pty Ltd and the rights of its members"; and that "[o]ur client is gravely concerned that the assets of Combined Projects (Arncliffe) Pty Ltd are at risk. No information, undertaking or other comfort has been offered by your real clients". 4. On 8 June 2017, Minter Ellison replied: As to your assertion that the "assets of the Company are at risk", no evidence or basis has been asserted for such an allegation and that position is denied by the Company. As previously advised, the Project is still under construction and not due to be completed for many months. 1. The Sayour Parties note that by this point there was still no mention of the Site Identification Fees, Development Management Fee or Development Management Agreement. 2. On that same day (8 June 2017), Adams & Partners replied to Minter Ellison that: Our client has a right to be concerned, particularly since the minute of 8 January 2015 (to which our questions posed to Combined Projects (Arncliffe) Pty Ltd on 15 May 2017 still remain unanswered), constitutes the plainest threat by Mr Deiri and Deiri Nominees Pty Ltd to misappropriate the proceeds of the Project. 1. On 14 June 2017, Adams & Partners wrote again to Minter Ellison, stating that: Our client has serious concerns in relation to the alleged meeting of the shareholders held at Tripoli, Lebanon and dated 8 January 2015. Contrary to your assertions, that minute does not disclose any agreement between the shareholders. In fact, there does not even seem to be any agreement at all - the minute appears to read in a dictatorial style, with Mr Deiri imposing his will on Jamil. We have already observed above upon the improper nature of their relationship. […] What assurance is given that Deiri Nominees Pty Ltd or Mr Deiri will not simply take the settlement funds or part thereof at settlement? 1. On 16 June 2017, Sayour Holdings commenced the Arncliffe Proceedings (see at [76] above) by way of filing an originating process seeking, inter alia, access to various documents of Combined Projects Arncliffe and other relief, including a winding up. 2. On that day, Minter Ellison wrote to Adams & Partners to propose, inter alia, that Combined Projects Arncliffe undertake, on the basis that Sayour Holdings discontinue the proceedings: not to pay to Deiri Nominees more than 50% of any dividend declared or distribution of profit made by the company; and to retain the other 50% of any dividend declared or distribution of profit made by the company until and in accordance with any agreement between the shareholders or order of the court (provided that such other 50% of any dividend declared or distribution of profit made by the company must not be paid to Deiri Nominees or any entity related to Mr Deiri). Minter Ellison added that, "[f]or the avoidance of any doubt, there is no intention to wind up the Company or otherwise transfer assets out of the Company" and that "[t]he undertaking referred to above should be sufficient to allay what we understand to be your client's concerns about the conduct of the Company's business". It is noted by the Sayour Parties that there was still no mention of any Site Identification Fees, Development Management Fee or Development Management Agreement in that letter. 3. On 23 June 2017, Ms Caitlin Murray of Minter Ellison swore an affidavit in which she deposed on information and belief that, as at the date of the affidavit, the total expected gross realisation for the Arncliffe project was approximately $150 million (see at [18]); and that no profit would flow from the Arncliffe project to any shareholder until such time as at least the following matters had been dealt with: one, that practical completion had been obtained; two, that occupancy certificates had been issued; three, that all sales had been completed; four, that the ANZ facility had been repaid in full; and five, that all shareholder loans had been repaid in full (see at [29]). The Sayour Parties note that there was no reference in Ms Murray's affidavit to the, or any other, Site Identification Fees, Development Management Fee, or the Development Management Agreement. 4. It is also noted that the Arncliffe Proceedings were part-heard before Robb J on 28 June 2017; that Combined Projects Arncliffe, Mr Deiri and Deiri Nominees were represented on that occasion by Counsel; and that there was no mention at that time of the Site Identification Fees, Development Management Fee or the Development Management Agreement. 5. On 27 June 2017, Minter Ellison wrote to Adams & Partners, stating inter alia that: There is no proper basis to suggest that any of our client, Mr Deiri or Deiri Nominees will behave improperly. Further and as you are well aware, the Project is funded by financing from a well-known external lender, with security provided over the assets of the Company including the Property. No funds will be available from any settlement until such time as the costs and expenses of the Project have been paid and the lender has been repaid in full and discharged its security. That will not occur until (at the earliest) March 2018. Your client, if it acts reasonably promptly and with a degree of focus on the real issues, ought to be able to have its dispute with the second defendant tried and determined before that time… For the avoidance of any doubt, our client has no intention to either transfer the Property to any other entity or to otherwise cause the Company to be wound up. We add that the former would amount to a serious breach of duty owed to our client and is in any event not reasonably possible in light of the securities. The latter is not in the interests of any party. 1. By letter dated 27 July 2017, Corrs Chambers Westgarth (in their capacity as Deiri Nominees' then solicitors) wrote to Adams & Partners that: Your client appears to apprehend that Nominees asserts that it is entitled to a greater share of the profits generated by Combined Project (Arncliffe) Pty Ltd (Arncliffe) than Sayour Holdings Pty Ltd. In particular, your client appears to apprehend that Nominees seeks to enforce the agreement reached between shareholders recorded in the minutes of the meeting which occurred in Tripoli Lebanon in January 2015, whereby Jamil on behalf of your client and Mr Deiri on behalf of our client agreed that the shareholders would share in the profits of the Arncliffe venture, proportionately according to their capital contributions. Our client does not assert that it is entitled to any more than 50% of any profits Arncliffe ultimately generates. Our client's position is that it owns 50% of the shares in Arncliffe, no more, no less, and the entitlements of those shares are set out in Arncliffe's constitution. While our client maintains that a valid and binding agreement was reached between shareholders in January 2015, our client does not seek to enforce that agreement. As such, it does not propose to file any cross-claim in the proceeding in connection with that agreement. 1. It is noted that there was still no reference to any obligation to pay any Site Identification Fees, or a Development Management Fee or of the Development Management Agreement; and that, by this letter, Deiri Nominees appears to have disclaimed an entitlement to a greater than 50% share of profits. 2. On 23 March 2018, Minter Ellison wrote to Adams & Partners, stating inter alia that: We confirm that some settlements have taken place. We also confirm that there are still other settlements to take place and that not all apartments have yet been sold. In those circumstances, until such time as all apartment sales have been completed and all debts of the Company (including all tax liabilities and other obligations) are repaid, the Company is continuing to operate in its ordinary course. […] For the reasons set out above there is no basis for the Company to consider the appointment of a liquidator or, for that matter, for your client to threaten a further winding up application. Any further attempt by your client to seek the appointment of a liquidator would be considered by our client to be in bad faith and otherwise than in the best interests of the Company and its shareholders (including your clients). Should your client attempt to do so, our client will have no option but to seek appropriate urgent relief against your client as well as costs orders on an indemnity basis. 1. Again, it is noted that there still seems to have been nothing to put Sayour Holdings on notice of the claimed Site Identification Fees, Development Management Fee or the Development Management Agreement. 2. On 26 March 2018, Adams & Partners wrote to Minter Ellison, stating inter alia that: Our client's request for further information regarding the progress of settlement of the Arncliffe development, and the use of settlement funds, is informed by (among other things) our client's apprehension that settlement funds might be diverted. 1. I interpose to observe that this apprehension was clearly not unfounded because, two days later on 28 March 2018, Combined Projects Arncliffe paid almost $8 million of settlement funds to Konstructions on account of an invoice prepared by Mr Kanj; and, on the next day (29 March 2018), Combined Projects Arncliffe paid almost $8 million to Zapphire on account of an invoice prepared by Mr Zafiropoulos (as to which, see from [719] below). 2. Minter Ellison later wrote to Adams & Partners, stating inter alia that: The suggestion in your letter that our client is somehow "diverting" settlement funds is denied. There is no basis for such an allegation and your client has not at any point articulated any such basis. Further, we do not agree that your client has any basis at all to obtain the very vague "injunctive relief" referred to. Your client has not pointed to any conduct by our client or any person on its behalf which would give rise to any concern that our client has acted in any way other than in the ordinary course of its business. […] Our client has an obligation to return the capital contributions advanced by parties to the party who advanced those funds. The Company's independent auditor has, following a review of all books and records, formed a view that the loans should be recorded in the accounts as set out above. […] [W]e are instructed that any payments that our client has made from settlement funds received have been properly incurred and made in the ordinary course of the Company's business, including in reduction of the Company's debts… 1. The Sayour Parties say (and I agree, though I am not suggesting that the lawyers realised this at the time) that this was misleading. The Sayour Parties note that there was no mention in this letter of the fact that Combined Projects Arncliffe had just paid out nearly $16 million in settlement funds as site fees to Mr Zafiropoulos and Mr Kanj (payments that it is said could not by the "most tortured argumentation" be described as in "the ordinary course of business" – i.e., as not calling for remark). They note that Minter Ellison ceased to act for the Deiri Parties shortly after this. 2. It is further noted that, on 3 April 2018, Combined Projects Arncliffe received $7,868,000 in "residual stock finance" from Alceon Finance (see, for example, Mr Deiri's affidavit sworn 16 October 2019 at [126]) and Combined Projects Arncliffe paid the Development Management Fee of approximately $7.2 million to Deiri Nominees (see, for example, Mr Deiri's affidavit sworn 16 October 2019 at [160]). 3. On 10 April 2018, Adams & Partners (unaware it would seem that all of the profits of Combined Projects Arncliffe had already been disposed of in site fees and the Development Management Fee) wrote again to Minter Ellison, stating: We also note your assertion in the 29 March 2018 letter that the Plaintiff "has not pointed to any conduct by our client or any person on its behalf which would give rise to any concern that our client has acted in any way other than in the ordinary course of business"…. One example of troubling conduct on the part of the Defendants would be the purported 8 January 2015 "minute" . The Plaintiff considers that the minute is almost certainly a fabrication: a contrived record of a meeting that never occurred. As you know, if the assertions contained in the minute were made effective, the result would be to deny the Plaintiff its pro rata share of dividends, to the benefit of the Second Defendant and ultimately the Third Defendant…. [W]hen it became clear that the Plaintiff intended to contest the authenticity of the minute, the Second Defendant - without offering any explanation - spontaneously and gratuitously abandoned any intention to enforce the assertions in the document. No defendant obtained any concession of any kind from the Plaintiff in exchange for the Second Defendant's abandonment of its claim regarding the enforceability of the minute. The Second Defendant simply gave up on it when challenged, despite the economic and forensic consequences… The Plaintiff suspects that the minute is a false record of the Company's affairs but a document that does serve as a true statement of the Second Defendant's intentions with respect to the division of the profits of the Company. The Plaintiff suspects that the Second Defendant, consistent with the terms of the minute, intends to take steps to secure the lion's share of the profits of the Company for himself… The most obvious way to achieve this would be through the diversion of settlement funds to the repayment of (say) improper loans or the making of improper payments to related parties or on account of irregular commission arrangements… Given the First Defendant's intention (as stated in your 29 March letter) to repay "loans" that we do not consider to be bona fide obligations of the Company, the Plaintiff has a reasonable concern that settlement funds will be wrongly diverted… We note your refusal in the 29 March letter to provide any more substantive information about the use of settlement funds. 1. On 30 April 2018, Combined Projects Arncliffe wrote directly to Adams & Partners, asserting that: Mr Deiri believed that Jamil was authorised to conduct his father's business and that he conducted his father's business honestly and in accordance with his father's wishes… Mr Deiri had no knowledge of or involvement in any of Jamil's inappropriate activities. If Mr Deiri had any concerns about Jamil, he would have told Mr Sayour immediately and ceased business with Jamil… We also take this opportunity to inform you that we have appointed a new legal team to act on our behalf, Kreisson Legal. Kreisson Legal are a smaller, niche firm and have been instructed to use their best efforts to facilitate a settlement between us. To this end, we do not feel the need to involve a tier one law firm and expend unnecessary legal costs. 1. On 3 May 2018, Combined Projects Arncliffe's new solicitors, Kreisson Legal, wrote to Adams & Partners that: Our client is perfectly willing to keep your client generally appraised of progress with the development and the sale of lots within the development. Your requests for information go far beyond the level of information to which your client is entitled as a shareholder… In respect of your other requests for information, including your requests for prognostications as to the future financial position of the First Defendant and whether or not a dividend will be declared, those requests are unreasonable are not properly made. 1. The Sayour Parties note, again, that there was at this stage still no mention of any site fees or the Development Management Fee or the Development Management Agreement; nor of the fact that, by then, $21.7 million of settlement proceeds had just been paid out on account of these fees (and it was virtually certain that there would be no dividend or profit to distribute from the Arncliffe Development). They say that it was therefore "somewhat misleading" to imply that it was still too early to ascertain the likely financial outcome of the venture. 2. On 4 May 2018, Corrs Chambers Westgarth wrote to Adams & Partners (apparently abandoning any reliance in the Arncliffe Proceedings on the Tripoli Minute) in the following terms: 9. Deiri Nominees and Mr Deiri do not allege that the [Tripoli Minute] record[s] any enforceable agreement or enforceable promises. 10. Deiri Nominees and Mr Deiri repeat the response to paragraph 9 above. For the avoidance of any doubt, it is not alleged that the promises had any enforceable contractual effect. 11. Deiri Nominees and Mr Deiri do not allege that any consideration was given or agreed by each promisor in respect of each promise, and repeat paragraph 9 above. 12. Deiri Nominees and Mr Deiri do not allege any enforceable agreement. 14. Deiri Nominees and Mr Deiri only allege that the words were said as recorded in the minute. 1. On or about 28 September 2018, Combined Projects Arncliffe provided a copy of its MYOB records to Sayour Holdings pursuant to orders made by this Court on 12 September 2018. 2. On 18 October 2018, Adams & Partners wrote to Minter Ellison and Kreisson Legal about a payment of "management fees" to Deiri Nominees that was disclosed in the MYOB records, as follows: On review of the documents provided on 26 September 2018 including a review of the MYOB files, we note that on 29 March 2018 a sum of $7.239 million plus GST was paid to the second defendant, Deiri Nominees Pty Ltd, purportedly in relation to "management fees". In the plaintiff's view, the payment of $7.239 million plus GST to Deiri Nominees Pty Ltd on 29 March 2018 is a breach of the undertaking to the Court given by the First Defendant on 7 June 2017 and accordingly the Defendants, until they purge their contempt, will not be heard to make any application in the proceedings. 1. On 7 November 2018, Combined Projects Arncliffe and the Deiri Parties disclosed to Sayour Holdings for the first time the existence of the Development Management Agreement, and the asserted obligations thereunder, by an email from Kreisson Legal to Adams & Partners, in the following terms: We note that you assert that our client, Combined Projects (Arncliffe) Pty Ltd, is in breach of its undertaking to the Court and thus is in contempt of the Court. You further note that you say that the consequence of such a circumstance is that our client will not be heard by the Court. We disagree that any of your allegations, even if established, would disentitle our client from being heard in respect of issues concerning the future conduct of these proceedings, including their preparation for hearing. We invite you to provide us with authority for your proposition. In any event, we do not accept that there has been any breach of our client's undertaking. The payment in question, namely the payment of management fees, was undertaken in the ordinary course of business and pursuant to a pre-existing contractual obligation to make that payment. We attach a copy of the Development Management Agreement, pursuant to which the payment was made. 1. On the next day, 8 November 2018, Corrs Chambers Westgarth wrote to Adams & Partners disclosing (for the first time) the alleged agreement with Jamil for payment of the Site Identification Fees to Zapphire and Konstructions, in the following terms: The payment of $7.239 million plus GST to Deiri Nominees Pty Ltd (Deiri Nominees) on 29 March 2018 was made in the ordinary course of Arncliffe's business. In this respect we note as follows: (a) the payment was made pursuant to a Development Management Agreement dated 24 March 2016 (the DMA) between Arncliffe and the second defendant, Deiri Nominees Pty Ltd, a copy of which is attached; (b) the DMA reflects the terms of an arrangement agreed with Jamil on behalf of your client; and (c) the $7.239 million paid to Deiri Nominees constituted the Development Fee under the DMA. Separately, we draw your attention to the Site Identification Fee referred to in clauses 1 and 8.3 of the DMA. We note that the payments made by Arncliffe in March 2018 to Zapphire Investments Family Trust ($7.898 million) and Konstructions Pty Ltd ($7.92 million) comprised the Site Identification Fee. 1. The Sayour Parties submit that the persistent and wilful refusal of Combined Projects Arncliffe, or the Deiri Parties, to disclose their intention to pay the Site Identification Fees and the Development Management Fee, or the existence of the Development Management Agreement, until some months after those fees were paid (and the settlement proceeds from the Arncliffe Development "wiped out"), in the face of persistent questioning from Sayour Holdings as to what would happen to those settlement proceeds, can only be explained as showing consciousness of the impropriety of those intended payments and deliberate and calculated deception in the repeated representations that nothing untoward was afoot and that all was being done "in the ordinary course of business" (a proposition which, it is said, no reasonable person with the knowledge of Mr Deiri could have believed). 2. It is submitted that, if Mr Deiri thought those payments were properly made, he would have certainly disclosed them to Sayour Holdings well before November 2018. The Sayour Parties say that, if these were proper payments for Combined Projects Arncliffe to make, and if they were incurred pursuant to a genuine agreement or arrangements with Jamil, it is impossible to understand why Mr Deiri did not disclose them to someone within the Sayour camp at or around the time of Jamil's death, even if only to put them on notice that there would be no settlement proceeds or profit to distribute from Combined Projects Arncliffe and "that in any litigation over those proceeds the game would not be worth the candle". 3. The Sayour Parties maintain that the amounts paid to Konstructions and Zapphire Investments were not owed by Combined Projects Arncliffe and that Mr Deiri did not believe that they were owed. They further maintain that the concomitant Development Management Fee was also not owed; and that Mr Deiri had no view that any of these fees was genuinely owed. It is submitted that Mr Deiri undertook no proper investigations and he obtained millions in the form of the Development Management Fee. Commencement of Arncliffe Proceedings in June 2017 1. Meanwhile, and as adverted to at [680] above, in June 2017, while the Arncliffe Development was still in progress, Sayour Holdings (under the then control of Moustafa) commenced the Arncliffe Proceedings by originating process seeking, inter alia, an order that Combined Projects Arncliffe be wound up. 2. It was then asserted by the Deiri Parties that the seeking of a winding up order put Combined Projects Arncliffe into default under the loan facility with ANZ, which had been personally guaranteed by Mr Deiri. At the interlocutory hearing on 28 June 2017, Robb J made certain comments as to the adverse consequences of creating an event of default. Ultimately, Sayour Holdings withdrew its prayer for a winding up order. 3. On 15 August 2017, Combined Projects Arncliffe provided audited financial statements for the financial year ending 2016 to Sayour Holdings' solicitors. On 30 August 2017, Combined Projects Arncliffe supplied further audited accounts. Later, Combined Projects Arncliffe also supplied audited accounts for the financial year ending 2017. Claim by Mr Kanj in mid-January 2018 1. Mr Kanj says that, in mid-January 2018, he advised Mr Deiri that he was owed money for his work at the Arncliffe Site (see Mr Kanj's affidavit sworn on 20 September 2019 at [50]-[56]; and Mr Deiri's affidavit sworn on 16 October 2019 at [137]-[141]). 2. I interpose to observe that it is difficult to see that Mr Kanji had by then performed any "work" as such in relation to the Arncliffe Site (as opposed to providing some "assistance" to Jamil by accompanying him to site inspections and/or by offering his opinions or advice), a point that I return to in due course. Completion of Arncliffe Development 1. The Arncliffe Development was completed on or around 8 February 2018 (see Mr Deiri's affidavit sworn on 16 October 2019 at [116]-[118]). The sale of the last of the residential apartments was completed a year later in February 2019 (see Mr Deiri's affidavit sworn on 16 October 2019 at [188]). 2. Also on or around 8 February 2018, Mr Deiri emailed Deicorp Constructions' final progress claim (it will be recalled, PC 24) to Mr Kyrikos (see Mr Deiri's affidavit sworn on 16 October 2019 at [117]). On 9 February 2018, Mr Kyrikos issued PC 24. 3. On 10 February 2018, a certificate of practical completion was issued. 4. It seems that Mr Hammond attended the Arncliffe Site to assess PC 24. 5. On or around 16 February 2018, Mr Hammond emailed Napier & Blakeley's progress claim report in relation to PC 24 to Mr Deiri (see Mr Deiri's affidavit sworn on 16 October 2019 at [120]). 6. Also on or around 16 February 2018, Mr Deiri caused Combined Projects Arncliffe to pay out the ANZ construction facility loan (see Mr Deiri's affidavit sworn on 16 October 2019 at [125]). Incorporation of Konstructions 1. It appears that, on 27 February 2018, Konstructions was incorporated and registered. Payments to Zapphire and Konstructions 1. I have already referred above to the (impugned) payments made to Zapphire and Konstructions. However, it is necessary here to record in some greater detail the circumstances leading up to those payments. 2. In March 2018, Mr Deiri met with Mr Zafiropoulos and Mr Gav in Mr Gav's boardroom. According to Mr Deiri, Mr Zafiropoulos said that he had identified the Arncliffe Site and that he and another person were owed fees (see Mr Deiri's affidavit sworn on 16 October 2019 at [144]-[145]). Mr Deiri's evidence is that Mr Zafiropoulos confirmed that his share of the fee was $7.18 million plus GST and the other person's fee was $7.2 million plus GST (see, for example, Mr Deiri's affidavit sworn on 16 October 2019 at [147]). Mr Deiri says he asked Mr Zafiropoulos to provide him with proper invoices recording the purpose, date, GST and billing entity. He gives evidence that, a few days later, Mr Gav called him and told him that he had envelopes for Mr Deiri to collect for Arncliffe (see Mr Deiri's affidavit sworn on 16 October 2019 at [149] -[151]). 3. Ultimately, it seems that Mr Deiri was provided with two invoices, delivered through Mr Gav: one was in the amount of $7.2 million plus GST issued by Konstructions; and another invoice for $7.18 million plus GST from Zapphire Investments Family Trust, of which Zapphire is trustee (see, for example, Mr Deiri's affidavit sworn on 16 October 2019 at [152]). Mr Deiri then caused these invoices to be paid, as he says he had agreed with Jamil he would do. 4. On 28 March 2018, Combined Projects Arncliffe issued a "Recipient Created Tax Invoice" to Konstructions for payment of $7.92 million and to Zapphire re payment of $7.898 million. Each of Konstructions and Zapphire issued tax invoices to Combined Projects Arncliffe also on that date. 5. Combined Projects Arncliffe had also issued a remittance advice for a loan repayment to Deiri Nominees. 6. On or around 28 March 2018, Mr Deiri arranged for a financier (Alceon) to provide a residual stock loan (of $8 million) for the Arncliffe project (see Mr Deiri's affidavit sworn on 16 October 2019 at [126]-[127]) (to finance the expenses associated with the remaining unsold units, the payment of GST and agent commissions in relation to the Arncliffe Development). 7. As I have alluded to, Combined Projects Arncliffe paid the "site identification fees" to Konstructions and Zapphire (see, for example, Mr Deiri's affidavit sworn on 16 October 2019 at [152]-[154]). 8. It is submitted by the Sayour Parties that Mr Deiri's justifications for having agreed to pay the fees do not withstand scrutiny. Relevantly, it is noted that in his affidavit of 31 October 2019, Mr Deiri advances three such justifications. 9. First, Mr Deiri has deposed that he was concerned that, if he did not agree with Jamil to pay the Site Identification Fees, Combined Projects Arncliffe could be pursued for payment of it or a caveat would be lodged. The Sayour Parties note that in cross-examination (see at T 1064.46), Mr Deiri was not able to identify any basis for thinking that anything that Jamil had told him amounted to a caveatable interest (noting that Mr Deiri said, "I didn't know what to think 'cause I didn't really know what was going on"). It is submitted that it strains credulity to think that "a tough, experienced businessman such as Mr Deiri" would agree to sign away $14.4 million plus GST to unknown persons, without obtaining legal advice, simply because he "didn't really know what was going on"; or that he would nonetheless make the payment when, some years later, he found out that the recipient of some $7.2 million plus GST, to be taken out of the profits of his project at Arncliffe, was Mr Kanj (a finishing foreman for Deicorp). It is noted that Mr Deiri's evidence is that when Mr Kanj approached him about payment of the fee, his reaction was to say "Sam. Stop. I don't want to talk about this with you anymore" (see Mr Deiri's affidavit sworn 16 October 2019 at [139]). 10. Second, Mr Deiri has deposed, in his affidavit of 31 October 2019, that he was worried that non-payment of the site fees could "potentially cause ANZ to withdraw its finance", and that "if ANZ withdrew its funding, then the development would not be able to proceed" (see at [31]-[32]). The Sayour Parties point out that Mr Deiri caused Combined Projects Arncliffe to pay out the ANZ finance facility on or around 16 February 2018 (as I have noted at [716] above), but it was not until the next month (March 2018) when, on Mr Deiri's evidence, he met with Mr Zafiropoulos at Mr Gav's office and acknowledged any obligation to pay Mr Zafiropoulos. It is submitted that Mr Deiri could easily have resisted paying any money to Mr Kanj or Mr Zafiropoulos without threatening the ANZ facility (the Sayour Parties suggest that, for example, he could have said that he was in a court case with a co-shareholder and he would have to clear it with the co-shareholder first). 11. Third, Mr Deiri gave evidence (see his affidavit sworn on 31 October 2019 at [33]) that: 33. Further, at the time, Deicorp entities had facilities with lenders of over $400 million which I had also personally guaranteed, and were seeking hundreds of millions of dollars in further finance, which I have described above. I was concerned that if ANZ withdrew its finance then it and other lenders would do the same in respect of other projects (or not finance such projects) and that would disrupt all the projects Deicorp entities were developing. I did not want those projects to become unstuck because of a $14m site fee. 1. It is submitted that Mr Deiri's concern about the effect on other Deicorp entities is not a proper basis for him to cause Combined Projects Arncliffe to pay out some $14 million without justification, especially after the "supposed danger" had passed. Enquiry by Sayour Holdings 1. On 19 March 2018, Sayour Holdings' solicitors asked Combined Projects Arncliffe's solicitors about the status of the project, whether settlements had occurred and how funds were being utilised (see, for example, Yesmine's affidavit sworn on 12 April 2018 at [17]). 2. On 22 March 2018, Combined Projects Arncliffe gave Sayour Holdings a copy of Progress Report No 18 (for December 2017) (see Yesmine's affidavit sworn on 12 April 2018 at [18]). Development Management Fee 1. On 3 April 2018, as adverted to above, Mr Deiri caused Combined Projects Arncliffe to pay Deiri Nominees the Development Management Fee of $7,239,425.44. This is evidenced by, inter alia, an NAB bank statement.. 2. By letter dated 23 May 2018, Combined Projects Arncliffe supplied audited financial statements to Sayour Holdings, along with two cheques totalling the sum of $432,000. 3. By letter dated 6 June 2018, Combined Projects Arncliffe sent a cheque in the sum of $238,000 to Sayour Holdings. 4. By letters dated 12 November 2018, Sayour Holdings' solicitors queried with each of Konstructions and Zapphire the basis for payment to them. Deferred, provisional and other evidentiary rulings 1. With the above background and chronology in mind, I now turn to consider and to dispose of various deferred, provisional and other evidentiary rulings. Also, I address a number of inferences that were urged upon me by the respective parties. Jones v Dunkel, Ferrcom and other such inferences 1. At the outset, I need say little as to the basis of the rule in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, and cognate rules and other such authorities (see particularly Payne v Parker [1976] 1 NSWLR 191 at 201-202 (Payne v Parker) per Glass JA and more recently RHG Mortgage Ltd v Rosario Ianni [2015] NSWCA 56 at [75], [76], [78] and [79] per McColl JA). In this regard, I note that reference was also made in submissions to the explanation given of the rule by Barker J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293; [2010] FCA 784 at [47]. 2. The rule in Jones v Dunkel (which is by no means a mandatory rule) applies where there is an unexplained failure by a party to adduce evidence (for example, by calling witnesses or tendering documents or other evidence) in order to contradict a matter which arises upon the issues in the proceedings. In appropriate circumstances, this may lead to an inference that the uncalled evidence would not have assisted the party. Importantly, the Court may only draw an inference in appropriate circumstances, for example, where an uncalled witness is some who could reasonably be expected to shed light on the facts relied on by a party as the basis for the contended inference; and, an unfavourable inference may not be made solely because a witness was not called, rather the evidence must support the inference. Dr Hemm 1. The Deiri Parties have submitted that adverse Jones v Dunkel inferences should be drawn as a result of the Sayour Parties' failure to call Dr Hemm as a witness. The Deiri Parties say that the evidence of Dr Hemm could be expected to shed light on relevant issues and that the absence of Dr Hemm as witness is unexplained (there being no evidence, for example, as to any breakdown in the Sayour Parties' relations with Dr Hemm). 2. More particularly, it is noted that Dr Hemm was a doctor he was associated with the Hallwang Clinic, where Jamil received treatment; whom the Sayour family had met while in Germany and that, not only did Dr Hemm treat Jamil in his final days, but the family arranged for him to be flown from Tasmania to Sydney for that purpose. As to whether Dr Hemm would have been expected to be called by one party rather than the other, the Deiri Parties say that Dr Hemm would be a witness that would be expected to have been called by the Sayour Parties, rather than by other parties. In this regard, reference is made to O'Donnell v Reichard [1975] VR 916, where the Court of Appeal in Victoria held that a Jones v Dunkel inference should be drawn in respect of a plaintiff's failure to call her former treating doctors (see particularly at 921 per Gillard J, Newton and Norris JJ agreeing at 292-230). 3. I note here what was said by Glass JA in Payne v Parker (see at 200-202), where his Honour referred to circumstances including where "it would be natural for one party to produce the witness" or the witness would be expected to be available to one party rather than the other, or where the circumstances excuse one party from calling the witness, but require the other party to call the witness, or where the witness "might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him". In this regard, reference is also made to the principle identified in Blatch v Archer (1774) 1 Cowp 63 (at 65 per Lord Mansfield) to the effect that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted (see also J D Heydon, Cross on Evidence (8th ed, 2010, LexisNexis Butterworths) at [1215] (Cross on Evidence)). Finding 1. I consider that an adverse inference should be drawn from the fact that the Sayour Parties did not adduce evidence from Dr Hemm. He was one of Jamil's treating doctors at the relevant time and it was at the serviced apartment occupied by him that Mr Deiri says he visited Jamil on 30 September 2015. It might be expected that Dr Hemm could have confirmed whether Jamil had received a visit from Mr Deiri, as Mr Deiri alleges (assuming Dr Hemm was in the apartment that morning as his notes suggest he must have been for at least some part of the day), or at the very least had received a visit from someone on that morning. Thus, I can comfortably draw the inference, otherwise available from Mr Deiri's mobile telephone records (that place him in the vicinity at the time) and from Mr Vamvakaris' account of Mr Deiri's conversation with him on 30 September 2015, that Mr Deiri did visit the Meriton Serviced Apartments on 30 September 2015. However, what was said on that occasion is another matter. 2. I also note that Yesmine's account of the events on 30 September 2015 is troubling insofar as it appears studiously to avoid any reference to Jamil's treatment on 30 September 2015 (about which there can be no doubt by reference to Dr Hemm's notes). Mr Gramelis 1. Similarly to the Sayour Parties' failure to call Dr Hemm, the Deiri Parties say that the evidence of Mr Gramelis could be expected to shed light on relevant issues and that the absence of Mr Gramelis as a witness is unexplained (again, it is submitted that there is no evidence, for example, as to any breakdown in the Sayour Parties' relations with Mr Gramelis). 2. In Mr Gramelis' case, the Deiri Parties point to the fact that he was the Sayour Parties' accountant for several years and that he played a primary role in incorporating, and making changes to, various of Moustafa's corporate entities. It is said that, not only did he oversee the Sayours Parties' accounts, but he also on occasion acted as an agent for the Sayour Parties in their communications with the Deiri Parties. It is submitted that it can be inferred (although the Deiri Parties say that this is not necessary in order for the Jones v Dunkel inference they seek to be drawn) that Mr Gramelis stood high in the Sayour Parties' confidence. 3. More specifically, it is noted by the Deiri Parties, in the context of the submissions as to Moustafa's knowledge of the receipt of partnership distributions, that Mr Gramelis was the accountant who prepared the partnership's 2015 tax return. It is submitted that Mr Gramelis was evidently available to corroborate Moustafa's version of those events (and other matters), having answered several subpoenas issued by Investments in the proceedings. In these circumstances, it is said that the inference can more confidently be drawn that Moustafa knew the contents of that tax return. At the least, it is said that it should be inferred that the evidence Mr Gramelis would have given in relation to Moustafa's reading of the tax returns, had it been given, would not have assisted Plaza. 4. Pausing there, I accept that a Jones v Dunkel inference can be drawn from the fact that Mr Gramelis was not called to give evidence – he being a person who was the Sayour Parties' former accountant and there being no evidence as to a falling out between them such as might explain a failure to call him – as to Moustafa's signing of the tax returns. However, I do not think such an inference can be drawn to establish actual knowledge on Moustafa's part of the content of the tax return. A Jones v Dunkel inference does not permit the drawing of a positive inference damaging to a party's case; it merely enables an available inference from other evidence more confidently to be drawn. As to Moustafa's knowledge of the contents of his (admittedly signed) tax returns, there is his adamant evidence that he did not ever read his tax returns (evidence to which I will revert in due course). Suffice it for the moment to say that the most I would infer on this issue is that Mr Gramelis' evidence would not have assisted Moustafa – in that it would not have supported his denial of knowledge of the tax returns; not what his knowledge actually was. 5. The Deiri Parties identify three other matters on which they say Mr Gramelis might have given evidence. As to those matters, the Sayour Parties say as follows. 6. First, as to whether Moustafa had signed the relevant consents in respect of Sayour Holdings in December 2013 (as to which, see at [422] above). The Sayour Parties say in response that this would not be evidence adverse to the Sayour Parties' position in the Arncliffe Proceedings (and they say that the Deiri Parties do not dispute that the consents were signed at the latest in August 2014). Second, as to the email sent by Mr Gramelis to Ms Luo (it will be recalled, Mr Deiri's assistant) on 8 January 2015 referring to a telephone conversation in which Jamil had "formally requested that he be a director on the Arncliffe Project" (as to which, see at [570] above). The Sayour Parties say in response to this that Mr Deiri's own evidence (see his affidavit sworn on 16 October 2019 at [79]) is that Jamil told Mr Deiri that he (Jamil) wanted to be a director of Combined Projects Arncliffe, and the Deiri Parties submit that Jamil told Mr Deiri that this was a condition of his contributing a $5 million loan to the company. It is said by the Sayour Parties that there is no reason for even suspecting that Mr Gramelis would, if called to give evidence, depart from what he told Ms Luo in his email of 8 January 2015: namely that it was Jamil who had formally requested that he be a director on the Arncliffe project. Third, as to what happened on that call or in that meeting. In response the Sayour Parties' say that there is no reason, beyond mere speculation, to believe that Mr Gramelis would have elucidated what happened. 7. In any event, it is said by the Sayour Parties that Mr Gramelis is no longer the Sayour Parties' accountant and is not in the Sayour Parties' camp, so to speak. Finding 1. I have indicated above that I consider that it is open to draw a Jones v Dunkel inference from the fact that the Sayour Parties did not call Mr Gramelis (who was clearly available to give evidence because he answered various subpoenas issued in the proceedings). Mr Gramelis was the Sayour Parties' accountant at the relevant time. The fact that he is no longer their accountant does not change that. There was no evidence as to any falling out that might explain a failure to call him to give evidence. Even if he were unwilling to assist he could have been subpoenaed to do so. 2. I consider that the fact that Mr Gramelis was not called to give evidence enables me more confidently conclude that Moustafa signed the relevant consents for the incorporation of Sayour Holdings on the date notified to ASIC in the returns signed by Mr Gramelis (i.e., on 16 December 2013) and that he signed the tax returns prepared by Mr Gramelis accepting their contents to be true or being prepared without knowing of the contents to accept them as true. It is not necessary to draw any adverse Jones v Dunkel inference in relation to the January 2015 conversation about directorships, since that is adequately established by the evidence of the contemporaneous email communications. Mr Fadi Ibrahim 1. The Sayour Parties have sought a Jones v Dunkel inference as to the absence of any evidence from Mr Fadi Ibrahim (i.e., that it should be inferred that his evidence would not have assisted Mr Zafiropoulos). Indeed, I interpose to observe that Mr Ibrahim's name cropped up, so to speak, a number of times throughout the course of proceedings (often accompanied by objections from Counsel) but he gave no evidence. 2. As to the specific submissions made by the Sayour Parties in this regard, Zapphire's response is as follows: first, that this is a submission that ought to have been made in chief (not in reply); second, that Mr Zafiropoulos gave evidence explaining why Mr Ibrahim was not called (that being because Mr Ibrahim told Mr Zafiropoulos that if he gave a statement it would create a "lot of problems" for Mr Ibrahim's family); third, that Mr Zafiropoulos was not cross examined as to the reasonableness or otherwise of his evidence as to the reason that Mr Ibrahim was not called; and, fourth, that there is no explanation from the Sayour Parties as to why they did not call Mr Ibrahim themselves, noting that the evidence showed that Mr Ibrahim is the nephew of Moustafa and the cousin of Jamil (see T 657.48 – T 658.2) and was very close to Jamil. Finding 1. As to the "missing" Mr Ibrahim, I consider that he was certainly a person that one might have expected Zapphire to have called to give evidence (since Mr Zafiropoulos places him as being present at a number of relevant conversations for his case). I do not accept that Mr Ibrahim's reported (and cryptic) unwillingness to give evidence (because it would cause a lot of problems for his family) "excuse" Mr Zafiropoulos from not calling him – it was perfectly feasible for Zapphire to have issued a subpoena to require Mr Ibrahim's attendance. By the same token, I cannot accept that Mr Ibrahim was someone in Mr Zafiropoulos' "camp" such that it would have been unrealistic to have expected the Sayour Parties themselves to have called him (those being the two converse aspects of the rule as explained by Glass JA in Payne v Parker - see above). I therefore draw no adverse Jones v Dunkel inference as such but simply note that it was in the ability of both sides (Zapphire and the Sayour Parties) to have called Mr Ibrahim to enlighten me as to the relevant events. No one did so. CBA bank officers (including Mr Small and Ms Shucroft) 1. The Sayour Parties also seek a Jones v Dunkel inference against CBA by reference to the fact that there was no evidence called from any of its officers (including Mr Small, who raised the initial 8 March 2013 query as to the authenticity of the Jamil signature – as to which, see at [340] above). 2. More particularly, the Sayour Parties say that, in circumstances where CBA has elected not to call the witnesses who had sworn affidavits in the proceedings, the inference should be drawn that their evidence could not have assisted CBA. In this regard, it is said that CBA offers no explanation as to any other inquiries that Mr Small and his staff made in the 45 minutes it took from being alerted to an irregularity in the cheque signature to the point at which confirmation was received from the processing area that they had confirmed this and had obtained approval to proceed (as to which, see at [345] above); why Moustafa was not contacted immediately about his signature not appearing on a cheque; why Mr Small and Ms Schucroft appear only to have enquired of the payee of the cheque when the queried signature was that of the director of Plaza; and (in circumstances where CBA relies on conventional estoppel or acquiescence) why CBA was making enquiries about the signatures on the cheque at all. 3. CBA's position in this regard is that there is no issue between the parties to which any such evidence would have gone. It is noted that, in relation to the opening or operation of the cheque and loan accounts, there is no allegation of negligence nor of breach of fiduciary duty or unconscionable conduct. Thus, it is said that the issues raised on the pleadings do not call for evidence from CBA of such matters. It is said that what is alleged instead is a breach of CBA's mandate and lack of authorisation of Jamil to sign for Moustafa; and it is said that there is no evidence of any bank officer which could be adduced as to those issues. 4. Accordingly, CBA maintains that there was nothing which called on it to lead evidence in respect of the authenticity of the signatures or the Broadway Partnership's purposes in making payments; and therefore its failure to call evidence "had no probative significance and could not assist the drawing of any inference in favour of [Plaza or any other party in the proceedings]". 5. The Sayour Parties cavil with this. In particular, they refer to CBA's mutual duty of disclosure and say that it cannot be confidently inferred that Moustafa would not have taken issue had CBA referred any of these irregularities to Plaza. Finding 1. I do not draw a Jones v Dunkel inference from the fact that no CBA bank officers were called to give evidence. The fact is that the relevant query was raised. It can readily be inferred that it was raised because of a consciousness that the bank mandate required two signatures (one of those being required to be a valid signature of Moustafa), since that is the query that was raised. I agree that this tells against CBA's conventional estoppel case but I think that is a matter of submission. 2. Similarly, the fact that the query confirmation was not sought from Moustafa (only from Mr Deiri) and no explanation has been advanced by CBA for that are matters for submission. 3. Where there was perhaps more of an issue arising from the absence of evidence from its bank officers was as to whether CBA could establish reliance on the representations alleged to have been made to it by presentation of the cheques (see the Seventh Broadway Cross-claim) in the outset of such evidence. I refer to this in due course. However, I consider that this does not give rise to a Jones v Dunkel evidence – rather it goes to the sufficiency or otherwise of the evidence called by to prove reliance. Mr Deiri's advisers 1. The Sayour Parties emphasise that Mr Deiri had considerable access to advice and counsel at the time of his entry into the Broadway Partnership venture, and that he has called none of his advisers (legal or otherwise) to corroborate aspects of the transaction – for example, his denial that funding the excavation was in his mind and part of his bargain at the outset. Indeed, it is noted that there were several people who were likely to have witnessed Mr Deiri's account of his dealings with Moustafa, noting that Mr Deiri retained HWLE (and in particular Mr Stephen, Mr Sterling and Mr Schachna) to advise on the structure of the partnership and the purchase of the 50% share of the land and that Mr Deiri also relied on his accountant (it will be recalled, Mr Nick Parras). The Sayour Parties point out that none of these persons was called to give evidence which might shed light on the controversy of what had been agreed between Mr Deiri and Plaza prior to the incorporation of Investments. It is submitted that Mr Deiri's denial that Investments agreed to bear the excavation costs should be weighed in that light. Finding 1. The fact that Mr Deiri did not call the lawyers who advised in relation to the structure of the transaction to corroborate his account of the transaction seems to me readily explicable by reference to the Third Broadway Cross-claim. The Deiri interests are suing HWLE for negligence in relation to the documentation of part of that transaction. The lawyers can hardly be said to be in the Deiri interests' camp in that regard. Moreover, the lawyers' understanding of their instructions in relation to the transaction should be readily apparent from their contemporaneous file notes and memoranda of advice. 2. I draw no adverse Jones v Dunkel inference in this regard from the fact that the Deiri interests did not call their lawyers to give evidence as to their instructions in relation to, for example, who was to bear the excavation costs, not least because it is not apparent from the evidence that the lawyers gave or were asked to give any evidence on that aspect of the transaction. 3. As to Mr Parras, it is not apparent to me what evidence he might have been expected to give other than to confirm the signing of accounting documentation and in that regard I rely on the documents themselves. Moustafa's solicitor (Mr Zaid Naef) 1. It will be recalled (for example, see at [126] above) that Mr Naef is the solicitor who drafted the early Powers of Attorney and was involved in the documentation of other matters (such as the initial draft of the contract for sale of the Matthews Street Property). Mr Naef was not called to give evidence. 2. The Deiri Parties say that it may be concluded that Mr Naef's evidence would not have assisted Plaza on the issue as to the advice Moustafa says was given to him by Mr Naef that the Power of Attorney drafted in March 2012 would not permit Jamil to sign cheques and would only allow Jamil to carry out leasing (see, for example, at T 342.27 – T 343.9; and see at [277] above). It is said that the inference (already available from the instruments themselves) may more readily be drawn that Mr Naef did not advise Moustafa as such. Finding 1. I would accept, for similar reasons to these advanced in relation to Mr Gramelis and Dr Hemm, that one might readily expect that the Sayour Parties would have called Mr Naef to give evidence had there been an issue on which it might have been expected his evidence would be adduced. I would have thought that the issue on where Mr Naef's evidence might have been expected to be called was more likely as to (the suggestion by Moustafa in the witness box that what he had been given to sign by Mr Naef in December 2011 was a blank contract for sale – a proposition that seems to me inherently implausible) or the circumstances in which the purchase contracts for Matthews Street Property came to be in the name of Matthews Street Co as purchaser than as to Moustafa's understanding of the powers of attorney. In any event, the construction of the powers of attorney is not assisted by exploration of Moustafa's understanding thereof. I do not draw any adverse inference in this regard. 2. Where I do draw an adverse inference from the failure to call Mr Naef is as to the issue whether what Moustafa signed in December 2011 was a blank contract for sale. The absence of corroboration from Mr Naef on this issue leads me more comfortably to conclude that Moustafa's recollection in this regard cannot be correct. It is inherently implausible, as noted above. Expert evidence of Mr Dubedat re Westpac #238 Account 1. The Deiri Parties point out that there is no expert evidence that Moustafa did not sign the Westpac #238 Account opening form (as to which, see at [305] above). The Deiri Parties say this is no doubt because it would not have assisted Plaza's case. Finding 1. I refer to Mr Dubedat's evidence, as necessary, in due course. At this juncture, it is sufficient to observe that, it appears, Mr Dubedat was not asked to examine the Westpac #238 Account opening form. That may well have been an oversight. In any event, I draw no Jones v Dunkel inference from this. It was open to both parties to question Mr Dubedat on this or other matters – since his evidence was admitted as expert evidence in the case. They did not do so. Absence of documents and other evidence and other matters 1. The issue as to absence of documentary evidence arose in respect of the cases brought against Konstructions and Zapphire, respectively, in the Arncliffe Proceedings. 2. As to Konstructions, the Sayour Parties emphasise that Mr Kanj cannot produce a single document evidencing any work or services performed by him on behalf of (or at the direction) of Jamil;, or any agreement with Jamil in relation to the payment to Konstructions of the $7.2 million plus GST. 3. Insofar as Konstructions raised in its submissions that, inter alia, there is an iCloud account of Jamil's which has not been accessed because of inability to obtain the password, and there has been no production of text messages from Jamil's mobile telephone; the Sayour Parties say that this does not assist Konstructions' case, if it is intended to imply that there might exist emails or text messages between Mr Kanj and Jamil that support Konstructions' case. It is noted that Mr Kanj and Konstructions have not produced any such emails or text messages (and it is said that presumably Mr Kanj would have been party to any such conversations) nor have they issued any notices to produce or subpoenas in relation to Jamil's text messages. 4. It is said by the Sayour Parties that this suggests that neither Mr Kanj nor Konstructions possesses any emails or text messages with Jamil which support Konstructions' case, and nor does he or it have any reason to believe that production of Jamil's text messages would have assisted Konstructions' case. 5. The Sayour Parties say that Combined Projects Arncliffe's submission is a simple one, namely that one would expect "in the second decade of the twenty-first century" for there to be some documentary or electronic record of commercial dealings and arrangements that conclude with an agreement to pay $7.2 million plus GST on account of services rendered. It is noted Mr Zafiropoulos has suffered "a similar misfortune". The Sayour Parties say that it is inherently improbable that the alleged arrangement between Mr Kanj and Jamil would not leave any trace of documentary or electronic evidence. 6. Insofar as Konstructions also submits that, in the absence of documentary evidence that "one can look to independent corroboration from independent witnesses", the Sayour Parties say that there is no witness (independent or otherwise) who corroborates Mr Kanj's account of the services he supposedly provided to Jamil, or the fee arrangement they supposedly agreed. 7. Konstructions in response on this issue is to emphasise that the reason it cannot produce documentation is because Mr Kanj's computer was stolen from his car prior to these proceedings. Furthermore, Konstructions points to Mr Kanj's evidence that he gave all his documents to Jamil. I interpose to note that it is also said that Mr Kanj was not cross-examined on this latter point; and that Moustafa gave evidence that, before he died, Jamil took large numbers of files from the office. I return to this shortly when considering the rule in Browne v Dunn (1894) 6 R 67 (Browne v Dunn). Finding 1. It is not necessary to make any particular finding at this stage as to the absence of documentary evidence. It may well be that both Mr Kanj and Mr Zafiropoulos have suffered a similar misfortune in not being able to produce any documentary record of the alleged agreement(s) with Jamil due to two separate robberies. So be it. That is their misfortune. I must deal with the case on the material before me. Assertions by Mr Kanj and Mr Zafiropoulos of the existence of content of documentation that cannot now be produced (even if for reasons beyond their control) can rise no higher than assertions and must be tested against all the evidence that there is (and the inherent plausibility or implausibility of those assertions).Ferrcom inference re Sayour Parties and "deathbed" meeting 2. I have referred above (see at [588] above) to the Ferrcom inference urged upon me vis-a-vis the supposed failure of the Sayour Parties to adduce evidence about Jamil's whereabouts on the morning of 30 November 2015 and the events around the alleged meeting with Mr Deiri at the Meriton Serviced Apartments (the "deathbed" conversation). It is unnecessary here to recite again the extensive submissions made in this regard. 3. It is sufficient to record, again, that it is said that somebody in "the family" helped Jamil to discharge himself from St Vincent's Hospital on the morning of 30 September 2015 and then took him to the serviced apartments, and yet that someone has not given evidence about this. Furthermore, it was submitted that Yesmine's affidavit supplies an affirmative basis for the adverse inference (being, it is said, intentionally incomplete). Again, the course of Mr Deiri's cross-examination and the Sayour Parties' failure to call Dr Hemm are here relevant to note. 4. I have also referred above to the absence of any evidence from Dr Hemm. I have also recorded my concern that the evidence from Yesmine appears to have been less than wholly forthcoming as to the events of 30 September 2015. I do not draw from that inference that Yesmine was in fact present and witnessed Mr Deiri at the Meriton Serviced Apartments on 30 September 2015. Mr Deiri himself does not say that he saw Yesmine there (he simply refers to seeing a "body" on the floor – presumably sleeping or resting since it was not suggested that there was anything untoward in this). Suffice it simply to say that any suggestion by Yesmine that Mr Deiri was not there on 30 September 2015 cannot be accepted at face value due to the seemingly incomplete nature of her account of events that day. Rule in Browne v Dunn 1. In addition, numerous complaints were made by the respective parties as to whether there had been adherence by their opponents to the rule in Browne v Dunn. Mr Kanj, Konstructions and "sham" allegations 1. In particular, substantial complaint was made in relation to the submissions made to the effect that the arrangements pursuant to which the impugned fees were paid where no more than a "sham" (vis-à-vis Konstructions and Mr Kanj). 2. To set the context of these complaints, Konstructions points out that Mr Kanj gave evidence in his affidavit that he had three arrangements with Jamil. As to the first of those (namely, that he was to provide assistance to Jamil), Konstructions says that it was not suggested in cross examination that Mr Kanj did not visit the Arncliffe Site, nor that he did not provide information and other documents referable to the site to Jamil, nor that he did not provide opinions to Jamil on the likely scale of the development. As to the second (that Jamil would appoint Mr Kanj to coordinate the building works), it is said that this was not the subject of challenge in cross-examination (except to ridicule Mr Kanj's technical capacity to deliver on his promise). As to the third (after Jamil decided to proceed with the development with Mr Deiri, that Jamil would pay the relevant fee to Mr Kanj), it is said that the relevant question in cross-examination suggested one arrangement between Mr Kanj and Jamil, in the face of clear evidence that there were three such arrangements at different times and that it did not identify which of the three agreements that Mr Kanj says he had with Jamil was said to be a "complete fabrication". 3. Konstructions says that the factual underpinnings for the "rolled-up" allegation of fabrication were not established and that there was no proper basis to put the allegation of fabrication given the failure to cross-examine on the underlying events and conversations that were established by Mr Kanj's affidavit. Konstructions says that mere suspicion and allegation is not enough. 4. Insofar as it was put to Mr Kanj that the whole arrangement was fabricated "for this case" (see at T 1287.41), it is said that this places a temporal connection of a decision by Mr Kanj to fabricate with the issue of proceedings, noting that it was not suggested to Mr Kanj that the decision to fabricate was referable to the claim for payment. Thus, it is submitted that the fabrication of the evidence is suggested to have occurred some time after proceedings were commenced in May 2019. It is submitted that if there is any evidence of any aspect of the arrangement (including any process or event that would have naturally followed from the arrangement) that pre-dates the issue of proceedings, then it wholly undermines the postulate put in cross-examination, and the remaining evidence of Mr Kanj is effectively unchallenged. 5. It is also noted that there was no evidence adduced in reply to each factual allegation in Mr Kanj's affidavit and thus there was no argument available that such evidence challenged Mr Kanj so that it was not necessary to challenge the witness in cross examination. It is submitted that it is not a sufficient challenge or proposition for the purpose of an action under either limb of Barnes v Addy (1874) LR 9 Ch App 244; 22 WR 505 (Barnes v Addy). Again, Konstructions says that this leaves many of the conversations of Mr Kanj in his statement unchallenged, when, as a matter of procedural fairness they should have been. 6. Furthermore, complaint is made that the allegation that the arrangement was a complete fiction is one that has serious consequences for the witness. In this respect, it is noted that it was put as a clear allegation of fabrication, for an ulterior purpose, which is tantamount to fraud or an attempt to pervert the course of justice. It is said that the allegation that the arrangement derived from fabrication or fraud was not pleaded by the Sayour Parties (on behalf of Combined Projects Arncliffe) in reply to the defence. It is said that, given the serious nature of the allegations, and the potential ramifications for Mr Kanj and, indeed, other witnesses (as they would have had to have been complicit either in providing false evidence or attempting to procure a financial advantage or inflict economic harm) against whom an adverse finding is made, any such allegation must be founded on a proper factual analysis and not be advanced as some "global rolled up postulate". In particular, it is said that the Sayour Parties have to be able to "explain away" any evidence from other witnesses that corroborates Mr Kanj directly or by necessary implication. It is said that the slightest corroboration extinguishes the allegation of fabrication, absent any suggestion of collusion or circumstances that could give rise to pollution of the evidence. 7. Konstructions also notes that, by the time Mr Kanj gave evidence, most of the other witnesses had been called to give evidence, including Mr Vamvakaris, Mr Gav and Mr Deiri. It says that these witnesses gave evidence that was inferentially corroborative of the transaction described by Mr Kanj (and were not cross-examined thereon). Konstructions says that, because of the Sayour Parties' disavowal of a "sham" transaction, and the failure to cross-examine Mr Gav and Mr Vamvakaris, Konstructions was entitled to proceed in the hearing on the basis that a "sham" transaction was not alleged and would not be alleged. 8. Insofar as the Sayour Parties submit there was a sufficient challenge to Mr Kanj's evidence by putting the proposition that "you have just made all this up for the purpose of this case", Konstructions repeats its submission that this is insufficient to discharge the obligation of procedural fairness to Mr Kanj. It is said that it is not clear whether this question in cross-examination was for the purpose of challenging credit or making an allegation tantamount to fraud. Konstructions emphasises the need for clear and precise cross-examination of any witnesses on each and every event and conversation that gave rise to the alleged fabrication if such an allegation is to be put (adverting by way of illustration to the position where defamatory accusations are made out of court or where allegations of this kind are made in criminal proceedings or alleging a sham in civil proceedings). Again, the complaint is made that for such an allegation of fraud, sham or fabrication it would not be sufficient to assert the "rolled up" conclusion. 9. Konstructions says that it is against this background that the sufficiency of the cross-examination in the present case needs to be assessed. It submits that the failure to cross-examine clearly and precisely is not limited to the questioning of Mr Kanj (as adverted to above), but also those witnesses (namely, Mr Vamvakaris and Mr Gav who were called before Mr Kanj) who describe events that Konstructions says were highly corroborative of Mr Kanj's accounts. It is said that if Mr Kanj had fabricated a story for the purpose of the case then, by necessary implication, so too did those witness; and that, if a finding were to be made as sought by the Sayour Parties, then it would affect the reputations of at least Mr Gav and Mr Vamvakaris, yet this was never put to those witnesses in cross-examination. Konstructions contends that Mr Kanj's account of his claim to the fee is corroborated by these other witnesses. 10. Konstructions says that the present case is almost identical to the situation that applied in Browne v Dunn. It is said that Mr Gav and Mr Vamvakaris gave "implicitly supportive evidence" and were not cross examined on any relevant issue. It is submitted that that is sufficient to reject the allegation of a sham; and, further, that as their evidence is corroborative of Mr Kanj a finding should be made to that effect. 11. In response to those complaints, the Sayour Parties have pointed to what was said in Oneflare Pty Ltd v Chernih [2017] NSWCA 195 (Oneflare), namely that (at 42 per Meagher JA, with whom Gleeson and Leeming JJA agreed): 42. There are many ways in which a party or other witness might sufficiently be put on notice that their evidence on a particular subject or to a particular effect is challenged as untruthful, and as to the basis of that challenge. Depending on the circumstances, those ways include by pleadings, affidavits or statements of evidence exchanged before the hearing, and opening statements made or exchanged at the commencement of the hearing, as well as by cross-examination. 1. This led to Konstructions, in supplementary submissions, raising what it described as an important matter of principle in relation to the rule (in the context of the submission by the Sayour Parties that the account of events given by Mr Kanj was a fabrication and that the transactions were in the nature of a "sham"). 2. Konstructions poses the issue of principle thus arising as being: whether, in light of Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 (Kuhl), the statement in Oneflare is a complete statement of the law. In Kuhl, the High Court made clear (see at [68]-[73]; [75], per Heydon, Crennan and Bell JJ) that the rule of Browne v Dunn is a relief fairness which is especially the case where a judge is being asked to impeach a witness' credit (see also Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 at [42] per Allsop P (as his Honour then was) Giles JA and Tobias AJA); and the discussion as to the qualifications to the ambit of the rule in Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 at [105] per Campbell JA (with whom Allsop P and Basten JA agreed); Bradley v Matloob [2015] NSWCA 239 at [7] per McColl JA. Konstructions says the issue is whether, if the case advanced is that the transaction is a fabrication by a party; and if independent witnesses give unchallenged evidence that is inferentially corroborative of that party's account; there is an obligation to put the relevant proposition to the party and to the independent witnesses. 3. The context in which this complaint is made is said to be that it is a feature of the case that the Sayour Parties have repeatedly changed their position as to claims of a "sham" transaction in relation to Mr Kanj's claims. It is noted that the Sayour Parties did not allege fraud in their pleadings but that, in their submissions in reply, the Sayour Parties have alleged that the account of the events was a fabrication. Konstructions submits that this repeated change in position takes the Sayour Parties outside the proviso identified in Oneflare. 4. Konstructions maintains that, because of the serious nature of the allegation, a single "rolled up" proposition to one witness (such as appears at T 1287.37-43) is insufficient to afford procedural fairness without addressing the underlying events, noting that the greater the seriousness of the allegation, the greater precision is required in cross-examination. It is submitted that the cross-examination needed to address each and every element that gives rise to the allegation of falsification, "fabrication" or "sham", that the independent witnesses needed to be challenged on it (as did Mr Kanj) and that, insofar as Mr Kanj was concerned, an independent key issue is the state of mind at the time the invoice was submitted and payment received (if a "sham" or "fabrication" is to be established). Critically, Konstructions says that, at least the last of these propositions, was not the subject of a single question. 5. As to these and other submissions by Konstructions as to matters in which Mr Kanj was not questioned or where it was said that the questions that were put to him were unfair, the Sayour Parties say that Mr Kanj's credibility and truthfulness were squarely put in question in the course of his cross-examination and that it was always clear that Combined Project Arncliffe's case against Mr Kanj was that his account of the events was a fabrication. It is said that this was known to Konstructions. 6. In that context, it is said that it was not necessary to cross-examine Mr Kanj by "chapter and verse". In any event, it is said that Mr Kanj was challenged on the crucial aspects of his account, including when he first spoke to Jamil about the Arncliffe Site (and by his account, that this could not have happened in 2012) (see T 1279.45 – T 1284.20), whether he supposedly did the work that he alleges he did (see, for example, at T 1282.40ff), his qualifications to do the work (see, for example, at T 1278.35ff), and that he was directly challenged as to whether he had fabricated the entire story (see, for example, at T 1314.30ff). 7. I will first consider the issues raised concerning the decision of the Court of Appeal in Oneflare. Oneflare not a complete statement and proviso does not here apply 1. It is submitted by Konstructions that the Sayour Parties' reliance on cases such as Oneflare is misplaced. It is said that Oneflare does not address the procedural fairness issue; rather, it deals only with the capacity to making findings of fact absent a challenge to the witnesses. It is said that if the rule in Browne v Dunn is a matter of procedural fairness (see Kuhl), then the statement in Oneflare to which the Sayour Parties refer in their submissions, as a matter of principle, is incomplete and does not resolve the problem now identified. Rather, it is said that one needs to identify what the "particular subject" is for the particular effect; and to identify the evidence to which is the "particular effect". More particularly, it is said that Oneflare is not a complete statement of principle as to the need to cross-examine and put the contrary case to the witness; that the exception or proviso to which the Sayour Parties rely is limited to fact finding and not to procedural fairness to the witness or the party; and that the extent to which the proviso operates is significantly dependent upon the circumstances of each case. 2. It is said that, in the event an allegation of fabrication, fraud or sham is to be made, then this is unable to be addressed in cross-examination of one witness by way of broad allegations that do not direct themselves to the elements of the sham and, instead, the only proper way to provide procedural fairness is properly to plead the case alleging the sham, or fabrication, and clearly and precisely to challenge that witness (and any corroborative witnesses) in cross-examination on the events or transactions that are said to constitute it. 3. Further, it is said that if the issue of sham is not made clear on the pleadings or the opening, then even applying Oneflare, by implication there is a mandatory obligation to challenge in cross examination each witness who gives direct or indirect evidence inconsistent with the allegation of fabrication. It is said that, if the proviso referred to in Oneflare does apply, then it only does so if the challenge is clear; and that, if it is not (for example, where the opening submissions disavow a sham), then the witnesses must be challenged. 4. In this connection, Konstructions emphasises that, in their opening statement at the commencement of the hearing, the Sayour Parties disavowed any reliance on fabrication or a sham transaction. It maintains that, in those circumstances, it was entitled to proceed on the basis that a submission would not be made at the end of the hearing (and the Court would not be called upon to make a finding) to that effect. Thus, again, it is submitted that the proviso identified by Meagher JA in Oneflare does not apply in this case. Determination 1. I do not consider it necessary (or appropriate at this level of the judicial hierarchy) here to entertain in any detail the point of principle sought to be raised as to whether the decision in Oneflare is a complete statement of principles (much less the suggestion that it may be incorrect). 2. Suffice it to note that there is no doubt that the rule is one of procedural fairness or "fair dealing". There is also no doubt that the rule is not one that obliges the Court to accept evidence that has not been challenged (say, where the evidence is inherently illogical or unreliable) or which prevents the court from rejecting such evidence. Alternately, Oneflare proviso is not here satisfied 1. Alternatively, Konstructions says that even if the Oneflare proviso to which the Sayour Parties refer is a complete statement of principle, then a very close examination of the circumstances of the case is required and that the appropriate findings in this case to be made are that: the pleadings were ambivalent as to any allegation of fabrication; the pleadings were not articulated with the sufficiency required in a fraud case; the Sayour Parties expressly disavowed any reliance on fraud or dishonesty during the opening (see at T 261.36ff); neither Mr Gav was nor Mr Vamvakaris was not cross-examined on conversations that provided indirect corroboration of Mr Kanj's evidence; Mr Kanj was not cross-examined on this state of mind at the time he submitted the invoice and received payment of the events leading up to it; Mr Kanj's state of mind at the time he was joined to proceedings or thereafter was irrelevant; and it was not suggested that relevant conversations with Jamil or others did not take place. 2. Further, and by way of contrast to the present case, it is said that on the facts in Oneflare: there were competing accounts of a specified conversation in affidavits that was central to the dispute which put the party on the relevant notice; Counsel did not raise during the course of the trial that credit issues had not been apparent or unexpected or that the primary judge should not entertain them (see at [38]); and the affidavit evidence exchanged before the hearing, the parties' opening statements and the cross-examination of each of the two witnesses in question made it plain that the truthfulness, not merely the reliability, of their evidence was challenged. It is noted that in Oneflare the following finding was made (see at [45]): 45. The affidavit evidence exchanged before the hearing, the parties' opening statements and the cross-examination of each of Mr Dong and Mr Lim made plain that the truthfulness, not merely the reliability, of their evidence on several matters was challenged. Those matters included what was said at the first meeting, their knowledge of link building and the implementation of Oneflare's link building strategy. 1. Konstructions thus submits that "unqualified" reliance by the Sayour Parties on the proviso contained in cases such as Oneflare is misplaced. 2. It is noted that there has been no allegation in the pleadings or in cross-examination of collusion between Mr Deiri, Mr Kanj, Mr Vamvakaris, Mr Gav or Mr Zafiropoulos. In this regard, reference is made to Brown v Tavern Operator Pty Ltd (2018) 98 NSWLR 586; [2018] NSWSC 1290 and it is submitted that, without putting it to the witnesses, collusion between witnesses cannot be advanced in final address and that the Sayour Parties cannot explain away the independent corroboration of the basic sequence of events. It is said that the probability that each witness is mistaken or wrong about his recollection is substantially reduced. 3. Konstructions points to two particular incidents (that are not directly referable to Mr Kanj and on which its defence does not directly rely), which it is said demonstrate the problems of the failure to cross examine. 4. First, the November/December 2015 conversations between Mr Zafiropoulos and Mr Gav. It is noted that Mr Zafiropoulos and Mr Deiri depose to a series of conversations with Mr Gav in 2015: the first, in about November 2015 between Mr Zafiropoulos and Mr Gav, in which Mr Zafiropoulos asked about being paid his site assistance fee (which Mr Zafiropoulos recalls, but Mr Gav does not); the second (to which Mr Zafiropoulos was not a party but which it is said it must have taken place for the following conversation to have occurred) between Mr Gav and Mr Deiri (which Mr Gav did not recall, but Mr Deiri did); the third, when Mr Gav telephoned Mr Zafiropoulos and reported his conversation with Mr Deiri (which Mr Gav did not recall, but Mr Zafiropoulos did). Thus, it is said that Mr Deiri corroborates Mr Zafiropoulos, through Mr Gav. Konstructions contends that this series of conversations is corroborative of the occurrence of the September 2015 conversation between Mr Deiri and Jamil. 5. Following the above, Konstructions says that it was never put to Mr Zafiropoulos or Mr Deiri that no such conversation took place in November to December 2015; and that the question (at T 1027.24-26) is not sufficient to address the occurrence of these conversations between Mr Zafiropoulos and Mr Gav, Mr Gav and Mr Deiri and then Mr Gav and Mr Zafiropoulos. Konstructions submits that it would be accepted that there was a conversation in about November or December 2015 as deposed by Mr Zafiropoulos with Mr Gav and Mr Deiri with Mr Gav (albeit that Mr Gav did not recall it, while the others did). It is said that the discrepancies between Mr Zafiropoulos, Mr Gav and Mr Deiri tell strongly against collusion between the witnesses. It is said that, if there were collusion between witnesses, one would not expect the variations in what was recounted and that the existence of the variations makes the corroborative effect of the consistencies of the accounts all the stronger. 6. Konstructions says that the Sayour Parties fail to address the point that, when Mr Gav spoke to Mr Deiri in 2017, Mr Deiri advised Mr Gav he already knew who Mr Zafiropoulos was. It is said that this also has the tendency to corroborate the evidence of both Mr Deiri and Mr Zafiropoulos that they already had contact through Mr Gav earlier in 2015. 7. Second, Konstructions refers to the issue of Mr Deiri's knowledge of the valuation amount as at 30 September 2015. Mr Deiri gave evidence that, by the time he had his last meeting with Jamil, he was aware of the valuation amount. He thought he had "draft numbers" before he received the final report. Mr Deiri said he discussed the figures with Mr Vamvakaris. 8. It will be recalled (see at [561] above) that the retainer with LandMark White was 28 August 2015. After that, there was a request for further information. A site inspection took place on 28 September 2015 (see at [564] above). It is said that conversations would have taken place between Mr Wiltshire and Mr Vamvakaris. Konstructions says it was possible that Mr Wiltshire provided a draft figure in conversations and notes his evidence that he has done so on other occasions, despite any constraint in the letter of engagement. 9. Meanwhile, Mr Vamvakaris' evidence was that the final version of the report came out in late September or early October 2015, and that he had the report before the time Jamil died. This was challenged in cross-examination and Mr Vamvakaris rejected that proposition. Konstructions says that no evidence was adduced by the Sayour Parties to demonstrate that Mr Vamvakaris could not have had the report before Jamil died. It is further noted that Mr Vamvakaris said he had the report before he prepared the Development Management Agreement. Determination 1. Oneflare concerned a contract for "search engine optimisation" for the plaintiff's website. At issue before the trial judge was whether the defendant was instructed to employ an "aggressive" strategy; and whether the plaintiff was wholly relying on the defendant for advice, with no real understanding of the nature of the strategies involved and possible penalties that might be visited on the plaintiffs for the use of such strategies. The primary judge made dishonesty findings concerning the plaintiff's witnesses. On appeal those findings were put in issue on the basis that procedural fairness was not accorded to the two witnesses. Specifically, it was said for the plaintiff that those witnesses had not been challenged or put on sufficient notice of the allegations of dishonesty such that they could proffer their own explanations in response to the allegations (so breaching the rule in Browne v Dunn). 2. Meagher JA, with whom Gleeson and Leeming JJA agreed, held (see at [45]-[57]) that, in that instance, no breach of the rule in Browne v Dunn had occurred because the plaintiff had been put on notice through the exchange of affidavit evidence before the hearing, the parties' opening statements, and the cross-examination of the witnesses concerned, that it was the truthfulness, not merely the reliability, of the witnesses' evidence that was being challenged. His Honour noted that (at [40]) that: 40. …Once it has been made clear that a witness's evidence to a particular effect on a given subject should not be accepted as truthful, the rule does not ordinarily require that it then be put to the witness in relation to each answer to that effect on that subject that the answer is untrue. The rule is a practical one designed to ensure procedural fairness from the perspective of the witness and the party calling the witness. 1. In the present case, Konstructions (as does Zapphire and each of the Deiri Parties) seeks to rely on the rule in Browne v Dunn to preclude findings of fabrication being made about the evidence of Mr Kanj and Mr Zafiropoulos, especially where that evidence may affect findings concerning the truthfulness (as opposed to only the reliability) of Mr Deiri, Mr Vamvakaris, and Mr Gav. They say that it was not put to any of Mr Deiri, Mr Vamvakaris, or Mr Gav that his evidence about the site identification and management fees was fabricated, or that he had colluded with Mr Kanj and Mr Zafiropoulos to give false accounts. Without having been challenged on these points, the Deiri Parties, Konstructions and Zapphire say that it is now impermissible for the Sayour Parties to allege that the evidence given about the site identification and management fees was a fabrication; rather that the (unchallenged) accounts of Mr Deiri, Mr Vamvakaris and Mr Gav should be viewed as corroborative of Mr Kanj and Mr Zafiropoulos' accounts. 2. In the present case, while there was a dispute in the pleadings and affidavit evidence as to the purposes of the payments of moneys to Konstructions and Zapphire and it was denied that the payments were legitimate, I accept there was no positive pleading or allegation that the arrangements for the payments were shams or had been fabricated (see, for example, defence to third cross-claim filed 5 September 2019 at [44]-[46]). 3. In opening submissions, the Sayour Parties noted that Konstructions and Zapphire had pleaded that they had legitimate contracts for the payments (T 63.32ff). When the issue of the payments was raised during the reading of the evidence and the evidentiary tenders the Sayour Parties discovered that their case was that the payments were a sham (T 261.36ff). 4. I accept that denial in the pleading that the contracts were "legitimate" must have put the relevant parties on notice that the legitimacy of the arrangements underlying the impugned payments was in issue. However, no allegation was made (or is now made as I understand it) as to collusion between witnesses to give false accounts. 5. The line of questioning sought to be put to Mr Deiri (and which I disallowed) (was as to whether the "site identification fees" were "cooked up" to disguise payments to Mr Ibrahim (or for his benefit) (see T 1029ff). 6. I accept that the rule in Browne v Dunn prevents the submission now being put (and that findings should not here be made) that the alleged agreements for the impugned payments were "shams", in the sense of a fraudulent attempt to extract money known not to be the subject of a legitimate claim. 7. However, it does not follow from this that the Sayour Parties cannot argue that it should not be found, on the whole of the evidence, that there was no binding agreement obliging the making of the payments in the amounts claimed (even if Mr Kanj and Mr Zafiropoulos genuinely considered themselves entitled to those amounts). 8. In that regard, the two examples relied upon by Konstructions (see above) seem to me not to take the matter very far. All that the conversations to which Mr Gav and Mr Vamvakaris depose corroborate is that Mr Deiri was on notice of a claim of some kind to site identification fees of the like. Quite how it is suggested that Mr Deiri knew of the person making the claim (when there is no evidence that he was told this at any point prior to the conversation with Mr Gav well after the relevant events is unexplained. 9. As to the evidence of Mr Vamvakaris and whether the valuation figure was ever made known to Jamil (and hence could ever have been conveyed by Jamil to Mr Deiri in the so-called "deathbed" conversation) this is another point, which I consider in due course. 10. Suffice it here to note that, if allegations of sham or fraud or collusion of evidence are not pressed, then I see no unfairness in the cross-examination of Mr Kanj or any of the other witnesses on the issue of the impugned payments. "Glaring Improbability" or "inherently illogical" and Browne v Dunn 1. During the course of argument, there was also argument as to whether the rule in Browne v Dunn was one that could be dispensed with in the event that the evidence of the witness was "glaringly improbable". 2. Konstructions makes the following submissions on this point: the claimant has previously disavowed any suggestion that the agreements between Mr Kanj and Jamil were a sham; in this case, there was a clear forensic decision not to cross examine on many of the events, conversations and observations described by Mr Kanj, and several other witnesses (this, it is said, was made in the context of disavowing any case that the transactions were a sham); there were (it is said) numerous failures to challenge these witnesses; in the ordinary course, the litigant is bound by those forensic decisions; if there is an exception to the rule in Browne v Dunn based on "glaring improbability" or inherent illogicality then the counter argument is that if there is any possibility that the witness' evidence could be correct, then the witness must be challenged on that matter. 3. Konstructions submits that, in all of the circumstances, the arrangements reached with Jamil described by Mr Kanj are entirely possible when one takes the other evidence (including corroborative evidence from other witnesses) into account. It says that if this finding is made, then the rule in Browne v Dunn should have been discharged and was not; if the witness is not challenged, then the adverse finding is not available. 4. In this regard, Konstructions says that "glaring improbability" or inherent illogicality is a very high state of satisfaction, and that it probably requires the assessment of evidence along the lines required in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. It is noted that it is an imprecise concept, and it needs to be assessed against all of the evidence, but in particular against the evidence given by the witness and any corroborative witnesses. Konstructions says it is difficult to make such an assessment unless the primary and corroborative witnesses have been challenged on the conversations, events and observations described by them. Konstructions emphasises (as adverted to above) that the requirement to challenge the witness is properly a matter of procedural fairness. 5. Furthermore, it is submitted that any exception to the rule in Browne v Dunn based on inherent improbability needs to be assessed with caution. Konstructions submits that the adverse findings against it cannot be sustained given the failure of the claimant to cross examine Mr Kanj and other relevant corroborative witnesses on many of the primary conversations, events and observations deposed to in their affidavits. Determination 1. It is not useful here to explore the question as to the glaring improbability or inherent illogicality or otherwise about the agreements said to have been reached with Jamil (since I do not here make any findings of sham). I consider in due course the aspects of the evidence that make entering into such agreements inherently implausible to my mind (not least the suggestion that Mr Kanj would be paid a sum of over $7 million for the "assistance" or work he provided or to compensate him for not being able to proceed in a joint venture that on any view would seem to have been well beyond his skill set at the time). Suffice it simply to note that persons not uncommonly enter into glaringly uncommercial or objectively improvident or surprising agreements. The fact that such an agreement might show abysmal commercial judgment on Jamil's part (or otherwise) is not here to the point (though such matters are relevant when considering the claims made for recovery of those amounts as moneys had and received – which I consider in due course). 2. It is convenient now to deal seriatim with various of the specific factual points, inferences and/or the like. Consideration for moneys paid to Mr Kanj and his state of mind 1. Insofar as the Sayour Parties submit that Mr Kanj did no work at all for the moneys agreed to be or paid to him, Konstructions says that should be rejected. It is noted that Mr Kanj gave evidence that he did work for Jamil and that Mr Kanj was not challenged about whether he did work at all (and, instead, he was only challenged on whether that work was of commensurate value to the amount he was paid). 2. Konstructions submit that the failure to challenge the performance of any work at all in cross-examination was an acceptance of that evidence and that Konstructions was entitled to proceed with the case that the Sayour Parties accepted that work was performed, but that the issue was whether it was disproportionate to the amount received. It is submitted that it would be in error for a finding to be made that Mr Kanj did not perform any work for Jamil between 2012 and August 2013, given the failure to cross examine on the topic. 3. It is also submitted that this also affects the assessment of the question that was put that Mr Kanj "had made it all up". It is said that that question was directed in part at Mr Kanj's assertion that he thought the amount was commensurate with the work he performed, not that he did not do any work. It is said that it was an insufficient challenge to Mr Kanj and, again, that Konstructions was entitled to proceed on the basis the Sayour Parties accepted that he did perform work for Jamil. 4. Furthermore, Mr Kanj says Jamil nominated $7.2 million but he does not know what Jamil was thinking. It is said that Mr Kanj was entitled to accept that amount, even though it was a compromise on the figure he thought he would be entitled to had the previous arrangement proceeded; and that Mr Kanj does not have to explain any alleged coincidence between that event and events that occurred some years later. It is said that the figure Jamil offered was the one Mr Kanj was paid. 5. More specifically, it is also submitted that the Sayour Parties disavowed a sham transaction during a direct question during the opening; and that they did not cross examine about Mr Kanj's state of mind at the time he submitted the invoice and the time he received payment. It is said that this is the relevant issue if the allegation is going to be made that the transaction was a "sham" or a fabrication. It is submitted that to suggest that the test is the state of mind of the witness at the time of being joined to proceedings or any time thereafter is incorrect. 6. The Sayour parties say that , insofar as Konstructions submits that Mr Kanj was not cross-examined as to his entitlement to payment, or the reasonableness of the amount Konstructions was paid relative to the work he performed for Jamil (and that consequently Combined Projects Arncliffe cannot argue that Mr Kanj took the payment from Combined Projects Arncliffe as a volunteer), this is not an accurate reflection of Mr Kanj's cross-examination. It is noted that Mr Kanj was directly asked whether he was serious in telling the Court that Jamil had promised him $7.2 million plus GST for the work he had supposedly performed (see, particularlym, at T 1287.21-24) and it was put to him that his whole story about the arrangement with Jamil was a complete fiction (see T 1287.37-39). Similarly, the Sayour Parties say that Konstructions' contention that Combined Projects Arncliffe has disavowed any suggestion that the agreements between Kanj and Jamil were a sham ought to be rejected. Finding 1. I make no finding that Mr Kanj did not provide any assistance at all to Jamil between 2012 and August 2013. I simply note that the monetary value of any such assistance as Mr Kanj did give Jamil in relation to the Arncliffe Site is unable here to be assessed and I am not persuaded that the figure of $7.2million was one that is likely to have been known to Jamil (or put by him to Mr Kanj) back in 2012 or 2013. Otherwise, I deal with the issues in relation to the moneys paid to Mr Kanj and Konstructions in due course. Extent of work performance cf discovery of Arncliffe Site 1. Insofar as Konstructions further submitted that the tenor of the questioning put to Mr Kanj appeared to be in relation to the extent of the work performed and not with respect to the discovery of the Arncliffe Site, the Sayour Parties say that Mr Kanj did not need to be cross-examined on this topic since his defence only pleads that he did work and does not make any reference to discovering the Arncliffe Site (see at [14A]-[14S], [20]). It is said that, given he did not plead he discovered the Arncliffe Site, there was no need to cross-examine him on that topic. Finding 1. In fact Mr Kanj made quite clear in his evidence that he disavowed any suggestion that he had discovered the Arncliffe Site so a failure to cross-examine him on this issue takes the matter nowhere. He admitted it. Mr Kanj's use of the moneys 1. As to the issue raised in the course of the hearing as to what Mr Kanj did with the money after he received it and the submission made that Mr Kanj's use of the proceeds that he received "tends to indicate that he was merely a channel for putting those funds in the hand of a third party", Konstructions' complaint is that these are extremely serious allegations to make and that this proposition was not put in cross-examination. 2. It is noted that Mr Kanj indicated that he was intending to go into business in relation to the Permaform product (as to which, see below), but that he took no further steps because of the dispute that had erupted. 3. Konstructions says that there was evidence that Mr Kanj made the payments to Pasloc Pty Ltd (Pasloc) but no evidence of it being funds directed to a third party. It is said that the suggestion that this occurred is mere speculation, which required actual proof of evidence; and that an alternative explanation is that this was just a poor business decision (which it says is not uncommon). As to the fact that Mr Kanj expressed surprise to discover that Pasloc had gone into liquidation (as to which, see below), Konstructions' position is that this is not remarkable since the liquidation had happened on 20 November 2019, shortly before Mr Kanj was called to give evidence. It is said that it is not insignificant that the liquidation occurred, not through the intervention of any "shadowy" third party, but the Deputy Commissioner of Taxation. Finding 1. I make no finding as to what use was made of the money received by Mr Kanj. (I simply comment that the fate of those moneys, if Mr Kanj's evidence is to be believed, amply reinforces my view that a joint venture of the kind that ultimately proceeded in relation to the Arncliffe Development would be likely to have been well beyond Mr Kanj's skill set or commercial acumen). $7.2 million figure 1. As to the proposition that the sum of $7.2 million allegedly discussed with Jamil is exactly half of the $14.4 million figure that Jamil nominated to Mr Deiri on 30 September 2015 and the suggestion that in order for that figure to be derived it had to be referable to the valuation, Konstructions says: first, that this allegation was never brought to the attention of Mr Kanj to give him the opportunity to answer it; and second, that the figure of $7.2 million is a fraction of the fee Mr Kanj had been working on to assist with the development (and that he gave evidence that it was about half of the $15 million fee he was working on). Finding 1. As to this complaint, I consider that Mr Kanj had ample opportunity to explain how he had reached the alleged agreement with Jamil as to the $7.2 million fee and his evidence went no higher than to say that Jamil had nominated that sum and he did not know what Jamil was thinking. As to how Mr Kanj had calculated that the development might result in a project of $15 million (half of which would be "about" $7.2, noting that half would in fact be $7.5 million), there was no evidence other than Mr Kanj's assertion to suggest that he had any considered basis for such a calculation at the time (and it seems to me inherently implausible that he did). Absence of documents and other evidence 1. As noted above regarding Jones v Dunkel and such inferences, the Sayour Parties emphasised that Mr Kanj cannot produce a single document evidencing any work or services performed by him on behalf of (or at the direction) of Jamil, or any agreement with Jamil in relation to the payment to Konstructions of the $7.2 million plus GST. 2. It will be recalled that Konstructions submits that it cannot produce documentation because Mr Kanj's computer was stolen from his car prior to these proceedings. 3. As adverted to above, as to the absence of documentation, Konstructions points to Mr Kanj's evidence that he gave all his documents to Jamil. Again, it is said that he was not cross-examined on this; and that Moustafa gave evidence that before he died, Jamil took large numbers of files from the office. 4. Relevantly, Konstructions also submits that, because Mr Kanj was not specifically cross-examined regarding the alleged theft, he was denied the opportunity to submit further evidence on this and they are entitled to "cut their case accordingly". More particularly, it is said that, to suggest in submissions that his evidence on this point should be very much doubted, in the absence of cross examination of Mr Kanj on the point, "verges on the improper". It is said that, by failing to cross-examine on this evidence, the Sayour Parties are taken to have accepted that evidence, and Konstructions is then capable of proceeding in the trial on the basis that the evidence is accepted. It is said that had it been challenged Mr Kanj could have called evidence in reply, which he did not, because he did not need to do so. It is said that for the Sayour Parties then to raise that direct issue in submissions amounts to a change in position which should not be permitted. 5. Furthermore, as to the proposition that there is a remarkable coincidence arising from the fact that Mr Kanj could not produce any documents, Mr Vamvakaris could not produce the original of the Development Management Agreement and that Mr Zafiropoulos had lost his documents, it is similarly said that this was a significant forensic matter that should have been put to all witnesses in cross-examination but it was not. 6. Further, it is noted that Mr Kanj was not cross examined on his statement that he provided the documents he had to Jamil; and it is noted that Moustafa gave evidence that Jamil had taken documents before his death. Konstructions says that the submission of coincidence is not made good (and it also notes that there was no coincidence notice served and no suggestion of collusion). 7. To this, the Sayour Parties say that Mr Kanj was sufficiently cross examined on this issue. They say that Mr Kanj having lost his computer does not answer the question of whether he did the work or not; it simply means that other than his bare assertion, there is no way of evaluating whether he did the work or not. 8. It is submitted that these are all matters for Mr Kanj to prove, and not for the Sayour Parties to disprove. It is said that even if Mr Kanj's computer was stolen (which the Sayour Parties very much doubt), that does not amount to corroboration of Mr Kanj's account as to the work he supposedly performed for Jamil, and nor does the alleged theft of his computer provide a sufficient or satisfactory explanation for Mr Kanj's inability to provide any documentary evidence whatsoever confirming that he had a business relationship with Jamil, or that he provided any services to Jamil, or that he struck a deal with Jamil to the effect that Mr Deiri would pay him $7.2m plus GST for those supposed services. Finding 1. I have considered this issue already above. Mr Zafiropoulos and Zapphire 1. Insofar as Zapphire has complained that Mr Zafiropoulos was not questioned on some matters concerning whether the First Sake Restaurant meeting happened at all, the Sayour Parties say that it was not necessary to cross-examine Mr Zafiropoulos on every collateral fact. It is said that it was sufficiently put to Mr Zafiropoulos that his story was untrue and that his version of events could not have happened as he alleged. 2. The Sayour Parties say that Mr Zafiropoulos was not a witness of credit and that his evidence is inherently incredible (as to which, see below). It is also noted that Mr Zafiropoulos' general credit and the truthfulness of his account were squarely put in question. In particular, it is noted that, inter alia, Mr Zafiropoulous was directly questioned in relation to the research he supposedly performed (see, for example, T 1350-1353; T 1366.27-50), when the alleged First Sake Restaurant meeting took place (see, for example, at T 1369.21-22), why Bronson Management Pty Ltd (Bronson Management) rendered a tax invoice for work that he asserts he did (see T 1383-1384), and that there was no agreement between him and Jamil (see, particularly, at T 1389.35-38). It is said that there was no doubt that Sayour Holdings' case was based on the premise that both Mr Kanj's and Mr Zafiropoulous' accounts in relation to the site fees and related matters were fabrications. Finding 1. I accept that the Sayour Parties' case that there was not a legitimate agreement in relation to the payment made to Zapphire was squarely and sufficiently put to Mr Zafiropoulos and simply repeat my above conclusions in relation to the lack of documentary evidence. Mr Deiri and Deiri Parties re Stage 2 Construction Contract 1. The Deiri Parties submitted that it was not put to Mr Deiri that he knew, at the time of signing the Stage 2 Construction Contract on 15 May 2013 (see at [357] above), that Moustafa did not know or approve of the increases in the construction cost (and that the Sayour Parties therefore could not make the submission that he was so aware). 2. The Sayour Parties in response to this say that it was sufficiently put to Mr Deiri that he knew that Moustafa did not know of the price increase. It is also noted that Mr Deiri himself said that Jamil had appointed himself as development manager (see T 882.15-16). 3. Furthermore, the Sayour Parties say that the fact Moustafa that did not know or approve the increase in the price in the Stage 2 Construction Contract was expressly pleaded by Plaza (see the Fifth Broadway Cross-claim at [433] and [435]) and denied by the Deiri Parties. It is noted that it was expressly pleaded that the contract was void for want of authority. 4. The Sayour Parties note that it was also pleaded that this was a consequence of bribery; and that Mr Deiri and his alter egos are expressly charged with this corruption (in [534] of the Fifth Broadway Cross-claim). It is said that, even if the cross examination did not proceed for a fifth day so as to include every possible permutation of this charge, the allegation was nonetheless sufficiently put to Mr Deiri through the pleading or affidavits (again, see Oneflare at [42]). 5. In any event, the Sayour Parties say that Mr Deiri was cross-examined at some length about these matters, in terms that leave no room for misapprehension that it was being put to him that he ought to have disclosed to Moustafa this fact that he knew Moustafa did not know, because he had been told in emails from Jamil that he had "lied" to his father and that his father was ignorant of that matter. It is noted that an extract from those emails stands at the very head of Plaza's opening submissions. Hence the Browne v Dunn criticism in this respect is said to be misplaced. 6. It is also noted that the Deiri Parties led no evidence about whether Mr Deiri knew (or did not know) of this matter. 7. In addition to the preceding, various submissions concerning adverse credibility findings (as to which, see below) trespass onto issues concerning Browne v Dunn. I have in mind those submissions, and it is unnecessary here to recite them. Finding 1. I consider that the pleadings adequately put in issues that the Stage 2 Construction Contract was not duly authorised. Having regard to the pleadings and the lengthy cross-examination of Mr Deiri I consider that the Brown v Dunn complaint on this issue is misplaced. Moustafa and Sayour Parties 1. Finally, the Sayour Parties say that it was not put to Moustafa that his denial of any knowledge about the Westpac #238 Account was, evidently a strategy to avoid the fact that much of the money Plaza here claims that it never received was paid into that account (which was solely in Moustafa's name) (about which a Browne v Dunn point is here taken). Finding 1. I see no unfairness in the submission here made. Moustafa can have been under no misapprehension that the issue of payments into and out of the respective accounts, and his knowledge of the respective accounts, was in play. Indeed the Sayour Parties' case involved a comprehensive examination of payments in and due of the respective accounts. Concessions by implication from cross-examination 1. Related to the above issues concerning Browne v Dunn and Oneflare, as part of its complaint as to the submissions made by the Sayour Parties in light of the extent or nature of cross-examination on particular issues, Konstructions submits that there have been a number of concessions made by implication arising from the cross-examination of Mr Kanj. Mr Kanj and Konstructions 1. As noted above, it is said by Konstructions that, although the Sayour Parties have positively asserted there was no agreement between Jamil and Mr Kanj which obliged the making of the impugned payments to Konstructions, it was not suggested in cross-examination that Mr Kanj did not provide any assistance to Jamil (as Mr Kanj had attested in his affidavit and in his oral evidence). It is said that the highest the cross-examination reached was that the assistance was minimal and was disproportionate to the payment he received. 2. Following the above, Konstructions submits that, by the form of the questioning, the cross-examiner implicitly accepted that (some) assistance was provided (and it is said that the same implicit concession is made in the Sayour Parties' submissions). Konstructions contends that, for the Sayour Parties now to depart from this, is a change in the case and that it cannot now be argued that such consideration was not valuable. Konstructions maintains that establishing that assistance was provided by Mr Kanj establishes one of the elements that grounded the case here made (namely, that consideration was provided by Mr Kanj to Jamil). 3. Konstructions says that, if the Sayour Parties wished to challenge the issue of consideration for the alleged agreement, then they had the obligation to do so in a manner that would provide the witness with an opportunity to respond thereto. It is said that it is not addressed, "simply by alleging in a rolled up assertion that the arrangement was a fabrication". 4. Insofar as it was suggested in cross examination that the amount of work performed did not justify the fee, Konstructions says that this amounts to implicit acceptance that assistance was given. It is noted that Mr Kanj's evidence was that the arrangement was reached not only for the work performed but also for the promise of proceeding to a development on a profitable contract with Jamil and it is said that Jamil's change of plan deprived him of that opportunity. 5. Konstructions maintains that the remaining element of the agreement is whether Jamil made any promise of payment to Mr Kanj; and it is said that Mr Kanj gave unchallenged evidence that he did; and that there is no direct evidence to the contrary as to the existence of the agreement. 6. Konstructions also here points to the evidence of witnesses who gave unchallenged evidence that, as at 2018, they were aware of the fact that Mr Zafiropoulos asserted an entitlement to payments (those witnesses said to be Mr Gav; Mr Vamvakaris; and Mr Deiri). It says that Mr Deiri has no incentive to lie about the conversation between Jamil and Mr Deiri regarding the agreements between Jamil and Mr Zafiropoulos or Jamil and Mr Kanj (since Mr Deiri was entitled to surplus profits from the development on either an equal basis, as asserted by the Sayour interests, or as to a 97% share, as asserted the Deiri interests). 7. It is said that the honouring of these payments incurred by Jamil is directly inconsistent with Mr Deiri's financial interests; that (in broad terms) were he to have refused to pay on his agreement with Jamil then he would be financially better off to the extent of $7.5 million (on an equal basis) or $14,551,500 (on the basis of a 97% share, again, as asserted by the Deiri interests). Konstructions says that Mr Deiri's version being against his own financial self-interest is said to be a highly important factor that supports the existence of the conversation he said he had with Jamil. 8. Meanwhile, the Sayour Parties maintain to the contrary that Mr Deiri's honouring of the payments was not against his financial interests, in that Mr Deiri at the same time extracted the Development Management Fee. 9. Konstructions says that there is no evidence (and no suggestion or question posed in cross-examination) that any payment made to Mr Kanj or Mr Zafiropoulos was meant for other third parties or was to be returned to Mr Deiri so as to negate any argument that he had no financial interest in the outcome (and it is said that it is too late now to raise this issue against Mr Kanj in submissions). 10. Furthermore, Konstructions submits that any variations in the conversations between Mr Kanj and Mr Deiri and Mr Kanj and Mr Gav are of no particular moment. It says that they are the sort of variations that occur of events that occurred months ago between witnesses who have their own recollections and perceptions and are endeavouring to tell the truth. As such, it is submitted that the knowledge of Jamil to which Mr Deiri has given evidence, indirectly corroborates the evidence of Mr Zafiropoulos. Finding 1. I have considered much of the above issues already. Those observations are sufficient for present purposes. I consider the case for and against Mr Kanj and his interests in due course. Deferred rulings 1. Finally, there were two matters on which I ruled during the course of the hearing and said I would provide reasons in my final judgment. These are those matters (and reasons). 2. First, I disallowed cross-examination on the topic of what were colloquially referred to as the "cooked up" allegations (see for example at T 1031) (i.e., that the Site Identification Fee(s) had been "cooked up" by Mr Deiri; and by inference, by others such as Mr Kanj and Mr Zafiropoulos) "in order to disguise" payments going to the benefit of Mr Fadi Ibrahim (that particular line of questioning focussing on reported payments of a $2 million surety for bail in favour of Mr Fadi Ibrahim). 3. There was vehement objection from many about this line of questioning (relevantly, from the Deiri interests of Konstructions and Zapphire's witnesses) and much debate as to whether it raised unpleaded allegations of sham (disavowed by the Sayour Parties, who draw a distinction between recent inventions and shams – their position being that there was no agreement and hence could be no sham – see at T 1033). Earlier objection had been raised on the same issue in relation to debate as to the use of the funds received by Konstructions (see at T 260/261) as to whether this was a real transaction. Written submissions were provided on the issue (the Sayour Parties relying on Simon v NRMA Insurance Ltd [1991] NSWCA 247. The debate was as to whether the line of questioning could be supported as relevant to issues going to unpleaded fraud (i.e., beyond a sham argument – see at T 1035). 4. It is not necessary here to recount or summarise those submissions. Ultimately, I disallowed questions on the "cooked up" issue. I did so because I considered that the Sayour Parties' allegation was that there was no agreement (as had been alleged against by the relevant cross-defendants) not that there was an agreement but it was a sham. I considered that an allegation that the parties had "cooked up" or fabricated such agreement, would amount to an allegation of fraud, where none was pleaded. That remains my view. Therefore, in the absence of an allegation of fraud, or of a concoction between the relevant parties' arrangements in relation to the impugned payments in order to disguise other payments, I disallowed questioning on that topic. 5. The second matter on which I said I would provide reasons in my final judgment related to questioning sought to be put by the Sayour Parties to Mr Deiri in relation to two file notes that had been produced on subpoena by HWLE – file notes of 27 September 2011 and around that time. 6. The Sayour Parties sought to test the reliance placed by the Deiri interests on other (business) records from the subpoenaed HWLE file by reference to two file notes that had been produced on subpoena from the file. The difficulty I had with those (and particularly the first of those) file notes was that it was not clear on the fact of the file note(s) who had made the note or what was there recorded. 7. In this regard, reliance was placed by the Deiri Parties on the reasoning of Vickery J in Hodgson v Amcor; Amcor v Barnes [2012] VSC 94 (Hodgson). It was submitted that, for similar reasons, the questioning should not be permitted. Ultimately, I accepted that submission. 8. The first file note seemed to be relied upon to test the proposition that Moustafa was understood to be commercially naïve ("simple and not technical"). 9. The second file note, which appeared to have two unidentified authors was relied upon to test the proposition that there had been an earlier conference on 27 September 2011 attended by Jamil with the lawyers and /or accountant. Insofar as the second note recorded words spoken by Mr Parras, the accountant, the Deiri Parties' position was that there was no evidence that the accountant (Mr Parras) had personal knowledge of the matters there set out and had the note was not a business record within the relevant exception (see s 69(2)(a) of the Evidence Act 1995 (NSW) ("Evidence Act")). 10. Complaint was made (see T 1059.38) there it was not clear on the face of the second file note whether it recorded a conference with the client or a conference between solicitors to discuss the transaction and to what is related. It was submitted that it could simply be "somebody's jottings" (see T 1059.44) adopting the terminology used by Vickery J. Complaint was made that the danger of prejudice to Mr Deiri being cross-examined on such a document substantially outweighed the probative value of the document and that it should be rejected pursuant to s 135 of the Evidence Act (reliance again being placed on what was said by Vickery J in Hodgson). 11. Although I was initially inclined to permit cross-examination on the second of the two file notes, ultimately I formed the view that this should be excluded pursuant to s 135 of the Evidence Act for the reasons put forward by the Deiri Parties. Insofar as the second file note was being relied upon to test the likelihood that Mr Deiri attended a meeting and had a conversation earlier on 27 September 2011 to give instructions for preparation for that meeting, I consider that its probation force is substantially outweighed by the danger of prejudice to the witness (in terms of confusion and the like) (see T 1060.) Credibility of witnesses 1. I now turn to consider the credibility of various witnesses, including consideration of submissions that adverse credit findings should be made. 2. At the outset, I note (and accept) the emphasis placed by the Sayour Parties on the well-recognised need for careful scrutiny of evidence in respect of transactions depending on conversations with a deceased person. 3. In this regard, the Sayour Parties referred to the observations of Hallen J in Blendell v Byrne; The Estate of Noeline Joan Blendell [2019] NSWSC 583 (Blendell v Byrne) (at [189]), his Honour there citing Plunkett v Bull (1915) 19 CLR 544 at 548-9; [1915] HCA 14 per Isaacs J (Plunkett v Bull) and noting that, though there be no absolute legal requirement for it, the Court should look for some corroboration of such evidence (his Honour citing Re Hodgson (1886) 31 Ch D 177; [1881-85] All ER Rep 931 at 931; Day v Couch [2000] NSWSC 230; Weeks v Hrubala [2008] NSWSC 162 at [20] per Young CJ in Eq). Hallen J also referred in Blendell v Byrne (at [190]-[191]) to statements made by McLelland CJ in Eq in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 (see at 789) as to the considerable caution with which uncorroborated evidence of claims based on communications with a deceased person will be treated, and by Whelan J in Webb v Ryan [2012] VSC 377 (at [22]) as to the difficulties in assessing evidence concerning things allegedly said by someone who is dead. 4. In their submissions, the Deiri Parties say that the authorities summarised in the relevant passage of Blendell v Byrne are exclusively concerned with the situation in which a plaintiff's case depends upon conversations that have taken place with a deceased person (noting that all but one of the authorities cited arose in the context of estate litigation, in which, it is said, the intent of the deceased necessarily plays a central and decisive role and necessarily falls to be considered with the utmost of caution, not least because the deceased is not able to defend himself or herself). The Deiri Parties say that the situation is very different where it is a defendant that seeks to rely upon conversations with a person now deceased, on the basis that a defendant has little choice but to defend the litigation. It is said that the litigation is not of the defendant's making, and the defendant cannot help it if one of its key witnesses has passed away. The Deiri Parties maintain, in this regard, that their third cross-claim is in substance defensive in nature (as to which, see my summary of the claim at [56] above). 5. Further, insofar as the Sayour Parties place reliance on Plunkett v Bull, the Deiri Parties say that that case requires a nuanced approach than simply that of subjecting all evidence of conversations with a deceased person to careful scrutiny, referring to what was said by Isaacs J (see at 549). 6. The Deiri Parties say that a defendant's reliance upon conversations with a person who is now deceased does not require the application of any special or higher standard of proof or persuasion to the assessment of that evidence. 7. Pausing here, I do not understand the Sayour Parties to be submitting that a higher standard or proof or persuasion is required when assessing the evidence of conversations with deceased persons, be that in an estate litigation context or otherwise. Nor, however, do I consider the circumstance that it is a defendant (rather than a plaintiff) relying on that evidence to be of any great moment for present purposes. In that connection, I note that each of the parties is in the position of a cross-defendant to various of the cross-claims. The fact remains (unfortunate as it may be for a defendant forced to defend itself against allegations that turn on conversations with a deceased person) that careful scrutiny of the evidence is required for the very reason that the deceased is not here to give his or her account of the relevant events. 8. Further, where there is a lack of contemporaneous documentary evidence, it has been said (and, I accept) that the primary emphasis is ordinarily on objective factual surrounding material and the inherent commercial, and other, probabilities (see, for example, Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599 at [15] per Gleeson CJ, Gaudron, Kirby and Hayne JJ, with whom Callinan J agreed). 9. With that in mind, I turn to the submissions made as to the credibility of the various principal witnesses. Moustafa 1. The Deiri Parties submit that Moustafa was not a truthful witness. They say that he was frequently evasive, gave conflicting evidence, was argumentative and gave answers that were obviously dishonest. 2. More particularly, the Deiri Parties say that Moustafa gave dishonest evidence in relation to the following five topics. 3. First, that Moustafa's solicitor prepared and presented him with a blank contract for sale for the Broadway Site. It is said that this was a deliberate strategy to avoid the fact that the contract recorded a deposit of $400,000 on its front page which Plaza claims it never received. 4. Second, Moustafa's assertion that he had no knowledge of the Westpac #202 Account. It is noted that Moustafa repeated that evidence despite having signed the opening form for that account, large sums that could only have come from him having been put into that account, funds from that account having been used to pay for a variety of properties throughout 2009 (including the Broadway Site), having signed an accommodation notice on that account, having paid down his personal home loans with funds from that account and having declared the account on his tax returns. It is said that his motive for distancing himself, so to speak, from the Westpac #202 Account was again obvious: that much of the moneys Plaza now says it did not receive were paid into that account. 5. Third, Moustafa's assertion that all of the Powers of Attorney that Plaza gave to Jamil were only ever given for leasing purposes, and that his solicitor told him Jamil could not sign any cheques with them. It is noted that Moustafa gave that evidence despite the fact that the first two Powers of Attorney (as to which, see at [102]; [196] above) made no reference to leasing, despite the clear wording of the instruments showing leasing was an expansion of the powers and despite the contemporaneous material showing the true purpose of referring to leasing was to ensure Jamil was not impeded by the prohibition on encumbering real estate. The Deiri Parties make reference to the cross examination of Moustafa on this topic. 6. Fourth, Moustafa's claim that he did not know that Deicorp Constructions was making claims on CBA for payment. It is noted that he gave that evidence despite accepting that he knew the building was being built, and that CBA would not pay the builder without a request for payment. 7. Fifth, Moustafa's assertion that he never read any bank statements, never read any tax returns in his 45 years of lodging returns, never read the tax return for the financial year ending 2015 for the Sayour Family Trust (declaring over $12 million income in partnership distributions), never read the cash facility, never read the documents he was asked to sign when he deposited two cheques for $5 million in partnership distributions into the Westpac #238 Account in his name and never read the authority sent to the bank concerning signatures on the partnership account. The Deiri Parties say that this evidence amounts to Moustafa "never having read anything that did not suit his case". It is said that either this account of "blindly wandering through the world signing important documents without reading anything" is false, or his denial that he left the project to Jamil to run is false. 8. The Deiri Parties submit that, given the above, there should be a high degree of scepticism and wariness as to the acceptance of any of Moustafa's evidence, unless it is against interest or unless it is clearly corroborated by (and not merely consistent with) a contemporaneous document. 9. Further, and quite apart from the alleged dishonesty in his evidence, the Deiri Parties say that Moustafa was not a reliable witness and there cannot be confidence in the accuracy of the accounts he gave in his affidavits (again, at least not without clear corroborating documentary evidence). It is noted that Moustafa gave evidence which suggested he did not understand his own affidavits, referring to the transcript of the cross-examination by Senior Counsel for CBA (see, for example, at T 524) as to Moustafa's understanding of matters contained in his own affidavit (such as the reference to the affairs of Biomed being "complex"). 10. Similarly, it is said that when Moustafa's assertion that he did not understand the relevant parts of the approved terms and conditions was tested under cross-examination, he denied understanding basic words of English, some of which he used in his own affidavits. Moustafa's evidence in that regard was that he explained to another person what he wanted to say, and that person then put it into an affidavit, and Moustafa swore it. It is said that there evidently were differences between what the draftsperson wrote and what Moustafa intended. In these circumstances, it is submitted that one could not be confident that Moustafa actually understood what he deposes in his affidavits (nor, it follows, that the accounts given in them are accurate). 11. For its part, Konstructions similarly contends that great care should be taken in accepting aspects of Moustafa's evidence (unless corroborated by contemporaneous documentary evidence or by oral evidence of other persons who were present and involved in the relevant transactions at the time). Konstructions also points to the evidence in cross-examination (see above) that suggests that Moustafa could not be sure if his affidavits were correct and that he did not have his affidavit translated nor was there any use of interpreters. It is said that this is particularly important when Moustafa sets out the conversations he said he had with various people; and to the extent that there are any subtleties of expression that are evident from competing accounts of the same conversation. 12. Konstructions also submits that Moustafa's evidence is open to considerable doubt on several issues. It is said that Moustafa had a strong tendency to advocate his own position, rather than to answer questions; that he placed issues in dispute that are unarguably contrary to his position; and that he engaged in speculation. Konstructions says that Moustafa has a very strong belief in his own position; that he was apt to construe the events of the past through the prism of litigation; and that he demonstrated on several occasions that he was wrong but still did not display any doubt. It is said that he had an absolute certainty of his position on some issues despite other material to the contrary of it. 13. Konstructions also points to inconsistencies between Moustafa's evidence as to his perception of Jamil and his conduct vis̀-a-vis̀ Jamil in the context of the findings Konstructions seeks as to Jamil's authority (to which, see below). It submits that some of the inconsistencies in Moustafa's evidence are irreconcilable. 14. Konstructions says that, in weighing Moustafa's evidence, it should be noted that a central feature of his evidence is that Moustafa was concerned that he had been "robbed". It is said (and I accept the force of this submission) that this "infects his perception of all the activities to which he has given evidence, even when objectively, there was an explanation that extinguished any evidence of moral turpitude by another person". Finding 1. I accept that Moustafa's evidence as to matters such as the dates of conversations and the like was not wholly reliable (although, I would add, the same can be said of other witnesses, not least Mr Deiri). 2. Similarly, I accept that Moustafa's evidence as to his understanding of the words used in his own affidavits suggests that caution is needed before attaching weight to the manner in which he has there expressed himself (not to mention that the semantic differences may mean that what is set out is not his best recollection of events). Although, I must add that this not uncommon with witnesses whose first language is not English. 3. I also accept that, over the course of a lengthy cross-examination, there were occasions when Moustafa was argumentative and sought to advocate his own case. Further, there were aspects of his evidence that were not plausible (such as his evidence, to which he firmly adhered, that when he had signed the contract for sale of land in respect of the Broadway Site the cover sheet was blank – which to my mind, if correct, would mean that Moustafa showed almost blind trust in his legal adviser, and which I have great difficulty accepting in the absence of corroboration from the solicitor in question). 4. That said, I did not regard Moustafa as an evasive witness and I do not accept that a finding of dishonesty would here be appropriate to make. Rather, my observation of his evidence was that, on a number of matters, Moustafa had a fixed view of events and would not be shaken from that view, even when the evidence squarely pointed otherwise (such as the date on which the tender for the Stage 2 Construction Contract was signed). 5. True it is that, on Moustafa's account of events, Moustafa signed many (often important) documents (such as tax returns) without reading them and seems to have taken little interest in monitoring bank statements and the like. That is so despite accepting that he was careful with his money. 6. However, Moustafa's evidence that he left tax or financial matters to his accountants or advisers to deal with seemed to me to be not implausible, particularly given that English is not his first language. 7. Furthermore, his apparent stubbornness in accepting propositions put to him seemed to me more likely to be attributable to his personality and status within the family than to any lack of truthfulness. 8. That, however, is consistent with (and makes it more plausible) Moustafa being prepared to leave the day-to-day management of the Broadway Development to others. Most relevantly, to my mind, it makes it more plausible that Moustafa was prepared to leave Jamil to run things and him (Moustafa) being prepared to sign (and be bound by) documents put before him by Jamil and others (such as the Westpac #202 Account opening forms and the documents relating to the incorporation of Sayour Holdings), without a comprehensive (or, perhaps, any real) understanding of their contents. 9. I also accept CBA's submission to the effect that Moustafa's evidence appears to have been infected by his perception (and obviously strongly held view) that Mr Deiri has acted fraudulently in his dealings with him. No doubt it must also have been painful for him to discover, after Jamil's death, that (as seems undoubtedly the case) Jamil concealed things from him in relation to both the Broadway Development and the Arncliffe Development. 10. Overall, as I have said, I do not consider that the complaints here made as to Moustafa's evidence warrant any finding of dishonesty. I bear in mind that there is an important distinction to be drawn between not accepting a witness' evidence, or finding it implausible, and a finding of actual dishonesty (see Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 126 (Royal Guardian Mortgage Management)). However, I do place considerable caution on accepting Moustafa's recollection of events and conversations, influenced as they no doubt have been with hindsight and having regard to the caution in Watson v Foxman (1995) 49 NSWLR 315 at 318-319 per McLelland CJ in Eq (Watson v Foxman), as necessarily reliable accounts. Rather (and, as I do with the respective lay witnesses), I place greater weight on the contemporaneous documents, to the extent that there are any, in relation to particular events or conversations and I consider them against the background of the objective circumstances at the relevant times. Mr Deiri 1. I note that the Sayour Parties maintain that these proceedings turn largely on the credit and commercial probity of Mr Deiri. In this regard, the Sayour Parties say that: Mr Deiri knew that Jamil was signing cheques; Mr Deiri, by his own admission, had no view at the time that Jamil was doing this under power of attorney; Mr Deiri prepared or was in charge of preparing forged drawdown notices; Mr Deiri was party to Jamil's deception of Moustafa; Mr Deiri bribed Jamil; Mr Deiri was party to the misappropriation of Sayour family trust moneys into the project at Arncliffe; and Mr Deiri knew that Moustafa trusted him and cynically abused that confidence. The Sayour Parties accept that those allegations (and, particularly the allegations of forgery and bribery) are serious allegations, not lightly to be made, but stand by those allegations. Insofar as these submissions turn on the factual findings that are ultimately made, I will deal with them later in these reasons. For present purposes, I am only considering credibility findings in relation to Mr Deiri. 2. The Sayour Parties say that Mr Deiri was a "poor historian" and that his explanations of a large variety of transactions have been "thoroughly discredited", that he has failed to provide credible answers to charges of dishonesty and that his explanations have generally been self-serving and marked by a lack of candour in the giving of his evidence. The Sayour Parties point to the contrast between Mr Deiri's oral evidence, where he was unable to recall details on many matters (and to recall important aspects of conversations on which he relies when asked to set them out in his own words) with his affidavit evidence in which he set out the details of a number of conversations. By way of example, the Sayour Parties contrast Mr Deiri's recollection of alleged conversations in relation to the Arncliffe Agreement with what they say was his lack of accurate recall of procedures in his own office. 3. In particular, criticism was made by the Sayour Parties against Mr Deiri as to his evidence in respect of the preparation of accommodation notices, his evidence in relation to the procedure for signing cheques relating to the Broadway Development (similar criticism in this regard also being levelled by CBA) and his evidence in relation to the preparation of the Cheque Authorisation Alteration Instruction. It is convenient here briefly to consider the submissions, in this regard. 4. Plaza and the Sayour Parties say that the evidence of Mr Deiri and Ms Dahdal about the procedure for preparing and drawing cheques on the CBA Partnership Account conflicted on some points and submit that the evidence they gave (regarding the delivery of cheques to Jamil, the taking of a manila folder of cheques by Jamil from the office to be signed and then the return of the folder with signed cheques) was not persuasive. The Sayour Parties contend that any finding that Jamil was not taking away the manila folder, must seriously affect the credit of both Ms Dahdal and Mr Deiri. 5. It is noted that both Mr Deiri and Ms Dahdal were insistent that they could not identify the normal signature of Jamil (even in circumstances where Mr Deiri's signature appears in the same pen immediately next to Jamil's signature and where Ms Dahdal had witnessed both signatures – referring to Ex P at 63; Mr Deiri's evidence at T 989.30-45; and Ms Dahdal's evidence at T 1204.30-T 1205.20). 6. The Sayour Parties say that Mr Deiri gave, successively, two incorrect explanations for the signing of the early accommodation notices; and no explanation for the presence of Jamil signatures on accommodation notices nos 2, 3 and 4. 7. As to the Cheque Authorisation Alteration Instruction, for the reasons I explore in due course, the Sayour Parties say that it is not possible that it was otherwise than a "cut and paste" production. The Sayour Parties say that it is clear that Mr Deiri had access to, or some contact with, the Cheque Authorisation Alteration Instruction (since he emailed it to Mr Small and Ms Schucroft of CBA). The Sayour Parties say that, while Mr Deiri admitted in cross-examination that there had been the use of "pro formas", he was unable to explain how the Cheque Authorisation Alteration Instruction came into existence or why the signature of Moustafa had been copied onto a document which had the effect of changing the operation of the CBA Partnership Account allowing either Mr Deiri or Moustafa to sign cheques alone (see, for example, at T 867.45 – T 868.32). 8. The Sayour Parties submit that Mr Deiri is (and was) clearly a man of considerable abilities and understanding; and that he accepted the ordinary norm of a properly formed conscience that lying is improper and unacceptable. The Sayour Parties say that, insofar as Mr Deiri's defence is that he did not know that Jamil was not "upfront with his father", the emails had told him this "in black and white". It is noted that, when pressed on his evidence about Jamil recycling the Sayour Family Trust's money, his answer was "I don't know what arrangements are in one's family" and that "It's not for me to be completely concerned about it. If someone's partnering with us they either have money or they don't have money" (see at T 893.3-15). 9. It is submitted that, in those answers, Mr Deiri distinguished between situations where there is and is not an obligation to be "concerned" and asserted that he was in the latter position. It is noted that, when pressed with the point that he had been recently told by Jamil that Jamil had been lying to his father about matters of financial importance and was now being told that Jamil was going to take the trust money to put into what Mr Deiri in oral evidence said he thought was Jamil's own company, Mr Deiri's answer was "I don't know what's his money and what's his father's money" (at T 893.15-16) but that he then agreed with the proposition that "[i]f you don't know, you find out, don't you, before you commit yourself to a venture of this magnitude" (see at T 893.19-21). It is noted that when, when pressed on what he did to find out, Mr Deiri's answer was that, "I just assumed" and that "It's not my business to get involved in a family matter business" (see T 893.32-33). 10. The Sayour Parties say that Mr Deiri was not entitled wilfully to shut his eyes to the truth in this way. It is submitted that Mr Deiri's affirmative answer to the proposition that if "you don't know, you find out before committing yourself to a venture of his magnitude" demonstrates that Mr Deiri did "know better". It is said that, in [30]-[32] of his affidavit sworn on 16 October 2019, Mr Deiri sought to convey that he did not know who was interested in Sayour Holdings (cf his oral evidence that he thought and was told by Jamil that it was owned by Jamil – see at T 891). 11. The Sayour Parties say that if Moustafa owned Sayour Holdings then it was incumbent upon Mr Deiri to deal with him in respect of the Arncliffe project, especially as he knew that Sayour Family Trust funds were to be used for Arncliffe. It is said, in this regard, that the Broadway Partnership needed to obtain a valid receipt for any funds paid into the Arncliffe venture from distributions to the Sayour Family Trust. Furthermore, the Sayour Parties say that, even if this were not a matter of obligation, there was no reason at all for Mr Deiri to refrain from dealing with Moustafa or discussing the subject of the Arncliffe development with Moustafa if the situation was that dealing with Moustafa was like dealing with Jamil, and vice versa. 12. As to the assertion that Moustafa told Mr Deiri that "dealing with Jamil is like dealing with me", the Sayour Parties say that, if this is to be believed, it spoke of trust and confidence in a son (not a statement of plenipotentiary authority) and, insofar as Mr Deiri also puts the converse into the mouth of Jamil, it is said that it means that Jamil is not acting for himself, but rather for the benefit of his parents and sisters (or, at least his father). 13. Further, it is said that, if Moustafa knew all about the Arncliffe development, then there was no reason not to speak of it with Moustafa "openly and frequently", especially when Jamil was dying and there would inevitably be need for some form of handover. 14. The Sayour Parties say that Mr Deiri's evidence in cross-examination (that he viewed Sayour Holdings as something owned by Jamil) was a "recourse to avoid the embarrassment of being pressed on his failures", even to discuss its affairs with Moustafa. It is noted that, according to Mr Deiri, it was not a subject for discussion with Moustafa because it was Jamil's company. 15. Following from this, the Sayour Parties say that, if Sayour Holdings was Jamil's company, and contributions by way of loan to Combined Projects Arncliffe were contemporaneously recorded (as they were) to Sayour Holdings' loan account, then there was no reason retrospectively to reallocate part of that loan account to Jamil in 2017. On the other hand, they say that, if Sayour Holdings was Jamil's company, then Sayour Family Trust money ought not to have been credited to Sayour Holdings' loan account in the first place, without the permission of Moustafa. It is said that a man of Mr Deiri's experience could not seriously have thought that $10 million was to come from the Sayour Family Trust with Moustafa's permission and yet never have mentioned it to Moustafa, nor questioned in his own mind the ownership of Sayour Holdings. 16. The Sayour Parties say that the objective evidence of the Sayour 2 Family Trust deed (as to which, see at [422]-[423] above), in comparison with the Sayour Family Trust deed (as to which, see at [94] above), demonstrates that, in late 2013, Jamil was seeking to advance himself "whilst not yet bold enough to cut out his father entirely". It is said that that "bolder course" did not ensue until JS75 and its accompanying family trust were established by Jamil (as to which, see at [465] above), in connection with the next Arncliffe venture but noting also that Jamil, in August 2014, gave instructions to Mr Gramelis to alter the ownership and directorship of Sayour Holdings, without making any change to the Sayour 2 Family Trust deed. 17. The Sayour Parties say that, in February 2014, the establishment of Combined Projects Arncliffe and Sayour Holdings, and the intention to "recycle" Sayour Family Trust money, were concealed from Moustafa; and, at the same time, Moustafa was, by a forgery, purportedly removed from being a necessary signatory to the CBA Partnership Account (see at [445] above). 18. It is said that this is a pattern of behaviour inconsistent with any view that the change in cheque signatories was because Jamil was tired of going back and forth to get Moustafa's signatures on cheques. The Sayour Parties say that Mr Deiri's evidence in that respect (at [175]-[177] of his affidavit sworn on 22 August 2019) should be rejected as false (it being noted that in that affidavit, and seemingly contrary to [11(b)] of Investments' defence to the First Broadway Cross-claim, Mr Deiri placed the conversation in around early February 2013). The Sayour Parties point out that this was asserted in circumstances where Jamil had been signing the cheques in his own usual signature for about a year. It is said that Mr Deiri's evidence that he was unaware of this defies credulity and that it was discredited in cross examination (by reference to the various emails that were shown to him in cross examination by CBA and Plaza in relation to cheque signing procedures). 19. In this connection, the Sayour Parties point to a "corrective" affidavit serviced during the trial in which it is said that Mr Deiri reverted to the position that the conversation took place in February 2014. The Sayour Parties say that this change does not cure the difficulties arising out of the conversation on the cheque signing procedures (i.e., that Jamil was never running to and fro for his father's signature) but that it introduces the additional difficulty that, by February 2014, Jamil had clearly been lying to his father "for the benefit of Mr Deiri" (and it is asserted that Mr Deiri knew it). 20. In addition, reference is also made to the circumstances surrounding the preparation and signing of the Stage 2 Construction Contract in May 2013 (which it is noted was not even purportedly signed in the name of Moustafa), which increased the price (from that which it is said had been agreed with Moustafa under the tender of 27 December 2011) by $1.35 million to $24.850 million (see at [357] above). 21. The Sayour Parties say that the evidence of Mr Deiri in cross-examination (see T 856ff) that he "did not need" Moustafa's signature on draw down notices (on the basis that Jamil had complete authority and a complete power of attorney to obtain Moustafa's signature on a blank form and to authorise Mr Deiri to use that form) and that Mr Deiri said "I had no reason to question" this (see T 856ff) ought not be accepted. More particularly, the Sayour Parties say that the proposition that Mr Deiri had no reason to question this cannot be accepted in circumstances where the blank forms clearly changed from time to time; and the latest "makes its first appearance" in January 2014 (after Mr Deiri had been told Jamil was lying to Moustafa, and at a time when Mr Deiri knew of Jamil's intention to "recycle" Sayour Family Trust money). It is submitted that Mr Deiri "had every reason to question" and did question Jamil. The Sayour Parties say that his evidence in that respect was not convincing. It is noted that Mr Deiri had earlier had the 2013 CBA cheque query (see at [340] above) which he did not even refer to Jamil (let alone Moustafa) until after he had instructed CBA to pay the cheque. It is again submitted that a man of Mr Deiri's experience must have understood that a power of attorney does not confer power to make gifts or to benefit oneself unless specially authorised. 22. The Sayour Parties say that acceptance of Mr Deiri's evidence would require acceptance: that the Moustafa signature simulations were obtained on successive blank templates via the manila folder procedure, without knowledge that Jamil was signing Moustafa's name (involving consideration of the whole cheque signing procedure); that Jamil told Mr Deiri that he could use the blank forms with the "blessing" of Moustafa (said to be inherently improbable in circumstances where the evidence of the manila folder procedure should not be accepted, and where Mr Deiri had been told that Jamil was lying to his father); and that, believing Jamil was authorised to sign, Mr Deiri nonetheless used (without need) pre-signed templates by Moustafa, when he could simply have had Jamil sign each time on an open basis. 23. The Sayour Parties say that Mr Deiri's evidence (see, for example, at T 856.7-8) that he believed he had a genuine Moustafa template which he understood he was authorised to use should not be accepted. It is submitted that Jamil was not authorised to sign for the partnership and was not authorised to sign for the partnership using simulations of Moustafa's signature, or even using his own usual signature in Moustafa's name. 24. Following from this, the Sayour Parties thus maintain that Mr Deiri is a witness whose evidence requires corroboration by reliable objective evidence (by which they do not include the evidence of witnesses such as Mr Kanj and Mr Zafiropoulos, of whose evidence the Sayour Parties are also highly critical – see below). 25. Meanwhile, the Deiri Parties submit, to the contrary that, Mr Deiri gave frank answers, answered the questions asked and was not evasive; and they say (and on this point, I accept) that only rarely did he engage in any sort of argument beyond attempting to explain his answer. 26. It is said that, on the few occasions when he was shown a document that suggested his account might not be accurate, Mr Deiri was not defensive (rather, that he was open to the possibility that his recollection might not be correct) and that his answers were generally consistent with the contemporaneous documents. Overall, it is submitted that Mr Deiri was a witness of truth who was doing his best to remember events that took place up to eight years ago. 27. It is said that, even if certain aspects of Mr Deiri's evidence are not accepted on the balance of probabilities, it would not be appropriate to make a "blanket" adverse finding in relation to Mr Deiri's credibility. Rather, it is submitted that, insofar as Mr Deiri's evidence is not consistent with contemporaneous documents and those documents show error in Mr Deiri's account of events, it should be concluded that Mr Deiri was simply mistaken. 28. As to the criticism made of Mr Deiri's evidence about the preparation of accommodation notices, the Deiri Parties complain that questions were put to him in a confusing way and they say that the events the subject of the topic (dating back many years) were themselves confusing (referring to the questioning and evidence as to the existence of a pro forma or template notice). Indeed, similar complaint is made as to the criticism made of Mr Deiri's evidence in relation to cheque signing procedures. 29. Furthermore, and as adverted to above in relation to Jones v Dunkel and otherwise, complaint is made that serious and unpleaded allegations were made against Mr Deiri for the first time in cross-examination. The Deiri Parties say that it was not alleged that Mr Deiri fabricated or forged accommodation notices (or that he did so with an intent to deceive Moustafa or conceal matters from him), nor that he fabricated the Cheque Authorisation Alternation Instruction; and hence that it is not now open to Plaza to make submissions (as it has done) to the effect that, in relation to the accommodation notices, Mr Deiri must have "cut and paste" Moustafa's signature without his knowledge; or that the drawdown procedure was "calculated to keep Moustafa from seeing them and from having an opportunity to object to any specific notice"; or that the Cheque Authorisation Alteration Instruction was also the product of such a cut and paste exercise. 30. The Deiri Parties point to r 14.14 of the UCPR in this regard, noting that fraud is a serious matter which must be pleaded specifically and with particularity (see r 14.14(3), (4); Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 573; [1995] HCA 68 per Brennan, Dean, Gaudron and McHugh JJ); and that a fraudulent intention must be pleaded and particularised (see r 15.4(1), (2)). In this regard, it is also noted that Plaza was put on notice in opening submissions that it would be held strictly to its pleaded case. 31. Relevantly here, what was pleaded by Plaza in relation to the accommodation notices (see [134]-[139] of the First Broadway Cross-claim) was that each of the payments listed in Schedule G was made without any accommodation notice; none of those payments was paid into the CBA Partnership Account; each of the payments was made after CBA sighted a letter purportedly signed by Moustafa and Mr Deiri; and that Moustafa did not sign any of those letters to CBA (see the particulars to [138] asserting that all of those letters are forgeries). The Deiri Parties further note that, in the Fifth Broadway Cross-claim, Plaza pleaded (at [536] in an allegation premised on acceptance of its "bribes case") that Jamil was induced to sign correspondence to CBA which purported to be accommodation or draw down notices; and particularised that allegation as follows: PARTICULARS 1. The normal signature of Jamil appears with the signature of Mr Deiri on correspondence to the CBA dated 26 March 2012, 27 April 2012 and 24 May 2012, being draw down notices. 2. The balance of the draw down notices bear signatures purporting to be those of Moustafa, which are forgeries. 1. Similarly, it is noted that there is no pleading as to fabrication by Mr Deiri (through cutting and pasting) of the Cheque Authorisation Alteration Instruction, noting that the allegation in the Fifth Broadway Cross-claim (at [539]) is that Jamil forged the signature of Moustafa on that document. 2. The Deiri Parties therefore say that it is not open to Plaza now to allege that Mr Deiri knowingly fabricated or forged or deceptively "cut and paste" signatures on those documents; and that the only relevant allegation Plaza is permitted to advance concerning the genuineness of the signatures purporting to be those of Moustafa on the accommodation notices or Cheque Authorisation Alteration Instruction is that Moustafa did not sign them. 3. As has also been adverted to, a procedural fairness issue is here raised (namely, that Investments and Mr Deiri did not come prepared to meet the allegation that they had forged or fabricated accommodation notices, or that they intended to deceive or conceal the accommodation notices from Moustafa). Thus it is said that no findings adverse to Mr Deiri's credibility should be drawn based upon allegations about these matters. Further, it is submitted (by reference to the existence of a signed template accommodation notice) that inconsistency or confusion in Mr Deiri's evidence on that topic is explicable (having regard to the variety of means apparently used for such documents). 4. Furthermore, the Deiri Parties say that the fact that there was a genuine pro forma template signed by Moustafa shows there was no need for deliberate deception. It is said that there could be no motive for deliberately fabricating the notices to deceive Plaza because Investments already had a pro forma signed by Moustafa. Thus, it is said that the evidence points rather to an administrative "mix-up" (in the Deicorp offices) of some kind. The Deiri Parties say that Mr Deiri was "upfront" about the fact that a pro forma document was simply filled in with the amounts and then sent to CBA and that he said it did not need to be signed. 5. The Deiri Parties again emphasise that these events took place seven to eight years ago; that Mr Deiri was a busy director of a development business with many ongoing projects at the time; and that much of the administration and paperwork at his companies was carried out by his staff. It is submitted that it is not realistic to expect that Mr Deiri would "have at his fingertips in the witness box years later" the details of the preparation of all of these forms (especially since Investments was not properly put on notice that it was to be alleged that Mr Deiri had engaged in some deliberate deception involving applying Moustafa's signature on accommodation notices). The Deiri Parties further say that the evidence Mr Deiri gave on this issue was co-operative (noting that he accepted that some notices were prepared from copies of earlier notices). It is submitted that Mr Deiri gave his view of what the documents to which he was taken in cross-examination appeared to show; that he gave no evidence that he positively remembered the matters being put to him; but that they were direct and honest answers (and the Deiri Parties say that Mr Deiri's evidence that he did not discuss with Moustafa the setting up of the pro forma between 25 June 2012 and 20 September 2012 is consistent with Moustafa having signed the original pro forma on 22 February 2012). 6. Again, I note, for example, that when asked whether he obtained Moustafa's permission to get his signature on a blank form of progress claim, Mr Deiri said "I did not need to, it was discussed with Jamil who had complete authority and complete power of attorney. I had no reason to question" (see T 856.7-8). 7. Relevantly here, the Deiri Parties say that the reference to "progress claim" in the question which was answered by the above answer is important, because all of the accommodation notices were headed "progress claim". It is noted that the original pro forma template signed by Moustafa dated 22 February 2012 was not a progress claim, nor was it entitled as such. Thus, it is submitted that the above question does not relate to that original pro forma document. 8. The Deiri Parties further say that there is no reason why (if Mr Deiri had intended to conceal the accommodation notices from Moustafa), Mr Deiri would cause some accommodation notices to be copied and some to be prepared "bespoke" (and left for Jamil to collect and take for his father). In the Deiri Parties' submission, Plaza's case theory makes no sense and the only theory that makes sense (given there was always a genuine pro forma signed by Moustafa), is that there was an administrative error in the preparation of the accommodation notices. 9. Insofar as Plaza also criticised Mr Deiri's account of the drawdown procedure as inconsistent with the cheque signing procedure, under which (supposedly) each payment was referred to Moustafa for his specific approval by signature, the Deiri Parties argue that there is no reason why the procedure needed to be the same (and that there are good reasons why Mr Deiri would not have regarded it as necessary, pointing to Mr Deiri's evidence was that he regarded the quantity surveyor report as the document that was important). 10. The Deiri Parties say that, insofar as Mr Deiri gave evidence that the cheque procedure was followed for the Cheque Authorisation Alteration Instruction (by leaving it Jamil for the purpose of obtaining Moustafa's signature), Mr Deiri was obviously mistaken about that, but that this does not make him dishonest. It is said that the mistake can be understood in circumstances where the pleaded allegation (to which it is said Mr Deiri's affidavit evidence responded) was that it was Jamil who had signed his father's signature. 11. As to the attack by Plaza and CBA on Mr Deiri's credibility in relation to the evidence he gave about the procedure for signing cheques relating to the Broadway Development, again the Deiri Parties emphasise that Mr Deiri is occupied with running the businesses. It is said that it can be seen that Mr Deiri was not a "details person" in relation to administrative tasks – it is noted his evidence is that he knew that two signatures were required, and that he believed the second signature required was Moustafa's signature. It is submitted that it is Mr Deiri's belief that is relevant here to his credit and that his belief was that the cheques were being countersigned by Moustafa. 12. In reply, as to the credibility of Mr Deiri, the Sayour Parties make the following submissions. 13. Insofar as the Deiri Parties have complained that there was no pleading as to Mr Deiri's knowledge and involvement in the cheque signing and draw notice signature simulations (and hence that the submissions as to fabrication by Mr Deiri of those signatures raised an issue of procedural unfairness), the Sayour Parties point out that the Deiri Parties themselves raised the question of Jamil's authority in defence to charges of want of mandate, pleaded defences of payment (relying on the authority of Jamil to receive and direct payment) and affirmatively asserted (see [11](b) of their defence to the First Broadway Cross-claim) that Mr Deiri signed the Cheque Authorisation Alteration Instruction and gave it to Jamil to obtain Moustafa Sayour's signature (a defence that they maintain Mr Deiri knew to be false). 14. Further, it is noted that the Deiri Parties themselves led evidence from Mr Deiri that he assumed that CBA was complying with the terms of operation of both the cheque account and the finance facility (see, for example, [217]-[218] of his affidavit sworn on 22 August 2019); that he was ignorant of Jamil's simulations (see, for example, [328] of his affidavit sworn on 22 August 2019); and that, had he known that Jamil had committed any fraud or misappropriation, he would have told Moustafa and the CBA and ceased dealing with Jamil (see, for example, [327]-[329] of his affidavit sworn on 22 August 2019). They say that (at [328] of Mr Deiri's affidavit sworn on 22 August 2019) Mr Deiri makes clear that he is answering Moustafa's allegation that he (Mr Deiri) knew Jamil was signing documents and cheques in Moustafa's name. 15. It is further noted that in Mr Deiri's primary affidavit concerning the Arncliffe Proceedings, he also included a section in relation to the Broadway Proceedings in which he dealt with matters in support of the defence of payment on the Second Broadway Cross-claim and as to authority in respect of payments, signatures and drawings. In this regard, reference is made to the evidence as to the cheque signing procedures and as to the accommodation notices (on which Mr Deiri was cross-examined by Counsel for CBA and Plaza, respectively). It is also noted that Mr Dubedat's report was served well over 12 months before the hearing. 16. The Sayour Parties say that the primary case of Plaza in the first cross-claim was one of want of mandate and, in respect of the second construction facility, that it was a forgery. They say that it was not necessary for Plaza to plead (and that it did not plead) who was the author of the forgeries (see, for example, National Australia Bank v Dionys atf the Angel Family Trust [2016] NSWCA 242 (NAB v Dionys)) and note that the Deiri Parties were the ones who alleged that these instruments were signed by Jamil and that he was authorised to sign. 17. It is submitted that the Deiri Parties, in making these complaints, have failed to take into account that Plaza's reply to the defences to the first cross-claim denied Investments' allegations in its defence (see the reply at [297]) and expressly alleged that Mr Deiri and Investments well knew that Jamil was signing cheques on the CBA Partnership Account (see at [292](d)) (and following, it could be said, that it is implicit in the assertions of an improper purpose for the Cheque Authorisation Alteration Instruction and as to the alleged deliberate abstention by Mr Deiri from referring that letter to Moustafa for fear of learning that he would not authorise it). 18. It is noted that Investments pleaded that the accommodation notices, and payments thereunder, were authorised (at [128]-[139] of the defence to the First Broadway Cross-claim and specifically, at [139](a), that "if, which is not admitted, Moustafa Sayour did not sign the letters, then Jamil Sayour had actual authority to sign the letters in Moustafa's name" and, at [139](b), that Investments "authorised the payment and in so doing bound the defendant and the partnership with respect to CBA" (referring in particular to s 5 of the Partnership Act 1892 (NSW) (Partnership Act)). 19. Thus, the Sayour Parties say that the Deiri Parties themselves asserted Jamil's authority (or, if not him, that Mr Deiri's signature was sufficient) and raised expressly the question of the usual way of conducting the business of the partnership and Mr Deiri's understanding of the procedures established for carrying on the business of the partnership (reference being made in this context to Seiwa Australia Pty Ltd v Beard (2009) 75 NSWLR 74; [2009] NSWCA 240, although noting that the Deiri Parties and CBA did not ultimately press in closing address any case based on s 5 of the Partnership Act). 20. Accordingly, it is submitted that the Deiri Parties raised as an issue on the pleadings (and led evidence inviting contradiction as to the extent of Jamil's involvement, authority and honesty) Mr Deiri's innocence and ignorance of any wrongdoing, as well as Mr Deiri's authority to act alone, which in turn depended on showing that his conduct was properly part of the usual way of the partnership conducting its ordinary business. 21. In that connection, it is noted that [139] of Investments' defence to the First Broadway Cross-claim was denied (by [297] of the reply) and that (see at [300] of the reply) it was expressly alleged that, by the terms of the facility agreement, accommodation notices could only be signed by Moustafa and Mr Deiri while each remained respectively the only director of Plaza and Investments. It is noted that [300](g) further alleged, by reason of the foregoing, that both Investments and CBA knew that Mr Deiri was not authorised to sign on his own and without counter signature of Moustafa any accommodation notices or the alleged non-conforming payment authorities (referring also to [301]). 22. Thus, the Sayour Parties take issue with the proposition that the Deiri Parties were (or could have been) taken by surprise; and submit that the cross-examination about which complaint is made was well within the scope of the issues and dealt with Mr Deiri's own assertions in his evidence in chief. It is submitted that there is no basis for "salvaging Mr Deiri's credit" by suggesting that the cross-examination was confusing; rather, that the position is that Mr Deiri was confronted in detail with problems to which he did not have credible answers and ultimately resorted to bald denials of any wrongdoing without proferring any credible explanation. Finding 1. As with Moustafa, I do not consider that any finding of dishonesty is necessary or justifiable in relation to Mr Deiri's evidence. I observed that Mr Deiri was less argumentative and dogmatic than Moustafa in the witness box and more matter of fact about matters (including, relevantly, as to the day-to-day running of a large scale development of the kind the subject of the Broadway Proceedings). Mr Deiri displayed a pragmatic attitude to various aspects of the proceedings (including in his explanation as to why he agreed with Jamil to make payments to unknown third parties in relation to the Arncliffe Development) and he was credible in his explanation of matters such as why he did not get involved in the family arrangements between Jamil and Moustafa. 2. Mr Deiri also to my observation displayed genuine emotion in the witness box when speaking of Jamil and I have no hesitation in accepting that there was a genuine friendship between the two. 3. With this said, I accept that the evidence as to the method by which cheques and accommodation notices were signed was not consistent (and, in particular, that the use of a template signature block – as must surely have occurred in the preparation of a number of the accommodation notices – is inconsistent with the so-called manila folder signing procedures) and in some instances must surely be incorrect (such as in relation to the drawing of the cheques and the preparation of the Cheque Authorisation Alteration Instruction). However, my impression of Mr Deiri's evidence in the witness box as to the preparation of the accommodation notices being by use of a template struck me as being Mr Deiri's honest attempt to recall, some years later, how from an administrative point of view the various kinds of documents were prepared in his office, and it is consistent both with the fact that there was a pro forma document that Moustafa had indeed signed at the outset (even though it does not appear ever to have been used) and with Mr Deiri's obvious focus on the commercial imperatives for the development to be completed (rather than on the detail as to what was to be done to achieve that). It seemed to me that Mr Deiri adopted a pragmatic approach to the business decisions at hand, which makes more plausible his account of conversations such as the conversation he says he had with Jamil about the Dyldam quote (as to which, see at [131] above). 4. Ultimately, it seemed to me not implausible that Mr Deiri simply did not trouble to enquire how cheques or other documents were signed (at least up until the 2013 CBA cheque query – see at [340] above – as to the Jamil signature) as long as the expenses were being met, and that the explanation for the Cheque Authorisation Alteration Instruction was at least equally as likely to be one of expedience as one calculated to deceive Moustafa. 5. That said, again, I place more weight on contemporaneous documentary evidence than Mr Deiri's recollection of events, accepting as I do that (as does Moustafa) Mr Deiri has a clear personal interest in portraying conversations or events in a light favourable to his companies (and, in that regard, I consider that the drafting of the so-called Tripoli Minute – see at [519] above – was self-serving, even if accurate as a record of the conversation Mr Deiri says took place with Jamil in Tripoli). Ms Dahdal 1. Plaza makes various attacks on Ms Dahdal's evidence. In considering the credibility of Ms Dahdal, it is convenient to consider the Deiri Parties' responses to Plaza's submissions, in this regard. 2. First, in relation to the signing of cheques, insofar as Plaza attacks Ms Dahdal's explanation as a departure from her earlier affidavit in which she said she was not aware who was signing cheques, the Deiri Parties say that this is neither an accurate nor a fair characterisation of her evidence; and that it fails to take into account the context in which her second affidavit was made, namely, that the emails of 2 October 2012 and 27 June 2013 (see at [367]-[369] above) were not included in the Court Book, but were first raised when they were put to Mr Deiri in cross-examination by counsel for CBA, noting that this was after Ms Dahdal's first affidavit was sworn. Hence, it is said that Ms Dahdal's second affidavit was responsive to new evidence in the trial. 3. The Deiri Parties submit that Ms Dahdal's evidence (that she assumed Jamil was signing cheques, but she never actually saw Jamil do so) is consistent with her position in her first affidavit, in that (in her first affidavit) Ms Dahdal was not speculating or giving evidence about what she assumed; rather, she was speaking about the extent of what she knew to be true (and that what she assumed was a different question to what she knew). It is said that Ms Dahdal's assumption (as an administrative assistant) that Jamil was signing cheques only became necessary for her to address in order to put in context the email adduced by CBA in evidence for the first time during the cross-examination. 4. Second, as to Plaza's attack (by reference to the contention that Ms Dahdal had witnessed Jamil's signature) on Ms Dahdal's evidence that she did not recognise Jamil's signature, the Deiri Parties note that Ms Dahdal gave evidence that she did not review the cheques once they had been returned and signed and that the accounts staff mailed out the cheques. It is said that there is only one document relied upon by Plaza in respect of which there is any evidence that Ms Dahdal had actual contact with the document (namely, the "Commercial Deed of Guarantee" that she purported to sign as witness – see above at [365]). 5. More specifically, Ms Dahdal's evidence as to the witnessing of Ex P was that she did not remember the document and that she had no recollection of signing it. The Deiri Parties say that it was not established (nor was it put to Ms Dahdal) that, at the time of signing the document, she knew that she was purporting to witness Moustafa's signature. The Deiri Parties speculate that Jamil may well have approached her and asked to witness his signature and sign the document, and that Ms Dahdal may have signed without reading it; and that she may also have signed without actually seeing the signature being applied. It is submitted that while this "might not be desirable or satisfactory, or meet the standards of behaviour required and expected of a legal professional, [but] in the real world lay persons do not always adhere to such standards". It is submitted that, on the evidence and the way in which the questioning proceeded, it would not be concluded that Ms Dahdal knew what she was purporting to sign. Moreover, it is said that, even Ms Dahdal had witnessed Jamil's signature on that occasion, it is entirely unrealistic to suggest that doing so on a single occasion meant that she would thereafter recognise it forever. It is submitted that it would be highly surprising if, having seen a signature once seven years ago, she could now recognise that signature. Finding 1. I do not here need to devote much time to Ms Dahdal's performance as a witness. With all due respect to her, I doubt that she had much appreciation of the transactions or documents in question. She certainly had no understanding of what was required when witnessing someone's signature on a document. Nevertheless, I accept that she was honestly endeavouring to recall events at the relevant time, and I accept that her overall description of office procedure accords with the email communication of 30 April 2013 in which she referred to leaving cheques in a folder on Mr Deiri's desk (see at [349] above). Mr Kanj 1. As noted above, Mr Kanj worked on the Arncliffe Site as a finishing foreman. After making an approach to Mr Deiri in about January 2018 about the alleged agreement in relation to a fee for the Arncliffe Site, Mr Kanj was transferred to a site in Hurstville. 2. It is relevant here to note, by way of family background, that Jamil was a cousin of Mr Kanj's wife. Konstructions says that Jamil formed a strong friendship with Mr Kanj; noting that Jamil attended Mr Kanj's engagement party, that Mr Kanj visited Jamil in hospital and that Mr Kanj attended both Jamil's funeral and the wake. 3. The Sayour Parties submit that Mr Kanj's evidence regarding his receipt of $7.2 million plus GST from Combined Projects Arncliffe is not credible for a number of reasons. I address those reasons in due course. 4. Suffice it at this stage to say that the criticism made of Mr Kanj's evidence, insofar as it relates to his performance in the witness box, is that he was unable to give a coherent or plausible account of basic things, such as the year in which he became engaged to his wife. As to that particular matter, I would not be inclined to draw anything adverse to his credibility generally from Mr Kanj's inability to recall when he became engaged. It would, I think, be an exercise in pure speculation to surmise how many men (or women for that matter) have a precise recall of dates even in respect of momentous occasions in their personal lives. 5. More relevantly, it is said that Mr Kanj was unable to give a coherent or plausible account of even address. 6. Furthermore, it is noted by the Sayour Parties that Mr Kanj did not even obtain his builder's licence until 2018 and has never conducted a property development, made a rezoning application or applied to a local council for a development consent (see T 1274ff), yet the premise of his account of his dealings with Jamil in relation to the Arncliffe project is that Jamil considered Mr Kanj to be somebody that Jamil could "go with" instead of Mr Deiri and Deicorp. 7. It is also emphasised that Mr Kanj has not retained a single piece of paper or documentation that evidences any of his dealings with Jamil (rather, he says his computer and laptop bag were stolen); and, likewise, that Mr Kanj has not identified any information or thing of value he contributed to Jamil's work on the Arncliffe Site (other than, it would seem, the fact he told Jamil that Jamil could get 200 units on the site, the demolition would be simple, excavation did not look too difficult and Arncliffe is close to the airport and might be subject to height restrictions). 8. The Sayour Parties say that the notion that Jamil would agree to pay Mr Kanj $7.2 million plus GST for the work he says he did is "preposterous". It is submitted that that work amounted to about ten site visits for a maximum of two hours each, and assisting Jamil with his "opinions" and "research". 9. It is also noted that while, on the one hand, Mr Kanj says that he trusted Jamil and would not have asked him for any agreement regarding the site fee to be given in writing, at the same time it was his evidence that if Jamil had not offered him money then he would have been very offended and "would have gone and seen a lawyer about what to do about it" (see Mr Kanj's affidavit sworn on 20 September 2019 at [41]). 10. The Sayour Parties also say that Mr Kanj's chronology does not fit with the evidence of any other witness. For example, it is noted that Mr Dale says that he first met Jamil in October 2013 and that within about two weeks Jamil had introduced him to his "partner" (Mr Deiri). It is submitted that the notion that Mr Kanj had performed $7.2 million worth of work for Jamil in that period is "absurd". 11. Moreover, in their closing submissions, the Sayour Parties contended that Mr Kanj's use of the proceeds that he received from Combined Projects Arncliffe tended to indicate that he was merely a channel for putting those funds in the hands of a third party. This issue (and the evidence sought to be adduced in relation to this issue) was the subject of heated debate in the course of the hearing. 12. Mr Kanj accepted in cross-examination (see T 1310) that, upon receiving the site fee from Combined Projects Arncliffe, he made two payments of $546,029 and $6.05 million to Pasloc to acquire "Permaform", which Mr Kanj described as a "structural wall system" or type of formwork (see T 1306.38-44). Mr Kanj described Mr Pasloc as "a guy that could have, could have got the Permaform cheap" because "he had some connections to Permaform" (see T 1306.47-T 1307.4). He said that he found "Peter", the principal of Pasloc, through "word of mouth", and he agreed that he thought it would be a good idea to pay him six and a half million dollars for Permaform (see T 1312). It is noted that Mr Kanj never received any delivery of Permaform (see T 1311.15). The Sayour Parties say that, having received a site fee of $7.2 million plus GST, he (apparently) paid over six and a half million dollars for Permaform that is in storage in China, and he did not receive delivery of a single square metre of the product (see T 1311). It is noted that Mr Kanj expressed some surprise in the witness box to discover that Pasloc had gone into liquidation; and stated his intention to seek legal advice on how to get his money back (see at T 1312.4-5): "I found out this morning. My lawyer broke the news to me and now I'm going to try to seek legal advice on how, how to obtain that money back". 13. The Sayour Parties say that Mr Kanj's story does not pass the credibility test. They maintain that Konstructions had no contractual relationship with Combined Projects Arncliffe and that Mr Kanj had no right to be paid by Combined Projects Arncliffe. 14. As to Mr Kanj's credibility and truthfulness, Konstructions says as follows. 15. First, that his memory was challenged insofar as the conversations with Jamil were concerned, but that this was not necessarily a question of credibility or truthfulness (though, I note, it could reflect on his reliability as an historian of the relevant events). Second, that, insofar as his credibility or truthfulness was challenged as to the work he performed, the substance of the cross examination accepted that the work was performed, and the challenge was whether that work was commensurate to the return. It is said that a finding cannot be made that Mr Kanj did not perform work for Jamil. 16. Otherwise, findings are sought by Konstructions to the effect that: Mr Kanj was a young site foreman on the Broadway Site and that the Broadway Development on that site was a very large development; that he had previously worked at a large site at Canterbury; that he had experience in large developments with Mr Deiri; that he had a business relationship with Mr Deiri, rather than a social one; and that he had obviously impressed Mr Deiri (having been offered a cadetship and been made site foreman). It is submitted that it can be inferred that this conferral of responsibility indicates Mr Deiri's (or Deicorp's) view that Mr Kanj was skilled and responsible. Konstructions says that Jamil's subsequent conduct in approaching Mr Kanj (which is itself a matter of some dispute) is evidence of Jamil forming that view. It is submitted that, as Jamil had developed a close friendship with Mr Deiri, such a position held by Mr Kanj is likely to have held considerable weight with Jamil (and findings are sought to this effect). 17. As adverted to above, it is noted that Mr Kanj came to meet Jamil at the Broadway Site and a friendship developed; that during that friendship, Mr Kanj's relationship with the woman he came to marry (Jamil's cousin) became stronger; that he asked his wife to marry him some time in about 2012, and the expectation was the couple would proceed to marry; and that at some time Jamil became more interested in Mr Kanj. It is noted that there was extensive cross examination of Mr Kanj as to the dates on which he announced his engagement to Jamil's cousin. Konstructions says that this cross-examination ultimately went nowhere. It says that it is clear that cultural issues played a great part in the courting process, and that Mr Kanj formed a view very early on that he was intending to marry, but the formalisation of the courtship took a considerable period. Thus, it is said, the formal announcement of the engagement to the community did not prevent discussion of it between family members. Again, findings to this effect are sought. 18. As to the submissions made by the Sayour Parties as to Mr Kanj's credit by reference to the limited documentary evidence of any agreement between Mr Kanj and Jamil or a subsequent agreement between Mr Deiri and Jamil on 30 September 2015, Konstructions maintains that that there is a range of documents that were, but are no longer, available. 19. In this regard, Konstructions notes that: both Mr Deiri and Mr Kanj said that they had seen that Jamil had notebooks or folders (none of which is now available); Mr Kanj's evidence is that he gave all relevant documents to Jamil once the arrangement between the two of them came to an end (evidence said not to have been challenged in cross-examination); and Mr Kanj gave evidence that he had his computer and a bag stolen from his car (again, it is said that this evidence was not challenged in cross-examination). Konstructions complain that the suggestion in the Sayour Parties' submissions that such a theft is "convenient" is not pleaded or founded on fact, but instead is mere suspicion without any factual basis. 20. Furthermore, Konstructions points to Moustafa's evidence that Jamil took documents from the business as extremely important corroborative evidence of the existence of documents prior to their removal and their subsequent disappearance. It is noted that access has not been able to be obtained to a Gmail account of Jamil's (because of the inability to obtain the passwords for access) and that there has been no production of any text messages from Jamil's telephone. It is said that, in those circumstances, to submit that the absence of documents favours an inference against the existence of (or does not assist in establishing) an agreement between Mr Kanj and Jamil or subsequently Jamil and Mr Deiri is fallacious. Konstructions maintains that there is independent corroboration from independent witnesses (as to the existence of documents – though I interpose to note that the content of any such documents cannot now be determined). 21. Konstructions says that there is no similarity between the facts in this case and those considered in Allen v Tobias (at 375) to which the Sayour Parties have referred (see, for example, in relation to Mr Vamvakaris' evidence). In particular, it is said that there is no inference available that any documents that existed were destroyed by the act of Mr Kanj (noting that he has given unchallenged evidence of what has become of them). It is said that the documents were either taken or destroyed by Jamil or not produced when the opportunity to obtain them was in the full control of the Sayour family members. 22. Insofar as it was put to Mr Kanj in cross-examination that he had made up the whole arrangement with Jamil and had made it up for the purpose of this case (which was denied by Mr Kanj), vociferous complaint was made by Konstructions (to which I have referred above). Konstructions submits that the issue cannot be resolved against Mr Kanj by suspicion or demeanour. It is said that there was a forensic decision not to cross-examine on each aspect of Mr Kanj's evidence in circumstances where fabrication was not pleaded nor was it raised with affidavits or evidence in reply. 23. It is also noted that there was no evidence led from any of the main witnesses on this issue (identified as being Mr Kanj, Mr Deiri, Mr Gav, Mr Vamvakaris and Mr Zafiropoulos) that they spoke to the other witnesses about the case, or the claims here made by the Sayour Parties on behalf of Combined Projects Arncliffe that could give the opportunity for unintended pollution of their evidence; no suggestion was put to Mr Kanj that he had engaged in collusion with other witnesses in advancing this agreement for the purpose of proceedings; and the Sayour Parties served no relevant evidence on this topic in chief until after Mr Kanj had sworn, filed and served his affidavit. 24. Thus, it is said that the evidence of Mr Kanj needs to be assessed as against the evidence of all the other witnesses that gave evidence in the proceedings and that the decision by the cross examiner not to challenge those witnesses on this issue compounds the procedural unfairness of not challenging Mr Kanj on his account set out in his affidavit; it is said that if there is corroborative evidence for Mr Kanj then it affects the capacity to make a finding that the transaction is inherently unlikely or inherently improbable (the Court being constrained in rejecting the unchallenged evidence of the witness). Finding 1. At the outset, I make clear that I do not make any findings of fabrication or collusion in respect of Mr Kanj's evidence; and there is certainly no basis on which I could properly conclude that Mr Kanj was merely a channel for putting funds into the hands of a third party (as the Sayour Parties believe or, at least, suspect). 2. That said, there are aspects of Mr Kanj's evidence that are (frankly) quite implausible. The suggestion that Mr Kanj was a credible competitor to Mr Deiri as a joint venture participant in a development of the kind that was carried out in respect of the Arncliffe Site, or that he would be paid some $7.2 million for the kind of assistance he rendered prior to Mr Deiri's involvement in the project, is farcical (and that is so, in my opinion, however highly Mr Deiri might have thought of Mr Kanj's abilities as a finishing foreman). This is illustrated by the evidence given by Mr Kanj as to the assistance he had provided to Jamil (that being of a very basic nature, to say the least). 3. I consider in due course the evidence as to whether there was any contractual entitlement on the part of Mr Kanj (and, through Mr Kanj or at his direction, Konstructions). In so doing, and mindful of the caution urged upon me, I will certainly not be basing my findings on mere suspicion or demeanour; and I will be taking into account the evidence to which Konstructions points as corroborative. For present purposes, however, I simply note that Mr Kanj struck me in the witness box as being a relatively young and unsophisticated witness with not much understanding of what would have been involved in a project of the kind the subject of the Arncliffe Development (albeit with seeming confidence in his ability to do whatever was needed). 4. I accept that Mr Kanj may genuinely believe that he was promised by Jamil that he would receive a payment out of the Arncliffe Development. I could even accept that Mr Kanj may genuinely believe that this payment would amount to a percentage of the value of the development (in which he was not able to participate once Jamil decided to proceed with Mr Deiri), although it is hard to believe that Mr Kanj could have seriously considered that appropriate compensation for that loss of opportunity would translate to a payment of the sum he ultimately received. 5. Indeed, again, what I have great difficulty accepting as plausible is that there was an arrangement at the relevant time (i.e., by no later than the time of the so-called "deathbed" conversation) that Mr Kanj would receive the particular amount ultimately invoiced by Konstructions to Combined Projects Arncliffe (for the reasons that I set out in due course) and that then leads to the question as to how to view the subsequent agreement by Mr Deiri to pay that amount on behalf of Combined Projects Arncliffe. 6. For present purposes, I should also record that I do not rely upon the absence of documentary evidence in reaching my conclusion as to the implausibility of the arrangement. I accept that there is evidence that Jamil kept notes and papers; that it is possible that in those notes and papers there was a record of the alleged arrangement; and that there is contemporaneous evidence of a theft of Mr Kanj's belongings. Rather, all I here note is that the sequence of events in relation to the missing documents has the unfortunate consequence for Mr Kanj that he cannot point to documents in support of his claim (not that it gives rise to an adverse inference of any kind against his claim). 7. Nevertheless, and even accommodating that unfortunate reality for Mr Kanj, the fact remains that key aspects of Mr Kanj's evidence, and account, are quite astonishing. 8. The Sayour Parties similarly decry the credibility of Mr Zafiropoulos' account of events. 9. The Sayour Parties say that the bulk of the proceeds that Mr Zafiropoulos received by way of the site fee, "ended up in the hands of a third party in short order". I interpose to note the fact of this disbursement does not seem to be denied by Mr Zafiropoulos, but there being opposition to this being raised in cross-examination on the same basis as opposition was taken to this kind of evidence in relation to Mr Kanj (see above). More specifically, Mr Zafiropoulos agreed in cross-examination that he paid approximately $5.45 million on 22 May 2018 to Bronson Properties (see T 1383.19-26). The Sayour Parties tendered ASIC search documents in respect of two entities (Bronson Properties and Bronson Management Pty Ltd (Bronson Management)), showing that the sole director and shareholder of those companies is a Mr Ben Scott; as well as an ASIC search for a company named D.I. Developments Pty Ltd (whose sole director is disclosed as being Mr Fadi Ibrahim and whose shareholders are recorded as Mr Ibrahim and Mr Scott). Furthermore, documents were also tendered showing that the registered office of the last of those companies is "c/- Fadi Ibrahim" at an address shown as Mr Fadi Ibrahim's residential address. 10. The submission was made that, shortly after receiving the site fee from Combined Projects Arncliffe, Mr Zafiropoulos transferred approximately $5.45 million to a company owned by Mr Ben Scott, who also owns half of the shares in the corporate entity that owns Mr Fadi Ibrahim's house. 11. Additionally, reference was made to documents produced under subpoena by Bronson Management, including an invoice from Bronson Management to Zapphire Investments Family Trust by which Bronson Management sought payment on account of "[s]ervices rendered in the consolidation and procurement of residential development site" at the Arncliffe address. 12. The Sayour Parties say that it is significant that, on Mr Zafiropoulos' account as set out in his affidavit sworn on 9 October 2019, Mr Fadi Ibrahim was present at virtually every stage of Mr Zafiropoulos' involvement with Jamil in relation to the Arncliffe Development, it being noted that: in October 2010, Mr Zafiropoulos (a dentist) met Mr Ibrahim as a patient (see at [25]); in 2010, Mr Ibrahim introduced Mr Zafiropoulos to Jamil (see at [26]); in October 2012, Mr Ibrahim lent Mr Zafiropoulos money to fund a property development; in December 2012, Mr Ibrahim set up a meeting between Mr Zafiropoulos and Jamil to discuss doing a development together (see at [28]); in December 2012, Mr Ibrahim, Mr Zafiropoulos and Jamil met at the Sake restaurant (as to which, see at [326] above) to discuss development sites in Arncliffe, including the Arncliffe Site and at that meeting Mr Zafiropoulos told Mr Ibrahim and Jamil that "if we move fast now, there will be significant profits to be made" (see at [35]); in mid to late 2013, Mr Ibrahim, Jamil and Mr Zafiropoulos had another meeting at which Jamil told Mr Zafiropoulos that he was progressing the Arncliffe Development (see at [37]); in early 2014, Mr Ibrahim called Mr Zafiropoulos to tell him that Jamil and Mr Deiri were in negotiations in relation to the Arncliffe site (see at [38]); in late March to early April 2015, Mr Ibrahim called Mr Zafiropoulos to tell him that the money for the Arncliffe Development would be needed soon (see at [40]); in April 2015, Mr Zafiropoulos met again with Mr Ibrahim and Jamil to discuss the Arncliffe Development, and at that meeting Mr Ibrahim told Mr Zafiropoulos that he would have to "take us all to Lebanon for a trip as you will have a big pay day coming" (see at [44]); in May 2015, Mr Zafiropoulos attended Mr Ibrahim's birthday party and discussed the Arncliffe Site (see at [45]); in August or September 2015, Mr Zafiropoulos asked Mr Ibrahim for a copy of the Landmark White valuation report that was supposedly to be used to calculate the uplift amount on the Arncliffe Development and thus the site fees (see at [65]); and at some point, Mr Ibrahim introduced Mr Zafiropoulos to Mr Kanj (see his affidavit sworn on 8 November 2019 at [21]). 13. The Sayour Parties say, in summary, that Mr Ibrahim introduced Mr Zafiropoulos to Jamil, and brokered every step of Mr Zafiropoulos' dealings with Jamil, and then Mr Scott (who, as noted, owns a half interest in Mr Ibrahim's home) "ended up with nearly $5.5 million of the proceeds" of the Site Identification Fee(s) for previously undisclosed services rendered in "consolidating" the Arncliffe Site. It is submitted that this casts serious doubt on Mr Zafiropoulos' evidence that Jamil had offered to pay Mr Zafiropoulos half of the uplift value of the Arncliffe Site. 14. As to the transfer of $5.45 million from Zapphire to Bronson Properties (again, an entity controlled by the co-owner of Mr Ibrahim's home), Zapphire has submitted that the identity of the shareholders of Bronson Properties and officeholders of Bronson Properties is not relevant to whether the money ought to have been paid in the first place and whether it is recoverable. In response to that submission, the Sayour Parties says that the fact that such a very substantial sum of money was paid to an entity that invoiced Zapphire on account of "[s]ervices rendered in the consolidation and procurement of residential development site at 108 Prince Highway Arncliffe" goes directly to the question whether Mr Zafiropoulos and Zapphire have given a credible account of the origins of the Arncliffe Development. Indeed, they question Mr Zafiropoulos' evidence regarding the provenance of the project at the Arncliffe Site, his dealings with Jamil and Combined Projects Arncliffe, and Zapphire's claimed entitlement to receive payment of the so-called "site identification fees" from Combined Projects Arncliffe. 15. Other aspects of Mr Zafiropoulos' evidence that the Sayour Parties say (with some force) are not credible, are as follows. 16. First, Mr Zafiropoulos' evidence that he contributed $1 million towards the Arncliffe Development in 2015, noting that it is inconsistent with other evidence (for example, Mr Deiri's evidence that no moneys were contributed by or on behalf of Jamil after December 2014). 17. Second, Mr Zafiropoulos' insistence in cross-examination that he did not find out that Mr Deiri was involved in Combined Projects Arncliffe until after Jamil's death (cf, for example, Mr Zafiropoulos' evidence at [38]-[39] of his affidavit sworn on 9 October 2019 that he well knew before Jamil's death that Mr Deiri was Jamil's partner in the Arncliffe Development). 18. Third, Mr Zafiropoulos' claim that he found out about the Arncliffe Site from Mr Zouheir Bazzi (who was called to give evidence in support of Mr Zafiropoulos' version of events). The Sayour Parties point out that Mr Bazzi, when asked in cross-examination, said that he had not spoken to Mr Zafiropoulos "[b]efore today, for about six, seven years" (see T 1400.18-19) (cf Mr Zafiropoulos' affidavit sworn on 7 November 2019 at [16], in which he says that he had a face to face conversation with Mr Bazzi on 7 November 2019). 19. In this regard, the Sayour Parties submit that Mr Bazzi is not a witness of truth and that his account of any conversations with Mr Zafiropoulos six or seven years ago (among hundreds of customers) is not to be credited. 20. Fourth, it is said that it is a remarkable coincidence that Mr Zafiropoulos thought to reach out to Mr Deiri, after Jamil had passed away, through Mr Gav. It is noted that Mr Zafiropoulos barely knew Mr Gav (indeed his evidence was that he thought he was an accountant from Earlwood) yet he happened to locate the one person to whom Mr Deiri chose to delegate the task of organising collection of the site fee invoices. It is submitted that such a coincidence is too much to credit. 21. The Sayour Parties say that both Mr Zafiropoulos and Mr Deiri were squarely contradicted by Mr Gav as to the timing of these encounters (which Mr Gav placed in late 2017, long after Jamil's death), leaving unexplained the long delay in Mr Zafiropoulos reaching out to Mr Deiri. It is also noted that Mr Zafiropoulos "did not have a single piece of paper" that recorded his agreement with Jamil (Mr Zafiropoulos deposing to his computer also having been stolen). 22. In amplification of the preceding, the Sayour Parties also point to the following matters: that both Mr Zafiropoulos and Mr Kanj say that their computers were stolen (with no backups of any data there stored); that Mr Vamvakaris says he disposed of his computer (with no backups and no notes of his 30 September 2015 meeting with Mr Deiri); and that Mr Deiri kept no other notes of the Tripoli meeting or any record of any of the alleged adjustments to his dealings with Sayour Holdings and Jamil). The Sayour Parties say that it "defies belief" that "in this day and age, so many sophisticated men of business would all lose every trace of documentation recording such critical details of major business transactions with a dead man". 23. In response to the submission by the Sayour Parties to the effect that Mr Zafiropoulos' evidence ought not be considered credible because: $5.45 million was paid by Zapphire to Bronson Properties on 22 May 2019 (more than a month and a half after receipt of the Zapphire Payments); Ben Scott, the director and shareholder of Bronson Properties and Bronson Management is also a shareholder and director of D.I. Developments; Mr Fadi Ibrahim is a director and a current shareholder of D.I. Investments; D.I. Developments owns a particular property at, Dover Heights, which property is identified in company searches as being the residential address of Fadi Ibrahim. Zapphire complains that the submissions do not identify why, in the light of the matters raised, Mr Zafiropoulos' evidence should not be considered credible. Zapphire says those submissions should be rejected for the following reasons. 24. It is said that the payment to Bronson Properties was made, not in short order, but about 49 days after receipt of the Zapphire Payments, from accounts operated by Zapphire. It is said that what Zapphire did with the money it received by way of the Zapphire Payments is not relevant to whether the money ought to have been paid in the first place and is recoverable. 25. It is noted that Mr Zafiropoulos' evidence was: that the payment of $5.45 million was for building services provided to him to build a property at Belmore Street Arncliffe (T 1383.25); and that he never received and had no knowledge of the invoice referred to at [564] of Sayour Holdings' Submissions and agreed that Bronson Properties did not render any services in respect of the site of the Arncliffe Site (T 1383.36, T 1384.20-25). 26. Zapphire says that it was not put to Mr Zafiropoulos that the payment going to Bronson Properties meant that the Arncliffe Site had not been introduced to Jamil or that there was no deal. 27. Zapphire says that the tender of the D.I. Developments Pty Ltd company search, real property transfer and map searches (referred to at [562(c)] to [(e)] of the Sayour Holdings submissions) that were part of exhibit AJ and AK should be rejected (I understand, on the basis of relevance or, alternatively, that the documents were not put to Mr Zafiropoulos, though there was some confusion about this in oral submissions – see T 1473; T 1793.30ff). To the extent such an objection was and is still pressed, I consider that an objection on the basis of relevance should not be upheld; and, in relation to Mr Zafirpoulos' cross-examination, I consider that it was not necessary for the purposes of admissibility that the documents be put to Mr Zafirpoulos (and, in any event, nothing turns on this). 28. In any event, Zapphire says that evidence as to the office holders, shareholders and property opened by a company of which the director and shareholder of Bronson Properties is also a director and shareholder is not relevant to whether the money ought to have been paid in the first place and whether it is recoverable. 29. It is noted that the documents in exhibit AF were not put to Mr Zafiropoulos; nor was it put to him that the shareholding and landownership of D.I. Developments somehow meant that he did not introduce the Arncliffe Site to Jamil or make a deal with Jamil for the payment of a fee. 30. Further, Zapphire points out that there was no evidence of who controlled Bronson Properties; and that there was no evidence that the invoice in question (dated 7 April 2020) was sent to or received by Zapphire and that Mr Zafiropoulos gave evidence that he never received the invoice dated 7 April 2020. Finding 1. Leaving aside the incredulity expressed by the Sayour Parties as to the lack of documentation in general (as to which, see above), I make the same observation here in relation to Mr Zafiropoulos as I did in relation to Mr Kanj: I do not base my findings as to his credit (nor as to his claim as such) on the absence of documentation to support his assertions (although, again, Mr Zafiropoulos is disadvantaged by the lack of such documentation just as any claimant would be who no longer has documentary evidence of what is alleged to have been a written agreement). 2. That aside, I observed that Mr Zafiropoulos was much more experienced and less naïve, at least in a business sense, than Mr Kanj. Notwithstanding the comments that I have made in the preceding paragraph (and without seeking to detract therefrom), this makes it somewhat surprising that he would have been prepared to pay so much money on the faith of an alleged single piece of (now lost) paper, and including the alleged delivery of a not insubstantial amount of cash in a paper bag with no receipt obtained for any of those amounts. There are, however, no doubt many kinds of business dealings across the commercial world and there is little point here engaging in speculation as to the commercial wisdom of this particular enterprise. 3. Again, I make no findings of dishonesty against Mr Zafiropoulos. I simply note that there are elements of his account of the relevant dealings with Jamil that are implausible and I note again the distinction between non-acceptance of evidence as not credible and a finding of actual dishonesty (see again Royal Guardian Mortgage Management). Mr Dale 1. Zapphire takes issue with the proposition by the Sayour Parties that Mr Dale was "crystal clear", both in his affidavit evidence and his evidence in cross examination, that, as far as Mr Dale was aware, Jamil did not know about the Arncliffe Site until it was mentioned to Jamil by one of Mr Dale's sales staff; that Mr Dale's evidence is that his salesman mentioned the Arncliffe Site to Jamil; and that Mr Dale's evidence in cross-examination was in all substantial respects entirely consistent with his affidavit evidence. 2. Zapphire says that, when looked at in the light of Mr Dale's evidence in cross examination (see at T 689.18 – T 690.5), those submissions are incorrect. It is said that Mr Dale's evidence in cross examination was in several respects, but in particular as to the timing of his meeting with Jamil, different to his affidavit evidence. Zapphire submits that because of the differences between Mr Dale's affidavit evidence (see his affidavit sworn on 9 August 2019) and his evidence in cross- examination (see T 685ff), in particular as to whether he spoke with Jamil on the same day as he spoke with the employee (as he said in his cross-examination) rather than some time later (as he stated in his affidavit), Mr Dale's evidence as to the detail of his meeting (not that the meeting occurred) with Jamil is not reliable. It is noted that Mr Dale's affidavit evidence as to what his staff member said to him was admitted only as evidence of the words that were said, not as to the truth of what was said (cf the Sayour Parties' submissions at [925]). Finding 1. I considered Mr Dale to be a genuine and co-operative witness. His recollection was broadly consistent with the contemporaneous documents. Mr Vamvakaris 1. Konstructions says that no criticism should be made of Mr Vamvakaris' incomplete recollection of what must have been a much longer conversation. It is said that his professed lack of recollection, and his reluctance to "fill in the gaps" by speculation or usual practice, are the hallmarks of an honest witness who is attempting to give his best evidence to the Court and that he avoided speculation, hearsay material or conjecture or reliance on usual practice to "fill in" the evidence. Finding 1. I found Mr Vamvakaris to be a credible witness. In particular, I accept his evidence as to the conversation he had with Mr Deiri after the so-called "deathbed" conversation and the creation of the Development Management Agreement. I do not accept the implicit suggestion in the course of cross-examination that Mr Vamvakaris backdated the creation of any documents; nor do I accept that there is anything inherently suspicious about a draft document being on a USB stick "momentarily" which was then disposed of by Mr Vamvakaris at some stage. Relevantly, however, I consider that his evidence only goes to a limited extent in corroborating Mr Deiri's evidence or that of the other witnesses who invoked Mr Vamvakaris as corroborating their accounts. At best, Mr Vamvakaris knows what Mr Deiri told him at the time and there is no suggestion, on Mr Vamvakaris' account of the events, that he was told the precise figures (just vague details as to the method of calculation). Expert witnesses 1. I now turn to the expert evidence; such evidence was given by expert witnesses on a number of issues. Mr Dubedat 1. Mr Dubedat gave unchallenged evidence as to his findings in relation to a comparison of the handwriting on various documents. I accept that evidence. It is not necessary here to summarise those findings. Mr Milton/Mr Kapouris 1. Expert evidence was given by Mr David Milton, the managing director of CBRE, with extensive experience in marketing and sale of residential properties, for the Deicorp Entities; and by Mr Yorgo Kapouris, a real estate agent with experience mainly in the Arncliffe area and surrounds, for the Sayour Parties. 2. Mr Milton tended to be a didactic in the witness box but clearly had a wealth of experience in marketing of large scale residential developments including to overseas purchasers and through the use of what he deferred to as "channel agents", a term with which Mr Kapouris was unfamiliar but which in essence Mr Milton explained as meaning third party agents acting in conjunction with a principal agent in relation to sales. 3. Ultimately, Mr Kapouris' evidence relevantly came down to the proposition that he considered the fees charged under the impugned agency commission agreement to be unreasonable by reference to the fees he would ordinarily have charged. However, when pressed on the issue as to conjunction fees, it seems that the difference in overall commission fee was not great – some 1.1% between the two positions. 4. Mr Milton, whose experience in the area was evident from this explanation of matters during the concurrent evidence, also confirmed that Home789 to whom the agency agreement related was regarded as a reputable company (see, for example, at T 1414) in the industry. 5. Mr Kapouris, somewhat counter-intuitively to my mind, suggested that an agent would be more "incentivised" by a lower rate of commission than a higher rate. This seemed to be based on an understanding that a lower commission rate indicated that sales would be more readily achieved and that a higher commission rate would reflect the likelihood of more differently in effecting sales. Mr Milton's explanation of this I found more in accordance with common sense but ultimately nothing turns on this. On the evidence of both experts, I cannot find that the agency commission was unreasonable. 6. Further, I considered it telling that Mr Kapouris seemed to suggest that he would "grab" an opportunity to enter into commission arrangements of the kind that Mr Milton suggested would commonly be available. Mr Portelli/Mr Sanig 1. Expert evidence was also given by two expert quantity surveyors – Mr Portelli for the Deicorp Entities and Mr Sanig for the Sayour Parties. 2. In general, I found both experts to be cooperative and helpful. Mr Sanig struck me as somewhat pedantic and a bit confrontational (see at T 1444.37). Nevertheless, he accepted that at the end of the day the "mixing up" of variations and provisional sums to which he had deposed would not have an effect on the overall cost and he accepted that, when he had been critical of acceptances of variations and the like (based on them simply having been accepted), it could have been that they reflected a negotiated outcome. 3. Insofar as criticism was made of the use by Mr Portelli of the "Rawlinsons" guide as a benchmark, I accept Mr Sanig's explanation that he regarded it as a conservative benchmark and that he had applied a discounted rate in any event. 4. On the whole, I consider that Mr Portelli's opinion reflects a genuine opinion of the amounts that might reasonably have been charged in relation to the relevant development. This is not relied upon to establish a quantum meruit figure but rather, as I understood it, to demonstrate that the amounts as provided for under the contracts in the present case were not unreasonable (and to demonstrate that the Sayour Parties have in fact obtained the benefit of a building that would have cost around the sum actually paid for it had they utilised the services of another construction company). Broadway Proceedings 1. I turn (finally) to the various cross-claims made in the Broadway Proceedings. It is convenient first to consider, and to determine, various key factual findings that are sought and on which those various cross-claims are to be determined. Key factual findings sought in the Broadway Proceedings 1. Before turning to the issues raised for determination on the respective cross-claims in the Broadway Proceedings, it is convenient at this stage to deal with various of the factual findings that parties have urged me to make, since those were helpfully chronicled in various of the parties' submissions. Factual findings sought by CBA in Broadway Proceedings 1. On the first and fifth cross-claims brought by Plaza against CBA (see above), CBA contends for the following factual findings (as to a number of which, there does not appear to be any dispute). CBA factual finding (i): the corporate entities 1. As to the relevant corporate entities, CBA seeks a number of findings. 2. First, as to Moustafa, that, in and between 2011 and 2014, Moustafa was the sole director and shareholder of Plaza and the sole director and a shareholder of Biomed; that both Plaza and Biomed were Moustafa's companies; and that Moustafa was the controlling mind and hand of both companies. 3. Second, in relation to Mr Deiri, that, between 2011 and 2014, Mr Deiri was the sole director and (through Deiri Nominees) a shareholder of Investments; and that Mr Deiri was the controlling mind and hand of both companies. 4. Those matters are not disputed by any of the parties and I so find (though an issue does arise, to which I will come in due course, as to the scope of the authority given to Jamil in relation to Plaza). CBA factual finding (ii): arrangements for funding and account operation for the Broadway Development 1. As to the arrangements for the funding of the Broadway Development, CBA contends for a finding that, on 1 February 2012, to facilitate the construction of the two stages of the Broadway Development, Plaza and Investments opened the CBA Partnership Account; and that, by their application and authority signed on that date (as to which, see at [208] above), Moustafa and Mr Deiri were authorised jointly to sign cheques on the CBA Partnership Account. 2. The Sayour Parties point out that the CBA Partnership Account was opened by at least 4 January 2012 (again, see the relevant chronology at [208]ff above). Leaving aside the precise date on which the account was opened, it is not disputed that the CBA Partnership Account was opened by an application dated 22 December 2011 signed by both Moustafa and Mr Deiri, and I so find. 3. Meanwhile, CBA accepts that its mandate required the signature of both Moustafa and Mr Deiri on cheques drawn on the CBA Partnership Account, and I so find (though, it contends for a finding that Moustafa authorised Jamil to operate the account). CBA factual finding (iii): First Facility Agreement 1. CBA next contends for a finding (and again this is not disputed) that, on 15 February 2012 (see at [261]ff above), Plaza and Investments entered into the First Facility Agreement to borrow from CBA $45,597,000 to fund the Stage 1 construction, upon terms that: first, the borrowing limit would be $45,597,000, of which short-term finance of $5.5 million would be repaid after eight months of the date of first drawdown, the balance to be refinanced after a further 18 months (i.e., 26 months from first drawdown); second, by that refinancing, $11,297,000 was to be paid down, leaving a balance of approximately $34.3 million to be repaid after a further 36 months; third, Plaza and Investments would pay into the CBA Partnership Account revenue from the Broadway Development, which revenue would be available to CBA to apply towards sums due to CBA under or in relation to the First Facility Agreement; fourth, Plaza and Investments would provide to CBA a first and last right of refusal to fund the construction of the residential apartments; and fifth, CBA would be entitled to debit to the CBA Partnership Account of fees and interest due on the loan for Stage 1. Further, CBA contends for a finding that the first drawdown under the First Facility Agreement was on 29 February 2012. 2. As to those matters, Moustafa admits that he signed the First Facility Agreement on behalf of Plaza and entry by Plaza into that agreement on terms including those set out above is not disputed. Accordingly, I make that finding. 3. As to the first drawdown, there is a dispute as to whether various of the accommodation notices (as they are described in that facility agreement) were authorised (and, for example, there is not a copy in evidence of the first of those accommodation notices). Nevertheless, it does not appear to be disputed that the first drawdown of funds under the First Facility Agreement in fact occurred on 29 February 2012; and I so find. CBA factual finding (iv): Amended and Restated Cash Advance Facility Agreement and the Second Facility Agreement 1. CBA then contends for a finding that, on 20 June 2013, two further agreements were entered into: the Amended and Restated Cash Advance Facility Agreement (see at [363] above) which reduced the limit under the First Facility Agreement to $34.3 million (reflecting, it is said, the arrangement embodied in the First Facility Agreement); and the Second Facility Agreement to fund the Stage 2 residential construction (see at [33] above), which provided an Accommodation Limit of $42,037,000. Crucially, Plaza maintains that these documents are forgeries. 2. Suffice it for present purposes to note that I accept that those documents were signed by Mr Deiri on or around the dates they bear, but that the evidence of the forensic expert (Mr Dubedat) comfortably establishes that it is not Moustafa's genuine signature on these documents. I address in due course the significance of that finding, including as to what is meant by a finding of forgery at common law and the opposing contentions as to Jamil's authority to sign such documents on behalf of Moustafa or Plaza. CBA factual finding (v): first drawdown under the Second Facility Agreement on 1 October 2013 1. Next, CBA contends for a finding that the first drawdown under the Second Facility Agreement occurred on 1 October 2013. Plaza disputes the validity of this agreement (and it says that the second accommodation notice is not authorised). However, it is not disputed that moneys were in fact drawn down, purportedly under the Second Facility Agreement, on this date. Accordingly, I so find. CBA factual finding (vi): cheques drawn between 1 February 2012 and 16 December 2015 1. Next, CBA contends that cheques totalling $39,909,946.93 were drawn and paid on the CBA Partnership Account between 1 February 2012 and 16 December 2015; and that, during the same period, the total amount drawn down under the First Facility Agreement and Second Facility Agreement was $69,567,528.30 (in addition, that fees, charges and interest were in part debited to the CBA Partnership Account and in part capitalised). The fact of payment of these amounts out of the CBA Partnership Account (and that interest charges and the like were debited to the account or in part capitalised) is not disputed and I so find. However, what is disputed is that the payments were authorised and as to the nature of those payments. I deal with this in due course. CBA factual finding (vii): reduction on 1 October 2013 of balance owing 1. The next finding for which CBA contends is that, as contemplated under the First Facility Agreement, the balance owing on 1 October 2013 was reduced by $11,297,000 drawn down from the Stage 2 Loan. It does not appear to be disputed that (as a matter of accounting, at least) this occurred and I so find. CBA factual finding (viii): Moustafa's receipt of quotations for Broadway Development and signing of contracts 1. Next, as to the construction of the Broadway Development, CBA contends for a finding that Moustafa received from Deicorp Constructions two quotations, one for $40 million plus GST for Stage 1 and one for $23.5 million plus GST for Stage 2; and that the Construction Contract for Stage 1 was signed on 8 February 2012 and for Stage 2 on 15 May 2013. 2. In this regard, CBA says that Moustafa's evidence that he initially signed a construction contract for Stage 2 early in 2012 (which was denied by Mr Deiri) is unsupported by any documentary or other evidence (and should not be accepted). 3. I accept that the evidence establishes the receipt of separate tenders for each of Stage 1 and Stage 2 of the construction (see at [139]; [234]; [354] above). I have already noted the discrepancy in the letterhead and corporate entities referred to in the respective quotations (see at [234] above). Further, it is not clear why the first tender was re-submitted in February 2012 (see at [234] above), unless it was thought necessary to do so after the partnership had been formally registered. 4. I also accept that the evidence establishes the signing of the respective construction contracts on or about 8 February 2012 and or about 15 May 2013, respectively (albeit that the Stage 2 Construction Contract was not personally signed by Moustafa, who was overseas at the time – see at [334] above). 5. As noted by CBA, Moustafa's evidence that he signed a construction contract for Stage 2 at an earlier time (in early 2012) is unsupported by any documentary evidence; and I reject it as implausible. It is not readily apparent why a construction contract for Stage 2 would have needed to be signed at that earlier time. It seems far more likely to me that Moustafa was simply mistaken in what he thought he had signed in relation to the Stage 2 Construction Contract. In any event, I place weight on the contemporaneous signed documents over Moustafa's recollection of events insofar as his recollection is unsupported by any documentary evidence. CBA factual finding (ix): Moustafa's involvement in the Broadway Development 1. As to Moustafa's involvement in the Broadway Development, CBA contends for a series of findings. It is convenient to consider each in turn. 2. First, that, although Moustafa had a direct involvement in the acquisition of the site and design of the building, from the time construction began until Stage 1 and Stage 2 were completed, Moustafa took virtually no part in the Broadway Development; instead, he delegated this to Jamil, who had practical everyday control of the Broadway Development on behalf of Plaza; that Moustafa stopped attending project coordination meetings in about August 2011; that Moustafa "stood back" in this fashion because he did not think he needed to be heavily involved in the construction as he was inexperienced with construction works; that Moustafa relied upon Jamil to provide reports as to progress and as to the moneys being paid; that Jamil "had checked the amounts and was happy" with them; and that their discussions were never "very in-depth". 3. Pausing here, the Sayour Parties say that the evidence of attendances at project coordination meetings shows that Moustafa attended project co-ordination meetings on a regular basis until late November 2011 and attended further meetings (albeit infrequently) until April 2013. It is said that Moustafa's attendance is about as frequent as that of Mr Deiri and Jamil; and that nothing turns on Moustafa's attendance (or non-attendance) at the meetings, noting that the admitted responsibility for construction in the Broadway Partnership belonged to Investments (referring to Ex A for Mr Deiri's admission to that effect). Further, it is submitted that, in circumstances where Moustafa understood the construction was to be (with the exception of excavation, which he says was to be procured by Investments) entirely funded by a loan to pay a fixed price construction contract, his level of enquiry is understandable, and that it does not give rise to a finding that he stood back and left everything to Jamil. 4. I here observe that Moustafa's level of attendance at project coordination meetings over the period, as recorded in the meeting minutes, was sporadic. True it is that the attendance of others at such meetings (including Jamil and Mr Deiri) also varied over the course of the development. Nevertheless, it cannot seriously be disputed that Jamil had the practical day-to-day dealings with Mr Deiri and others in relation to the project and that Jamil's email was the email address used for communications in relation to the project. On Moustafa's own evidence, he (Moustafa) was inexperienced in construction works. It is not implausible that Moustafa effectively left it to Jamil to deal with the day-to-day aspects of the project (and, as the Sayour Parties themselves accept, his level of enquiry as to construction and other details is understandable). Although there is obviously room for dispute as to Jamil's level of authority and the role that was delegated to him, as to which I will deal in due course, I find that Moustafa did, as a practical matter, leave it to Jamil to deal with others (including Mr Deiri and, to the extent necessary, CBA) in relation to the day-to-day aspects of the Broadway Development. Thus, at a general level, so to speak, I make the findings sought, though with the qualifications made above. 5. Second, in this regard, that Moustafa left it to Jamil to engage on Plaza's behalf in all facets of the construction and in Plaza's dealings with Investments, Mr Deiri and Deicorp Constructions. Again, this is supported both by Moustafa's own evidence and the documentary evidence, and I so find. Again, however, the extent of his authority in so doing is another matter, to which I turn in due course. 6. Third, that Jamil visited the offices of Investments and Deicorp Constructions several times a week during the course of construction of the Broadway Development; and Moustafa did not. That is consistent with the documentary evidence, and with Moustafa's evidence, and I so find. 7. Fourth, that Moustafa left Plaza's involvement in the construction to Jamil; that Moustafa was not concerned about payments being made in the course of construction as long as Jamil was satisfied about those, as Jamil was looking after the Broadway Development; that Moustafa was happy with the amounts being paid because Jamil was happy; and that Moustafa never pressed Jamil for a detailed explanation of the costs or expenses of construction. 8. I note that conclusions of that kind are said to be consistent with Moustafa's evidence (though, I interpose here to note that it is evident at least from the email communications between Jamil and Mr Deiri that what Jamil was conveying to Mr Deiri was that he, Jamil, was being called upon from time to time to explain project costs or details to Moustafa – see, for example, the email of 10 November 2013 considered at [419] above). Leaving aside whatever level of interaction there was (and the precise nature of those interactions) as between Jamil and Moustafa themselves, what is apparent is that Moustafa did not involve himself in the practical day-to-day administrative tasks in relation to the payment of construction expenses of the like (so, for example, it is not disputed that Moustafa never operated a cheque book or drew cheques for the payment of construction expenses). Indeed, on his own evidence, it seems to have been a mystery to Moustafa as to how those expenses were being paid without his signature on cheques (his assumption in evidence being that the expenses were being funded through Biomed, but even then he had no direct role in that occurring). Broadly, therefore, I accept that the findings described at [1095], [1098]-[1100] should be made, but I would qualify the last by noting that there is evidence to suggest that, from time to time, Jamil was, or felt, called upon to explain questions of costs to Moustafa. CBA factual finding (x): the Powers of Attorney 1. Next, CBA contends for a finding that Plaza and Moustafa granted to Jamil Powers of Attorney relevantly dated 30 May 2010, 8 December 2011, 26 March 2012 and 4 February 2013 (which is not disputed); and that there was always at least one Power of Attorney from each of Plaza and Moustafa extant at all relevant times (that also does not appear to be in dispute). I so find, though again I note that there is a dispute as to the scope of the authority thereby granted to Jamil (which I will turn to in due course). CBA factual finding (xi): Moustafa's attendance at the "Grand Opening" and knowledge of expenditure 1. CBA next contends for a finding (not disputed and, indeed, confirmed by the photographic evidence before me) that Moustafa attended the "Grand Opening" of the Stage 1 carpark/retail complex, at which time there were six residential levels under construction. I so find. Further, Moustafa (having been referred in cross-examination to the photograph on the first page of the Napier & Blakeley report for the respective progress claim) accepted that he had been aware that a great deal of work had already been done on Stage 2 of the Broadway Development and that, by that time, a lot of money had obviously gone into the Stage 2 construction. I so find. CBA factual finding (xii): cheques drawn on CBA Partnership Account 1. As to various of the cheques drawn on the CBA Partnership Account, the findings sought by CBA are more contentious. 2. First, CBA seeks a finding that, on 1 February 2012 and 1 May 2014, cheques #104 and #462 drawn on the CBA Partnership Account, for $77,234.50 and $45,000 respectively, repaid to Biomed amounts previously advanced by it; that neither cheque was signed by Moustafa yet Biomed received the funds into its general account and spent them in the ordinary course of business; that Moustafa did not cause Biomed to repay such amounts to the Broadway Partnership or its Receiver; and that no claim is made for those funds in these proceedings. 3. It is contended by CBA that Moustafa, and thus Plaza, willingly accepted that, although the cheques were not signed in accordance with the bank's mandate, they were nonetheless efficacious to discharge liabilities in relation to the Broadway Development. I will deal in due course with Plaza's answer to this contention. For present purposes, suffice it to make (and I do here make) the findings that these cheques (which were not signed by Moustafa) were deposited into Biomed's general account and that Moustafa has not caused those funds to be repaid to the Broadway Partnership or the Receiver (and does not make any claim for those funds in these proceedings). As to whether these cheque payments constituted repayments of loans, I accept that the cheque details suggest that these were repayments of loans advanced by Biomed, but there is little detail about this (and nothing turns on any such finding so it is not appropriate here to make it). 4. Second, that, at the conclusion of construction and after sale of the apartments, Moustafa personally received two cheques (#517 and #522) drawn on the CBA Partnership Account for $3.35 million and $1.65 million, respectively; and that (although CBA maintains that the destination of the proceeds after they were deposited is immaterial in the dispute between Plaza and CBA) Moustafa deposited these cheques into an account of the Sayour Family Trust (of which Plaza was the trustee). There is no dispute as to those matters (although Moustafa's evidence as to the deposit of the cheques was that he followed Jamil's instructions – see, for example, at T 471) and I so find. 5. Pausing here, emphasis is placed by CBA on the fact that in the Estate Proceedings, Plaza averred (and Moustafa verified) that these cheques were the property of Plaza. It is said by CBA that Moustafa understood these to be distributions of profit; and that Plaza retained them and has not offered to reimburse them to the Broadway Partnership or its Receiver, even though the cheques were not signed by Moustafa. I deal with Plaza's explanation for this in due course. 6. Third, as to cheques (#526, #530, #507, #513 and #527) for $300,000, $250,000, $2.19 million, $1.75 million and $100,000, respectively, that these were all asserted and verified to be the property of Plaza, for which Plaza sued Jamil's executor in the Estate Proceedings; and, again, that these moneys have not been reimbursed or offered to the Broadway Partnership or Receiver. Again, this does not appear to be disputed and I so find. 7. Fourth, that payments were made by cheques drawn on the CBA Partnership Account for, inter alia, land tax, Council rates, water rates, real estate agency services, preparation of the subdivision plan and GST, all of which Moustafa acknowledged were payable by (and were paid by) the Broadway Partnership although these cheques were not signed by Moustafa. That is supported by the evidence (to which I refer in due course) and Plaza (for, it says, pragmatic purposes) did not ultimately dispute that a number of payments of this kind were for partnership expenses. Accordingly, again, I so find. CBA factual finding (xiii): Moustafa's acceptance of CBA funding 1. Next, CBA contends for a finding that Moustafa accepted that CBA had provided the funds required to enable the Broadway Development, although he had not signed any documents after the initial documents in February 2012. 2. This is supported by Moustafa's own evidence, and I so find. CBA factual finding (xiv): Moustafa's acceptance of distributions to Mr Deiri and Investments 1. Next, that Moustafa also accepted that (just as Plaza had received its share of distributions totalling approximately $9.5 million) Mr Deiri/Investments received its share of distributions totalling approximately $9.5 million and that this was appropriate even though none of the cheques had been signed by him. 2. Again, this accords with Moustafa's evidence, albeit that he may have queried how it was that cheques could be made without his signature. I so find. CBA factual finding (xv): Moustafa's knowledge of construction costs 1. Next, CBA seeks a finding that Moustafa knew that the cost of construction would be (and was, with the addition of GST and CBA's fees, charges and interest) well above $70 million (it is said Moustafa knowing that construction of the carpark and retail complex of Stage 1 would cost "upwards of" $40 million, having observed the construction of the Stage 2 apartments and knowing that the construction costs for both Stage 1 and Stage 2 would, and did come, from CBA). 2. CBA says that Moustafa's disavowal of knowledge of a second component to the borrowings from CBA ought to be rejected. It is noted in this regard that Moustafa received building quotes totalling $63.5 million (as to which, see my findings at [1528]ff above). CBA emphasises that Moustafa, on his own evidence, signed no cheques and no accommodation notices and did not sign the Second Facility Agreement, yet he knew that construction was occurring (at a cost of above $70 million). 3. In addition to the fact that Moustafa received the quotations totalling $63.5 million (plus GST), it I also not disputed that Moustafa signed the First Facility Agreement (as to which, see my finding at [1081]ff above) and, therefore, was aware of the existence of bank charges, interest and the like, to be added to the cost of the development. 4. I find that Moustafa was aware that the cost of the overall development (including GST and other charges) would be in the order of in excess of $63.5 million (indeed, in the witness box, Moustafa accepted that it would come to around at least $70 million – see T 546.19). Whether or not Moustafa appreciated that he knew that the construction costs would be "well above" $70 million is a moot point. Suffice it to note that I accept he was aware that the construction costs of both stages were being funded by CBA. CBA factual finding (xvi): cheque-signing authority a "mere formality" 1. Next, CBA contends that the evidence supports a finding that Moustafa considered the original cheque-signing authority as a "mere formality", noting that Moustafa never asked anyone at CBA about the cheque-signing authority or the CBA Partnership Account and knew that CBA had issued cheque books for use on the CBA Partnership Account before the apartments were sold and that Mr Deiri kept the cheque books. It is said that Moustafa was not concerned with the use made of the cheque books during the course of construction. CBA contends that Moustafa's evidence (attributing his lack of concern as to the drawing of cheques to his belief that all cheques would require his signature) ought to be rejected. CBA submits that if, in truth, Moustafa had had a genuine belief that cheques could not be issued (or processed) without his signature then, upon his receipt of the two cheques for $3.35 million and $1.65 million (those being the only two cheques he says he ever saw), he would have either signed the cheques himself (before depositing them) or refrained from depositing them (and it is noted that Moustafa did neither – as to which, see the chronology of events set out earlier). 2. As to CBA's submission that Moustafa considered that cheque and signature authorisations was a mere formality and that he never asked anyone at the CBA about the cheque-signing authority or the CBA Partnership Account, the Sayour Parties respond that it is unclear what Moustafa needed to ask. 3. In any event, insofar as CBA has sought a finding that Moustafa was not concerned about the use of cheque books during the course of construction, that is, to my mind, amply borne out by the evidence. I cannot accept that Moustafa believed that day-to-day cheques for construction costs (as opposed to partnership distributions, say) required his signature. This is not least so given that he was already aware that construction was occurring and, therefore, that he must have appreciated that construction costs were being paid (since it is unlikely it would be built for nothing) and he knew that he was not signing any cheques. 4. As to the submission by CBA, relying on the two cheques that Moustafa banked in November 2014, that Moustafa did not have a genuine belief that cheques could not be issued or processed without his signature, the Sayour Parties say that, at best, the implication can only be put against Moustafa from November 2014 but that there is in any event a difficulty in suggesting that a general implication can be drawn from Plaza (through Moustafa) banking (as it thought) its own funds, of which it was the payee. It is submitted that it would be apparent, from that, that Plaza specifically authorised the two particular cheques. 5. The Sayour Parties note that, in cross-examination, it was put to Moustafa that he knew of cheque books being issued for the CBA Partnership Account. It is submitted that Moustafa's evidence concerning his knowledge of a Broadway Partnership cheque book and the fact that it was kept by Mr Deiri is of little moment. The Sayour Parties say that the email exchanges between Mr Deiri and the CBA employees concerning the opening of the account and the need for cheque books to be issued "ASAP" show plainly that it was Mr Deiri who was insistent on having a cheque book (see, for example, Ex 15 pp 149–151). The Sayour Parties point out that neither Jamil nor Moustafa was included in these exchanges; rather, that Mr Deiri merely forwarded the exchange afterwards to Jamil for his information. 6. As to this, I accept that Moustafa never asked anyone at CBA about the cheque signing authority or the CBA Partnership Account (that much is not disputed by him) and that he did not concern himself with the mechanics of how cheques were being drawn for the project. I consider it telling that, although Moustafa queried Mr Deiri as to how payments could be made without his signature (in relation to the later partnership distribution cheques), he did not even then raise an issue with CBA as to this (although I accept that this was at a time when Moustafa was no doubt. and understandably, pre-occupied with other issues – not least his son's terminal illness diagnosis). Nevertheless, what the banking of the two November 2014 cheques clearly shows is that Moustafa was prepared to accept at least some cheques drawn without his signature; and he did not then raise an issue with CBA when he found out that at least those two cheques had been drawn without either his signature of reference to him (and he did not refund those amounts). CBA factual finding (xvii): Moustafa's knowledge that construction costs were being incurred without his signature 1. Following from the preceding, CBA contends for a finding that Moustafa recognised that construction costs (again, those funds being obtained from CBA) were being incurred without his signature on documents and that he thought this "strange", because he could see that money was being spent even though he was not being asked to sign any documents; yet Moustafa did not contact CBA to enquire how payments were being made without his signature. It is said that this is consistent with Moustafa's own evidence. In that regard, CBA attaches great significance to Moustafa's acceptance that all of the funds advanced by CBA were to be repaid to it, including the construction costs for the apartments, together with interest and charges, even though Moustafa had not signed cheques or other documents. 2. As to the above submission, the Sayour Parties point to Moustafa's further evidence (said not to be challenged in cross-examination) that he would ask Mr Deiri if his signature was needed, particularly when he was about to go overseas (see his affidavit sworn on 16 September 2019 at [102]). The Sayour Parties say that it is understandable that Moustafa did not make enquiries of CBA when he consulted Mr Deiri whom he knew and trusted (as to which, see also the internal bank file notes in relation to the approval of the initial facility agreement). . 3. Again, and as adverted to above, I accept that Moustafa must have been aware that money was being spent on the construction of the Broadway Development (and his evidence does not suggest otherwise, albeit that he says he thought the expenses were being paid out of Biomed). As I have found, he was aware that the construction was to be financed by CBA and must be taken to have been aware (having signed the First Facility Agreement) that the construction costs of at least Stage 1 of the development were to be funded by CBA over the course of the development (although I note in his evidence that he was not taken in detail through the terms of the agreement). Likewise, he accepted that the funds provided by CBA were to be repaid to it together with interest and charges. And again, he must also be taken to have been aware at the time that those costs were being paid without him having signed any cheques – since his evidence was that he did not sign any of the cheques. 4. Pausing here, Moustafa's evidence that he would ask Mr Deiri when he was going overseas if his signature was needed sits somewhat uncomfortably with his apparent practice (of which he also gave evidence) of granting powers of attorney when he was going to go overseas. Moreover, accepting for present purposes that Moustafa did make such enquiries of Mr Deiri, it is by no means clear that this related to (or would have been understood by Mr Deiri as relating to) what might be described as day-to-day construction payments (for which Moustafa was not signing cheques even when he was in the country). It seems more likely that any such enquiry would have been understood as relating to the signing of documents for the purpose of major decisions in relation to the Broadway Development (although I accept that this involves a degree of speculation on my part). 5. I accept that the evidence establishes that Moustafa did not contact CBA at any time to enquire as to how payments were being made. I am not persuaded that Moustafa's evidence establishes that he thought it was "strange" at the time that construction was occurring without him being asked to sign any cheques. It seems to me that his evidence is equally consistent with him now thinking it to be strange but not having turned his mind to it at the time. However, even if he did think it strange at the time, Moustafa does not appear to have considered it necessary or prudent to check with CBA what was happening. CBA factual finding (xviii): "manila folder procedure" and related matters 1. Finally, CBA says that the evidence of Mr Deiri and Ms Dahdal as to a practice in Mr Deiri's office whereby (for two years, from 2012 until February 2014) cheques and accommodation notices were: prepared (first, by Ms Dahdal and, later, by her accounts team); signed by Mr Deiri; placed in a manila folder; left for Jamil's collection to be taken to Moustafa for his signature; taken away by Jamil; returned to the office; and then dispatched to pay accounts, should not be accepted. CBA says that such a cheque-signing practice is both inherently improbable and is inconsistent with the objective contemporaneous materials. I interpose to observe that Plaza adopts those submissions to the extent that it urges a finding that the evidence of Investments' asserted practice for the signing of cheques and notices to operate the CBA Partnership Account and the loan facility should not be accepted.) 2. As this issue has assumed no little significance in the context of these proceedings, I consider this proposed factual finding separately in due course below. For present purposes, however, I note in summary that I accept that a cheque signing practice involving a manila folder (and, not dissimilar to that practice which I have just outlined) is not inherently implausible and it is supported by the contemporaneous email from Ms Dahdal to Jamil about leaving cheques in a folder on Mr Deiri's desk, to which I have referred above (see at [349] above). However, I cannot accept that the practice of Jamil taking such a folder away for Moustafa to sign cheques has been established (not least because the evidence of Mr Dubedat makes clear that Moustafa did not in fact sign any of the cheques and, also, the findings that I have just made in relation to Moustafa's own evidence and knowledge). That said, what does remain possible is that from time to time Jamil may have taken the folder away (perhaps to enable him to review expenses with Moustafa – as is suggested occurred by reference to Jamil's email to Mr Deiri in which he referred to reviewing expenses with his father – see at [359] above). 3. In this connection, I should here record that I do not accept that the evidence establishes that Mr Deiri had any particular belief at the time as to how the cheques were initially being signed. The evidence does not show that he was familiar with Jamil's (or Moustafa's) usual signature at the outset of the project. However, what is telling is that, not long after the CBA query as to the authenticity of he "Jamil" signature, Mr Deiri took steps (using, it appears, a template signature block) to alter the bank's mandate to allow for the signing of cheques by only one of the partners. By that time, therefore, Mr Deiri must have been well aware that Jamil's signature (or at least a dubious Moustafa signature appended by someone other than Moustafa) had been appended to at least one of the cheques (and must have appreciated that this was not authorised under CBA's then existing mandate). 4. I now turn to determine the factual findings sought by the Deiri Parties in the Broadway Proceedings. Factual findings sought by Deiri Parties in Broadway Proceedings 1. The Deiri Parties have similarly sought a series of factual findings in the Broadway Proceedings. Again, it is convenient to consider seriatim each of those contended for findings. Factual finding #1: Jamil was empowered to run the business of Plaza 1. The Deiri Parties contend for a finding that Jamil was authorised and empowered to run the business of Plaza, including: being the point of contact with Investments and CBA; negotiating terms and agreements with Investments; managing Plaza's finances and bank accounts; directing Investments where and how to make payments related to the Broadway Partnership, and receiving such payments on Plaza's behalf; monitoring and making decisions about the construction; and reviewing and approving expenses related to the Broadway Partnership, including how much money was being spent on construction and paid to the builder. 2. The Deiri Parties identify this issue as to the nature and extent of the authority Jamil had to act for Plaza and Moustafa as relevant primarily to three areas of controversy. These are as follows: first, Plaza's claims in the Second Broadway Cross-claim that it did not receive payments promised by Investments in respect of the Broadway Site and its claims pleaded in the Fifth Broadway Cross-claim that it did not receive partnership distributions (the Deiri Parties submitting that Jamil was authorised to direct and receive those payments on Plaza's behalf, and that Plaza did receive those payments); second, Plaza's claims in the Fifth Broadway Cross-claim that the payments by Investments to Jamil (it is said, an agent for Plaza) were not disclosed to Plaza and hence constituted bribes (the Deiri Parties submitting against this that Jamil had the authority to direct and receive the payments on behalf of Plaza and, by reason of that authority, the payments were not made to Jamil himself or for his personal benefit, and did not constitute bribes); and third, Plaza's claims against CBA for breach of mandate in respect of the cheques and transactions on the CBA Partnership Account and the drawdowns on the facility paid to the builder (the Deiri Parties again submitting that Jamil had authority to authorise those transactions). 3. The Sayour Parties say that the Deiri Parties' submissions as to this factual finding exaggerate the position of Jamil. They say that it is not necessary for Plaza to suggest that Jamil did not have a substantial role in management but that the Deiri Parties unfairly deprecate the role of Moustafa and extend the role of Jamil. 4. For the purposes of this contended for factual finding, the Deiri Parties rely upon a succession of matters as demonstrating that Plaza (through its director, Moustafa) conferred that authority upon Jamil. Those matters (and the Sayour Parties' responses thereto) are as follows. Powers of Attorney granted by Plaza and Moustafa to Jamil 1. I consider in due course the efficacy and scope of the Powers of Attorney granted to Jamil. However, for the purposes of this factual finding sought, the Deiri Parties simply rely upon the fact of execution of these instruments (which, as will be considered in due course, they also maintain were not confined only to the exercise of leasing functions) as evidence that Jamil was in fact given the authority to run the business of Plaza, including its role in the Broadway Development. They contend that, from late March or early April 2012, Mr Deiri knew that Jamil had a full power of attorney (limited only in that it precluded the encumbering or disposing of real estate), noting that Mr Deiri gave evidence that, at about that time, he was told by Jamil that Jamil had been given a "full power of attorney" and was given a copy of the 26 March 2012 Plaza Power of Attorney (as defined and considered in the chronology at [276]ff above). Although, I note that Mr Deiri, however, does not contend that he in fact relied upon this Power of Attorney at the time. 2. The Deiri Parties say that, regardless of their legal efficacy, the execution of instruments which purported to give full authority to Jamil to do everything Plaza could do is highly probative evidence that Jamil was in fact given authority to run the business of Plaza (including its role in the Broadway Development). They maintain that it evidences actual authority arising independently of the Powers of Attorney themselves. 3. The Deiri Parties say that the explanation given by Moustafa (that the Powers of Attorney were executed only to permit Jamil to perform leasing functions) does not withstand scrutiny, noting that the first two Powers of Attorney granted by Plaza dated 30 May 2010 and 8 December 2011 (see at [101]-[196] above) make no mention of leasing (simply conferring full authority, with an exception for encumbering or disposing of real estate), though accepting that there is additional wording in the later Powers of Attorney. It is submitted by the Deiri Parties that the additional wording, objectively construed, is not a limitation; rather, that, in effect, the reference to leasing expanded the powers previously conferred, by ensuring that the prohibition on disposing or encumbering real estate did not preclude leasing. 4. The Deiri Parties say that, apart from the objective construction, the circumstances leading to the 26 March 2012 Plaza Power of Attorney show that the actual intention behind the wording relating to leasing was not to confine Jamil's powers to leasing; rather, the intended purpose was to expand the existing powers to ensure that the prohibition on disposing and encumbering real estate did not impede Jamil from carrying out leasing responsibilities (referring to the email sent on 20 March 2012 by Mr Malouf – see at [274] above). It is submitted (and this is said to be supported by the contemporaneous documents) that the new wording in the 26 March 2012 Plaza Power of Attorney (making express reference to leasing) was added because of the leasing concerns identified by Mr Malouf. 5. The Deiri Parties say that Moustafa's evidence that the Powers of Attorney were given only for leasing purposes is therefore wrong (and that Moustafa must have known that evidence was wrong when he gave it). It is submitted that, if the Powers of Attorney had truly been intended to confine Jamil's powers to leasing, the solicitor preparing the documents would have drafted them that way. 6. The Deiri Parties also refer to the cross-examination of Moustafa on this topic and say that he gave conflicting and implausible answers. In particular, it is noted, first, that Moustafa gave evidence that the powers of attorney were only for leases and did not permit Jamil to sign cheques (the Deiri Parties here pointing out that the Powers of Attorney do not refer to cheques, and the first two versions make no mention of leases) (see, for example, at T 342.16-25); and second, that Moustafa admitted that he instructed his solicitor, Mr Ziad Naef, to draft the limitations which appear in cl 8 in the Powers of Attorney (see, for example, at T 342.32), but he said that Mr Naef advised him that the instrument did not permit Jamil to sign cheques and would only allow Jamil to carry out leasing (see at T 342.27 – T 343.9). The Deiri Parties submit that it is inherently implausible that the solicitor who prepared the Powers of Attorney, particularly the 2010 and 2011 versions, would have given Moustafa such advice (pointing out that it is contrary to the plain wording in the Powers of Attorney and the first two versions do not refer to leasing at all) and (as noted earlier, they emphasise that Mr Zaef was not called as a witness. 7. It is also noted that, when it was pointed out in cross-examination that the earlier Powers of Attorney did not refer to leasing, Moustafa offered another explanation, namely that the earlier Powers of Attorney were given to Jamil to enable him to demolish the structures on the Broadway Site because Moustafa was going overseas (see at T 343.42 – T 344.33). The Deiri Parties say that the above explanation was not in any of Moustafa's affidavits and that it contradicts the evidence in his affidavit sworn on 31 May 2019, in which all four Powers of Attorney are listed and it is said that the purpose of each was to carry out leasing (see at [146]; [147]). It is further submitted that it makes no sense, in that one would expect a power of attorney specifically prepared to allow Jamil to carry out demolition works while Moustafa was overseas to be drafted to say as much (and that it would then be revoked once Moustafa returned from overseas), yet that was not the case. 8. The Deiri Parties submit that it is evident from the cross-examination that Moustafa "invented" an alternative purpose of the Powers of Attorney, in an attempt to downplay the plenary authority granted to Jamil to act on Plaza's behalf, for the obvious reason that if he admitted he let Jamil run Plaza then he could not complain of Jamil's conduct because it was thereby authorised. The Deiri Parties contend that Moustafa was not truthful in his account of the purpose of the Powers of Attorney and that this reflects adversely on Moustafa's credibility as a witness. 9. Meanwhile, the Sayour Parties say that the submission by the Deiri Parties that the mere execution of the Powers of Attorney was evidence of actual authority which arose independently of the instruments themselves proceeds on the following unstated syllogism. That postulated, (said to be faulty) syllogism is as follows: that, even if the Powers of Attorney do not confer plenary authority, they would be understood by the ordinary reader as doing so; and therefore, Moustafa would have so understood them and did so; and therefore it is likely that he did other acts that conferred equivalent authority on Jamil, or knowingly allowed him to exercise that authority. 10. The Sayour Parties ask, rhetorically, why, if even Mr Malouf thought that the Powers of Attorney were "terribly restrictive", Moustafa should think differently. Pausing here, one might postulate a world of difference between what a lay person might think and what a lawyer would think as to the scope of such documents – and, hence, I gain no assistance from engaging in such an exercise – and why, if Moustafa believed that they were extensive and continuing in force, he would keep making fresh ones when travelling. This seems, at least in part, to be an argument to the effect that there was an implied revocation of earlier powers of attorney when later ones were granted, which is a, again, moot point: the fact is that the earlier Powers of Attorney were not expressly revoked other than in one instance. 11. It is said that for the Powers of Attorney to be relied on as evidence of a general course of conduct, it is of the essence that they bring home to Moustafa a subjective understanding that the Powers of Attorney had unlimited effect; and that the evidence fails to establish this. 12. In that regard, the Sayour Parties say, first, that the Powers of Attorney of May 2010, December 2011, March 2012 and February 2013 did not give Jamil "full authority to Jamil to do everything Plaza could do" (cf the Deiri Parties' submissions at [33]). It is noted that Plaza's business was, at least in the beginning, to be an investment vehicle to acquire and hold land for the Sayour Family Trust and subsequently to develop it (originally on its own, and later in partnership); that each power prevented Jamil from encumbering or selling any part or interest in property and contained additional restrictions; and that the terms of each of the 30 May 2010 Powers of Attorney (see at [101] above) and 8 December 2011 Plaza Power of Attorney (see at [196] above) were, in the context of Plaza's business, heavily prescribed. I interpose to record that I accept that submission. 13. Furthermore, reference is made to the opinion expressed by Mr Malouf, in March 2012, that cl 8 of the December 2011 instrument was so restrictive as to be incapable of allowing Jamil even to grant a lease on behalf of Plaza (see Ex 15 at p 197). The Sayour Parties accept that this opinion does not influence the objective construction of the instrument, but they say that it does provide some insight into how people viewed it at the time (and thus has significance for the submission that the Powers of Attorney have a secondary significance as evidence of a general course of conduct). As to this submission, I draw nothing from the way Mr Malouf construed the Powers of Attorney, as to how someone in Moustafa's position would have understood them. 14. It is noted by the Sayour Parties that Jamil had been a director of Plaza for about six months from late 2007 until 20 July 2008 (see the chronology of events above); and that he had resigned as a director shortly after the purchase of the first parcel of the Broadway Plaza land. Moustafa's affidavit evidence was to the effect that he did not trust Jamil's judgment and that both he and Jamil had thought (albeit mistakenly) that Jamil had been excluded from being a primary beneficiary of the Sayour Family Trust (see Moustafa's affidavit sworn on 27 October 2016 at [8]-[9]). The Sayour Parties say that the tenor of this evidence in chief (which they say was relevantly unchallenged in cross-examination) was that Moustafa had sought to distance Jamil from Plaza and the Sayour Family Trust. 15. The Sayour Parties say that it is fair to infer that, had Moustafa or Plaza wished Jamil to act with unlimited actual authority, Moustafa would have continued Jamil's appointment as director of Plaza and stepped back by resigning himself, so that Jamil could carry on as sole director. They ask, again rhetorically, why, if that were Moustafa's intention, Jamil was not also added as a named primary beneficiary of the Sayour Family Trust and added as an appointor under the trust instrument. I interpose here to note, again, that I draw little assistance from engaging in speculation as to the steps taken or not take in relation to the trust instrument, when considering the import of the grant of the Powers of Attorney. 16. Insofar as the Deiri Parties refer to Moustafa's evidence that each of the Power of Attorney of 30 May 2010 and 8 December 2011 Plaza Power of Attorney was granted in respect of leasing (yet neither make specific mention of leasing), the Sayour Parties say that Moustafa's evidence (see Moustafa's affidavit sworn on 31 May 2019 at [146]) referred to the four Powers of Attorney granted by Plaza on 30 May 2010, 8 December 2011, 26 March 2012 and 4 February 2013. 17. As to the submission by the Deiri Parties that there is no support in the plain text of the instruments for Moustafa's evidence that the earlier powers of attorney were conferred for leasing purposes, the Sayour Parties refer to the 20 March 2012 email from Mr Malouf to Jamil (see at [274] above) which they say makes clear that contemporaneous attention was given to the 8 December 2011 Plaza Power of Attorney as a basis for Jamil to execute leases. I agree that this sets the context for the revocation of that 8 December 2011 Plaza Power of Attorney and its apparent replacement but, to my mind, that says nothing about the initial purpose for which the earlier powers of attorney were granted. 18. The Sayour Parties say that there is not even a secure basis to criticise Moustafa as being confused in his recollection of his understanding of the earlier Power of Attorney with the later Powers of Attorney. It is noted that the evidence discloses that Jamil purported to represent Plaza with respect to leasing while the 30 May 2010 Powers of Attorney was in effect (referring to Ex 15 at p 35, in relation to a requisition raised in respect of a leasing agreement with Woolworths); and that a lease was granted by Plaza to Moecco Plumbing on 1 February 2011, using the Power of Attorney. 19. As to the criticism made by the Deiri Parties in relation to Moustafa's evidence concerning the 6 March 2012 Plaza Power of Attorney as well as the earlier Powers of Attorney); the Sayour Parties complain that serious allegations of dishonesty are here made against Moustafa in respect of his evidence with respect to the scope of each of those powers in circumstances where the instruments were not drafted by him and where it is said to have been apparent from his evidence in chief and his responses to cross-examination that Moustafa had a limited understanding of how such instruments operate. I here note that I accept that this evidence does disclose that Moustafa had a limited understanding of how such instruments operate. 20. In particular, the Sayour Parties say that the accusation by the Deiri Parties (that Moustafa knew that his evidence was wrong when he gave it) is founded on syllogistic reasoning, namely that the earlier Powers of Attorney were not confined to leasing, and neither were the later Powers of Attorney; if intended to be confined to leasing, the solicitor would have drafted the Powers of Attorney that way; therefore, Moustafa cannot have intended that at the time; that Moustafa knew this when giving evidence; and, therefore, that Moustafa was lying in the witness box. 21. The Sayour Parties say that this is not a reasonable criticism of Moustafa's evidence. Again, I accept this submission. The Sayour Parties submit that it assumes both that the Powers of Attorney were unconfined and that Mr Naef's drafting was subjectively so to be understood at the times involved. It is submitted that Mr Naef's drafting "is not easy even for a lawyer to follow"; and that, whether or not he succeeded, it seems tolerably clear that Mr Naef was trying to narrow the scope. Next, it is said that it does not follow that, if a person wants to grant a power for a certain purpose, the power will not be drawn more broadly. It is said that it does not follow that the donor expects that the donee will exercise all of the powers formally given, or that the full panoply of enumerated powers reflects a practical purpose in the mind of the donor that each and every power will be carried into practice; rather, that the protection lies in the choice of a trusted donee. Further to that, it is noted that the Deiri Parties did not even concede that leasing was the practical purpose lying behind the 26 March 2012 Plaza Power of Attorney (notwithstanding Mr Malouf's involvement) and it is said that their submissions ignore the power given to Blackstone Waterhouse to facilitate sales. It is said that that Power of Attorney is even more broad and yet it was given, subjectively speaking, only with a view to facilitating sales. The Sayour Parties point out that the Power of Attorney granted in 2010 was in fact used for leasing and that no other actual use of it has been identified by the Deiri Parties in their submissions. 22. The Sayour Parties also submit that the Deiri Parties' submission on this issue far exceeds the "maximum limit of reasonable criticism" (i.e., that Moustafa may have mixed up the earlier with the later Powers of Attorney). It is noted that Moustafa is accused of inventing evidence, "in an attempt to downplay the plenary authority granted to Jamil to act on Plaza's behalf" and that a finding of lack of truthfulness is sought (i.e., that Moustafa was "not truthful in his account of the purpose of the powers of attorney"). As adverted to above, complaint is made that this allegation (of dishonesty and recent invention) was not put to Moustafa in cross-examination (see Browne v Dunn). The Sayour Parties further say that the Deiri Parties' submission does not even become relevant unless the Deiri Parties are wrong in their contention that the Power of Attorney did, as a matter of construction and legal effect, confer plenary authority, so that they are "thrown back" on to a case that seeks to attribute to Moustafa a wrong understanding in aid of a case of parol authority. 23. As to the Deiri Parties' submission that that Mr Deiri knew that Jamil had a "full" power of attorney and that this fact is relevant to ostensible authority, the Sayour Parties say that Mr Deiri's evidence about this topic does not assist any submission concerning actual or ostensible authority. It is submitted that it is not credible that Mr Deiri acted on this knowledge without ever once asking Jamil to execute a non-leasing document or instrument expressed to be executed under the Power of Attorney; and where, when CBA enquired as to the signature on 8 March 2013, Mr Deiri did not reply to the effect that it was Jamil's signature under a Power of Attorney. 24. The Sayour Parties say that there is evidence that, while Mr Deiri at times sought to exclude Moustafa from participation and referred to Jamil as his partner (see, by way of example, to Mr Deiri's email to Mr Bennett of the CBA confirming a meeting at Biomed's offices in Belmore in which Mr Deiri refers only to Jamil as "my JV partner"), Mr Deiri was nonetheless aware throughout the Broadway Development of the fact that Moustafa was the sole director of Plaza; and it is noted that there has been no suggestion that Mr Deiri sought to have Jamil act for Plaza pursuant to the Power of Attorney on matters of partnership business. 25. In support of this contention, examples to which the Sayour Parties point in the evidence of Mr Deiri's knowledge on these issues include that: in November 2011, Mr Deiri requested that the forms to change Plaza's name be signed by Moustafa as the sole director of Plaza (see Ex 15 at p 133); Mr Deiri was advised directly by Mr Malouf that Moustafa was the sole director of Plaza by email dated 16 March 2012 (Ex 15 at 195); and, in September 2014, Mr Deiri signed as sole director of Investments and Moustafa signed as sole director of Plaza on the "Strata Plan Administration Sheet" (which Mr Small from CBA had signed on behalf of the mortgagee) and then sent the signed copy to Mr Hammond and the CBA officers. The Sayour Parties point out that Mr Deiri was able to obtain, and did obtain, Moustafa's signature for that document. 26. Furthermore, it is noted that Mr Deiri was cross-examined about his knowledge of a Power of Attorney granted by Plaza and Investments to Blackstone Waterhouse (the solicitors engaged to conduct the sale of the residential apartments); and that both Moustafa and Mr Deiri signed that Power of Attorney. It is also noted that Mr Deiri provides no explanation in his evidence in chief as to why, in February 2012, Moustafa's signature was required for sales (the Sayour Parties saying that presumably it was needed for sales off the plan). 27. Reference is also made to Mr Deiri's evidence that he was told by Jamil that he had a "blanket" Power of Attorney by late March 2012. The Sayour Parties say that it cannot be known what Jamil told Mr Deiri. I interpose to observe that there is force to that submission but, of course, it applies equally to conversations that Moustafa deposes to having had with Jamil. It is further noted that Mr Deiri, in cross-examination also said he had been told by Jamil "I have full power of attorney" and denied that he looked at the document when it was supplied to him (see at T 1089.30-33). The Sayour Parties say that this evidence does not assist Mr Deiri's ostensible authority case, because a party relying on ostensible authority believed to be conferred by a power of attorney is bound to examine the power to see whether it does confer that authority (citing Jacobs v Morris [1902] 1 Ch 816). It is noted that Mr Deiri expressed his belief that it was a "blanket" power based on a conversation with Jamil (see at T 1089.19 – T 1090.30); and that, when asked to consider Mr Malouf's email, which was addressed to him directly and which expressed doubts about the extent of the grant of power to Jamil, particularly with respect to granting leases, Mr Deiri reiterated that he relied only on what he had been told by Jamil and nothing else (i.e., say the Sayour Parties, not the document, nor his solicitor's advice as to the extent of the Power of Attorney). 28. The Sayour Parties say that such an answer is difficult to reconcile with Mr Deiri's obvious experience, his attention to detail and his reliance on legal advisors in the course of his day-to-day business. It is noted that Mr Deiri accepted that it was his understanding "particularly with the leases" (see at T 1086.28) that quite careful attention was given to the formalities in using a Power of Attorney (see T 1086.28). 29. The Sayour Parties also point to Mr Deiri's evidence (at T 1092.19ff) where he first accepted that, in all his dealings with Jamil, he understood that Jamil was not authorised by any power of attorney to sign cheques on behalf of Plaza from the CBA Partnership Account (referring to his evidence that "I knew he wasn't a, a signatory on the cheque account, yes" – T 1092.23), albeit noting that he changed that evidence three questions later (after, it is pointed out, an objection to the question). Consideration re Powers of Attorney granted by Plaza and Moustafa to Jamil 1. I do not rely on the fact of execution of the various Powers of Attorney (leaving aside the dispute as to their efficacy at all) as evidence that Jamil was given authority to run the business of Plaza. I accept the force of the submissions by the Sayour Parties that the Powers of Attorney were not unlimited in their terms and, relevantly, not co-extensive with the functions and powers of Plaza. That said, I do not construe the earlier Powers of Attorney as limited to leasing (there being no reference to such a limitation in their terms); nor do they expressly relate to the demolition works (as Moustafa suggested). 2. For present purposes, it is sufficient to observe that the most that the giving of successive powers of attorney (both by Plaza and Moustafa) seems to me to establish is that Moustafa reposed sufficient trust and confidence in Jamil (despite his concerns as to Jamil's past experience and character, including that Jamil could be influenced by others or make decisions not in his own interests) to authorise him to do certain things in relation to the business of Plaza and for Moustafa personally. Again, the precise scope and effect of the Powers of Attorney is a different issue and one I turn to below. Jamil's authority to run the business of Biomed 1. Next, in support of their contend for finding that Jamil was authorised and empowered to run the business of Plaza, the Deiri Parties point to the role Jamil played in relation to Biomed (the principal day-to-day trading entity of the Sayour family) as demonstrating Moustafa's trust in Jamil and his willingness to allow Jamil to hold a position of significant responsibility to manage family business interests. It is submitted that if Moustafa was willing to stand back and let Jamil manage Biomed, the long-term family business, then it is likely that he was similarly willing to allow Jamil to run Plaza (which the Deiri Parties describe as a "one-off business project"). 2. In this regard, the Deiri Parties point to the following: that Moustafa deposed to Jamil's authority to pay Biomed's creditors and employees (see Moustafa's affidavit sworn on 31 May 2019 at [20], in which he deposed that Jamil was authorised to issue cheques from Biomed's Westpac bank account to make payments to creditors, suppliers, contractors and employees of Biomed); that Moustafa, in cross-examination, described Jamil's responsibilities as doing marketing, business, accounting and management (see at T 345.48 – T 346.3); that Jamil also had a business card which identified him as "General Manager"; that Jamil used an email signature which designated him as "Managing Director"; that Moustafa in cross-examination accepted that he placed trust in Jamil when signing documents for Biomed (see, for example, at T 508.36 – T 509.17); and that on the Westpac #980 Loan Account (for the opening of which it is not disputed that Moustafa signed the relevant documents in May 2007) Moustafa's current occupation was listed as "retired". 3. The Deiri Parties say that this is consistent with Mr Deiri's evidence that Jamil said to him when they first met that he had "been running Biomed since the early 1990s" and that Jamil introduced his father to him as "semi-retired". They submit that the above shows that Jamil was running the family business as his father took a passive role and that Moustafa retained ownership of the company but he was retired or at least semi-retired. It is said that it is not surprising (as Jamil was the eldest child) that Moustafa "effectively passed the management torch" to Jamil. The Deiri Parties contend for a finding that Jamil was authorised to run the business of Biomed in all respects. 4. Pausing here, I am not persuaded that I know enough about the business operations of Biomed to make such a finding but, in any event, if I did, I would not conclude that this was relevant to a finding of authority in relation to Plaza, not least because that was a very different entity undertaking a very different venture. 5. As to the proposition that Jamil's role in Biomed is a material factor to show his authority to act on behalf of Plaza (and that Jamil was authorised to run Biomed in all respects), the Sayour Parties emphasise that: Biomed was a different company and that Jamil had a particular and substantial role in Biomed. It is submitted (and I accept) that authority to act in relation to Biomed was not authority to act in relation to Plaza. 6. It is noted that Plaza: was a trustee of a family trust of which Jamil was not a specified beneficiary and was not named as an Appointor or Guardian, (and that Jamil was not named in the Sayour Family Trust deed in any capacity); that Plaza purchased and held land (being first a passive investor and then developer); that Jamil was a director of Plaza for a period of about six months from 12 November 2007 until 20 July 2008 (and that any suggestion that it was intended that Jamil should act as a director of Plaza is answered by the fact that he ceased to be a director; and that, in his email of 12 December 2011, Jamil confirmed to the CBA that Moustafa was the sole director of Plaza and provided information about Moustafa's assets. It is noted that Jamil was not asked nor expected to provide a statement of his assets and it is said that Jamil had no role beyond being a manager and assisting his father. 7. By contrast, it is said that: Biomed was not a trustee company; Biomed operated an established business with employees, stock, premises and a single customer; Biomed employed Jamil and, while his role was (it is said apparently so self-nominated) as "Managing Director" (although in his December 2011 email to Mr Bennett Jamil disclosed that he was not a director), this was nonetheless a description apt to infer senior management and no more. It is said that Jamil considered his position in Biomed as that of a manager answerable to his father; that he was clear with third parties about his position at Biomed; and that this is demonstrated by the April 2013 email (which Investments tendered) in which Jamil wrote to a bank officer at Blom Bank in Lebanon, confirming both his and Moustafa's positions with Biomed being, respectively, manager and owner: My father is the Boss and after my father then my mother and then myself …, I have been running all of our businesses in Australia for 17 years now from the age of 21 and have studied for a diploma in business. [Albeit that the Sayour Parties say that it is likely that this was an exaggeration.] 1. It is noted that Biomed expressly authorised Jamil to operate and transact on bank accounts, including the signing of cheques and payment of day-to-day expenses; that Biomed had bank accounts which featured a large volume of transactions; and that Jamil's importance in terms of Biomed was considered by the CBA to be so insignificant that he is referred to only once in the bank's internal paper (see Exhibit 15 p 5) (and, even then, his name is misspelt, as "Jamir"). (Pausing there, although some weight is placed on the misspelling of Jami's name in this document, I think it is equally explicable as a mere typographical error and I draw nothing of any significance from this.) Consideration re Jamil's authority to run the business of Biomed 1. As to Jamil's role in relation to Biomed, I do not consider that this establishes anything about Moustafa's willingness to allow Jamil to assume a position of responsibility in relation to another company or the Broadway Development. Indeed, to my mind, this is hardly an occasion to make conclusions as to tendency (and it was not adduced as tendency evidence). Accordingly, while it might be said that the evidence in relation to Biomed establishes a tendency or willingness on Moustafa's part to leave Jamil to run certain business endeavours and the like, I prefer not to reason in that way. Additionally, as I have said, the very limited evidence before me in relation to Biomed fortifies my conclusion that I should not reason in this way. Moustafa's knowledge of the Westpac #202 Account 1. Following then, the Deiri Parties contend that Moustafa knew of the Westpac #202 Account (an account opened in the name of Jamil and Moustafa and designated as a general trust account – see at [97] above) and allowed Jamil to operate Plaza's finances (noting that a large portion of the funds paid by Investments for the Broadway Site, and paid from the CBA Partnership Account for partnership distributions, was paid into that account). 2. The Deiri Parties point to the following in this respect. First, that Moustafa signed the account opening form (Ex 15 at p 21), in respect of which any one of the two account holders (Jamil and Moustafa) was authorised to sign. Second, and as adverted to, that considerable sums were deposited into the Westpac #202 Account in 2009, which it is said (noting Moustafa's evidence in cross-examination as to Jamil having no independent source of wealth – T 325.45 – T 326.6) could only have come from Moustafa, with his knowledge. Third, and by reference to the relevant bank statements and contract documents, that funds from the Westpac #202 Account were used to pay for Plaza's purchase of various properties (including the Punchbowl RSL site – see at [99] above – and the properties at 18 and 20 Matthews Street – see at [100] above) and that funds from the account were used by Moustafa to pay down his personal loan accounts (the Westpac #980 Loan Account and the Westpac #111 Loan Account) (pointing also in this regard to a direct debit request signed by Moustafa in relation to the Westpac #202 Account in relation to periodic repayment of a loan account Moustafa had with the bank). 3. Insofar as Moustafa gave evidence in cross-examination that he did not know about the Westpac #202 Account, the Deiri Parties submit that this evidence was evasive, conflicting and implausible (and that it should not be accepted). The Deiri Parties note that much of the money that Plaza claims it never received was paid into the Westpac #202 Account and they say that Moustafa's denial of knowledge of the account was motivated by a need to distance himself from the account, so to speak, and the fact he left Jamil to manage Plaza's finances. In this connection, reference was also made to the cross-examination of Moustafa about the large deposits made into the Westpac #202 Account in 2009 (see, for example, at T 325.22 – T 326.15; T 509.46 – T 510.20). 4. The Deiri Parties submit that it is inherently implausible that Moustafa: had no idea where his money was or where it was going; never read his bank statements; and never took steps to check on his money. It is noted that Plaza did not call any accountant to corroborate the explanation that Moustafa left all financial details to the accountants, nor was any explanation given for the failure to do so. The Deiri Parties submit that it can be concluded that the accountants' evidence would not have assisted Plaza; and that it may more readily be inferred, in light of the above matters which are said to provide an independent basis for the inference, that the accounts were not left entirely to the accountants. 5. The Deiri Parties further say that Moustafa's explanation for the large deposits into the Westpac #202 Account (i.e., that perhaps Jamil had not followed Moustafa's instructions to transfer money into a Biomed account or a "personal account" and had deposited funds instead into the Westpac #202 Account – see T 326.17-28), or that Jamil could have deposited those funds without his knowledge (see T 331.3-9), was not credible. They say that, if Moustafa had given instructions to Jamil to deposit moneys into specific accounts, then he was "evidently alive" to the accounts into which he wanted the funds deposited; and one would therefore expect him to question Jamil as to where the money was if it did not appear as directed. Further, it is noted that Moustafa admitted drawing a cheque on the Westpac #202 Account to pay the balance of the purchase of the Broadway Site (see, for example, at T 327.23-35 as to his denial that he knew the deposits into the Westpac #202 Account of over $1.85 million came from him, though he confirmed that the deposits into that account for the purchase of the Broadway Site came from Lebanon). It is said that, when Moustafa drew that cheque, he would have seen that it was on an account in the joint names of Moustafa and Jamil (not in the name of Biomed or Moustafa only). 6. Alternatively, the Deiri Parties say that, if Moustafa did not give specific instructions to Jamil as to which accounts the moneys were to be deposited into and simply left Jamil to work out what to do with the funds to be transferred, then Moustafa gave Jamil the authority and responsibility for managing the funds (which they say supports their case that Jamil was authorised to run the business of Plaza). 7. The Deiri Parties say that the answers Moustafa gave in cross-examination are inherently implausible and not supported by the documentary evidence; that, despite having signed the account opening form for the Westpac #202 Account and despite large funds being used from that account to pay for properties and pay down Moustafa's personal loans, Moustafa claimed not to know anything about it; and that, despite admitting he was careful with his money and that he "[kept] an eye on [it]" (see T 329.1-10), Moustafa claimed he had no idea where Jamil transferred the money from Lebanon, never asked him about it, never read any bank statements and nor apparently took any other steps to check where the money had been deposited at any time; and could not explain how Jamil obtained the money, despite saying that Jamil had no independent source of wealth. 8. Accordingly, the Deiri Parties contend for a finding that Moustafa was aware of the Westpac #202 Account from the time he opened it, that he authorised and allowed Jamil to operate the account (and the funds deposited into it) and that he was aware of the transactions taking place on that account. It is said that, insofar as Moustafa did not control or supervise the transactions that were taking place on the Westpac #202 Account, that supports Investments' submission that Jamil was empowered and authorised to run the business of Plaza. It is noted that Moustafa opened the account with Jamil as a joint account holder and nominated an authorisation that enabled Jamil to operate the account unilaterally. It is said that, if he left Jamil to organise and manage deposits and transactions upon the account, and did not have day-to-day control and knowledge of the account, then he gave that responsibility to Jamil. 9. As to the submission that Moustafa knew of the Westpac #202 Account and the further submissions to the effect that Jamil ran Plaza's finances and was organising and managing bank accounts for Plaza and Moustafa, including Westpac account #238, and that Jamil opened Westpac #295 account in his and Moustafa's name (along with the more general factual finding sought by the Deiri Parties that Moustafa knew of each of the Westpac #202, Westpac #238 and Westpac #295 accounts) to support the claim that Jamil had actual authority to "run the business" and to receive payments from the Deiri Parties or authorise the other transactions of which complaint is here made, the Sayour Parties point to several matters. Those matters are as follows: first, the actual mode of operation of the account at the times when the payments that are in issue in these proceedings occurred (namely between October 2011 and 2015); second, the known conduct of Jamil "in fraud of" the Sayour Family Trust, his father and other family members; third, the known communications between Jamil and Mr Deiri and between Jamil and Ms Dahdal. 10. In particular, as to the Westpac #202 Account, it is noted that it was opened in mid-2008 (see at [97] above), shortly after Jamil ceased to be a director of Plaza. The Sayour Parties say that, although reliance is placed by the Deiri Parties on the fact that, in 2008, Moustafa was apparently involved in the opening of the account, there is no evidence that Moustafa actually operated or transacted on this account after the land purchases which took place in 2008 to about 2009 were completed, nor is it demonstrated that such assistance as Jamil gave in 2008 and 2009 exceeded specific instructions in respect of the particular purchases (it being said that, to prove a general authority to act without reference to the principal, it does not suffice to point to instances of specific authorisation); and it is noted that the 2008 and 2009 transactions include "RTGS" transfers and significant over the counter transactions (see Ex 15 at pp 1196-1197), not all being internet banking. 11. It is noted that Moustafa's evidence in chief was that this was not the "original" Sayour Family Trust account that he described in evidence; and that he became aware of this account after Jamil's death. It is submitted that it could well be that Moustafa failed to realise, at the time it was opened, that the name of "Sayour Investments Pty Ltd" was not used for the account. It is noted that Moustafa's evidence that he was not good at using computers and relied on assistance (see his affidavit sworn on16 September 2019 at [14]-[15]) was not challenged. 12. The Sayour Parties say that the bank statements for the Westpac #202 Account (Ex 15 at pp 1196-1231) show that the transactions from August 2008 to around April 2011 almost exclusively consisted of the receipt of large sums of money from overseas which were then applied to purchase parcels of the land at Punchbowl; that, from 11 April until 18 August 2011, there was no activity transacted on the account; and that, in the period between September 2011 and 24 September 2015, the bank statements for the account show hundreds of deposits and withdrawals, seemingly only two of those withdrawals in the period being conducted other than via internet banking (a withdrawal of $5,000 on 18 June 2012 – Ex 15 at p 1243 – and a withdrawal of $250,000 by way of a bank cheque on 19 November 2014 – Ex 15 at p 1278). It is submitted that the pattern of transactions is not consistent with regular businesslike and honest dealing, nor is it consistent with Moustafa using the account. 13. It is noted that, in the "monthly arrangement" email dated 18 November 2011 (see at [157] above), Jamil refers to the Westpac #202 Account as "my account for monthly payment". Thus, it is submitted that, at least by this time, Jamil was using the account for his own purposes. Furthermore it is said that Mr Deiri's words are clear as to the intended recipient of the payments being Jamil when he wrote: "please set Jamil up in our system to ensure he receives his payment at the end of each month" (my emphasis). It is said that, in their submissions, the Deiri Parties attempt to minimise the plain wording of these emails insofar as they argue that it was natural for Mr Deiri and Jamil to refer to each other in this manner. 14. The Sayour Parties point out that, in cross-examination, Moustafa denied that he operated on the Westpac #202 Account (see, for example, at T 336.25ff). It is noted that the only particular transactions about which Moustafa was cross-examined in respect of that account were its opening and early operations; and that, thereafter, he was only asked about his current (i.e., at the time of trial) awareness that the $10,000 per month payments made into that same account (see T 369.15ff). 15. More particularly, it is noted that Moustafa was not asked about: his knowledge of the operation of the Westpac #202 Account in the period from when the Deiri Parties allege the partnership was formed (being November 2011) until 2015; whether he knew or was told at the time that $10,000 each month was being paid into that account between November 2011 and August 2012, or the destination of the withdrawals of between $7,000 and $10,000 which took place immediately after each $10,000 payment was made; whether he knew any of the "so-called" payments to Plaza for the Broadway Site were received into this account; or about the use of this account as a "siphon" for partnership distributions of 14 and 19 November 2014 that were then moved through various other accounts (in this regard, I refer to the aide memoire document as a summary of the respective transfers). 16. The Sayour Parties say that the Deiri Parties do not attempt to explain these uses of the Westpac #202 Account and that they are consistent only with a view that Jamil was acting to benefit himself; that he was taking trust money; and that he was doing so surreptitiously. It is submitted that there is no convincing explanation for Jamil cycling the funds through the series of accounts and entities involved, initially to the Arncliffe Development, and then retrieving and redirecting $1.56 million on 24 November 2014 (to a destination that it is said no one has been able to identify). 17. The Sayour Parties say that it was not suggested, alleged or put to Moustafa that he received this money or that he has it; and that it is probable that Jamil "indulged in chicanery in order to put knowledge beyond his father's ability to reach". It is submitted that Moustafa relied on assistance, advantage was taken of this and Moustafa did not know, because it was beyond him to know. 18. Further, it is submitted that it does not follow from the events of 2008, or later, that Moustafa was aware "on any meaningful level" that this account continued to be used by Jamil to receive payments and thereafter disburse them. Consideration of Moustafa's knowledge of the Westpac #202 Account 1. As to the Westpac #202 Account, Moustafa must be taken to have known about the opening of that account, since he signed the account opening form (see at [97] above). 2. Further, Moustafa clearly authorised Jamil to operate this account, since the account opening form permitted Jamil to do exactly that. I accept that the likelihood is that, since most of the transactions on that account were internet transfers, Moustafa did not personally operate that account on a regular basis. However, to the extent that he allowed Jamil to operate the account and left it to Jamil to arrange for the transfer of moneys (at least in relation to the sale of the Punchbowl properties and to pay down Moustafa's personal loans and transfer moneys to Lebanon), I accept that this supports a finding that he gave responsibility to Jamil for the day-to-day running of that account. 3. Insofar as Moustafa's evidence in cross-examination was that he left it to his accountants to deal with financial matters, and did not read bank statements or the like, that to my mind supports the conclusion that Moustafa relied upon Jamil to operate the Westpac #202 Account (which, significantly, was operated as a general trust account). 4. I hasten to add that that does not mean that Moustafa authorised the payments into and out of the Westpac #202 Account of the substantial sums of money that appear to have been cycled through that account. No plausible explanation has been advanced as to why Moustafa would have moved money around in the way that was done. Nor does the evidence establish that Moustafa knew what was happening in relation to the receipt and disbursement of funds into and out of the Westpac #202 Account. The most likely explanation, in my opinion, is that Jamil was taking advantage of his ability to operate the account in order to channel funds through it. That does not mean, however, that Mr Deiri was aware of, or complicit in, any fraud that Jamil may have perpetrated in relation to the funds in the Westpac #202 Account (and there is more than a hint of Moustafa seeking to visit upon a range of defendants the fraudulent conduct of his deceased son). At least for present purposes, it is unnecessary to say anything more about this at this stage. Jamil organised the demolition works on the Broadway Site 1. The Deiri Parties note that the Canterbury City Council ordinary agenda for the City Development Committee records that the development application to demolish structures on the Broadway Site was approved and identified the applicant as "Jamil". It is noted that the quotation from the demolition company (it will be recalled, ACE Demolition – see at [104] above) was also addressed to Jamil. It is submitted that the logical inference to be drawn is that Jamil had the approval and authority to apply for that consent on Plaza's behalf. 2. As to this submission, the Sayour Parties note that the development application was not in evidence, but accept that there is evidence (Ex 15 at p 48) that Jamil was the applicant for development consent for the demolition work, that document being part of the agenda papers dated 9 September 2010 for a Canterbury City Council Development Committee meeting. It is noted that all that is shown in this document is a list of the applications that were before the Council and that Jamil's name is given as the "Applicant" on the relevant applications. 3. The Sayour Parties say that since, as a matter of law, a development application has to be consented to by the owner, it is a reasonable inference that Plaza consented to the making of the application. They say that there is no doubt that Moustafa knew and approved of the demolition proposal (referring to Moustafa's attendance as recorded in the various project minutes throughout 2011). It is noted that such an application can be made by various persons (including owners, builders, consultants and prospective purchasers) and that the list of development applications which includes Jamil's name (Ex 15 at pp 45ff) discloses that individuals, architectural firms and building companies were also applicants in the various applications that were then before the Council. The Sayour Parties point out that anyone can make a development application as long as he or she has the consent of the owner (pointing out by, way of illustration, that the "Notice of Determination of Development Consent" is addressed to an architectural firm yet no one has suggested that this firm or its principal, Mr Theo Lucas, had been granted plenary authority over the affairs of the partners). 4. As to the quotation from ACE Demolition which was obtained by Jamil on behalf of Plaza for demolition works (before Jamil had met Mr Deiri), the Sayour Parties say that this goes nowhere, since one does not need authority to obtain a quote for the benefit of another; nor does authority to do a particular task confer authority to undertake another task (or general authority). Consideration re Jamil organised the demolition works on the Broadway Site 1. As to the steps taken in relation to the demolition works, even accepting that Jamil had an involvement (prior to Mr Deiri becoming involved) in the obtaining of a quotation for the demolition works and (apparently after Mr Deiri was involved in the project) being noted as applicant in relation to the application for a development consent, I consider that little can be drawn from this insofar as Jamil's overall level of authority is concerned in relation to the Broadway Development. I make the same observation in relation to those other matters identified vis-à-vis Jamil having organised the demolition works. Jamil contacted Deicorp and negotiated partnership terms and price 1. Next, the Deiri Parties point to Mr Deiri's evidence as to the involvement of Jamil in the negotiations with Mr Deiri in relation to the Broadway Development, namely that: Jamil first contacted Mr Deiri about the project to see whether he would be interested in being the builder (see at [106] above); Jamil emailed Mr Deiri on 10 August 2010 (thanking him for taking the time to explain things to Jamil the day before) and asking Mr Deiri to organise a meeting with the banks (see at [105] above); Jamil proposed that Deicorp carry out the design work for the project and later be appointed the builder, and proposed that Mr Michael Metcalf be the architect (see at [117] above); Jamil proposed the partnership and negotiated the purchase price for the land (see at [118] above); and Jamil negotiated the additional $2 million that Investments was to pay in connection with the land on account of costs incurred by Plaza (see at [120] above). 2. It is submitted that, from the inception of the Broadway Development, Jamil was the "driver" of Plaza's activity and the point of contact through which Plaza communicated with Investments. 3. As to the reliance by the Deiri Parties on the fact that Jamil contacted Deicorp and negotiated the partnership and the purchase price, the Sayour Parties say that Jamil's involvement in negotiation of some of the terms of the partnership and the purchase of a half-share of the Broadway Site does not make Jamil the "driver of Plaza's activity" (and that it is a fallacy to argue from the particular to the universal). It is said that the authority of a negotiator is not authority to commit the principal; and that this submission confuses influence with control. The Sayour Parties say that it is not suggested that Moustafa was not involved in these negotiations; rather, it is said by them that Moustafa had the final say. It is said that the scope of Jamil's role in these matters was limited to presenting matters to Moustafa and putting positions to Mr Deiri (and they maintain that this is the extent of Mr Deiri's evidence in his affidavit sworn on 22 August 2019 at [47]-[53]). 4. It is submitted that the Deiri Parties' submission would need to rise to the proposition that Jamil alone spoke for Plaza and decided the terms of the partnership and sale; and that such a proposition is contrary to the evidence, which (it is said) showed that Moustafa spoke directly to Mr Deiri on several occasions (see, for example, to Moustafa's affidavit sworn on 31 May 2019 at [96]-[99]; [106]), attended numerous meetings with him, had to approve the matter proceeding at all and signed the contractual documents involved in the sale, bank account and the First Facility Agreement (as to which, see at [261] above). It is noted that, of the 36 meetings which took place up to 30 November 2011, Moustafa had attended 19 (i.e., more than half). The Sayour Parties say that it would be "staggeringly unlikely" that, in the course of those or proximate to those 19 meetings, Mr Deiri never once spoke to Moustafa directly about the partnership, the sale of the land or the cost of development. It is submitted that Moustafa's account of his interactions with Mr Deiri in this period is more likely. 5. Further, it is said that any authority of Jamil to act for Plaza in this period is negated by the circumstance that Mr Deiri knew that Jamil was in receipt of payments from his company, Deicorp. Consideration re Jamil contacted Deicorp and negotiated partnership terms and price 1. As to the submission that Jamil was the "driver" of the partnership on Plaza's side (and leaving aside the submission as to the receipt of payments by Jamil – i.e., the bribery allegations that I deal with in due course), I draw little from the fact that Jamil was the person who contacted Mr Deiri and negotiated terms with him in relation to the correspondence. While, it is clear that Jamil was discussing matters with Moustafa at the relevant times and conveying Moustafa's position to Mr Deiri, to my mind, this may equally indicate that Jamil was a conduit for Moustafa, not that he had authority alone to run the project (and, further still, to run the business of Plaza). Moustafa did not attend regular project coordination meetings 1. Next, reliance is placed on the fact that Moustafa did not attend regular project coordination meetings. It is noted that (as just adverted to) project coordination meetings began from about 20 January 2011; that, commencing on 9 March 2011, Moustafa attended a number of these meetings in 2011 and early 2012 together with Jamil; but that he rarely attended any meetings after 7 March 2012 (only once in September 2012 and once in April 2013). It is submitted for the Deiri Parties that this shows that Moustafa was content for Jamil to monitor the progress of the development, be Plaza's point of contact (with Investments and the development team) and to ventilate Plaza's perspective at these meetings. 2. As to the submission that Moustafa did not attend regular project coordination meetings, the Sayour Parties say that the reduction in Moustafa's day-to-day involvement with the construction of the project is matched by Mr Deiri's reduced level of day-to-day involvement. Accordingly, the Sayour Parties say that this does not support a case that Jamil obtained plenary authority. They further say that this factor runs counter to the Deiri Parties' case that Jamil always had plenary authority. It is said that if Jamil's authority arose in conjunction with Moustafa "stepping back", it is incumbent upon the Deiri Parties to identify when and how this progressed to a point that Jamil was invested with the suggested plenary authority. 3. The Sayour Parties note that, in the period between 7 December 2011 and 31 July 2013, there were 59 project coordination meetings convened for the project. Of those meetings, it is noted that Mr Deiri attended two, and Moustafa attended and Jamil attended eight meetings in that same period. It is submitted that the pattern shows that Jamil had a role, but at its highest that role was one of management. Consideration re Moustafa did not attend regular project coordination meetings 1. As to the reliance placed on the fact that Moustafa's involvement in the project coordination meetings reduced over time, or was sporadic, I accept that this indicates that Moustafa was prepared to allow Jamil to be the Plaza point of contact during the course of the project. The fact that Mr Deiri's involvement in such meetings may also have varied is not to the point. 2. However, I also accept that this does not show that Jamil had "plenary authority"; nor does the Deiri Parties' submission make clear when it is said that there was a stepping back by Moustafa (though, I do not consider that necessary to determine). 3. The relevance of this factor, as I see it, is that, from a day-to-day perspective, Jamil was, for a large part of the project, the relevant point of contact in relation to the development on Plaza's side. Representations about Jamil made by Moustafa to Mr Deiri 1. The Deiri Parties also point to Mr Deiri's evidence that Moustafa told him that Jamil would be "running the entire project [from Plaza's side]" and would be the primary contact; and that dealing with Jamil is like dealing with Moustafa. They say that this evidence should be accepted. It is submitted that this is consistent with the objective circumstances, namely that Jamil was running everything and Moustafa was semi-retired. 2. In particular it is submitted that Plaza had executed Powers of Attorney in favour of Jamil, such that Jamil had the legal capacity effectively to run Plaza's involvement in the development, Jamil had responsibility for managing the family business of Biomed, that Jamil in fact was Plaza's point of contact with Investments during the initiation of the project and its development into a partnership and that Jamil in fact did have responsibility for Plaza's involvement throughout the development, as evidenced by the role and activities he performed for Plaza. It is submitted that Moustafa's evidence that he never said that Jamil would be running the project on Plaza's behalf, and that he never made any statement to the effect that dealing with Jamil was like dealing with Moustafa, is inconsistent with those matters. 3. Meanwhile, the Sayour Parties say that Mr Deiri's evidence that Jamil had said to him "dealing with me is like dealing with [my father]" (see Mr Deiri's affidavit sworn on 22 August 2019 at [47]) and that Moustafa said "dealing with me is like dealing with Jamil" (see Mr Deiri's affidavit sworn on 22 August 2019 at [40]) is self-serving and not corroborated. It is submitted that both statements would be treated with the reserve recommended noted by McLelland CJ in Eq in Watson v Foxman. Moreover, the Sayour Parties say that there would not be confidence in Mr Deiri as a witness of truth (though, I note that I have already rejected that submission). 4. It is noted by the Sayour Parties that Mr Deiri said these statements were made to him on several occasions, including at his place of business where there must have been employees and contractors present; yet he produced no other witness ("not even his sister who worked as his office manager") to corroborate this evidence. The Sayour Parties note that Mr Deiri's evidence (see Mr Deiri's affidavit sworn on 22 August 2019 at [121]) is that it was this understanding (and not the fact that he was contractually obliged) that formed the basis for his payment to Moustafa of $500,000 by way of telegraphic transfer to Lebanon (a transaction for which, the Sayour Parties note, credit has been given). It is also noted that it was Moustafa who initially communicated directly that he required $2 million to be paid in Lebanon. 5. The Sayour Parties say that these statements carry, "not only the suggested intimation of authority, but also one of confidence and the concomitant duty of loyalty, that was so signally betrayed". It is submitted that Mr Deiri cannot use such a statement "to justify sacrificing the interest" of Plaza at the behest of Jamil and "still less for encouraging Jamil to prefer Mr Deiri's interest to the prejudice of Plaza". 6. It is noted that Mr Deiri asserted, for the first time in cross-examination (see T 914.15-35), that the cultural practice of referring to fathers by reference to their eldest sons (by way of the term of "Abu Jamil") was of such significance that, by dint of their respect for familial positions, Jamil was recognised as an agent of Plaza and authorised to appropriate Plaza's money (see, for example, T 913.50-T 914.10). The Sayour Parties say that this was not, and cannot be, the case; and nor could such an assumption be binding on Plaza, since Mr Deiri's reliance on such a practice would not be reasonable reliance caused by any act or omission of Plaza. 7. Further, it is submitted that, if this assumption was adopted, it only highlights the absurdity and internal contradictions of the position that Mr Deiri has taken in the Arncliffe Proceedings, of asserting that he dealt with Jamil only, but that Moustafa was the Sayour Parties' true principal in the Arncliffe project and was fully aware from the outset of everything that Jamil did in relation to Arncliffe. The Sayour Parties ask, again rhetorically, why (if Mr Deiri did sincerely believe that Moustafa was, in effect, the alter ego of Jamil) did Mr Deiri not disclose to Moustafa the supposed "site fee" obligations until well after they were paid out by Combined Projects Arncliffe? 8. The Sayour Parties further say that it is apparent, once regard is had to the fact that Jamil is not among specified beneficiaries in the Sayour Family Trust, that Moustafa rejected the said "cultural" practice, noting that his reasons for so doing were set out in his earliest affidavit (that being his affidavit sworn on 27 October 2016 at [8]-[9]). Consideration re representations about Jamil made by Moustafa to Mr Deiri 1. As to these matters (and leaving aside the criticism made by the Sayour Parties as to the perceived inconsistent stance taken in relation to the Arncliffe Proceedings), I do not place weight on the contested evidence by Mr Deiri as to the "dealing with me is like dealing with my father" statements by Jamil (who is not here to corroborate them) and I am sceptical of the similar statements attributed to Moustafa (on the basis that they are denied by him and do not appear consistent with his demeanour in the witness box – he presenting not as someone likely to be deprecatory of his role in relation to the project or subservient to his son). Nor do I place weight on the cultural practices referred to by Mr Deiri (not least because that is not a matter of which I consider that I could take judicial notice and there was no sociological or anthropological evidence adduced in this regard). With that said, I accept that Mr Deiri may well have such an understanding about cultural practices in his ethnic community and I have no reason to doubt that understanding. Nevertheless, it is clear in the present case that Moustafa did not consistently display such an attitude (if he did at all) given that he removed Jamil as a principal beneficiary of the family trust. For these reasons, again, I do not place weight on this. All email communications with Plaza were through Jamil 1. As to the email communications specifically, the Deiri Parties point to Mr Deiri's evidence that Jamil asked Mr Deiri to send correspondence to Jamil's email address, because his father did not have an email address. It is noted that, in cross-examination, Moustafa accepted that he knew much business was done by email at that time, and that he could not use email because he did not have an email address (see at T 347.10-20). 2. It is submitted that Moustafa's denial that he knew communications concerning partnership matters were taking place by email (see at T 347.22-43) is not credible. The Deiri Parties say that Moustafa must have known Jamil was communicating with Investments by email and that he was therefore evidently content for Jamil to do so (and in so doing to act as the point of contact for day-to-day business communications). 3. As to the reliance placed by the Deiri Parties on the fact that Moustafa did not have an email account, the Sayour Parties say that this rises only to a submission that Jamil was the "messenger boy". Consideration re all email communications with Plaza were through Jamil 1. I draw little from that fact that the email communications were with Jamil, given that Moustafa had little experience with emails, other than to note that it shows a level of trust and confidence on Moustafa's part in his son. However, I do consider it significant that Jamil was thereby held out to others as the person who was authorised to convey Moustafa's decisions in relation to the project. Moustafa left Jamil to undertake the purchase of the Matthews Street Property 1. The Deiri Parties next point to Moustafa's affidavit sworn on 31 May 2019 (see at [53]) in which Moustafa deposes that he "had Jamil help [him] with the purchase of the Matthews St Property on behalf of Plaza" and that he thought this was not a complicated task (the purchase of a single property using funds from Biomed) that he could leave for Jamil to undertake. The Deiri Parties note that, on Moustafa's evidence, he instructed Jamil that Plaza was to be the purchaser and must have contemplated that Jamil would have needed to execute the contract, noting that Moustafa has deposed (see at [51]) that he provided a draft contract to Jamil which he told his solicitor to finalise. 2. It is also noted that Moustafa gave no evidence that he signed any contract himself; rather, that he deposed that he provided a draft contract to Jamil, which he told his solicitor to finalise (again, see at [51]). The Deiri Parties say that, if Moustafa had expected to sign the contract himself, one would have expected him to question Jamil as to why a final contract was never presented for signing; and therefore Moustafa must have expected Jamil would sign on Plaza's behalf. It is said that Jamil had the power to do so by reference to the Power of Attorney that Plaza had granted (the only limitation on which was encumbering or disposing of real estate; i.e., that it did not prohibit acquiring real estate without a mortgage). 3. The Sayour Parties understand by this submission that the Deiri Parties contend that Moustafa left Jamil with authority to do "whatever he liked" about the purchase (including changing the purchaser and entering into whatever deal he liked with Mr Deiri) and permitted him to simulate Moustafa's signature "without telling anyone that it was actually being signed as amanuensis or otherwise under delegation". 4. The Sayour Parties say that the Matthews Street issue is a "comparatively small thing in the overall scheme of this case" but that "the smallness of it, the lack of any real necessity for things to be done as they were, the lack of any need for dissimulation if Moustafa was genuinely knowing and consenting to what was done, and the evident fit with Jamil's personal programme of building a business relationship with Mr Deiri all tend to show, at a critical time in the formation of the relationship, that Jamil was pursuing his own agenda and not Moustafa's and that he was not dealing honestly and openly with his father". 5. It is said that Moustafa's evidence (that he negotiated the purchase price with the vendor – see T 310.35ff) was not subject to any challenge by any of the cross-defendants; nor was Moustafa cross-examined about whether he in fact knew anything of Matthews Street Co or the Matthews Street Unit Trust before the purchase of the Matthews Street property. It is noted that the cross-examination on the subject of the Matthews Street Property was limited to Moustafa s knowledge of the use to which the property was put during construction and the ownership of the property as recorded on the certificate of title (see T 373.29-50). 6. It is said that, having negotiated the sale and the purchase price with the vendor, Moustafa appointed a solicitor to prepare the contract of sale, and delegated to his son the ministerial task of directing the solicitor to carry into execution a purchase that Moustafa had decided upon. It is said that there is no evidence that Moustafa ever gave either Jamil or his solicitor permission to depart from this instruction. It is said that the "interposition of forgeries" to establish a new entity as purchaser in place of Plaza corroborates this. The Sayour Parties say that if Moustafa was consenting to this change then nothing was easier than to obtain his signature. 7. It is said that the ministerial task of directing the company's solicitor to complete the purchase of this property is not a matter which demonstrates Jamil's alleged universal authority with respect to the property or to Plaza generally. 8. The Sayour Parties further say that, notwithstanding their non-admission in the pleadings that the instruments are forgeries, the Deiri Parties (having chosen not to challenge Mr Dubedat's evidence) appear to assert that Jamil did simulate his father's signature (given their submissions relying on the execution of the "Matthews Street Joint Venture Documents"). The Sayour Parties say that Moustafa could not have left it to Jamil to cause the property to be purchased in the name of an entity – and for a unit trust – about which he knew nothing. Again, it is said that what was left to Jamil was faithfully to adhere to Moustafa's direction that it be purchased on behalf of Plaza; and that what happened instead was that "Jamil went off on a frolic of his own, pursuing his enthusiasm for developing a business relationship with Mr Deiri". 9. The Sayour Parties say that there is no (or no adequate) explanation by the Deiri Parties as to how Mr Deiri came to be in possession of the Matthews Street documents which contain those forgeries. It is said that the Deiri Parties' equivocation in their ultimate position on the unit trust leaves their position confusing, because (if that trust is accepted not to be valid) they cannot maintain the submission that Moustafa left it to Jamil to complete the purchase in any way he saw fit. Consideration re Moustafa left Jamil to undertake the purchase of the Matthews Street Property 1. The reliance placed by the Deiri Parties on the Matthews Street Property purchase is problematic because that transaction is itself the subject of complaint by the Sayour Parties. Moustafa says, in effect, that Jamil and Mr Deiri intervened and changed the arrangements that he, Moustafa, had put in place for the acquisition of that property. The fact that there is a draft contract for sale showing the name of the purchaser as Plaza supports that contention. 2. For present purposes, I simply note that the fact that Moustafa accepts that he had Jamil "help" with the purchase of the Matthews Street Property tells me little, if anything, about Jamil's role in the Broadway Development itself (because that property was not part of the Broadway Development itself, although it is said that it was made use of during the course of construction for car-parking). Moustafa knew of the construction and left it to Jamil to manage 1. The Deiri Parties point to the evidence that Moustafa: knew that construction was taking place in relation to the Broadway Development; attended two on-site progress meetings later in the development; attended the opening launch of the shopping centre in December 2013 and had his photo taken with Mr Deiri and the Mayor; knew that CBA had agreed to fund the development; and had signed the Stage 1 Loan (as to which, see at [261] above). 2. As they have submitted in relation to other factual matters here under consideration, the Deiri Parties submit that a businessperson in Moustafa's position could not have thought that the building "would pay for itself"; that Moustafa obviously knew that moneys had been spent and the builder had been paid; and yet Moustafa never raised any concerns with Mr Deiri. It is submitted that the only available inference is that Moustafa left the construction, payment and expenses to Jamil to manage. 3. The Deiri Parties note that, on his own evidence, Moustafa said that he spoke with Jamil from time to time about the progress of construction and whether Jamil was happy with the amount of money being paid (see, for example, Moustafa's affidavit sworn on 31 May 2019 at [139]), as to Jamil giving him verbal updates in relation to the progress of the construction works, "whenever [Jamil] met [Moustafa] at the Biomed offices or when [Moustafa] asked [Jamil] about how things were progressing with the construction"; about the discussions always being "quite general or broad", as to Moustafa talking with Jamil about things like whether Jamil was "happy with the amount of money being paid" and "[h]ow the progress of construction was going". 4. The Deiri Parties say that it is evident on Moustafa's own evidence that Moustafa knew that development was underway and that moneys were being paid and left it to Jamil to determine that what was being paid was appropriate (referring also to Moustafa's evidence that he did not press for a more detailed explanation from Jamil because he, Moustafa, was inexperienced with construction works at that scale and did not know what to ask or how much things really cost). 5. The Deiri Parties submit that the fact that Moustafa left decisions about construction to Jamil (because he did not feel he had the experience and knowledge to do so himself) is consistent with Moustafa being happy for Jamil to run Plaza's involvement in the project. 6. It is again said that, in cross-examination, Moustafa sought to "distance himself" from the fact that moneys were required to be paid to meet partnership expenses, in that he gave evidence that he thought Biomed was paying the partnership expenses (see at T 398.10 – T 399.49). The Deiri Parties say that the assertion that partnership expenses were being paid by Biomed is unsubstantiated by any document. It is said that Moustafa would have no possible basis to believe as much, nor could he identify any such reason; and that the answers Moustafa gave show he was not a credible witness and was attempting to sidestep the fact that he knew expenses were being paid and that he simply left the project to Jamil to run. 7. In any event, it is submitted that, even if Biomed was paying the partnership expenses, Moustafa had authorised Jamil to deal with Biomed expenses and, as such, the fact that Jamil was authorised to deal with Biomed expenses meant he was also authorised to deal with what would otherwise be partnership expenses. 8. As to Moustafa's evidence in cross-examination that nobody told him that Deicorp was making claims on CBA for payment (see particularly at T 595.11-48), the Deiri Parties say that this evidence is also not credible. It is submitted that it is evident that Moustafa knew that CBA was paying money to Deicorp Constructions, and that it would not do so without a request for payment. It is said that, as a "matter of basic logic", that could only mean that Deicorp Constructions was requesting payments, yet Moustafa never complained. It is said that that is evidently because he left it entirely to Jamil to manage and make decisions about approvals and drawdowns. 9. To this, the Sayour Parties disavow any contention that Moustafa did not know of the construction works. They say that he was "up front" with this, both in his affidavit evidence (see, for example, his affidavit sworn on 27 October 2016 at [57] and his affidavit sworn on 31 May 2019 at [137]-[145]) and in cross-examination. Rather, they say that what has always been in contention was the extent of Moustafa's knowledge. The Sayour Parties say that Moustafa's knowledge of what was going on, what expenses were being incurred and payments pursuant to the First Facility Agreement was "skin deep"; that nobody had taken him through these matters (or the First Facility Agreement itself) in any great detail; and that he was misled. 10. In this regard, reference is made to Moustafa's evidence that he did not have any experience with construction works of the scale undertaken by the Broadway Partnership (see, for example, his affidavit sworn on 31 May 2019 at [140]) and that he relied on Mr Deiri to guide him through the process of applying for the construction loan (see his affidavit sworn on 16 September 2019 at [56]; and, for example, T 381.39ff). It is noted that there is no evidence that Mr Deiri explained to Moustafa at any time what was needed, what was being done and what needed to happen next in terms of the construction works. It is said that, instead, Mr Deiri dealt with Jamil "whom he had already compromised by paying to him the secret commissions". 11. Similarly, the Sayour Parties say that there is no evidence that anyone from CBA explained to Moustafa how the construction loan would operate, nor that they explained to Moustafa the processes and procedures that would need to be complied with in order for funds to be released. It is noted that Moustafa was not questioned on this topic. It is said that, at its highest, Moustafa's evidence in this regard is that, in December 2011, he had a meeting at Mr Deiri's offices with two officers from CBA, who "broadly explained" the terms of the loan (referring to his affidavit sworn on 16 September 2019 at [202]-[204]). 12. It is also here noted that CBA knew that Moustafa was inexperienced in construction projects of this scale (referring to the CBA risk assessment paper – as to which, see Ex F). The Sayour Parties emphasise that CBA did not explain to Moustafa crucial information needed for him to understand the nature of the construction loan and the processes required to draw down on the loan. 13. The Sayour Parties say that this does not put CBA into a good position to draw inferences from the absence of complaint or other omissions by Moustafa, or to make the assumptions that might be justified if CBA had been dealing with a customer who was experienced in dealing with this sophisticated product. Consideration re Moustafa knew of the construction and left it to Jamil to manage 1. There is no dispute that Moustafa knew of the construction works taking place and that he knew that construction was to be funded with finance from CBA. Accepting that there is no evidence to suggest that Moustafa was taken through the facility agreement in any detail, he nevertheless accepts that he understood that construction was to be funded by CBA. His evidence in cross-examination is that he thought the partnership expenses were being funding by Biomed. That explanation seemed to me to have the hallmarks of something proffered more as a possible explanation for the source of funds than an actual recollection or belief that Biomed was the source of the funds expended on construction (and it does not seem to me to make sense that Biomed would be funding the construction expenses when Plaza was the entity that had entered into the partnership). Be that as it may, even if Moustafa thought that the moneys were coming from Biomed, it is obvious that he left it to Jamil to manage the day-to-day expenditure in the running of the Broadway Development since he was not himself signing cheques or making payments. Moustafa was overseas for extended periods of time 1. Next, the Deiri Parties note that Moustafa was overseas during the following periods: from 28 April 2012 to 4 August 2012 (see at [284]; [295] above); from 5 February 2013 to 22 May 2013 (see at [334]; [361] above); and from 19 April 2014 to 25 June 2014 (see at [457]; [467] above). It is submitted that, during that period (approximately eight and a half months in all), Plaza's business must have been entrusted to someone to supervise and manage it during this time; and this is consistent with Moustafa having authorised and empowered Jamil to run the business of Plaza. 2. As to the reliance placed by the Deiri Parties on the fact that Moustafa was overseas for extended periods of time and thus that Jamil was "authorised and empowered to run Plaza", the Sayour Parties point to Moustafa's evidence in cross-examination by Senior Counsel for CBA that, on each of the occasions when he was overseas, he left Jamil in charge of the day-to-day running of Biomed and Plaza's involvement in the Broadway Development (see T 543.5-17). It is said that the execution of the different powers of attorney in 2012 and 2013, in particular, was precipitated by these overseas trips. The Sayour Parties maintain that the issue is whether this meant that Jamil was given total authority and they say that the fact that Moustafa took the deliberate step of granting powers of attorney each time he left the country suggests he considered that Jamil was only empowered in his absence and that, when Moustafa was present, Jamil's role was more limited. 3. As to the first of the periods that Moustafa was overseas (28 April 2012 to 4 August 2012), it is noted that before his departure in late April 2012, under Moustafa's hand, Plaza had: established a partnership with Investments; sold a half share in the Broadway Site; signed the building contract for the Stage 1; received the tender for Stage 2; obtained the facility from the CBA by which the construction could take place; commenced excavation of the Broadway Site; and (Moustafa thought) completed the purchase of the Matthews Street Property. 4. It is noted that Moustafa had planned to be overseas in June 2012. He required a written additional agreement that he would receive payment of $2 million of the proceeds overseas by that month. It is said that, by the time Moustafa left for overseas, there were no critical events for the establishment of the partnership business that were set to occur in the period while Moustafa was overseas; and the only matters which required attention from Plaza with respect to the development were the agreements for lease and the leasing negotiations. The Sayour Parties say that Moustafa executed a Power of Attorney at the behest of Mr Deiri's lawyers to ensure that Jamil could negotiate leases on behalf of Plaza and the partnership as he had intended that Power of Attorney to operate. It is said that Mr Deiri appears to have been closely involved on an ongoing basis in that task (and that his lack of adherence to appropriate witnessing of documents is manifest in his email pertaining to the witnessing of Jamil's signature on agreements to lease). Reference is made in that regard to the email sent by Mr Deiri to Mr Malouf on 16 June 2012 at 8.45 am: Thanks for your email, I have printed them off and will be catching up with Jamil later to sign them up. In regards to the witness signature do I leave that blank for you to sign, when you get them back? 1. The Sayour Parties also note that, even though Plaza's main task in the Broadway Partnership was the leasing of the retail shopping centre, Jamil was absent from Australia for nearly three weeks in this period. 2. As to the second period (5 February 2013 to 22 May 2013), the Sayour Parties say that Moustafa's evidence, unchallenged in cross-examination, was that Mr Deiri knew that he was leaving for overseas in about February 2013 and that Mr Deiri attended the Sayour family home and urged Moustafa to give Jamil a new Power of Attorney with the widest possible grant. It is noted that Moustafa's evidence (see, for example, his affidavit sworn on 16 September 2019 at [107]) is that he expressly rejected that. It is said that, arising from this exchange between Mr Deiri and Moustafa, Mr Deiri was on express notice that Jamil's powers pursuant to the Powers of Attorney were limited to leasing and intended only to operate while Moustafa was out of the country. 3. The Sayour Parties refer in this regard to two matters which arose in the period between 5 February and 22 May 2013. 4. First, on 8 February 2013, three days after Moustafa had left Australia, Mr Deiri presented a cheque made out to cash at the CBA. It is noted that the signature is one of the first which bears simulations of Moustafa's signature and not Jamil's regular signature. The Sayour Parties say that Mr Deiri was cross-examined on this cheque and could not explain why, when the preponderance of cheques prior to this date bore Jamil's regular signature, this cash cheque "with a forgery of Moustafa's signature and a further endorsement purportedly initialled by Moustafa" was brought into existence. It is noted that Mr Deiri's evidence was to the effect that he knew of bank procedures and requirements for cash cheques and that he believed the cheque had been properly signed by Moustafa having been, all in one day, collected by Jamil, returned and presented at the bank (see at T 875.10 – T 876.27). 5. In circumstances where Mr Deiri knew that Moustafa was leaving the country at this time, it is said that Mr Deiri's account of cheque signing procedures (see particularly at T 791.15ff) would require that Jamil was able to "run back and forth across town" in order to obtain his father's signature on the same day that the cheque was then presented for cashing and that this is not credible. It is submitted that Mr Deiri's lack of concern supports the view that he knew that Jamil was operating outside of the authorisation conferred by Moustafa and Plaza. 6. Second, the Sayour Parties place significance on the fact that, a week before Moustafa's return, Jamil accepted a new tender and purported to execute a building contract for the Stage 2 Construction Contract (as to which, see at [357] above. It is submitted that there was no reason why this contract needed to be entered into before Moustafa's return, other than to conceal the alteration of the price from that which had previously been agreed at inception of the Broadway Partnership. It is noted that Mr Deiri knew that Moustafa was not in Australia at the time and was aware, given his conversation with Moustafa in about early February 2013, that Jamil had not been (and would not be) granted power beyond leasing. It is said that this supports the view that, so far from authorisation being needed when Moustafa was overseas, it was rather the case that his absence was used as an opportunity to take improper advantage (in respect of matters that could have waited for his return). 7. As to the final period (it will be recalled, between 19 April 2014 to 25 June 2014), the Sayour Parties say that there were no significant events which took place in this period. It is noted that Moustafa left Australia well prior to any settlement of the residential units which was to take place in late 2014 and that it was shortly after Moustafa's return from this trip that Jamil was diagnosed with cancer. It is noted that Jamil was absent from the country for periods throughout 2014 (see, for example, Yesmine's affidavit sworn on 8 November 2019). It is said that, despite this, and the fact that Mr Deiri was personally aware of Jamil's diagnosis and travel intentions, the Deiri Parties give no explanation as to why he "continued to sideline Moustafa" in this period. Consideration re Moustafa was overseas for extended periods of time 1. There is no dispute as to the periods during which Moustafa was overseas during the course of the Broadway Development. Nor can it be disputed that Moustafa put in place arrangements (via the Powers of Attorney) for Jamil to carry out functions in relation to Plaza's business and on behalf of Moustafa while he was away (limited though those Powers of Attorney were). 2. Beyond that, I accept that it is obvious that someone must have been authorised to run the business while Moustafa was overseas and that the most likely person in this regard, noting the contemporaneous documents and general context disclosed from the totality of the evidence, was Jamil. However, I do not draw from this that Jamil had complete authority to commit Plaza to business decisions or the like. I also consider that there is some basis for suspicion of the circumstances in which the two transactions referred to above occurred. That said, I do not accept that this establishes knowledge on the part of Mr Deiri that Jamil was operating outside the authority conferred by Moustafa and Plaza (an issue that I will return to in due course). Jamil organised payments to Moustafa (with his knowledge) 1. The Deiri Parties also rely upon the fact that Jamil organised payments of money to Moustafa, at Moustafa's request and with his knowledge, as powerful evidence that Jamil was authorised to give directions to Mr Deiri about how and where Investments was to make payments to Plaza. 2. The Deiri Parties refer in this regard to the following payments: the payment of $500,000 in May 2012 towards the purchase of the Broadway Site (see at 285] above) made to Moustafa's Blom Bank Lebanon account (receipt of which, together with the $400,000 "deposit", was confirmed by Jamil by email, with a further request for payment of $1.5 million overseas); the second payment of $500,000 made in July 2012 to Moustafa's overseas account (see at [292] above); the third payment of $500,000 made on 23 November 2012 (I understand said by Mr Deiri to be made at Jamil's direction); the fourth payment (see at [317]above) of $500,000 made on 17 December 2012 (again, I understand said by Mr Deiri to be at Jamil's direction). 3. It is noted that, in cross-examination, Moustafa accepted that Jamil communicated to Moustafa that $2 million had been paid by Mr Deiri to Moustafa's Lebanon account. 4. The Deiri Parties say that the facts that Jamil directed Investments to make the four $500,000 payments to Moustafa's Lebanon Blom Bank account, Mr Deiri then caused those payments to be made, Moustafa accepts that he received them and Jamil then reported to Moustafa that the payments had been made, demonstrate that Moustafa was "entirely happy" for Jamil to direct Investments on how and where to make payments without direct communications with Mr Deiri. 5. It is noted that Plaza does not sue in these proceedings on the four $500,000 payments (which it accepts it received), though it maintains that Jamil was not authorised to make all the other directions of payment. The Deiri Parties say that this amounts to Plaza now seeking to "pick and choose" which directions it accepts that Jamil was authorised to make. It is submitted that it is not plausible that Jamil was only authorised to give directions to Investments as to where to pay some amounts but not others. The Deiri Parties maintain that Moustafa was happy for Jamil to give directions to Investments about payment generally; and that it is only now (where Plaza claims it did not receive some payments) that it wishes to say that those directions were never authorised. 6. As to this, the Sayour Parties say as follows. 7. As to the reliance placed by the Deiri Parties on the fact that Jamil organised payments of money to Moustafa to Moustafa's knowledge, the Sayour Parties say that Moustafa negotiated directly with Mr Deiri for the payment of the sum of $2 million to Lebanon by four instalments of $500,000; and that Jamil supplied the account details to Mr Deiri who made the deposits himself. It is submitted that this is not a case of Jamil giving directions to pay; nor did these funds pass through his hands. It is noted that the email of 15 June 2012, so far as it referred to $1.5 million to be sent overseas, dealt with the same subject (only the first $500,000 having been deposited to the account in Lebanon at that stage) and hence that the direction to pay $2 million to Lebanon had already been given by Moustafa. 8. The Sayour Parties say that the submission that Mr Deiri gave evidence that Jamil directed these payments to be made turns on acceptance of Mr Deiri's "self-serving" evidence in the face of the above facts. Consideration re Jamil organised payments to Moustafa (with his knowledge) 1. I do not accept the submission for the Sayour Parties that Jamil directing the relevant payments to be made relies only on Mr Deiri's evidence (self-serving as the Sayour Parties criticise it as being or otherwise). That is because it is clear that at least one of the payments was made pursuant to an email direction from Jamil (see at [292] above) and because Moustafa's own evidence deposes to conversations with Jamil about payments to be organised and to be made while he was overseas. 2. I consider it more likely than not that payments made to Moustafa's bank account in Lebanon were made at Jamil's direction (with Moustafa's knowledge and approval) and that this does support the conclusion that Jamil was authorised by Moustafa (at least on some occasions) to direct Mr Deiri as to how payments were to be made. I also consider that the lack of complaint by Moustafa at the time would have suggested to Mr Deiri that Moustafa was content for Jamil to give such directions (and is a strong factor in leading to the conclusion that he had implied actual and/or ostensible authority so to do). This is all that need be said of this matter at this point, though it will be necessary to return to such evidence in due course (particularly in relation to the claims predicated on ostensible authority, and the like). Jamil opened the Westpac #238 Account in the name of Moustafa and related matters 1. The Deiri Parties say that it is significant that Jamil opened the Westpac #238 Account in the name of Moustafa (see at [305] above). They say this principally for two reasons. Those reasons are as follows: first, because it shows that Jamil was organising and managing bank accounts for Plaza and Moustafa; and, second, because substantial payments that were made from the CBA Partnership Account as partnership distributions (which Plaza claims it never received) were in fact paid into this account. It is submitted that Moustafa knew of this account and that his knowledge of the account undermines the suggestion that Plaza did not receive the funds, or that Investments paid the partnership distributions to Jamil (rather than Plaza). 2. The Deiri Parties note that the account opening form (Ex 15 at pp 222-227) bears Moustafa's own signature. 3. Furthermore, in his affidavit sworn on 16 September 2019, Moustafa accepted that he signed the Westpac #238 Account opening form, though he said he did not remember signing it (see at [228]). The Deiri Parties point out that in cross-examination on 22 November 2019 Moustafa initially confirmed that the signature on the form was his own (see at T 338.32-47), though later suggested that he had never signed the Westpac #238 Account opening form (see at T 420.23-421.27) before saying, when I sought to clarify his evidence on this issue, "[o]nly my signature, only when I, I opened the Sayour Investment Trust, this is only my signature, no one with me" (at T 421.25-27). 4. The Deiri Parties submit that, if Moustafa's evidence in cross-examination amounted to a denial that Moustafa signed the Westpac #238 Account opening form, then that evidence should not be accepted, noting that it is contrary to Moustafa's earlier affidavit evidence and the earlier answers he gave in cross-examination and that there is no expert evidence suggesting that Moustafa did not sign the Westpac #238 Account opening form (they say this is no doubt because it would not have assisted Plaza's case). 5. The Deiri Parties point out that the Westpac #238 Account is also recorded in Moustafa's 2013 tax return, in which there is a declaration as to interest earned on that account of $85,000 in that year; and that Moustafa personally attended the Westpac branch in Lakemba to bank two cheques into the account. The Deiri Parties also note that the bank account statements were addressed to Moustafa's home address. It is submitted that Moustafa must have known about the Westpac #238 Account and there should be a finding as such. 6. It is also said that, just as Moustafa "sought to distance himself" from the Westpac #202 Account, his denial of any knowledge about the Westpac #238 Account was for the purpose of seeking to avoid the fact that much of the money Plaza claims it never received was paid into that account, which was solely in Moustafa's name. It is said that Moustafa's explanation "of signing documents without ever apparently knowing what he was signing" is not credible, and should not be accepted. It is said that, even if Moustafa's evidence that he did not know about the Westpac #238 Account were to be accepted, it would only further demonstrate that Moustafa authorised and empowered Jamil to manage Plaza's and Moustafa's financial affairs. 7. The Deiri Parties say that Moustafa cannot "both claim total ignorance about every document he signed and, on the other hand, disclaim the authority he placed in Jamil by signing documents Jamil put before him". It is submitted that the absurdity of such a position speaks to the improbability of an experienced businessperson such as Moustafa repeatedly signing documents without reading them or taking steps to ascertain what he was signing. 8. The Deiri Parties note that Jamil organised the opening of the Westpac #238 Account and presented the account opening form to Moustafa to sign; and point to the evidence that Jamil was in communication with Westpac in relation to several accounts, including the Westpac #238 Account (referring in particular to the 27 August 2012 communication from Mr Turner of Westpac to Jamil in relation to the then newly opened Westpac #238 Account – see at [305] above – and to Jamil's response thereto). It is said that this again shows that Jamil was handling the family's finances. 9. As to the Westpac #238 Account, the Sayour Parties say that the submission made by the Deiri Parties as to the receipt by Plaza of the partnership distributions that passed through that account involves an element of circularity in that the receipt with knowledge is prayed in aid of a conclusion of general authority. 10. The Sayour Parties emphasise that the Westpac #238 Account was not Plaza's bank account and they say that the Deiri Parties' submissions ignore the rule established in National Commercial Banking Corporation of Australia Ltd v Batty (1986) 160 CLR 251; [1986] HCA 21 (National Commercial Banking Corporation v Batty) that, when money goes in and out of an account by a misappropriation, there is no receipt before the recipient knows of it (see also, for example, Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505; (2018) 13 BPR 25,343 (Vella v Permanent Mortgages); SCEGS Redlands v Barbour [2008] NSWSC 928, where, in each case, the relevant account was an account to which the defendant was actually a legal party). 11. The Sayour Parties note that the Westpac #238 Account was opened on or about 27 August 2012 (again, see at [305] above). They say that there is no obvious explanation for this account being opened at that time, except that it was immediately used (see Ex 15 at pp 1249-1252) by Jamil to extract $4 million from the Westpac #202 Account (that amount having been deposited into Westpac #202 Account on 10 and 20 August 2012 – see Ex 15 at pp 1245, 1248). It is noted that the $4 million remained in the Westpac #238 Account until 1 February 2013, then was withdrawn (see Ex 15 at pp 1340-1343) and seemingly deposited into the Westpac #295 Account (see Ex 1 p 2), from which account the sum of $3 million was then withdrawn on 5 February 2013 by a cash withdrawal. It is noted that there is in evidence the Blom Bank receipt of $3 million in February 2013 (the "ordering customer" being Jamil and the "beneficiary customer" being Moustafa). 12. I note that the remaining $1 million in the Westpac #295 Account was the subject of a number of withdrawals over the next few months, leaving about $920,000 which was drawn out in early June 2013. The destination of this money has not been identified. 13. It is noted that, from 5 February 2013, the Westpac #238 Account was dormant (see Ex 15 at pp 1343-1429) until November 2014 when it was used to receive cheque #517 and subsequent cheques in December 2014 (all of which the Sayour Parties say were misappropriated). In this connection, reference was made to the diagrams handed up as aides memoire in this context to show the transfers of funds between the respective accounts. 14. The Sayour Parties say that there could be no reason for Moustafa to open a trust account to receive from another trust account money to be held on trust for the Sayour Family Trust. It is said that the only actual use the account had was as a "conduit pipe" for money ($3 million of which was eventually accounted for but the majority of which the Sayour Parties say was misappropriated). The Sayour Parties say that this use of the account suggests that the Westpac #238 Account had no legitimate purpose and thus was not "recognised" by Moustafa. 15. Insofar as the Deiri Parties say that Moustafa's drivers licence accompanied the account opening form for the Westpac #238 Account, the Sayour Parties say (as I have adverted to at [1280] above) that this is factually incorrect. 16. As to the submission impugning Moustafa's credit as a witness by reference to a denial under cross-examination that his signature appeared on the account opening form for the Westpac #238 Account, the Sayour Parties say that a comparison of the extracts of transcript and the account opening form (see Ex 15 at p 226) demonstrates that Moustafa did not attempt to deny his own signature. 17. The Sayour Parties note that there were three partnership distribution cheques that were paid into Westpac #238 Account. It is noted that the payments from the CBA Partnership Account of cheques #517, #522 and #526 are pleaded by Plaza in its reply to the First Broadway Cross-claim (see at [208]-[245]) and in the Fifth Broadway Cross-claim (see at [211]-[248]). It is said that their significance in these proceedings is to demonstrate that these funds were paid by Mr Deiri to Jamil and had originally been intended by both of them to be invested in the Arncliffe Project. The Sayour Parties also point to Mr Deiri's evidence (see at T 892.5-40) that he was told by Jamil of his intention to recycle money from Punchbowl and they say that this is in accord with that allegation. 18. As to the three matters said to establish that Moustafa must have known about the Westpac #238 Account (as considered above, those matters being that interest earned on the account was included in Moustafa's tax return; that he attended the Lakemba branch of Westpac to deposit two cheques which were deposited into this account; and that the statements were sent to Moustafa's home address), the Sayour Parties say as follows. 19. First, as to the inclusion of interest in his tax return, that the documents tendered in Ex 15 readily establish that, prior to Jamil's death, Moustafa's tax affairs were managed by Mr Gramelis' accounting firm and Mr Zahi Salah, a Biomed employee. It is accepted that the document relied upon (Ex 15 at p 1074) concerns the 2013 financial year, but it is noted that the return itself was prepared (as disclosed on the document) on 26 April 2016 when Moustafa in fact knew of the Westpac #238 Account. It is said that Moustafa was cross-examined about this document apparently on the basis that that it was prepared shortly after the end of the 2013 financial year, and not three years later (see T 421.32-T 422.36). It is said that, given the date of preparation of the returns, Moustafa's responses under cross-examination about returning the bank interest on this account are consistent with the documentary record and his evidence of when he became aware of this account. 20. As to Moustafa's attendance for the deposit of the cheques, it is said that Moustafa's evidence about the deposits was not significantly challenged (see, for example, his affidavit sworn on 27 October 2016 at [88]-[94]) – namely that, at the urging of Jamil, he had attended the bank and had seen the manager and handed the bank manager the cheques for deposit into what he thought were the bank accounts of the Sayour Family Trust (see T 472.23-43). 21. As to the sending of bank statements to Moustafa's home address, it is noted that Moustafa explained that he would not receive bank statements even when they were addressed to his home address. 22. The Sayour Parties say that it was not put to Moustafa that his denial of any knowledge about the Westpac #238 Account was a strategy to avoid the fact that much of the money Plaza here claims it never received was paid into that account which was solely in Moustafa's name (again, about which a Browne v Dunn point is here taken). In any event, the Sayour Parties say the submission is misconceived. 23. The Sayour Parties say that the Deiri Parties' submission that Moustafa, "knew about" the Westpac #238 Account, or that Moustafa authorised Jamil to manage his and Plaza's affairs including the setting up and operation of this account, is not borne out by the "extraordinary journey" that the funds then took after they were deposited into the Westpac #238 Account (again, I refer here to the aide memoire handed up in opening submissions for Plaza, about which it is said there has been no challenge). 24. Specifically, it is noted that, between 2 and 5 January 2015, Jamil transferred $4.52 million from the Westpac #238 Account to another account, the Westpac #833 Account, which was styled as "J & M Sayour trustee for the Sayour Family Trust". Those moneys were then, in the period from 2 to 5 January 2015, transferred from the Westpac #833 Account and deposited into an account in the name of Moulikyah (the Moulikyah #316 Account). Also, on 5 January 2015 and at Jamil's express direction, a further cheque from the CBA Partnership Account was drawn and deposited into the Moulikyah #316 Account in the sum of $250,000. The Sayour Parties say that it seems likely, given the timing of the deposits into the Moulikyah #316 Account, that those funds were then intended to be paid as Sayour Holdings' contribution to the Arncliffe Development but that transaction did not take place in connection with Mr Deiri and Jamil having a disagreement over Jamil's demand to be appointed a director of Combined Projects Arncliffe. 25. The Sayour Parties say that the only possible explanation as to why these funds were "funnelled through" these accounts in this way is that Jamil was attempting to conceal from Moustafa and Plaza the ultimate destination of those funds. Pausing here, I accept that there has been no logical explanation for such a circuitous transfer of funds. Consideration re Jamil opened the Westpac #238 Account in the name of Moustafa and related matters 1. As an initial matter here, I find that the account opening form for the Westpac #238 Account bears Moustafa's genuine signature. Moustafa must therefore be taken to have known about the opening of the Westpac #238 Account (albeit that he says he did not remember signing it and even though he may not have understood at the time that it was to be a separate account). 2. I do not accept that Moustafa's evidence, taken as a whole, amounted to a denial of that being his signature (and it is not necessary here to engage with the debate as to whether there was a breach of the rule in Browne v Dunn, as here submitted). Accordingly, I find that Moustafa must be taken to have known about the Westpac #238 Account. 3. That said, I accept that the reference to it, or inclusion of it, in Moustafa's tax return is not of much assistance given Moustafa's evidence that he left the preparation of such documents to his accountants and the tax return was prepared at a later stage (relevantly, by which time Moustafa was certainly on notice of the Westpac #238 Account in any event). I have already noted Moustafa's evidence about the two transactions in which he banked cheques personally (elements of which were implausible insofar as it must have been arranged by Jamil in advance). 4. To the extent that the account opening forms permitted Jamil to sign and operate the Westpac #238 Account, it must be accepted that Moustafa gave Jamil authority and responsibility in respect of the Westpac #238 Account. However, I draw little from this in relation to Jamil's authority in respect of the project and business of Plaza overall. Moreover, I do not accept that the evidence points to a conclusion that Moustafa knew about the circuitous transfer of funds into and from the Westpac #238 Account. That seems to me to be wholly implausible (and inconsistent with Moustafa's reaction when he learnt of the moneys in Jamil's account after his death). Jamil was dealing with Westpac on behalf of Moustafa personally 1. The Deiri Parties also rely on the evidence as to the application made for a loan (the Westpac #802 loan) for $480,000, as showing that Jamil was entrusted to attend to the family finances generally, including the personal finances of Moustafa. 2. It is noted that Jamil appears to have completed the loan application for the Westpac #802 Loan Account (see Ex 15 at p 232). The Deiri Parties point out that Moustafa denied that the signatures on the loan application form (see Ex 15 at pp 233 and 239) were his signatures, but that he accepted that he did in fact take out the loan in that amount (see at T 426.6-428.22) and appears to have accepted that he signed the formal Westpac loan offer that Westpac had prepared (see at T 427.17-35). 3. The Deiri Parties submit that, by this, Moustafa should be taken to have accepted that he applied for the Westpac #802 Loan Account for $408,000 and signed the relevant loan offer; but, in any event, they say that his denial that he signed that loan application only supports the case that Jamil was entrusted and empowered to operate the family finances and communicate with banks. It is said that Jamil evidently prepared the original loan application; and that Moustafa was content for Jamil to communicate with the bank and prepare the application and was simply presented with the final loan offer to sign. 4. As to the reliance placed by the Deiri Parties on the fact that Jamil dealt with Westpac in relation to this loan application, where it would seem that Jamil signed both his father's and his sister's signatures on the loan application (as support for the contention that Jamil "dealt with the bank in relation to a loan application"), the Sayour Parties say that this does not involve Plaza as a party or in any other way (and was not the subject of any pleading, particulars or other notice). 5. It is noted that the stated "predominant purpose" of this loan offer is to the purchase of an established dwelling (see Ex 15 at p 247). The Sayour Parties say that this submission conflates a loan application with a loan offer. 6. It is noted that the offer appears (see at Ex 15 at p 250) to bear Moustafa's genuine signature; and, again, that the application is seemingly completed by Jamil (including the forging of both his father's signature and that of his sister, Lamia). It is said that it was not put to Moustafa that he knew this; rather (see, for example, at T 426), Moustafa's attention was drawn to the signatures which he denied were his. It is noted that Moustafa said that he did make a loan application but this was not the document and he accepted that he signed the loan offer. It is said that the fact that Ms Lamia Sayour's signature was applied without her authorisation or knowledge was a matter of unchallenged evidence (see the affidavit of Ms Lamia Sayour sworn 26 November 2019). The Sayour Parties say that Jamil was not authorised by her, and nor was he authorised by Moustafa, to apply his signature to that application. It is noted that on the document Lamia's name and purported signature are crossed out. 7. The Sayour Parties say that, assuming that it was Jamil who filled out and signed the application presented in evidence, Moustafa did not accept that he was authorised to do so, and there is no other evidence that he was. It is said that, even if Jamil was authorised, this did not commit Moustafa to proceed, and that position was reached by Moustafa signing the loan offer himself. It is submitted that none of this goes to the issue of authority to act for Plaza. Consideration re Jamil was dealing with Westpac on behalf of Moustafa personally 1. Given the uncertainty in the evidence as to these particular events and this transaction, I draw nothing from it. To my mind, at best, it supports the view that from time to time Moustafa authorised Jamil to represent him in relation to personal loan applications and such matters. Moustafa was told by Jamil when Mr Deiri made payments 1. Next, the Deiri Parties note that Moustafa deposed to a number of occasions when Jamil told him that moneys had been paid by Mr Deiri; and that, in cross-examination, Moustafa clarified that the $3 million that he had deposed that Jamil reported to him as having been paid to the account in Lebanon by Mr Deiri was in addition to the earlier $2 million that Jamil had reported in an earlier conversation (see at T 441.29-35) (i.e., $5 million overall). 2. The Deiri Parties note that Moustafa therefore accepted that Jamil had reported to him that Mr Deiri had paid to Moustafa's Blom Bank account a total of $5 million. It is said that there is no dispute that there were no communications between Mr Deiri and Moustafa directly about those payments; nor is there any suggestion there was any direct communication between Moustafa and Mr Deiri about payments of any moneys for the land or for the partnership distributions, until January 2015 when Mr Deiri says he told Moustafa that he had given Jamil the final cheques for partnership distributions. As such, the Deiri Parties submit that there can be no doubt that Moustafa relied on Jamil to communicate with Mr Deiri about the payments that Plaza received, and when they were received. 3. The Deiri Parties submit that this is significant because it shows that Moustafa was content not to receive direct communications from Mr Deiri about when payments were made; that he authorised Jamil to undertake the task of giving directions to Mr Deiri and reporting on payments; and that this further evinces Jamil's authority to run Plaza's business. 4. As to the reliance placed by the Deiri Parties on the evidence that Moustafa was told by Jamil when Mr Deiri made payments to him, the Sayour Parties submit that it is of no moment that Jamil acted as a messenger to inform his father that Mr Deiri had made or was making any particular payment. Moreover, they note that these communications were neither timely nor accurate as to what had been paid (or, indeed, when) and that they did not disclose that large payments were made to Jamil himself by Mr Deiri and his companies, nor that Jamil had kept large sums. Consideration re Moustafa was told by Jamil when Mr Deiri made payments 1. The significance of this, in my opinion, goes to the fact that Moustafa was content to allow Jamil to arrange with Mr Deiri the accounts to which payments were to be made. Jamil opened the Westpac #295 Account in his and Moustafa's name 1. The Deiri Parties note that the relevant account statements show that the Westpac #295 Account was in the names of Moustafa and Jamil; that the statements were addressed to Moustafa's home address in Greenacre; and that the Westpac #295 Account is declared in Moustafa's 2013, 2014 and 2015 tax returns, which Moustafa signed. The opening of this account by Jamil (in his and Moustafa's name) in early 2013 is relied upon to show that Jamil was managing the family finances on Moustafa's behalf. Moustafa denied, when cross-examined about this account, knowing about it and claimed he never saw the bank statements (see, for example, at T 434.16-35). 2. The Deiri Parties note that, unlike the Westpac #202 Account and the Westpac #238 Account (which show Moustafa's signature on the account opening forms), the account opening forms for the Westpac #295 Account are not in evidence. However, it is submitted that, given Moustafa signed the account opening forms for the other two bank accounts which Jamil organised to be opened (and about which it is said Moustafa must have known) and given the bank statements for the Westpac #295 Account were sent to his home, it should be inferred that Moustafa also knew about the Westpac #295 Account. 3. It is noted that Moustafa accepted that the bank statements were delivered to his home, but that he claimed that Jamil took them from his home (see at T 447.34 – T 448.9). As to that evidence, the Deiri Parties say: first, that it is not credible that a businessperson in Moustafa's position took no interest in the state of his accounts (again, as with other factual matters here being considered, pointing to his earlier evidence in cross-examination in which he agreed that he was careful with and kept an eye on his money); and, second, that the explanation that he did not read his bank statements because Jamil took them from his home was a departure from the earlier evidence he gave in cross-examination (which it is said was implausible in any event) to the effect that Moustafa had left it to his accountants to manage (and in which he made no mention of Jamil) (see at T 325.22-27). It is noted that later, under cross-examination by CBA, Moustafa added that he left the account statements for Jamil, and he assumed Jamil would take them to his accountant (see at T 509.19-44). 4. The Deiri Parties say that the suggestion Moustafa gave (that no-one from his business but the accountant(s) apparently was tasked with responsibility for managing and reviewing the state of the accounts) is "obviously wrong". While, it is accepted that the accountants may have maintained records and advised when instructed, it is said that they plainly would not have managed the Sayours' businesses, made financial decisions and satisfied themselves about the "financial health and status of the family finances". It is submitted that these are all matters which Moustafa as the head of the family would have been very much interested in and about which he obviously knew. It is further said that Moustafa's attempt to distance himself from any knowledge about the state of the finances of any of the businesses which he created and managed is implausible and bears poorly on his credibility generally. 5. It is also said that, even if Jamil was taking the bank statements and Moustafa was never reviewing them, that must have meant Jamil was tasked with responsibility for overseeing and managing the state of the accounts (and that only supports the proposition that Jamil was authorised and was entrusted with the responsibility of managing the business of Plaza). 6. As to the Westpac #295 Account, it is noted by the Sayour Parties that this account was opened on 1 February 2013 (again, see at [330] above) and was held in the names of Moustafa and Jamil; and that it was not designated as a trust account. 7. Insofar as it is submitted by the Deiri Parties that it should be inferred that Moustafa "knew about" this account, the Sayour Parties point out that Moustafa deposed that he had no knowledge or involvement in the opening of this account (see his affidavit sworn on 16 September 2019 at [230]) and he was not challenged directly about what he knew about this account in cross-examination. The Sayour Parties say that it was put to Moustafa "with some imprecision" that he was "familiar with and involved in the opening" of the account (see at T 434.29-31); and that he was later asked merely whether he agreed that he had been paid $3 million from that account into his account in Lebanon (again, see, for example, T 447.45 – T 449.40). 8. The Sayour Parties say that the inference that Moustafa knew about the Westpac #295 Account is sought to be made solely on the basis that the bank statements for that account were addressed to his home address. It is noted that Moustafa explained in his affidavit (and it is said that this was not challenged) that Jamil lived next door to him and that he saw Jamil at least daily either when Jamil collected his car from Moustafa's garage or when he attended meals with the family (see his affidavit sworn on 16 September 2019 at [100]) and that in cross-examination he said that he left bank statements for Jamil to take. 9. The Sayour Parties note that (as I have adverted to above) the account opening forms are not in evidence for this account. It is said that the Deiri Parties rely, untenably, on the fact that Moustafa has signed account opening forms for other bank accounts (i.e., the Westpac #202 Account and the Westpac #238 Account). The Sayour Parties say that this reliance cannot be maintained when regard is had to the fact that this account, unlike the others (which were opened at the Lakemba branch), was opened at the Pennant Hills Branch of Westpac and that the first page of Ex 1 shows that Moustafa's signature was only "captured" on 3 November 2015 (a month after Jamil had died). 10. Further, the Sayour Parties say that the Deiri Parties have failed to address the fact that this was the account into which Jamil "corralled funds" on two occasions: first, an aggregation of funds shortly after the account was opened, in February 2013, of $4 million from a series of transfers from the Westpac #238 Account, which were in turn derived in August 2012 from the Westpac #202 Account; the second, an aggregation of funds in February 2015. 11. As to the first aggregation of funds, it is noted that, on 20 August 2012, the sum of $3.25 million was deposited into the Westpac #202 Account from a cheque drawn on the account of CP Redfern and, on 10 August 2012, there was an electronic transfer of $1 million from Deicorp. The Sayour Parties say there has not been accounted for the difference between $4.25 million and $3 million. Of this amount, $3 million was then transferred from the Westpac #295 Account to Moustafa's accounts overseas (see Ex 2). It is to be noted Moustafa's departure from Australia at this time. The Sayour Parties say that there is no apparent reason why those funds were dealt with in this way and not simply transferred directly from the Westpac #202 Account. 12. As to the second aggregation of funds, it is noted that this occurred after the rejection by Mr Deiri of Jamil's offer to contribute $5 million to the Arncliffe Development. On 6 February 2015, there are fifty deposits via internet transfers of $100,000 each. On 9 February 2015, Jamil then purchased two bank cheques of $3 million and $2 million, which he then deposited into accounts in his name alone at the Bank of Sydney (those moneys since being substantially recovered from the estate of Jamil in the Estate Proceedings to which I have referred above). The Sayour Parties say that this second occasion was the most egregious of the many misappropriations of Plaza's money by Jamil, "though perhaps closely rivalled by the former occasion". It is submitted that if Moustafa "knew about" the Westpac #295 Account, it seems inconceivable that Jamil would have used it to "effect that theft". Consideration re Jamil opened the Westpac #295 Account in his and Moustafa's name 1. I cannot, particularly In the absence of the account opening form, be satisfied that Moustafa knew about the opening of the Westpac #295 Account. I would not draw from the fact that bank statements were sent to Moustafa's home that Moustafa permitted Jamil to manage the family finances on his behalf. As to the reference to the accounts in the tax returns, that would equally be consistent with the account having been opened (without Moustafa's knowledge) by Jamil and then the bank details being provided to Moustafa's accountant. Moustafa's evidence, which I accept as consistent given his overall apparent lack of attention to (and day-to-day involvement in) business matters, was that he left this to his accountants. 2. Moreover, the opening of numerous accounts (and transfer of moneys from account to account) seems to have no logical explanation (other than if this was to hide the transactions from Moustafa). 3. Having said that, I do see patent circularity in any suggestion to the effect that, if Moustafa "knew about" the Westpac #295 Account, then it is hard to accept the likelihood that Jamil would have used it to effect his alleged misappropriations: those misappropriations being a principal matter in dispute between the parties. Jamil accepted the loan offer for the Westpac #111 Loan Account 1. The Deiri Parties next point to the application for, and acceptance by Jamil on 21 February 2013 of, a loan in the name of Moustafa and Fatima (the Westpac #111 Loan Account) as further evidence of the trust which Moustafa placed in Jamil to manage financial matters and is (it is submitted) consistent with Jamil being trusted to run Plaza's business generally (see Ex 15 at p 281). Again, it appears that the loan offer was accepted by Jamil (see Ex 15 at p 287), by signing his name and stating he signed on behalf of Moustafa pursuant to power of attorney. Moustafa in cross-examination did not remember this loan (see at T 435.23ff). 2. The Deiri Parties say that it should be found that Jamil applied for this loan in Moustafa and his wife's name at their direction. 3. On 17 November 2014, $700,000 from the Westpac #202 Account was paid into the Westpac #111 Loan Account, reducing the loan balance to zero. That same day, $600,000 was paid from the Westpac #202 Account into Moustafa's Westpac #980 Loan Account, reducing the loan balance of that loan to zero as well; and Moustafa accepts he applied for that loan. It is submitted that there is no reason to doubt that Moustafa applied for both loans and authorised Jamil to do so. 4. As to the reliance placed by the Deiri Parties on the fact that Jamil accepted the loan offer for the Westpac #111 Loan Account, the Sayour Parties say that this involves an act said to have been undertaken by Jamil in February 2013 in the names of his mother and father. They say that the Deiri Parties do not suggest that it was a transaction that had any connection with the business or affairs of Plaza; and they maintain that it is not relevant. The Sayour Parties say that this is remote from the issues in this case, was not the subject of any pleading or particulars identifying it as a basis for finding that Jamil had authority to bind Plaza and was not the subject of any other form of notice before Moustafa was cross-examined on a document of which he had no memory. Indeed, they say that it is not surprising that Moustafa had no memory of it, because his signature is not on the document. It is noted that the signatures (at Ex 15 at p 287) are those of Jamil expressly acting under registered Power of Attorney for Moustafa and a signature purporting to be that of Fatima, which she gave unchallenged affidavit evidence was not her signature (see her affidavit sworn on 26 November 2019). 5. It is said that the Deiri Parties offered no evidence that these circumstances were known to Moustafa or Fatima; noting that they did not ask Fatima any question about this transaction and that Moustafa was asked only a few questions about it. The Sayour Parties point to the fact that Moustafa was shown (see at T 435) the loan application and denied that it bore his signature (which denial, they note, is plainly correct); that he was presented only with the application and loan offer; and that he did not remember borrowing the amount. It is said that a specific finding cannot be made from an absence of recollection. It is said that the Deiri Parties undertook no exposition or investigation in evidence of the circumstances. 6. As to the Deiri Parties' submission that Jamil's acceptance of this and an earlier loan for another purpose was evidence of Moustafa's trust in Jamil "to manage financial matters" and that this was consistent with Jamil being trusted to run the business of Plaza generally, the Sayour Parties cavil with this. 7. It is noted that the stated purpose in the latter loan application was to purchase a property at Connells Point (see Ex 15 at p 294); that it was a home loan, not a business loan; and that, "rightly or wrongly", Jamil executed an acceptance of the loan offer in the name of Moustafa pursuant to a Power of Attorney by placing his usual signature and identifying the Power of Attorney under which he was so acting. It is submitted that the exercise of a Power of Attorney to act on behalf of Moustafa in relation to a personal loan offered to Moustafa does not assist the Deiri Parties in their submission that Jamil therefore had authority to run Plaza's business (and that it is fallacious to argue from the particular to the general, here citing David Hume). 8. Insofar as reference is made to the earlier loan in Moustafa's name and it is submitted that, since Moustafa accepts he applied for that loan, there is no reason to doubt that Moustafa applied for both loans and authorised Jamil to do so, the Sayour Parties again say that this is a fallacious submission that conflates Moustafa's application for a different loan (it is contended a business/investment loan for which he directly applied) with a personal loan applied for by Jamil nearly seven years later. It is submitted that there is no evidence that Jamil was involved at all in the application for the Westpac #980 Loan Account and that the two loans have no connection with each other, but for the fact that some funds from the partnership distributions were applied to repay them. Consideration re Jamil accepted the loan offer for the Westpac #111 Loan Account 1. I accept the submissions made by the Sayour Parties in relation to this matter. I do not accept that the involvement of Jamil here has been established but, in any event, it does not relevantly assist in relation to the issue of his authority in relation to the Broadway Development. Jamil was operating internet banking accounts on Plaza's behalf 1. The Deiri Parties point to the fact that, on 8 March 2013, Mr Turner of Westpac emailed Jamil referring to two new trust accounts being opened, that would be accessible through the online banking platform under the heading "Broadway Plaza Pty Ltd". The Deiri Parties note that there is a letter addressed to Plaza identifying these two accounts in Plaza's name as trust accounts for the Sayour Family Trust (and, I interpose to note, say that these appear to be the first bank accounts opened in Plaza's name, rather than in the names of Moustafa and Jamil). It is noted that, on 11 March 2013, Mr Turner communicated further with Jamil, asking whether the Westpac #202 Account and the Westpac #238 Account could be closed. 2. As to the reliance placed by the Deiri Parties on the fact that Jamil operated internet banking accounts for Plaza (pointing also to the abode described email correspondence), the Sayour Parties point out that: Moustafa was not copied into that email correspondence; Moustafa was not in Australia in March 2013; there is no evidence to suggest that Moustafa knew that Jamil applied to or did set up new accounts, nor that Jamil had access to these bank accounts (let alone that Moustafa had knowledge sufficient to acquiesce in Jamil's operation of them); and that Moustafa did not operate any accounts via internet banking. Consideration re Jamil was operating internet banking accounts on Plaza's behalf 1. Again, I accept the submissions of the Sayour Parties in this regard. Jamil provided financial information to CBA about Moustafa and Biomed 1. Next, reference is made to the 12 December 2011 meeting attended by Mr Bennett of CBA at Biomed's offices (see at [198] above), following which, Jamil forwarded by email on the same day Biomed's financial asset information and tax returns for 2009 and 2010. Relevantly, in cross-examination, Moustafa confirmed that he asked Jamil to prepare a list of assets and to provide it to CBA, and that he did not see Jamil's email to CBA (see T 376.38-49). 2. The Deiri Parties say that it is therefore evident that Moustafa was happy for Jamil to communicate with CBA on his behalf, and on behalf of Biomed and Plaza; and that Moustafa also never apparently asked Jamil to see the communication he sent to CBA. It is said that Moustafa was obviously content for Jamil to handle the line of communication and trusted him to do so and it is noted that Jamil concluded the 12 December 2011 email by saying that if CBA required anything further then they should contact him (with no mention of Moustafa). It is said that this is consistent with Jamil having an important role in the family finances, and that it supports a finding that he was authorised to operate the business of Plaza. 3. As to the reliance placed by the Deiri Parties on the fact that Jamil provided financial information to CBA on behalf of Moustafa and Biomed, it is noted by the Sayour Parties that the evidence discloses simply that Jamil sent an email on behalf of his father, at his father's request, responding to a request by Mr Bennett of CBA (who they note did not give evidence). It is noted that this was the email in which Jamil told Mr Bennett that Moustafa was the sole director of both Plaza and Biomed, and by implication that Jamil was not a director of either. It is said that nothing was asked of Jamil's financial position and nothing was provided in relation thereto. 4. The Sayour Parties say that the fact that Moustafa charged his son with the task of following up on providing information to the CBA after Mr Bennett and Mr Jackson had met with him cannot lead to a conclusion that it was Jamil who was engaging with the CBA in relation to the loan applications (cf the Deiri Parties' oral submissions). 5. Further, it is said that the Deiri Parties have impermissibly sought to rely on material from an unread affidavit of Mr Bennett from CBA. In any event, it is accepted that the fact that Moustafa met with Mr Bennett at a meeting at which Mr Bennett asked Moustafa to supply financial information about Moustafa was otherwise in evidence. It is said that "ferrying documents and information to a bank via a single email" is an administrative or ministerial task; that it connotes a very minor amount of authority; and that this incident establishes that Moustafa alone, as sole shareholder and director of Plaza, was the only person authorised to conduct its affairs. 6. I interpose to note that it is submitted that the CBA considered Jamil's role to be so insignificant that the CBA staff did not attend to the correct spelling of his name. Pausing here, I record that I draw nothing as to the significance placed by CBA on Jamil's role from what seems to me likely to be a typographical error from the person who prepared the internal bank document. 7. That aside, the Sayour Parties say that Moustafa's unchallenged evidence was that Mr Bennett of the CBA met with him in a face to face meeting (see his affidavit sworn on 16 September 2019 at [204]-[212]); that CBA required Moustafa's signature; and that when the Broadway Partnership had the opportunity to include Jamil as an authorised signatory on the account, that course was not taken (again referring to an email from Mr Deiri to Mr Malouf of 16 June 2012 at 8.45 am). 8. It is also noted that CBA required Moustafa's personal guarantees (being the Deed of Guarantee granted by Moustafa of 20 February 2012 – see at [267] above; Deed of Guarantee granted by Biomed of 20 February 2012; Commercial Deed of Guarantee "purportedly" granted by Moustafa on 25 June 2013 see at [365] above; and the grant of a company charge by Biomed). 9. It is said that Jamil's role as a "messenger" gave him no authority other than to be a "messenger". Consideration re Jamil provided financial information to CBA about Moustafa and Biomed 1. Again, I agree that Jamil's involvement in the provision of financial information of Moustafa to CBA says little, if anything, about his authority in relation to the business of Plaza. Moustafa made no complaint about not receiving payments for the purchase of the Broadway Site for over five years 1. The Deiri Parties also place weight on the fact that there was no complaint by Moustafa as to the alleged failure to pay for the land for over five years on the basis it demonstrates that Moustafa was content to rely on Jamil to direct and oversee the payment, and to be the point of communication between Plaza and Investments about payments generally. 2. It is noted that Plaza claims that Investments was in default of obligations to make payments under the land contract and what it alleges was an associated loan for the purchase price as at 1 July 2012 (noting that the Second Broadway Cross-claim alleging a failure to pay the purchase price for the Broadway land was filed for the first time on 22 December 2017). It is said that this was the first time Plaza ever complained that it did not receive payments in respect of the land; and hence Plaza made no complaint about these sums said to be owed for approximately five and half years. 3. Similarly, it is noted that Moustafa made no complaint about the additional $2 million which Investments promised to pay on top of the $6 million specified in the contract of sale (again until the Second Broadway Cross-claim was filed on 22 December 2017). 4. It is said that, in the circumstances of that delay, the only inference to be drawn is that Moustafa knew that the $6 million in payments for the purchase price of the land and the additional $2 million had been made (and had no cause to complain). It is submitted that it is implausible that a businessperson in Moustafa's position, expecting to receive a total of $8 million for this aspect of the transaction, would have made no enquiries and taken no steps to check that the money had been paid. It is noted that Moustafa gave evidence that Jamil informed him that $5 million had been paid. It is said that there is every reason to conclude that he would have enquired of the balance. 5. The Deiri Parties say that, even if and insofar as Moustafa did not enquire about the balance of the moneys that he expected to be paid, he left the matter for Jamil to sort out with Investments; and that, in giving Jamil that authority and responsibility, that again only supports the finding that Jamil was authorised to manage and run Plaza. It is said that this demonstrates the "absurdity and unreality" of the parties proceeding on some basis that Mr Deiri was required to communicate each instalment of the purchase price to Moustafa directly. Consideration re Moustafa made no complaint about not receiving payments for the purchase of the Broadway Site for over five years 1. It is convenient to consider the submissions for the Sayour Parties, and my determination thereof, after considering the Deiri Parties' submissions concerning Moustafa's delay in complaint about non-receipt of partnership distributions. Moustafa made no complaint about not receiving partnership distribution payments for eleven months 1. The Deiri Parties also point to the fact that a number of payments were made from the CBA Partnership Account in payment of partnership distributions of the proceeds of the unit sales, the last of which was a payment of $250,000 on 5 January 2015; yet the first time Moustafa complained about not receiving any distributions was after Jamil's death. It is noted that, on Moustafa's evidence, the first time he raised any issue about Jamil and money being taken from accounts was in his affidavit sworn on 31 May 2019 (see at [155]-[157]). 2. It is said that Moustafa knew that partnership distributions were being made, because he banked two of the cheques himself; and, in those circumstances, the failure to raise any issue about distributions during this period of eleven months after the last was made suggests Moustafa knew that the distributions were being paid and that he left it to Jamil to direct where Investments was to pay the money. It is said that this further supports the finding that Jamil was entrusted with the authority and responsibility of running Plaza's business, including the management of payments. 3. As to the submission that Moustafa did not complain of the alleged misappropriations, the Sayour Parties note that in these proceedings Moustafa complained in his first affidavit. It is said that it was not put to Moustafa in cross-examination that he had not complained previously. It is also said that Moustafa had "plenty on his plate" from the time Jamil fell ill (his cancer being diagnosed in mid-2014), "not least all the obfuscation that was thrown in his way after Jamil died, and the distraction of the litigation with Catharine [Ms Elliott, Jamil's executor], who was being financed by Mr Deiri during that process". I interpose to note that it is not clear that Mr Deiri was "financing" that litigation, as such – rather he gave evidence as to helping Catharine to get back on her feet, so to speak. 4. Similarly, in relation to the submission that Moustafa did not complain about the distribution payments for 11 months, it is noted that the uncontested evidence is that when Moustafa learned that $5 million was in Jamil's accounts with Bank of Sydney he complained immediately (and that this became a source of contention between Moustafa, Mr Deiri and Ms Elliott). It is said that the hypothesis of a lack of complaint is knowledge. As to the 11 months from November 2014 to October 2015, it is noted that, in November 2014 to December 2015, Moustafa was worried about his son having stage 4 lung cancer. 5. The Sayour Parties say (and I can readily accept this) that it could not have been easy for Moustafa to function at that time. Pausing here, Moustafa appeared to me to be genuine in his expression of grief in the witness box (to the effect that his mind was blank at the time). The Sayour Parties also say (and, again, I agree) that it cannot seriously be suggested that Moustafa at that time knew or suspected the actual amounts of the distributions or that he knew "about all the money spinning around through the accounts". Consideration re Moustafa's delay in complaints 1. As noted, I accept that there seems to be no logical explanation for the series of payments that went through the respective accounts. While that does not of itself belie Moustafa having knowledge of the payments, there is certainly nothing to suggest that he did know about the payments at the time and it seems highly unlikely that he would have done nothing at the time had he in fact known about them, given the course he took when he did become aware of the moneys held in Jamil's Bank of Sydney accounts after Jamil's death. 2. The lack of complaint about the non-payment of partnership distributions or other amounts while Jamil was alive is explicable by reference to Moustafa leaving administrative matters largely in Jamil's hands; meanwhile, after his death it is explicable by the delay occasioned in investigating the financial affairs and accounts in question. There seems no reason to doubt that, after Jamil's death, it later became apparent that a large sum of money was in Jamil's Bank of Sydney account(s) and Moustafa reacted to that discovery by making complaint to Mr Deiri. 3. At this juncture, I emphasise again that leaving Jamil with responsibility for administrative and such tasks over specific matters is quite a different proposition to Jamil having been left with unfettered authority to conduct the affairs and business of Plaza. Moustafa allowed Jamil to run Sayour Holdings 1. Finally, the Deiri Parties say that the fact that Moustafa allowed Jamil to be the point of communication with Mr Deiri in relation to the Arncliffe Development without involving himself in the business shows a consistent pattern of behaviour on the part of Moustafa of funding these businesses but "stepping back and allowing Jamil to run the projects as he thought appropriate". It is said that, as a retired or semi-retired businessperson, Moustafa was in effect handing control over the family's enterprises to his eldest and only son. The Deiri Parties say that the fact that Moustafa was willing to sit back in the Arncliffe Development and allow Jamil to run that project without any direct involvement makes it more likely that he did the same for the Broadway Development. 2. Meanwhile, the Sayour Parties say that this proposition relies wholly on submissions by the Deiri Parties to the effect that Moustafa was at all times aware of Sayour Holdings and its purpose and allowed Jamil to control the company. The Sayour Parties maintain that there is no evidence of this other than the consent forms signed by Moustafa in either 2013 or August 2014. They say that Moustafa's awareness that the company existed and that he was a director of it does not translate to him ratifying or acquiescing to actions taken by Jamil. It is noted that Moustafa's evidence was that he understood that Jamil was engaged in a venture with Mr Deiri and that Jamil had loan funding through his (recently divorced) accountant (Mr Marwan). Consideration re Moustafa allowed Jamil to run Sayour Holdings 1. The Deiri Parties' submission in this regard appears to be premised on Moustafa knowing of the incorporation of Sayour Holdings and the purpose of that company. In this regard, there is an inconsistency with the position taken by the Deiri Parties (although, as I understand it, this is in the alternative) in relation to the Arncliffe Proceedings. 2. The inconsistency I see is that, in relation to the Arncliffe Proceedings, the first key finding of fact for which the Deiri Parties contend is that Moustafa was aware of and agreed to be the sole director and shareholder of Sayour Holdings in December 2013 (cf the submissions that Moustafa did not consent to be a member or director of that company prior to, or at the time of, its registration). 3. Suffice it here to say that even if Moustafa knowingly allowed Jamil to run Sayour Holdings that would not (as I also considered in relation to Biomed) lead me to conclude that he did so in relation to Plaza. Sayour Parties' overall response to proposed factual finding #1 1. With the preceding in mind, the Sayour Parties submit that the factual finding sought by the Deiri Parties here amounts to no more than the authority of a general manager (and hence that the subsidiary findings here sought by the Deiri Parties are not important). 2. It is noted that, in oral submissions, the Deiri Parties advanced this finding on two primary platforms: first, that Jamil was authorised to receive and direct payments pursuant to the Powers of Attorney (see at T 1532.28-30); and, second, that Moustafa "stood back" (see at T 1532.36) from the operation of both Plaza and Biomed and allowed Jamil to stand in his stead in the operation of both companies and to operate Biomed in all respects. 3. I have referred above to the submissions made by the Sayour Parties as to the significance of the grant of the various Powers of Attorney. 4. Insofar as the Deiri Parties contend that there was a "complete abdication" of Moustafa's role, so that Jamil was elevated beyond a management role to a position of complete authority to act as principal, the Sayour Parties say that the Powers of Attorney do not assist the making of the finding here sought; but, rather, are an obstacle for it. In any event, they say that authority as a general manager: would not be a basis for entering into major financing commitments and drawings; would not authorise departures from the basis on which the principal had established the business (neither departures from the Stage 1 Construction Contract by variations, extensions and the like substantially affecting the price, nor the Stage 2 Construction Contract differing from the price agreed by the principal with further variations or the like); would not authorise direction of and receipts for payments in respect of the sale of Plaza's land (a transaction that established the business, rather than merely for carrying it on) and nor to receive distributions of the fruits of the enterprise; and would not authorise the bypass of the procedures established by legal contracts entered into by his principal at the outset of the partnership. The Sayour Parties point out in this regard that a manager is not a plenipotentiary. 5. The Sayour Parties make the following submissions, in addition to the responses already noted above. 6. First, as to Jamil being the point of contact with Investments and CBA, the Sayour Parties accept that Jamil was authorised to be "a point of contact for routine matters" with Investments and to receive email correspondence. They also say that he was supposed to convey information to Moustafa. The Sayour Parties say that these things are consistent with the authority of a secretary or personal assistant and do not by themselves rise even to management authority. They say that there is no evidence that Jamil was authorised or made the point of contact with CBA. They accept that, after Moustafa's meeting with CBA in early December 2011, Jamil sent his father's financial details to Mr Bennett, but they say that this single email does not make good the proposition that he was a "point of contact" with CBA. It is noted that in this email Jamil pointed out to Mr Bennet that his father was the sole director of Biomed and the sole director of the Sayour Family Trust trading under Plaza (and hence that he, Jamil, was not a director). 7. Second, as to Jamil negotiating terms and agreements with Investments, the Sayour Parties submit that: an agent to negotiate is not a manager, nor authorised to conclude a contract; Jamil took it upon himself to negotiate in respect of the terms of entry into the Broadway Partnership and some terms of the land purchase with Investments, but he needed Moustafa's approval for the final deal (and, consistent with the practice for sale of land in New South Wales, there was no deal until there was a binding contract in writing); Jamil was expressly authorised to negotiate leases for the shopping centre on behalf of the Broadway Partnership (and it is said that this fell within Plaza's remit); with respect to concluded terms and the execution of agreements on behalf of Plaza other than retail leases and licences, Moustafa was the only person properly authorised (noting that with few exceptions – in particular, the Stage 2 Construction Contract and the second, third and fourth accommodation notices – all relevant formal instruments and authorities were either signed by Moustafa or were forgeries purportedly signed by Moustafa, and hence it is said that the author or authors of those simulations clearly recognised the need for Moustafa's signature). 8. It is said that the Stage 2 Construction Contract (which was entered into without Moustafa's knowledge or permission just days before he returned to Australia and which departed from the price he had agreed) was "concealed" from Moustafa by both Jamil and Mr Deiri and was "purportedly signed" on behalf of the partnership by Jamil using his own signature and the unauthorised title of "Development Manager" (a role which Plaza notes was, under the terms of the partnership, supposed to be fulfilled by Investments). The Sayour Parties say that Jamil was not appointed by the partnership to that role but, in any event, it was not within the authority of a manager to depart from the terms that had been negotiated by the partners for the Stage 2 Construction Contract. The Sayour Parties say that Moustafa's signature was required on this contract and that there was no basis for increasing the price of $23.5 million agreed at the inception of the Broadway Partnership. 9. Third, as to Jamil managing Plaza's finances and bank accounts, the Sayour Parties submit that a conclusion (which they do not appear to accept should be made in any event) that Jamil had such authority would not support the further conclusions that: Jamil was authorised to receive and direct the payments for land for which he failed to account; Jamil was authorised to sign draw down notices and approve contract terms, variations, extensions and the like that committed the Broadway Partnership and Plaza (to greater financial payment to the builder than had been approved by Moustafa) or to the particular payments by CBA and from the CBA Partnership Account that it is contended gave effect to and discharged these commitments or to the drawings for those payments on a finance facility secured against the Broadway Site; and Jamil was authorised to receive and direct the proceeds of partnership distributions for which he failed to account. 10. It is further submitted that a conclusion that Jamil did have authority to manage Plaza's finances and bank accounts (even of a quite extensive nature) would not authorise Jamil to take money for himself. It is submitted that it "goes way beyond the scope of financial management for the manager to take money for himself" and it is said that it is clear that Mr Deiri knew that Jamil was doing that. Thus, it is said that the submission that Jamil was authorised to manage Plaza's finances does not support a conclusion that he was authorised to receive or direct the payment of money at all; nor would such authority confer authority to receive it into an account in his own name, or otherwise than in clear funds to the credit of Plaza, nor to extend times for payment, give credit or the like. 11. Further, it is submitted that Jamil's role in financial management was "self-aggrandising" (similar to Jamil having appointed himself, according to Mr Deiri, as "Development Manager"). 12. As to the submission based on ostensible authority (namely, that Plaza, by its acquiescence, held out Jamil to be authorised), the Sayour Parties note that acquiescence requires full knowledge of all material circumstances. The Sayour Parties say that the Deiri Parties had express written notice from Jamil himself through the emails sent to him of the following matters: Jamil using the Westpac #202 Account for his personal remuneration (describing it as "my account …" for the $10,000 per month payments); Jamil directing part of the land payments expressly to himself, distinguishing the destination of other payments; and Jamil authorising construction payments of which he knew his father would not approve. 13. It is noted that the Deiri Parties also believed (through Mr Deiri – that is, as Mr Deiri said in his oral evidence) that Jamil was using Sayour Family Trust funds to fund his involvement in the Arncliffe Development, which Mr Deiri says he believed was for the benefit of Jamil himself. The Sayour Parties say that Mr Deiri chose not to speak to Moustafa about these matters and had an interest in not bringing them to Moustafa's attention; and that he cannot be heard to rely on acquiescence in matters that he ought fairly have brought to Moustafa's attention, both because he was paying an agent and because his company was in partnership with Plaza, as well as because of the ordinary requirement of full knowledge. 14. The Sayour Parties submit that it follows that the Deiri Parties proceeded at their own risk in not complying strictly with the obligation of the debtor to seek out and pay the creditor and to obtain a valid receipt for payments to Plaza, and (at least so far as payments to the builder were concerned) in not obtaining formal certification and approval in accordance with the Stage 1 Construction Contract (and other such instruments). 15. It is submitted that it was not the case that Jamil had complete financial authority; that Jamil's authority in respect of Biomed's financial affairs was not authority in respect of Plaza; that Jamil was required to report in respect of the affairs of the partnership, and it was known that he was not reporting honestly; that Jamil was required to convey information, including bank statements, to the company accountant (see, for example, at T 509.41ff); and that Moustafa relied on accountants to prepare the tax returns of Plaza, and had done so ever since he came to Australia (due to his limited English and need for professional assistance with such matters) and it was part of Jamil's role to communicate information to the accountants. 16. It is submitted that the Deiri Parties' submission ignores the above matters, and overlooks the fact that the 2014 tax returns were signed on 9 November 2014, soon after the death of Jamil. It is further said that the submission that Moustafa had no coherent explanation for not reading the tax return is not correct. The Sayour Parties point out that Moustafa's evidence was that he did not consider it an important event (see particularly at T 494.44); and they say that he had abilities but that he also had limitations and clearly relied heavily on assistance (see, for example, at T 510). 17. It is said by the Sayour Parties that it was apparent that, in connection with the purchase of parcels of the land commencing in 2008 (as to which, the chronology above), Moustafa did expect Jamil's assistance in communicating directions to carry out transfers of funds from his own accounts in Lebanon (see, for example, at T 326.20ff). 18. In this regard, the Sayour Parties say that: particular authority, even where on more than one occasion, does not imply particular authority on other occasions, and particularly where those other occasions are considerably later in time and concern transactions of a quite different character; particular authority does not imply general authority; requests for assistance in communication do not imply general authority to make financial decisions; there is no suggestion that Jamil made any of the decisions to purchase the land, or about the prices or ultimate destinations of the purchase money nor that any of it was ultimately paid other than as directed by the vendors; it was not suggested that Jamil conducted the negotiations with the vendors; and it was not shown that funds being applied to pay the purchase money from Moustafa's personal resources in Lebanon became funds of Plaza until the point at which they were applied to pay the vendors. Accordingly, it is said that Jamil's involvement in these transactions does not imply any general authority to deal with funds of Plaza. 19. Fourth, as to Jamil directing Investments where (and how) to make payments and receiving payments on Plaza's behalf, the Sayour Parties submit that: there is no evidence that Jamil was authorised by Plaza to direct Investments to make payments directly to him nor to receive such payments; authority to undertake particular acts does not imply authority to receive payment in connection with those acts (in this regard, it is said that the Deiri Parties' submissions really assumes the thing that they are trying to prove); and, in respect of the transfers to Lebanon, Moustafa himself had communicated to Mr Deiri that he required $2 million to be paid to Lebanon (and, Jamil merely communicated the account details to the Deiri Parties). 20. Fifth, as to Jamil monitoring and making decisions about the construction, the Sayour Parties submit that monitoring was a day-to-day task which Jamil was authorised to undertake and that "making decisions" is a "loose term without specific content". The Sayour Parties say that, if it is suggested that Jamil was authorised to alter the negotiated price, or steps that would affect that price, such as variations, extensions and the like, then the submission must be rejected. 21. Sixth, as to reviewing and approving expenses of the partnership including payments to Deicorp, the Sayour Parties submit that: Jamil was not authorised to approve expenses incurred in the progress of construction; Moustafa was relying on Mr Deiri for advice about the method and timing of payment for construction; and the November 2013 email (see particularly at [419] above) shows that Jamil understood that he was to report to his father about the cost of construction (and that Mr Deiri had written notice that Jamil was not doing this honestly). 22. In reply to the submission that Moustafa "stood back" (and had stood back for a while) from the operations of Plaza and from the operations of Biomed, and entrusted his son to run those operations for the respective companies and to stand in his stead, the Sayour Parties say that the effect of the finding contended for would be to place Jamil as the plenary agent of Plaza. They say that Moustafa did not abdicate to his son all responsibility for the operation of Plaza, including its participation in the Broadway Partnership, nor was Jamil authorised to act as "Development Manager". It is said that Jamil understood that he was always answerable to Moustafa; and that Mr Deiri knew this. The Sayour Parties say that it is equally clear from the correspondence that Jamil was not fully and faithfully discharging this obligation (referring to the emails of May 2013 and November 2013 – see, for example, at [359]; [419] above). 23. The Sayour Parties say that the balance of the evidence showed that Moustafa was an active participant in the business of Plaza and in the formation of the partnership and commencement of the development. It is said that this involvement is revealed from: the constitution of the trust in 2008; his actions on behalf of Plaza to purchase land from 2008; his attendance at more than 20 project coordination meetings held at the offices of Deicorp; the consideration of construction tender documents which are addressed to him; his insistence on various aspects of the design of the centre (which the Sayour Parties say were a cause of some controversy, referring to the email dated 12 August 2013 from the real estate agent, Mr Bill Kannellopoulos to Jamil, Mr Deiri and others – see at [371] above); his execution of contacts, including for the sale of land to Investments; his participation in the opening of the partnership bank account and attendance on the CBA officers with respect to finance; and his giving of his personal guarantee in respect of the Stage 1 Construction Facility. 24. The Sayour Parties say that Moustafa's case is that he trusted his son to assist him and this confidence was abused. They say that the Deiri Parties' case is that Moustafa knew all about what was being done throughout (which it is said must involve a suggestion that Moustafa was dissimulating in his evidence). The Sayour Parties point to contemporaneous evidence (from the HWLE file and from Ex F) for the proposition that others who were dealing with Moustafa at the time regarded him as relatively simple and unsophisticated in respect of matters that were complex or outside his experience. They note that Moustafa referred in cross examination to his need for professional assistance in accounting and tax matters since he came to Australia, in part because of his limitations in the use of English. 25. The Sayour Parties say that Moustafa was wise enough to seek assistance but (and presumably they say this with hindsight having regard to the matters alleged in the present proceedings) not always wise in choosing how to seek it. It is submitted that one obvious example of this was in choosing a builder as his partner because he needed an experienced partner to guide him in the complexities of a development and construction project outside the scale of his experience; but, in doing so, leaving himself without protection in any question on which his partner's interest conflicted with his own. It is said that, to engage his builder as his partner was not wise unless he had someone else to protect his interest; and to allow the builder also to be the contract superintendent was again not wise. It is submitted that Moustafa was plainly out of his depth. 26. The Sayour Parties ask that it be accepted that, in matters of documentary detail, Moustafa would generally look for assistance from an appropriate person. It is submitted that it is likely that such explanations as he received were succinct. It is further submitted that, in the case of opening bank accounts, it is likely that Jamil took this role and that it is likely that Jamil "was not too fastidious" in such explanations as he gave. 27. Pausing here, I have not separately included this in the list of factual rulings sought, but will deal with it here. While I accept that Moustafa may well have looked to Jamil to assist him in explaining documents or to fulfil administrative documentary tasks, I see no basis on which I could rule that Jamil "was not too fastidious" in the explanations that he gave in that regard. I see this as a separate issue to whether Jamil gave complete information as to matters such as the increase in construction costs or the like (and, where there is material in the documentary evidence that would support a conclusion that he may well have been prepared to put a gloss on what he told his father). 28. The Sayour Parties say (and, I agree) that it does not follow from the fact that Moustafa required assistance that he gave carte blanche to those who assisted him, including Jamil. The Sayour Parties caution against drawing an inference as to Moustafa's full knowledge of transactions in which Moustafa was assisted by someone who is alleged to have betrayed his interest and, from that inferred knowledge, drawing an inference as to a carelessness on the part of Moustafa for his own interest (demonstrated by knowingly allowing the agent to prefer his own interests) and then, from this, drawing an inference to a general willingness by Moustafa to let the agent (Jamil) do as he pleased. 29. The Sayour Parties say that it is more likely – given the correspondence from Jamil admitting to deception, the many forgeries and the evident pattern of concealment – that Jamil was not openly and with his father's consent taking the benefits complained of in these proceedings but, rather, was abusing the confidence of his father (I deal with this issue in due course). 30. As to the inference sought to be drawn of full knowledge, the Sayour Parties say that this cannot be drawn from a signature on, for example, an account opening form unless it is also demonstrated that Moustafa himself prepared the form, or that it was carefully explained to him, and that it had a continuing significance down to the time of the relevant transactions. They say that the difficulty for the Deiri Parties' submission that Moustafa knew about the transactions is that the pattern of operations on these accounts in the relevant periods of time strongly indicates that Jamil was using them for his own benefit and misappropriating trust funds; and they maintain that this is confirmed by Mr Deiri's acceptance that Jamil was recycling Plaza's money into the Arncliffe Development with the intention of benefiting himself. 31. Thus, it is submitted that the suggested finding that Moustafa "knew of the bank accounts" does not go very far and that it lacks precision as to when and what Moustafa knew about these accounts. The Sayour Parties also point to the cross-examination of Moustafa on the respective accounts. 32. Pausing here, I note that [132]-[171] of the Fifth Broadway Cross-claim plead various matters concerning the establishment of Combined Projects Arncliffe and the initial stages of the Arncliffe Development. The Deicorp Entities say that this part of the pleading (though not directly relevant to any claims against them) identifies and acknowledges an important element that is relevant to an understanding and analysis of the claims by the Sayour family, both in the Broadway Proceedings and also the Arncliffe Proceedings – namely that it is acknowledged by Plaza in this portion of these pleadings that Jamil was more than a "mere" agent with limited authority; rather, in terms of beneficial interests, he was essentially a principal and the directing mind and will of Sayour Holdings (reference here being made to the Fifth Broadway Cross-claim at [134]­[137], [139] and [145]). The Deicorp Entities say that, although the factual circumstances of each of the respective developments were different, a consistent element was the "extensive involvement of Jamil with the apparent approval and authorisation of Plaza and Sayour Holdings, respectively". 33. Plaza submits that the Powers of Attorney do not support the factual findings sought by the Deiri Parties. Rather, it is said that they demonstrate that Moustafa was prepared to let Jamil have some scope for action, but within constraints. It is submitted that this is consistent with Jamil's own emails, namely that he was obliged to report to Moustafa, and with the evidence that Moustafa lacked the confidence to undertake this project until Mr Deiri came into it (and that he trusted Mr Deiri as his partner and a man of great experience in development and construction to protect his position and provide guidance). Determination as to factual finding #1 1. I do not accept that Jamil was given sole authority to conduct the business of Plaza. However, I accept that he was given a level of authority and was held out as someone with whom Investments could deal on behalf of Plaza in some context. 2. More specifically, and taking into consideration all of the matters to which the respective parties have pointed (and the conclusions and findings set out above), my conclusion is that Moustafa did indeed permit (and thereby impliedly authorised) Jamil to manage the day-to-day activities and business of Plaza in relation to the Broadway Development. He was the principal point of contact for the project as between both Investments and CBA (not least, for example, noting that his email details were the contact point and it was he who was left to arrange administrative matters relating to payments and the like). 3. Nevertheless, I do not accept that the evidence establishes that Jamil was authorised to make decisions such as committing Plaza to the construction contracts, without reference to Moustafa (such matters being quite outside the scope of the day-to-day activities in relation to the Broadway Development). Nor do I accept that he was authorised to sign cheques on behalf of Plaza (leaving aside for the moment the issue as to the scope of the Powers of Attorney – see below) – this being inconsistent with the cheque signing authority. Though, I do consider, however, that the evidence establishes that Jamil was authorised to communicate with Mr Deiri and to give directions as to payment of moneys due to Plaza (subject to some further observations below). Factual finding #2: the Broadway Partnership commenced by 29 November 2011 1. The second key finding of fact which the Deiri Parties say should be made is that the Broadway Partnership was formed by no later than 29 November 2011, that being the date that Plaza changed its name from Sayour Investments to Plaza (which it is said was the last step in the process of a series of discussions culminating in an agreement as to how the venture would proceed). 2. The Deiri Parties rely upon various matters to support this factual finding, as follows. It is convenient first to consider each of those matters, before turning to consider the submissions of the Sayour Parties. Conversations between Jamil and Moustafa in August 2011 1. The first matter relied upon in support of this factual finding is that, on Moustafa's evidence, he was having discussions with Jamil about a joint venture in about August 2011. In this contention, reference is here made to Moustafa's affidavit sworn on 31 May 2019, in which (at [92]) Moustafa deposes that he had a conversation with Jamil (and it is said that it is clear from [90] of that affidavit, which refers to the time he became worried about construction costs, that he places the time of that conversation in about August 2011). 2. It is noted that Moustafa goes on to say (see at [95]) that he had a conversation with Jamil in which Jamil said: "Father, I've talked to Fouad and he says that he's prepared to enter into a joint venture with us". The Deiri Parties say that it is evident from the events (in [96] of the affidavit, referring to late August or September 2011) that Moustafa places this conversation with Jamil at around this time. No direct discussions between Moustafa and Mr Deiri 1. The next matter said to be of relevance is that there were no direct discussions between Moustafa and Mr Deiri concerning the formation of the Broadway Partnership. 2. It is noted that Mr Deiri has deposed that he did not have any conversations with Moustafa about the purchase price; and that all his dealings with Plaza were through Jamil in this respect. 3. The Deiri Parties say that, insofar as Moustafa (in his affidavit sworn on 31 May 2019 at [96]-[99]) has deposed to having had a conversation or conversations with Mr Deiri in August or September 2011 in relation to the price for the constructions works, that evidence should not be accepted. 4. Specifically, the Deiri Parties say that Moustafa's evidence as to this conversation is inconsistent with the evidence Moustafa gave about his inexperience with constructions works of this scale (see Moustafa's affidavit sworn on 31 May 2019 at [139]-[140], where inter alia he deposed that he did not know how much things really cost). It is submitted that it is unlikely (and, I accept that it is implausible) that, in light of Moustafa's acknowledged inexperience in construction works, Moustafa would have had the knowledge at that stage to be able to negotiate the cost price of individual apartments from $160,000 per unit to $153,000 per unit on the basis that it was "fairer". 5. Similarly, it is said by the Deiri Parties that the notion that Mr Deiri, as a result of Moustafa's comments, spontaneously offered a price of $40 million is not credible; on the basis that a construction contract of this scale has many complex variables which require careful estimation. I interpose to observe that that may or may not be the case – it might, for example, depend on what consideration Mr Deiri had given by that stage to the construction costs (and I note that there was a feasibility document date stamped August 2011 which suggests that he had indeed given some consideration to construction costs by this time). However, it is not necessary to explore this issue further. I accept that the notion that Moustafa was in a position to negotiate "fair" construction prices at that stage seems unlikely and I would regard Mr Deiri's evidence as the more plausible on that issue. I make it clear that I do not reach that conclusion on the basis of any view as to the credibility of Moustafa as a witness (cf the Deiri Parties' submission on this issue). Payment of deposit for Broadway Site in October 2011 1. The next matter relied upon by the Deiri Parties as showing that the Broadway Partnership had formed by the end of November 2011 was that, on 10 October 2011, Investments paid the $400,000 deposit towards the purchase price of the Broadway Site (this being a reference to the cheque drawn payable to "Micheal [sic] Sayour", said by Mr Deiri to be at Jamil's request – see at [149] in the above chronology). 2. Mr Deiri gave evidence that, by this stage, Deicorp had already embarked on the design process and incurred significant costs, and he did not see a risk paying the deposit prior to executing the contract of sale. The Deiri Parties say that the commitment to purchase an interest in the Broadway Site indicates the transition to a partnership. Matthews Street joint venture documents executed on 3 November 2011 1. A further matter said to demonstrate that the Broadway Partnership was formed by the end of November 2011 is said to be the execution on 3 November 2011 of documents for the purposes of the joint purchase of the Matthews Street Property (see at [163] in the above chronology). The Deiri Parties say that this was with the aim of using that property for Broadway construction purposes. As noted in the chronology (see at [171] above), on 2 December 2011, Matthews Street Co entered into a contract for sale of land with the vendor of the Matthews Street Property. $10,000 payments agreed, and commence, in November 2011 1. The Deiri Parties also rely upon the email correspondence in November 2011 regarding the $10,000 payments that they say Investments agreed to pay in respect of Jamil's leasing work as further supporting the fact that the Broadway Partnership had formed by the end of November 2011 (see at [159] above). (Pausing here, the characterisation of those payments as payments in respect of "leasing work" is moot, as to which I say more in due course.) 2. It is said that, by 18 November 2011, Mr Deiri's understanding was that there was a partnership. It is noted that the $10,000 payments themselves commenced from the end of November 2011 (the first of the payments being made to the Westpac #202 Account on 30 November 2011 – again, see at [162] above). Reference is also made to Mr Deiri's email of 29 February 2012 to Landerer solicitors (see at [272] above) indicating that Mr Deiri's understanding was that the partnership had formed in November 2011. Communications with solicitors in November 2011 1. The Deiri Parties say that, by November 2011, the parties were simply dealing with formal documentation insofar as the sale of the interest in the Broadway Site was concerned. It is said that they had already agreed to form a partnership, and the parties did not put their partnership agreement in writing. The Deiri Parties say this is evident from the communications with Mr Elias Stephen of HWLE during the period 23 to 25 November 2011 (see at [172]ff above). Investments was registered on 25 November 2011 1. Next, it is noted that Investments was registered on 25 November 2011 (see at [193] above). It is said by the Deiri Parties that this was only for the purpose of the Broadway Partnership. Plaza changed its name on 29 November 2011 1. Next, it is noted that Plaza changed its name from Sayour Investments to Broadway Plaza on 29 November 2011 (see at [193] above). Other matters prior to registration on the Australian Business Register 1. Furthermore, various other matters said to show that the parties were in a partnership prior to the registration of the partnership on the Australian Business Register on 18 January 2012 (see at [222] above) are as follows. First, the 9 December 2011 email from Mr Deiri to Mr Bennett of CBA, copied to Jamil, organising a meeting with the bank, in which reference is made to Jamil as "my JV partner" (see at [197] above). Second, that Moustafa deposed that when he met with CBA in December 2011 he understood that "Fouad was not just my partner, but he was also the builder" (see affidavit references at [198] above) (relied upon as indicating that, in Moustafa's understanding as at December 2011, there was a partnership by that time). Third, that the parties were using partnership letterhead from at least 21 December 2011 (referring to the letter of that date to CBA that Mr Deiri emailed to Mr Bennett, copied to Jamil – see at [253] above). Fourth, that on 22 December 2011, a bank account was opened with CBA as a partnership bank account (see the account opening form – and, see at [208] above). Fifth, that Investments and Plaza, on 27 December 2011, executed the contract of sale for the Broadway Site (see at [215] above). Last, that CBA emailed Mr Deiri, on 4 January 2012, and referred to the new bank account in the name of Investments and Plaza (Ex 15 at pp 149-151 – and, see at [210] above). 2. The Broadway Partnership was registered in the Australian Business Register on 18 January 2012, as noted in the letters dated 28 February 2012 from the Registrar of the Register. Sayour Parties' reply submissions 1. In reply to the Deiri Parties' submissions as to this contested factual finding (i.e., that the partnership or joint venture between Plaza and Investments commenced no later than 29 November 2011 – see also at T 1557.1), Plaza submits that it is not necessary to resolve this question. Insofar as it might be suggested that it could affect the characterisation of the $10,000 per month payments if those were commenced after the formation of the, Plaza says that the commencement date is of no significance to that for the following reasons. 2. First, Plaza says that, even on the case that the Broadway Partnership commenced before the first payment of $10,000 on 30 November 2011, there is no doubt that the agreement to pay Jamil was made before the suggested date of commencement of the partnership. 3. Second, Plaza says that suggesting an early date for commencement of the Broadway Partnership does not mean that there were not still questions open between Plaza and Mr Deiri or his companies after that time, noting that: the contract for sale of land had yet to be entered into; the additional handwritten notes of 27 December 2011 had not yet been agreed and executed; and other matters were raised (including subsequent building contracts, variations, extension, financing arrangements and the like) after the commencement of the Broadway Partnership. 4. Third, Plaza says that it is no answer to say that, in carrying out leasing responsibilities (and assuming, for present purposes, that this was in fact the reason for the payments), Jamil was carrying out Plaza's responsibilities. The Sayour Parties maintain that Deicorp Constructions was, at the instigation of Mr Deiri, secretly paying their agent (Jamil) remuneration for work that he was doing that was Plaza's work. They say that there was no agreement or request that Plaza be paid for this by the partnership; and that it was not paid for by the partnership (nor has it been brought into the partnership accounts as an expense); rather, they say it was paid for by Deicorp without disclosure to the principal. 5. Plaza submits that to say that money was paid to the principal because it was paid to the principal's agent is inconsistent with the proposition that a third party is not entitled to rely on the agent to tell the principal about the arrangement (citing Grant v Gold Exploration and Development Syndicate Ltd [1900] 1 QB 233 (Grant v Gold Exploration and Development Syndicate) at 249-250 per [Collins LJ, with whom Smith and Vaughan Williams LJJ agreed]; Logicrose Ltd v Southend United FC [1988] 1 WLR 1256 (Logicrose v Southend United Football Club) at 1262 per [Millett J] (as his Lordship then was); Sydney Water Corporation v Makucha [2010] NSWSC 114 (SWC v Makucha) at [60] per White J (as his Honour then was)). Plaza maintains that Mr Deiri was not entitled to pay secret rewards to Plaza's agent without telling the principal directly (and not merely through Jamil); and that is so irrespective of any supposed agreement with Deicorp Constructions to remunerate Plaza for work that Plaza had agreed to perform for the Broadway Partnership. Nor, it is said, does it matter whether Plaza agreed with Investments to do this work for a fee, for any other consideration or for free. 6. In the event (which is contested) that there is some relevance to this contested factual finding, the Sayour Parties make the following submissions. 7. First, they say that the admissions made by Investments (see at [1] and [7] of its defence and amended defence to the fifth cross-claim (verified by Mr Deiri)) that, from about 27 December 2011 until about 26 September 2016, Plaza and Investments operated in partnership (see the Fifth Broaway Cross-claim at [3]) and that, at or about the same time as the contract of sale, Plaza agreed to enter into the Broadway Partnership (alleged at [3]) with Investments to develop the property (see the Fifth Broaway Cross-claim at [20]) stand in the way of this contested factual finding. 8. The Sayour Parties say that the last step in the process of forming the Broadway Partnership was not the change of name from Sayour Investments to Plaza, nor was it the application for a bank account at CBA. They say that the first step of partnership, which bound Plaza and Investments, was the introduction of the land as a result of the (conceptually) antecedent step of entry into the contract for the sale which would give Investments a 50% share. They say that, before that step, the arrangement was merely a proposal from which either Plaza or Investments could have withdrawn but that, after that step, the partners were bound to each other as co-owners of the land held for partnership purposes (and that basis ensured that Deicorp would be the only builder considered to undertake the works proposed as they had agreed in the terms of their partnership association). 9. The Sayour Parties say that an "agreement to proceed" is not the recognised indicator by which the existence of a partnership is determined (referring to s 1 of the Partnership Act, which defines a partnership as "the relation which exists between persons carrying on a business in common with a view of profit"). It is noted that the rules for determination of the existence of a partnership, set out in s 2 of the Partnership Act, provide that even common ownership of property does not alone determine the existence of a partnership. The Sayour Parties say that the commencement of business established by the transfer by Plaza of a half-share in its land and the commitment to definite steps to prosecute the development venture, including the building contract and finance facility, are what show an intention by Plaza and Investments to carry on business in common with a view to profit. 10. The Sayour Parties say that the correspondence between Mr Deiri and HWLE, and the correspondence from HWLE to the partners of 21 December 2011, show that the negotiation of terms and commitment to binding instruments was still "in play" at that stage. The Sayour Parties note that, on or around 27 December 2011, the terms were further revised by hand written instruments and they say that it was not until that point that the terms could be considered settled (noting that even then the contract of sale was still to be completed). 11. Further, it is said that an agreement between Mr Deiri and Jamil (a "mere agent" of Plaza with a limited Power of Attorney) makes this proposition even less likely. It is noted that, on Mr Deiri's contemporaneous account, even the change of name required agreement by Moustafa, insofar as Mr Deiri sent a note to Jamil asking, "can you get your father to sign forms…" (see Ex 15 at p 133). 12. Insofar as the Deiri Parties' submissions suggest that the formation of the Matthews Street Co structure is probative of the commencement date for the Broadway Partnership, the Sayour Parties note that the documents to which reference is made are the Matthews Street Unit Trust Deed and documents to establish the trustee company, on which Moustafa's signature is not a genuine signature (which documents the Sayour Parties say were forgeries). 13. Insofar as the suggestion is that the execution of those documents on 3 November 2011 was a step in anticipation of the Broadway Partnership, the Sayour Parties seem to accept that the evidence suggests that Mr Deiri regarded the Matthews Street Property (though not as an asset of or directly involved in the Broadway Partnership) as being connected incidentally with the partnership. However, they note that Mr Deiri could not remember how forged Moustafa signatures came to be on the constituent documents for the Matthews Street structure on the same day that his signature came to be on the same documents. 14. The Sayour Parties say that, far from demonstrating that the partnership was formed at an early date, the "fraudulent erection of the Matthews Street structure" shows that Moustafa was being "surreptitiously sidelined" from an early stage. They say that steps of which Moustafa was kept ignorant cannot be used to demonstrate his participation and do not support any contention as to the date on which the Broadway Partnership commenced. Determination as to factual finding #2 1. I accept that the contemporaneous documents indicate that, by November 2011, Mr Deiri regarded the arrangements then contemplated by the respective parties as amounting to a partnership arrangement or joint venture of some kind. The communications Mr Deiri had with HWLE and with CBA make that clear insofar as there is reference in the latter to Jamil as a "JV partner" and there is reference in the former to an agreement of that kind. Moreover, the relatively contemporaneous correspondence with Landerer solicitors in February 2012 confirms this. Nor do I consider that much weight should be placed on the admission in the pleading of a partnership from "about" 27 December 2011. The qualification "about" may hide a multitude of sins, so to speak. 2. That said, if this contested factual finding is intended as a finding as to the date at which a binding partnership agreement was concluded then I would have some difficulty accepting that this was at any time before the arrangements by which the Deiri interests were to acquire an interest in the Broadway Site had been finalised (irrespective of the fact that this was after the payment of a sum that was characterised as made in good faith in advance and treated as the deposit for the land). That is because, up until then, I consider that it would have been difficult for the Sayour interests to have asserted that there was any breach of a partnership agreement had Mr Deiri or the Deiri interests then chosen not to proceed with the arrangement (or that there would have been any liability had the parties been unable, ultimately, to agree the terms of their partnership agreement – oral, as it turned out to be). 3. With all this said, I agree with the Sayour Parties that nothing really turns on the precise time at which a binding partnership agreement came into existence. Were it necessary to determine that issue, I would have concluded that it was at the time that the arrangements for the purchase of a half share in the Broadway Site were concluded – which was when the contract was executed on 27 December 2011 (see at [215] of the above chronology). 4. The fact that steps were taken in anticipation of the partnership arrangements being concluded (such as the opening of the CBA Partnership Account) is not, in my opinion, inconsistent with such a conclusion (nor does the incorporation or registration at a slightly earlier date of Investments as a step taken in anticipation of the partnership arrangement proceeding affect my conclusion). The Matthews Street Property arrangements are problematic in a different sense because there is the issue as to who was intended to be the purchaser; but in any event the proposition that there was an intention at that time that it might be used in connection with the construction of the Broadway Development in some way does not mean that there was already by then a binding partnership agreement or partnership. It, too, is readily explicable as a step taken in anticipation of such an arrangement being concluded. Factual finding #3: there was no agreement for the partners to pay $2 million for excavation 1. The third key factual finding for which the Deiri Parties contend is that there was no agreement that Investments and Plaza would each pay an additional $2 million for excavation works (as Plaza contends); rather, the Deiri Parties maintain that the arrangement was that the entirety of the excavation work on the Broadway Site was to be funded by the CBA facilities. In this regard, the Deiri Parties say the following. 2. First, that there is no documentary evidence referring to an agreement that each of the partners would contribute an additional $2 million for excavation (noting also that Mr Deiri denies that there was any such agreement). Further, it is said that there is no evidence at all of any contribution by Plaza of $2 million for construction. 3. Second, that Plaza's contention is contrary to the respective construction contracts and tenders for Stage 1 of the Broadway Development. It is noted that the initial contract, signed on 28 September 2011, between Plaza and Deicorp Constructions (see at [142] above) expressly incorporated the tender submission dated 26 September 2011 by Deicorp Constructions, which in its terms provided that excavation work was part of the construction price and included the statement, "[w]e have allowed for the complete Bulk Excavation and Detailed Excavation". It is further noted that the replacement contract on 8 February 2012 (entered into this time between Deicorp, Plaza and Investments – see at [240] above), which was also signed by Moustafa, incorporated the replacement Deicorp tender of 7 February 2012. It is noted that the tender itself was also accepted by a letter signed by Moustafa. 4. Third, it is said that Plaza's claim about excavation costs is contrary to the terms and conditions for the CBA facilities, which made clear that the excavation works were to be funded by the bank loans, and not by the partners as contributions, referring to the CBA Approved Commercial Terms and Conditions for the project which were signed by Moustafa on 24 January 2012) (see at [224] above). 5. The Deiri Parties draw from this that: CBA was proposing to fund $5.5 million for Tranche A of the Stage 1 Loan specifically for the purposes of excavation and early works; and the client contributions listed in the table included acquisition costs of approximately $12 million, representing the value of the land that Investments and Plaza purchased. It is noted that there was no amount specified under partner contributions for construction costs. It is submitted that, if each of the partners was to contribute costs towards the construction (for excavation), that figure would have been identified in the approved terms. 6. It is noted that Moustafa has admitted signing the CBA Commercial Approved Terms and Conditions. The Deiri Parties say that Moustafa must have known that CBA was funding the excavation (referring to Moustafa's evidence in cross-examination on this point) but that, even if Moustafa did not read the CBA Commercial Approved Terms and Conditions, the very fact that there was no provision in the document for contribution by the partners towards excavation costs is evidence of what both CBA and Investments understood to be the arrangement. Thus, it is said, the contemporaneous documents do not accord with Moustafa's uncorroborated assertions. 7. Fourth, the Deiri Parties refer to earlier discussions about contributions. Insofar as Plaza relies (as being consistent with an agreement for each partner to contribute $2 million towards excavation) on the email dated 16 September 2011 from Mr Deiri to Jamil (see above at [127]), which attached the August 2011 retail feasibility figures, the Deiri Parties say: one, that it shows that the parties had thought from the beginning, up until shortly before that email, that "no additional funds" in contributions would be required and that the relevant financier would fund the construction; and, two, that the email was referring to the fact that, as at 16 September 2011, additional partner contributions were thought to be required because a valuation did not come in as high as expected (and, therefore, the financier would not provide all of the funding that they had hoped). It is said that the need for additional contributions that was discussed was entirely to do with the limitations on funding and that the email provides no evidence that those discussions about further contributions had to do with excavation. 8. Moreover, it is noted that, at this early stage in September 2011, there were also discussions with Westpac on foot about financing the development. Mr Deiri explained that the feasibility summary in relation to costs was sent to Westpac in September 2011 (i.e., before CBA was approached to fund the project in December 2011 – see at [197]ff in the chronology above). The Deiri Parties note that an email from Mr Stephen (it will be recalled, of HWLE) to Mr Deiri and others on 23 November 2011 about the contract for sale still referred to Westpac as the financier of the development. 9. As such, it is said that, whatever limitations on funding Westpac or other financiers may have stipulated (which might have resulted in discussions about additional partnership contributions in September 2011), that does not demonstrate that those discussions continued to have any relevance to the funding ultimately agreed with CBA. It is submitted that, even if there were earlier discussions about potential contributions at some earlier time, the cash facility and construction tender referred to above demonstrate what the parties ultimately agreed. The position of the Deiri Parties is therefore that there is no evidence that the 16 September 2011 email had anything to do with an agreement that each of the partners would contribute $2 million in excavation costs. 10. The Deiri Parties further submit that Moustafa's evidence as to a conversation in mid-2011 with Mr Deiri in relation to excavation costs should not be accepted. 11. The Deiri Parties point to Mr Deiri's evidence that Jamil told him that the Sayours had incurred expenses in relation to the demolition of structures on the Broadway Site and other costs; and that he agreed to pay a discrete additional sum of $2 million on top of the $6 million purchase price. Mr Deiri says that the $2 million had nothing to do with a contribution for excavation. The Deiri Parties say that Moustafa's evidence is clearly wrong in light of the documents referred to above and they submit that Mr Deiri would never have said that it was not necessary to borrow money for the excavation from the bank (since that is precisely what he signed up to do). Further, as noted above, the Deiri Parties say there is no evidence that Plaza ever contributed a share of $2 million (as Moustafa alleges was the arrangement). 12. The Deiri Parties also note that, when Moustafa was questioned in cross-examination about the Approved Commercial Terms and Conditions that he signed, he admitted reading the document (but not all of it). It is noted that Moustafa claimed he did not read the figures in the summary on page 2; said he did not understand all of it; and said, "because I have my builder with me as a partnership, I left everything for him" (see at T 382.40-41). 13. It is submitted that, while Mr Deiri may have facilitated the loans from CBA (and provided the brand and credibility to obtain the loans), it is not credible to suggest that an experienced businessperson such as Moustafa paid no regard at all to the essential figures of what was to be loaned and for what purpose. It is noted that Moustafa accepted in cross-examination that this was a substantial project for him which involved him putting his entire wealth on the line, so to speak, as security; and that, in the course of cross-examination, Moustafa emphasised that he trusted Mr Deiri (see, for example, at T 383). 14. The Deiri Parties accept that Moustafa may have trusted Mr Deiri's experience in the construction industry but say that the evidence Moustafa gave that he took no interest in the structure of the borrowing, how it was organised and what it was for, is implausible and should not be accepted. 15. It is noted that, when Moustafa's assertion that he did not understand the relevant parts of the Approved Commercial Terms and Conditions was tested under cross-examination, he denied understanding basic words of the English language (the use of which it is said he must have encountered as a businessperson operating in Australia for 30 years), some of which he used in his own affidavits (such as "acquisition", "total acquisition cost", "client contribution" – though he then clarified that he understood the words "client" and "contributed" – see at T 383.4ff). It is said that Moustafa's response was that he did not read anything, was not told anything, and just signed the document. 16. I here note that Moustafa was taken to [33] of his affidavit sworn on 8 November 2019 (written in English and not, on its face, it would appear, translated to him at the time) which contained the statement that, "It is my belief that the majority of the [moneys[ that were allegedly contributed by Jamil to CP Arncliffe were moneys that were misappropriated by Jamil". 17. In this context, the Deiri Parties emphasise Moustafa's denial of knowing what "client contribution" meant, despite accepting that he knew what "client" meant, knowing that the clients referred to Plaza and Investments and despite understanding the use of the word "contributed" in a sentence in his own affidavit (in this regard, I note also other aspects of the cross-examination on this issue, much of which it is here unnecessary to excerpt). 18. It is noted that, when it was pointed out to Moustafa in cross-examination that the CBA Approved Commercial Terms and Conditions provided for CBA to fund the excavation works, Moustafa's explanation (said to be "incoherent") was that Mr Deiri had suggested that the contract price would be $44 million, not $40 million, and had said that the additional cost was due to excavation (see, for example, at T 389.3ff). 19. Again, the Deiri Parties say that Moustafa's evidence is not plausible. Further, it is noted that Moustafa made no mention of there being an agreement that each partner would contribute $2 million for excavation costs in his earlier affidavit sworn on 27 October 2016 (the only reference in that affidavit about excavation being that Investments would procure excavation – nothing about who would pay for it). 20. It is submitted that, in light of the contemporaneous documents, Moustafa's insistence of an entire conversation with Mr Deiri about each party paying $2 million for excavation was invented, was not truthful evidence and bears poorly on his credibility generally. It is submitted that, at best, Moustafa is confused about the purpose of the $2 million but, in either case, it should not be found that there was an agreement that Plaza and Investments were each to pay $2 million for excavation costs. 21. As to the reliance placed by Plaza on Ex A (that being a paragraph, specifically [34], of a previous unread affidavit of Mr Deiri sworn on 2 November 2016), in which Mr Deiri had deposed that: 34. I refer to paragraphs 52 and 53 of Moustafa's affidavit. I agree that Plaza and Investments entered into a joint venture in the terms set out paragraphs 53(a) to (f) of Moustafa's affidavit. In addition to these terms, it was agreed that Investments would arrange the finance and manage the design and construction and Plaza would manage the leasing of the centre, as set out in paragraph 10 of my first affidavit. it is submitted that Mr Deiri was there referring to [53] of Moustafa's affidavit sworn on 27 October 2016 (which was read only as an assertion), in which Moustafa said, relevantly: Among the terms of the Joint Venture were terms to the effect that: (a) BPI were to pay the amount of $6,000,000 to Broadway Plaza and procure the excavation work for the development in consideration of a 50% interest in the Shopping Centre Premises; […] 1. The Deiri Parties say that there is no acceptance or admission by Mr Deiri in the passage of his earlier (unread though here relied upon by Plaza) affidavit that Investments agreed that it would pay for the excavation. They say that, merely because Investments was to "procure" the excavation, does not necessarily say anything about who was to pay for it. It is submitted that the plain and ordinary meaning of the word "procure" (about which Mr Deiri was not questioned) is to obtain or bring about something (or to "obtain (something), especially with care or effort"). Further, it is noted that the word "procure" was not used by Mr Deiri; it was used by Moustafa in his affidavit (Mr Deiri simply referring to the summary and deposing that it reflected his understanding). 2. It is submitted that it is not fair or realistic for the Sayour Parties to "latch upon" the word "procure" in another person's affidavit (particularly an affidavit prepared early in the proceedings and for the purposes of an interlocutory application) and impute to Mr Deiri that he meant that Investments had agreed to contribute $2 million for excavation costs. It is, again, noted that Moustafa's affidavit made no mention of any such matter and that it is contrary to what Moustafa said was the arrangement (in that he said the partners were each to contribute $4 million). It is submitted that the notion that Investments was to pay for the excavation is inconsistent with Moustafa's own account of what was supposedly agreed. 3. Last, insofar as Plaza submits that Mr Deiri has not called any of his advisers to corroborate his denial that funding the excavation was on his mind and part of his bargain and that his evidence "should be weighed in that light", the Deiri Parties say that, insofar as this is a suggestion that a Jones v Dunkel inference should be drawn, that submission would need to be articulated openly and with precision so that it was capable of a proper response. In this connection, it is noted that there is not even an identification of who those advisors are. In any event, it is said that the submission would be equally applicable to Plaza, noting that Moustafa has not called any of his advisors to show that Investments paying for excavation was on his mind as part of the bargain. 4. Thus, the Deiri Parties submit that Ex A is of no assistance and that the most probative evidence on this question is the contemporaneous documentary material (all of which it is said is at odds with Moustafa's evidence on this point). 5. As to the contested factual finding that there was no separate amount agreed of $2 million for excavation works, the Sayour Parties' response commences by pointing to Mr Deiri's "rather exceptional tone" in denying this arrangement (at T 1046). 6. Pausing here, I must observe that I did not form the impression that Mr Deiri was speaking in an "exceptional" tone at this point in his (and I made no such note of this at the time). 7. The Sayour Parties further say that the submission that the excavation work was to be entirely funded from the CBA loan facility would give no content to the obligation of Investments to procure the excavation works. I interpose to observe that this, of course, assumes that there was an obligation to procure the said works and that it includes the payment of the costs. 8. Insofar as one of the matters to which the Deiri Parties point is the lack of written documentation on the subject matter, the Sayour Parties say that the lack of documentation on the partnership agreement between Investments and Plaza is consistent with the instructions that Mr Deiri gave to his (and Investments') lawyers on 23 November 2011 as reflected in the note made by Mr Stephen in his email of his date (see at [185] above) as to the relationship being one of "trust and handshake". 9. It is not disputed that the terms of the partnership remained a parol agreement. The Sayour Parties say that the paragraph of the previous (unread) affidavit of Mr Deiri sworn on 2 November 2016 (again, Ex A) admitted both the obligation of Investments to procure the excavation works and that that obligation was a term of the partnership. 10. As to the finding that should be made in respect of the precise content of that parol agreement (as to which the Sayour Parties accept that ordinarily a measure of caution would be exercised), the Sayour Parties emphasise that it was admitted that it was a term of the partnership agreement that Investments should procure this work and they say that it is Plaza which here may be deprived of the benefit and effect of an admitted contractual promise. 11. As to the admitted term, the Sayour Parties say that Mr Deiri's account on this topic is inconsistent. Specifically, it is noted that, initially, Mr Deiri admitted that Investments was to procure the excavation work (again, see Ex A at [34]) but that Investments now takes issue with the word "procure" and distinguishes between procuring something and paying for it. The Sayour Parties say that the ordinary meaning of "procure" in respect of goods or services is to cause it to be obtained and provided to, or as agreed with, the promise; and, in respect of an event, it means to cause the event to happen. They say that, considered in either way, it is meaningless if this term adds nothing to an agreement by the partners to prosecute a development business that necessarily involved this work. It is submitted that it would be like saying that the partners had to pay for Jamil's services in working on leasing, or for Mr Deiri's services in arranging finance. 12. The Sayour Parties say that a promise to procure would normally entail that the promisee is entitled to insist that the promised thing be provided without payment or performance of consideration beyond the performance of the other terms of the contract. 13. The Sayour Parties say that Mr Deiri had at least three years to clarify what he meant when he admitted to this allegation; and that he "offers essentially no exposition or evidence of the factual circumstances of this promise", having called no evidence from the solicitors who were taking his instructions at the time to corroborate his position and having objected to the tender of certain file notes they produced (see at T 1060.40). 14. The Sayour Parties say that the position of Mr Deiri now is, in effect, that the term meant nothing. They say to the contrary, that the term is a promise by one partner to the other that, as a term of their partnership association, the promisor would procure for the partners the excavation work. 15. The Sayour Parties submit that this promise cannot be seen in any other way than that it was a thing of substance; and they contend that it should be seen as Mr Deiri's contribution and part of the agreed cost of Investments' entry into the Broadway Partnership. It is noted that Plaza had, by December 2011: negotiated for and purchased the land; consolidated the title (see Moustafa's affidavit sworn on 31 May 2019 at [40]ff); attended to demolition (see his affidavit at [46]); applied for a development consent to conduct earthworks (see his affidavit at [107]); and commenced negotiations with Woolworths as the proposed anchor tenant (see also, for example, the email at Ex 15 at p 35). Thus, it is said that Plaza had incurred significant costs prior to the partnership. 16. Further, it is said that Plaza did not have to proceed with Mr Deiri and Deicorp; that Moustafa was ready to go back to a simpler project; and that both Mr Deiri and Jamil were keen to persuade Moustafa to continue with the project. Indeed, the Sayour Parties say that, "Mr Deiri was so keen that he commenced making secret payments to Jamil as well as making what he himself says was a $400,000 payment to show good faith without getting so much as a receipt for it". 17. It is noted that the handwritten documents recorded additional terms favourable to Plaza that were negotiated at the last moment on or around 27 December 2011. From this, the Sayour Parties assert that the Deiri Parties were "keen to get Plaza across the line". The Sayour Parties say that, in those circumstances, it strains belief that the parties did not agree that this promise was a substantial element of the terms for entry into the Broadway Partnership and that Plaza agreed to little more than half the value of its land for making this opportunity available. 18. Again, the Sayour Parties say that Mr Deiri's evidence in regard to the excavation works is inconsistent with Ex A and should not be accepted; and that his explanation that the additional $2 million that Investments paid to Plaza had nothing to do with the contribution to excavation costs is not corroborated. 19. As to the inclusion of excavation works in the tender, the Sayour Parties submit that this is not contrary to Plaza's claim. They say that the parties' respective contribution towards the excavation works was a term of the partnership between Plaza and Investments, not a term of the construction contract; and that it is not disputed that Deicorp was to do that work. They say that it is therefore not surprising that Deicorp's tender of February 2012 (see at [234] in the above chronology), addressed to Jamil, would contain a description of that work, just as the earlier pre-partnership contract of September 2011 had done. 20. It is noted that arrangements for construction finance had already gone through a change of bank and a quantity surveyor's report to Westpac, the benefit of which was then transferred to CBA. The Sayour Parties say that it was not necessary to alter the terms of the proposed construction contract except as to parties, when the agreement was a term of the Broadway Partnership, rather than a term of the construction contract(s). 21. For these reasons, the Sayour Parties maintain that the inclusion of the cost of the excavation works in the CBA Facility Agreement is not contrary to Plaza's claim. They emphasise that, on Moustafa's account of the conversation (see his affidavit sworn on 31 May 2019 at [106]); Mr Deiri said that they did not then have to borrow money from the bank; and, rather, could use their own funds at that time and then borrow from the bank when development approval had been obtained and that, "[y]ou put in 2 million now and when that is used up, I will put in 2 million. We will put on the contract [of sale land] 6 million dollars. After the project finishes, we can get this money back". Determination as to factual finding #3 1. At the outset I note that an admission or acknowledgment as to the state of the parties' rights (say, whether they are bound by a particular agreement, as contemplated in Sasson v Fahevu [1999] NSWCA 400 at [31], [32], [33], [34] per Beazley JA (as her Excellency then was)) may involve an admission as to matters of mixed law and fact; and that there is a dispute as to whether such admissions are admissible in evidence (see Pitcher v Langford (1991) 23 NSWLR 142 at 160 per Handley JA and the authorities there cited of the discussion in Cross on Evidence as to admissions as to matters such as breaches of duty of care or the like (see Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 at [66]-[71] per Gummow J, with whom McHugh J (at [40]) and Gleeson CJ (at [25]) agreed, for example). Moreover, in Film Bars Pty Ltd v Pacific Film Investments Pty Ltd (1979) 1 BPR 9251 (at 9255-9256), McLelland J (as his Honour then was) in the context of considering the force of subsequent communications as an admission by conduct (of the existence or non-existence of a subsisting contract) noted that such admissions of a fact relevant to that issue will usually vary inversely with the quantity of the available direct evidence of the matter in question. 2. As an initial matter, I do not regard the statement in Mr Deiri's unread affidavit as an unequivocal admission that there was an agreement by him to pay $2 million in construction costs over and above the amounts provided in the contract for sale and the additional $2 million agreed at the time of entry into the sale. This is not least because, as the Deiri Parties here submit, there seem many possible meanings of what Mr Deiri there said, including whether "procure" was intended to mean only to organise the works (so to speak) or, instead, to fund them. Moreover, since the affidavit was not read in Mr Deiri's case, all the service of the affidavit shows in my opinion is that, at that particular stage, Mr Deiri had deposed to the fact of what was there confirmed. It would be necessary to test the understanding or belief of Mr Deiri on which that affidavit was sworn at the time. 3. It has been said that admissions made otherwise than in the formal course of proceedings, have merely an evidentiary significance and that the "admitting" party is entitled to dispute the accuracy of the "admission" by evidence that it was made by mistake or misunderstanding or indeed that it is otherwise inaccurate or unreliable (see Nominal Defendant v Gabriel (2007) 71 NSWLR 150; [2007] NSWCA 52 at [113], [144] per Campbell JA, Hodgson JA agreeing). 4. Furthermore, I consider that weight should be placed on the contemporaneous signed documents and other documents; and that it is inconsistent with those documents that the excavation costs were not to be borne from the construction facility. Those documents included, but are not necessarily limited to, the following. First, I note the respective construction contracts and tenders for Stage 1 and the initial contract (signed on 28 September 2011 and between Plaza and Deicorp Constructions), which expressly incorporated the tender submission dated 26 September 2011 by Deicorp Constructions, which in its terms (did provide that excavation works were part of the construction price (including the statement, "[w]e have allowed for the complete Bulk Excavation and Detailed Excavation"). Second, there is also the replacement contract on 8 February 2012, also signed by Moustafa, which incorporated the replacement Deicorp tender of 7 February 2012. Third, the CBA facilities, and particularly the CBA Approved Commercial Terms and Conditions (signed by Moustafa on 24 January 2012), which made clear that the excavation works were to be funded by the bank loans. 5. Accordingly, I make the factual finding here sought, on the balance of probabilities, that there was no agreement that Investments and Plaza would each pay an additional $2 million for excavation works. Factual finding #4: Plaza has not proven that only its funds purchased the Matthews Street Property 1. The fourth key factual finding sought by the Deiri Parties is that Deiri Nominees contributed moneys totalling 50% of the purchase price and deposit by way of payment to Plaza, or alternatively to Jamil, for the purpose of the purchase of the Matthews Street Property. It is said that Plaza has not established that only its funds, or indeed only Biomed's funds, were used to purchase the Matthews Street Property. It is said that this is wholly determinative of any relief sought by Plaza over the Matthews Street Property. 2. In his affidavit sworn on 22 August 2019, Mr Deiri sets out (at [83]-[95]) his account of the background leading up to the purchase of the Matthews Street Property (see the chronology of events set out above). The Deiri Parties say that Deiri Nominees contributed 50% of the purchase price (which was $590,000) and deposit (which was $59,000) (see, for example, Mr Deiri's affidavit sworn on 10 November 2019 at [15], [20]-[23]). Mr Deiri has deposed that he drew a cheque for $29,500, which was 50% of the deposit (see, for example, Mr Deiri's affidavit sworn on 10 November 2019 at [15]). As noted, settlement was in April 2012 (see at [279] above). According to Mr Deiri, a cheque was drawn on a Deiri Nominees bank account in the sum of $266,700 (being half of the balance of the purchase price) and given to Jamil (see, for example, Mr Deiri's affidavit sworn on 10 November 2019 at [22]). It is not disputed that bank statements show that this amount was deducted from Deiri Nominees' bank account on 4 April 2012 (the day of settlement) and deposited into Jamil's Bank of Sydney #414 Account on the same day. 3. The Deiri Parties accept that it is not clear on the evidence whether the bank cheques used to pay for the settlement were sourced from the funds paid by Deiri Nominees. I interpose to note that this is an admission that the Sayour Parties say means that the Deiri Parties have failed to prove their case that Investments or Deiri Nominees contributed to the purchase money; whereas the Deiri Parties say that, equally, Plaza cannot show that its funds were used to fund some or all of the purchase price. 4. The Deiri Parties also accept that it may be (as Plaza asserts) that some of Biomed's funds were used to purchase 50% of the Matthews Street Property, but they say that this affords no basis for the relief sought by Plaza in these proceedings (noting that Biomed is not a party to the proceedings so that whether or not it might have a claim is immaterial). In any event, they say that any relief would go no further than a 50% interest in the property or Matthews Street Co, because Plaza and Biomed cannot trace more than 50% of their funds into moneys used to purchase the property (and that Plaza has not attempted to do so). 5. In this context, it is submitted by the Deiri Parties that the Sayour Parties have not identified any basis or legal principle which would entitle Plaza to the relief it seeks (and that even if, as he claims, Moustafa asked Jamil to purchase the Matthews Street Property in the name of Plaza, the fact that ultimately Jamil did not do so offers no basis for the relief sought by Plaza). 6. The Deiri Parties therefore say that: Matthews Street Co is the registered proprietor of the property; each of Deiri Nominees and Plaza is a 50% shareholder of that company; and there is no basis for the company's title as registered proprietor to be disturbed or for a trust to be declared over any part of the Matthews Street Property or of Matthews Street Co. 7. Meanwhile, the Sayour Parties note that the only evidence of the 4 April 2012 payment is Jamil's bank statement and a Deiri Nominees cheque; and that no written communication about this payment or its purpose was put into evidence. Indeed, the Sayour Parties say that no explanation was given as to why it was not paid into the control of Matthews Street Co, by subscription for units, loan or otherwise. In that regard, it is noted that the applications subscribing for units in the unit trust state subscription amounts of $60 each. The Sayour Parties ask, rhetorically, why such a structure would be established if the required capital funds were not put through that structure. 8. The Sayour Parties say that it is clear that the bank cheques used to pay for the settlement were not sourced from the payment made by Deiri Nominees to Jamil. It is noted that the bank cheques presented to the vendor, in accordance with the settlement sheet, are numbered sequentially from 158744 to 158754. The purchaser's solicitor's correspondence to Jamil, providing cheque directions, bears a handwritten figure of "531,360.42" (which equates to the sum of items 7 to 17 in the cheque directions). The Sayour Parties point out that items 1 to 6 in the cheque directions are noted "personal cheque"; and that these six cheques were drawn on the Biomed account and signed by Jamil (who was an authorised signatory on that account). 9. The Sayour Parties say that the bank cheques presented to the vendor were paid for from a term deposit account (ending #760) at the Bank of Sydney and maintained in the name of Jamil. In that regard, they refer to the two-page Bank of Sydney form entitled "Term Deposit Withdrawal/Change/Additional Deposit", which is dated 4 April 2012 (the date of settlement of the purchase of the Matthews Street Property) and is signed by Jamil. It is noted that the form requests the disbursement of funds held on the Bank of Sydney term deposit account (again, ending #760) in the sum of $531,360.42 – the precise sum for the 11 bank cheques (again, items 7 to 17) requested by the purchaser's solicitor in the cheque directions given by facsimile transmission dated 3 April 2012. 10. It is noted that, on the second page of the form, the instructions given for the disbursement of funds show that bank cheques #744 to #754 were to be purchased. It is further noted that the account opening form shows that the term deposit was applied for by Jamil on or about 4 January 2012, with an instruction to establish the deposit in the sum of $800,000 by debiting the Bank of Sydney #414 Account. 11. The Sayour Parties therefore say that the source of the funds used to open the said term deposit (#760) was the Bank of Sydney #414 Account; and that the proximate source of those funds was an earlier deposit, made on 5 August 2011, of $956,097.30 from another of Jamil's accounts at the Bank of Sydney (the Bank of Sydney #1931 Account – the bank statement for which shows a corresponding withdrawal on 8 August 2011). The Sayour Parties submit that it is likely that these funds came from Biomed or Moustafa, noting that in the period 2008 to 2011, Jamil had no substantial funds of his own (referring to the uncontradicted evidence of Moustafa and to Mr Deiri's evidence in cross-examination at T 324.35; T 325. 48). I interpose to note that the Sayour Parties also say that, as late as November 2011, Jamil was "interested in taking $10,000 per month from Deicorp whilst still working for his father and not telling him" and that this is characterisable as not the actions of a wealthy man (it is said also that Jamil's emails in 2012 pressing for prompt payment reinforce that conclusion). 12. The Sayour Parties point out that Jamil did not assert any personal claim to the funds so contributed and, so far as he was involved, the only interest of the Sayour family in the Matthews Street Property was through Plaza. It is said that it was also the intention of Moustafa that the Sayour family interest be through Plaza, here pointing to the original instruction to his solicitor to purchase in the name of Sayour Investments (the previous name of Plaza) and which was printed into the original form of contract that was drawn (but then crossed out). 13. Thus, the Sayour Parties say that this evidence shows, contrary to the Deiri Parties' submission, that the funds which were paid to the vendor for the Matthews Street Property were not the funds identified by the Deiri Parties (and that the Deiri Parties in fact contributed nothing to the balance of the purchase money). 14. Following, the Sayour Parties contend that the funds actually applied to pay the balance of purchase money at completion were Sayour family funds contributed on behalf of Plaza and not, as the Deiri Parties submit, co-contributed funds. 15. As to the Deiri Parties' submission that there is no basis or legal principle relied upon which would entitle Plaza to the relief sought with respect to the Matthews Street Property, the Sayour Parties note that the relief claimed by them includes a declaration of trust and an order for the transfer of that property to Plaza, or alternatively a vesting order. 16. It is said that the consequence of the actions taken by Jamil and Mr Deiri are that the intended purchase on trust fails, leaving a resulting trust in favour of Plaza and Deiri Nominees in the shares as to 95% and 5%, respectively. 17. In this context, reference is made to Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060 (Black Uhlans) per Campbell J, as his Honour then was, at [129]-[130] (noted in Tonna v Mendonca [2019] NSWSC 1849 (Tonna v Mendonca)). The Sayour Parties say that the third of the situations there identified by his Honour (i.e., where one person provides the purchase price for property which is conveyed into the name of another person) is that which gives rise to the presumption of a resulting trust in the present case. As noted above, it is said that the original contract proposed by the purchaser shows that the sale was intended to be to Sayour Investments; and reference is made to Moustafa's evidence that settlement occurred while he was overseas and that Jamil had reported to him that settlement had taken place in April 2012 (see T 373.25). 18. It is noted that, when the presumption of a resulting trust arises, the burden falls on the party disputing the existence of a resulting trust to rebut the presumed fact on the balance of probabilities (see Tonna v Mendonca at [465], citing Ryan v Ryan [2012] NSWSC 636 at [57]; Weige v Cupton Pty Ltd [2012] NSWCA 414 at [46]). 19. The Sayour Parties say that the Deiri Parties have conceded that the evidence does not affirmatively establish that any funds they paid to Jamil (apart from half of the deposit) were actually used to pay the purchase money and the Sayour Parties maintain that they have established that the rest of the purchase money was contributed on behalf of Plaza. 20. The Sayour Parties also say that it was Plaza who engaged Mr Naef to carry out the conveyance and for Jamil to attend to organising cheques for payment of the purchase price and point out that the Deiri Parties do not submit that either Investments or the Broadway Partnership had appointed Jamil as agent to carry out those tasks. The Sayour Parties say that Jamil's intervention on behalf of Deiri Nominees was to apply funds for half of the deposit required to exchange contracts on the property; and that Plaza and Moustafa had no knowledge of this having occurred. It is said that Jamil's knowledge cannot be imparted to Plaza or Moustafa in circumstances where he was in receipt of bribes (again noting that the very day he applied Deiri Nominees funds to fund half the deposit of the property, he received his first monthly $10,000 payment, having previously received $400,000). 21. The Sayour Parties say that the Deiri Parties have failed to rebut the presumption of a resulting trust in respect of the Matthews Street Property. 22. Finally, it is noted that Moustafa expressly denied any knowledge that the Matthews Street Property was "purchased by a company which was 50% owned by Plaza … and 50% owned by a company in which Mr Deiri had an interest" (see T 373.44-49), and it is said that this was never his intention, nor was it Plaza's intention. Determination as to factual finding #4 1. The finding here contended for is, as noted above, that Deiri Nominees contributed moneys totalling 50% of the purchase price and deposit by way of payments to Plaza or alternatively to Jamil for the purchase of the Matthews Street Property. 2. The evidence establishes in my opinion that the bank cheques provided on settlement were drawn from funds out of a term deposit (in the amount of $800,000) in Jamil's name at the Bank of Sydney. The term deposit had been applied for on 4 January 2012 by debiting Jamil's Bank of Sydney #414 Account. 3. I accept that the likely source of the funds in the Bank of Sydney #414 Account was an earlier deposit from a different Bank of Sydney account (the Bank of Sydney #1931 Account). Indeed, what appears is that moneys from Jamil's Bank of Sydney #414 Account were transferred in January 2012 to the term deposit, and that term deposit was then used to draw the bank cheques for the purchase. 4. However, critically, on the same day, a sum of $266,700 was deposited into the Bank of Sydney #414 Account from an account held by Deiri Nominees; and that amount is half of the balance of the purchase price due on settlement. 5. If the payment from Deiri Nominees was related to the settlement of the purchase price then there was payment to Jamil from Deiri Nominees in reimbursement of, or contribution for, a half share of the purchase price. There is no documentation that directly links the two payments such that (arguably) this remains an assumption or conjecture. However, Mr Deiri's evidence that this represented the Deiri Interests' half share of the balance of the purchase price is consistent with the fact that the payment is of precisely that amount. 6. I find, on the balance of probabilities, that the original intention of Plaza, through Moustafa, was that the property was to be acquired in its name. That seems to be the only explanation for the draft contract showing "Sayour Investments" as the purchaser. Furthermore, in the absence of knowledge by Moustafa as to Matthews Street Co being substituted as purchaser, it is difficult to see how Sayour Holdings agreement to "substitute" a new purchaser would be said to have been authorised by Moustafa. 7. I have referred above to the principles in relation to the imposition of a resulting trust, where the contribution to the purchase price does not reflect the legal ownership. As to the purchase price, it is clear that of the deposit, a contribution of 5% (i.e., half) came from Deiri Nominees and the balance from Jamil's account. On the basis that it seems otherwise highly coincidental that an exact amount of half the balance of the purchase price was paid by Deiri Nominees to Jamil at that time for anything else, I have concluded on the balance of probabilities that the contribution was equally by Jamil and Deiri Nominees. 8. I accept that the intention of Moustafa (and through him, Plaza) was to purchase the property in Plaza's name but, insofar as a resulting trust claim is concerned, it has not been shown that moneys contributed were to the purchase price by Plaza or Biomed. 9. Therefore, while I accept that the circumstances would establish a resulting trust it is not the one for which the Sayour Parties here contend, in all the circumstances, if the holding of shares in Matthews Street Co equally as between Deiri Nominees and Sayour Holdings is maintained, then there may as a practical matter be no need for any relief on the resulting trust issue. Factual finding #5: no comparable competitor quote for construction and a joint venture 1. The next factual finding for which the Deiri Parties contend is that there was no comparable competitor quote for construction and a joint venture; and that the Dyldam quote (see at [141] in the above chronology) that was received was never in serious contemplation. 2. It will be recalled that, in the Fifth Broadway Cross-Claim, Plaza alleges: that Dyldam offered a cheaper construction price than Deicorp; that Jamil did not disclose this to Moustafa; and that "bribes" paid by Investments induced Jamil to refrain from disclosing the Dyldam quote. 3. The Deiri Parties say, referring to the email on 19 September 2011 from Jamil to Mr Deiri (which referred to a better quote from another "reputable company" – see at [130] above), that it should be inferred that, on or around 15 September 2011 and prior to 18 September 2011, Jamil had requested Dyldam to provide a quote for the construction of the Broadway Development. 4. I interpose to note that I would draw that inference from the communications between Jamil and Mr Fayad (to which reference has been made in the chronology of events set out earlier (see at [129]ff). 5. More specifically, the Deiri Parties say that in the 19 September 2011 email what Jamil was telling Mr Deiri was that he had received a quote for construction of $55 million (which he asserted was lower than Deicorp's indicated cost of $62.4 million) and that the developer was willing to enter a joint venture with Plaza. The Deiri Parties say that this was not true, in that Jamil had not by then received any quote from Dyldam nor had Jamil by then received any confirmation that Dyldam would agree to a joint venture. Again, I interpose to note that I agree with this submission. 6. As to the quote, insofar as the email was conveying that there was a written quote, there is no documentary evidence of any such quote (and even, as at 23 September 2011, Mr Fayad was seeking more time to provide one – see at [134] above). As to a proposed joint venture, it was only on 26 September 2011 that Mr Fayad replied on that topic, and even then he did not confirm Dyldam would commit to a joint venture, he simply said a deal would need to be worked out (again, see at [136] above). The Deiri Parties also note that when Jamil ultimately received the quote from Dyldam, the quote was not for $55 million – it was for $59.7 million (again, see at [141] above). 7. The Deiri Parties thus maintain that there was no true competing quote for construction and a joint venture. They make the following specific submissions as to this issue. 8. First, they say that it is unlikely that Jamil had any intention of considering a different builder; rather, they submit it is more likely that Jamil was attempting to negotiate a lower price for construction. It is noted that Jamil did not wait to receive the quote from Dyldam before making these representations, and that he had by then been in discussions and had attended coordination meetings with Mr Deiri for almost a year. 9. Second, that Jamil was not induced to accept the Deicorp offer (and to refrain from disclosing the Dyldam offer to Moustafa); rather, that Jamil had "attempted to drive a hard bargain with Mr Deiri, by lying to him" (which the Deiri Parties say backfired, having regard to Mr Deiri's evidence that he told Jamil in effect to "take it or leave it"). 10. Third, that there was no comparable quote because Dyldam had not confirmed it would proceed with a joint venture; rather, the Dyldam quote was predicated only it Dyldam being the builder. The Deiri Parties say that this is significant because Moustafa could not proceed with the project on his own. It is said that Moustafa was not able to finance a project of this size to pay the Dyldam construction price and therefore that a joint venture was critical for the project to proceed at all. 11. Fourth, that the quote was subject to contract. It is said that Plaza bears the onus of proving loss caused by Investments and that it has not proven that Dyldam would actually have proceeded with a construction contract on the terms and at the price it quoted. It is noted that Plaza called no-one from Dyldam to make good the counterfactual it has postulated (i.e., of a joint venture with Dyldam as the builder and joint venture partner) nor did Moustafa give evidence as to what he would have done had he been shown the Dyldam quote. In this connection, reference is made to Gore v Montague Mining Pty Ltd [2000] FCA 1214, where causation was not established because it could not there be concluded that the venture in that case would have proceeded. The Deiri Parties say that, here, there is similarly insufficient evidence to conclude what would have happened had Jamil shown the Dyldam quote to Moustafa. 12. Fifth, that Plaza has not established that the Dyldam quote actually proposed a more favourable offer than Deicorp Constructions. In particular, it is said that: the Dyldam quote did not include any costs for excavation (noting that, if the $3,067,477 allowed in the Deicorp tender for excavation costs is removed from the Deicorp's total tender price of $63.5 million, then Deicorp (and Deicorp Constructions) tender price would be $60,432,523 – very close to the Dyldam quote); the Dyldam quote only covered the "shell" of the shopping centre, which was not a limitation of the Deicorp Constructions tender; and the Dyldam quote did not break down the construction cost as the Deicorp/Deicorp Constructions tenders did. It is said that there is therefore no way of scrutinising the accuracy or reliability of the quote Dyldam submitted, nor of comparing the extent to which contingencies were considered. 13. As to this contended factual finding, the Sayour Parties say that the evidence supports the conclusion that Dyldam was interested in submitting a quote and that a comparison shows that its quote was competitive. Further, they say that equity presumes that Deicorp Constructions profited therefrom (citing Burdick v Garrick (1870) LR 5 Ch App 233 at 243 per Giffard J; Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298 at 367-369 [2003] NSWCA 10 per Heydon JA, as his Honour then was (Harris v Digital Pulse)) and that the quote is therefore significant. 14. Insofar as reference is made by the Sayour Parties to Harris v Digital Pulse for the proposition that equity presumes a profit, the Deicorp Entities and Deicorp Properties say that (at 367-369), Heydon JA (as his Honour then was), with whom Spigelman CJ largely agreed, was referring to the presumption that profit is derived (as in the ordinary course of trade) from access to moneys improperly obtained in breach of trust or in breach of fiduciary duty, thus justifying an award of interest on a compounding basis. It is said by the Deicorp Entities (and Deicorp Properties) that the authorities do not support the conclusion that a profit is presumed; and that the Sayour Parties bear the onus of establishing the quantum of their asserted relief, whether by way of equitable compensation or an account of profits. Furthermore, this aspect of Sayour Parties' submissions is criticised as an incomplete submission, including because it fails to recognise that the Sayour Parties had the opportunity to lead expert evidence on the topic of reasonable building costs, but chose not to do so. Determination as to factual finding #5 1. The evidence does not establish that, as at the relevant point in time, Jamil had any actual competing quote (let alone one that was under serious consideration). 2. It seems to me clear that what Jamil was trying to do (as it turned out unsuccessfully – perhaps due to the obvious disparity in commercial experience between the two) was to negotiate with Mr Deiri a lower price for construction (just as he had told his father in August that he would do) by representing to Mr Deiri that he had obtained a competing quote. True it is that Jamil then did obtain a Dyldam quote; and I accept Moustafa's evidence that Jamil did not disclose it to Moustafa. However, the Dyldam quote was not a comparable quote in the sense of one that was on all fours with the Deicorp tender (as the Deicorp Entities submit). Indeed, a significant point of distinction was that it did not involve a joint venture. I also accept the difficulty of assessing the accuracy or reliability of the Dyldam quote. 3. The significance of this issue, as will become apparent in due course, is principally whether the non-disclosure of the existence of the Dyldam quote should be treated as some kind of conduct induced by the alleged bribes and, if so, whether there is a relevant assumption as to the profit that would have been obtained as a result, which is relevant to the allegations of bribery (again, discussed below in due course). 4. For present purposes, simply addressing the factual finding that has here been sought, I find that there was no comparable competing quote for the construction works (or, indeed, for a joint venture) as at the time that the Stage 1 Construction Contract was signed. Furthermore, I consider it doubtful (if that be relevant) that Jamil was seriously considering the Dyldam quote as a competing quote in any event (which seems to me the most likely explanation for the fact that Jamil did not defer acceptance of the Deicorp tender in order to progress consideration of the Dyldam quote). Factual finding #6: that the $10,000 monthly payments were not bribes 1. The next factual finding sought by the Deiri Parties is that the payments of $10,000 by Investments per month were not bribes paid to Jamil but, rather, were payments to Plaza. Leaving aside, for the moment, the principles concerning bribery on which the Sayour Parties rely and to which I refer in due course, the Deiri Parties dispute the character of the payments as payments made to Jamil personally (i.e., for his benefit alone). The Deiri Parties say that the payments were part of the overall partnership arrangements (which they say were negotiated in their entirety by Jamil on behalf of Plaza). 2. The Deiri Parties say that it was as part of the overall partnership arrangements that Investments agreed to pay $10,000 monthly until the contract for sale settled, referring to the email sent by Mr Deiri to his internal accountant on 18 November 2011 (see above at [159]). 3. It is said that, in effect, Investments agreed to compensate Plaza for the leasing work it was performing while Plaza was out of its money for the purchase price until June 2012. The Deiri Parties contend that, although the Broadway Partnership had already been formed by then (though see my finding as to factual finding #1), the purchase price had not yet been paid at the time the monthly payments commenced on 30 November 2011. It is said that it was not Jamil personally who was responsible for leasing; it was Plaza; and that, in carrying out leasing responsibilities, Jamil was carrying out Plaza's responsibilities. The Deiri Parties say that the compensation makes commercial sense given that, under the terms of the partnership, Plaza was responsible for leasing and it needed to carry out those responsibilities before the settlement was secured. 4. The Deiri Parties point to examples of the work Jamil was carrying out in respect of leasing tasks by reference to an email sent by Jamil to Mr Hammond and CBA on 24 April 2012 in which Jamil set out a lengthy status update on the progress of his endeavours to secure tenants for the Broadway shopping centre. 5. Further, the Deiri Parties emphasise that all nine of the $10,000 payments were paid into the Westpac #202 Account (which was in the name of Moustafa and Jamil), in accordance it is said with Jamil's email instructions. It is noted that the Westpac #202 Account was designated as a trust account for the Sayour Family Trust (of which Plaza was the trustee). The Deiri Parties say that Moustafa knew about that account and empowered Jamil to operate it; and that Plaza had no bank account of its own. The Deiri Parties say that the payments were thereby paid in fact to Plaza and that Moustafa should be taken to know of the $10,000 payments. 6. Insofar as the Sayour Parties place weight on the description by Jamil in his 18 November 2011 email to Mr Deiri of the Westpac #202 Account as "my" account for monthly payment (as showing that Mr Deiri knew that the account was for Jamil's personal benefit), the Deiri Parties refer to the email as it appeared in full (see above at [157]), noting that it included that the account name was "M & J Sayour". The Deiri Parties submit that this contradicts the suggestion that Mr Deiri would have read the email and assumed the Westpac #202 Account was for Jamil's personal benefit only. The Deiri Parties say that the focus on the words "my account" (again, my emphasis), to suggest that Jamil conveyed it was for his exclusive benefit, fails to take into account the context of the transaction and ordinary human uses of language. It is noted that Jamil was Moustafa's son, and it is said that Mr Deiri associated them together as one family unit (emphasising his evidence that he had been told that dealing with one was like dealing with the other and that Jamil had been held out as running Plaza's side of the business). It is submitted that the fact that Jamil identified a bank account in his and his father's joint names could only have reaffirmed that the payment was not for Jamil's exclusive benefit, but for Plaza's benefit. 7. The Deiri Parties say that, in circumstances where Jamil had approached Mr Deiri, Jamil drove the project from Plaza's side and Jamil was the primary point of contact for Plaza, it is only natural that Jamil would refer to accounts or even the project itself as "his". It is also noted that Yesmine gave evidence that, between 2011 and 2015, she heard Jamil, when speaking to business partners, friends or family in relation to the Broadway shopping centre, say things such as "[i]t's my centre", "[i]t belongs to me" and "[t]he shopping centre is mine". The Deiri Parties say that, in this context, the words "my account" do not necessarily imply exclusive legal ownership. It is said that common sense and experience show that, in the real world, people do not use precise language to differentiate themselves from the corporate entities with which they are associated. 8. The same point is made in response to the Sayour Parties' submission about Mr Deiri's email to Ms Lou (it will be recalled, the internal Deicorp accountant) of 18 November 2011 (in which Mr Deiri said "can you please set Jamil up in our system to ensure that he receives his payment at the end of each month" – see at [159] above); that is, that common sense about the way people speak undercuts the suggestion that, by the use of this language, Mr Deiri was intending in this context to mean Jamil strictly in the personal sense. 9. The Deiri Parties say that nothing can be drawn from the fact that the parties may have referred to each other individually, rather than by their corporate names. Again, it is submitted that this is natural and consistent with the agreement being between Investments and Plaza. It is noted that, at the time the arrangement was agreed (around mid-November 2011), Investments was not yet registered and Plaza had not yet been renamed. It is submitted that, as a matter of "commercial reality", the partners were operating through people and that what is ultimately important is the substance of the transaction. 10. Insofar as Plaza says that the payments were not disclosed to it and that the only way that could be done was to communicate the payments to Moustafa, the Deiri Parties say that there was disclosure of the payment through Jamil. They say that this is not a simple case where a payment is made to an agent without the knowledge of the principal; rather, that, here, Jamil was the "embodiment" of the principal in that he negotiated the terms of the partnership and was authorised to direct payments and manage Plaza's business; that all the dealings concerning the partnership terms were negotiated with Jamil as representative of Plaza; and Moustafa held out Jamil as having authority to do so. 11. It is said that Mr Deiri was not dealing with Plaza through Jamil; rather, that Jamil was in effect Plaza's "embodiment", and that he was in fact authorised to be that point of contact and to operate Plaza's business generally. 12. The Deiri Parties note that the last $10,000 payment was made on 1 August 2012 (for the month of August 2012 – see at [295] above) and that, by the end of that month, the final instalment of the purchase price was made (noting that Investments was "slightly late" in making the final instalment towards the land contract, having made payment of $3.25 million on 20 August 2012, instead of by June 2012 as expected – see at [302] above). It is submitted that this is consistent with the original arrangement reflected in Mr Deiri's email of 18 November 2011, in which it was contemplated that the payments would run until settlement (which the email stated would be in June 2012). It is said that, as the settlement date drew out to August 2012, so too did the $10,000 payments to align with that date. 13. Insofar as the Sayour Parties submit that it can be inferred that Jamil "expected to receive substantial funds" once settlement occurred so that the $10,000 per month would not be necessary and that Jamil received $1 million (described as a "balloon payment") paid to the same account at the time the payments terminated, the Deiri Parties say that the insinuation of some sort of "unpleaded conspiracy or corrupt motive" is baseless and ignores the fact that Investments had been making substantial payments towards the balance of the purchase price since 1 May 2012. 14. As to the submission by the Sayour Parties that the email sent by Mr Deiri to the internal Deicorp accountant (it will be recalled, Mr Leong – and, see at [159] above) also indicates that the $10,000 payments were for Jamil's benefit, the Deiri Parties again say this submission pays no regard to ordinary uses of language. 15. As to the reliance by the Sayour Parties on Jamil's email on 3 July 2012 to Mr Leong, asking, "please advise when you will make this months [sic] payment thanks?" (and the submission that this shows "apparent urgency or solicitude for these payments"), the Deiri Parties say that this was a simple email chasing for a payment. They submit that the evidence shows that Jamil "very much kept on top of expenses during the Broadway project" and that all this email shows is that Jamil was "staying on top" of outstanding moneys. 16. Thus, the Deiri Parties say that the $10,000 payments are properly characterised as payments made to Plaza pending the completion of the land transaction and were made as part of the overall partnership agreement, which Jamil negotiated and which he was empowered to agree on Plaza's behalf. Insofar as Plaza points to the fact that the $10,000 payments were never disclosed as partnership expenses, the Deiri Parties say that the payments were not "partnership expenses"; rather, that they were part of the overall transaction as part of the joint venture. More specifically, Investments' submission is that the agreement was that Investments would pay these amounts to Plaza (not that the partnership would pay them, or that Investments would have some entitlement to be credited for them by reason of being a partner). It is said that, had they been partnership expenses as such, then Plaza and Investments would in effect have been paying $5,000 per month each. 17. The Sayour Parties, apart from noting that it is unclear what the Deiri Parties mean by "overall partnership arrangements", say the following in respect of this contest factual finding. 18. First, they say that it is a departure from the pleadings, admissions and evidence of the Deiri Parties (and the Deiri Entities represented by Kreisson Lawyers, whose defence was verified by Mr Deiri himself), where it was affirmatively asserted that these payments were by Deicorp Constructions to Jamil as remuneration for his personal benefit for his personal exertions in respect of leasing work. The Sayour Parties say that, inherent in the pleading and evidence of the Deiri Parties and Deicorp, is the admission that the payments were sought, and paid into an account directed, by Jamil and that Jamil received those payments. 19. It is noted that, in his affidavit sworn on 22 August 2019 (see at [56]), Mr Deiri deposed that, "I directed Deicorp Construction to make monthly payments of $10,000 to Jamil"; that Mr Deiri alleged that he and Jamil agreed that the payments were for Jamil personally in respect of either leasing work that he had performed or possibly in respect of settlement; that neither Mr Deiri nor either of Deicorp or Investments disclosed to Moustafa the making of the payments to Jamil; and that Jamil was an agent of Plaza and Moustafa at the time he received the payments. 20. The Sayour Parties submit that the elements of a bribe are established, by matters pleaded in the defences of Deicorp Constructions and the Deiri Parties and by admissions in Mr Deiri's affidavits; that no leave has been sought to withdraw that material (as would be required by r 12.6(2) of the UCPR); and that Deicorp Constructions and the Deiri Parties remain bound to their pleaded and evidentiary case. 21. Second, the Sayour Parties say that Mr Deiri's evidence that he agreed with Jamil that the payments were in connection with leasing work should not be accepted. It is noted that no contemporaneous record has been produced identifying the payments as made for that purpose. It is said that the failure contemporaneously to make and disclose to Plaza (not Jamil) a record of this agreement and its purpose is itself a highly significant fact. 22. The Sayour Parties say that the only "clue" to the purpose of the payments is in the words "until we settle" in one of the emails. They say that this involves no connection with leasing and that it is inconsistent with that concept because the intention was to retain the shopping centre and thus leasing work was always going to continue. They further say that the submission that Jamil was being paid because Plaza needed to carry out those responsibilities before the settlement was secured is wrong. The Sayour Parties also note that there is no condition in the contract for sale or in the admitted terms of the partnership that tied Plaza's leasing responsibilities in the Broadway Partnership with settlement, or made settlement conditional upon same. It is noted that the transfer was registered in February 2012 but that the payments continued until August 2012. It is submitted that the reference to settlement in the email appears to mean repayment of the vendor finance loan and that this had no connection with leasing. 23. The Sayour Parties point out that leasing work was going on before there was any deal with Mr Deiri and that it continued well after August 2012, when (as noted) the last of the $10,000 monthly payments was made. It is further noted that, on the Deiri Parties' own case, the $8 million was not paid in full until September 2013, yet the monthly payments stopped 13 months before this. 24. Pausing here, I interpose to note that, as I understand it, the Deiri Parties here draw a distinction between the $6 million contract price and the additional $2 million sum agreed to be paid, in terms of the timing of the payments. 25. Third, it is said that the proposition that these payments were for leasing work does not assist the Deiri Parties; and that it does not matter whether the payments were for work, or gratuities, or whether they were for one consideration or several. 26. The Sayour Parties say that it may be accepted that Plaza was attending to leasing work pursuant to an allocation of roles agreed between the partners. However, they say that there is no view on which the addition of these "surreptitious" payments to the arrangements agreed between the partners can be considered as part of the overall arrangements for the partnership. 27. The Sayour Parties maintain that there can be no reliance on the bribed agent to advise the principal, pointing to what was said by Millett J (as his Lordship then was) in Logicrose v Southend United Football Club at 1262 (referred to in SWC v Makucha at [60]). The Sayour Parties submit that it does not matter how much authority Jamil had; that he could not, as a matter of law, have authority to negotiate this as a term of the partnership agreement unless full disclosure was made to the principal and specific consent given to it. It is said that, having failed to disclose it himself to Moustafa, it is not open to Mr Deiri to impute the knowledge of the agent to the principal, nor to assert that the agent was authorised to make the arrangement. 28. The Sayour Parties say that these commissions actually detracted from Plaza's work and role in leasing, as well as prejudicing its position generally. It is said that, instead of Plaza contributing Jamil to do this work, Deicorp was now contributing his services, and thus dividing the loyalty he owed to Plaza (in circumstances where it is said many questions lay open or opened up between the Broadway Partnership and Deicorp itself). The Sayour Parties say that (adopting the description of the conduct in Fouche v The Superannuation Fund Board (1952) 88 CLR 609 at 630; [1952] HCA 1 per Dixon, McTiernan and Fullerton JJ (Fouche)), the gross impropriety and illegality of this course is obvious. 29. The Sayour Parties say that there is no dispute that leasing was work Jamil was doing initially for Plaza and, after the partnership was formed, for Plaza in its role as the partner involved in prosecuting leasing opportunities for the Broadway Development; and that there is no dispute that these payments were an additional payment to an agent of Plaza for work that he was doing on Plaza's behalf. They also note that there is no dispute that it was secret. It is noted that it was not put or suggested (whether in the pleading, in evidence or in cross-examination of Moustafa) that Moustafa knew of these payments at the time. 30. The Sayour Parties say that, regardless of whether or not it undertook the development of the Broadway Site in partnership with Investments, Plaza had intended that the retail shopping centre was to be built and would require tenanted shops. To that end, it is noted that Plaza had already entered into extensive negotiations with Woolworths by August 2010 (before Jamil's first meeting with Mr Deiri) (referring to Ex 15 at p 35, being the email dated 9 August 2010 from Mr Carroll of Woolworths to Jamil, which refers to negotiatons towards a binding agreement from the lessor (i.e., Plaza)). Therefore, the Sayour Parties say that the work undertaken to secure the primary tenant in the retail centre was substantially in progress more than six months before the first coordination meetings took place at Deicorp's offices (and that the leasing work continued). 31. The Sayour Parties say that the rationale for the $2 million payment on top of the $6 million land price was to reflect Plaza's costs quantified and agreed in a lump sum. In that context, they ask, once more rhetorically, why leasing responsibilities would not also be the subject of a lump sum if that were to be a payment to Plaza and not to Jamil. 32. Fourth, for the same reasons, it is said that it is not open to the Deiri Parties or the Deiri Group to contend that the payments were payments to Plaza, rather than to Jamil. It is said that, having initially alleged that the payments were to Jamil, the Deiri Parties' case has "metamorphosed" into a case that they were paid to Plaza by its agent Jamil. The Sayour Parties submit that the law does not admit of such a possibility. 33. Insofar as the Deiri Parties emphasise that the payments were made into the Westpac #202 Account, the Sayour Parties submit that this does not lead to the conclusion that the payments were not paid to Jamil (and consequently were not bribes) for the following reasons. They point to the (asserted) admissions that the payments were for Jamil personally, and the contemporaneous evidence (from the emails) supporting those (asserted) admissions, as showing that the Westpac #202 Account was in fact at this time being used by Jamil for his own purposes. The Sayour Parties say that, ultimately, it is sufficient to say that, because the $10,000 per month payments were for Jamil, it is of no moment that they were paid into the Westpac #202 Account; but that once this use of the Westpac #202 Account is established, it has significance for the characterisation of other payments into that account which were not expressly marked as being for Jamil. Next, it is said that the conclusion in respect of the $10,000 payments is supported by looking at what Jamil then did with the moneys. It is noted that each and every deposit of $10,000 in the Westpac #202 Account by Deicorp was almost immediately followed by a withdrawal, via internet transfer, of the whole or most of the deposit. It is noted that Moustafa's unchallenged evidence (see his affidavit sworn on 27 October 2016 at [20] and his affidavit sworn on 16 September 2019 at [14]-[15]) was that he did not know he had, nor had he used, internet banking and is not adept with computers; and that Jamil referred to the account as "my account for payment". It is said that Jamil transferred those funds out of the Westpac #202 Account and that the money was used by Jamil for his own purposes "as was always intended by him and Mr Deiri". Determination as to factual finding #6 1. I cannot accept that the $10,000 monthly payments were part of the overall partnership arrangements. On Mr Deiri's own evidence they were the subject of an arrangement at the time that the partnership arrangements were being negotiated, but they seem to have been outside the scope of the partnership there being contemplated (in which Plaza was to be responsible for the leasing work as part of its contribution to the partnership). 2. The objective evidence does not link the payments to the leasing work and the fact that the payments were to be made "until we settle" indicates a clear temporal link to the acquisition of the land. I do not accept as plausible Mr Deiri's explanation that the payments were for Jamil's leasing work. 3. As to the reference to setting up Jamil in the system for payment of "his" money, I am prepared to accept that the language in which the email communications were framed is not conclusive (not least because of the informal tone of much of the communications and because I am not persuaded that there was much attention to detail generally in terms of the terminology in which communications were couched). In this connection, I can accept the Deiri Parties' submissions in relation to the impression often found in general, day-to-day usage of language. Email communications in particular (as evident in some of the communications in evidence in the present case) are often expressed in colloquial terms (not to mention including spelling and grammatical errors) that distinguish them from formal, more considered, communications. 4. It is of relevance that the pleaded case of the Deiri Parties (see, for example, at [17] of the amended defence to the fifth cross-claim, verified by Mr Deiri) was that the payments were to Jamil as remuneration for his personal work in respect of leasing. That does seem to me to amount to an admission that the payments were intended to be for Jamil personally. 5. However, what I find more significant is that the moneys were paid into an account in both Jamil and Moustafa's names and which was styled as a trust account and thus (as was argued by the Sayour Parties in the Estate Proceedings – see, for example, the Estate Proceedings Judgment at [79]), those moneys became impressed as trust moneys when paid into the account – the only relevant trust being the Sayour Family Trust. 6. Ultimately, I have concluded that the monthly $10,000 payments were payments made to (in the sense of being received into an account styled as a trust account on behalf of the Sayour Family Trust) Plaza, though not disclosed to Moustafa at the time; and that whether or not intended to be for compensation to Jamil they were in fact received by Plaza. Significantly, for the reasons I set out below, I have concluded that those payments did not amount, at law, to bribes. Factual finding #7: the contract for sale of land, Moustafa's knowledge of $400,000 deposit and the $2 million payment 1. The next factual finding for which the Deiri Parties contend is that Moustafa signed the contract for sale for the Broadway Site knowing that: the price was $6 million; $400,000 had been paid as a deposit; and $2 million of the $6 million purchase price was required to be paid to Moustafa's overseas bank account by 30 June 2012. 2. As to the receipt of the $400,000 deposit, reference is made to the cheque drawn on 10 October 2011 made out to "Micheal Sayour", allegedly at Jamil's request (see at [149] above). The Deiri Parties say that it is not known where the cheque was deposited but they point to special condition 42.1 of the contract for sale which acknowledged receipt of the deposit (see at [216] above). 3. The Deiri Parties maintain that the fact that there is no stipulation in the contract for sale as to the "place of payment" is not to the point. They say that Investments had been informed by Plaza, through Jamil, how to make the deposit payment; and that Mr Deiri followed Jamil's instructions. 4. The Deiri Parties further say that it is not correct to say (as asserts the Sayour Parties) that there is "no evidence that the payment of $400,000 was received by or on behalf of Plaza". It is noted in respect of the receipt that: first, the bank records show that the sum was debited from the payor account on 11 October 2011 (therefore that the cheque was presented); second, Jamil acknowledged receipt of the $400,000 in his email of 15 June 2012; and, third, Moustafa knew about the $400,000 deposit written on the contract for sale and never complained of not having receiving. (It is said that Plaza presumably does not dispute that the cheque was deposited somewhere; otherwise it could not allege that the payment constituted a bribe.) 5. The Deiri Parties submit that the real question is whether Jamil had authority to direct how to make the payment and physically to receive the cheque on Plaza's behalf; and they contend that Jamil plainly did have that authority (as to which, I note my earlier factual finding as to Jamil's authority). 6. As to the signing of the contract for sale, it is noted that Mr Deiri's evidence is that he gave the unsigned contract to Jamil and it is not disputed that Moustafa signed the contract for sale (see at [217] above) (however, there is no evidence that Moustafa signed the relevant loan agreement – see at [220] above). It is noted that Moustafa does not refer to that loan agreement in his evidence; and that Plaza accepts that Moustafa did not sign it. 7. The Deiri Parties say that the fact that Plaza "never bothered" to sign this loan agreement may be explicable because Jamil told Mr Deiri that he was not interested in charging interest, referring to Mr Deiri's evidence of the conversation with Jamil (set out at [191] above; and see [65] of his affidavit sworn on 22 August 2019). The Deiri Parties say that, even if he was aware of the loan agreement, Moustafa may not have bothered to sign it, noting Moustafa's evidence (at T 331.28-331.32) that he was not interested in interest for religious reasons ("that's why I'm not worried about the interest, because we're not taking that interest" – evidence that is wholly inconsistent, I interpose to note, with the phenomenal claim for interest here made by Plaza). 8. The Deiri Parties say that the genesis of the loan agreement was the advice given by HWLE that a deferred settlement would not be possible without it. The Deiri Parties say that the parties effectively treated the loan agreement as if it was not there; that no-one ever mentioned it, complained about a default or proposed to enforce it; and that Plaza's attempt to do so over five years after the alleged default is "another example of an approach to the fact that seeks to rewrite history". The Deiri Parties also raise a claim of estoppel in this regard (see below). 9. The Deiri Parties also point to the terms of special condition 43 of the contract for sale (see above at [217]). They say that the fact that it was a condition precedent to completion that the parties enter into the loan agreement has two consequences: first, that the loan agreement was a distinct contract which had not been entered into simply by signing the contract for sale; second, that fulfilment of the condition precedent was waived by both parties (since completion took place and the last instalment of the purchase price was paid, without Plaza having signed the loan agreement); and, third, that the loan agreement was never entered into and its terms were never binding upon the parties. Thus it is submitted that Plaza's claims for relief by reason of breaches of this loan agreement fail at the outset. 10. The Deiri Parties submit therefore that there should be a finding that Moustafa knew that Investments had paid a deposit of $400,000 at least by the time he signed the contract for sale on or about 27 December 2011. It is submitted that this is clear from the fact that it was written on the front page of the contract, and it is said that it is not plausible that Moustafa paid no attention to the purchase price figures. In this regard, the Deiri Parties say that Moustafa's evidence in cross-examination on this topic was manifestly untruthful (i.e., his evidence that the contract he signed did not have any of the details filled in on the front page; that his solicitor, Mr Ziad Naef, prepared the contract and gave it to him to sign with none of the details completed; and that he signed it before it was prepared and sent it to his solicitor). 11. The Deiri Parties say that this evidence is obviously implausible; that no solicitor would, in the ordinary course, prepare a contract for the sale of land with no details about the parties, the property or the purchase price, and ask a client to sign it, particularly for it later to be amended without the client seeing it. 12. Further, it is noted, as adverted to previously, that Plaza called no evidence from Mr Naef to corroborate Moustafa's account. In this connection, it is also noted that Moustafa accepted that Mr Naef was still his solicitor. It is said that Mr Naef is in Plaza's "camp" and there is no reason to doubt he was available to give evidence. It is submitted that, given that the contract prepared for signing was put into evidence by Ms Gray of HWLE, there is an available inference that Moustafa did not receive a blank contract from his solicitor; and that such an inference can more confidently be drawn by reason of the unexplained failure to call Mr Naef. 13. The Deiri Parties also point to the evidence of Moustafa in cross-examination (see at T 358.1-21), where he accepted at first that when he checked the contract (after he sent it to his solicitor) he saw that the purchase price was $6 million but then said that he did not see that the deposit was $400,000 and the contract was blank (see at T 358.23-36); and then (at T 365.48 – T 366.19) he insisted that when he signed the contract the first page was blank. The Deiri Parties emphasise that none of the evidence about signing a blank contract for sale was in any of Moustafa's affidavits (and they say, I would add with some justification, that Moustafa's evidence in cross-examination on this topic was argumentative). 14. Finally, as to the finding here sought that the parties agreed for $2 million of the $6 million to be paid overseas by 30 June 2012, the Deiri Parties point to the handwritten note of 27 December 2011, signed by Moustafa and Mr Deiri, to that effect (see at [220] above). The Deiri Parties say that the genesis of that note is that Jamil told Mr Deiri that his father wished to have $2 million of the purchase price paid to his overseas account by 30 June 2012 because it was needed in Lebanon. The Deiri Parties also point to Moustafa's affidavit evidence that, around the time he signed the contract for sale, he had a conversation with Jamil to the effect that he needed $2 million by June to buy some land in Lebanon. 15. The Deiri Parties say that the handwritten note was not a promise to pay the additional $2 million that Investments had agreed to pay for costs Plaza had already incurred (on top of the $6 million purchase price). Rather, they say that (as accepted, it is said, by Moustafa in cross-examination) the handwritten note was a promise that, of the $6 million purchase price under the contract, $2 million of this was to be paid by 30 June 2012. It is noted, in this regard, in cross-examination (see at T 363.14 – T 364.23), Moustafa said inter alia that he signed that handwritten document before 27 December 2011 and that Mr Deiri was not with him when he signed the contract for sale, but Moustafa did there accept that, of the $6 million contract sum, $2 million was to be paid by 30 June to a place overseas. 16. The Deiri Parties submit that this significant because it goes to the timing of payment by Investments of the amounts due under the contract for sale. They say that there was never a promise to pay $8 million by 30 June 2012; only ever a promise to pay $2 million by 30 June 2012. 17. As to this contended for factual finding, and the Deiri Parties' reliance on the provision in the contract of sale acknowledging payment of the $400,000 deposit, the Sayour Parties say that the simple answer to this is that proof of obligation does not prove performance. As to the Deiri Parties' submission about the loan agreement in this context, the Sayour Parties say that the loan agreement is not relevant to this issue (rather, it supplies vendor finance only for the balance). 18. The Sayour Parties say that special condition 42 is not conclusive, noting that even such an acknowledgement in a transfer or deed of conveyance is rebuttable (referring to Petersen v Moloney (1951) 84 CLR 91; [1951] HCA 57, where the High Court found (see at 98 per Dixon, Fullagar and Kitto JJ) there was "no evidence" of payment, despite such an acknowledgement, where the agent had received and absconded with the money). The Sayour Parties note that it was not suggested that any deposit was paid on 27 December 2011 (or at any other time unless, as the Deiri Parties assert, it was by payment of the $400,000 cheque paid on 10 October 2011). 19. The Sayour Parties say that it is "striking" that the cross examination of Moustafa that was relied on in submissions on this factual finding was about his knowledge of the contractual provision for a deposit – not that he knew of the $400,000 payment at the time that it was made, nor that he received it or directed its destination (which, again, it seems no one has located – see T 1544.42ff). 20. The Sayour Parties say that it does not seem to be seriously disputed that Jamil failed to disclose and account for the $400,000. They say that, in light of that, it is not clear what the Deiri Parties seek to draw from Moustafa's failure to mention this matter (noting that the Limitations Act 1969 (NSW) gives him six years to complain). Pausing here, insofar as the Deiri Parties in their submissions have posed the question as to whether Jamil had authority to direct how to make the payment and to receive physically the cheque on Plaza's behalf, the Sayour Parties rely on their submissions about Jamil's authority generally (as to which, see above). 21. It is said that the oral submission that Moustafa tried to "distance himself" from the front page of the contract (because it states there that there is a deposit of $400,000) was made without regard to the fact that Moustafa did not sign or mark the front page of the contract for sale (as the Sayour Parties say would be expected to have occurred in the normal course). The Sayour Parties emphasise that Moustafa did not sign the front page of the contract for sale. It is submitted that, given that Jamil had failed to account for $400,000, it is not surprising that Jamil would not be anxious for Moustafa to dwell on the front page (assuming he presented the document to Moustafa in the form supplied to him). It is further noted that Moustafa had been informed that there would be vendor finance. It is said that these are circumstances which take the case of the usual circumstances of a sale of land where a vendor would be expecting to take a deposit on exchange. 22. The Sayour Parties note that Mr Deiri's version of events concerning the execution of the contract for sale differs from that of Moustafa. On Mr Deiri's account, this contract was signed in his presence when he attended on Moustafa and Jamil at the Biomed office in Belmore. It is noted that Mr Deiri does not assert that there was any discussion on that occasion mentioning the payment on 10 October 2011 or any other arrangements about payment of the deposit, though he does mention (see, for example, at [72]-[74] of his affidavit sworn on 22 August 2019) the discussion that led to cl 8.8 being drafted on the spot (in which there was incidental reference to the deposit) but that even that did not indicate when the deposit was to be paid, or that it had been paid or how much it was. 23. It is also noted that Mr Deiri expressly stated in his affidavit that on that occasion they checked the purchase price in the contract "but did not otherwise read the documents in detail" (see at [71] of his affidavit sworn on 22 August 2019). The Sayour Parties say that in lengthy cross examination, although Moustafa was taken to various pages of the contract for sale, it was not put to him that he gained any particular information from any of its provisions and he was not asked a single question about payment of the deposit; nor as to why it was set at that percentage of the purchase price (roughly 6.66%). 24. The Sayour Parties reiterate, in this context, their submissions that: an agent to negotiate is not authorised to bind his principal to a contract, nor to receive payment; Jamil did not have plenary authority; Jamil did not have general authority to receive and direct payments or give receipts therefor on behalf of Plaza; and that contentions to the contrary need to address the particular circumstances of each payment to determine whether particular acts of Jamil were authorised and constituted acts of Plaza and whether they constituted a valid receipt. 25. It is submitted that the first important circumstance about the $400,000 payment, so far as the sale is concerned, is that it was made well in advance of the formation of the contract for sale and for a different purpose. It is noted that Mr Deiri's own evidence was that, in early October 2011, Jamil solicited it "as a sign of good faith" in respect of intention "to proceed as partners" and attributed it to "the $8 million" (see his affidavit sworn on 22 August 2019 at [60]). 26. It is also noted that, on 5 October 2011, Mr Deiri knew that Canterbury Council would determine the Development Application to conduct the excavation and early works on the site at Punchbowl by 14 October 2011 (see Minute of Project Meeting Item 1.1.1); that Investments was not incorporated for another month; and the contracts were not exchanged for another two months and three weeks. It is again emphasised that Mr Deiri was an experienced property developer. 27. In this context, the Sayour Parties emphasise that, on 10 October 2011, Mr Deiri: drew a cheque for $400,000 to a person who was not the principal, "or bearer"; drew it on the account of Deicorp; did so at a time when Deicorp had recently entered into a substantial contract with Plaza, that would involve continued dealings for a long period; did so at a time when there were open questions with the principal as to the formation of a partnership and sale of land; gave this bearer cheque to an agent who was involved in those negotiations; did not obtain a receipt for the payment from the principal or even from the agent; did not make or keep any record, or "do so much as write an email", to identify its purpose; and did not inform of the principal of the payment. 28. It is noted that Mr Deiri thereafter attended the project meeting on 26 October 2011 which Moustafa also attended (see at [153] in the above chronology), and did not mention any of this to Moustafa on that occasion (nor on any other occasion) and after this, he commenced paying $10,000 per month to Jamil, again without telling Moustafa. 29. It is said that, subsequently, without enquiring of Moustafa whether the payment had been received, Mr Deiri sought to appropriate it to the deposit payable under the contract of sale of 27 December 2011, but again did not mention this to Moustafa, even though it was potentially refundable if the contract "went off" or was later rescinded under cl 8.8 of the loan agreement. The Sayour Parties note that Mr Deiri did not ever afterwards mention to Moustafa that this was the deposit or enquire whether he had received it. 30. It is submitted that Mr Deiri did not advance any convincing reason for not telling Moustafa at any time about this payment "notwithstanding that there was supposed to be no reserve as he claims to have been told that dealing with one was like dealing with the other"; nor did the commencement of the $10,000 per month payments "induce Mr Deiri to think that he ought to tell Moustafa about the $400,000 payment". In this context, emphasis is also placed on the fact that Mr Deiri told his solicitor at the time that Moustafa was a trusting character. 31. The Sayour Parties say that, even if the $400,000 payment was not held to be a bribe, it would not follow that Jamil was authorised to receive it. In this connection, reliance is placed on the authorities showing that the authority to receive payment will not be readily implied and that, even when it is implied, it is not readily implied that it is authority to receive otherwise than in cash and at the usual place of business or in the usual way. It is said that here there was no usual place and means of receiving such payments (this being "extremely unusual and irregular") and that this emphasises the difficulty in finding any basis for implication that Jamil was authorised to receive this payment at the time it was paid and in the way it was paid. 32. It is submitted that Mr Deiri was not entitled to think that Jamil was authorised to receive this payment at the time he received it and that, even if he was entitled to think that, then by the time the contract of sale was about to be signed, he was not entitled to think that Jamil was authorised to accept its appropriation as the deposit under that contract. It is said that Mr Deiri was bound to enquire of the principal whether it had been received and he was not entitled to think, without specific enquiry of Moustafa, that he had a valid receipt for it by having paid it to Jamil. 33. The Sayour Parties say that this remained a payment to a third party (the agent) and therefore was not capable of appropriation to Investments' liability to Plaza under the contract of sale. 34. It is submitted that the position is not improved by Jamil's email of 15 June 2012 (as to which, see at [287] above). It is noted that, by the time that email was sent, Jamil had caused Deicorp to pay to Jamil many further payments of $10,000 per month for his personal use and benefit, as Mr Deiri knew or believed (having conceded as much in his pleadings and affidavit), without Mr Deiri disclosing them to Moustafa. Further, it is noted that the very same email solicited a personal payment to Jamil of $200,000; and that Mr Deiri disclosed none of these further developments to Moustafa. 35. It is submitted that the Deiri Parties cannot in those circumstances suggest that the email of 15 June 2012 constituted an authorised direction on which Mr Deiri and his companies could rely as acknowledgement of receipt by Plaza of the $400,000 (referring to Lysaght Bros & Co Ltd v Falk 2 CLR 421 at 431; [1905] HCA 7 per Griffith CJ; Australia and New Zealand Banking Group Ltd v Frenmast Pty Ltd [2013] NSWCA 459 at [36] per Meagher JA (with whom Macfarlan and Barrett JJA agreed)). 36. Rather, it is said that Mr Deiri was bound to communicate with Moustafa in person in order to obtain a valid receipt. It is noted that the Deiri Parties did not adduce evidence of any enquiries to ascertain the destination of those funds; and that (after an unsuccessful attempt to issue a more wide-ranging subpoena – see Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410 at [4]), a (narrower) subpoena issued to National Australia Bank (NAB) which produced a "no documents" response. Plaza says it has done what it can to investigate the destination of the payment. Determination as to factual finding #7 1. To my mind, the evidence by Moustafa that he signed a contract with a completely blank cover page is inherently implausible; and whether he saw reference to the $400,000 deposit or not is immaterial since he would be bound by what he has signed (see Toll (FGCT) Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [42], [46]-[47], per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ)). 2. I find that Moustafa signed the contract for sale agreeing to be bound by its terms and that those terms included an acknowledgement as to the receipt of a $400,000 deposit. Whether knowledge of a promise is relevantly the same as knowledge of performance is not of present relevance – the point is that I am satisfied on the evidence that Moustafa signed a document acknowledging payment of the deposit and was thereby on notice of this. 3. As to the $2 million payment, I return to this in due course. Factual finding #8: the CBA drawdown process did not require Moustafa to sign 1. The next factual finding sought by the Deiri Parties is that the CBA facility did not require Moustafa to sign the accommodation notices. The significance of that finding is said to be that: first, there was no breach of contract by CBA in paying the builder; and, second, whether or not Moustafa actually signed the accommodation notices is irrelevant. 2. The principal submission by the Deiri Parties is that under the 15 February 2012 authority (see at [266] above) it was only necessary for there to be one signatory on the accommodation notices (and that, since Mr Deiri was a director of Investments, there was no difficulty with him signing the accommodation notices on its behalf and this was sufficient). 3. That submission turns on the fact that under the CBA cash advance facility pursuant to which moneys were drawn down and paid by CBA to Deicorp Constructions none of the methods listed under "Method of Operation [delete as appropriate]" (see at [266] above) was struck through. Thus, it is submitted by the Deiri Parties that the method "any to sign" applies as equally as any of the other methods. 4. The Deiri Parties accept that this means there is a prima facie inconsistency between the options but they say that because the parties chose not to delete the broadest signing option (allowing either Investments or Plaza to sign) they opted not to limit the methods of signing. It is submitted that, objectively construed, the best construction of the parties' intention is that either could sign; and therefore that it was sufficient for Mr Deiri to have signed the accommodation notices and Moustafa's signature was not required. 5. Insofar as Plaza refers to the fact that ensuing accommodation notices purport to bear the signatures of both Mr Deiri and Moustafa (as support for the argument that two signatures were required), it is submitted by the Deiri Parties that this submission is contrary to the rule that post-contractual conduct cannot be used as an aid to construction. 6. Alternatively, in the event that the 15 February 2012 authority is not accepted as a valid notice authorising any one of the parties to sign, then it is said that Jamil was in any event permitted under the terms of the facility to sign for Plaza. In this regard, the Deiri Parties point to the definition under cl 1.1(a) of the First Facility Agreement of "Authorised Officer" and to the definition of "Officer" in s 9 the Corporations Act as including, relevantly, (b)(i) and b(iii). 7. It is submitted that Jamil amply meets the definition set out in s 9(b)(i), namely that: he was empowered to run Plaza's business and in fact did so; and he made, and participated in making, decisions that affected the whole, or a substantial part, of Plaza's business. 8. It is submitted that Jamil also meets the definition of an officer in s 9(b)(iii), of a de facto director. The Deiri Parties note that, on his own affidavit evidence, Moustafa said that he asked Jamil whether Jamil was happy with the expenses of the construction; that Jamil told him he was; and that Moustafa accepted it (in part because he did not have the knowledge to be able to make such assessments himself). It is said that Jamil also ran the day-to-day business of Plaza and Moustafa stood back and let Jamil do so (as to which, see my disposition of the earlier factual finding in relation to this). Thus, the Sayour Parties say that Moustafa was accustomed to act in accordance with Jamil's instructions or wishes (because he deferred the management of the operation to Jamil and took no active role himself). 9. Insofar as the Sayour Parties contend that the cash advance facility required Jamil to be authorised to sign accommodation notices on behalf of "the partnership" and not simply on behalf of Plaza, the Deiri Parties say that this confuses the question of the authority of a partner to sign for another partner, with the question of the contractual requirements under the facility for signing. It is submitted that, to say that the borrowers were partners, is not determinative of that issue one way or the other. 10. The Deiri Parties note that "Borrower" is defined under the "Parties" section of the facility documentation to mean Plaza and Investments. It is submitted that that does not mean that the borrower was "the partnership" (though that may be said to be a convenient shorthand). It is noted that an unincorporated partnership is not a separate legal entity – it is a legal relationship. Thus, it is submitted that the borrowers were the partners. 11. As such, it is submitted that when cl 3.2 speaks of an "Authorised Officer" or "Director of the Borrower" being required to sign, such a person from each of Plaza and Investments is required to sign but there is no additional requirement that each of the persons signing on behalf of Investments and Plaza must also be signing on behalf of the partnership. It is submitted that the clause does not say this and it would be a "nonsensical" construction; it is said that if all of the partners are required to sign, there is no reason why there would be a requirement that they also purport to sign on behalf of each other. 12. It is submitted that, insofar as there is a difference between the form of the pro forma accommodation notice annexed to the facility agreement documentation and the notices that were provided on the partnership letterhead, that difference is immaterial and does not invalidate the drawdowns, which it is said still complied substantially with the facility; there was a contractual variation to permit such notices; or CBA waived such requirements. 13. In this regard, the Deiri Parties say that the differences were immaterial, and it is said that it cannot be the case that the funds were not payable unless the strictures of the notice form were complied with absolutely. The Deiri Parties say that the parties were evidently proceeding on the basis that the form of notice submitted was sufficient and the language was in similar enough form. They say that this is not surprising because the accommodation notices were really a formality; and that what was important was that the quantity surveyor checked the payment claims that were submitted. In these circumstances, the Deiri Parties submit that the parties should be taken to have varied the requirements of the notice form annexed to the facility, to permit accommodation notices of the kind submitted throughout the project. 14. Alternatively, it is submitted that the requirements of the accommodation notices in cl 3.2 were for CBA's benefit; that CBA was entitled to waive compliance; and that, in the circumstances, CBA clearly did so. 15. The Deiri Parties maintain that the absence of Moustafa's signature on any particular accommodation notice did not affect the validity of the drawdown, where CBA's quantity surveyor verified the claim and Plaza was kept informed as to the amounts of the claim. 16. As noted above, it is said that (construed having regard to business common sense and commercial context) the accommodation notice procedure under the facility was "really a mechanical exercise and a formality"; that there was a lump sum construction contract and a facility in place to cover that amount; and that, when drawdowns were to occur, what was important was that the quantity surveyor verified the development was progressing and issued a report so that each party was kept informed. 17. As to the submission that Plaza was kept informed, reference is made to Ex 17 as evidence that Jamil received almost every communication with the quantity surveyor, Mr Hammond. The Deiri Parties note that each of these communications contained the amount being claimed. It is said that the process involved Jamil being sent the relevant claim information twice: first, when Mr Deiri emailed the quantity surveyor, copied to CBA and Jamil; and, second, when the quantity surveyor would send an email in reply to CBA, which was copied to Jamil and Mr Deiri on most occasions. It is said that the only occasions when Jamil was not copied into the reply email by the quantity surveyor were when Mr Deiri had asked Mr Hammond not to do so because he was ill, but even after that there were instances where Jamil subsequently asked Mr Hammond for those reports (and was provided with them). 18. Further, it is said that there was nothing that Plaza could do in the event that the quantity surveyor verified the claim; rather, the time for Plaza to object was during the review. 19. Insofar as Plaza has contended in its written submissions that the authority executed on 20 February 2012, signed by Mr Deiri and Moustafa on behalf of Investments and Plaza, respectively, "required advances under the facility to be deposited into the partnership bank account" (and that the accommodation notices therefore served a purpose of exempting the bank, in each instance of payment to the builder, from the requirement that advances be deposited only to the CBA Partnership Account), the Deiri Parties say that the authority contains no stipulation that would require CBA to pay sums into the CBA Partnership Account in instances where there was no accommodation notice. 20. It is noted that the authority provides that "I authorise the Bank to pay the proceeds of the above loan in the following manner", and then specifies the CBA Partnership Account. It is submitted that the instrument does not provide any restriction at all; it is merely a positive conferral of authority. It is said that the facility executed on 15 February 2012 provided in cl 3.1 for the Borrower to direct the bank to pay the advance in accordance with the accommodation notice; and that, clearly, it was always the intention that CBA would pay directly to the builder. 21. The Deiri Parties argue that, even if CBA had paid the sum into the CBA Partnership Account, that sum would then immediately have been paid out to the builder; otherwise, the development could not have been built. Accordingly, it is submitted that the proposition that there was a breach of mandate by not paying the funds first into the CBA Partnership account goes nowhere and that there can be no loss arising from any such (asserted) breach. 22. In any event, it is said that causation is not established in that Plaza has adduced no evidence that Moustafa would not have signed the accommodation notices had they been presented to him. It is submitted that, given he did sign a blank accommodation notice pro forma, the logical inference is that he would have signed them. As such, it is said that any claim for damages or that the drawdowns were ineffective based upon Moustafa having failed to sign the accommodation notices fails for want of causation. 23. As to this contended for factual finding, the Sayour Parties submit that the form appointing "Authorised Officers" for the purpose of the contract (dated 15 February 2012), which the Deiri Parties contend allowed either of Mr Deiri and Moustafa to sign, is not part of the contract and does not affect the construction of the contract. Thus, it is said that it follows that this submission does not provide an answer to the Sayour Parties' contention that the effect of the contract provisions (pleaded at [120]-[127] of the First Broadway Cross-claim) was to require the "Authorised Officers" of each of Plaza and Investments to sign the relevant accommodation notices. 24. Insofar as the Deiri Parties say that the method of operation nominated by the partners did not prescribe two signatories and that (even if it did) Jamil could sign for Plaza (because he was an "Authorised Officer" within the meaning of the facility), the Sayour Parties say that the fact that Jamil was authorised to sign on behalf of Moustafa is not relevant, because none of the acts complained of purported to be an act of Moustafa; rather the acts purported to be acts of either the Broadway Partnership (of which Moustafa was not a partner) or (in the case of the signatures on agreements or deeds) acts of execution by Plaza. 25. The Sayour Parties further say that, because the Broadway Partnership contracted to require a signature of Moustafa on behalf of the partnership, this required his personal signature. In this regard, reliance is placed on the maxim delegatus non potest delegare. It is said, in the case of Plaza, that where an act of its director or secretary or "Authorised Officer" was required, that was not satisfied by the signature of a person who was not a director or secretary or "Authorised Officer" of the company, but who was merely the donee of power to act for his father. In other words, it is said that the grant of a Power of Attorney to Jamil to act for his father was not a donation of power to act for the company and hence the Powers of Attorney granted by Moustafa are not relevant and the attempt to rely on them is misconceived. 26. The Sayour Parties point to cll 3.1 and 3.2 of the First Facility Agreement, which required an accommodation notice "signed by or on behalf of the Borrower by one Authorised Officer, or a Director or Secretary of the Borrower" to be given in accordance with cl 20 (which also required signature by an "Authorised Officer"). It is noted, as I have also noted above, that Plaza and Investments were identified as the "Borrower". Accordingly, the Sayour Parties maintain that, as any accommodation notice had to be signed by or on behalf of the Borrower, it was required to be signed by or on behalf of both of them; and that a notice signed on behalf of one only would not be signed by the "Borrower". 27. It is said (and, I interpose to note that I agree) that the natural construction of this provision is that, where there are two borrowers, there must be signature by an authorised officer, director or secretary of each Borrower. 28. As to the Deiri Parties' submission based on the nomination form, apart from noting that the contract did not require such a method of operation form to be provided and that the nomination form is not part of the contract, the Sayour Parties say that: not being completed, that section in the form has no effect; that it was not apt in any event, because there was only one nominated officer for each company (so there was no occasion to select between "any", "joint", or the like; such a specification only being necessary if one of the borrowers were appointing two or more authorised officers); and that it does not prevail over the contract and, in any event, was not necessary because the contract required signature by or on behalf of each borrower. 29. The Sayour Parties say that the Deiri Parties (rightly) did not submit that the nomination purported to appoint Mr Deiri and Moustafa as "Authorised Officers" for each other's company, noting the recitals on the form. It is noted that the form named both Mr Deiri and Moustafa as "Authorised Officers" (each being again designated as director) without going further to state that each was appointed to both companies. It is said that the qualification "director" under each name makes this plain, as all parties knew that each was the sole director of his company. The Sayour Parties say that it would require more to go further and establish an appointment to both companies. 30. Next, insofar as the Deiri Parties submit that Jamil was an officer within the meaning of the Corporations Act and so fell within the default provision in the definition of "Authorised Officer", the Sayour Parties point out that this was not pleaded. It is noted that the contention was said to be supported by the proposed factual finding #1 (again, as to which, see above) and by a further contention that Jamil was a de facto director. The Sayour Parties say that these contentions needed to be pleaded but, in any event, that this argument fails because the parties nominated "Authorised Officers" and so the default provision in the definition was not operative. 31. As to the various other submissions that are made in support of this finding, the Sayour Parties submit that none of them is an answer to the fact that the accommodation notices were not signed as required. Insofar as a submission about causation was made; the Sayour Parties say that no question of causation arises. 32. Put simply, the Sayour Parties' position is that, if the accommodation notice is not signed as required, then there is no mandate. Further they say that, as is clear from the terms of the 10 November 2013 email between Jamil and Mr Deiri, Moustafa would not have approved the draws as they did not conform with the "deal". 33. It is convenient next to consider CBA's submissions on this issue. 34. As to the contention that one signatory was not sufficient on accommodation notices under the First Facility Agreement (the Sayour Parties asserting that the form appointing "Authorised Officers" did not form part of the loan contract), CBA says that this misunderstands the terms and effect of the contract. 35. It is noted that cl 3.2 of the First Facility Agreement provided that accommodation notices were to be signed on behalf of the borrower by an "Authorised Officer". Contrary to the position of the Sayour Parties, CBA emphasises that the term "borrower" was a term used in the Agreement to describe Plaza and Investments jointly and CBA maintains that the contract does not identify each as separate borrowers and does not require an accommodation notice to be separately signed on behalf of each of them. CBA submits that this is illustrated by the fact that the form used to nominate "Authorised Officers" allows the parties to elect that one signatory suffices. It is noted that that could not be a valid option if each party was required to sign each notice. CBA says that Plaza's contention that, to the extent that the nomination form made provision for one signatory, it was inconsistent with the contract should be rejected. It is said that the form was inconsistent only with the "strained" interpretation of the contract that Plaza now advances (and its existence, together with the plain wording of the contract, undermines that interpretation). 36. CBA submits that the effect of this clause was that a person identified by the parties as an "Authorised Officer" was entitled, under the contract, to sign such a notice. It notes that Mr Deiri was an "Authorised Officer"; and it emphasises that the form nominating such authorised officers in the case of the First Facility Agreement did not specify that more than one of them was required to sign such a notice. Determination as to factual finding #8 1. The First Facility Agreement clearly required accommodation notices to be signed "by or on behalf of the Borrower" by an "Authorised Officer" or a director or secretary of the "Borrower". 2. In circumstances where two entities were named as "the Borrower", the logical consequence in my opinion is that signature was required by both borrowers (unless both borrowers had between themselves nominated one authorised officer or signatory). Although Jamil may well have fallen within the definition of authorised officer for the purposes of the Corporations Act definition, he was not named as an authorised officer for the purpose of the signing of accommodation notices (i.e., on the relevant documentation). However, the fact that the pro forma accommodation notice contemplated that it might only be necessary for one signatory to sign would support the conclusion that signing by one signatory might in certain circumstances suffice. 3. Accordingly, while I find that Jamil was not expressly authorised under the First Facility Agreement as an Authorised Officer to sign the accommodation notices, I accept the proposition by CBA that the First Facility Agreement contemplated, by the pro forma accommodation form, that it might be the case that the borrowers (since here, there were two who jointly were defined as the Borrower) might jointly appoint an Authorised Officer for the purpose of signing accommodation notices. The question then is whether the parties by their conduct did so (and whether the course of conduct supports the conclusion that they did). 4. Had it been necessary to consider whether CBA was entitled to waive compliance with the requirement for an authorised officer of each borrower to sign, then insofar as the requirement was for CBA's benefit it would have been entitled to do so. However, for the reasons given above, and as the events that have happened now make patently clear, the requirement was not only for CBA's benefit – it was, and is, as much a protection for the borrowers. Accordingly, CBA could not unilaterally waive compliance with that requirement. For the reasons set out in the conventional estoppel/acquisition defences to the claim against CBA, I do not accept that the parties' conduct amounted to an acceptance that only one signatory (of an Authorised Officer) could sign accommodation notices. 5. Otherwise, I agree with the submission for the Sayour Parties that questions of causation and the like do not, at least at this juncture, arise. Factual finding #9: that Moustafa was not required to sign (personally) the partnership cheques 1. Related to the preceding, the next factual finding that the Deiri Parties seek is that Moustafa was not required to sign the cheques drawn on the CBA Partnership Account. It is said, in particular, that the Powers of Attorney granted by Plaza permitted Jamil to sign cheques; and that Jamil could sign cheques by signing his name or Moustafa's. Therefore, it is said to be immaterial that he reproduced Moustafa's signature; and that it is wrong to describe instances where Jamil signed Moustafa's name as "forgeries". 2. Further, it is submitted that the personal Power of Attorney granted by Moustafa to Jamil permitted Jamil to sign as an account signatory and an authorised officer of Plaza. It is said that, as such, the Cheque Authorisation Alteration Instruction to CBA (see at [445] of the above chronology) was authorised, valid and effective to change the terms of operation on the CBA Partnership Account as from 7 February 2014 and that, from that time, only a single signatory was required to operate the account. 3. The Deiri Parties also note that Plaza's pleaded case is that Jamil signed Moustafa's name on the change of signatory letter (i.e., the Cheque Authorisation Alteration Instruction). It is said that, even if the execution block was produced from a pro forma, Jamil knew about the change of procedure and must have authorised it (it being noted that only one further cheque was signed by Jamil after the date of the Cheque Authorisation Alteration Instruction – the rest being signed solely by Mr Deiri other than one signed only by Jamil in Moustafa's name). 4. As to this contended for factual finding, the Sayour Parties submit that this submission is contrary to the contractual terms of CBA's mandate, which required both Moustafa and Mr Deiri to sign in order to operate the account. They emphasise that this operated as a contractual qualification of the authority of any other agent to sign. They say that the submission is also contrary to Mr Deiri's account about cheque signing procedures and his express admissions given in the course of cross-examination. 5. It is noted that the cheque signing mandate was express and that it was deliberately given by an act on the part of Plaza and Investments. The Sayour Parties say that the submission that Moustafa's signature was not required, or that the account was conducted contrary to the mandate, is contrary to the concession made in Mr Deiri's evidence in chief (see his affidavit sworn on 16 October 2016 at [217]) that, had CBA ever communicated to him that the payment by it of cheques drawn on the CBA Partnership Account was not in accordance with the terms they had agreed as to the operation of that account, he would not have continued drawing cheques and would have investigated this. Following, the Sayour Parties submit that there ought to be a finding that the CBA cheque mandates required Moustafa's signature. 6. Insofar as the Deiri Parties have submitted, in effect, that the Moustafa simulation on the signature block used in the Cheque Authorisation Alteration Instruction is not a forgery "by Jamil" (because the placing of the signature block was not necessarily by Jamil), the Sayour Parties say that this would leave Jamil as a person who armed others to use a forgery. Further, insofar as the Deiri Parties have submitted that it must have been done with Jamil's knowledge, the Sayour Parties say that Jamil would then be a conscious party to the forgery. In this regard, insofar as the Deiri Parties' submissions are premised on the pleading by Plaza only containing an allegation that the forgery was made by Jamil (and not by others), the Sayour Parties point to [539] of the Fifth Broadway Cross-claim (though they accept that this does not say anything against the involvement of others). The Sayour Parties submit that, whether Jamil armed others to commit a forgery or was a conscious party to a forgery, for either reason the "signature blocks" submission is within the scope of [539] of the pleading. 7. The Sayour Parties also point out that Investments has itself alleged that Mr Deiri signed the Cheque Authorisation Alteration Instruction and then gave it to Jamil to take away in order to get Moustafa's signature (and that evidence to this effect is included in Mr Deiri's affidavits). It is noted that this is denied in the reply to his defence; and it is thus said that Mr Deiri could not have been surprised that it was traversed in cross examination. Further, it is noted that Mr Deiri made claims about his own belief and innocence, including claims attributing representations by Moustafa about Jamil's character and asserting his own belief in those representations; and that he has been charged by CBA with conspiracy. In those circumstances, it is said that the pleading leaves squarely open the issue of the authorship and authenticity of the Cheque Authorisation Alteration Instruction and that Mr Deiri could not be surprised thereby. Determination as to factual finding #9 1. Broadly for the reasons submitted by the Sayour Parties, I find that, under the CBA mandate, Moustafa was required personally to sign cheques drawn on the CBA Partnership Account and I find that the Cheque Authorisation Alteration Instruction (which I accept was not signed by him, and most likely was prepared by someone in Mr Deiri's office by use of a signature block) is invalid. Therefore, absent the argument based on the Powers of Attorney, the payments made for cheques drawn on the account after 7 February 2014 were made contrary to CBA's mandate and (subject to the defences raised by CBA and any claim against Mr Deiri and the Deiri Parties) recoverable by Plaza on behalf of the partnership as moneys had and received. 2. I consider that there is a vast difference between authorising (or leaving) Jamil to run the day-to-day business of the Broadway Development and authorising him to sign cheques on behalf of Plaza (or Moustafa) in relation to the development (even leaving aside the difficulties inherent in a trustee authorising someone else to sign cheques). Factual finding #10: that Investments paid the $6 million purchase price for the land to Plaza 1. The next factual finding for which the Deiri Parties contend is that Investments paid the purchase price for the land to Plaza comprising $6 million by 20 August 2012. 2. Those payments are identified in the chronology of events set out earlier, but may here be summarised as follows: the payment by cheque in October 2011 of the sum of $400,000 (the deposit – as to which, see also my factual finding above; and at [149] of the chronology); on 1 May 2012, by international transfer of $500,000 to Moustafa's Blom Bank account in Lebanon; on 10 July 2012 (see at [285] above), by cheque made out to Jamil for $200,000, which was deposited into the Westpac #202 Account (see at [289] above); on 11 July 2012, by international transfer of $500,000 to Moustafa's Blom Bank account in Lebanon (see at [292] above); on 10 August 2012, by transfer of $1 million to be made to the Westpac #202 Account (see at [296] above); and, in mid-August 2012, by cheques drawn for $150,000 in Jamil's name and $3,250,000 made out to Moustafa and Jamil for Sayour Family Trust (see at [300]; [302] above). 3. As to the 10 August 2012 payment, Mr Deiri's evidence is that Jamil had initially directed that the money be paid overseas but that in early August 2012 Jamil said to Mr Deiri, "[d]on't send the $1 million overseas, we need it here. Can you make the transfer by EFT[?]" (see Mr Deiri's affidavit sworn on 22 August 2019 at [124]). The Deiri Parties say that this is consistent with the fact that the transfer was made six days after Moustafa returned to Australia from Lebanon. 4. As to the last of the payments, Mr Deiri's evidence is that he said to Jamil in mid-August 2012 that he wanted to pay the balance of the purchase price for the land; that Jamil attended Deicorp's offices and instructed Mr Deiri to make out those two cheques; that Mr Deiri handed them to Jamil; and that the two had a conversation to the effect that Jamil acknowledged that Mr Deiri had now paid the $6 million (see Mr Deiri's affidavit sworn on 22 April 2019 at [128]). It is noted that the cheque for $3.25 million was banked into the Westpac #202 Account on 20 August 2012; and that it is not clear where the $150,000 went. 5. The Deiri Parties therefore contend that the $5.6 million balance of the purchase price was paid by 20 August 2012 (accepting that this was "slightly late" because the handwritten note dated 27 December 2011 specified that $2 million of the $6 million purchase price was to be paid by 30 June 2012, but saying that nothing here turns on that). 6. Relevantly also, and following from the preceding, the position of the Deiri Parties is that Jamil had authority to direct how these payments were to be made and to receive these payments on behalf of Plaza. The basis of that authority is put not simply by reference to the Powers of Attorney but also on the basis of the contention that Jamil had both actual and ostensible authority to do so. 7. As to the claim by the Deiri Parties that all of the $6 million purchase price was paid for the land, the Sayour Parties say that Plaza has given credit for $5 million in payments, "including those received via a circuitous route", but that what it has not given credit for are any payments which it or Moustafa did not receive. 8. The Sayour Parties note that the effect of Investments' case as to the payment of the purchase price (that the first payment was made of $400,000 on 10 October 2011 and the balance of $5.6 million in a series of payments in sums of $500,000; $200,000; $500,000; $1 million; $150,000; and $3.25 million – see as summarised at [1675] above) is that all payments were appropriated first to the balance payable for the land, which carried interest, and only thereafter were payments appropriated to the additional $2 million (which did not carry interest because it was not part of the loan agreement). 9. The Sayour Parties say that, if there was no loan agreement (as the Deiri Parties assert), then there was no reason for them to seek to appropriate the payments in this order. 10. Plaza's pleaded case as to appropriation is that: the two $500,000 payments of May and July to Lebanon were received by it and are appropriated to the additional $2 million debt; the next payments that Plaza received were two further payments each of $500,000 to Lebanon in November and December, 2012 and that these are appropriated to the additional $2 million debt; next, that Plaza received $3 million in February 2013 (being the amount that Jamil caused in that month to be transferred to Lebanon from the money that he had received in August, 2012 and was controlling) and which Plaza has appropriated (in its pleading), first, to unpaid interest on $5.6 million under the loan agreement and, then if there be any surplus, to the deposit of $400,000 and, then if there be any surplus, to the principal of $5.6 million. 11. As to the Deiri Parties' position in relation to these appropriations, and the reliance placed by Mr Deiri in his affidavit sworn on 22 August 2019 as to discussions with Jamil in respect of some payments and as to written instructions, by the email of 15 June 2012 (see at [287] in the above chronology), in respect of others, the Sayour Parties say as follows. 12. First, that "grave reserve" would be exercised in accepting the oral testimony of Mr Deiri on these appropriations years after the event as to conversations with a dead man, "particularly a dead man whom the witness was bribing". It is said that none of the conversations is corroborated; and that there is not sufficiently persuasive evidence to justify a conclusion that verbal directions were given to appropriate payments to principal and to the balance due under the contract for sale of land. 13. In that respect, I note that Plaza sought leave to reopen the evidence to tender a paragraph (namely, [50]) of an unread affidavit sworn by Mr Deiri on 2 November 2016, in which Mr Deiri asserted a different appropriation of payments towards the additional $2 million, by payment of $1 million by EFT from Deicorp Constructions "in accordance with the account details provided by Jamil Sayour"; and "two additional amounts of USD $500,000 (i.e., US$1 million in total)" by international transfer on 12 May, 2012 to two offshore bank accounts "in accordance with Jamil Sayour's instructions". It is noted that the forms for these transfers are identified (in the paragraph of Mr Deiri's unread affidavit) by reference to Tab 5 of Exhibit FD-2 (which comprises pages 66-73), which documents are already in evidence. The dates of the transfers in the exhibited forms are 1 May 2012 and 11 July 2012. 14. I consider that leave should be granted for that paragraph to be tendered as evidence of the making of an assertion at that stage as to the manner in which payments were to be treated. However, I also note the preceding discussion as to admissions (see above). Insofar as there are differences in the manner of appropriation of those payments as between the unread affidavit and Mr Deiri's now position, I consider that this simply indicates the difficulty and inherent limitations of evidence of recollection after the event. 15. The submissions that the Sayour Parties seek to make in relation to these documents are that: it is apparent that this paragraph, despite the mention of an incorrect date, refers to the same three payments as are differently appropriated in the 22 August 2019 affidavit; this inconsistency provides further support for the submission that Mr Deiri's evidence in the latter affidavit, of oral conversations with Jamil by which different and more self-serving appropriations were supposedly made, is not reliable; and it supports Plaza's case that the first two payments to Lebanon were appropriated to the additional $2 million. Pausing here, I note again my observations in permitting this tender. 16. Second, the Sayour Parties say that the effect of Mr Deiri's evidence is such that it cannot be concluded that there was communicated any clear intention to appropriate payments as alleged in his affidavit sworn on 22 August 2019, because Mr Deiri's evidence reveals that (in his terminology) he did not (and it is said that even now still does not) make any clear distinction between the $5.6 million and the $2 million. The Sayour Parties argue that, if Mr Deiri cannot be precise about these things in his affidavit some seven years after the event, there can be no confidence that he made any specific appropriation at the time. It is submitted that, to be effective, a debtor's direction as to the manner in which payments are to be appropriated must be in clear terms (referring, by way of example, to APX Projects Pty Ltd v The Owners – Strata Plan No 64025 [2015] NSWSC 1250 (APX Projects) per Slattery J at [30], his Honour citing Fisher and Lightwood's, Law of Mortgage (3rd ed, 2013, LexisNexis) at [32.52]). It is noted that entries made by the debtor in his or her own books are not sufficient evidence of a particular appropriation of money paid on a general account (citing Wrout v Dawes (1858) 25 Beav 369; 53 ER 678) and that this is because the appropriation must be objectively manifest with reasonable certainty so as to put the matter beyond recall. 17. The Sayour Parties point out that, where the debtor does not appropriate his or her payment to a particular debt, the creditor enjoys the right of choosing the debt to which the payment is appropriated (see APX Projects at [32], citing Cory Brothers & Company v Owners of Turkish Steamship 'Mecca' [1897] AC 286); and that, if there is no appropriation by either debtor or principal, the rule is that the money is first applied in payment of interest and then, when that is satisfied, in payment of the principal sum (citing Falk v Haugh 53 CLR 163 at 173; [1935] HCA 35 per Rich, Dixon, Evatt and McTiernan JJ (Falk v Haugh)). 18. It is also noted that it was argued (although not decided) in Re Cambridge Credit Corporation Ltd (Receiver Appointed) (1991) 6 BPR 13,894 (Re Cambridge Credit) that it is not open to a debtor who has promised to pay interest to appropriate to principal before paying interest. The Sayour Parties submit that, in principle, this view is sound but have not found any decided case in which this precise point was at issue and determined one way or the other; and they note that there is much obiter dicta reserving the debtor's general right to appropriate at the time of payment. 19. The Sayour Parties refer to what was said by Rigby LJ in Parr's Banking Co Ltd v Yates [1898] 2 QB 460 at 466, namely that "[t]o apply the sums paid to principal where interest has accrued upon the debt, and is not paid, would be depriving the creditor of the benefit to which he is entitled under his contract, and would be most unreasonable as against him". Rigby LJ there recognised (as did Powell J in Re Cambridge Credit (at 13,896)) that the rules as to appropriation operate subject to the parties' agreement or to a usual contrary practice. 20. The Sayour Parties submit (similarly to the observations of Rigby LJ) that, where a debtor has promised to pay interest, then to appropriate a payment to the principal money which carries interest under that promise, before the interest has been paid, would be contrary to the promise to pay interest and depriving the creditor of part of the benefit of the contract. They submit that it follows that in such a case it is not open, because it would be contrary to the agreement, for the debtor to retain the right of appropriation to the extent of exercising it to pay the principal before the interest which has accrued and is due upon that principal has been paid. While it is accepted that this will not necessarily deprive the debtor of all rights of appropriation (as for example, between payment of different debts or between interest on different debts –i.e., that there may be appropriations which do not prejudice the creditor's contractual rights); it is submitted that an appropriation which is prejudicial to the promisee because it is or would be inconsistent with contractual obligation (as they say is the case here) is not one that any party is entitled to make. 21. Insofar as Mr Deiri (see at [116] of his affidavit sworn on 22 August 2019) has deposed that, after the contract for sale was executed in December 2011, he then "made a number of further payments from [his] various companies for the balance of the purchase price of 50% of the Broadway Property" and then there sets out table of sums totalling the full $8 million, the Sayour Parties say that the table does not distinguish between the payments and that it does not follow that reference to the purchase price in the conversations to which Mr Deiri deposes are or were intended to discriminate between the deposit, the balance or the additional $2 million. It is said that this is borne out by the 15 June 2012 email (see at [287] above), which refers to "payment for punchbowl Total $8,000,000" and then gives directions for payment of the entirety without discrimination between the balance and the $2 million. 22. In respect of the payment of $500,000 on 1 May 2012, it is noted that Mr Deiri deposes (see at [118] of his affidavit sworn on 22 August 2019) that on or around that date he told Jamil that he had some "money for the purchase price I want to give you. I want to make a payment of $500,000" and that (at [119]) Jamil later telephoned him and said, "[w]e would like you to make the first payment to Lebanon", the Sayour Parties (apart from submitting that I should not be persuaded that those words were used) say that this is not evidence of a specific appropriation. It is noted that the email of 15 June 2012 used the term "payment for [P]unchbowl" and that this expression was equally referable to the $2 million, as the calculations show; and that the email did not discriminate between those two categories of payments. 23. It is further noted that (at [124] of his affidavit sworn on 22 August 2019) Mr Deiri gives evidence that he followed the directions in the email, which required $1.7 million to be paid in part to Lebanon and, as to $200,000, to Jamil but that he only sent $500,000 to Lebanon because Jamil subsequently asked him to transfer $1 million by EFT to a specified account in Australia. The Sayour Parties say that none of this amounts to an appropriation of any part of the $1.7 million to the balance of $5.6 million. The Sayour Parties further say that, in fact, Mr Deiri did not follow the instructions in the email because, as to the $200,000 paid to Jamil, he did not send it to Jamil's nominated account (which was a Bank of Sydney account) – instead he provided a cheque made out to Jamil personally (and they note that Mr Deiri does not there explain why). 24. In respect of the $1 million transferred, it is noted that it was transferred electronically to the Westpac #202 Account (it will be recalled, being the account previously nominated by Jamil as "my account" for the $10,000 per month payments – see at [157] above). The Sayour Parties note that the payment was made by Deicorp and was recorded in its account statement as "Jamil Pt" (with no reference to the fact that the account was in the names of Jamil and Moustafa as trustee for the Sayour Family Trust nor was there any record that Mr Deiri considered this as being an account for the Sayour Family Trust at the time). 25. Insofar as Mr Deiri deposes that on 17 August 2012 two cheques were drawn at the same time, one for $150,000 in favour of Jamil and one for $3.25 million in favour of "Moustafa & Jamil Sayour Trustee for Sayour Family Trust", the Sayour Parties say that there was no explanation as to why the payment was made into two cheques, one of which was to Jamil alone and not designated as trust money. The Sayour Parties emphasise that it is not suggested that notice of this was given to Moustafa and they say that Mr Deiri was not entitled to rely on Jamil to tell Moustafa. The Sayour Parties note that even the $3.25 million cheque was not made out to Plaza; that Moustafa was not informed that it was being delivered to Jami; and that only $3 million of it was ultimately transferred into his control in February 2013. 26. It is submitted that given the "irregular" manner in which these payments were made, this is not a case where the proper appropriation of the debt contrary to the default rule can be implied from the circumstances of payment (citing APX Projects at [31]). The Sayour Parties, to the contrary, submit that the manner in which the payments were made supports a finding that they were not specifically directed towards the principal money owed under the loan agreement. It is said that there is only Mr Deiri's word that he gave Jamil instructions as to the appropriation; there being no documentation to support his account of his dealings with Jamil. Further, the Sayour Parties point out that, through the period of these payments, the monthly $10,000 payments were continuing (these only being terminated in August 2012). 27. Insofar as Mr Deiri gives evidence (at [126] and [128] of his affidavit sworn on 22 August 2019) that these were appropriated by verbal comments to Jamil (to "clear the $6 million" and that "I've now paid the $6 million. We're all done and dusted" – notwithstanding that on his own evidence he still had $2 million to pay), the Sayour Parties emphasise that this is not supported by any note, receipt or other record. They maintain that verbal comments to Jamil were not communications to Plaza, since Jamil had no authority to give receipts for these payments. Therefore, it says that Investments did not make any appropriations. 28. The Sayour Parties note that, of the above payments, only the two $500,000 deposits to Lebanon and the $3 million ultimately received are credited as received by Plaza (i.e., $4 million out of $6 million); and that three of the payments (for which Plaza does not here give credit) were made directly in the name of Jamil. It is said that the "deposit" had a different character when it was "paid" (that it was neither delivered nor mentioned to Moustafa and that it has "disappeared without so much as a receipt"). It is said that an experienced businessman like Mr Deiri could not have thought that this was how to obtain a valid discharge for substantial debts. 29. The Sayour Parties submit that there is no basis on which it can be said that such payments to an agent (in many instances explicitly distinguishing him from the principal) were made to Plaza in fulfilment of Investments' obligations. It is submitted that Mr Deiri was not candid in his explanations about the payments made directly to Jamil; and that his later evidence in cross-examination (see, particularly, at T 933.20-21) included very significant concessions including that he knew that Jamil "had money that was coming from Broadway that he was going to potentially put into here [Combined Projects Arncliffe], yes". 30. The Sayour Parties say that, either because it was not open to Investments to appropriate the payments as it alleges or because there is no sufficient evidence of any definite appropriation communicated to Plaza at the time of payment or within a reasonable time thereafter (Jamil not being authorised to receive or direct payment or, in any event, being disqualified by bribes), the payments were impliedly appropriated first to interest; alternatively, that it remained open to Plaza, as the creditor, to make the appropriations which are made by the pleading in the Second Broadway Cross-Claim. 31. In summary then, it is submitted that, of the first $6 million (of which only $4 million was received by Plaza), the amount received has been appropriated as follows: payment on 1 May 2012 of $500,000 to the further $2 million liability (see Second Broadway Cross-Claim at [27]-[29]); payment on 11 July 2012 of $500,000 appropriated to the further $2 million liability (see Second Broadway Cross-Claim at [30]-[32]); payment on 6 February 2013 of $3 million appropriated to interest (alternatively, first to interest, next to the deposit, and last to the balance under the contract for sale) (see Second Broadway Cross-Claim at [42]-[43]). Determination as to factual finding #10 1. In relation to this finding, I start from the proposition (which I have accepted above) that Moustafa left it to Jamil to manage the decisions of the Broadway Development and that he impliedly, if not expressly, authorised Jamil to direct where payments were to be made (other than for Jamil's own personal benefit, which I cannot accept was within any authority conferred on Jamil by Moustafa); and to receive those payments in the sense of collecting and depositing cheques. 2. I also accept that, ordinarily, it is open to a debtor to nominate payments to particular debts (see the authorities referred to above and see also Mita Copiers Australia Pty Ltd v Condor OA Pty Ltd (Supreme Court (NSW), Hunter J, 10 October 1994, unrep); Moratic v Gordon (2007) 13 BPR 24,213; [2007] NSWSC 5 (Moratic v Gordon). As to whether it is open to a debtor who has promised to pay interest to appropriate payments to principal before interest, that raises interesting academic issues but I do not consider it necessary here to deal with that for the following reasons. 3. Under the contract for sale, interest was payable only if the purchase price was not paid by 30 June 2012. 4. On either case, therefore, interest would not have been payable before that time and it must have been open to the Deiri interests to nominate payments before then as going to the principal sum payable. 5. Under the handwritten amendment to cl 8, in effect there was a later repayment date appeared to be contemplated (the "31st" September 2012). 6. I accept that caution must be exercised in accepting Mr Deiri's account of oral communications with Jamil (leaving aside the contentions as to Jamil's authority) to the extent that these are uncorroborated conversations with a deceased person. 7. Nevertheless, Moustafa clearly left it to Jamil to direct certain payments (such on then to his Lebanon bank account. Thus, Moustafa cannot now be heard to say that payments by cheque made out to Plaza but given to Jamil or paid as directed by Jamil to accounts in the name of or controlled by Moustafa (albeit held jointly with Jamil) were not paid to Plaza. However, cheques drawn payable to Jamil cannot be included in that amount. 8. I would accept that payments made at Jamil's direction (such as the EFT transfers to Lebanon) or payments made to trust accounts operated for Plaza as trustee of the Sayour Family Trust should be taken to be payments of principal owing under the contract of sale at least up until interest became payable, since it makes sense that the debtor would appropriate those payments accordingly. 9. After the (nominal) date for interest (30 June 2012) became payable there were a number of payments left. Having regard to the email of 15 June 2012 and the subsequent 25 September 2013 letter (which Jamil did not dispute), I would treat those additional payments as payments of principal not interest. 10. I accept that Mr Deiri's unread affidavit has an inconsistent appropriation and that his evidence is inconsistent (and that the contemporaneous evidence is to some extent equivocal). However, on balance I accept that Mr Deiri generally followed the instructions of Jamil in relation to payments (as evidence by the Lebanon payments) and it seems that there was no complaint at the time. I would therefore make factual finding #10. Factual finding #11: that Investments paid the additional $2 million to Plaza 1. The next factual finding sought by the Deiri Parties is that Investments paid the $2 million that was agreed on account of Plaza's costs (which, as will be recalled, they say was additional to the $6 million purchase price for the land; and see Mr Deiri's affidavit sworn on 22 August 2019 at [132]-[155]). It is submitted that Mr Deiri gave unchallenged evidence that Jamil directed him to make the relevant cheques as he did, and that he followed those instructions. 2. It is submitted that those payments were made by the following instalments: on 29 October 2012, by a cheque for $250,000 made out to "Sayour Family Trust" and provided the cheque to Jamil (which was banked on 30 October 2012 into the Westpac #202 Account) (see at [313] above); on 23 November 2012, by a transfer of $500,000 to Moustafa's Blom Bank account in Lebanon (see at [317] above); on 17 December 2012, by a further $500,000 transferred to Moustafa's Blom Bank account in Lebanon (see at [319] above); on 8 February 2013, by a cheque for $400,000 made payable to "Sayour Investments Pty Ltd" (it will be recalled, Plaza's former name) and provided to Jamil (see at [337] above); on 15 August 2013, by cheque for $150,000 made payable to "J Sayour" (see at [372] above), and provided to Jamil (which it is said seems to have been banked into a Westpac #490 Account in Jamil's name); and on 25 September 2013, by cheque for $200,000 made payable to "Broadway Plaza P/L" (see at [416] above) and provided it to Jamil (though it is not clear where this cheque was banked). (Note: following publication of these reasons the Deiri Parties have informed the Court that, insofar as their submissions recorded as unknown the destination of the said amount or amounts, this was incorrect - see subsequent reasons.) 3. As to the 8 February 2013 cheque for $400,000, the Deiri Parties say that it is not clear where this cheque was banked and that the suggestion by the Sayour Parties in their aide memoire (marked MFI-1), that it was paid into the Westpac #202 Account, is not correct. 4. The Deiri Parties point to Mr Deiri's evidence that, when he handed the last cheque to Jamil, they had a conversation to the effect that he told Jamil this was the final payment and then Jamil thanked him see at [152] Mr Deiri's affidavit sworn 22 August 2019). It is said that this is consistent with the letter from Mr Deiri to Jamil on 25 September 2013, confirming that all of the moneys for the purchase of the land, and the additional $2 million for associated costs, had been paid (see at [414] above). 5. It is said that Mr Deiri's evidence of the conversation with Jamil confirming the final payment, and the provision of the above letter to Jamil, was not challenged. 6. As to the assertion by the Deiri Parties that the additional $2 million was paid by the payments identified above, Plaza accepts that it received the two payments of $500,000 each to Blom Bank in Lebanon in May and July 2012 and the further two payments of $500,000 on 23 November and 17 December 2012 that were also paid to Blom Bank in Lebanon, but denies receipt of the other payments. It says that the other payments were all cheques handed to Jamil, noting that one (the cheque of 14 August 2013 of $150,000) was made out to Jamil personally. 7. The Sayour Parties say that Investments' case in this regard depends on a finding that Jamil had authority to receive and direct payments. I consider that he did (other than insofar as he directed payments to his own account). I accept that the appropriations depend on alleged oral conversations and the letter of 25 September 2013 which Jamil countersigned to acknowledge payment of the full $8 million; that the conversations depend on the uncorroborated evidence of Mr Deiri; and that the 25 September 2013 letter depends on the case that Jamil had authority. 8. The Sayour Parties say that the common element is that both parties' cases fortuitously (but for inconsistent reasons) credit the two Blom Bank payments of November and December 2012 towards the $2 million. 9. It is submitted that, if the tender of [50] of Mr Deiri's affidavit of 2 November 2016 be allowed (as to which, see above), that would corroborate Plaza's case that the two earlier Blom Bank payments of May and July 2012 were credited towards the $2 million, but would assert a different position as to the balance of $1 million (specifically, the Sayour Parties note that it is asserted that this was paid by the electronic funds transfer that was made to the Westpac #202 Account on 10 August 2012). It is said that this would conflict with both parties' cases. It is noted above that the payment of 10 August 2012 was marked "Jamil PT" in Deicorp's bank statement. Determination as to factual finding #11 1. Leaving aside the payments that the Sayour Parties accept were received by Plaza by reason of the payments made to Moustafa's bank account in Lebanon (being those in May to June 2012 and then in late 2012, totalling $2 million) and also leaving aside for the moment how those are correctly to be appropriated in respect of amounts owing by Investments at the time, the issue arises in relation to the payments made by cheque (payable variously to "Sayour Family Trust", "Sayour Investments", "Broadway Plaza P/L" and, most troubling, "J Sayour"). 2. I do not accept that the letter of 25 September 2013 wholly overcomes the present difficulties. This is because the significance of there being no demur to the proposition that all the moneys for the purchase of the land (and additional $2 million) had by then been paid depends on Jamil's authority to bind Plaza to that position (since there is no evidence that Moustafa received the letter of 25 September 2013 or was aware of its contents). 3. I consider that the cheques made payable to "Sayour Family Trust" and "Sayour Investments" Pty Ltd (as to the former, on 29 October 2012, in the sum of $250,000 and as to the latter, on 8 February 2013, in the sum of $400,000 (see at [313] and [337] above) should be taken to be payments that were received by Plaza in relation to the amounts owing in respect of Investments' acquisition of its half share of the Broadway Site. I find this because I accept that Moustafa impliedly authorised Jamil to deal with aspects of the Broadway Development and, in so doing, held him out as being able to accept and direct the payment of moneys on Plaza's behalf. If those funds were then misappropriated by Jamil, then that is a matter between Plaza and Jamil's estate. 4. However, I do not accept that Jamil was expressly or impliedly authorised to direct that moneys (due to Plaza) be paid to himself. Accordingly, I consider that the sums paid on 15 August 2013 (of $150,000 payable to "Jamil") (see at [372] above) and on 17 August 2012 also made payable to Jamil ($150,000) (see at [300] above); and on 25 September 2013 ($200,000) by cheque drawn in favour of "Broadway Plaza P/L", which was provided to Jamil and which cannot be traced to any bank account in Plaza or Moustafa's name(s)) (see at [416]) were not moneys received by Plaza; and I so find. (Note: following publication of these reasons the Deiri Parties have informed the Court that, insofar as their submissions recorded as unknown the destination of the said amount or amounts, this was incorrect - see subsequent reasons.) 5. Therefore, this means that, of the amount agreed to be paid for the acquisition of the land, I find that those moneys (totaling $500,000) cannot be apportioned as payments to Plaza and there will be a balance owing by Investments. Factual finding #12: that the Broadway Partnership accepted the Stage 2 Construction Contract and Stage 2 Loan 1. The Deiri Parties next contend that Plaza is bound by the Stage 2 Construction Contract and Stage 2 Loan. This turns on the execution by Jamil on 15 May 2013 of a letter, on the letterhead of the Broadway Partnership, to Deicorp Constructions accepting the 14 May 2013 Deicorp Constructions' tender to Plaza for the construction of the residential apartments for a lump sum of $24.85 million (see at [356] above); and his execution of the Stage 2 Construction Contract purportedly on behalf of the Broadway Partnership (see at [357] above). 2. The Deiri Parties say that Jamil had authority to sign on behalf of Plaza by reason of the Powers of Attorney and therefore that the Stage 2 Construction Contract bound the partners. I do not accept this submission (for the reasons indicated when dealing with the Powers of Attorney argument). 3. The Deiri Parties also say that Jamil had authority on behalf of Plaza to sign the 20 June 2013 the "Deed of Variation and Restatement No. 1" (see at [363] above) and "Amended and Restated Cash Advance Facility Agreement" (which had the effect of reinstating the balance of the Stage 1 Loan as an investment facility and creating a separate facility for construction of the residential units known as the Stage 2 Loan). Again it is said (and I do not accept this submission) that Jamil had the authority to sign these deeds on behalf Plaza by reason of the Powers of Attorney and, accordingly, these deeds were binding. 4. The Deiri Parties maintain that the logical inference (arising from the following that: Moustafa had already been put on notice that there was a (or the) Stage 2 Construction Contract that would ultimately be needed to have been signed at some point, that the Stage 1 Construction Contract was only for the construction of the shopping centre and car park; that Moustafa had attended the launch of the shopping centre and knew the building was proceeding to the residential component; and that Moustafa had banked two cheques for proceeds for sale of the apartments), is that Moustafa knew that Jamil had signed the Stage 2 Construction Contract: how else, the Deiri Parties ask rhetorically, did Moustafa think the apartments were being erected? 5. Alternatively, insofar as Moustafa did not know that Jamil had signed the Stage 2 Construction Contract, it is said that Moustafa must have left it to Jamil to determine what else needed to be done, and what other documents needed to be executed, for the development to progress. It is noted that Moustafa knew from the beginning that he had only signed a construction contract for Stage 1 and it is said that this, again, illustrates Jamil's authority to act for Plaza. 6. Insofar as the Sayour Parties point to the increase in the price between the price in the original tender that Deicorp submitted for Stage 2 in December 2011 (which specified a price of $23.5 million for the construction of the residential units – see at [145] in the above chronology) and the Stage 2 Construction Contract signed on 15 May 2013 (which specified a price of $24.85 million, an increase of $1.350 million – see at [357] in the above chronology), the Deiri Parties submit that the increase in price itself is unremarkable. It is noted that the earlier tender for the residential apartments was not binding; that the tenders only became binding when they were incorporated into the construction contracts; and that the Stage 2 Construction Contract was not executed until on or about 15 May 2013. It is said that it is not at all surprising that, 17 months after the initial costs breakdown was worked out, there was a price increase when it came to signing a construction contract for the apartments. 7. As to the allegation by the Sayour Parties that Mr Deiri knew (both at the time he signed the Stage 2 Construction Contract and thereafter) that Moustafa was unaware of this increase in price and that Moustafa had not agreed to it, relying on two emails (the first being the email Jamil sent to Mr Deiri on 16 May 2013, the day after the Stage 2 construction contract was signed – see at [359]; and the second being an email sent by Jamil to Mr Deiri on 10 November 2013 – see at [419]), the Deiri Parties say the following. 8. First, that it was never put to Mr Deiri that, at the time of signing the Stage 2 Construction Contract on 15 May 2013, he knew that Moustafa did not know or approve of the increase in price (and so the Deiri Parties say that Plaza cannot now be permitted to make that submission). It is said that all that was put to Mr Deiri was that, at the time of signing, he knew that Moustafa had not consented to the Stage 2 Construction Contract. 9. Pausing here, it is evident from the contemporaneous emails that Jamil had conveyed to Mr Deiri very shortly after the Stage 2 Construction Contract was signed that Moustafa was not aware of, and therefore cannot have consented to or approved, the Stage 2 Construction Contract insofar as it contained any increase in price. To my mind, there is no other way in which the email of 16 May 2013 can sensibly be read. 10. Second, that the Sayour Parties have not identified how the issue of Mr Deiri's knowledge (as to Moustafa not having consented to the increase in price) bears on any cause of action or defence. I interpose to note that the Sayour Parties answer this, as I understand it, in effect by saying that Mr Deiri owed fiduciary obligations as a partner to Plaza and that it was not consistent with those obligations for Mr Deiri to conceal such matters from Moustafa. 11. Third, that from the point of signing of the Stage 2 Construction Contract on 15 May 2013, Plaza was bound and it cannot make any difference whether or not Mr Deiri knew or suspected that Moustafa had not agreed or consented to the increase in price after signing the agreement. It is said that, even if Moustafa had (for example, the day after signing the contract) told Mr Deiri that he had never approved or signed it, Mr Deiri could, had he wanted to, have replied and insisted that Plaza was nonetheless bound (because Jamil had the authority to enter the agreement on Plaza's behalf). 12. Again, pausing here, this point, however, is premised on a finding of authority that, for the reasons set out above, I do not accept should be made. Furthermore, the issue of knowledge would surely be relevant to, inter alia, any conventional estoppel or estoppel by acquiescence claim put in relation to payments made under that Stage 2 Construction Contract. 13. Fourth, that, even if Mr Deiri thought that Moustafa did not know about the price increase at the time he signed the Stage 2 Construction Contract, this would not impugn Jamil's authority. I have concluded otherwise as to the issue of Jamil's authority. Specifically, I accept that Jamil was given a level of day-to-day authority to run the business of Plaza and I accept that, having been granted that authority, the fact Jamil did not keep his father informed of some matter or other would not detract from his authority. However, I do not accept that the authority that Jamil was given extended to his entry into substantial construction contracts (even if the contract were for the same construction price). Insofar as it is submitted by the Deiri Parties that the Powers of Attorney gave Jamil full authority to act on Plaza's behalf, subject only to the restriction appearing from 26 March 2012 on encumbering or disposing of real estate, and that a Power of Attorney is no less effective if the attorney does not keep the principal informed at all times of what the attorney is doing, I do not accept this submission in light of my findings on the Powers of Attorney (as to which, see below) and authority issues (as to which, see above). 14. Fifth, that Moustafa gave no evidence about what he would have done had he known about the price increase (simply that he did not know about it). It is noted that there is no evidence about the reason for the increase in construction costs (though it is suggested that there may be many obvious potential reasons, such as increases in material or labour costs, a change in market conditions and/or additional information about the site and feasibility having developed the first stage of the car park and shopping centre on which the residential apartments were to be built). It is submitted that it may well have been that, had the increase been discussed and explained to Moustafa, he would have agreed to it in any event. It is said that, whatever legal argument Plaza seeks to advance based upon the allegation of Mr Deiri's knowledge, it would bear the onus of showing that it suffered some loss caused by wrongful conduct; and that it has failed to do so. 15. Sixth, it is said that Plaza has, in any event, not proved the allegation. It is noted that the second email in November 2013 was many months after the Stage 2 Construction Contract was signed and contains nothing to suggest Jamil told Mr Deiri anything about his father's concerns before the contract was signed. As for the first email, the Deiri Parties note that the email was sent after the contract was signed and they point to Mr Deiri's evidence that, when he received it, he telephoned Jamil and asked him what was going on and Jamil said he would talk to his father about it (see, for example, at T 882.26 - T 883.10). 16. It is submitted that Mr Deiri's evidence as to his understanding and surprise as to this is consistent with the way in which Jamil had been running Plaza's side of the transaction with its authority from the beginning. It is said that (contrary to the Sayour Parties' submissions) it is not correct to say that "Mr Deiri did nothing" when he received these emails (noting that Mr Deiri's evidence of this telephone call having occurred was not challenged). The Deiri Parties say that it should be accepted that this telephone call was made and that the conversation took place as Mr Deiri said; and that this strongly supports the fact that Mr Deiri did not know, at the time he signed the Stage 2 Construction Contract, that Moustafa had not been told by his son about the price increase (otherwise, he would not have reacted in the way he had, saying "Jamil what's this email, I'm a bit surprised, what's going on here"). 17. Pausing here, there is a difficulty in accepting any of the parties' recollections of conversations with Jamil in the absence of corroborating evidence and this is simply another instance of that difficulty. 18. Insofar as Plaza further submits that Mr Deiri knew that Jamil did not have authority to sign the Stage 2 Construction Contract because Jamil did not purport to sign in Moustafa's name and did not purport to execute the contract on the basis of a Power of Attorney, the Deiri Parties say that Jamil did not need to purport to sign under Power of Attorney. It is said that Jamil had told Mr Deiri he had a full Power of Attorney and shown him a copy and that there is no reason why Mr Deiri would believe (incorrectly) that the document needed to be signed expressly on that basis. 19. Insofar as Plaza further submits that Jamil purported to sign on behalf of the partnership as "development manager", but that he was not appointed to that position by the partnership and in any event a manager would not ordinarily have that authority, the Deiri Parties say that Jamil did have authority to bind Plaza, by reason of the Powers of Attorney as well as actual authority, and that Investments plainly authorised entry into the Stage 2 Construction Contract. Therefore, it is said that both partners authorised the transaction. 20. As to this contended for factual finding, the Sayour Parties emphasise that Moustafa did not sign, and was not given the opportunity to sign, the Stage 2 Construction Contract. It is submitted that it was sufficiently put to Mr Deiri that he knew that Moustafa did not know of the price increase (see above in relation to the Browne v Dunn submissions). 21. The Sayour Parties say that Moustafa considered that Jamil's position with respect to Plaza was that of a person who was to carry out day-to-day tasks and report to Moustafa as and when required. It is said that Mr Sayour's analogy with Mr Rosa was expressly limited in the course of his evidence in cross-examination (in that he denied that he considered Jamil to be the project manager on behalf of Plaza) (see at T 391.40-46). 22. The Sayour Parties say that inherent in such a role is: a limited level of responsibility; no authority to enter concluded bargains; an obligation to report to Moustafa; and no authority to change the substance of the key bargains concluded by the principal in establishing the business. It is said that a day-to-day manager does not conclude contracts worth millions of dollars or agree to price changes of a similar magnitude; and would not sign the sole director's signature and purport, by so doing, to represent that signature was in fact applied by the sole director. I interpose to record that I accept the force of this submission. 23. In this connection, reference is made to Australasian Brokerage Ltd v Australian and New Zealand Banking Corporation Ltd (1934) 52 CLR 430; [1934] HCA 34, where (at 450-451), Dixon, Evatt and McTiernan JJ stated that the scope of the authority is determined by the nature of the duty entrusted to the agent. 24. The Sayour Parties say that, before the sale of the half share in the Broadway Site, the nature of the duty entrusted to Jamil with respect to Plaza was not that of a universal agent. They say that, to the extent that his authority was derived from the 30 May 2010 Powers of Attorney (again, see at [101] in the above chronology), it was prescribed by the terms of that grant and that, by May 2013, he had an even more limited Power of Attorney; and that, to the extent that Jamil was granted implied actual authority, then it is submitted that such authority was limited to the usual tasks associated with a senior manager having regard to the nature of his position in the family and in the family business. Again, I record that I generally agree with this submission. 25. It is further said by the Sayour Parties that the receipt of undisclosed payments to Jamil (the $400,000 payment made in October 2011 and the monthly payments of $10,000) vitiated the consensual nature of Jamil's appointment as an agent in any event. It is said that it is inconceivable that Mr Deiri could have thought that an agent he was paying personally had authority to bind his principal. (In relation to the payments made to Jamil in his personal capacity, I agree.) Determination as to factual finding #12 1. I cannot make the finding sought in relation to factual finding #12. I do not accept that the level of authority impliedly given to Jamil extended to the entry by him, on Plaza's behalf, into the Stage 2 Construction Contract; and I do not accept that the Powers of Attorney authorised him to enter into such a contract. Factual finding #13: that Plaza in fact received its share of the partnership distributions 1. The next finding of fact that the Deiri Parties say should be made is that Plaza was paid its share of the partnership distributions from the sale of the residential apartments. 2. It is submitted that the evidence shows that Investments caused the distributions to be made; that Plaza declared it had received its share in its tax returns; that Plaza did not complain about not receiving the distributions for eleven months after the last distribution was made; and that Plaza has already recovered $300,000 of the distributions it says it never received (as noted above, in the earlier Estate Proceedings – see above). 3. As to the making of the partnership distributions, it is said that, following the sale of the apartments, the Stage 2 Loan was repaid in the amount of $42,031,226; that after payment of expenses and GST, there was $19.28 million available for distribution; and that, from mid-November 2014 to January 2015, Mr Deiri distributed this surplus to Investments and Plaza by drawing cheques on the CBA Partnership Account (see Mr Deiri's affidavit sworn on 22 August 2019 at [217]-[233]). Mr Deiri's evidence is that each payment was made in accordance with Jamil's instructions. 4. Specifically, it is said that, in each instance, Jamil directed Mr Deiri as to which entity to whom the cheque should be drawn and that Mr Deiri followed those instructions. It is said that Jamil had authority to give directions to Mr Deiri on Plaza's behalf about how the partnership distributions should be made; and, therefore, Plaza received its share of distributions (and what then may have happened as between Jamil and Moustafa is a matter between them). 5. As for the payment to Moulikyah on 5 January 2015 (see at [508] above), it is noted that each of Moustafa and Jamil was a shareholder and director of that company. It is said that there is "nothing surprising" about Jamil having directed the payment to be made to that entity (and that, ultimately, Jamil had authority to direct where the payment was to be made). 6. As to the $300,000 recovered from the Estate Proceedings, it is noted that one of the partnership distributions from the CBA Partnership Account which Plaza claims it never received was the payment of $300,000 by cheque on 11 December 2014 made out to "Sayour Family Trust", which was deposited into the Westpac #238 Account (see at [502] above). 7. It is noted that in the Estate Proceedings (to which the Deiri Parties were not party) orders were made for the recovery of amounts claimed by Moustafa, Plaza and Moustafa's wife, Fatima, from Ms Elliott as executor or administrator of Jamil's estate (see Sayour v Elliot [2018] NSWSC 59 at [106]). 8. It is noted that, in those proceedings, it was alleged that a number of cheques drawn on the CBA Partnership Account totalling $5.3 million were moneys held on trust for the Sayour Family Trust, being designated as such on the cheques themselves. Those cheques (summarised at [48] of the Estate Proceedings Judgment) included the cheque dated 11 December 2014 for $300,000 which was deposited into the Westpac #238 Account, an account designated as a trust account for the Sayour Family Trust. As adverted to, the orders made included judgment in favour of Plaza for $300,000. 9. It is said that there is no dispute that Plaza ultimately recovered some $5.8 million from Jamil's accounts; and that if it were now allowed to claim the $300,000 (the subject of the earlier order) in partnership distributions, it would have double recovery of that amount. 10. It is convenient here also to consider CBA's reply submissions as to receipt of funds by Jamil. 11. Similarly to the Deiri Parties, insofar as Plaza contends that payments made into the Westpac #202 Account and Westpac #238 Account were payments made, not for the benefit of Plaza, but for the benefit of Jamil alone (these payments encompassing both the "bribes" alleged by Plaza to have been paid to Jamil, about which CBA makes no submission, and also the distribution of Broadway Partnership profits), CBA says as follows. 12. First, it is said that (as Plaza recognises) Plaza sought in these proceedings to recover only those components of the partnership distributions which it could not recover following the separate Estate Proceedings (in which separate proceedings, Plaza, in a pleading verified by Moustafa, alleged that the partnership distributions were the funds of Plaza – see Ex 7 at p 67 – and obtained judgment on that basis). It is said that Plaza failed to recover the full amount of the partnership distributions not because there was any issue of its entitlement to or ownership of those funds; but simply because there were insufficient funds in Jamil's accounts to meet the full claim. 13. Second, it is noted that Moustafa acknowledged during his testimony that these payments were distributions from the partnership to Plaza which Plaza was entitled to retain. 14. Third, insofar as Plaza now relies for its submission on National Commercial Banking Corporation v Batty, CBA submits that this decision does not assist Plaza. It is said that case did not concern (as here) a payment by a partnership to one of its partners; rather, it concerned the situation where one partner obtained funds belonging to a client, deposited them into the trust account of the partnership without the knowledge of his partner or the client and then misappropriated the funds for his personal benefit. The client was able to sue the bank for money had and received or for conversion of the cheques; but the High Court held that the innocent partner was not liable to the client as he had not been aware of, or authorised, his partner's unlawful conduct. CBA maintains that National Banking Corporation of Australia Ltd v Batty is not authority for the assertion that in this case Plaza did not receive the funds. It is submitted that it has no relevance to whether funds paid from a partnership account to the account of one partner are taken to have been received by that partner (which is the present situation). 15. Fourth, it is said that the other authorities cited by Plaza also do not address facts such as the present, particularly in circumstances where Moustafa accepted in oral evidence that: the amounts totalling more than $9 million were received by Plaza as partnership distributions; and CBA was entitled to the return of all moneys which it advanced to the Broadway Development. 16. I now turn to consider the submissions for the Sayour Parties in relation to this contested factual finding. 17. In short compass, the Sayour Parties say that: six cheques (totalling $9.49 million) were drawn on the CBA Partnership Account, which were recorded in the Broadway Partnership's accounts as being payments or distributions of profit from the partnership to Plaza; and, of those, Plaza received the immediate benefit of only $1.6 million. It is said that Plaza had to commence proceedings to recover whatever funds had been left in Jamil's bank accounts at his death (and, in so doing, it recovered $5 million plus costs and interest). 18. It is said that although Combined Projects Arncliffe has paid to Sayour Holdings the sum of $670,000, Mr Deiri "seems to be attempting to claw that back by attacking control of that company". Plaza says that, "depending on the outcome of that piece of adventurism", Plaza remains without funds totalling either $2.22 million or $2.89 million "which were spirited away from its accounts" by Jamil with the assistance, and in the case of Combined Project Arncliffe the receipt, of the Deiri Group, and that it has been without the benefit of the use of those funds or interest for a long period and has incurred "much cost and trouble" even to recover so much as it has. 19. The Sayour Parties submit that the Deiri Parties' submissions on this aspect of the matter ignore the rule established in National Commercial Banking Corporation v Batty that, when money "goes in and out" of an account by a misappropriation before the account holder knows of it, then the account holder has not received it. Determination as to factual finding #13 1. I consider that National Commercial Banking Corporation v Batty is distinguishable from the present case broadly on the basis articulated by CBA. 2. Insofar as moneys were paid into the Westpac #202 Account, I have concluded that the partnership distributions were received by Plaza (albeit that it appears that Jamil may then have misappropriated a substantial proportion of those amounts). That is consistent with Moustafa's stance in the Estate Proceedings – namely, that moneys paid into the Westpac #202 Account were (on receipt into that account) impressed with a trust and that the cheques paid in respect of those moneys were the property of Plaza. It is also consistent with my finding as to Jamil's authority to manage the day-to-day activities of Plaza and the family's affairs, which included directions as to the accounts to which moneys were to be paid. Factual finding #14: that Moustafa knew about the partnership distributions 1. The last key finding of fact that the Deiri Parties say should be made in the Broadway Proceedings is that Moustafa knew that Plaza received the partnership distributions, or alternatively knew that Plaza was receiving partnership distributions and left it entirely to Jamil to manage the receipt of those distributions. 2. It is submitted that there can be no doubt that Moustafa knew that partnership distributions were being made at least by November 2014. As will be recalled, Moustafa admits that he attended the Westpac branch in Lakemba and banked two of these cheques himself, totalling $5 million, and that Jamil told him the moneys were from settlements from the apartments. 3. As noted (see at [494] above), the first of these cheques was drawn on the CBA Partnership Account on 24 November 2014 in the amount of $3.35 million. It was made out to "Sayour Family Trust". That cheque was signed only by Mr Deiri. Moustafa says that, on or around 25 November 2014, Jamil gave him that cheque. In his affidavit sworn on 27 October 2016, Moustafa deposed (see at [89]) to a conversation with Jamil to the effect that Jamil told him that the money was "settlement money from the units" and he asked Jamil how he and Mr Deiri had "done settlement without me" and Jamil had said he did not want to bother his father. 4. It is submitted that, on his own evidence, Moustafa therefore knew that $3.35 million had been paid from the CBA Partnership Account in distribution of proceeds from the sale of the apartments; and that he knew that the units were being settled and proceeds were being received by the partnership. 5. Moustafa's evidence (see [90] of his affidavit sworn on 27 October 2016) is that he then telephoned Mr Deiri and had a conversation (disputed by Mr Deiri) to the following effect: Me: "How did you do settlement without me? I'm your business partner." Fouad: "Yes uncle, but Jamil, he told me, that he and you are the same." 1. This conversation is disputed by Mr Deiri, but the Deiri Parties say that, even if it did occur Moustafa, gives no evidence that he expressed any further concern to Mr Deiri. Specifically, it is noted that Moustafa gives no evidence that he replied by saying that Jamil and Moustafa were not the same; nor does he give evidence that he told Mr Deiri that Jamil handling the settlement funds was not authorised or that, in the future, any communications about settlement funds must be directed to Moustafa (contrary to the practice that it is said had previously been adopted, whereby Moustafa was entirely happy for Jamil to be the point of contact when it came to handling payments). I interpose here to note that Moustafa's account of what Mr Deiri said confirms Mr Deiri's understanding of the relationship and is much closer to the events in question than the evidence at the hearing. 2. It is further noted that in his affidavit sworn on 27 September 2016, Moustafa set out the phone conversation with Mr Deiri extracted above but made no mention in that affidavit about the fact that the cheque was only signed by Mr Deiri. It is noted that in a later affidavit sworn on 16 September 2019, Moustafa deposes (at [142]) that he noticed that Mr Deiri had not signed the cheque, and says that he also asked Mr Deiri why he had signed this cheque without him and Mr Deiri said, "Uncle, I have authorisation, don't you remember?" 3. Moustafa goes on in this affidavit (at [143]) to depose: 143. I was upset. But at this time (again, November 2014) I was also faced with the news that Jamil's doctors had told him (with my daughter Jasmine present) that he had only weeks or months to live. I was very worried about Jamil's health and how long we would have him with us. What Fouad said to me about authorisation didn't strongly register in my mind and I didn't press it any further at the time. As I depose at paragraph 91 in my 2016 Affidavit, I convinced myself that as long as the accounts checked out then there was no harm done. In the end, I followed Jamil's instructions to bank the cheque. I didn't sign the cheque at the time because I feared that if I signed it, I would have agreed to drawing this cheque. 1. Mr Deiri disputes also that conversation. Relevantly for present purposes, the Deiri Parties note that it did not appear in Moustafa's earlier affidavit where he gave evidence of the conversation. Insofar as Moustafa claims that this was the first cheque he saw drawn on the CBA Partnership Account, it is submitted that the notion that no cheques had been drawn to pay partnership expenses is "absurd", and that Moustafa's evidence about this conversation cannot be true or honest. 2. The Deiri Parties further say that, even if the conversation did occur, by Moustafa's own evidence he did not dispute the authorisation to sign cheques unilaterally expressed by Mr Deiri. It is said that this suggests Moustafa knew about, and was content with, that arrangement. That is said to be confirmed by the fact that, when a second cheque was presented by Jamil to Moustafa a few days later for $1.65 million (also not signed by Mr Deiri – see at [499] above), Moustafa again said nothing. 3. Insofar as Moustafa's explanation for not pressing Mr Deiri further was that he was worried about Jamil's health and that what Mr Deiri said about authorisation did not "strongly register" in his mind, the Deiri Parties point to the cross-examination in which Moustafa first said that news of Jamil's illness was the day prior to being given the cheque (see at T 470.16-38); whereas, when it was put to Moustafa that Jamil had arrived back in Australia on 4 November 2014, Moustafa altered his account to having the conversation with Mr Deiri 21 days after hearing news of Jamil's ill health (see at T 470.39-49). The Deiri Parties submit that, if Moustafa had the mental focus and concern to telephone Mr Deiri (21 days after receiving the news of Jamil's illness) and raise the fact that a cheque had been signed without him in the first place, then he would very likely also have had "enough wherewithal and attention" to have asked what authorisation Mr Deiri was supposedly talking about; and it is submitted that, had Moustafa done so, Mr Deiri would obviously have said that there had been a change in the account terms by the Cheque Authorisation Alteration Instruction. (Pausing here, as to the last, this seems to me to be a moot argument, since on any view of things the Cheque Authorisation Alteration Instruction was not signed by Moustafa and, hence, referring to that document could likely only have led to further confusion on Moustafa's part.) 4. Again, it is submitted for the Deiri Parties that Moustafa's account of the conversation with Mr Deiri is a "strategic fabrication" designed to explain away the inconvenient fact that Moustafa had seen a cheque signed only by Mr Deiri and that it should not be accepted that this conversation took place. As already noted, I exercise caution in respect of both sides' accounts of the various oral conversations to which they depose. This is just another instance of the need for such caution. 5. The Deiri Parties point out that Moustafa's evidence was that he then had a conversation with Jamil to the effect that Jamil told him that, "[y]ou need to go to the bank to deposit it. I have already told Tamer, he is expecting you" (see at [91] of his affidavit sworn on 27 October 2016). It is noted that Moustafa gives no evidence that he told Jamil not to deal with settlement money without him; and that he says he was upset but he convinced himself that, "so long as the accounts checked out then there was no harm done". I note that the evidence as to Moustafa's visit to Tamer itself seems implausible. 6. It is submitted that it should therefore be found that Moustafa knew all along that Plaza was receiving payments for the land and partnership distributions but that, even if Moustafa's evidence that he thought there was "no harm done" provided that the "accounts checked out" is to be accepted, there are only two logical possibilities: first, that Moustafa checked the Sayour Family Trust bank accounts at some point around this time (which he knew included the Westpac #202 Account and the Westpac #238 Account) in order to satisfy himself that the accounts "checked out"; or, second, that Moustafa did not check the Sayour Family Trust bank accounts and continued to leave it to Jamil to handle partnership distributions, content that if he ever wanted to check the bank accounts and check Plaza's finances (perhaps at the conclusion of the project) he could do so. 7. It is submitted that, if the first is true, then Moustafa must have accessed the Sayour Family Trust bank accounts or reviewed the bank statements and checked the amounts that had been paid; and would have seen all of the payments for the land that had been deposited as well as the recent two earlier deposits of partnership distributions into the Westpac #202 Account (on 13 and 19 November 2014 comprising amounts of $2.19 million and $1.75 million respectively). It is submitted that that would be fatal to Plaza's case in the Broadway Proceedings, because it shows Plaza knew about and received the payments it claims it never received. 8. Furthermore, if the second is true, it is submitted that it supports the full authorisation that Jamil had to manage and handle payments for Plaza. That authority is said to be confirmed by the fact that, when Jamil did exactly the same thing a few days later, presenting Moustafa with another settlement cheque signed only by Mr Deiri, Moustafa took no objection. That is said also to be fatal to Plaza's case in the Broadway Proceedings, because it is said that Jamil had authority to direct and receive the payments on behalf of Plaza. 9. The Deiri Parties further point out that Moustafa has deposed that the person at Westpac said by Jamil to have been expecting Moustafa (referred to as "Tamer") was a bank manager at the Lakemba branch that Moustafa had "had some dealings with"; that Moustafa claims that, when he attended the branch, Tamer said to him "can you please give me the cheque and sign here"; and that Moustafa claims he handed over the cheque, was given a document he believes "was a receipt of some sort" that he did not read, and signed it. It is noted that the $3.35 million cheque that Moustafa banked was deposited into the Westpac #238 Account in his name. 10. The Deiri Parties submit that there are only two logical possibilities as to Moustafa's knowledge about this specific deposit: first, that Moustafa knew precisely what he was doing and where he was banking that cheque (which it is submitted is the most compelling conclusion, it being said to be inherently implausible that Moustafa "wandered" into the Westpac branch with a cheque for $3.35 million, "blindly" signed a document without reading it, and had no idea where he was depositing the money); or, second, that Moustafa did not know where the funds were being deposited. 11. It is said that, if the first is the case, then it follows that Moustafa knew about the Westpac #238 Account in his name and it also follows that Moustafa lied about not knowing anything about that account, and about never reading his bank statements. In those circumstances, the Deiri Parties say that it should be found that Moustafa knew about the transactions on that account, which means that Moustafa "knew full well" about the partnership distributions deposited into it. 12. It is said that, if the second is the case and Moustafa deposited the money relying entirely on Jamil's instructions simply to go to the bank and deposit it without any further information, then the Deiri Parties say that this is powerful evidence that Moustafa deferred financial decision-making about Plaza's finances and accounts, the receipt and management of funds and where Plaza's money was to be stored and transferred, entirely to Jamil. It is submitted that this is fatal to Plaza's case in the Broadway Proceedings. 13. As to the second cheque that Moustafa deposited (it will be recalled, drawn on the CBA Partnership Account on 28 November 2014 in the amount of $1.65 million and made out to "Sayour Family Trust" signed only by Mr Deiri), Moustafa's evidence is that, on or around 25 November 2014, Jamil gave him this cheque. Moustafa deposes to a conversation to the effect that he asked Jamil, "[w]hat is this, more settlement funds?" and that Jamil said "[y]es, I need you to go to the bank and deposit it please" (see at [95] of his affidavit sworn on 27 October 2016). Moustafa says he then went again to the Westpac branch in Lakemba, met with Tamer, handed him the cheque, and signed another document he did not read. That cheque was also deposited into the Westpac #238 Account. 14. Again, the Deiri Parties say that there are only two possibilities concerning Moustafa's knowledge: first (again, said to be the most obvious and probable possibility), that Moustafa knew he was depositing the cheque into the Westpac #238 Account (an account in his sole name about which he knew); or, second, that he did not know where the funds were being deposited. 15. It is noted that Moustafa accepted in cross-examination that he kept an eye on and was careful with his money; and that he was a businessperson who had founded and run a successful medical equipment manufacturing business. It is again submitted that it is not plausible that he would wander into the bank and deposit a significant sum without knowing where it was to be deposited, sign whatever the bank staff told him to without reading it and not ask any questions of the bank or Jamil. 16. As to the second possibility (that Moustafa did not know where the funds were being deposited), it is said that, in that case, it follows that Moustafa plainly entrusted that matter and the management of the receipt of Plaza's distributions to Jamil. It is said that Moustafa was content for Jamil to be the point of contact with Mr Deiri about partnership distributions, and to receive the cheques on its behalf, since Moustafa had not communicated directly with Mr Deiri; that Moustafa must have known that further distributions would have been made given the sales process was underway; and yet he made no complaint about Plaza not receiving sales proceeds until eleven months after the last payment was made; and made no complaint to Mr Deiri asking about the rest of the sales proceeds. 17. Again, both scenarios are said to be fatal to Plaza's case in the Broadway Proceedings. The Deiri Parties say that it is notable that Moustafa gave no evidence that Jamil's provision of the $1.65 million cheque to him was a surprise or concern, and that he never admonished Jamil or complained to Mr Deiri. It is submitted that Moustafa's behaviour is consistent with the fact that he knew where the money was deposited and that Jamil was authorised on behalf of Plaza to deal with distributions without the need for direct communications between Mr Deiri and Moustafa. 18. It is further noted that, although Plaza claims it never received the partnership distributions and knew nothing about the payments made from the CBA Partnership Account, Moustafa signed a tax return (purportedly) on 9 November 2015 for the Sayour Family Trust (of which Plaza was trustee) which declared the distributions. That is said to be damning because it evidences that the distributions were made, that Moustafa was aware of them, and that he regarded them as having been paid. 19. I note that the tax return, produced on discovery, declares a total partnership income for that year of $12,590,536, deductions of $3,986,911 and a net income/loss of $8,603,625. It is noted that on the same page is Moustafa's signature, which he admitted. Moustafa admitted that the Broadway Development was the Sayour Family Trust's only investment. Hence, it is said that the partnership distributions recorded could only have been those from the apartment sales paid to Plaza. 20. The Deiri Parties note that, when questioned about the tax return in cross-examination, Moustafa claimed he did not regard signing the tax return as important, he did not read it, he had no idea what was in it and he did not want to know what his tax obligation was (see at T 494.17 – T 495.23). The Deiri Parties say that, when asked about whether he wanted to know how much income the trust had made, Moustafa answered evasively and maintained he did not read the tax return. It is submitted that Moustafa could offer no coherent explanation for not reading the return, at least to check the basic figures, other than that the accountant told him to sign the document. 21. Insofar as Moustafa also said that Jamil and Mr Deiri had told him there was no income coming in (and insofar as he seemingly implied that he did not need to check the income), it is said that that was not true for the tax year ending June 2015 (as Moustafa knew) because he had personally attended Westpac and banked two cheques for the apartment sales for a total of $5 million in November 2014. It is also noted that Moustafa then confirmed he had been signing tax returns for 45 years yet claimed he never read any of them (see at T 497.26 – T 498.11). 22. Following, the Deiri Parties again contend that Moustafa's evidence that he did not know about the receipt of the sales proceeds should not be accepted. It is again noted that Moustafa is a businessperson who built Biomed, a successful and profitable manufacturing business. It is said that it is not believable that he signed a tax return with an income of $12.5 million and a profit of $8.6 million and that he did not read it and had no idea what he was signing. It is further said that it is not plausible that a businessperson in his position never read a single tax return in his life, as he asserts, and blindly signed any document his accountant put before him. It is submitted that the evidence Moustafa gave was not truthful. 23. In those circumstances, and in light of the other credibility issues arising from his evidence to which I have referred above, the Deiri Parties urge a finding that Moustafa read the partnership income figures on the tax return for the financial year ending June 2015 before he signed it; and that he was aware that Plaza had received the distributions it claims in these proceedings. As noted earlier, the Deiri Parties submit that a Jones v Dunkel inference can be drawn from the fact that Mr Gramelis was not called to corroborate Moustafa's account of events. It is said that the inference can more confidently be drawn that Moustafa knew the content of the tax return or, at the least, that the evidence Mr Gramelis would have given in relation to Moustafa's reading of the returns, had it been given, would not have assisted Plaza. 24. It is said that in order to accept Moustafa's evidence that Mr Deiri and Jamil told him there was no income from the partnership that year, it would be necessary for there to be a finding Mr Deiri and Jamil both lied to Moustafa about the partnership income in that financial year (since it is not disputed that the partnership did earn income that year). It is said that there is no basis for such a finding. It is also noted that Moustafa said nothing in his affidavits about being told that there was no income from the partnership in the financial year ending June 2015. 25. Finally, the Deiri Parties again emphasise that Plaza did not complain for a lengthy period. It is submitted that if the two cheques that he banked were all he knew about the distributions then he would have expected that further distributions would be made and he would have asked where they were when they did not arrive; yet he said nothing. It is noted that at no point after the last distribution payment was made did Moustafa ask about the rest of the sales proceeds, until Jamil's wake in October 2015. 26. The Deiri Parties submit that the logical inference is that Moustafa made no complaint because he knew that the distributions had been made. It is submitted that, insofar as he did not know, he must have left Jamil to deal with the distributions, reinforcing that Jamil had actual authority to receive cheques and direct payments. Determination as to factual finding #14 1. I accept that Moustafa knew that Plaza had received some payments out of the settlement moneys from the sale of residential apartments (not least because he personally banked two of the cheques) and that it is certainly difficult to understand how it is that, if Moustafa thought that no more had been received by way of partnership distributions, then Moustafa did not make enquiries at an earlier stage as to the proceeds of the Broadway Development (bearing in mind the anticipated profits that had been the subject of the feasibility figures when the partnership was first in contemplation). 2. Moreover, I consider that the evidence as to the circumstances in which Moustafa came to bank the cheques into the Westpac #238 Account (yet maintained that he was ignorant of that account) is not compelling. 3. However, whether or not Moustafa actually knew about the precise amounts that were paid by way of partnership distributions or appreciated the particular account into which they were being paid, I accept that the evidence leads very comfortably to the conclusion that Moustafa left it to Jamil to manage or direct the receipt of payments on behalf of Plaza in respect of partnership distributions from the Broadway Development (just as he clearly appears to have done in relation to other payments due to Plaza – in particular, the amounts that Moustafa left it to Jamil to organise for payment to his account in Lebanon). 4. Moreover, insofar as amounts were recorded as partnership income in Plaza's 2015 tax return, I consider that this amounts to an admission by Plaza of the receipt of those distributions (by which Moustafa is bound, having signed the returns, whether or not he read them at the time). Indeed, while not needing to decide the point (because it is not dispositive of the factual finding that I am here making), it seems quite arguable that Moustafa would thereby also have had, if not actual notice, then at least constructive notice of the matters. 5. Therefore, I find that Moustafa was aware that partnership distributions had been made during the course of the Broadway Development out of the proceeds of sale of residential apartments and also that Moustafa was content to leave it to Jamil to manage the receipt of those distributions. Other introductory matters 1. Before turning to determine the respective cross-claims in the Broadway Proceedings, I also consider it useful at this stage to address a number of discrete matters: the allegations made as to forgery; the conclusions I have reached as to the cheque signing processes, and the like; the submissions made as to the relationship between Moustafa and Mr Deiri; and the allegations of bribery. Allegations of forgery and observations thereto 1. The Sayour Parties submit that proof of forgery (in respect of the purported but not genuine Moustafa signatures, including those produced by use of a signature block) is established by: the affidavit evidence of Moustafa that he did not sign the cheques in question; the evidence of the forensic expert, Mr Stephen Dubedat (see Ex B); CBA's disavowal in opening that it had a mandate to make the payments (relying instead on its special defences – see, for example, T 90.19); and the evidence of Mr Deiri in cross examination that the accommodation notices under the facility agreements were prepared by him or under his direction and submitted by him to CBA, without the signatures of Moustafa (see, for example, at T 1093). 2. The Sayour Parties emphasise that Mr Dubedat's (unchallenged) findings were that: no cheque contained a genuine signature of Moustafa (see at [8(iii)]); no genuine signature of Moustafa is contained in the accommodation notices and other correspondence by which the CBA was notified to release funds or in the Cheque Authorisation Alteration Instruction and, further, that many of these accommodation notices and other correspondence contained signatures which were simply duplicated (i.e., copied "from the same or a similar model"); the signatures that bear Jamil's ordinary signature were each signed by the same person who signed the specimens of Jamil's genuine signature (see at [7(ii)]; [8(v)]); the signatures in the 25 June 2013 guarantee and the second facility documents, and on the 3 September 2013 amending instruments, were not genuine signatures of Moustafa (see at [8(iii)]); no genuine signature of Moustafa appears on the Matthews Street Property contract of sale, or on the Matthews Street Co company and unit trust documents (see at [12]); and that the signature on the 21 December 2011 CBA mandate letter is not a genuine signature of Moustafa (see at [7(i)]). 3. As to the Cheque Authorisation Alteration Instruction, the Sayour Parties note that Mr Dubedat (who concluded that the letter contained a "non-genuine" signature of Moustafa) was of the opinion that the "Moustafa" signature was a copy of a "non-genuine" signature which had been applied on an earlier document (the first document in which that form of the signature appears being a document dated 23 January 2014, in respect of Progress Claim 5 (PC 5)). 4. The Sayour Parties say that, despite Mr Deiri's denials that "nothing like" a cut and paste of Moustafa's signature occurred in order for that signature to appear on the letter changing the operation of the account, it is not possible that it was otherwise than a "cut and paste" production; and they note that neither Mr Deiri nor Investments has sought to challenge Mr Dubedat's finding that the signature was a duplication from the earlier document. The Sayour Parties maintain that it is a forgery (and to the extent that Jamil authorised Mr Deiri to execute the document using a signature block then he facilitated that forgery). 5. Pausing here, I have already referred to the Deiri Parties' vociferous complaints as to lack of procedural fairness in the cross-examination of Mr Deiri on this issue and do not need to revisit my observations on those complaints. 6. The Sayour Parties here rely on Kreditbank Cassel GmbH v Schenkers Ltd [1927] 1 KB 826; [1927] All ER Rep 421 (Kreditbank Cassel GmbH v Schenkers) for the proposition that the non-genuine signatures amount to forgeries. Insofar as it is suggested that Jamil was authorised to apply his father's signature to the relevant documents, the Sayour Parties submit that this is redolent of the argument rejected in Chen v Gu; Chen v Nguyen [2011] NSWSC 1622 (Chen v Gu) where the defendant (who admitting signing documents in her former husband's name) asserted, inter alia, that her former husband had authorised her to execute the contract of sale in his name (see at [3]-[4]; [76]-[78]). 7. I pause here to note that, insofar as allegations of forgery by Jamil have been made by the Sayour Parties, Konstructions says that the nature of the "forgery" is the application of a signature similar to Moustafa's signature on various cheques and accommodation notices but that the central feature of "forgery" (at common law) is absent in that there is no evidence that the signature was for the purpose of Jamil's financial gain or to inflict financial damage. It is said that all signatures were on partnership cheques or accommodation notices and funds were applied to partnership expenses; and that there is no evidence of any substantial sum referable to self-interest and Konstructions contends for a finding to be made to this effect. 8. Konstructions therefore says that there are two possible inferences available from the application by Jamil of Moustafa's signature on such documents: first, that the signatures were applied in some mistaken belief of the effect of the relevant Power of Attorney or as a result of a misunderstanding of proper practices; or, second, that this was as part of a criminal scheme or conspiracy with others. Konstructions says that, on balance, the latter is not available on the evidence as an inference (nor is it available on the pleadings), leaving the former as the only reasonable, rational and legally available inference; and that a finding should be made to this effect. In this connection, it is noted by Konstructions that the Sayour Parties did not serve a tendency notice or seek to rely on tendency evidence, despite the issue being raised in the objections of Konstructions (which were served in advance of the hearing), nor did they serve a coincidence notice. 9. Relevantly, in relation to the assertion of forgery, I note what was said by Brennan J, as his Honour then was, in Brott v The Queen (1992) 173 CLR 426; [1992] HCA 5 (Brott) (at 430-432) and by McHugh J (at 447). In particular, it is relevant to note that at common law there will be no forgery when a signature is placed on a document by a person having the purported signatory's authority to do so. Conversely, the placement of a person's signature on a document without authority to do so might well be capable of amounting to forgery, provided there is the necessary intent to defraud. In the present case, the difficulty I see with the label "forgery" being applied throughout the submissions is that it assumes a particular intention on the part of (at least) Jamil, whereas Jamil's intention may well not have been as sinister. In those circumstances, I think it more appropriate to refer to the relevant signatures as "not genuine" (or, "non-genuine") signatures or "imitation" signatures (and, for that reason, I have generally used that appellation in these reasons). Signing processes within Deicorp (including cheques and accommodation notices) 1. The next matter on which some observations should here be recorded is the evidence and issues concerning the cheque drawing and signing practices within the Deicorp offices. Particularly, the evidence as to the cheque drawing and signing processes within the Deicorp offices (and the process as to the preparation of accommodation notices and other correspondence, such as the Cheque Authorisation Alteration Instruction) was, to say the least, inconsistent. 2. It appears that Mr Deiri first gave evidence as to this issue in his affidavit sworn on 22 August 2019 (see at [157]-[160]), there deposing (at [159]) that: 160. When there were cheques that needed signing, Nola Deiri [Ms Dahdal], the office manager at the time, or Jennifer Lou, my internal accountant, would call him [Jamil] to pick up the cheques. I observed that when Jamil attended, he would collect invoices and cheques which I had signed in respect of partnership expenses which my accounts team had placed in a manila folder, which he would take away for signing by his father and then return later with cheques signed by Plaza. 1. Pausing here, I note that the above evidence does not limit what was placed in the manila folder to cheques, but also refers to invoices being included in the folder and that it appears from this evidence that the usual practice included that Mr Deiri was the first to sign the cheques placed in the folder – relevant insofar as he may not then have seen the second signature placed on at least some of the documents. That evidence also does not in terms address the accommodation notices or, indeed, any document other than the cheques. 2. Mr Deiri also says that he saw Jamil regularly attend Deicorp's head office throughout the Broadway Development (and it does not appear to be disputed that this occurred); and that he would see Jamil going through cheque butts and "quizzing" the internal accountant, Ms Luo, on certain payments. Mr Deiri deposed (see at [179]) that he was not always "across" each cheque that Jamil took to be signed by Moustafa, because his "team" managed this process, and would contact Jamil to come and collect cheques for his father to sign. 3. The Deiri Parties submit that it is not implausible that Mr Deiri did not pay particular attention to the signing of the cheques by the second signatory, emphasising that Mr Deiri was running a substantial enterprise (with dozens of projects) at the time and had "hundreds" of chequebooks. It is said that it is plausible that Mr Deiri was not watching precisely what was done and, in particular, that he was not receiving the cheques back and looking at them and scrutinising them in any way; rather, that the cheques would come back to the office and be sent out. I accept that there is common sense to such a submission (unless, to use common parlance, Mr Deiri operated as a 'micro-manager' in the office, which his evidence – and the contemporaneous documents – does not suggest was the case). 4. The Deiri Parties further say (and, again I accept the logic of this) that there is room for speculation as to the reasons why Jamil would have taken the manila folder away (say, to show his father, or to check the invoices or to explain the expenses to Moustafa) (such speculation presumably being to argue that, if so, the manila folder procedure would not be otiose even if – as is the case – the cheques were not actually being signed by Moustafa). 5. In Mr Deiri's has also given further affidavit evidence about the practice for drawing cheques. 6. Ms Dahdal, who is described as the office manager or office assistant, has given evidence as to the process by which Deicorp dealt with and authorised payment for invoices from creditors. More specifically, Ms Dahdal's evidence is that, for all projects at Deicorp while she was employed, staff sorted the invoices into separate folders for each project; the folders were checked by her to ensure the invoices were in the correct folders; and she would leave the folders containing invoices for payment on Mr Deiri's desk for authorisation. Ms Dahdal has deposed that, initially, once Mr Deiri had authorised relevant payments, she prepared cheques for signing by writing the creditor and amount on the cheque and returning the folder to Mr Deiri's desk for him to sign but that, over time, as she became busier, the accounts team would return the folder to Mr Deiri's desk. 7. Relevantly, Ms Dahdal has given evidence that she often saw Jamil taking the manila folder for the Broadway Development (which she referred to as the "Punchbowl Project") with him. Her evidence was that, generally, Jamil or Mr Deiri would return the manila folder with the cheques to her and instruct her to post them out; and she would then give the folder to the accounts team for them to mail out the cheques. Ms Dahdal said that she did not review the cheques and did not see Jamil signing them. She has deposed in this affidavit that she was not aware that Jamil was signing cheques and that she never saw Jamil signing cheques at all. 8. Ms Dahdal confirmed in a later affidavit this evidence, namely, that she was not actually aware who was signing cheques, and that she never actually saw Jamil sign any cheques. However, presumably by way of explanation of some of the email communications which suggested an awareness on her part that it was Jamil who was signing the cheques (on which Plaza here places no little reliance), Ms Dahdal went on to depose that it was her assumption that Jamil was signing the cheques. 9. The Sayour Parties point to the inconsistencies in the above evidence; the Deiri Parties (to the contrary) maintain that the evidence of Mr Deiri and Ms Dahdal is able to be reconciled. The Sayour Parties also point to aspects of the evidence that it says renders the practice unlikely to have occurred (suggesting that the "pantomime" of placing unsigned cheques in a folder for Jamil to take away would be pointless if Ms Dahdal and/or Mr Deiri were aware that it was Jamil who was signing the cheques). Meanwhile, the Deiri Parties submit (as adverted to above) that Jamil could have been taking the folders away for other reasons. 10. Similarly, CBA submits that it is not very likely that, if Jamil had (by arrangement with Mr Deiri) routinely taken cheques and accommodation notices to Moustafa to sign, there was not one such document ever signed by Moustafa; and argues that the evidence provides no reason or explanation as to why Jamil would go through "such a ritual" and never once ask his father (whom he saw almost every day) to sign a single cheque or drawdown request (noting that there was not suggested to be the slightest obstacle to Jamil having his father sign at any time on any one of his many, almost daily, visits); and says that if Ms Dahdal understood(as she has deposed) that Jamil was a director of Plaza and represented it on the Broadway Development it is not credible that she would "perennially" have sent cheques to be signed by a third party, without apparently ever questioning the need for someone other than Jamil to sign. Again, the Deiri Parties submit there may have been other reasons for Jamil to take the manila folder away from the office. 11. CBA says that it is also implausible that, in respect of "literally hundreds of such documents", Mr Deiri and Ms Dahdal did not ever notice that it was Jamil's (and not Moustafa's) signature that was affixed. I interpose to note that this submission can only go to those cheques recorded in Schedule A to its points of cross-claim and it is premised on at least two assumptions: first, that each was familiar with the Sayour family signatures; and, second, that each scrutinised the cheques on their return (which assumptions are not in my opinion made out on the evidence). 12. Furthermore, the Sayour Parties and CBA rely upon a number of email communications concerning the signing of cheques for the proposition that Mr Deiri (and/or the Deiri Parties) knew that Jamil (and not Moustafa) was signing the cheques (that being the final of the factual findings sought by CBA in its submissions) and, as I understand it, also for the proposition that there was no practice (as Mr Deiri and Ms Dahdal contend) of cheques being taken away from Mr Deiri's office for Moustafa to sign. Those email communications include one or more of the following: the 2 October 2012 email (see at [311] above); the 31 October 2012 email exchanges (see at [315]ff above); the December 2012 communications (see at [322] above); the 30 April 2013 email exchanges (see at [348] above); the 16 May 2013 email (see at [359] above); the email exchanges between 27 and 28 June 2013 (see at [366]ff above); and the 10 November 2013 email (see at [419] above). 13. As to the Cheque Authorisation Alteration Instruction itself, the Sayour Parties maintain that Mr Deiri's evidence that he provided the authority alteration letter "to Jamil to obtain his father's signature" is not credible evidence. The Sayour Parties say, in this regard, that: for the whole of 2012, Mr Deiri had "not been concerned at all" to obtain Moustafa's signatures on cheques and, at least in early instances, on accommodation notices; throughout 2013, "forged" Moustafa signatures had been impressed on cheques and other instruments (including the guarantee purportedly witnessed by Ms Dahdal – as to which, see at [365] in the above chronology), in circumstances where Plaza says Investments "had to be aware that forgeries were occurring"; Mr Deiri had made no attempt to bring the 2013 CBA cheque query (as defined at [340] in the above chronology) to the attention of Moustafa; and, in May 2013 (again, see at [357] in the above chronology), Mr Deiri and Jamil had replaced the Stage 2 Construction Contract at a higher price "without obtaining Moustafa's signature, without telling him, and in full knowledge that he would not have approved it". The Sayour Parties again emphasise in this context the 10 November 2013 email (see at [419] above) in which Jamil stated that he had "lied" to his father (in the context of the price for the Stage 2 Construction Contract having increased); and that Mr Deiri never communicated with Moustafa about that "lie". 14. Further, the Sayour Parties say that Mr Deiri's account of the Cheque Authorisation Alteration Instruction (i.e., that this was proposed by Jamil because he was "tired of running back and forth chasing signatories" – see Mr Deiri's affidavit sworn on 22 August 2019 at [175]) demonstrates that there was no assumption by Investments that Jamil was authorised to sign Moustafa's signature; that CBA's evidence demonstrates that the Cheque Authorisation Alteration Instruction was acted on by CBA with due formality; and that this shows the parties continuing to insist on due formality and authority in the terms of operation of the CBA Partnership Account. 15. Meanwhile, CBA identifies as critical to Investments' position (though the Deiri Parties dispute the significance of any such finding, let alone that such a finding should be made) acceptance of the proposition that Moustafa did sign cheques or accommodation notices and that Mr Deiri believed that the second signature on cheques and drawdown requests was Moustafa's signature (because Jamil took such documents to Moustafa for signing) and that Jamil did not sign them himself. Pausing here, the Deiri Parties' case as to the circumstances in which the cheques were signed does not, as I understand it, go so far as to contend that (contrary to Mr Dubedat's opinion) Moustafa did in fact sign the cheque and drawdown notices. Mr Deiri's evidence, rather, was to the effect that he believed (or, perhaps, just simply assumed) that Moustafa was so doing. Indeed, for example, Ms Dahdal's evidence (ultimately) was that she assumed Jamil was so doing. 16. The Sayour Parties, while contending for a finding that Mr Deiri knew that Jamil was signing cheques, say that this circumstance is not essential for a finding of liability against CBA. Nevertheless, they say (and CBA appears here to accept) that such knowledge is significant for the assertions by way of defence that there was some convention or actual authority for Jamil to have general authority to sign in Moustafa's place. They also say that this is relevant to other claims (including those made in the Seventh Broadway Cross-claim and Eighth Broadway Cross-claim above) and for the partnership accounting as between Plaza and investments. In that regard, the Sayour Parties maintain that, if the partnership were to be held to be bound as against CBA by the cheques and other mandates, then Mr Deiri's knowledge that Jamil was signing mandates would assume significance on the accounting between the partners in respect of the consequences as between them of the partnership being bound to outsiders in respect of transactions not authorised according to the terms of the partners' association. It is said that a partner making unauthorised payments must be chargeable with them in the accounting. 17. The Deiri Parties, in response to the contention by CBA and by the Sayour Parties that Mr Deiri knew that Moustafa was not signing the cheques, say that acceptance of the evidence of Mr Deiri and Ms Dahdal to establish a cheque signing practice (using the manila folder procedure) is not critical to Investments' position (and that such a practice does not form, and has never formed, an element or necessary ingredient of Investments' case). 18. I interpose to note that CBA points, in this regard, to the fact that Investments read the affidavits of Mr Deiri and Ms Dahdal; and says that Investments thereby made this part of its case, arguing that the evidence was no doubt tendered in order to support Investments' contention that Mr Deiri (and thus Investments) was not aware that the cheques and accommodation notices had not been signed by Moustafa. Meanwhile, The Deiri Parties nevertheless say that the issue of the procedure for signing cheques can only be relevant to credit (which I have addressed above). 19. It is again noted that Mr Deiri's evidence is that he never saw Jamil signing cheques and it is submitted that, in those circumstances, it makes sense that Mr Deiri did not know that Jamil was signing cheques. It is said that, if Mr Deiri believed that Moustafa was required to sign cheques, it would not make sense to permit Jamil to sign cheques. The Deiri Parties point to Mr Deiri's acceptance in cross-examination that he did not have a view as to, and was not relying on, the Powers of Attorney to permit Jamil to sign either in his own name or in the name of Moustafa (see, for example, T 1094). The Deiri Parties say that there is no rational explanation for Mr Deiri to know that Jamil was signing cheques that he believed Moustafa should sign. It is said that all that would happen if Jamil was signing cheques improperly would likely have been that CBA would not honour the cheques, which would then mean that one had to go back and reissue cheques which were for legitimate partnership expenses, to pay law firms, and to pay consultants. They maintain that there was nothing to hide and that these were cheques required for day-to-day partnership expenses. It is submitted that there was no reason to take the risk; and hence no reason to disbelieve, Mr Deiri on this matter. 20. Further, it is said that there would be no logical reason for Mr Deiri to make up the fact that he did not know Jamil was signing. It is submitted that, if Mr Deiri had wanted to lie, it would have been easy for him to rely on the Powers of Attorney as a source of authority for Jamil to sign the cheques, but that he did not do that (rather, he said that he believed that Jamil was going away and asking Moustafa to sign). 21. CBA says that the importance of this question lies in its conventional estoppel case (see at below). It accepts that it must establish that all parties to the banking contract, including Investments, proceeded upon the common assumption that Mr Deiri's signature (alone) on cheques and accommodation notices sufficed to warrant payment by CBA, irrespective of the formal documentary requirements. CBA says that it may readily be concluded that Moustafa (and, thus, Plaza) always knew, understood and assumed that CBA was paying out funds without his signature and it maintains that Investments' proposition that Mr Deiri believed that the relevant documents were at all times being signed by Moustafa should be rejected (particularly by reference to the emails referred to at above). 22. Pausing here, it is convenient here to record that I accept that Moustafa knew that funds for the construction were being paid without his signature on any cheques (whether or not he assumed that the funds were coming out of Biomed, as he suggested in cross-examination, there is no suggestion that he signed any cheques for Biomed) and he knew that the proposed development was to be funded by CBA. I accept that he must have assumed that the costs were being funded in some way through the CBA facility (however that was being achieved) and I consider that he must have been prepared to have Jamil manage the process by which that occurred (since he clearly left Jamil to do it). I consider that the most likely explanation for what occurred was that he was prepared to allow Jamil to have the day-to-day role in the payment and receipt of funds in relation to the Broadway Development (as to which, see also my disposition of this contested factual finding at above). 23. Related to the preceding, it is convenient here to record some observations as to the process whereby the accommodation notices were prepared. 24. As has been noted, the only accommodation notice actually signed by Moustafa was the template document that was signed at the time of the documents in relation to the CBA facility (i.e., not strictly an accommodation notice, as such – although possibly it was used for the first drawdown since there is no copy of the first accommodation notice in evidence). I interpose to observe, also, that Plaza here notes that even that notice did not specify the amount in question, nor did it satisfy a number of other essential conditions under the facility; and hence it is said that this notice could not authorise the payment that was made on 29 February 2012 (i.e., the first drawdown under the facility). 25. The second to fourth accommodation notices (dated 26 March 2012, 27 April 2012 and 24 May 2012, respectively each bore a "Jamil" signature and the signature of Mr Deiri. 26. Of the balance, commencing on 25 June 2012 (i.e., as Plaza notes, several months before the first "imitation" Moustafa signature appeared on a cheque – that being on 18 January 2013 before the CBA query on 8 March 2013 as to the Jamil signature on a cheque), each accommodation notice bore a signature of Mr Deiri and an "imitation" Moustafa signature. 27. As I have also adverted to above, many of these accommodation notices contained a misdescription of the relevant companies ("Broad Plaza" or "Broad Plaza Investments", instead of "Broadway") and a misspelling of Moustafa's name ("Mustafa" instead of "Moustafa"). The forensic examiner, Mr Dubedat has concluded that various of the "Moustafa" signatures were applied electronically (some being copies of each other, or from a common source) and that none was genuine. Indeed, Plaza says that visual inspection shows that they are not a very good imitation. 28. The Sayour Parties complain that Investments and Mr Deiri do not provide an explanation for Jamil signing the second, third and fourth accommodation notices; nor do they explain why that practice ceased and thereafter "Moustafa" signatures are uniformly used on the accommodation notices. 29. Again, it is to be noted that Mr Deiri gave evidence that the accommodation notices for drawdowns on the CBA facility were prepared by the use of a pro forma document, signed by Moustafa; and that, as far as he could remember, staff in his office prepared an accommodation notice each time using that pro forma template, and Mr Deiri then emailed it to CBA. However, the Deiri Parties accept that pre-signed template was not used for the second, third and fourth accommodation notices (and that they bear Jamil's own signature). 30. As to the accommodation notice for the first drawdown, Mr Deiri gave evidence in cross-examination that he could only assume that this accommodation notice (a copy of which, as has been noted above, was not in evidence) must have been obtained through the process of leaving it in a manila folder for Jamil to pick up and return signed. As for the second, third and fourth accommodation notices, Mr Deiri accepted that those notices were not prepared using a signed template, and said that they had been prepared using the process of leaving them for Jamil to collect and obtain his father's signature. 31. In relation to the second accommodation notice, Mr Deiri gave evidence that parts of that document bore his writing (the date, the number "2" against "Progress claim no", the date of the quantity surveyor's report and the figures under that date). Specifically, his evidence was that (at T 850.16-21): A. If you would allow me, I prepared a template which was a pro forma template. I may have been incorrect in what I previously said when I said the original - the signatures started from the first one. We did have a pro forma. My recollection, 'cause this was seven years ago, was there may have been a handful that were put in a manila folder to be signed and returned. Then after a handful, I recollect I think we prepared a pro forma with the signatories. 1. Pausing here, the Deiri Parties say that Mr Deiri thereby accepted that his memory may have been incorrect when he said that the pro forma templates were used from the first accommodation notice; and that this was a proper qualification when shown a document that indicated as much some seven years after the fact. 2. Taken to the third and fourth accommodation notices, Mr Deiri accepted that the signatures on those documents appeared to be different manifestations of the same person's signatures (i.e., different signatures, but appearing to be the signatures of the same person). Asked what was the procedure for obtaining signatures on accommodation notices on the first handful of progress claims, Mr Deiri said that it was "[t]he same thing. We had a folder and they would have gone into a manila folder. That would have been returned or given to Jamil" (see at T 851.12). Then, asked as to whether the procedure for signing accommodation notices on the construction loan facility with CBA was the same as the procedure outlined in his affidavit for the signing of cheques, Mr Deiri said (at T 842.45) that the partnership had a template and that when the quantity surveyor put in a report, "we'd fill in the amount and we'd forward it to the bank". 3. Mr Deiri was questioned further on this. Relevantly, he said that there was one accommodation notice (that from memory he thought had been countersigned by himself and Moustafa; and that the "office" would have prepared) and that they used that accommodation notice and had "multiple copies, so when the QS report would come in we'd fill them and send them to the bank" (at T 834.3-4). Mr Deiri said that the accommodation notices were standard notices that they had for every project. Mr Deiri confirmed that when he spoke about making multiple copies, he was speaking of a pro forma template (i.e., not using the same accommodation notice each time), saying that "[i]f you notice the drawdown notice is just a template and it's got the lines and we'd fill in the dates and the amount. It's a pro forma" (at T 843.22-23). 4. As to the above evidence, the Deiri Parties say that some of the accommodation notices appear to have used the same procedure as was used for the signing of cheques (i.e., for the notices to be left in a manila folder for Jamil to collect) in that the earlier notices (again, the second, third and fourth accommodation notices) appear to bear Jamil's own signature, rather than a simulated Moustafa signature; but that Mr Deiri was also correct in giving evidence that there was a pro forma template signed by Moustafa and that there was a replica of Moustafa's signature that was used (see Ex E), that being a document on partnership letterhead entitled "Accommodation Notice" which is in the form of the pro forma at "Annexure A" to the CBA cash facility agreement. The Deiri Parties say that there is no dispute that Moustafa signed this document; noting that there are no amounts there specified (merely a blank line for the amount to be completed). It is submitted that plainly this was intended to be a template for all the drawdowns; and that Moustafa, having signed it, was "entirely content" with that. 5. Meanwhile, the Sayour Parties draw from the above that Mr Deiri has given, successively, two incorrect explanations for the signing of the early notices; and no explanation for the presence of Jamil signatures on the second, third and fourth accommodation notices. It is further noted that the fourth accommodation notice was issued while Moustafa was overseas (as to which, see in the above chronology). 6. Relevantly, to this, the Deiri Parties submit that the confusion that emerged in the evidence (to which Plaza points in its attack on the credibility of Mr Deiri) was most likely explicable as due to an administrative mix-up, so to speak, of some kind; in that they say the staff at Deicorp (for whatever reason) did not use a template in the form that Moustafa had signed to prepare the accommodation notices (but used a different template). An administrative "mix up" in the Deicorp offices as to the use of a different template is also put forward by the Deiri Parties as the explanation for Mr Deiri's evidence that the 22 February 2012 document was not the pro forma template to which he had been referring and that there was another template (which he did not have and that he was not aware Deicorp or Investments still had). 7. The Deiri Parties say the fact that the first three accommodation notices (again, those being the second, third and fourth accommodation notices) were signed by Jamil does not undermine Mr Deiri's evidence as to the manila folder practice; and that none of these documents shows that Mr Deiri knew that Jamil was signing Moustafa's signature. It is said that a close examination shows that at least two of the notices (the third and fourth accommodation notices) support Mr Deiri's recollection that some of the accommodation notices were left for collection by Jamil. 8. In relation to the third accommodation notice dated 27 April 2012, the Deiri Parties say that the ink colour of the Jamil signature is a light blue ink, in a line which they say appears to be a felt-tipped pen; whereas, Mr Deiri's signature is in a dark blue colour in a line that appears to be a ball-point pen. It is said that this supports the proposition that the third accommodation notice was signed using the cheque signing procedure (of leaving the document in a manila folder for Jamil to take away and sign). 9. In relation to the third accommodation notice dated 24 May 2012, on which the ink colour of the Jamil signature is black, whereas Mr Deiri's signature is blue, the Deiri Parties again say that this supports the proposition that this notice was signed using the manila folder cheque signing procedure. 10. Going back to the second accommodation notice dated 26 March 2012, the Deiri Parties say that the ink of Mr Deiri's signature appears darker, but the Deiri Parties accept that it is not possible to tell this with certainty from a simple visual inspection. 11. As adverted to above, Mr Deiri gave further evidence in cross-examination as to this procedure for accommodation notices, including that he would forward the notices by email to the bank and that, when the notices were filled in they were already signed ("[i]t was pro forma that we had prepared") and that the pro forma was signed at the beginning of the project, once only, and every subsequent accommodation notice was a photocopy of a blank but signed pro forma "and we'd fill in the figures and the dates" (see at T 843.47). He said there was no need afterwards to refer any accommodation notice to Moustafa because the quantity surveyor was approving the amount(s) and that "[t]he drawdown notice was just verifying the amount already approved by the quantity surveyor" (see at T 844.1-3). 12. As to the inconsistences and the like which I have just been considering, it is relevantly submitted by the Deiri Parties that Mr Deiri was there referring to the pro forma templates he recalled being prepared; noting that he was not (in the above exchange) referred to the specific accommodation notices (again, the second, third and fourth accommodation notices) and asked about them. It is said that this evidence is not an acceptance by Mr Deiri that he knew that Moustafa did not sign those particular accommodation notices. I accept this submission. 13. The Deiri Parties also say that the evidence shows that there had been a variety of means used to prepare the accommodation notices (as is clear from the preceding, one being that some of the notices had been left for Jamil to sign and return; another being the use of a pro forma template). 14. The Sayour Parties say (and, I accept) that the three categories of information involved in the form of these documents clearly could not be achieved merely by the copying and re-using of a common template by filling in blank spaces. It is noted that they have three different formats, two of which do not involve blank spaces and do have different printed text, which it is said must have been typed in using a word processing programme. Further, it is noted that there is also a different indentation from the margin of the signature block for the cheque alteration letter and the final accommodation notices compared to the progress accommodation notices. The Sayour Parties say that it is not possible that these differences could be produced without some form of cutting and pasting, probably electronic (given the identity of position of the signature block in the cheque alteration letter and the final accommodation notices) and that, insofar as Mr Deiri maintained his denial of any use of the prior signature block to prepare the Cheque Authorisation Alteration Instruction, the Sayour Parties say that this was not a truthful answer. 15. Furthermore, the Sayour Parties point out that, though during cross-examination Mr Deiri gave evidence that these were prepared in Deicorp's office; no pre-signed blank template accommodation notice has been produced in evidence that could have been the pre-signed template for the accommodation notices that Mr Deiri emailed to CBA; that no accommodation notice has been produced for PC 1; and that the notices for progress claim 2 (PC 2), progress claim 3 (PC 3) and progress claim 4 (PC 4) each bears what is said to be Jamil's usual signature above Moustafa's name. The Sayour Parties say that this is inconsistent with Mr Deiri's explanation that a template was sent to Moustafa via the manila folder procedure, for him to sign, and then used when each subsequent draw down notice was filled out. It is said that the signatures for the accommodation notices on PC 2, PC 3 and PC 4 are all clearly Jamil's signatures and that they are "bespoke" (i.e., not copied from a common pre-signed template); and that the pre-signed template procedure was clearly not used for these early notices (a proposition with which I do not understand the Deiri Parties to cavil with). 16. The Sayour Parties further point out that Mr Deiri accepted that he personally emailed the notices to CBA, and that all the notices came to him for that purpose. It is said that he must have seen the signatures of Jamil. It is noted that Mr Deiri accepts that he knew Moustafa did not sign them; that he had recently participated in signing finance documentation with Moustafa (at his office and again at the site in February 2012); and that he had been involved in the project at this stage for a year. It is said that there was no good reason why, at this early stage of the project, Moustafa would not be willing to sign accommodation notices if all was in order, as Mr Deiri suggests was the case. 17. It is also noted that, at this stage of the project, the work was excavation and bulk earthworks; and that Moustafa's evidence is that his expectation was that this work was to be procured and funded initially by Investments. It appears to be suggested that this is the explanation for Moustafa's signature not being obtained on those early accommodation notices (i.e., that he would thereby have realised that the excavation costs were not being funded by Investments). 18. Pausing here, that assumes that Moustafa would have read what he was being asked to sign – which is not an assumption one would readily make having regard to his evidence in the witness box as to the signing of other documents, such as his tax returns. That said, and putting to one side the tenuous nture of the assumption, the argument seems to be that Mr Deiri did not want to run the risk that Moustafa would realise that such costs were not being funded by Investments. 19. The Sayour Parties next point out that subsequent accommodation notices under the First Facility Agreement were also not signed by Moustafa. It is said that cross-examination established that replica signatures were used for some of the later accommodation notices but that it can be seen that the practice was not consistent (that sometimes the signatures and notices use a common form; that the forms change from time to time; and that sometimes the signatures are "bespoke"). While it is accepted that, towards the latter stage of the project in Stage 2, there was a "more consistent" use of a later replica signature, and a later iteration of a template form, the Sayour Parties say that for Stage 1 accommodation notices the pattern disclosed by the evidence was more variable. 20. The Sayour Parties also emphasise the following evidence given by Mr Deiri: as to the production of the accommodation notices, his denial that he had produced the notices and the cheque signatory authority alteration letter by any procedure of cutting and pasting the signature block (whether electronically or otherwise); that he maintained that the cheque alteration letter was prepared, given to Jamil and then came back to Mr Deiri; and that Mr Deiri said that, "I don't pay much attention to this stuff" (at T 867.34). It is further noted that Mr Deiri accepted that the signature block already existed, saying that it was in a "pro forma". 21. As to the Cheque Authorisation Alteration Instruction, it is submitted that the account given by Mr Deiri in his affidavit and repeated in cross-examination (that the letter was prepared, and then given to Jamil to take away for signature by Moustafa) is not a truthful account. It is said that the letter was prepared with copied signatures of both Mr Deiri himself and a purported Moustafa signature on it; and that this is incompatible with any procedure whereby Mr Deiri ever saw the letter without signatures, signed it and then handed it over to be signed by Moustafa. Equally, it is said to be inconsistent with Mr Deiri receiving the letter apparently signed by Moustafa before signing himself. It is submitted that Mr Deiri must have seen that it was pre-signed using copied signatures before he emailed it to Ms Schucroft; that his evidence was false; and that he knew that the document was "a fake" when he sent it. The Sayour Parties place emphasis on the fact that the Cheque Authorisation Alteration Instruction was sent by email and that Ms Schucroft was not told that the signatures on the letter were copies, nor that Moustafa had not personally signed the letter. 22. The Sayour Parties submit that the purported signatures of Moustafa on the accommodation notices throughout Stage 2 were not obtained and applied with his knowledge and consent; and that they were forgeries. Observations and findings re signing processes within Deicorp (including cheques and accommodation notices) 1. As to the issue of the cheque and accommodation notice signing practices, and the knowledge of Ms Dahdal and Mr Deiri in this regard, I accept the force of the submission by CBA, to the effect that contemporaneous documents – such as, here, the contemporaneous emails pointing to the signing of cheques by Jamil, not Moustafa - are more likely to prove the objective facts than the recollections of witnesses at a later time (see, for example, the passages cited by Davies J in The Nominal Defendant v Cordin [2017] NSWCA 6 at [165]-[166] and invoking his Honour's observations at [167] (Emmett JA agreeing, at [156]). However, I do not accept that it follows that all aspects of the manila folder procedure about which Mr Deiri and Ms Dahdal gave evidence ought not be accepted. 2. Rather, when considering the signing of the cheques over the relevant period, it is instructive to put this in the context of the timing of the one occasion on which CBA queried the authenticity of the "Jamil" signature (by the 8 March 2013 email – see at [340] above) and the timing of the Cheque Authorisation Alteration Instruction given in February 2014 (see at [445] above). In this connection, I note the following matters. 3. First, the practice of cheques being signed with Mr Deiri's and Jamil's signatures (i.e., the "Schedule A cheques") appears to have continued for about three months after the 2013 CBA cheque query (again, as defined at [340] above). In other words, the query did not result in an immediate cessation of the practice of using "Jamil" signatures on cheques. This might be explicable by Jamil having signed cheques in advance, and those cheques still being used until there were no pre-signed "Jamil" signature cheques left; or it might simply be an inattention to detail at the relevant time; or it might be a combination of the above; or, indeed, there might yet be some other explanation. I consider that the email communications in relation to cheque signing comfortably lead to the conclusion that there was a practice of a number of cheques being signed in advance – particularly, Ms Dahdal's comment that she thought Jamil had signed "enough" cheques (see above). However, that does not of itself explain why those cheques with the Jamil signature would continue to be used after the CBA query. I suspect that the real explanation is the third of those postulated above – that there was a practice of pre-signing cheques and that there was insufficient attention within the Deicorp office to the signatories on those cheques immediately following the 2013 CBA cheque query. To my mind, it would not have made sense for the "Jamil" signature knowingly to continue to be used after it had already been the subject of one CBA query, as that surely must have been appreciated as something that would potentially only invite further query. 4. Second, the practice of cheques being signed with Mr Deiri's signature and an "imitation" Moustafa signature (i.e., the "Schedule B cheques") appears to have started before the 2013 CBA cheque query (there being five such cheques) and, therefore, this practice cannot have been prompted by (or at least cannot have been solely prompted by) that query, although it may well be that it was the CBA query that shortly thereafter (with some exceptions) led to the cessation of any further use of the Jamil signature. There is, however, no readily apparent explanation as to why Jamil would (prior to the CBA query) have started to sign cheques using his father's signature, rather than his own. 5. Third, the fact that the cheques bearing three signatures (the "Schedule C cheques") all post-date the 2013 CBA cheque query suggests that on those cheques the "imitation" Moustafa signature may have been applied to a cheque already bearing the Jamil signature, perhaps in recognition that (or at least on the basis of a concern that) the "Jamil" signature was not authorised in accordance with the bank mandate or perhaps to pre-empt any further CBA query as to authenticity of the cheques. If so, this would again suggest that some cheques at least were signed by Jamil in advance – since otherwise the placement of his signature as a third signature on the cheques would seem to be both unnecessary and inconsistent with the CBA query having been made about that signature. 6. Fourth, that two of the three "Moustafa" only cheques (the "Schedule D cheques") were drawn before the Cheque Authorisation Alteration Instruction was issued; and similarly a number of the cheques signed only by Mr Deiri (included in the "Schedule E cheques") were also drawn before that instruction was given. There seems no ready explanation for this (and it is difficult to conceive of a reason for this to have occurred prior to the giving of that instruction, leaving aside the difficulty that Moustafa's signature on the Cheque Authorisation Alteration Instruction was not genuine). 7. At the very least, therefore, the practice of drawing cheques seems to have been haphazard. The most consistent feature seems to have been an inattention to detail (again, at the very least) on the part of those in the Deicorp offices responsible for the preparation and dispatch of cheques. 8. CBA maintains (and, I agree) that, in the witness box, Ms Dahdal was unable to explain the references to Jamil signing cheques, if the terms of the emails on which CBA relies did not bear their ordinary, unambiguous meaning. 9. Pausing here, my impression of Ms Dahdal's evidence, reinforced by the casual tenor of her emails, is that it is unlikely that she gave any real thought or consideration as to the capacity in which cheques were required to be, or were, signed; or as to the requirements for the signing of cheques or other documents. That said, the email correspondence to which CBA and Plaza each points makes it most likely, in my opinion, that, to the extent that she did turn her mind to that issue, Ms Dahdal believed that it was Jamil who was regularly signing the cheques or at least some of the cheques. Accordingly, I accept as truthful her evidence as to it being simply her assumption that Jamil was signing the cheques. I very much doubt that she gave any considered thought as to the process by which he was doing this (i.e., whether he was actually taking the cheques home to Moustafa to sign or review, or whether he was just signing the cheques in the office or, indeed, elsewhere). 10. Further, CBA submits (and, again, I agree) that Mr Deiri's evidence that he did not see the chequebooks and that cheques were filled out and given to him to be signed ought not be accepted at face value. CBA says that, while that may have commonly occurred, about one quarter of the cheques drawn on the CBA Partnership Account were in fact filled out by Mr Deiri, as were the corresponding cheque butts (a list of those cheques and cheque butts is annexed as a schedule to CBA's closing submissions). It is said that Mr Deiri must therefore have seen the chequebooks; and that the cheques were not always given to him by others for him to sign. I accept that those conclusions must follow from the fact that a number of the cheques were at least partially filled out by Mr Deiri. 11. As to the cheque signing practice in general, I find as follows. 12. First, I accept Ms Dahdal's evidence that there was a "manila folder procedure" in general for projects within the Deicorp offices, not least since that evidence is consistent with the 30 April 2013 email from Ms Dahdal to Jamil in which Ms Dahdal made reference to leaving cheques to be signed "in the folder on Fouad's desk" (see at [349] in the above chronology). By reference to that email, I can readily accept that there was a practice by which Ms Dahdal (or others in the Deicorp offices) placed cheques for signature in such a folder on Mr Deiri's desk from time to time (whether or not this was a consistent practice is probably not material). I can also readily accept that, from time to time, Jamil may have taken that folder away with him (again, for whatever purpose is probably not here material). That seems to me to be supported by the reference in Jamil's email communications to having reviewed expenses with his father or to having to explain expenses to his father. I would also accept, as not implausible, that the folder would contain not only cheques but the invoices supporting those cheques, as this would be consistent with a sensible procedure (and, indeed, prudent business practice) to enable the signatory of a cheque to verify that the cheque(s) being left for signature corresponded with the invoice(s) relating to the project and therefore was in order to be signed. Accordingly, I so find. 13. Second, and relatedly, I consider that the evidence comfortably establishes that Ms Dahdal assumed that Jamil was signing the cheques (whether she saw him do so or not probably does not matter in the scheme of things) because her email communications are consistent with Jamil being the person who was signing the cheques (telling him to "bring [his] pen" with him, for example) as was Jamil's response (for example, that this "depend[ed] on how many cheques there [were] to sign"). Accordingly, I so find. 14. Third, I have also concluded that the email communications establish that it is more likely than not that there was a practice of blank cheques being signed in advance from time to time (for use by the Deiri staff as and when necessary). There can be no other sensible explanation of the comment in Ms Dahdal's email correspondence (joking as it may have been) that she thought Jamil had signed "enough" cheques. Accordingly, I so find. 15. Fourth, I would accept that, had she in fact turned her mind to it, Ms Dahdal would likely have believed the so-called usual "Jamil" signature to be that of Jamil (since her evidence is that she assumed he was signing the cheques and the signature appears to commence with the letter "J"). It is unknown what she thought (if anything) when the imitation Moustafa signature started to appear on cheques. Again, I rather doubt that Ms Dahdal paid much attention to the detail of the cheque signing process (just as she appears to have paid little attention to what was required in order to witness a document such as the Commercial Deed of Guarantee). As to the witnessing of the deed (see at [365] in the above chronology), it was apparent from her evidence in cross-examination that Ms Dahdal had little or no understanding of the ordinary requirement that a person witnessing a signature should actually see (i.e., personally witness) the signature being appended to the document (i.e., that the document be signed in his or her presence) or otherwise make clear how it is that the witness is attesting to the veracity of the signature in question. However, I do not accept that this means that she was knowingly party to any forgery. Moreover, I would add that Ms Dahdal's knowledge or belief or assumption that Jamil was signing documents such as the cheques is not to the point as she was not the controlling mind of the Deiri Group entities. 16. Fifth, as to Mr Deiri, I accept that the emails he received would have conveyed to a reasonable reader that Jamil was signing at least some of the cheques, or at least that Ms Dahdal thought he was so doing; and I consider that the fact that Jamil was or was likely to have been so doing (for at least one of the cheques) must have become apparent to him when the 2013 CBA cheque query was raised as to the "Jamil" signature. It seems to me to be significant that (for the most part) cheques thereafter bore a "Moustafa" signature (or, in a few cases, three signatures, one of which is a "Moustafa" signature). At that point, if not before, Mr Deiri must surely have realised that the "Jamil" signature was not the same as the "Moustafa" signature. In amplification of my reasons here, I accept that, at an early stage in the partnership arrangements, there may be no basis on which it confidently could be concluded that Mr Deiri was sufficiently familiar with Jamil's signature to notice that it was not Moustafa's signature (although the fact that it seems to have commenced with a "J" and not an "M" would surely have been a reasonable indicator). However, once the 2013 CBA cheque query was raised that must have put Mr Deiri on notice that the signatures were not being applied by Moustafa himself. However, I would add that the fact that Mr Deiri did not immediately, or indeed at all, draw this to Moustafa's attention does not seem to me to be as sinister as the Sayour Parties suggest, since it is consistent with him understanding that Jamil was responsible for administrative issues (as to which, see my disposition above of that factual contest). More problematic is that he did not refer the query to Jamil until after he had confirmed with CBA that it was in order to pay the cheque, but that is a different issue (as is the fact that CBA proceeded without referring the query to Moustafa or anyone from Plaza at all). 17. Sixth, the evidence comfortably establishes (and, I so find) that Jamil (and, not Moustafa) was signing the cheques; that he was initially doing so by using his own regular signature and that, for some unexplained reason at about the time of the 2013 CBA cheque query (but starting, in fact, before that query), Jamil commenced (for the most part) to use a signature which purported to be that of Moustafa (until, in February 2014, Mr Deiri changed the operation of the account so that only one signatory was required to sign cheques – as to which, see again at [445] in the above chronology). 18. Seventh, as for the accommodation notices, I find that Jamil signed the early accommodation notices (specifically, the second, third and fourth accommodation notices) but that, from the fifth accommodation notice, the notices were prepared in the Deicorp offices by use of the application of a signature block of some kind, using a non-genuine Moustafa signature (and that there was a variation, again for some unexplained reason, in the template that was so used, with some of the signature blocks being indented in a manner consistent with them having been applied by way of a "cut and paste" process). 19. Eighth, as to the proposition that Mr Deiri would have noticed that it was Jamil's signature when he sent the accommodation notice of 27 April 2012 to CBA, I accept the submission for the Deiri Parties that Plaza would need to demonstrate that Mr Deiri had seen Jamil's or Moustafa's signature a significant number of times by the time of this accommodation notice, as well as demonstrating that Mr Deiri paid some particular attention to this document (however, as a matter of evidence and/or inference, that might be shown), before that submission could be accepted. I am not able to conclude that Mr Deiri was relevantly familiar with Jamil's signature by this time, nor such other matters, so as to conclude that Mr Deiri noticed that it was Jamil's signature on that accommodation notice. 20. Ninth, as to Mr Deiri's attention to documents or otherwise, I am prepared to accept that it is not implausible that Mr Deiri paid no real attention to the form of the signature on the early accommodation notice(s) when he sent those notices to CBA. The Deiri Parties submit that Mr Deiri gave credible evidence that he did not do so and that he had no reason to be paying such attention, pointing to his cross-examination (at, for example, T 1092.45ff) in which he denied that he had seen on the third accommodation notice that the signature above the name "Moustafa" did not resemble the signatures he had previously seen of Moustafa, saying that this was incorrect because he did not pay attention to such matters and had no reason for doing so. The Deiri Parties say that so much is to be expected "from a busy director of a development company fielding calls and attending meetings all day". It is said that Mr Deiri was occupied attending to a variety of construction projects, he was not spending his time "zealously inspecting signatures" on routine documents and he had no cause to do so. I am prepared to accept that this is the case. It accords with the impression I formed of Mr Deiri in the witness box – as someone who focussed on the big picture, so to speak, and was concerned with getting the building built, rather than the administrative detail by which that occurred. It also accords with the inconsistencies in the use of letterhead and description of companies within the group on the relevant documents. Indeed, I accept that Mr Deiri's view (whether or not that be correct from a legal perspective, or indeed even simply one of prudence, is another matter) was that the accommodation procedure was essentially a formality (i.e., that once the work had been verified, the accommodation notice was "simply mechanical"). In this regard, the Deiri Parties note that, by the time of each accommodation notice, the relevant work had been performed; that the contract had a lump sum price; and that CBA's quantity surveyor (it will be recalled, Mr Hammond) had verified the amount due (the cash facility expressly stipulating that the value of the work was to be assessed by reference to CBA's quantity surveyor). As I say, I accept that this was Mr Deiri's view of the drawdown procedure; whether or not that accorded with the contractual provisions (to which I will come in due course). 21. Tenth, that said, it is clear that Mr Deiri cannot have believed that Moustafa was personally signing any of the accommodation notices that were prepared by use of the template and signature block, and sent out from the Deicorp office without reference to Moustafa. 22. Eleventh, as to the Cheque Authorisation Alteration Instruction, I find that this was most likely prepared in Deicorp's offices using a non-genuine Moustafa signature (and probably by the application of a "signature block" or by use of a "cut and paste" mechanism). The Deiri Parties say that it is obvious that the provision of this document to CBA must have been done with Jamil's knowledge because, on Plaza's case, only one further cheque was signed by Jamil after that date; the rest were signed solely by Mr Deiri (save the one signed only by Jamil in Moustafa's name). It is said that all of the cheques prior to that time, to the extent that they were signed by someone in addition to Mr Deiri, were signed by Jamil either in his own name or in the name of Moustafa. Thus, it is said that it is obvious that Jamil knew there had been a change in practice, and that a second signature was not required. I note that there is logic to this, but it also assumes that Jamil kept a close eye on expenses which may or may not be the case. 23. Twelfth, and following, I am not persuaded that Mr Deiri actually knew that the "Moustafa" signatures on the cheques or the early accommodation notices (again, the second, third and fourth accommodation notices) were "imitation" signatures or that Jamil was signing those notices, but nor am I persuaded that he believed at the time that Moustafa was in fact signing the cheques (and he certainly cannot have believed that Moustafa was signing the later accommodation notices, given his evidence as to the use of the template and his belief that it was not necessary, since there was a pre-signed template, for Moustafa to do so). It is telling, in my opinion, that when CBA queried the Jamil signature on cheque #226 (again, see at [340] in the chronology) there was no communication (certainly no written communication) from Mr Deiri to Jamil either querying how the cheques were in fact being signed or impressing on Jamil the need to have Moustafa personally sign the cheques. 24. Again, most likely, in my opinion, is that Mr Deiri simply did not trouble himself as to how the cheques were being signed as long as they were being honoured by CBA on presentation; and I so find. 25. What follows from that for CBA's conventional estoppel case I consider in due course. The relationship between Moustafa and Mr Deiri 1. It is also convenient at this point to say something about the relationship between Moustafa and Mr Deiri. 2. The Sayour Parties say that Mr Deiri was properly regarded as the person central to the chances that Moustafa would be able to obtain finance and undertake the Broadway Development. They emphasise that Jamil (in the account of events to which Mr Deiri has deposed) stated that he and his father knew nothing about how to build a development of the size of the Broadway Development (which they considered to be too big to undertake alone), that Jamil trusted Mr Deiri (like a "brother") and that Moustafa trusted Mr Deiri and deferred to his experience in matters of construction and finance. 3. The Sayour Parties say that that Plaza and Moustafa depended on Mr Deiri's knowledge and experience and relied on him to protect the interests of both Plaza and Investments. The Sayour Parties point to Moustafa's evidence that that he had insisted that, since Mr Deiri would also be taking profits from the venture, he would have to give a good price to the partnership for construction. 4. The Sayour Parties accept that Mr Deiri and his companies were regarded as successful developers and builders with sufficient experience to undertake the Broadway Development; and they note that, in assessing its risks of financing the Broadway Development, CBA (in its internal "Property Finance Submission" – as to which, see Ex F), considered that the risks of financing the project were "moderate" or "low to moderate"; apparently based on the following matters: the experience of Mr Deiri (described as "adequate for a project of this size and he is well versed in this type of development"). Relevantly here, by comparison, that internal CBA document noted that Moustafa's experience was "considered low for a project of this size and is the reasoning behind his decision to invite Fouad as JV partner, giving comfort to the Bank". Furthermore, that internal CBA document also noted the number of projects undertaken, being undertaken and "in the pipeline" by Deicorp; and also Mr Bennett's long-term knowledge of Mr Deiri and his standing as "a successful builder having completed a number of projects". 5. The Sayour Parties also make reference to the email correspondence in November 2011 between Mr Deiri and his advisors (see at [175]ff above), which include the email of 23 November 2011, sent by Mr Stephen to Mr Deiri and Mr Schachna and copied to Ms Gray, Mr Parras and Ms Wendy Thornton, which appears to record Mr Deiri's instructions as including that his relationship with Sayour was one of "trust and handshake", and from which Mr Deiri, in his response to that email, did not demur. The Sayour Parties submit that the "trust and handshake" expressed to exist between Mr Deiri and the Sayour family was based on a "false premise", pointing to the receipt by Jamil of payments which were undisclosed to Moustafa and Plaza before, during and after the Broadway Development (though what flows from that, on the Sayour Parties' case, is not clear and, at this juncture, need not be determined). 6. At this stage, it is sufficient to note that the proposition that the relationship between Moustafa and Mr Deiri was one in which Moustafa reposed trust and confidence in Mr Deiri's experience can readily be accepted. 7. However, to my mind, it is somewhat inconsistent with this submission to treat the payments made to Jamil (or at his direction) as payments intended to influence Jamil to proceed with the Broadway Development (on the basis that it was Mr Deiri who was seeking to progress the deal) or to accept (at face value, at least) the proposition that Jamil (and, perhaps even, the Sayour interests) might later have been prepared simply to "walk away" from the proposed joint venture with Mr Deiri in respect of the Arncliffe Development. Jamil and his development experience 1. It is also relevant here to say something about the evidence as to Jamil's experience. 2. Konstructions points out that, as at 2010, Jamil was working as a builder's labourer and demolition labourer (which, it says, is menial and unskilled work), referring to the customer opening account statement to Westpac in which Jamil's occupation is identified as being "BUILDER'S LABOURER/DEMOLITION WORKER/CRA ++". Konstructions also notes that there is no evidence of any academic or vocational achievements on Jamil's part prior to that time; and says that one can infer there was no education of note or relevance. It is noted that Jamil had previously been a bankrupt and had been involved in a series of what were suggested by Moustafa to be "commercial misunderstandings". Konstructions notes that Moustafa said in evidence that Jamil had no experience in the building trade; and points out that Jamil had no experience in property development. Moustafa also said in his evidence Jamil was not a wealthy man (and, again, had previously been a bankrupt). 3. Konstructions also here refers to Moustafa's evidence that when he was working at Biomed Jamil was "doing marketing" and that "[h]e do business and accounting. He doing, he pay workers' wages. He paid the suppliers. He paid the contractors…he looking at the management, business and management, ... that's what his job" (at T 346.1-3). Konstructions emphasises that Jamil was placed in a position of high trust and skill at Biomed without any relevant practical training or experience. It is said that it is likely that Jamil was placed in that position by reason, not of his skill and acumen, but solely by reason of his gender and position in the family that arise from cultural factors; and it is said that a finding should be made to this effect and to the effect that it is likely he was elevated beyond his capacity. 4. In any event, Konstructions says that a finding should be made to the effect that Jamil was held out as having authority to represent the Sayour family business interests. In this regard, findings are sought that, while Jamil was actively involved in the Biomed business and (although there is no evidence to establish that he satisfactorily discharged his obligations in that capacity) he may have been able to cope with these tasks adequately, when it came to property development and building, he was "somewhat innocent and naïve". It is said that there is no relevant dispute between the parties on this basic premise; that Moustafa effectively corroborates Mr Deiri on this point (when he asserted that he thought Jamil could be manipulated by other people); and that a finding should be made that Jamil did not have any appreciation of the complexity of property development business. 5. It is submitted that Jamil's conduct demonstrates the subjective opinion of both Moustafa and Mr Deiri as to Jamil's general understanding (or lack of understanding or misunderstanding) of business practices and, in particular, his capacity (or, again, lack of capacity) in property development. 6. Further, it is noted that, as at 2010, Jamil and Moustafa had intended to develop the Broadway Site on their own and then made contact with Mr Deiri. It is submitted by Konstructions that findings should be made that they had an interest in property development but that they needed technical assistance in the development and building process and did not have the technical capacity or experience between them. 7. As to whether Jamil was dishonest, and the emphasis placed by the Sayour Parties on the November 2013 email in which Jamil stated that he had "lied" to his father about a "blow out" in development expenses (see at [419] above), Konstructions argues that (assessed in the context that this "blow out" had arisen from a quantity surveyor's report to be provided to CBA and not from some internal Deicorp reassessment) it is relevant to note that it has not been established that the "blow out" in development expenses was false, or that the claim for those expenses was false. Rather, Konstructions says that it arose from a quantity surveyor's report independent from Deicorp that demonstrated that more moneys were necessary to complete the building works. Konstructions submits that a "blow out" in expenses would not be an unusual occurrence in a complex property development. It says that it is clear that there was a "blow out" in development expenses, and Jamil had been reluctant to advise his father (and Konstructions accepts that Jamil probably had concealed it from him and that he was concerned his father would lose his temper). 8. Konstructions points out that it is not known what the "lie" was, nor the circumstances in which it was said. It is said that, as Jamil had been responsible for representing his father in this transaction, one can understand the embarrassment it may have caused him (as the eldest son with a high degree of trust conferred upon him) to reveal that the development costs had blown out. Konstructions notes that the costs "blow out" was in the order of five per cent of the total building costs. Konstructions says that this statement on its own does not suggest Jamil was a man who was "habitually dishonest"; nor does it suggest Deicorp or Mr Deiri was complicit in any dishonesty. Konstructions says that the reality is building costs were higher than anticipated "which was an immutable fact"; and that, for the building to proceed, the funds would have to be sourced and the costs expended otherwise the building project would be undercapitalised and the development would not proceed to fruition. Konstructions also contends that findings should be made to this effect. 9. As to the submissions made by the Sayour Parties (that Mr Deiri did not tell Jamil to sort the issue out with his father and that Jamil said he would sort it out with his father) Konstructions says this submission was contrary to the evidence. More particularly, Konstructions submits there is insufficient evidence to ground a finding that Jamil was dishonest by nature; and says that there should instead be a finding that Jamil simply was not experienced in business, did not understand usual business practices or considered that they could be dispensed with without recognising the consequences. 10. To my mind, the evidence establishes that Jamil had a lack of experience in relation to property development; but, I do not accept that it discloses that he was "habitually dishonest". I see force to the submission that there is no evidence as to what precisely was meant by "lie" in this context (contrasting for example, a deliberate falsehood with an omission or even a colloquially known "white lie"). Allegations of "bribery" 1. It is somewhat of a misnomer to include the allegations of bribery under the rubric of introductory matters, since these allegations form a central part of the case brought by Plaza (and inform, if not dispose of, a number of matters on which findings are sought). However, I consider it convenient to deal with the bribery allegations at this stage before moving to the particular cross-claims in the Broadway Proceedings. Sayour Parties' submissions 1. The Sayour Parties maintain that, absent full disclosure to Plaza (by which they mean disclosure to Moustafa) of the making of the payments and giving of benefits to Jamil and absent the informed consent of Plaza thereto, all the payments (and pleaded benefits) to Jamil are properly characterised as bribes or secret commissions. In this regard, the Sayour Parties say that the term "bribe", as considered in the authorities, is relevantly indistinguishable from the term "secret commission", referring to the definition of bribes by Slade J in Industries & General Mortgage Company Ltd v Lewis [1949] 2 All ER 573 (Industrial & General Mortgage) at 575 (which was cited with approval by the Full Court of the Federal Court (Finn, Stone and Perram JJ) in Grimaldi v Chameleon Mining (No 2) (2012) 200 FCR 296; [2012] FCAFC 6 (Grimaldi v Chameleon Mining (No 2)) (at [190]): … bribe means the payment of a secret commission, which only means (i) that the person making the payment makes it to the agent of the other person with whom he is dealing; (ii) that he makes it to that person knowing that that person is acting as the agent of the other person with whom he is dealing; and (iii) that he fails to disclose to the other person with whom he is dealing that he has made that payment to the person whom he knows to be the other person's agent. 1. The Sayour Parties say that the first two elements set out in the definition of bribes in Industrial & General Mortgage are here clearly satisfied, noting that each of Deicorp, Mr Deiri and Investments pleads (in its or his defences to the Fifth Broadway Cross-claim) that agreement was reached between Mr Deiri and Jamil directly; and that each of Investments and Mr Deiri positively asserts that Jamil was acting as Plaza's agent or representative concerning the sale of the Broadway Site and the progress of the Broadway Development and admits that Mr Deiri and Investments knew he was so acting. 2. The Sayour Parties note that, in their responses to the bribery allegations, Deicorp and the other associated Deicorp Entities, generally admit the non-disclosure of payment but deny an obligation to disclose; whereas, generally, the Deiri Parties assert that disclosure to Plaza was made because Jamil was its agent and disclosure to him was disclosure to Plaza. 3. Insofar as the Deiri interests rely on the Powers of Attorney as a defence (in effect that Jamil was authorised to receive the payments and that disclosure to Jamil as the agent was disclosure to the principal, the Sayour Parties maintain that this proposition is contrary to: s 12 of the Powers of Attorney Act 2003 (NSW) (Powers of Attorney Act); the common law with respect to powers of attorney; and the authorities that state that the payer is not entitled to rely on the agent to disclose the payment to the principal (referring to SWC v Makucha at [60], and the authorities there cited). 4. Insofar as Investments says that an element in establishing a bribe is that the gift must be intended by the donor and donee to be an inducement to influence the principal (citing as authority for that proposition Emanuel Management Pty Ltd v Foster's Brewing Group Ltd [2003] QSC 2015 (Emanuel Management v Foster's Brewing Group) at [1132] per Chesterman J) the Sayour Parties say that this is contrary to the weight of authority, including the decision in Grimaldi v Chameleon Mining (No 2). It is submitted that this would seriously weaken the rule historically applied as a matter of policy against bribery. The Sayour Parties emphasise that the law acts to deter the payment of bribes. 5. The Sayour Parties say that there is no requirement to prove that there was a corrupt purpose in the making of the bribe (referring to Keogh v Dalgety & Company Ltd (1916) 22 CLR 402 at 418; [1916] HCA 69 per Isaacs, Gavan Duffy and Rich JJ (Keogh v Dalgety)); nor that the mind of Jamil was affected by receiving the payment (referring to Daraydan Holdings Ltd v Solland International Ltd [2005] Ch 119 (Daraydan) at [53]), there being an irrefutable presumption that this in fact occurred (referring to Hovenden v Millhoff at 43); nor that Deicorp knew or suspected the payments would be concealed from Plaza by Jamil (referring to Daraydan at [53]). 6. They also say that it is not necessary that it show that Plaza has suffered any loss or that the transaction was unfair (referring to Peninsula and Oriental Steam Navigation Co v Johnson (1938) 60 CLR 189 at 214; [1938] HCA 16 per Latham CJ (P&O Steam Navigation v Johnson) for the proposition that such a consideration is irrelevant); though it is noted that there is a right to recovery of any such loss (referring to Grant v Gold Exploration and Development Syndicate at 244, 249; Daraydan at [53]). 7. Relatedly, the Sayour Parties say that it will be presumed against the briber that the contract price is "loaded" by the amount of the bribe (referring to Hovenden at 43). Further, they say that it is not necessary for Plaza to establish that the bribes were paid in connection with any particular contract "since a bribe may also be given to an agent to influence his mind in favour of the payer generally (eg in connection with the granting of future contracts)" (see Daraydan at [53]). 8. As to the principles for recovery for bribes, the Sayour Parties identify several possible objects of recovery as a consequence of the payment of bribes, including: the agent in receipt of bribes (such receipts being considered to be as unauthorised profits) (citing Keogh v Dalgety at 418, Phipps v Boardman [1965] Ch 992 at 1018-19); a fiduciary (for example Investments in its position as partner to Plaza), which is in breach of its obligations (citing Chan v Zacharia (1984) 154 CLR 178 at 434; [1984] HCA 36 per Deane J, with whom Gibbs CJ, Brennan and Dawson JJ agreed) (Chan v Zacharia); the payer of bribes (citing Hovenden v Millhoff per Smith LJ at 42; Vaughn Williams LJ at 43; and Romer LJ at 43; Daraydan at a third party volunteer or knowing recipient which obtains a benefit from the breach of the fiduciary obligation, for the profits obtained by it (citing Grimaldi v Chameleon Mining (No 2) at [667]); and a third party who obtains, or third parties who obtain, a benefit from the breach of fiduciary duty where that entity is, or those entities are, an alter ego of the fiduciary, or where the fiduciary and the third party or parties act in concert to obtain mutual benefit or participated in the breach to secure a mutual advantage, where the liabilities of the third party or parties to disgorge will be joint and several with the fiduciary (citing Grimaldi v Chameleon Mining (No 2) at [556], [558]). 9. It is noted that bribers are characterised as third-party knowing participants in the breach of a fiduciary duty (citing Grimaldi v Chameleon Mining (No 2) at [243]-[248]; Daraydan at [54]). The Sayour Parties say that, because knowing assistants of the defaulting fiduciary are liable to account to the person to whom the duty was owed (citing Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 (Michael Wilson & Partners v Nicholls) at [106] per Gummow A-CJ, Hayne, Crennan and Bell JJ; referring to Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 (Consul Development v DPC Estates) at 397 and 408; [1975] HCA 8, citing Barnes v Addy at 251-252), and because a briber is characterised as a knowing participant, it follows that bribers are accountable in the same way. 10. The Sayour Parties note that the standard of conduct to which a third-party assistant is held is equivalent to that of the defaulting fiduciary, referring to the statement of Gibbs J, as his Honour then was, in Consul Development v DPC Estates (at 397) that: If the maintenance of a very high standard of conduct on the part of fiduciaries is the purpose of the rule it would seem equally necessary to deter other persons from knowingly assisting those in a fiduciary position to violate their duty. If, on the other hand, the rule is to be explained simply because it would be contrary to equitable principles to allow a person to retain a benefit that he had gained from a breach of his fiduciary duty, it would appear equally inequitable that one who knowingly took part in the breach should retain a benefit that resulted therefrom. I therefore conclude, on principle, that a person who knowingly participates in a breach of fiduciary duty is liable to account to the person to whom the duty was owed for any benefit he has received as a result of such participation. [Emphasis added] 1. Accordingly, the Sayour Parties submit that the remedies available in respect of bribes and secret commissions generally will include the normal range of equitable remedies: rescission of contract and proprietary remedies (citing Furs Ltd v Tomkies (1936) 54 CLR 583; [1936] HCA 3; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64 at [107]-[108] per Mason J, as his Honour then was (Hospital Products)); and, as against a bribed agent, Grimaldi v Chameleon Mining (No 2) at [582]), declarations of constructive trusts (in respect of both fiduciaries and third parties) (citing Consul Development v DPC Estates at 396-397 per Gibbs J (as his Honour then was) and the authorities cited therein), equitable compensation for breach of fiduciary duty (citing BB Australia Pty Ltd v Danset Pty Ltd [2018] NSWCA 101 at [53], per Barrett AJA with whom Meagher JA agreed) which may be awarded in lieu of rescission or specific restitution (citing Bristol and West Building Society v Mathew [1998] Ch 1 at [17]; [1997] 2 WLR 436;), and an account of profits (citing Michael Wilson & Partners v Nicholls at [106]). 2. It is noted that the liability to account as a constructive trustee may be imposed on a person who knowingly assists in a breach of fiduciary duty and where the person receives or becomes chargeable with trust property or has assisted with knowledge in a dishonest or fraudulent design (citing Consul Development v DPC Estates at 397 and 408, citing Barnes v Addy at 251-252). 3. Insofar as Deicorp Constructions, in its submissions, has referred to a "windfall" gain (and has raised restitutionary claims in the Sixth Broadway Cross-Claim – as to which, see above), the Sayour Parties note that Deicorp Constructions accepts the proposition that, if the contracts were the product of bribes, Plaza would have been entitled to rescind the contracts. The Sayour Parties maintain that, aside from rescission, Plaza is entitled "to such other adequate relief as the court may think right to give" (citing James LJ in Panama and South Pacific Telegraph Co v India Rubber, Gutta Percha and Telegraph Works Co (1875) LR 10 Ch App 515 (Panama v India Rubber) at 526). I interpose here to observe that, in reply, the Deicorp Entities and Deicorp Properties note that the "other adequate relief" to which James LJ there referred was described by Austin J in Aequitas Ltd v Sparad No 100 Ltd (formerly Australian European Finance Corp Ltd) [2001] NSWSC 14 (Aequitas v AEFC) (at [381]-[382]) as including "equitable compensation in a measure designed to restore the plaintiffs to the position they would have occupied had the bribe not been given". 4. The Sayour Parties here emphasise that the briber is accountable for profits or gains, and not merely liable to compensate for losses; and they point to the limitations on recovery of "restitution" for voluntary improvements to land or chattels and on recovery beyond contractual limits (or the limits of any failed contract) for such improvements. Pausing here, as for the restitutionary obligation asserted by Deicorp with respect to the building contract, Plaza repeats its submission as to Sumpter v Hedges [1898] 1 QB 673 (Sumpter v Hedges) and Steele v Tardiani (1946) 72 CLR 386; [1946] HCA 21 (Stelle v Tadiani) – see below). The Sayour Parties also refer in this context to what was said in Laurelmont Pty Ltd v Stockdale & Leggo (Queensland) Pty Ltd [2001] QCA 212 (Laurelmont v Stockdale) by Dutney J (with whom McPherson JA agreed – see at [49]; [53]). 5. In (I interpolate to note, lengthy) reply submissions on the issue of whether intention is a requisite element to establish a bribery allegation in the civil context, the Sayour Parties emphasise the statement from the Privy Council in Attorney General for HK v Reid [2994] 1 AC 324 (Attorney General v Reid) at 330-331 that: Bribery is an evil practice which threatens the foundations of any civilised society … Where bribes are accepted by a trustee, servant, agent or other fiduciary, loss and damage are caused to the beneficiaries, master or principal whose interests have been betrayed. 1. They say, in response to the emphasis placed by the Deiri Parties on what was said in Emanuel Management v Foster's (at [1132]), that in that case (see at [1124]-[1125]) the bribery case failed at the outset for want of proof that anything was ever received by the relevant company directors. It is noted that, while Chesterman J's definition of bribery (prefaced by the words "it seems" (at [1132])) involved an element of intention by both donor and donee to be an inducement to the donee to influence his principal, that statement was obiter; and his Honour expressly cautioned against an attempt at an exhaustive definition of what constitutes a bribe and that it would be unwise to attempt it. 2. It is also noted that his Honour had earlier (at [1130]) referred to the definition (not involving intent) that was given by Slade J in Industries & General Mortgage (at 575); and had observed that that definition had been approved by W B Campbell J in Baker v Palm Bay Island Resort Pty Ltd (No 2) [1970] Qd R 210 (Baker v Palm Bay Island Resort) (see at 220). It is noted that in Industries & General Mortgage (at [1140]) his Honour held that it was not necessary to consider the element of inducement from the donee's point of view because the elements of payment to a fiduciary and knowledge by the donor that it was for the benefit of the fiduciary had not been established. The Sayour Parties emphasise that Slade J's definition was subsequently cited with approval by the Full Court in Grimaldi v Chameleon Mining (No 2) (see at [190]), noting that (at [192]) the Full Court expressly said that "[w]hile secret commissions are often given with the corrupt purpose of influencing, such is not a necessary characteristic of them in civil proceedings" and referred to Daraydan at [53]. 3. The Sayour Parties further note that in Grimaldi v Chameleon Mining (No 2), the Court (see at [188]) said that, "the bribe/secret commission rules are an accepted subset of the general principles relating to conflict of duty and interest and misuse of a fiduciary position". It is said that the argument and decision proceeded on this basis in FHR European Ventures LLP v Mankarious [2015] AC 250 (FHR European Ventures). 4. The Sayour Parties further say that a third party making a secret payment to a known agent with whom it is dealing on behalf of a principal on some open question knows everything needed to know that the agent is putting itself in a position of conflict; and that there is no requirement that the agent must intend to be influenced; rather, it is said that the conflict itself and the tendency of danger that it entails are sufficient to bar the agent from entering into such an arrangement and to be accountable for the benefit thereof if it does. It is submitted that Chesterman J's formula cannot be right with respect to the agent's intention and, if not, then equally it must be sufficient for the payer to know that it is placing the agent impermissibly into a position of conflict. 5. It is noted that Chesterman J was not referred to P&O Steam Navigation v Johnson, where Latham CJ (see at 214) said that the taking of commissions without disclosure to the board was a dishonest act, and Dixon J, as his Honour then was, said (at 251) that the commissions were clearly improper and it was not very material whether the defendant was aware or considered that they were improper. 6. It is said by the Sayour Parties that, if the taking of secret commissions is in itself dishonest, then the giving of them must be equally so. Reference is made to Panama v India Rubber, where James LJ said (at 526) that, "any surreptitious dealing between one principal and the agent of the other principal is a fraud on such other principal cognizable in this Court" and Mellish LJ (at 528) concluded that it was sufficient that the defendants had notice of the agent's conflict and therefore (see at 529) described the arrangement in that case as "morally wrong". 7. Furthermore, reference is made to Boston Deep Sea Fishing and Ice Co v Ansell (1888) 39 Ch D 339 (Ansell) (at 362) where Bowen LJ described as dishonest the practice of an agent taking a commission from the person with whom he was dealing on behalf of his master without disclosing the same to the master. It is noted that this passage was strongly endorsed by the High Court in Keogh v Dalgety at 418; and that, in Ansell (at 363) Bowen LJ went on to say that it was "of itself, to be beyond all dispute a violation of the confidential relation and a breach of faith towards the master". 8. It is noted that (at [1129] and [1131]) in Emanuel Management v Foster's, Chesterman J also referred to the test formulated by Austin J in Aequitas v AEFC (see at [370]), the second element of which was that, "[t]he gift relates to the fiduciary's position in the sense that it is an inducement to the fiduciary to use his … position in a particular way"; and that, in Aequitas v AEFC (see at [372]-[375]), Austin J found that element satisfied in the case of one payment, but not satisfied in the case of a later payment (by which time there remained no open question), setting out circumstances of an objective character, and spoke (at [372]) of the one as that it was an inducement and (at [375]) of the other as not capable of being an incentive. 9. The Sayour Parties again refer to what was said in SWC v Makucha (at [59]) namely that, "[a] secret payment made to an agent of a person with whom the payer is dealing, or proposes to deal, when the payer knows that the payee is acting as agent, is, for the purposes of the civil law, a bribe. It requires no proof of corrupt purpose…". 10. The Sayour Parties also point out that Slade J's definition in Industries & General Mortgage v Lewis was followed and applied by Vickery J in Indeco Pacific Pty Ltd v Geneva Investments Pty Ltd [2012] VSC 621 (Indeco Pacific v Geneva Investments) (see at [83]-[84]); and that there (at [85]) Vickery J held that, "once a bribe is established, there is an irrebuttable presumption that it was given to induce the agent to act favourably to the payer and thereafter unfavourably to the principal". 11. The Sayour Parties submit that the Deiri Parties' submission concerning the Hovenden v Millhoff definition is not easy to reconcile with Romer LJ's statement in that decision that the Court will not enquire into the donor's motive in giving the bribe. It is submitted that the Lord Justice would not be taken to have intended inconsistent expressions on the same page and that the words "with the view of inducing" are to be understood as something less than a corrupt motive and in line with the concept of knowledge that there is a question open between the donor and the agent's principal. The Sayour Parties also note that the Lord Justice expressly prefaced the definition with the caution that he was not attempting to be exhaustive. 12. The Sayour Parties note the observations of the Hon P D Finn in Fiduciary Obligations (1977, Lawbook Co) (Fiduciary Obligations) that (at [502]), for a payment to be a bribe it is not essential either that it be a gift or that it be handed over with some manifestly corrupt purpose in mind (reference there being made, inter alia, to Fouche). It is noted that, in Fouche, the chairman of a public trust corporation (who was a solicitor by profession) negotiated a loan to Fouche that was held to be in breach of trust by the corporation because it was a speculative and hazardous investment. The chairman had acted as solicitor for the borrower in relation to the transaction and charged Fouche for his professional services. The High Court said (at 630) that the gross impropriety and illegality of the transaction was obvious. It was said (at 637-638) that it was an answer at law to Fouche's action on the deed of loan that the progress certificates on which he claimed the Board was liable to make a further advance did not comply with the requirements of the deed of charge. The chairman was held (at 640) to be personally liable to make good any loss because he had authorised payments on previous progress certificates, none of which had complied with the requirements of the deed of charge, so that all of the payments had been made without authority. The Sayour Parties contend for findings of this kind in the present case in relation to the claims of Deicorp and, in the event that these payments are not recoverable from CBA, as pointing to the liability of Investments and Mr Deiri. 13. The Sayour Parties further note that in Fouche (see at 642-643) their Honours rejected a defence by Fouche that he could not be ordered to repay the money advanced before the time permitted by the deed of charge, finding that the deed of charge was not binding on the fund board and that Fouche was not in the position of a bona fide purchaser for value without notice; and that equity could undo "the whole indefensible transaction" (a finding said to be relevant to the defences of Konstructions and Zapphire in the present case – as to which see below). 14. Reliance is also placed on the commentary by Professor Finn (at [506], citing Eden v Ridsdale's Railway Lamp & Lighting Co (1889) 23 QBD 368 (Eden v Ridsdale's) at 372 and Parker v McKenna (1874) LR 10 Ch App 96 at 118 (Parker v McKenna)) that: The intention with which a payment is made to a fiduciary and the knowledge in which he receives it, are, as a general rule, irrelevant to the question whether or not that payment should be characterised as a bribe. A concealed payment attracts the taint of bribery solely from the circumstances in which it was made. If it has been promised, made or earned while a course of dealing is being effected or projected between the donor on the one hand and the fiduciary or his beneficiary on the other, it will be a bribe. 1. The Sayour Parties submit that the above cases support the proposition that there need be no intent by the maker of the payment to influence the payee. It is noted that in Eden v Ridsdale's (at 370-371) Lord Esher MR refused to make a finding that the relevant gift was made on an understanding that the company's director was to betray his trust and act favourably to the giver, saying that "[i]t was not that he intended to defraud his principals, but he put himself in a position of temptation to do so" and this was held to be a wrong and "a position which the law does not allow an agent to assume"; with which Lindley, as his Lordship then was, and Lopes LLJ agreed. It is noted that Eden v Ridsdale's was referred to with approval in FHR European Ventures (see at [19]). 2. The Sayour Parties also note that, in Parker v McKenna, directors of a bank entered personally into executory contracts to purchase shares from a party with whom the bank was contracting; and that (at 118) Lord Cairns LC said that "[n]o man can in this Court, acting as an agent, be allowed to put himself into a position in which his interest and his duty will be in conflict" holding the directors accountable for the profits made (whilst, at 119-120, eschewing any finding of bad intention). 3. Reference is also made to the commentary by Professor Dal Pont (G E Dal Pont, Law of Agency (3rd ed, 2013, LexisNexis) (Law of Agency) at [12.12]) after referring to Daraydan v Solland, that: Bribery is therefore not premised on proof that the payment induced a contract between the principal and the donor. To focus on the possible outcome of the payment, it has been judicially said, 'is to misapprehend the key distinguishing feature of a corrupt payment, namely that the making of it gives rise to a conflict of interest on behalf of the agent.' (Petrotrade Inc v Smith [2000] 1 Lloyd's Rep 486 at [17] per David Steel J) The reasons for the law's approach in this regard are twofold: it would otherwise prove almost impossible to ascertain the effect of the bribe; and the real evil is not the payment of the bribe but the secrecy attending it. (Shipway v Broadwood [1899] 1 QB 369 at 373 per Chitty LJ) 1. Insofar as the Deiri Parties (at [1144] of their closing written submissions), submit that "a donor could with innocent intentions confer a gift on an agent hoping that the agent would engage the donor in work for the principal, and the donor may consider this to be in the principal's interests", the Sayour Parties say that it can never be the situation that the donor's belief as to the principal's benefit is relevant to a consideration of whether or not there is a bribe; and that such a rule would undermine the whole law of bribery, which has been repeatedly emphasised to have a strictness that on public policy grounds is not to be weakened. 2. Insofar as the Deiri Parties' submission is that an intention to influence must be proven in order to prove that a payment or benefit has the character of a bribe, the Sayour Parties say that this amounts to a submission that corrupt purpose must be proven and that this is contrary to the authorities that make clear that no such purpose need be proved (it is presumed). Further, the Sayour Parties say that it is contrary to emphatic statements in the authorities that the making of a secret payment to an agent with whom the donor is dealing on behalf of the principal is, by itself, dishonest and reprehensible. 3. Insofar as the Deiri Parties dispute that the payer of a bribe can be accountable for profits and assert that Plaza is not entitled to equitable compensation at all because by keeping its own share of the profits of the development Plaza has retained the benefit of the payment (which "payment" the Sayour Parties understand to refer to the alleged bribes), the Sayour Parties say that this submission must be rejected. They maintain that it is not the law that a victim of bribery must give up that which he has, nor that he must be fortunate enough to discover the bribery whilst rescission is still possible. 4. It is submitted that, if that submission were correct, rescission would be the only relief potentially available against a briber; whereas the established law is that the ordinary remedies in respect of both recoupment of losses and accounting for gains are available against all parties involved in bribery, both the agent and the payers (it being noted that there has been no claim by any cross-defendant in respect of just allowances). It is said that these remedies will include recovery of the amount of the bribes against both recipient agent and the payers. Deiri Parties' submissions 1. As to the bribery allegations, in general, the Deiri Parties accept that, if a gift is made to a confidential agent with the view of inducing the agent to act in favour of the donor in relation to transactions between the donor and the agent's principal, and that gift is secret as between the donor and the agent (i.e., without the knowledge and consent of the principal), then at law the gift is a bribe (referring to Hovenden v Millhoff at 43 per Romer LJ). However, they maintain that it is necessary that the gift be intended by the donor, and made, to be an inducement to the donee to influence his or her principal (relying upon Chesterman J in Emanuel Management v Foster's Brewing Group at [1132]). 2. The Deiri Parties maintain that there were no gifts to Jamil; rather, that the payments were to Plaza, in respect of obligations owed by Investments. It is submitted that the characterisation of payments in discharge of genuine obligations as bribes, simply because Jamil received the cheques on Plaza's behalf, "lacks common sense". 3. It is said that this is especially so in circumstances where (as is alleged is here the case) the agent is authorised to receive the very payment impugned as a bribe. The Deiri Parties argue that, where an agent is authorised to receive payments on the principal's behalf and to give directions to a third party about where to make the payment, the fact that a third party makes those payments cannot be said thereby to confer a benefit on the agent. 4. Alternatively, the Deiri Parties say that that the required element of non-disclosure to the principal is not here established. Again, they accept that, as a general proposition, a donor who pays a gift to an agent runs the risk that the agent does not disclose it to the principal (referring to Logicrose v Southend United Football Club at 1260-1262), but they say that it is an entirely different situation when the agent is authorised to receive the payment said to be a benefit. 5. It is noted that the law generally imputes to a principal knowledge relating to the subject matter of the agency which the agent acquires while acting within the scope of authority (citing Angelina Spina v Permanent Custodians Ltd [2008] NSWSC 561 (Angelina Spina v Permanent Custodians) at [106] per Hammerschlag J and Permanent Trustee Australia Company Ltd v FAI General Insurance Company Ltd (2001) 50 NSWLR 679; [2001] NSWSC 20 at [88]-[89] per Handley JA, with whom Meagher and Powell JJA agreed). It is said therefore that, since Jamil was acting within his authority in directing where to make the payments and in receiving the cheques on Plaza's behalf, that knowledge is imputed to Plaza (and hence the payments were relevantly disclosed). 6. The Deiri Parties also contend that the requirement of non-disclosure is also not established because Moustafa knew that the payments in respect of the land contract and the partnership contributions were being made and received and managed by Jamil. In those circumstances, it is said that the element of non-disclosure is not made out, because Moustafa in fact knew about the payments. 7. Further, it is submitted that Jamil did not as a matter of fact actually receive the payments that were made into the bank accounts under Plaza's control (those including all of the payments made into the Westpac #202 Account, the Westpac #238 Account, and the Moulikyah Account). 8. Finally, although they say it is unnecessary to resist Plaza's claims, the Deiri Parties submit that intention to induce the agent is an element of a bribe, though they accept that it is not necessary to show a corrupt motive or subjective intention to defraud the principal. It is said that Plaza has not pleaded any such intention. In that connection, I interpose to observe that Plaza sought during cross-examination to put questions to Mr Deiri about intention, but an objection was made on the basis that intent had not been alleged (see at 1031.36ff) 9. As to the requirement to establish an intention to influence the agent by conferring a benefit on the agent, the Deiri Parties say that this is consistent with the exposition on bribes in Hovenden v Millhoff (see above). 10. They accept that the rationale behind the law of bribery is the protection of principals; that a principal needs the disinterested advice of his or her agent and is entitled to be confident the agent will act wholly in the principal's interests; and that allowing a third party dealing with the principal to confer benefits on an agent may produce a corrupting influence. However, they maintain that intention to influence the agent is required, referring to what was said by Romer LJ (at 43) and to the statement by the Privy Council in Attorney-General v Reid (at 330), that a bribe is "a gift accepted by a fiduciary as an inducement to him to betray his trust". Reference is also made in this context to the reference by Austin J in Aequitas v AEFC to the definition of a bribe in Hovenden (which included the element of the gift being "with the view of inducing"), and his Honour's observation that, once the giving of a bribe in that defined sense is shown, then it is unnecessary to demonstrate a "subjective intent to defraud" (see at [367]-[370]). It is said that Austin J's reference to the gift needing to relate to the fiduciary's position also supports the proposition that the benefit must be intended to induce the agent. Further, in this context, the Deiri Parties place reliance on what was said by Chesterman J in Emanuel Management v Foster's Brewing Group (at [1131] – see above). 11. Insofar as Plaza relies (for the proposition that an intention to induce the agent by the conferral of a benefit on the agent is not required to establish a bribe) on SWC v Makucha, the Deiri Parties say that (although White J, as his Honour then was, said in obiter at [59] that proof of corrupt purpose was not required) a corrupt purpose is not necessarily the same as an intention to induce the agent to act in a certain way by the conferral of the benefit. They say that a donor could, with innocent intentions confer a gift on an agent hoping that the agent would engage the donor in work for the principal, and the donor may consider this to be in the principal's interests. That may be contrasted with a situation where a donor confers a gift on an agent with the intent that the agent will negotiate more favourable terms, which would not be in the principal's interest and would only be in the donor's interests. 12. In this regard, it is emphasised that Austin J in Aequitas v AEFC said there was no need to show a "subjective" intent to defraud; and, the Deiri Parties submit that the reference in SWC v Makucha to a "corrupt purpose" (see at [59]) should be read as a motive of that nature. It is submitted that that reading is supported by the fact that his Honour cited Hovenden v Millhoff for the proposition about a corrupt motive, where Romer LJ required there to be a gift "with the view to" inducing the agent, but said that once a bribe was shown, one did not need to examine the reasons behind the bribe any further. As such, it is said that a donor who did give a gift intending to induce an agent cannot be heard to say that he intended no harm to the principal. 13. It is submitted by the Deiri Parties that the other case cited in SWC v Makucha, Keogh v Dalgety, is not directly on point, because it dealt with the situation of an agent receiving profits without disclosing them to the principal and it did not involve a claim of civil bribes. 14. Insofar as Plaza further relies on Grimaldi v Chameleon Mining NL (No 2) (at [192]) – see above), the Deiri Parties say that the Court there did not undertake an analysis of the cases relied upon by the Deiri Parties in their submissions in the present case, nor did it examine the scope of the "corrupt motive" said to be required. They say that a corrupt motive could mean an intent to induce, or it could mean an intent to induce to the principal's detriment. 15. Alternatively, the Deiri Parties submit that an intention to induce the agent is a presumption, such that Plaza is not required to prove intent but it is rebuttable. They say that such an approach serves to afford protection to the principal, while allowing the donor the opportunity to prove that the benefit was conferred for some legitimate, genuine purpose and not with a view to inducing the agent. It is submitted that this approach finds tacit approval in the rejection of the notion of an irrebuttable presumption as to intent in Laurelmont v Stockdale at [53] per Dutney J (with whom McPherson JA agreed). 16. The Deiri Parties say that, on that basis, the bribes claims should not be upheld, because there was no payment made, in the words of Romer LJ in Hovenden (at 43), "with the view of inducing the agent to act in favour of the donor in relation to transactions between the donor and the agent's principal". If there is a presumption of intent, it is submitted that Investments has rebutted that assumption because it clearly made the payments for the purposes only of genuine obligations owed to Plaza. The Deiri Parties say that Investments and Mr Deiri had every reason to ensure that those debts were properly paid; otherwise, Investments would have a liability to Plaza for the outstanding purchase price under the land contract and for the partnership distributions. It is submitted that, on any view, those payments were not made with the intention that Plaza would be required to show in order to demonstrate a bribe at law. 17. The Deiri Parties accept that a third party who pays or promises the payment of money knowing it to be to the personal benefit of the agent cannot rely on an assumption that the agent would disclose the payment to the principal (referring to SWC v Makucha at [60]) and that, if it is established that there is a bribe at law, then there is a presumption that the agent was influenced by the bribe. However, again, they maintain that there is no irrebuttable presumption that non-disclosure to an agent, without more, is a bribe (and they argue that if that were the case then solicitors receiving funds to trust accounts for clients every day would be deemed to have received bribes). They maintain, as noted above, that the correct principle is that (while it is unnecessary to show an intention to defraud the principal or a corrupt motive – citing Aequitas v AEFC at [367]-[369]) it is necessary to establish that the payer had a particular intention when making the payment (i.e., that it was done with a view to inducing the agent). Deicorp Entities' submissions 1. As to the bribery allegations, the Deicorp Entities position is generally as follows. 2. The Deicorp Entities (see at [576] of their defence to the Fifth Broadway Cross-claim) plead a number of payments totalling $8 million that it is alleged were made by or on behalf of Investments. They maintain (as do the Deiri Parties) that those payments comprised the consideration required for half ownership of the Broadway Site. They say that the core issue (insofar as Plaza contends that those payments, together with various other transactions, amount to bribes) is whether, by making the payments in the manner in which it did, Investments satisfied its obligation to pay for a 50% interest in the Broadway Site. The Deicorp Entities nevertheless submit that, even if those payments did not result in a satisfaction of Investments' obligation to pay for its 50% share of the Broadway Site, it does not follow that they can be characterised as "bribes" (cf as pleaded at [530]-[542] of the Fifth Broadway Cross-Claim). 3. As to other of the payments (referred to at [48]-[278] of the Fifth Broadway Cross-Claim), the Deicorp Entities maintain that they were for proper purposes and did not constitute bribes (for example, referring to various payments that it is said constituted distributions to Plaza of partnership profits attained from the Broadway Plaza Development). . 4. Insofar as Plaza seeks to avoid the entirety of the respective construction contracts (see prayers 41 and 50 in the Fifth Broadway Cross-Claim, in respect of the Stage 1 Construction Contract and the Stage 2 Construction Contract) and to recover the entirety of the payments already made to Deicorp pursuant to those contracts on the basis of the allegation that the construction payments were bribes (see prayer 57), the Deicorp Entities say that there is no evidence to support the conclusion that those payments constituted, or were intended to be, bribes. They point out that the construction contracts resulted in a significant development upon the Broadway Site, in respect of which Plaza was a 50% owner and that the construction and sale of the Broadway Development resulted in the ability of the Broadway Partnership to discharge its loan repayment obligations to the CBA and also to derive profits. Determination of "bribery" allegations 1. As may be observed, anterior to the bribe allegations is dispute concerning the relevant meaning of a "bribe" and the elements that must be established in making out such claims (and, subject to such findings, the remedial consequences that follow). More particularly, there is in issue whether there is any intention element, or elements, in relation to the bribery and related claims. For example, it may be observed that the tort of conspiracy involves an element of relevant agreement between the alleged conspirators (see Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678; [2004] NSWCA 140) (Fatimi v Bryant). Meanwhile, it may be argued that, in a bribes case, mere knowledge on the part of the payer that the payee was acting as agent of their wronged principal suffices to make the payer liable as a "briber", unless the full and informed consent of the principal has been sought and obtained. 2. In that regard, I accept that the term "bribe" is relevantly indistinguishable from the term "secret commission" (see, for example, the statement of Slade J, as the Lord Justice of Appeal then was, in Industries and General Mortgage (at 575): … [A] bribe means the payment of a secret commission, which only means (i) that the person making the payment makes it to the agent of the other person with whom he is dealing; (ii) that he makes it to that person knowing that that person is acting as the agent of the other person with whom he is dealing; and (iii) that he fails to disclose to the other person with whom he is dealing that he has made that payment to the person whom he knows to be the other person's agent. 1. As has been noted above, this passage was cited with approval by the Full Federal Court in Grimaldi v Chameleon Mining (No 2) (see at [190]). 2. Relevantly, it is to be observed that Slade J did not there articulate any element of intention to influence the payee of the alleged bribe. Again, the Sayour Parties say that, having regard to the pleaded case by Mr Deiri and Investments, the first two elements in Industrial and General Mortgage are satisfied (it being noted by Plaza that Investments and Mr Deiri positively assert that Jamil was acting as Plaza's agent or representative and further admit that Mr Deiri and Investments knew of that fact – as to which, see my factual disposition of those allegations at above). 3. Meanwhile, the Deiri Parties' position as to when the law will treat a payment as a bribe, at least vis-a-vis the claims which I am here considering, may be stated as follows: the alleged bribe must be offered to the agent with the view of inducing the agent to act in favour of the payer in relation to transactions between the payer and the agent's principal; the alleged bribe must be accepted by the fiduciary agent; and, the alleged bribe must be secret as between the payer and the agent (i.e., without the knowledge and consent of the principal) (see particularly Hovenden v Millhoff at 43 per Romer LJ; consider also Attorney General v Reid at 330 (Reid)). 4. I accept – indeed, I think it beyond argument – that a policy undergirding this area of the law is a need to deter the payment of bribes and other such corrupting behaviours. As Lord Templeman said for the Privy Council in Attorney General v Reid (at 330-331): Bribery is an evil practice which threatens the foundations of any civilised society … Where bribes are accepted by a trustee, servant, agent or other fiduciary, loss and damage are caused to the beneficiaries, master or principal whose interests have been betrayed. 1. Similarly, there is the rationale of protection of principals and the need for the principal to have the disinterested advice, and assistance, of his, her or its agent – the principal being entitled, by policy of the law, to be confident the agent will act wholly in the principal's interests. In this regard, I accept that allowing a third party dealing with the principal to confer benefits on an agent may be productive of a corrupting influence. 2. Indeed, such a policy and normative concern underpins a conception of the substantive legal rule as not requiring it to be proven that the alleged payer did in fact seek to influence, by paying the alleged bribe, the payee. Likewise, such a policy and normative concern also underpins a conception that it not be necessary to prove that the alleged payer did, in fact, have a corrupt purpose in so paying. Similarly, such a concern coheres with the operation of presumptions – including irrebuttable presumptions – as to the fact of the payee having been influenced by the alleged bribe. 3. In this connection, as noted, the Sayour Parties point out that the Full Court in Grimaldi v Chameleon Mining (No 2) said (at [188]) that "the bribe/secret commission rules" are an accepted subset of "the general principles relating to conflict of duty and interest and misuse of a fiduciary position". They also note that bribers are characterised as third-party knowing participants in the breach of a fiduciary duty (citing Grimaldi v Chameleon Mining (No 2) at [243]-[248]; Daraydan at [54] – see above). 4. Before turning to consider ad seriatim the possible, contested 'elements' of the (or, indeed a) bribery claim, I set out the following from the authorities in this area. It is convenient to excerpt from several of those judgments. 5. I have referred above to the definition of "bribes" in Industrial and General Mortgage. Specifically, Romer LJ said in Hovenden v Milhoff (at 43) that: It may be therefore well to point out what is a bribe in the eyes of the law. Without attempting an exhaustive definition I may say that the following is one statement of what constitutes a bribe. If a gift be made to a confidential agent with the view of inducing the agent to act in favour of the donor in relation to transaction between the donor and the agent's principal and that gift is secret as between the donor and the agent – that is to say, without the knowledge and consent of the principal – then the gift is a bribe in the eye of the law. If a bribe be established to the court's satisfaction, then certain rules apply. Amongst them the following are now established, and in my opinion, rightly established, in the interests of morality with the view of discouraging the practice of bribery. First, the court will not inquire into the donor's motive in giving the bribe, nor allow any evidence to be gone into as to the motive. Secondly, the court will presume in favour of the principal and as against the briber and the agent bribed, that the agent was influenced by the bribe; and this presumption is irrebuttable. Thirdly, if the agent be a confidential buyer of goods for his principal from the briber, the court will assume against the briber that the true price of the goods as between him and the purchaser must be taken to be less than the price paid to or charged by, the vendor by, at any rate, the amount or value of the bribe. [Emphasis added] 1. Pausing here, it is noted by the Sayour Parties that in the above extract the articulation of the rules that would follow if a bribe were established did not there involve an identification of the elements of a bribe (those having already been set out) and hence it is said that this passage does not support the proposition that it is necessary to establish an intention to influence the agent. 2. In Attorney General v Reid, the Privy Council said (at 330): A bribe is a gift accepted by a fiduciary as an inducement to him to betray his trust. A secret benefit, which may or may not constitute a bribe, is a benefit which the fiduciary derives from trust property or obtains from knowledge which he acquires in the course of acting as a fiduciary. A fiduciary is not always accountable for a secret benefit but is undoubtedly accountable for a secret benefit which consists of a bribe. 1. In Aequitas v AEFC, Austin J said (at [369]): 369. Once the giving of a bribe, in this sense, is shown, it is unnecessary to establish a subjective intent to defraud: T Mahesan S/O Thambia v Malaysia Government Officers' Co-operative Housing Society Ltd [1979] AC 374, 383. According to Romer LJ in the Hovenden case, if it is shown that a bribe has been given, the Court will not inquire into the donor's motive, and will presume irrebuttably in favour of the principal and against the donor and the agent bribed, that the agent was influenced by the bribe. … 1. His Honour noted (at [370]) that, put together, the three elements that for the purposes of that case emerged as the elements of a bribe (that a donor makes a gift to a fiduciary; that the gift relates to the fiduciary's position, in the sense that it is an inducement to the fiduciary to use his or her position in a particular way; and that the gift is secret between the donor and the fiduciary, in the sense that the principal is not aware of it) gave rise to an undisclosed conflict of interest (citing Panama v India Rubber at 530-531 per James LJ and 533 per Mellish LJ)). 2. As to the question whether intention is required to be established, and the reliance placed by various of the parties on the judgment of Chesterman J in Emanuel Management v Foster's Brewing Group, it may be noted that, after a review of the authorities (including Logicrose v Southend United Football Club, Attorney-General v Reid [1994] 1 AC 324 and Aequitas v AEFC, his Honour identified the four "necessary elements" of establishing a bribe (at [1132]), such elements having differing importance depending on the facts and circumstances of the particular case. His Honour said (at [1131]-[1132]): 1131. The elements common to the two definitions are that there be a gift to a fiduciary which is secret in the sense that the fiduciary's principal is unaware of the gift. Slade J required also that the payment be made with the knowledge that the recipient was the agent 'of the other person with whom he was dealing.' This is implicit, no doubt, in Austin J's second element that the gift be an inducement to the fiduciary. There could hardly be an inducement if the payer is ignorant that the payee is a fiduciary and is in a position to influence his principal. That leaves as the only difference the requirement that the payment be made to induce the agent to act in favour of the donor. Inducement formed part of Lord Templeman's definition when speaking for The Privy Council in Attorney General for Hong Kong v Reid [1994] 1 AC 324 at 330: A bribe is a gift accepted by a fiduciary as an inducement to him to betray his trust. That definition speaks of inducement from the perspective of the dishonest fiduciary. The judgment of Romer LJ in Hovenden & Sons v Millhoff (1900) 83 LT 41 at 43 speaks of inducement from the perspective of the donor: It may, therefore, be well to point out what is a bribe in the eyes of the law. Without attempting an exhaustive definition I may say that the following is one statement of what constitutes a bribe. If a gift be made to a confidential agent with the view of inducing the agent to act in favour of the donor in relation to transactions between the donor and the agent's principal and that gift is secret as between the donor and the agent – that is to say, without the knowledge and consent of the principal – then the gift is a bribe in the view of the law. 1132. It is apparent that no court has attempted an exhaustive definition of what constitutes a bribe. It is unnecessary, and would no doubt be unwise, for me to attempt that task. The authorities seek to establish four elements which are necessary to constitute a bribe. Depending on the particular circumstances one or more of them is likely to be important in determining whether, in the particular case, there has been a bribe. It seems there must be: (a) A gift of money or money's worth to an agent/fiduciary. (b) The gift is intended by donor and donee to be an inducement to the donee to influence his principal. (c) That the donor knows the donee is the agent/fiduciary of the principal with whom the donor is dealing. (d) The gift is secret i.e. not disclosed to the principal of the donee. [Emphasis added.] 1. In SWC v Makucha, White J, as his Honour then was, having said earlier in obiter (at [59]) that: 59. ... A secret payment made to an agent of a person with whom the payer is dealing, or proposes to deal, when the payer knows that the payee is acting as agent, is, for the purposes of the civil law, a bribe. It requires no proof of corrupt purpose and it is immaterial whether the payment is by way of gift or whether it is for services rendered or is made for any other reason (Keogh v Dalgety & Company Ltd (1916) 22 CLR 402 at 418; Hovenden & Sons v Millhoff (1900) 83 LT 41 at 43; Industries & General Mortgage Co Ltd v Lewis [1949] 2 All ER 573 at 575) His Honour later went on to say (see at [60]) that such a payment would invalidate a transaction without stating that it was an element for the plaintiff to prove intent. 1. In Grimaldi v Chameleon Mining (No 2), the Full Court said in obiter (at [192]): 192. While secret commissions often are given with the corrupt purpose of influencing, such is not a necessary characteristic of them in civil proceedings. As Lawrence Collins J observed in Daraydan Holdings Ltd v Solland International Ltd [2005] Ch 119 at [53]: In proceedings against the payer of the bribe there is no need for the principal to prove (a) that the payer of the bribe acted with a corrupt motive; (b) that the agent's mind was actually affected by the bribe; (c) that the payer knew or suspected that the agent would conceal the payment from the principal; (d) that the principal suffered any loss or that the transaction was in some way unfair; the law is intended to operate as a deterrent against the giving of bribes. [Emphasis added.] 1. In Grant v Gold Exploration and Development Syndicate, Collins LJ said (at 249): I think it follows in principle that where the buyer elects not to rescind the sale, but can nevertheless point to a specific sum over and above what must be taken as between the parties to be the real price, which has found its way into the vendor's pocket as a result of a sale so effected, he is entitled to recover it back. When the sum is thus liquidated, and in the hands of the vendor, I think it would be clearly contra aequum et bonum that he should retain it. I think that if he takes the hazardous course of paying a sum to the buyer's agent in order to secure his help, and does not himself communicate it, he must at least accept the risk of the agent's not doing so. He has taken a course which can be validated only by actual disclosure to the opposite principal, and as a result of it he is in possession of a sum which, whether the bargain stands or is rescinded, never ought to have been paid by the buyer, or found its way into the pocket of the seller. He is responsible as for money had and received to the use of the buyer, even though possibly he could not be made liable in an action of deceit. 1. And, later in Grimaldi v Chameleon Mining (No 2), the Full Court said (at [575]-[576]): 575. We have referred already to the quite different rule affirmed in Furs Ltd v Tomkies. Additionally, we would note by way of contrast with the approach taken in Sinclair Investments, the observations of Mason J in Hospital Products at 107-108 with which we respectfully agree: Any profit or benefit obtained by a fiduciary [in breach of the proscriptions on conflict of duty and interest or on misuse of position] is held by him as a constructive trustee: Keith Henry & Co Pty Ltd v Stuart Walker & Co Pty Ltd [at 350]. Neither principle nor authority provide any support for the proposition that relief by way of constructive trust is available only in the case where a profit or benefit obtained by the fiduciary was one which it was an incident of his duty to obtain for the person to whom he owed the fiduciary duty. Once it is established that the fiduciary is liable to account for a profit or benefit which he has obtained there can be no objection to his being held to account as a constructive trustee of that profit or benefit. It can make no difference that it was not his duty to obtain the profit or benefit for the person to whom the duty was owed. What is important is that the advantage has accrued to him in breach of his fiduciary duty or by his misuse of his fiduciary position. The consequence is that he must account for it and in equity the appropriate remedy is by means of a constructive trust. (Emphasis added.) 576. To exclude the bribed fiduciary from the deterrent effect of the constructive trust is, in our view, to make it unavailable in the very situations where deterrence is likely to be the most needed. Bribery at its most naked breeds the crudest form of fiduciary infidelity. To privilege the dishonest fiduciary in this way is to create an incentive which should not be tolerated. … 1. With this background, I turn then to consider the contested elements of a bribe, namely whether there is a need to show: a "corrupt purpose" on the part of the payer of the alleged bribe; an intention to influence (or presumption thereof); that the payee was so influenced; that the payer had knowledge of concealment of the payment(s); that the payment was in connection with some particular contract or transaction; that the payment(s) was/were "loaded" into the contract price; and/or that loss has been suffered and/or that the transaction was unfair. Again, I will consider each in turn. Need to show a "corrupt purpose" 1. For the following reasons, I consider that it is not necessary, in civil proceedings, for a party to prove a corrupt purpose on the part of the payer of the alleged bribe. 2. As an initial matter, I place weight on what was said (at [192]) by the Full Court, albeit perhaps in obiter, in Grimaldi v Chameleon Mining (No 2) (excerpted above). 3. As to the judgment of Chesterman J in Emanuel Management v Foster's Brewing Group, I note that his Honour there identified the four "necessary elements" of establishing a bribe (such elements having differing importance depending on the facts and circumstances of the particular case) (again, as I have excerpted above). 4. I note, as I have sought to indicate by my emphasis above, that his Honour did not there expressly identify any discrete element of "corrupting purpose". While it may be said that the element of intention to induce may be a, or the, "corrupting purpose", I deal with the requisite element of intention in due course (see below). 5. Similarly, I also here place weight on what was said (at [59] – again, see above) by White J, as his Honour then was, in SWC v Makucha, namely that, "[a] secret payment made to an agent of a person with whom the payer is dealing, or proposes to deal, when the payer knows that the payee is acting as agent, is, for the purposes of the civil law, a bribe. It requires no proof of corrupt purpose" (my emphasis). 6. Furthermore, I note what was said by Romer LJ in Hovenden v Millhoff (at 43 – excerpted above). 7. Again, as I have sought to indicate by the above emphasis, to my mind, Romer LJ's judgment is but another example of the general current of judicial opinion, with which I agree, that the law will not inquire into, or demand proof of, the payer's corrupt purposes. 8. Accordingly, as I have indicated, I do not consider that Plaza is here required to prove that there was a corrupt purpose in the making of the alleged bribes (see also, for example, Keogh v Dalgety at 418). 9. That takes me to the next (here contentious) element of a claim, being a need to show an intention to influence (or that a bribes claim involves a presumption thereof). Need to show an intention to influence (or presumption thereof) 1. As adverted to above, to my mind, a "corrupt purpose" and intention to influence are not necessarily one and the same. One can intend to influence another without being corrupt or having a corruptive purpose in so doing. Likewise, a subjective intention to defraud the principal is also, perhaps, different again. Accordingly, I have proceeded to distinguish between the two purported elements of a bribe. 2. For the following reasons, I consider that it is necessary, in order to make good a claim of bribery, for the plaintiff to prove an intention (on the part of the payer) to influence the payee. I should also, at this juncture, note (as adverted to above) that Plaza has not here pleaded any such intention and, while it sought during cross-examination to put questions to Mr Deiri about his intentions, an objection was made on the basis that intent had not been pleaded. Thus it follows that, if I am correct on the issue of intention to influence, the bribery allegations must fail. In this respect, I should note that, in any event, I would not on the evidence have been able comfortably to conclude that there was an intention to influence Jamil so as to support the finding of bribery. 3. As an initial matter, I note that Chesterman J in Emanuel Management expressly identified (at [1132] – and, excerpted at above), as one of the four "necessary elements" of establishing a bribe, the need to show that "[t]he gift [was] intended by donor and donee to be an inducement to the donee to influence his principal…". With that said, I emphasise again that his Honour there observed that each element has differing significance depending on the facts of the case. 4. Likewise, that an intention to influence is an element of a bribe is supported by what was said by Romer LJ in Hovenden v Millhoff (at 43). Furthermore, this conception is reinforced by what was said by the Privy Council in Attorney General v Reid (see at 330 per Lord Templeman). 5. To my mind, the view which I here prefer is also supported by what was said by Austin J in Aequitas v AEFC. I note, particularly, that his Honour there referred, with apparent approval, to the definition of a bribe articulated in Hovenden v Millhoff (which, as I have just observed, included an element that the payment be made "with the view of inducing") and said that, once a bribe as so defined is shown, then it is unnecessary to demonstrate a "subjective intent to defraud" (see at [369]). 6. Indeed, as I have indicated above, to my mind, there is a difference between an intention to influence and an intention to defraud. At this point, it is convenient to excerpt his Honour's judgment (at [367]-[370]) which, I think, supports this conclusion: 367. In Hovenden & Sons v Millhoff (1900) 83 LT 41, 43, Romer LJ gave the following statement of what constitutes a bribe: "If a gift be made to a confidential agent with the view of inducing the agent to act in favour of the donor in relation to transactions between the donor and the agent's principal and that gift is secret as between the donor and the agent - that is to say, without the knowledge and consent of the principal - then the gift is a bribe in the view of the law." 368. The Privy Council explained the concept of a bribe somewhat more widely in Attorney-General for Hong Kong v Reid [1993] UKPC 2; [1994] 1 AC 324, 330: "A bribe is a gift accepted by a fiduciary as an inducement to him to betray his trust. A secret benefit, which may or may not constitute a bribe, is a benefit which the fiduciary derives from trust property or obtains from knowledge which he acquires in the course of acting as a fiduciary. A fiduciary is not always accountable for a secret benefit but is undoubtedly accountable for a secret benefit which consists of a bribe." 369. Once the giving of a bribe, in this sense, is shown, it is unnecessary to establish a subjective intent to defraud: T Mahesan S/O Thambia v Malaysia Government Officers' Co-operative Housing Society Ltd [1979] AC 374, 383. According to Romer LJ in the Hovenden case, if it is shown that a bribe has been given, the Court will not inquire into the donor's motive, and will presume irrebuttably in favour of the principal and against the donor and the agent bribed, that the agent was influenced by the bribe. … 370. At least for the purposes of the present case, the following elements emerge as the ingredients of a bribe: (a) a donor makes a gift to a fiduciary; (b) the gift relates to the fiduciary's position, in the sense that it is an inducement to the fiduciary to use his or her position in a particular way; and (c) the gift is secret between the donor and the fiduciary, in the sense that the principal is not aware of it. (My emphasis). 1. Particularly, I see that his Honour's reference to the "gift [relating] to the fiduciary's position" supports the proposition that a necessary element in the claim is demonstration that the payer intended for the benefit to induce the agent, in the sense of the payer intending to conflate payment of the alleged bribe with acts undertaken by the payee in his, her or its capacity as fiduciary agent. Similarly, his Honour's reference (at [369]) as to the irrebuttable presumption seems directed to a presumption as to the influencing or corrupting effect of the bribe (that is, so to speak, a presumption of causation). Likewise, the reference as to not inquiring into the donor's motive, when read in light of his Honour's approving references to Hovenden v Millhoff and other cases and principles, seems, to my mind, directed to the questions of some "corrupt purpose" (as to which, see my preceding disposition). As to the latter of these observations, to the extent that his Honour was referring to an irrebuttable presumption of intention, I prefer the view that intention to influence is a necessary element of a claim. 2. In this regard, I note that, as to the second element of inducement, his Honour in the result (see at [372]-[375]) found that element satisfied in the case of one payment, but not satisfied in the case of a later payment. This, too, suggests that his Honour considered this an element of the claims. 3. As to the Sayour Parties' reliance on White J's judgment in SWC v Makucha, in support of the proposition that an intention to induce the agent is not required to establish a bribe, I consider his Honour's observations, like those of Austin J and for the same reasons (particularly having in mind his Honour's reference to Hovenden v Millhoff and other authorities), as consistent with my disposition of this issue (and, to the extent that there is any difference and noting that his Honour's remarks were in obiter, I prefer the view that intention to influence is a necessary element of a bribery claim). 4. As to the Sayour Parties' reference to the Professor Finn's Fiduciary Obligations, where the learned author wrote (at [506], citing Eden v Ridsdale's at 372 and Parker v McKenna at 118) that, "[t]he intention with which a payment is made to a fiduciary and the knowledge in which he receives it, are, as a general rule, irrelevant to the question whether or not that payment should be characterised as a bribe. A concealed payment attracts the taint of bribery solely from the circumstances in which it was made…" (my emphasis), to my mind, these observations are not inconsistent with the conception which I here prefer. Indeed, I see that the learned author's comment that intention is "as a general rule, irrelevant" must be read in conjunction with the proceeding statement that a concealed payment attracts the taint of bribery solely from the circumstances in which it was made. That is to say, those circumstances will ordinarily satisfy the tribunal of fact as to requisite intention without there being a need to undertake a specific, discrete inquiry into intention. That is, however, quite a different proposition to a conception that there is no need to show requisite intention in order to make out the claim. 5. Similarly, as to the learned author's observation (at [502], citing, inter alia, Fouche), that "[b]ut for a payment to be a bribe it is not essential either that it be a gift or that it be handed over with a manifestly corrupt purpose in mind", as I have said, I see that a "corrupt purpose" is different to an intention to induce. 6. As to the Sayour Parties' observation that Lord Esher MR in Eden v Ridsdale's (at 370-371), with which Lindley and Lopes LLJ agreed and later cited with approval in FHR European Ventures LLP at [19]) declined to make a finding that the gift there impugned was made on an understanding that the false fiduciary was to betray his trust and act favourably to the gift giver, his Lordship saying that "[i]t was not that he intended to defraud his principals, but he put himself in a position of temptation to do so" and that this was in the policy of the law wrongful and "which the law does not allow an agent to assume", I note that the duty of fiduciary loyalty may be breached other than by taking of a bribe and, in this sense, his Lordship's observation that the law does not countenance the taking of such payments, even absent a finding of intention, must be understood in the wider context of fiduciary principles (that is to say, the taking of a bribe is ex hypothesi a breach of fiduciary duty, but a breach of fiduciary is not ex hypothesi a bribe). 7. In the event that I am wrong as to the above, I now turn to an (potentially) alternative conception that, in allegations of bribery, a presumption of intention to induce is engaged. As will be recalled from the above summary of the parties' submissions, the Deiri Parties submit that, if an intention to induce the agent is a presumption such that Plaza is not required to prove intent, the presumption is nevertheless rebuttable. 8. For my part, I do see that such an approach finds albeit tacit approval in what was said by Dutney J (with whom McPherson JA agreed) in Laurelmont v Stockdale (at [49]; [53]): 49. In this case the secret benefit was the commission earned from the sale of the Marina on the Pacific units to which the second respondent prima facie became entitled by reason of the conjunction arrangement. It was submitted that it should be presumed that it was always the intention that the benefit of that commission should go to Darby to provide him with the funds necessary to purchase the Mooloolaba franchise. [...] 53. In light of such clear findings by the primary judge and in the absence of any appeal against those findings I cannot see that any room is left for any presumption of the sort upon which the appellant seeks to rely. We were referred to a number of authorities in support of the appellants submission including Parker v McKenna (1874) LR 10 Ch App 96 at 118; Re A Debtor [1927] 2 Ch 367 at 386; R v Andrews Weatherfoil Ltd [1972] 1 All ER 65; Lintrose Nominees Pty Ltd v King [1995] 1 VR 574 at 577 none of which in so far as they are relevant to the present fact situation seem to me to go any distance to establishing the necessary proposition. To support the submission from the appellant the cases would need to be authority for the proposition that the presumption is an irrebuttable one and overrides any consideration of the real facts. Not surprisingly the appellant was unable to refer us to any authority which could be said to be to this effect. [My emphasis] 1. Having said this, I note what was said by Vickery J in Indeco Pacific v Geneva Investments, and here seized upon by the Sayour Parties. Notably, his Honour said (at [83], citing Slade J in Industrial and General Mortgage) that: 83. At common law, a bribe is a payment of a secret commission whereby the person making the payment: (i) makes it to the agent of the other person with whom he is dealing; (ii) knows that the person is acting as the agent of the other; and (iii) fails to disclose to the other person that he has made that payment to the person whom he knows to be the other person's agent. 1. As may be readily observed, his Honour did not there identify any need to prove an intention to induce which, it seems, is inconsistent with my preceding observations. 2. However, in this regard, several factual aspects of Indeco Pacific v Geneva Investments should here be noted. First, the alleged bribe taker was there found to have been acting as a fiduciary to the principal (see at [80]). Second, the alleged bribe taker was there found to have placed himself in a position of conflict, thereby breaching the "no conflict" rule (see at [82]). Third, the alleged payer of the bribe knew of that fiduciary relationship and that the impugned property purchase was being conducted through the fiduciary (see at [84]). 3. Relevantly, to my mind, his Honour's observations must be understood in the context in which those observations were made; and, similarly, the cases are, at least to an extent, distinguishable. In any event, to the extent of any discord, I respectfully prefer the alternative view. 4. As to any presumption, his Honour then said (at [85]) that "once a bribe is established, there is an irrebuttable presumption that it was given to induce the agent to act favourably to the payer and thereafter unfavourably to the principal" (my emphasis). 5. I place some significance, as I have sought to indicate by my emphasis, on the inclusion of acting unfavourably to the principal which, I think, trespasses somewhat into issues of some corrupt purpose. In this connection, there is at least some force to the Deiri Parties' submission that, as I have said, a corrupt purpose is not necessarily the same as an intention to induce the agent to act in a certain way, the Deiri Parties noting that a donor could with innocent intentions make a payment to the agent hoping that the agent would engage the payer in work and the payer might very well consider this to be in the principal's interests (cf a situation where the payer confers a gift on an agent with the intent that the agent negotiate more favourable terms, prejudicial to the principal's interest). 6. For the preceding reasons, I consider that, if a presumption does operate, then it is a rebuttable one, not least because such an approach affords necessary protection to principals, while permitting a potential briber the opportunity to prove that the benefit given over was conferred for some legitimate purpose and not with a view to inducing improperly the agent. 7. With the preceding in mind, I pause to note, again, that here the Deiri Parties say: that there is no evidence that any of the payments made by Investments to Jamil were made "with the view of inducing the agent to act in favour of the donor in relation to transactions between the donor and the agent's principal"; no such intention has been pleaded by Plaza; in any event, any such pleading would have no proper basis because, to the contrary, the Deiri Parties say that the payments were made for debts owed to Plaza (and saying that Investments and Mr Deiri had every reason to ensure those debts were properly paid, otherwise, Investments would have a liability to Plaza for the outstanding purchase price under the land contract and for the partnership distributions). Accordingly, as will be recalled, the Deiri Parties submit that the impugned payments were not made with any requisite intention. 8. I should, finally, observe that, for my part, I see the preceding as generally more in accord with the decisions of the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 98; [2007] HCA 22 and Consul Development v DPC Estates, each of which emphasised the fault-based principles underlying both knowing receipt and knowing assistance (and, indeed, I note that the Sayour Parties here emphasise, at least to some extent and in support of some of their submissions, that bribers are characterised as third-party knowing participants in the breach of a fiduciary duty). 9. Before turning to the various other supposed, or possible, elements to a successful bribe claim, it should be emphasised that, in many cases, it will not be difficult, so to speak, to prove this element of requisite intention; and, indeed, oftentimes such intention will be the only reasonable inference to be drawn from the whole of the evidence and circumstances of the case. Need to show the payee was influenced 1. Related to the preceding is whether the plaintiff must prove that the payee was in fact influenced by the alleged bribe. It is convenient here immediately to excerpt what was said by Lawrence Collins J, as his Lordship then was, in Daraydan (at [53]): 53. In proceedings against the payer of the bribe there is no need for the principal to prove (a) that the payer of the bribe acted with a corrupt motive; (b) that the agent's mind was actually affected by the bribe; (c) that the payer knew or suspected that the agent would conceal the payment from the principal; (d) that the principal suffered any loss or that the transaction was in some way unfair: the law is intended to operate as a deterrent against the giving of bribes, and it will be assumed that the true price of any goods bought by the principal was increased by at least the amount of the bribe, but any loss beyond the amount of the bribe itself must be proved; (e) that the bribe was given specifically in connection with a particular contract, since a bribe may also be given to an agent to influence his mind in favour of the payer generally (e g in connection with the granting of future contracts). [My emphasis] 1. Similarly, I note what was said in Hovenden v Millhoff (at 43 – again, which I have excerpted above). 2. As I have sought to indicate by my emphasis, both Lawrence Collins J and Romer LJ indicated that there is no need to prove that the payee of the bribe was in fact influenced by the payment(s). 3. In this context, it should be recalled that the Deiri Parties here say that if it is established that there is a bribe or bribes (as so described) and there is a presumption that the agent (here, Jamil) was influenced by the bribe, then nevertheless the correct principle is that it is necessary to establish that the payment was done with a view to inducing the agent (i.e. that the payor had that particular intention when making the payment, again citing Aequitas v AEFC at [367]-[369] per Austin J – see above). As adverted to, the Deiri Parties say that this must be so or else solicitors receiving funds to their trust accounts for clients every day would be deemed to have received bribes. 4. I have disposed of the intention element(s) above. I accept for the preceding reasons that it is unnecessary separately to prove (whether positively or by way of presumption) that the payment so influenced the agent. Need to show the payer's knowledge of concealment 1. Next is whether the plaintiff must prove that the payee knew or suspected the payments would be concealed from the principal. 2. As noted, reference is again made to what was said by Lawrence Collins J in Daraydan at [53] (and, which I have excerpted above) (and, see also Grant v Gold Exploration at 244 per AL Smith LJ and at 250 per Collins LJ, and Bartram & Sons Ltd (1904) 90 LT 357 at 359-360 per [Romer LJ]). It is sufficient here to note what was said by the Full Court in Grimaldi v Chameleon Mining (No 2) (at [193]): 193. Finally, as both of the above quotations make plain, the payer of a secret commission to a person known to be acting in the matter on behalf of another, is taken to have assumed the risk of the payee having not obtained his or her principal's informed consent to receipt of the payment: Grant v Gold Exploration and Development Syndicate [1900] 1 QB 233 at 249. Knowing that the payee is acting on another's behalf is sufficient of itself to attract liability, unless full disclosure is made by the payer or "agent" and consent is given by the principal to the payment. Importantly, the payer's liability does not turn on his or her knowing or suspecting that the agent has not received the principal's informed consent to the payment: Daraydan Holdings at [53]; Bartram & Sons Ltd (1904) 90 LT 357 at 359-360. [My emphasis] 1. As I have sought to indicate by my emphasis, I accept that the liability of Deicorp, Mr Deiri, Investments and the other entities which paid the alleged bribes does not here turn on whether those persons had knowledge or suspicion that Jamil had not received informed consent; or, differently, it is not necessary to prove (again, whether positively or by presumption) whether Jamil had in fact concealed the payments. 2. However, I interpose to observe that, as noted above, the Deiri Parties here say that the payments were disclosed through Jamil, since Jamil acted as authorised agent and therefore knowledge of those payments is, or ought to be, imputed to Plaza (see Angelina Spina v Permanent Custodians at [106] per Hammerschlag J; Permanent v FAI at [88]-[89] per Handley JA, Meagher and Powell JJA agreeing). This is significant because, in accordance with well-established fiduciary principles, fully informed consent will defeat the claim. Need to show payment in connection with a particular contract or transaction 1. As to any element to show that a payment was made in connection with a particular contract, this may be briefly disposed of because I accept the Sayour Parties' submission that it is unnecessary to show that a bribe was paid in connection with some particular, identified contract. I say this because, as noted by Lawrence Collins J in (Daraydan at [53]), "… a bribe may also be given to an agent to influence his mind in favour of the payer generally … [for example] in connection with the granting of future contracts)". 2. Like his Honour, for my part, I consider that to require that it be proved that a payment was made in connection with a particular contract would at once both undermine the policy justifications underlying this area of the law and be counter to common sense and experience. Need to show payments in the contract price 1. As to any element here to prove that the amount of any bribe was loaded into the contract price, I begin by noting what was said by Millett J, as his Lordship then was, in Logicrose v Southend United Football Club (at 1263) that: … The principal whose agent has received a bribe from the other party to the transaction is entitled to recover the amount of the bribe from the agent, whether he affirms or repudiates the transaction itself. As against the other party to the transaction, he is entitled to treat the benefit obtained by or promised to the agent as part of the consideration which should have been received by the principal (if he is a vendor) or as excess consideration provided by the principal (if he is a purchaser)… [My emphasis] 1. As I have sought to indicate by my emphasis, Millett J's judgment may (and the Sayour Parties' here say that it does) suggest that the principal need not prove, or there is an irrebuttable presumption, that the value of the alleged bribe was loaded into the contract price. Such a conception is also supported by the remarks of Romer LJ in Hovenden v Millhoff (at 43 – excerpted above). 2. For my part, and for reasons adverted to above as to any need to show that a payment was made in connection with some particular contract, I accept that the plaintiff need not prove, or that it will be irrebutably presumed, that a bribe was "loaded" into the contract price. This is not least because the forensic difficulties in discharging such an onus would, I think, substantially undermine equitable concerns and normative justifications (as well as being counter to authority). 3. However, importantly, it must still be shown that a bribe has in fact been paid before the plaintiff can recover. Need to show loss or that the transaction was unfair 1. Finally, there is the supposed element that it must be shown that the impugned transaction(s) caused loss or was/were unfair. Again, I accept that it need not be proven, whether positively or by presumption, that the impugned transaction was unfair or caused loss. 2. In this regard, I note what was said by Latham CJ in P&O Steam Navigation v Johnson at 214 per Latham J (as his Honour then was); [1938] HCA 16 that, "… [s]uch an allegation [that the company paid the usual price] is quite irrelevant. An agent cannot justify the taking of a secret commission by showing that his principal would not have been able to obtain more favourable terms if he had not taken the commission", along with those matters which I have adverted to as to the normative rationale underpinning this area of the law. Remedial response and related issues 1. It is also convenient to consider at this stage the remedy for bribes and secret commissions. In so doing, I propose first to consider the position in English law, before turning briefly to some academic observations and normative considerations, before finally considering the state of authorities in Australia. 2. For the reasons that I here explain, I accept that, subject inter alia to the discretionary considerations which arise in the remedial exercise (along with, as relevant, equitable defences and the like), money bribes can be captured by a constructive trust (and not merely a personal account of profits). However, as I also observe below, it does not necessarily follow, as the Sayour Parties here contend, that the Sayour Parties are entitled to recover the full value of the development. Rather, that depends on, inter alia, the extent of the interest through a tracing exercise and those remedial discretionary considerations and other matters to which I have just referred. 3. The nature and extent of a principal's interest over, or in, its agent's secret commissions was squarely considered by the Supreme Court of the United Kingdom in FHR European Ventures. Lord Neuberger PSC, handing down judgment for the Court (Lord Neuberger of Abbotsbury PSC, Lord Mance, Lord Sumption, Lord Carnwath, Lord Toulson, Lord Hodge JJSC, Lord Collins of Mapesbury) stated (at [1]) the problem as follows: 1. … the issue of whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or commission. The answer to this rather technical sounding question, which has produced inconsistent judicial decisions over the past 200 years, as well as a great deal of more recent academic controversy, is important in practical terms. If the bribe or commission is held on trust, the principal has a proprietary claim to it, whereas if the principal merely has a claim for equitable compensation, the claim is not proprietary. The distinction is significant for two main reasons. First, if the agent becomes insolvent, a proprietary claim would effectively give the principal priority over the agent's unsecured creditors, whereas the principal would rank pari passu, i.e., equally, with other unsecured creditors if he only has a claim for compensation. Secondly, if the principal has a proprietary claim to the bribe or commission, he can trace and follow it in equity, whereas (unless we develop the law of equitable tracing beyond its current boundaries) a principal with a right only to equitable compensation would have no such equitable right to trace or follow. 1. The facts may be briefly stated (see at [2]-[4]). The first defendant established the second defendant company for the purpose of providing consultancy services to the hotel industry. The second defendant company entered into a brokerage agreement with the owner of an hotel, whereby it agreed to facilitate the sale of a hotel by identifying and introducing potential purchasers. In consideration for that work, the second defendant company was to be paid a commission when the hotel was sold. Several of the claimants, which formed an investment group, were among the first defendant's clients and contacts. The first defendant encouraged the claimants to investigate buying the hotel and informed them that its owners were offering it for sale through his consultancy. Then, the second defendant, acting with the first defendant and third defendant (its subsidiary), advised the claimants on the hotel purchase and successfully negotiated the purchase price on their behalf. However, the second defendant failed to inform the group of its appointment under the brokerage agreement. Following the sale, and without the knowledge of the claimants, the second defendant received its commission. The claimants, after discovering that the commission had been paid, issued proceedings seeking recovery of that sum, alleging that it constituted a secret profit. 2. The trial judge had found that the second defendant had not made proper disclosure to the claimants such that they could not have given informed consent. The trial judge declared the second defendant liable to pay to the claimants a sum equal to the amount of the commission, but declined to grant the claimants an entitlement to a proprietary remedy. The Court of Appeal allowed the claimants' appeal, declaring that the second defendant had received the commission on constructive trust. 3. Lord Neuberger PSC stated, describing it as a "well established principle" (see at [6]), that where the agent receives a benefit in breach of fiduciary duty, the agent must account to the principal for such a benefit and (in effect) to pay a sum equal to the profit by way of equitable compensation. His Lordship recited the speech of Lord Russell of Killowen in Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134 (Regal (Hastings)), where his Lordship said (at 144-145): … The rule of equity which insists on those, who by use of a fiduciary position make a profit, being liable to account for that profit, in no way depends on fraud, or absence of bona fides; or on such questions or considerations as whether the profit would or should otherwise have gone to the plaintiff, or whether the profiteer was under a duty to obtain the source of the profit for the plaintiff, or whether he took a risk or acted as he did for the benefit of the plaintiff, or whether the plaintiff has in fact been damaged or benefited by his action. The liability arises from the mere fact of a profit having, in the stated circumstances, been made… 1. Relevantly, however, as the President observed (at [7]): 7. The principals right to seek an account undoubtedly gives him a right to equitable compensation in respect of the bribe or secret commission, which is the quantum of that bribe or commission (subject to any permissible deduction in favour of the agent – eg for expenses incurred). That is because where an agent acquires a benefit in breach of his fiduciary duty, the relief accorded by equity is, again to quote Millett LJ in [Bristol and West Building Society v Mothew [1998] Ch 1] in Mothew) at p 18, "primarily restitutionary or restorative rather than compensatory". The agent's duty to account for the bribe or secret commission represents a personal remedy for the principal against the agent. However, the centrally relevant point for present purposes is that, at least in some cases where an agent acquires a benefit which came to his notice as a result of his fiduciary position, or pursuant to an opportunity which results from his fiduciary position, the equitable rule ("the Rule") is that he is to be treated as having acquired the benefit on behalf of his principal, so that it is beneficially owned by the principal. In such cases, the principal has a proprietary remedy in addition to his personal remedy against the agent, and the principal can elect between the two remedies. 1. His Lordship noted (at [8]) that, where a case is within the ambit of the rule, then it is strictly applied (citing Keech v Sandford (1726) Sel Cas Ch 61 (Keech v Sandford) per Lord King LC). 2. Of course, the inquiry then arises as to the proper scope of the rule (see at [9]). The competing views may be catalogued as follows. 3. On the one hand, it has been said that the rule should not apply to a bribe or secret commission paid to an agent on the basis that it is not a benefit which can properly be said to be the principal's property (see at [10]). So, for example, Professor Sir Roy Goode has suggested that no proprietary interest arises where an agent obtains a benefit in breach of his duty unless that benefit either: one, flows from an asset which was beneficially owned by the principal or intended for the principal; or two, derives from an activity of the agent which, if the agent chooses to undertake it, is (or was) under an equitable duty to undertake for the principal. Sir Roy has argued that, if the law were to treat a principal as having a restitutionary proprietary right to moneys or property not derived from any asset of the principal, then this would result in an involuntary grant by the agent to the principal (see R Goode, "Proprietary Liability for Secret Profits – a Reply" (2011) 127 Law Quarterly Review 493, cited by Lord Neuberger PSC at [10]). Similarly, though slightly differently, Professor Worthington has suggested that a proprietary claim will arise where the benefit: one, derives from the principals property; or two, derives from opportunities in the scope of the agents endeavours undertaken on behalf of the principal; but third, not to benefits derived from opportunities outside the scope of those endeavours (see "Fiduciary Duties and Proprietary Remedies: Addressing the Failure of Equitable Formulae" (2013) 72 Cambridge Law Journal 720, cited by Lord Neuberger PSC at [10]). 4. Meanwhile, on the other, it has been suggested that the rule does apply to bribes or secret commissions received by an agent because, in any case where an agent receives the benefit which is (or results from) a breach of the fiduciary duty, the agent holds that benefit on trust for the principal. For example, in 1993, Lord Millett suggested extra-curially that – on the footing that equity will not permit an agent to rely on his, her or its own breach of duty to justify retention of the benefit on the ground that it was a bribe or secret commission and will, instead, assume that the fiduciary acted in accordance with his duty so that the benefit must be the principal's – a principal should be beneficially entitled to a bribe or secret commission (see "Bribes and Secret Commissions" (2012) 71 Cambridge Law Journal 583, cited by his Lordship at [11]). As noted by the President, this (stricter) approach is also supported by Professor Smith (see, eg, "Constructive Trusts and the No Profit Rule" (2013) 72 Cambridge Law Journal 260, cited by his Lordship at [11]). 5. In order to identify and understand the proper ambit of the rule, it is convenient first to consider those earlier cases not involving the taking of a bribe or secret commission. 6. One such case is Bowes v City of Toronto (1858) 11 Moo PC 463 (Bowes). There, the Privy Council concluded that the mayor of a city who had bought discounted debentures issued by the City was in the same position as an agent vis-à-vis the City and was, accordingly, to be treated as holding the debentures on trust for the City. Similarly, there is the decision of the Court of Appeal in Chancery in Bagnall v Carlton (1877) 6 Ch D 371. That case concerned the agents for a prospective company making secret profits out of a contract made by the company. The Court (James, Baggallay and Cotton LJJ) found that the agents were "trustees for the company" of those profits (see at [401], [408]). Likewise, there is Cook v Deeks [1916] 1 AC 554 (Cook v Deeks), where the Privy Council held that a company formed by the directors of a construction company had entered into a contract on behalf of their construction company principal because the directors had only come to know of the opportunity by virtue of their offices. Later in the 20th century, there is Phipps v Boardman [1964] 1 WLR 993, where trustee agents had purchased shares in circumstances where they had that opportunity by virtue only of their agency. Wilberforce J, as his Lordship then was, held that the shares were held beneficially for the trust (affirmed [1965] Ch 992 and later [1967] 2 AC 46 (Boardman v Phipps)). More recently in time there is Bhullar v Bhullar [2003] 2 BCLC 241, where the Court of Appeal reached the same conclusion, as Lord Neuberger PSC noted (see at [14]), on similar facts to those in Cook v Deeks). 7. Turning then to those cases concerning bribes and secret commissions, it is convenient to commence with the reasons of Lord Lyndhurst LC in Fawcett v Whitehouse (1829) 8 LJOS Ch 50, 1 Russ & M 132 9 (Fawcett). There, an agent had been negotiating on behalf of a prospective lessee. In the events that happened, the agent had accepted a loan from the prospective lessor. His Lordship held that the loan was taken on trust for the lessee principal (see Lord Neuberger PSC at [15]). 8. Some years later, in Barker v Harrison (1846) 2 Coll 546 (Barker), Knight Bruce VC held that a sub-sale of part of some property, which had been secretly negotiated by the vendor's agent at an advantageous price, was held on trust for the vendor principal. Similarly, in In re Western of Canada Oil, Lands and Works Co (1875) 1 Ch D 115 (Carling, Hespeler, and Walsh's Cases), the Court of Appeal (comprised of James and Mellish LJJ, Bramwell B and Brett J) held that shares transferred to induce the recipients to become directors of a company and then to agree that the company would buy land from the transferor were held on trust for the company. 9. Lord Neuberger PSC (see at [15]) also commented upon the decisions of the Court of Appeal (Mellish and James LJJ and Brett J) in In re Morvah Consols Tin Mining Co (1875) 2 Ch D 1 (McKay's Case) and the Court of Appeal (Jessel MR, James LJ and Baggallay JA) in In re Caerphilly Colliery Co (1877) 5 Ch D 336 (Pearson's Case). It is unnecessary here to recite his Lordship's analysis. 10. More relevantly for present purposes, at least in the sense of factual analogy, is the decision of the Court of Appeal (Lord Esher MR, Lindley, as his Lordship then was, and Lopes LJJ) In Eden v Ridsdale's. In that case, the Court of Appeal held that a company was entitled as against a director to shares which the director had secretly received from a person with whom his company was negotiating. 11. Further still, as Lord Neuberger PSC next noted (see at [16]), inducements and other such benefits offered to directors and trustees have been treated in much the same way. So, for example, in Sugden v Crossland (1856) 3 Sm & G 192 (Sugden), Wood VC held that moneys paid to a trustee in order to persuade him to retire in favour of the payee were held as a part of the trust fund. Likewise, in Nant-y-glo and Blaina Ironworks Co v Grave (1878) 12 Ch D 738, Bacon VC held that shares in a company given to the defendant by its promoter in order to induce the defendant to become a director were held to belong to the company. Further still, in Williams v Barton [1927] 2 Ch 9, Russell J held that a trustee, who had recommended to his co-trustees that they use stockbrokers who had paid over to him a commission, held that commission on trust for the trust. 12. Aside from the decisions of the Chancery courts, it is to be noted that the common law courts were taking the same view in relation to payments of inducements and bribes. So, for example, in Morison v Thompson (1874) LR 9 QBD 480, Cockburn CJ (with whom Blackburn J, as his Lordship then was, and Archibald J, as his Lord Justiceship then was, agreed) held that the agent of a purchaser who had secretly accepted a commission from the vendor of a ship, held that commission for his principal's benefit (see at 484, where Cockburn CJ referred to the earlier decision of Lord Ellenborough in Diplock v Blackburn (1811) 3 Camp 43). Lord Neuberger PSC also cites the decision of Bowen J, as the Lord Justice then was, in Whaley Bridge Calico Printing Co v Green (1879) 5 QBD 109 as an example of the common approach adopted by the common law courts (see at [17]). 13. Lord Neuberger PSC also noted that many of these, and other, decisions contain observations specifically supporting the proposition that the rule (that that the plaintiff is entitled not merely to an equitable account but to the beneficial ownership of the benefit do taken) applies to all benefits received by an agent in breach of his, her or its fiduciary duty (see at [19], citing Sugden per Wood VC, McKay's Case per Mellish LJ, Carling, Hespeler, and Walsh's Cases per James LJ, Pearson's Case per Jessel MR and Eden per Lord Esher MR). 14. Lord Neuberger PSC observed (at [21]) that the preceding cases and dicta: … are all consistent with the notion that the Rule should apply to bribes or secret commissions paid to an agent, so that the agent holds them on trust for his principal, rather than simply having an equitable duty to account to his principal. It is true that in many of those cases there was apparently no argument as to whether the benefit obtained by the fiduciary was actually held on trust for the principal. However, in some of the cases there was a dispute on the nature of the relief; in any event, the fact that it was assumed time and again by eminent barristers and judges must carry great weight. 1. Nevertheless, as his Lordship next observed (at [22]), "there is one decision of the House of Lords which appears to go the other way, and several decisions of the Court of Appeal which do go the other way, in that they hold that, while a principal has a claim for equitable compensation in respect of a bribe or secret commission received by his agent, he has no proprietary interest in it". 2. The decision of the House referred to by his Lordship is Tyrrell v Bank of London (1862) 10 HL Cas 26. There, in brief compass, a solicitor had been acting for a company in the course of its formation. The solicitor had secretly arranged to benefit from his prospective client's anticipated acquisition of a building by obtaining from the then current owner a 50% interest in lands consisting of the building and some adjoining lands. In the events that happened, after the purchase, the client discovered the solicitor's secret profit and sued him. Romilly MR held that the solicitor held on trust for the client both his interest in (and, therefore, his subsequent share of the sale proceeds) the building and also his interest in the adjoining land (see (1859) 27 Beav 273 at 300). 3. On appeal, the House of Lords held that Romilly MR was correct in relation to the interest in the building (and subsequent share in the sale proceeds). However, it was held that Romilly MR erred in relation to the interest in the adjoining land, holding that, while the client had an equitable claim for the value of the solicitor's interest, it had no proprietary claim (see Professor Watts, "Tyrrell v Bank of London: an Inside Look at an Inside Job" (2013) 129 Law Quarterly Review 527, cited by Lord Neuberger PSC at [23]). 4. More specifically, Lord Westbury LC made it clear (see at 44) that no trust could arise in relation to the adjoining land, which was outside the limits of the solicitor's agency and so hence there was no privity nor obligation (although the solicitor had to account for the value of that property) (see at 46). Lord Cranworth agreed (see at 49). Lord Chelmsford also agreed, holding that the principal had no right to the bribe received by his agent (see at 59-60) (see Lord Neuberger PSC at [24]). 5. I interpose to observe also, as relevant to the instant proceedings, that Lord Westbury LC also made it clear (see at 39-40) that the fact that the client had, at the time, not by then been formed did not prevent the claim because the client had been conceived and was in the process of formation (see Lord Neuberger PSC at [25]). 6. As noted by Lord Neuberger PSC (at [25]), despite suggestions to the contrary, the result in this case is inconsistent with those lines of authority which I have recounted above: if, as their Lordships held, the solicitor was liable to account for the profits which he had made on the adjoining land, that can only have been because the solicitor had made those profits in breach of his fiduciary duty; and, yet, the House denied a proprietary remedy (cf, for example, Fawcett, Sugden, Bowes and Barker). 7. The first of the Court of Appeal decisions, inconsistent with the proposition from Bowes and the cases that followed, referred to by Neuberger PSC (at [26]) is Metropolitan Bank v Heiron (1880) 5 Ex D 319 (Heiron). It is unnecessary here to consider that case. However, it is necessary to consider the next case cited by his Lordship and which followed Heiron, Lister & Co v Stubbs (1890) 45 Ch D 1 (Lister v Stubbs). 8. In Lister v Stubbs, an agent of a company had accepted a bribe from one of the company's clients. An interlocutory injunction was refused on the basis that the relationship between the company and its agent was that of creditor and debtor, not beneficiary and trustee: the principal could not claim any proprietary interest in the bribe and, therefore, could not trace into investments that had been made using the bribe. Cotton LJ said (see at 12) that "the money which [the agent] has received … cannot … be treated as being the money of the [company]". Lindley LJ agreed and further said (at 15) that the proposition that there was a trust "startled [him], not least because it would give the company the right to the money in the event of the agent's bankruptcy". Lindley LJ also said that to allow otherwise would involve "confounding ownership with obligation" (at 15). Bowen LJ also agreed. 9. As noted by Lord Neuberger PSC, Lister v Stubbs was cited with approval (see at 338) by Lindley LJ in In re North Australian Territory Co [1892] 1 Ch 322 (Archer's Case). It was followed Henn Collins MR (with whom Stirling and Mathew LJJ agreed) in Powell & Thomas v Evan Jones & Co [1905] 1 KB 11 (see at 22) and the same approach was adopted in Attorney Generals Reference (No 1 of 1985) [1986] QB 491 (see at 504-505 per Lord Lane CJ). Similarly, Lord Wright said (see at 156) in obiter in Regal (Hastings) that Lister v Stubbs supported the notion that, "the relationship in such a case is that of debtor and creditor, not trustee and cestui que trust". 10. As would be familiar also, more recently, in Attorney General for Hong Kong v Reid [1994] 1 AC 324 (Reid), the Privy Council (comprised of Lord Templeman, Lord Goff of Chieveley, Lord Lowry, Lord Lloyd of Berwick and Sir Thomas Eichelbaum) concluded that the bribes received by a corrupt government legal officer were held on trust for his principal and, accordingly, could be traced into properties which he had subsequently acquired in New Zealand. Giving judgment on behalf of the Board, Lord Templeman disapproved the reasoning in Heiron and Lister v Stubbs. His Lordship thought his conclusion inconsistent with only the speech of Lord Chelmsford in Tyrrell. 11. Later, in Daraydan Holdings Ltd v Solland International Ltd, Lawrence Collins J (later Lord Collins of Mapesbury who sat on FHR European Ventures LLP) indicated that he would follow Reid, rather than Lister v Stubbs. Similarly, Toulson J (later Lord Toulson who was also sitting on FHR European Ventures LLP) in Fyffes Group Ltd v Templeman [2000] 2 Lloyds Rep 643 followed Reid (see at 668-672). 12. It is necessary also now to note that in Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2012] Ch 453 (Sinclair), the Court of Appeal, in a judgment given by Lord Neuberger himself (his Lordship then Master of the Rolls), decided to follow Heiron, Lister v Stubbs and Tyrrell (see at [77]). 13. In addition to those academic contributions cited above (and in FHR European Ventures LLP at [10]-[11], [23]), there is a preponderance of critical academic analysis of the problem which I am presently here considering. Among those contributions are William Swadling, "Constructive Trusts and Breach of Fiduciary Duty" (2012) 18 Trusts and Trustees 985 and J Edelman, "Two Fundamental Questions for the Law of Trusts" (2013) 129 Law Quarterly Review 66. 14. Telling towards the approach that sees the rule apply to all unauthorised benefits that an agent receives is that this is consistent with fundamental principles of agency law: an agent owes a duty of undivided loyalty to his, her or its principal, unless the latter has given informed consent; and, accordingly, the principal is entitled to the entire benefits of the agent's acts in the course of his, her or its agency (even where the agent might have exceeded his, her or its authority) (see FHR European Ventures LLP at [33]). 15. Furthermore, this conception of the rule has the (apparent) virtue of simplicity, including that those circumstances in which the agent is obliged to account for a benefit received in breach of fiduciary duty would be coterminous to those in which the principal can claim the beneficial ownership of that benefit (see particularly Pearson's Case 5 Ch D 336 at 341, cited by Lord Neuberger PSC at [36]). As noted (at [36]) by Lord Neuberger PSC, "[t]he expression equitable accounting can encompass both proprietary and non-proprietary claims. However, if equity considers that in all cases where an agent acquires a benefit in breach of his fiduciary duty to his principal, he must account for that benefit to his principal, it could be said to be somewhat inconsistent for equity also to hold that only in some such cases could the principal claim the benefit as his own property." 16. Meanwhile, telling towards the counter-approach, is the notion that, in the words of Lord Neuberger PSC, (at [34]): … the Rule should not apply to a bribe or secret commission paid to an agent, as such a benefit is different in quality from a secret profit he makes on a transaction on which he is acting for his principal, or a profit he makes from an otherwise proper transaction which he enters into as a result of some knowledge or opportunity he has as a result of his agency. Both types of secret profit can be said to be benefits which the agent should have obtained for the principal, whereas the same cannot be said about a bribe or secret commission which the agent receives from a third party. 1. Indeed, to my mind, there is particular force to Lord Neuberger PSC's observation (at [37]) 37. The notion that the rule should not apply to a bribe or secret commission received by an agent because it could not have been received by, or on behalf of, the principal seems unattractive. The whole reason that the agent should not have accepted the bribe or commission is that it puts him in conflict with his duty to his principal. Further, in terms of elementary economics, there must be a strong possibility that the bribe has disadvantaged the principal. Take the facts of this case: if the vendor was prepared to sell for €211.5m, on the basis that it was paying a secret commission of €10m, it must be quite likely that, in the absence of such commission, the vendor would have been prepared to sell for less than €211.5m, possibly €201.5m … it accords with common sense that it should often, even normally, be correct; indeed, in some cases, it has been assumed by judges that the price payable for the transaction in which the agent was acting was influenced pro rata to account for the bribe [citing Fawcett at 136]. 1. I accept that, as Lord Templeman said in Attorney General v Reid, "bribery is an evil practice which threatens the foundations of any civilised society" (at 330H). As noted by Lord Neuberger PSC, "[s]ecret commissions are also objectionable as they inevitably tend to undermine trust in the commercial world" (at [42]). To similar effect, is what was said by the Full Court in Grimaldi v Chameleon Mining (No 2) (at [576]): 2. Furthermore, the conception that sees an agent as not holding the bribe or commission on trust because it could not have acquired on behalf of the principal seems at least somewhat inconsistent with decisions such as Boardman v Phipps and cases that have followed (see also FHR European Ventures LLP at [34]). 3. As to the point, often emphasised, that the wide application of the rule would tend to prejudice the agent's unsecured creditors, as said by Lord Neuberger PSC (at [43]), "it appears … to have limited force in the context of a bribe or secret commission. In the first place, the proceeds of a bribe or secret commission consists of property which should not be in the agents estate at all … Secondly, … at any rate in many cases, the bribe or commission will very often have reduced the benefit from the relevant transaction which the principal will have obtained, and therefore can fairly be said to be his property" (see at [44]). 4. I note, also, that Lister v Stubbs has been the subject of sustained criticism in learned texts in this country (see, for example, R P Meagher and W M C Gummow, Jacobs' Law of Trusts in Australia (4th ed, 1977, LexisNexis) at [1312]-[1314]; R P Meagher, J D Heydon and M J Leeming, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (4th, 2002. LexisNexis) at [5-190]-[5-230] (Meagher, Gummow and Lehane)); Fiduciary Obligations at [511]-[513] and J Lehane, "Fiduciaries in a Commercial Context" in P D Finn (ed), Essays in Equity (1985, Lawbook Co) at 107). 5. In the result, in FHR European Ventures LLP, the Supreme Court of the United Kingdom preferred the approach articulated in Attorney General v Reid and, thereby, Lord Neuberger PSC overruled his Lordship's own earlier decision in Sinclair (at least in so far as it relied upon and/or followed Heiron and Lister v Stubbs). 6. With the preceding in mind, I now turn to extant Australian authority. 7. An early High Court authority is Furs v Tomkies. For the reasons that follow, it is unnecessary to commence the analysis with that decision. 8. Instead, it is convenient to proceed by noting that, in what has become a leading statement of principle, in Chan v Zacharia, Deane J said (at 199) that any benefit obtained "in circumstances where a conflict … existed … or … by reason of his fiduciary position or of opportunity or knowledge resulting from it … is held by the fiduciary as constructive trustee". I note also what was said by Mason J, as his Honour then was, in Hospital Products (at 107-108): Any profit or benefit obtained by a fiduciary [in breach of the proscriptions on conflict of duty and interest or on misuse of position] is held by him as a constructive trustee … Neither principle nor authority provide any support for the proposition that relief by way of constructive trust is available only in the case where a profit or benefit obtained by the fiduciary was one which it was an incident of his duty to obtain for the person to whom he owed the fiduciary duty. Once it is established that the fiduciary is liable to account for a profit or benefit which he has obtained there can be no objection to his being held to account as a constructive trustee of that profit or benefit. It can make no difference that it was not his duty to obtain the profit or benefit for the person to whom the duty was owed. What is important is that the advantage has accrued to him in breach of his fiduciary duty or by his misuse of his fiduciary position. The consequence is that he must account for it and in equity the appropriate remedy is by means of a constructive trust. 1. To similar effect, in Grimaldi v Chameleon Mining (No 2), the Full Federal Court preferred Attorney General v Reid over Sinclair (see at [569]-[584]). In particular the Full Court described (see at [569]) Heiron and Lister v Stubbs as imposing, "an anomalous limitation … on the reach of [Keech v Sandford]". The Court (at [572]) observed, "[t]he findings in [Lister v Stubbs], having regard to its facts, seem quite arresting to modern eyes." Indeed, Lister v Stubbs had earlier been treated with apparent disapproval by Hutley JA in DPC Estates Pty Ltd v Grey [1974] 1 NSWLR 443 (see at 470-471) (as cited in Grimaldi v Chameleon Mining (No 2) at [570]). 2. The Full Court observed, generally, "that the rule as stated and applied in cases such as Eden accords with what has long since been the general understanding in this country of a fiduciary's liability to account for property and profits made in breach of fiduciary duty. [Furs v Tomkies], which would seem to have involved a procuration fee (it mattered not to the Court how precisely the benefit derived was categorised), exemplifies this" (at 571). 3. It is convenient to quote the Full Court's ultimate disposition of the issue in Grimaldi v Chameleon Mining (No 2) (see at [582]-[584]): 582. Whatever may be the reasons for English law's continuing adherence to Lister, the weight of High Court decision and expressions of judicial opinion across the 20th century preordain our rejection of it … We simply note that in the result Australian law matches that of New Zealand (Reid), Singapore (Sumitomo Bank), United States jurisdictions (Carter) and Canada in accepting a proprietary remedy for bribes and secret commissions. Although the position in Canada appeared to remain uncertain for some time despite the considerable liberalisation of the constructive trust as a remedy in Soulos v Korkontzilas (1997) 146 DLR (4th) 214; see Waters' Law of Trusts in Canada, 500-504, (3rd ed, 2005); the British Columbia Court of Appeal recently has accepted and applied Reid's case: Insurance Corporation of British Columbia v Lo [(2006) 278 DLR (4th) 148]. However, Australian law departs from the law as stated in Reid in one important respect. Reid has the constructive trust arising the moment the bribe is received. In Australia, the constructive trust in this setting is a discretionary remedy. 583. There are two additional comments we should make. First, to accept that money bribes can be captured by a constructive trust does not mean that they necessarily will be in all circumstances. As is well accepted, a constructive trust ought not to be imposed if there are other orders capable of doing full justice: see John Alexander's Clubs at [128] and the cases there footnoted. Such could be the case, for example, where a bribed fiduciary, having profitably invested the bribe, is then bankrupted and, apart from the investment, is hopelessly insolvent. In such a case a lien on that property may well be sufficient to achieve "practical justice" in the circumstances. This said, a constructive trust is likely to be awarded as of course where the bribe still exists in its original, or in a traceable, form, and no third-party issue arises. 584. Secondly, we have referred to this body of law at some length notwithstanding that we have concluded that the secret commission obtained by Grimaldi and Barnes under the Winterfall-Murchison agreements, was not a secret commission vis-à-vis Chameleon. It was simply an undisclosed personal interest in the making of the advance of the two cheques. We have taken this course both because the parties have made reference to Sinclair Investments and to Reid and lest it be said that Lister v Stubbs ought nonetheless be applied analogically in relation to the commission received by Grimaldi and Barnes. 1. Accordingly, I accept that, subject to the considerations which arise in the remedial exercise, money bribes can be captured by a constructive trust (and not merely a personal account of profits). 2. With that said, at this juncture, I note that it does not necessarily follow, as the Sayour Parties here contend, that the Sayour Parties are entitled to recover the full value of the development. Rather, that depends on, inter alia, the extent of the interest through a tracing exercise, as well as (as just noted), discretionary considerations and defences. I return to this in due course. Summary re "bribes" allegations 1. It is convenient now to record a summary of my preceding reasons and conclusions. 2. First, it is not necessary, in civil proceedings, for a party to prove a corrupt purpose on the part of the payer of the alleged bribe. 3. Second, it is necessary for the claimant to prove an intention (on the part of the payer) to influence the payee. Again, I note that Plaza has not here pleaded any such intention and, while it sought during cross-examination to put questions to Mr Deiri about his intentions, an objection was made on the basis that intent had not been pleaded. Accordingly, if I am correct, it follows that the bribery allegations must fail. However, again, I record that, in any event, I would not on the evidence conclude that there was an intention to influence Jamil so as to support the finding of bribery. 4. Third, it is unnecessary separately to prove (whether positively or by way of presumption) that the payment so influenced the agent. 5. Fourth, it is not necessary to prove (again, whether positively or by presumption) that the payee had in fact concealed the payments or that the payer had knowledge of that (noting however, of course, the fully informed consent might defeat any such claim). 6. Fifth, it is not necessary that it be proved that a payment was made in connection with a particular contract. 7. Sixth, and relatedly, the plaintiff need not prove, or it will be presumed, that a bribe has been "loaded" into the contract price. 8. Seventh, it need not be proven, whether positively or by presumption, that the impugned transaction was unfair or caused loss. 9. Eighth and finally, subject to defences, discretionary considerations, and the like, money bribes can be captured by a constructive trust (and not merely a personal account of profits). 10. I now turn to the First Broadway Cross-claim. First Broadway Cross claim 1. In the First Broadway Cross-Claim, Plaza has joined issue with the transactions verified by Investments (the first cross-defendant) on the orders made for the taking of accounts on 25 November 2016, which it claims were unauthorised. As against CBA (the second cross-defendant), Plaza claims the following amounts: the sum of $29,724,121.64, being the sum of the cheques drawn on the CBA Partnership Account operated by Plaza and Investments with CBA (see at [2(a)-(e)]; [65]-[104]); $44,182,883.30, being the net balance of $63,610,867.61 debited by CBA to the CBA Partnership Account and $19,427,984.31 credited by CBA to the CBA Partnership Account (see at [2(f)];[105]-[118]); and $34,345,783.45, paid by the Receiver to CBA upon the sale of the Broadway Plaza shopping centre (as will be recalled, Stage 1 of the Broadway Development) (see at [2(g)]; [140]-[147]). 2. The relief claimed by Plaza in the First Broadway Cross-Claim is as follows. 3. Prayer 1 seeks a declaration that the Broadway Partnership is not, and was not at the date of filing the cross-summons (it will be recalled, 19 December 2016), indebted to CBA (that being a date that preceded the sale of the shopping centre and the payment by the Receiver to CBA of about $34,345,783 to CBA to discharge CBA's registered mortgage). 4. Prayer 2 seeks judgment for the partners (i.e., Plaza and Investments) against CBA for various other amounts which the pleading alleges were debited to the partnership without a valid mandate. Those amounts fall into four categories (which I will explain in more detail shortly): first, as adverted to, unauthorised cheques (listed in schedules A to E to the First Broadway Cross-Claim); second, a balance of debits and credits to the CBA Partnership Account associated with the construction facilities, for interest and line fees on those facilities, "rollovers" and amounts taken as repayments when the residential units were sold (listed in Schedule F to the First Broadway Cross-Claim); third, drawings on the construction facilities to pay the builder (listed in Schedule G to the First Broadway Cross-Claim); and, fourth, the payment made by the Receiver to CBA on completion of sale of the shopping centre. 5. Prayers 3 to 10 seek declarations and orders for the delivery up for cancellation of the various facility agreements and instruments that are alleged to be forgeries: those being the June 2013 and September 2013 instruments (including the Second Facility Agreement). As I have deliberated upon above, the "Moustafa" signatures on each of these documents bear no attestation and have been found by the document examiner (Mr Dubedat) not to be genuine signatures. Plaza says that these "forgeries" cannot form a basis for justifying the facility payments or the bank account payments. 6. As to those claims, in summary, the parties' positions (and, particularly CBA's, which is largely supported by the Deiri Parties) are as follows. Summary of parties' respective positions 1. As to the claims made in respect of the cheques, that, to the extent that there was a breach of the bank's mandate (in respect of the cheques prior to the Cheque Authorisation Alteration Instruction), Jamil was authorised to sign the cheques on behalf of Moustafa Plaza. 2. As to the claim for the net balance of the debits and credits to the CBA Partnership Account, that the debits included bank fees and charges, and interest charged by CBA to that account amounting to approximately $4.7 million (it says that the remainder of the fees and interest were capitalised to the loan facilities), together with an amount of approximately $58.8 million by way of repayment of the principal amount owing under the loan facility agreements. More particularly, it is said that, of the $58.8 million, approximately $42 million discharged the Stage 2 Loan (repayment of the balance owing under the Second Facility Agreement being made in November 2014), while the balance comprised short-term payments towards the loan facilities which were reimbursed by further drawdowns from those facilities (and are included in the $19 million credits to the CBA Partnership Account). 3. CBA relies on cl 13 of each of the First Facility Agreement and Second Facility Agreement, which it maintains authorised it to debit bank fees and charges, and interest charged by it, directly to the CBA Partnership Account; and says that no separate authority was required from the partners before these debits could be made. As to the complaint that the Second Facility Agreement was not signed by Moustafa, CBA maintains that Jamil had Plaza's authority in any event. 4. As to Plaza's claim to recover the sum of $34,345,783.45 (repaid to CBA by the Receiver to satisfy the Stage 1 Loan), that being the debit balance of the Stage 1 Loan as at 30 March 2017, that CBA's registered mortgage entitled it to repayment of the secured advances. CBA says that the Receiver was obliged to get in the Broadway Partnership's assets and pay its liabilities; that the Stage 1 Loan was one of those liabilities; and that the Receiver paid it. Thus, it is submitted that Plaza's claim to repayment of this sum is without merit. 5. Apart from the arguments based on Jamil's authority in relation to the project, CBA and the Deiri Parties raise arguments against the relief claimed even if there is a finding that Jamil did not have the requisite authority, including arguments based on estoppel and conventional estoppel. 6. In reply, Plaza relies upon the bribery allegations (as to which, see above) as being fatal to the case that Jamil had actual authority or that there was a conventional assumption by Investments that Jamil was authorised by Moustafa to execute the payments of which complaint is made. The significance of the bribery allegations is also a central focus of the Fifth Broadway Cross-Claim (see below). Alleged unauthorised payments and moneys 1. It is convenient at this stage to provide further detail as to the various categories of the payments listed in schedules A to H that are alleged to be unauthorised. Schedule A: cheques bearing signatures of Mr Deiri and Jamil 1. The first category of cheques alleged to have been unauthorised (and to have been paid contrary to CBA's mandate) is comprised of cheques that bear the signatures of both Mr Deiri and Jamil (i.e., cheques which on their face do not purport to bear a signature of Moustafa). The amount of these cheques in total is $2,803,328.94. They were drawn in the period from 1 February 2012 to 30 June 2013. 2. Pausing here, there is an issue (which I have adverted to above) as to whether Mr Deiri (or for that matter, Ms Dahdal and others) was familiar with Jamil's usual signature or at what point he or she might be taken to have been familiar with Jamil's usual signature (for example, see Mr Deiri's evidence at T 989.30-47; and Ms Dahdal's evidence at T 1204.30 – T 1205.20). However, there does not appear to be any real dispute that the "Jamil" signature that appears on these Schedule A cheques was not made by Moustafa; and it is evident, from a layperson's perspective (although, I accept, the dangers in embarking without forensic expertise on such an exercise), that the "Jamil" signature differs markedly from that which Moustafa identifies as Moustafa's usual signature. Schedule B: cheques bearing Mr Deiri's signature and a non-genuine "Moustafa" signature 1. The second category of impugned cheques is comprised of cheques signed by Mr Deiri and which bear what Plaza maintains is a forged (but which I will continue to describe more neutrally as an "imitation" or non-genuine – as to which, see my comments above) "Moustafa" signature. These cheques total the sum of $9,399,779.70 in the period from 18 January 2013 to 13 November 2014. The first 33 of these cheques overlap in time with the last 11 cheques in Schedule A. 2. The earliest "imitation" or non-genuine Moustafa signature on any cheque appears to be cheque #214 dated 18 January 2013 (though the Sayour Parties point out that there are earlier imitation signatures on accommodation notices on the construction facility). The Sayour Parties point out that, after the 2013 CBA cheque query as to the "Jamil" signature, the predominance is of cheques bearing "imitation" Moustafa signatures; that there were three cheques dated 30 April 2013 bearing "imitation" Moustafa signatures (cheques #234, #235 and #236) and that the next cheque bearing a "Jamil" signature and no "imitation" Moustafa signature was not until cheque #249 dated 17 June 2013. Schedule C: cheques bearing three signatures 1. The third category of unauthorised cheques is comprised of cheques that bear three signatures (the signature of Mr Deiri, the "Jamil" signature, and the imitation "Moustafa" signature). There are six such cheques. They total $374,418 in the period from early June 2013, thus overlapping with cheques listed in both Schedule A and Schedule B. 2. The Schedule C cheques all post-date the 2013 CBA cheque query as to the "Jamil" signature. The Sayour Parties in closing submissions suggest that the three signatures indicate that there were occasions when Jamil reverted to "previous habit" and that a non-genuine "Moustafa" was added. I would be more inclined to infer that on these occasions the non-genuine "Moustafa" signature was added to a cheque that had already been signed by Jamil with his usual signature (i.e., not so much that there was a reversion to previous habit, but that these were cheques that had been signed in advance by Jamil and not yet used and that the addition of the "Moustafa" signature was in recognition of a potential difficulty with reliance on a "Jamil" signature). It is difficult not to conclude that, once the 2013 CBA cheque query had been raised with Mr Deiri, he (at least) was aware of an issue as to the use of Jamil signatures (or at least of there being an issue as to the authenticity of a signature purporting to be on behalf of Plaza). In any event, there is other evidence (namely, the email communications to which I have referred above and return to in due course) to support the conclusion that there was a practice from time to time of cheques being signed in advance (the Sayour Parties refer to this as "pre-signing" cheques) and I accept their submission that the three Schedule C cheques are likely to be instances of this practice. Schedule D: cheques bearing only a non-genuine Moustafa signature 1. The fourth category is comprised of cheques bearing only an imitation or non-genuine Moustafa signature. There are three such cheques, totalling $86,820. They are dated, respectively, 26 September 2013, 13 November 2013 and 4 June 2014 (thus overlapping with cheques listed in Schedule B, but not with cheques listed in Schedule A or Schedule C). Two of the three cheques pre-date the Cheque Authorisation Alteration Instruction sent on 7 February 2014. Schedule E: cheques bearing only Mr Deiri's signature 1. The fifth category is comprised of cheques bearing only Mr Deiri's signature. These cheques total $17,119,845.79, and cover the period from 18 September 2013 to 16 December 2015. They therefore overlap with cheques listed in Schedule B and Schedule D. Some of these cheques also pre-date the Cheque Authorisation Alteration Instruction sent on 7 February 2014. 2. Pausing here, I note that the Sayour Parties have complained that no explanation has been provided of: the "transition" from use of the "Jamil" signatures to the use of the imitation "Moustafa" signatures; the period of overlap between the Schedule A and Schedule B cheques from January to June 2013; nor of the Schedule C and Schedule D cheques. Nor, I might add, has there been an explanation of the fact that some of the cheques bearing only one signature (in both Schedule D and Schedule E) pre-dated the Cheque Authorisation Alteration Instruction). Schedule F: interest, line fees and rollovers 1. Schedule F lists items that were debited to the CBA Partnership Account in connection with transactions on the construction facilities. The Sayour Parties contend that these items were unauthorised (see at at [105]-[118]). Plaza claims the net balance of the various debits and credits there listed. Although, I here note that no claim is made by Plaza in respect of the establishment fee of $227,985, to which the Sayour Parties accept CBA was contractually entitled under the First Facility Agreement. 2. The Sayour Parties categorise the debits as falling into three groups, by reference to the descriptions in the CBA bank statements and its running balance of loan facilities: first, interest and usage fees; second, line fees; and, third, "drawdown rollovers" (although the Sayour Parties note that these include repayments without any rollover as such). 3. As to the amounts for interest, the Sayour Parties say that the debiting of interest can only be referable to principal drawings on the facilities and, therefore, depends on the validity of those drawings (which are themselves the subject of dispute in respect of unauthorised payments to the builder, referring to Schedule G – as to which, see below). 4. As to the line fees, the Sayour Parties say, by reference to cl 13(b) of the First Facility Agreement, that the monthly fee payable should have been $7,287.50 (and it notes that on no occasion was such an amount debited to the account). 5. The Sayour Parties say that, from September 2012, line fees, usage fees and interest began to be debited to the CBA Partnership Account through aggregation into rollover debits that "lumped" into one amount on each occasion items which the Sayour Parties say can now be seen to be the aggregation of principal, interest and fees (but which are not itemised as such in the bank statements). It is noted that the rollovers are described in CBA's running balance statement as maturity repayments, and rollover drawdowns, but that the terms of the First Facility Agreement defined the "Repayment Date" as four different periods in respect of four tranches, and cl 5.1 provided for repayment on the "Repayment Date". Accordingly, the Sayour Parties say that there was no basis for rollovers at the different times indicated in the running balance statement; and that what seems here to have occurred is a capitalisation (not provided for in the First Facility Agreement) of interest and fees relative to advances made (noting that those advances are in turn disputed by it as unauthorised transactions). 6. The Sayour Parties say that CBA does not plead (in response to [105]-[118] of the First Broadway Cross-claim) that the deduction of any of the payments listed in Schedule F was authorised by the partners by cl 13 of the First Facility Agreement; rather, that CBA's defence is confined to the general pleas of authorisation made later in the defence in respect of all the unauthorised payment claims (with the addition in [115] of a specific plea based on the Cheque Authorisation Alteration Instruction). The Sayour Parties also say that CBA does not allege that it received any relevant facsimile instruction in respect of the CBA Partnership Account and says that this matter does not afford it a defence. 7. As to the position in respect of interest charges, line fees and rollover fees, I accept that insofar as those charges were not commensurate with the contractual entitlements of CBA under the respective facility agreements, then they were not authorised and (subject to consideration of the matters raised by CBA) they are recoverable as moneys had and received. However, that is a different issue to whether the amounts in respect of which interest was charged were themselves authorised under the respective construction contracts or the like. Schedule G: payments made pursuant to accommodation notices 1. The amounts listed in Schedule G (the subject of the pleading at [119]-[139] of the First Broadway Cross-Claim) are amounts that were not paid through the CBA Partnership Account but were paid by CBA to the builder pursuant to what the Sayour Parties describe as the "purported" accommodation notices. 2. Pausing here, consistently with the relevant contract provisions, I have generally referred to these as "accommodation notices" although from time to time in written submissions, and disclosed in the evidence, these are referred to as "drawdown notices". Nothing turns on the difference in nomenclature. 3. The Sayour Parties' complaint here is that no accommodation notice conforming with the requirements set out in the First Facility Agreement was ever given (and, hence, it says those payments by CBA were without a mandate). A similar complaint is made in relation to such payments under the Second Facility Agreement (although, in that case, there is also the complaint that Moustafa did not sign the documents in relation to the establishment of that facility and those documents are therefore said to be a nullity). 4. Quite apart from the complaint as to the lack of conforming accommodation notices, Plaza also raises an issue as to payments made for excavation works (as considered earlier). The relevance of this is that the Sayour Parties say that, by the time that PC 9 (dated 31 October 2012) was paid, the groundworks and shoring were complete. Reference is made to an email dated 21 November 2012 from Mr Deiri, describing this as a "revised" claim. It is noted that an accommodation notice dated 21 November 2012 for $3,845,607 was signed by Mr Deiri (with a non-genuine Moustafa signature) and that it was paid by CBA to Deicorp Constructions on 27 November 2012, bringing the total paid under the construction facility to $13,170,693.91. The Sayour Parties refer to the sum included in the 8 February 2012 Stage 1 Construction and Design Contract (as summarised above) for groundworks and shoring; and note that the progress claims from PC 2 to PC 9 included items for groundworks and shoring. Thus, the Sayour Parties say that, by 27 November 2012, the entire sum claimed by Deicorp Constructions for earthworks had been claimed and paid by CBA; and the Sayour Parties say that this was part of what CBA evidently considered had been advanced to the Broadway Partnership, secured by the registered mortgage over its land. 5. The Sayour Parties argue that this means, in effect, that not only did Investments "contribute" land (for which they say Plaza has not been paid – this being the subject of the Second Broadway Cross-Claim), but it also caused CBA to advance (on the security of the Broadway Site) over $4.5 million to pay a related company (that is, Deicorp Constructions) for work that the Sayour Parties says Investments (see also my consideration of this issue above) had agreed to procure; and that Investments achieved this with mandates, three of which (being the second, third and fourth accommodation notices) were signed by Jamil using his own signature, and the next five of which bore imitation "Moustafa" signatures. (The Sayour Parties add here that all this was being done at a time when Jamil was in receipt of bribes, as to which its allegations have been dealt with above – though see my disposition of this issue above). Schedule H: CBA Partnership Account 1. As to the claims concerning the operation of the CBA Partnership Account, Plaza says that approximately $87.8 million was deposited into the account over the period from 2 February 2012 to 24 February 2017 (see at [12]-[63] of the First Broadway Cross-claim). Plaza says that, apart from a number of relatively minor differences or discrepancies, this figure is not in dispute (see as listed in the revised Schedule H contained in the reply to the defence, which addresses the discrepancies). 2. I now turn to consider the parties' respective submissions. Sayour Parties' position 1. As I have observed above, in essence, the Sayour Parties' position is that payments were made by CBA without any valid mandate from the partners (either not being signed in accordance with the terms of operation of the CBA Partnership Account, in the case of cheques, or not being made pursuant to conforming notices under the respective finance facilities, in the case of accommodation notices) and hence these are debts due by CBA to the partnership; and, they contend that the finance facility instruments, other than the First Facility Agreement, were nullities because of the forged signatures of Moustafa on those documents; and that other payments in connection with the construction work were not authorised. 2. It is noted that the CBA Partnership Account opening form is expressed to be executed on behalf of the partners, has contractual effect and identifies the authorised signatories for the partnership (both of which are both are required to sign); and, similarly, in the case of the First Facility Agreement, "Borrower" was defined as Plaza and Investments (and so, it is said, any accommodation notice had to be signed on behalf of the Broadway Partnership). Further, it is noted that the pleaded case of Investments is not that Jamil was authorised to sign on its behalf, or on behalf of the partnership; rather, that Jamil was authorised to sign on behalf of Plaza and on behalf of Moustafa. 3. The Sayour Parties refer, in the context of the duties which exist between banks and their customers, to what was said Commonwealth Trading Bank v Sydney Wide Stores Pty Ltd (1981) 148 CLR 304 at 317; [1981] HCA 43 per Gibbs CJ, Stephen, Mason, Aickin, Wilson and Brennan JJ as to the duty of the customer to take usual and reasonable precautions in drawing a cheque to prevent a fraudulent alteration which might occasion loss to the banker; and to the duty of the bank owed to its customer where doubt arises as to the nature and true ownership of the cheque (referring to Hunter BNZ Finance v C G Maloney Pty Ltd (1988) 18 NSWLR 420 (Hunter BNZ Finance v C G Maloney) at 445B per Giles J (as his Honour then was) and to Karak Rubber Co Ltd v Burden (No 2) [1972] 1 WLR 602; [1972] 1 All ER 1230 at 1231 per Brightman J, which was considered in Sansom v Westpac (1996) 116 BPR 97,I584 at 9-10 per Sheller JA). 4. The Sayour Parties rely upon the proposition that, where funds are paid away without mandate, the bank is not authorised to debit the customer's account; and that, where this leaves (or later payments result in) a credit balance in favour of the customer, the customer is entitled to recover that as a debt due (citing National Australia Bank v Hokit Pty Ltd (1996) 39 NSWLR 377 (NAB v Hokit); Fried v National Australia Bank (2001) 111 FCR 322 (Fried v NAB)). 5. Insofar as CBA relies upon payment, as a defence to the claim made on behalf of the partnership to recover the said amounts as a debt, the Sayour Parties say that CBA has not satisfied its onus of establishing that it honoured a cheque or accommodation notice in conformity with terms of its mandate (citing NAB v Dionys at [154]). Similarly, the Sayour Parties say that, insofar as Investments has brought these payments into its list of partnership transactions on the taking of partnership accounts, Investments bears the onus to establish that they were in fact transactions of the partnership. 6. The Sayour Parties say that a consequence of the terms of operation of the CBA Partnership Account is an agreement between the partners and CBA that both partners were required to sign by their stipulated signatories (again, Moustafa, in the case of Plaza, and Mr Deiri, in the case of Investments); and that the undertaking of CBA not to honour cheques unless signed by both Mr Deiri and Moustafa was a condition which enured for each of the partners (Plaza and Investments) as a measure to ensure no dishonest drawings between the partners (referring to Ardern v Bank of New South Wales [1956] VLR 569 (Ardern v Bank of NSW) at 573-574 and the authorities which have followed). The Sayour Parties further say that, as there explained by Martin J, it is not open to CBA to assert (by reference to the provisions of the Partnership Act) that the signature of one partner was sufficient (for the reason that, by its contract with them, CBA agreed with each of Plaza and Investments that the agency of either would be insufficient unless both of the nominated signatories signed). 7. Moreover, the Sayour Parties points to Mr Deiri's affidavit sworn on 16 October 2019 (at [217]), where Mr Deiri deposes to his assumption, when transacting on the CBA Partnership Account, that CBA would conduct operations "in accordance with the operating rules we had agreed"; and that he expected that any irregularity would have been brought to his attention and that CBA would not permit any fraudulent transaction to occur. The Sayour Parties says that this amounts to a disavowal of the Partnership Act plea (and that this evidence directly impeaches the conventional estoppel case asserted by both CBA and Investments – as to which see further below). 8. As to the cheques contained in Schedule A (noting, again, all of which pre-dated the Cheque Authorisation Alteration Instruction), the Sayour Parties say that there is no dispute that Jamil was never an authorised signatory on the CBA Partnership Account. The Sayour Parties note that the form of each cheque is expressed as a direction by Plaza and Investments to CBA to pay the nominated payee the nominated sum. The Sayour Parties say that it thus represents that the signatures are signatures of the partners. They contend that (given that Jamil had no authority to sign and that Mr Deiri had no authority by himself to sign) those signatures were not the signatures of the partners and the cheques were thus forgeries in the sense described in Kreditbank Cassel GmbH v Schenkers. 9. The Sayour Parties rely on the 2013 CBA cheque query as to the "Jamil" signature as evidence that CBA was concerned that the signature of Moustafa was required. They say that any attempt to show that Jamil had authority to sign cheques would have to show, in the face of this direct enquiry from CBA, that express confirmation was sought and obtained from Moustafa that Jamil was authorised to sign that specific cheque; and it is noted that no such confirmation was requested. The Sayour Parties further say that, even had it been given, that would not have established general authority to sign cheques, and that, for such an assumption to be reasonably made, that further extension would need to have been the subject of enquiry, in circumstances where such a significant question had been raised. 10. As to the cheques bearing the imitation Moustafa signature, the Sayour Parties again say that these are forgeries (again, as, they say, was the signature on the Cheque Authorisation Alteration Instruction). 11. As to [170]-[182] of CBA's defence, which pleads the facility agreements in answer to each class of the cheque claims, the Sayour Parties maintain that these paragraphs of the CBA defence are irrelevant to the cheque claims (which, it says, do not depend on drawings under the facility agreements). 12. As to the accommodation notices, the Sayour Parties say as follows. The Sayour Parties submit that the First Facility Agreement (again, the execution of which it is accepted was authentic) required drawings to be made by accommodation notices to be signed by Mr Deiri and Moustafa; and that the Business Loan Authority signed on 20 February 2012 required advances under the facility to be deposited to the CBA Partnership Account. 13. The Sayour Parties note that every accommodation notice (even those signed with Jamil's "usual" signature) bore the printed name of Moustafa; and that every cheque bore the name of Plaza. It is said that the discontinuance of the practice of using Jamil's usual signature after this was queried by CBA confirms that Jamil was not authorised to act for the Broadway Partnership in the signing of cheques and accommodation notices, but that these were signed under the pretence that Moustafa was acting personally. It is said that many other circumstances confirm this, including: "the early forgeries" of the mandate letter (on 21 December 2011) and the Matthews Street Co incorporation and unit trust documents; the payment of secret commissions to Jamil; the suppression from Moustafa of competing building tenders (this being a reference to the Dyldam quote; and the "deception later practised upon him" in respect of the alteration of the price for Stage 2. 14. It is submitted that there must be a strong inference that Jamil understood that Moustafa did not approve, or would not be likely to approve, important steps that were being taken. It is submitted that, if it be found that Investments and Mr Deiri knew that Jamil was signing or that Investments or Mr Deiri took part in the preparation of unauthorised mandates, then they too understood that Moustafa did not approve or would not be likely to approve important steps that were being taken. I interpose here to note, however, that I have not made the finding on which this submission is premised (see above). 15. The Sayour Parties again say that the operating authorities established a contractual regime requiring specific signatures for the Broadway Partnership; and that, even if Jamil had "full power of attorney" to act for Plaza, he needed authorisation to sign for the partnership. It is said that the Cheque Authorisation Alteration Instruction shows an acceptance of this necessity. Thus, it is said that the actions of Jamil were not an act of the Broadway Partnership; they were imposed as purported acts of Plaza by Moustafa; and thus were forgeries and, under the traditional doctrine of the common law, they were nullities. 16. In the case of the accommodation notices, it is said that it was established by a combination of the evidence of Mr Dubedat and cross examination of Mr Deiri that these were not even the act of Jamil but were prepared in the Deicorp office and emailed to CBA by Mr Deiri. I interpose to note, as I have found above, that I accept that this is the case other than for the three earlier accommodation notices which appear to bear a Jamil signature. 17. Furthermore, it is said that the Powers of Attorney have no relevance to the acts of Mr Deiri or his staff and could not authorise the preparation of these notices. 18. The Sayour Parties say that it is evident that, but for the very first payment of around $1.24 million (as to which there appears to be no accommodation notice), CBA acted on instructions contained in the accommodation notices provided by Mr Deiri, directing payment to the building company, Deicorp, rather than to the CBA Partnership Account. 19. In respect of the First Facility Agreement, the Sayour Parties say that the question of mandate is concerned with the efficacy of the accommodation notices. They say that the evidence establishes (and, as I have said, I agree) that Moustafa did not sign any of the accommodation notices. It is said that the evidence of Mr Deiri that Moustafa authorised the drawdowns under the first facility by signing in advance a blank template form and giving it, through Jamil, to Mr Deiri for use in all subsequent draws is inconsistent with the objective evidence and should be rejected. The Sayour Parties say that, to the contrary, the method adopted purportedly to authorise drawings was calculated to keep Moustafa from seeing them and from having opportunity to object to any specific notice. 20. Pausing here, the signing of a template notice as Moustafa did, seems to me to be inconsistent with such a submission. To my mind, the only purpose of signing such a template as Moustafa did can have been to permit use of such a template document in some manner. 21. The Sayour Parties say that the instruments executed in June 2013 to amend the Stage 1 Loan and to establish the facilities for Stage 2 were forgeries; as were further amendments in September 2013. The Sayour Parties say that it follows that there was no second construction facility (i.e., the facility did not exist at all); and that the "mandate problem" in relation to the Second Facility Agreement is thus not confined to unauthorised accommodation notices. 22. The Sayour Parties say that the purported signatures of Moustafa on the Stage 2 accommodation notices are also forgeries. It is noted that Mr Dubedat has identified many of them as replicas of one another, and not all in the same series. I have referred above to the evidence given by Mr Deiri in cross-examination as to the process of preparation of the accommodation notices. 23. In particular, the Sayour Parties say that the cross-examination discredited the evidence that the manila folder procedure was used at all, as well as the interposition of the Stage 2 Construction Contract. They emphasise that the relevant signature block that appears on the fifth accommodation notice (dated 23 January 2014 in Stage 2 was used on subsequent accommodation notices under Stage 2, as well as on the Cheque Authorisation Alteration Instruction and the accommodation notice for the final claim on Stage 1 (dated 23 March 2014); and that, at this stage, the Arncliffe Development was then under "active consideration" (and they emphasise that this was at the same time as Jamil had told Mr Deiri that he, Jamil, had been lying to his father in respect of the Broadway Stage 2 Construction Contract, pointing to the chronology of events in late January 2014 and February 2014). 24. The Sayour Parties submit that the conduct involved in the preparation of these accommodation and other notices has very substantial ramifications for Mr Deiri's understanding at the time and for his explanations now given of transactions to which those instruments related. In particular, the Sayour Parties say that there could be no honest reason for using a copied signature of Moustafa to achieve an alteration in the authority required to sign cheques. 25. I interpose to observe that, while I do find problematic the circumstances in which the Cheque Authorisation Alteration Instruction was issued, I do not consider that there could only have been a dishonest reason for it having been prepared as it was. 26. Following, the legal consequences of the absence of mandate, subject to any special defences, are identified by the Sayour Parties as being that: the payments made by the CBA were made by it as a volunteer; the payments did not alter the relation between CBA and the Broadway Partnership by affecting balances owed by one to the other; and the payments are recoverable by Plaza from CBA from the recipients as money had and received to the use of CBA. 27. It is said that, because there was no mandate for any given drawing on either of the construction facilities, those drawings were not an advance on the construction facilities at all and so did not make the partners debtors of CBA. Thus, it is said that it follows that the amounts paid did not create or increase an indebtedness by the Broadway Partnership to CBA and that interest did not run on the amounts purportedly drawn down (because there was no principal liability on which the interest rate could operate); and, accordingly, that the interest payments that were debited to the CBA Partnership Account were not authorised by cl 13 of the first facility agreement (which only authorised CBA to debit interest that was due). 28. It is said that there is further complication in the compounding of interest and the incidence of fees resulting from "rollovers". This purported "complication" is as follows: first, that the rollovers do not accord with the terms provided in the First Facility Agreement; and, second, that they assume the original liability that is being rolled over. It is said that this affects the accrual of fees as well as interest, with the result that, although cl 13 authorised CBA to debit the CBA Partnership Account with fees that were due to it, CBA was not authorised to make the debits that it made, because the fees were incorrectly calculated and the payments debited were therefore not due. So far as the amounts of the purported drawdowns were credited to the CBA Partnership Account (which the account statements and CBA's running balance document identify in some instances), it is said that, by reason of the above, they did not create or increase indebtedness. 29. Thus, the Sayour Parties submit that, unless by some special defence it is established that (contrary to the prima facie consequence that the absence of a mandate meant that the Broadway Partnership did not become indebted to CBA for the unauthorised payments), the Broadway Partnership did not owe $34.3 million ("or anything like it") to CBA in 2017 (when the Receiver directed that sum to be paid, under protest, by the purchaser of the shopping centre to CBA in order to obtain a discharge of the registered mortgage); and, therefore, that the sum paid in that way in excess of what was due was money that CBA should never have obtained, thereby being money had and received to the use of the partnership for which CBA is liable both at common law (and pursuant to its undertaking given at the time of the payment by the Receiver). It is said that this fund is available for division between the partners in the partnership accounting in accordance with their respective entitlements on the taking of the account. 30. As to CBA's defence that only half of the amount claimed is recoverable, and its pleading (see at [194] of its defence) disputing Plaza's standing to seek relief on behalf of Investments, the Sayour Parties maintain that Plaza, as a partner of the Broadway Partnership, has standing to maintain the present action on behalf of the partnership (and to complain in circumstances where Investments, though having continuing obligations as partner for the purpose of the winding up, has taken a position adverse to the partnership). The Sayour Parties point to Ardern v Bank of NSW as authority for the further proposition that one of two joint account holders cannot recover against a banker upon a separate action for more than half of the amount debited without authority. They point out that an attempt to distinguish Ardern v Bank of NSW failed in respect of an action at law in Vella v Permanent Mortgages (see at [424]-[445]), although (at [433]-[437]) Young CJ in Eq, as his Honour then was, there pointed to wider remedies in equity (his Honour citing Jackson v White and Midland Bank Ltd [1967] 2 Lloyd's Rep 68 (Jackson v White and Midland Bank) at 8 per Park J)). 31. In this regard, the Sayour Parties submit that Plaza's present suit is a separate action and is an equitable suit (not an action at law); and that it sues on behalf of the Broadway Partnership in a winding up by the Court. In the alternative, the Sayour Parties say that, if CBA's "one-half" defence is good, then there must be a consequence for the partnership accounting. It is said that, because the partners' obligations continue so far as may be necessary to wind up the affairs of the partnership (citing s 38 of the Partnership Act and Chan v Zacharia for a partner (here, Investments) in the winding up to prefer (for its private reasons or gain) the interest of a third party (such as CBA) adverse to the interest of the partnership is an equitable wrong. The Sayour Parties say that this is of significance to CBA's defence that relief under the First Broadway Cross-Claim must be limited to one-half of the unauthorised payments because of Investments' refusal to join in the claim. They submit that it would be unjust, as between the partners, for Investments to forego half of the partnership's rights and yet seek to participate in recovery obtained at the instance of Plaza; and hence, in those circumstances, Investments should be surcharged in the partnership accounting with the one half foregone as a result of its failure to join as a cross claimant in the First Broadway Cross-Claim. 32. As to [183]-[193] of CBA's defence (in which CBA pleads that the partners used "the funds provided by CBA" to develop a car park, shopping centre and residential apartments, which were then sold to produce moneys), the Sayour Parties complain that there is no specific allegation that any of the cheques, debits or drawdowns was used for this purpose, nor discharged a liability of the Broadway Partnership nor how those liabilities arose. Indeed, complaint is made that the allegation is simply at a general level in respect of a multitude of disparate payments. 33. In particular, the Sayour Parties complain that there is no identification of the basic factual steps involved in the allegation (at [183]) that each cheque, debit or drawdown was "used" and was "provided to Plaza and Investments". It is submitted that those assertions assume the fact of authorisation that they are pleaded to establish; and the pleadings are therefore circular and add nothing to the assertion that the payments were in fact authorised. So far as these defences refer to payments to the builder, the Sayour Parties point to the Fifth Broadway Cross-Claim in which Plaza alleges that the payments were not made to discharge a liability that the Broadway Partnership owed. 34. It is convenient next to consider the position, in outline, of CBA and, as necessary, the Deiri Parties regarding the unauthorised payment claims. CBA's and Deiri Parties' position 1. As is clear from all of the preceding, both CBA and the Deiri Parties raise, in answer to the unauthorised payments claims, the issue of Jamil's authority. They contend, in essence, that Jamil was authorised to sign cheques on behalf of Moustafa on three bases: actual authority, by reason of the Powers of Attorney granted to Jamil; actual or implied authority, implied by reason of Moustafa giving Jamil responsibility to manage Plaza's involvement in the Broadway Partnership; and ostensible authority, by reason of Plaza (through its director, Moustafa) holding Jamil out as Plaza's representative and manager of its involvement in the Broadway Partnership (and by Moustafa, it is said by the Deiri Parties, then taking a "backseat" on the project and partnership, leaving Jamil in charge and in day-to-day control). Similarly, as to the accommodation notices and other documents, reliance is placed on the contention that Jamil had actual or implied or ostensible authority to sign those documents. 2. CBA says that Jamil's signature of the cheques drawn on the CBA Partnership Account before 7 February 2014 was not unauthorised, having regard to the express authority conferred by the Powers of Attorney or the implied authority to be inferred from the circumstances. 3. Alternatively, it is said that Plaza is estopped from denying the genuineness of such signatures. 4. For the cheques signed from 7 February 2014 by Mr Deiri alone, it is said that this is in accordance with the variation of CBA's mandate provided by the Cheque Authorisation Alteration Instruction. It is said that Jamil had Plaza's (or Moustafa's) authority to give that instruction or, alternatively, again that Plaza is estopped from denying that authority (as to which, see below). 5. As to the claim in respect of the net balance of the CBA Partnership Account, CBA says that the amounts debited by CBA to the CBA Partnership Account (by way of fees, interest, charges and repayments) were expressly authorised by the First Facility Agreement, by the Powers of Attorney and/or the implied authority of Jamil to bind Plaza to those transactions. 6. As to the claim in respect of the receipt of proceeds of sale, CBA says that it held a registered mortgage (signed by Moustafa for Plaza and Mr Deiri for Investments) as security for its advances; that the advances were made; that there is no challenge to the appointment of the Receiver, who sold the retail complex and paid $34,345,783.45 of the proceeds to CBA in repayment of indebtedness; and that CBA had express authority to receive the funds. Alternatively, it is submitted that CBA had implied authority to receive the funds. 7. Alternatively, CBA raises arguments based on principles of conventional estoppel and acquiescence (again, to which I will come in due course). 8. It is convenient now to turn to the issues vis-à-vis Jamil's authority. Jamil's authority 1. As to the issues vis-à-vis Jamil's authority, reliance is placed by CBA and the Deiri Parties, by way of example, on authority for the proposition that a bank is entitled to act on cheques drawn or other instructions given by a person who has actual authority to conduct the transactions, notwithstanding that the bank's written mandate from the customer requires additional or different signatories (reference being made to London International Trust Ltd v Barclays Bank Ltd [1980] 1 Lloyd's Rep 241 (London International Trust v Barclays Bank) at 248-249 per Slynn J; Majesty Restaurant Pty Ltd (In liq) v Commonwealth Bank of Australia (1998) 47 NSWLR 593 (Majesty Restaurant v CBA) at 611 per Hunter J). It is noted that both London International Trust v Barclays Bank and Majesty Restaurant v CBA were cited in Katwell Pty Ltd v National Australia Bank Ltd [2012] NSWSC 513 (Katwell v NAB) at [42] and NAB v Dionys at [104]; and that a similar position was reached by the Federal Court in Fried v NAB (see at 345 per Gray J). The Deiri Parties say that these principles are reflected in J Paget and M Hapgood, Paget's Law of Banking (12th ed, 2002, LexisNexis), referring to the statements there contained at [10.8] and [19.2]. 2. As noted, one basis on which it is contended that Jamil had authority to bind Plaza in respect of the cheques and accommodation notices is by reference to the respective Powers of Attorney granted to him. Actual authority by reason of the Powers of Attorney 1. It is convenient first to outline the relevant statutory provisions. Relevant statutory provisions 1. Section 43 of the Powers of Attorney Act provides that: 43 Attorney may execute instruments and do other things in own name (1) An attorney under a power of attorney may, in the exercise of the power: (a) execute any assurance or instrument with the attorney's own signature and, where sealing is required, with the attorney's own seal, or (b) do any other thing in the attorney's own name. (2) An assurance or instrument executed, or thing done, in accordance with subsection (1) is as effectual in law as if executed or done by the attorney with the signature and seal or, as the case may be, in the name, of the principal. 1. Powers of attorney may also be "prescribed powers of attorney" under the Powers of Attorney Act if they use prescribed language under the relevant regulations. At the relevant time (i.e., between 1 May 2010 and 12 September 2013), s 8 of the Powers of Attorney Act provided that: 8 Creation of prescribed power of attorney An instrument (whether or not under seal) that is in or to the effect of the form set out in Schedule 2 (the prescribed form) and is duly executed creates a prescribed power of attorney for the purposes of this Act. 1. Section 9 of the Powers of Attorney Act provides that: 9 Powers conferred by prescribed power of attorney (1) Subject to this Act, a prescribed power of attorney confers on the attorney the authority to do on behalf of the principal anything that the principal may lawfully authorise an attorney to do. (2) A prescribed power of attorney has effect subject to compliance with any conditions or limitations specified in the instrument creating the power. [Emphasis added] 1. Section 10 of the Powers of Attorney Act provides that: 10 Prescribed power of attorney does not confer authority to act as trustee A prescribed power of attorney does not confer authority to exercise any function as a trustee that is conferred or imposed on the principal. 1. Section 11 of the Powers of Attorney Act provides that: 11 Prescribed power of attorney does not generally confer authority to give gifts (1) A prescribed power of attorney does not authorise an attorney to give a gift of all or any property of the principal to any other person unless the instrument creating the power expressly authorises the giving of the gift. Note. This subsection restates a rule of the general law. Accordingly, whether a gift of all or any of the property of a principal is expressly authorised by a prescribed power of attorney is to be determined by reference to the general principles and rules of the common law and equity concerning the interpretation of powers of attorney. (2) Without limiting subsection (1), a prescribed power of attorney that includes the prescribed expression for the purposes of this subsection set out in Schedule 3 authorises an attorney to give the kinds of gifts that are specified by that Schedule for that expression. [Emphasis added] 1. Similarly, s 12 provides as follows: 12 Prescribed power of attorney does not generally confer authority to confer benefits on attorneys (1) A prescribed power of attorney does not authorise an attorney to execute an assurance or other document, or to do any other act, as a result of which a benefit would be conferred on the attorney unless the instrument creating the power expressly authorises the conferral of the benefit. Note. This subsection restates a rule of the general law. Accordingly, whether the conferral of a benefit on an attorney is expressly authorised by a prescribed power of attorney is to be determined by reference to the general principles and rules of the common law and equity concerning the interpretation of powers of attorney. (2) Without limiting subsection (1), a prescribed power of attorney that includes the prescribed expression for the purposes of this subsection set out in Schedule 3 authorises an attorney to confer on the attorney the kinds of benefits that are specified by that Schedule for that expression. [Emphasis added] 1. Section 13 provides that: 13 Prescribed power of attorney does not generally confer authority to confer benefits on third parties (1) A prescribed power of attorney does not authorise an attorney to execute an assurance or other document, or to do any other act, as a result of which a benefit would be conferred on a third party unless the instrument creating the power expressly authorises the conferral of the benefit. Note. This subsection restates a rule of the general law. Accordingly, whether the conferral of a benefit on a third party is expressly authorised by a prescribed power of attorney is to be determined by reference to the general principles and rules of the common law and equity concerning the interpretation of powers of attorney. (2) Without limiting subsection (1), a prescribed power of attorney that includes the prescribed expression for the purposes of this subsection set out in Schedule 3 authorises an attorney to confer on a third party the kinds of benefits that are specified by that Schedule for that expression. [Emphasis added] 1. Section 7(1) of the Powers of Attorney Act provides that: This Act does not affect the operation of any principle or rule of the common law or equity in relation to powers of attorney except to the extent that this Act provides otherwise, whether expressly or by necessary intention. 1. It is convenient here also to set out s 53 of the Trustee Act 1925 (NSW) (Trustee Act) to which reference was made in the course of submissions. It provides, relevantly, that: 53 Employment of agents (1) A trustee may, instead of acting personally, employ and pay an agent, whether being a bank, building society or credit union or an Australian legal practitioner, stockbroker or any other person, to transact any business or do any act required to be transacted or done in the execution of the trust or in the administration of the estate. […] (4) This section extends, in the case of a bank, building society, credit union, Australian legal practitioner, stockbroker or real estate agent, or in the case of a prescribed person or a person of a prescribed class, to the receipt and payment of moneys. (5) Nothing in this section shall authorise a trustee to employ an agent in any case where a person acting with prudence would not employ the agent to transact the business or do the act, if the business or act was required to be transacted or done in such person's own affairs. (6) This section applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust and shall have effect subject to the terms of that instrument and to the provisions therein contained. (7) This section applies to trusts created either before or after the commencement of this Act. 1. It is convenient next to consider the various Powers of Attorney here in issue. Relevant Powers of Attorney 1. As set out in the chronology above, each of Moustafa and Plaza executed a number of powers of attorney in favour of Jamil: Moustafa personally on 30 May 2010 (see at [101] above) and 4 February 2013 (see at [333] above); Plaza (as trustee for the Sayour Family Trust) on 30 May 2010 (see at [101] above), on 8 December 2011 (see at [196] above), 26 March 2012 (see at [276] above) and 4 February 2013 (see at [333] above). As I have already found, there was at all relevant times an extant Power of Attorney granted in favour of Jamil. 2. The two Powers of Attorney dated 30 May 2010 were in the same terms as the Power of Attorney dated 8 December 2011 (see at [101]; [333] above); and the Power of Attorney of 8 December 2011 was expressly revoked on 23 March 2012. 3. The respective Powers of Attorney each provided that: The attorney may exercise the authority conferred on the Attorney by Part 2 of the Power of Attorney Act 2003 to do on the Grantor's behalf anything the Grantor may lawfully authorise an attorney to do. The attorney's authority is subject to any additional details specified in part 2 of this document. … 1. Part 2 of the first two Powers of Attorney granted by Plaza on 30 May 2010 and 8 December 2011 simply provided: Part 2 – Additional powers and restrictions 8. The powers to be exercised under this power of attorney are not limited except to encumbering or selling any of my real estate properties where my attorney IS NOT empowered to sell, dispose of, assign, give, part with or grant any part of my real or personal estates; or seek finance or refinance or provide any guarantee or assurance on my behalf in any form or shape. 1. As I have noted, the Powers of Attorney given by Plaza to Jamil from 26 March 2012 onwards were amended to add the following words to the above clause (in the context of a concern that had been expressed as to whether the existing Powers of Attorney expressly permitted the signing of leases or agreements to lease. The powers granted herein allows my attorney to make representations negotiate grant and execute leases and or licences and or agreements for leases or licences in respect of all and or any part of the real estate properties owned by Broadway Plaza Pty Limited ATF Sayour Family Trust. 1. It is not disputed that the Powers of Attorney granted by Plaza to Jamil (as indeed also were the Powers of Attorney granted by Moustafa to Jamil) were in the form of "prescribed powers of attorney" as defined under s 8 of the Powers of Attorney Act. 2. The key issues in the present case as to the authority said to have been conferred by the respective Powers of Attorney are: first, as to the extent of the authority conferred, on their proper construction, by the Powers of Attorney; and, second, as to the effect of certain of the provisions of the Powers of Attorney Act set out above. Implied revocation of earlier Powers of Attorney? 1. At the outset, it is convenient to dispose of the argument by the Sayour Parties that later Powers of Attorney covering the same subject matter must have impliedly revoked the earlier Powers of Attorney (if otherwise still effective); the Sayour Parties pointing to the fact that most of the powers are in the same terms. In this connection, the Sayour Parties submit that the later Powers of Attorney were unnecessary if the earlier powers continued to be effective, noting that one of the powers of attorney (that granted by Plaza on 8 December 2011) was expressly revoked by instrument of revocation dated 26 March 2012, at which time a fresh power was granted (see at [276] in the above chronology). 2. Meanwhile, CBA maintains that the grant of later Powers of Attorney did not impliedly revoke earlier ones. It says that the express revocation of the Power of Attorney of 8 December 2011 had no effect upon the continued operation of the prior Powers of Attorney (nor, as must logically be the case, upon the subsequent ones). In this regard, CBA points to authority for the proposition that, if a power of attorney is silent as to its duration, it endures during the donor's life or until he, she or it revokes it (see, for example, Danby v Coutts & Co (1885) 29 Ch D 500 at 515 per Kay J); and, further, CBA submits that there is no principle that the grant of a power impliedly revokes previous powers granted by the donor (i.e. that the existence of one power of attorney does not cast doubt over the validity of another – see, for example, Re Estate of Evans [2010] SASC 193 at [21] per Gray J). 3. As to these propositions, the Sayour Parties note that, at least from 1858, it has been held that powers can be revoked by implication and that revocation may be oral. It is submitted that the practice of granting successive Powers of Attorney in the same terms in connection with journeys overseas strongly suggests that the Powers of Attorney were not intended to survive those journeys, and (as adverted to above) that the successive Powers of Attorney were unnecessary if those earlier Powers of Attorney remained effective. 4. It is also noted that that revocation of the Power of Attorney of 8 December 2011 occurred in connection with the grant of a fresh Power of Attorney on 26 March 2012 with the additional provision in cl 8 following the advice of Landerer & Co to resolve doubt about the power to lease. It is noted that this additional provision replicated the terms in the subsequent Power of Attorney of 4 February 2013). It is said, again, that this was unnecessary if the Power of Attorney of 26 March 2012 remained in force. 5. On this issue, I do not accept that either the revocation of the Power of Attorney of 8 December 2011 or the grant of subsequent Powers of Attorney impliedly revoked the earlier Powers of Attorney. Indeed, the fact that Moustafa was able expressly to revoke one Power of Attorney suggests that he could also have revoked others had he been minded so to do and tells against an implication that the Power of Attorney were intended to be temporally limited in effect while Moustafa was overseas. Manner of signing the documents 1. It is also convenient to dispose of any issue as to the mode by which Jamil signed the relevant documents (i.e., in his own name or using an imitation "Moustafa" signature). 2. It is noted by the Deiri Parties that, where a person is authorised to sign for another (including by power of attorney), the signature of the person so signing is legally effective as the signature of the person authorising it, regardless of whether the person signing signs his or her own name or that of the principal (the Deiri Parties pointing in this regard to s 43 of the Powers of Attorney Act cf the traditional position at common law, which was that the attorney was required to sign the principal's name – see Nielsen v Capital Finance Australia Ltd [2014] QCA 139 (Nielsen v Capital Finance) at [5]-[24] per McMurdo P, [63]-[70] per Muir JA (Douglas J agreeing (at [85]-[88])), and the authorities there cited, including McRae v Coulton (1986) 7 NSWLR 644 at 663-664 per Hope JA, with whose reasons Kirby P and McHugh JA, as their Honours then were, agreed, and Commonwealth Bank of Australia v Muirhead [1997] 1 Qd R 567 per McPherson JA at [68]-[69], with whose reasons Macrossan CJ agreed). 3. Hence, the Deiri Parties say that the fact that Jamil may have signed in a particular way (say, by imitating his father's signature) when authorising payments, cheques and transactions on the CBA Partnership Account is not material. I agree with this submission, at least insofar as this is immaterial to the effectiveness, or otherwise, of such an execution (cf as evidence potentially relevant to claims of deception, and the like). 4. I now turn to construction of the Powers of Attorney. Construction of the Powers of Attorney 1. As to the construction exercise, the Sayour Parties emphasise (and this did not seem to be disputed by the other parties) that general words in a power of attorney are to be strictly construed (see, for example, P Watts and F M B Reynolds, Bowstead and Reynolds on Agency (18th ed, 2010, Sweet & Maxwell), Article 24). 2. The contention of CBA and the Deiri Parties is that the Powers of Attorney granted by Plaza conferred express authority on Jamil to sign cheques in the name of Moustafa on behalf of Plaza and to authorise payments under the construction facilities or the debit of amounts to the CBA Partnership Account. It is said that Jamil was authorised by the Powers of Attorney granted by Plaza to direct Investments to make payments for debts owed by Investments to Plaza, and to receive the payments for those debts on Plaza's behalf (and that, upon making payment in accordance with Jamil's direction, Investments discharged its liability to Plaza; it being irrelevant as to what Jamil may have done with the funds thereafter). Additionally, it is said that the personal Powers of Attorney that Moustafa granted to Jamil conferred authority to exercise powers as the sole shareholder of Plaza in accordance with the principle recognised in Re Duomatic Ltd [1969] 2 Ch 365 (Re Duomatic) at 373 per Buckley J (as to which, see below). 3. CBA and the Deiri Parties thus maintain that Jamil also had actual authority to modify the operating rule on the CBA Partnership Account on behalf of Plaza and Moustafa. More specifically, CBA submits that, if Moustafa did not sign the Cheque Authorisation Alteration Instruction but Jamil did, then the position remains that the Powers of Attorney authorised Jamil's signature on it; and that the variation to CBA's mandate therefore bound Plaza. 4. Pausing here, one difficulty with this submission is that the evidence, to my mind, establishes that, while Moustafa did not sign the Cheque Authorisation Alteration Instruction, nor did Jamil. The Deiri Parties seem to confront this difficulty by arguing that Jamil must have known about, and authorised, the giving of the Cheque Authorisation Alteration Instruction. I do not accept that there is sufficient evidence for me to conclude that Jamil authorised it in advance, although I accept that he is likely to have been made aware that two signatures were no longer being required (not least since he was not signing cheques thereafter). 5. As for the Deiri Parties, they say similarly that, in the present case, Jamil was authorised to act for Plaza to sign cheques and carry out transactions on the account; and that the transactions on the account only signed by Jamil, or only signed by Mr Deiri, were therefore valid provided they were in fact authorised (even if contrary to CBA's mandate). 6. Thus, it is submitted that because Jamil was authorised to act for Plaza to sign cheques and carry out transactions on the account (including by the Powers of Attorney), there was no breach by CBA of its mandate even if only Jamil signed cheques or permitted transactions to occur. 7. As to the proper construction of the relevant Powers of Attorney, both CBA and the Deiri Parties maintain that the power there conferred on the attorney (Jamil) was unlimited, other than as to the encumbering or disposing of real estate. Plaza, to the contrary, says that the powers were not unlimited; rather, that each was expressly limited in very restrictive terms. The Sayour Parties also point to Moustafa's evidence that the purpose of the powers was to enable Jamil to negotiate tenancies and licences or agreements therefor (while Moustafa was overseas); and to the terms of the Power of Attorney granted by Plaza on 26 March 2012 which contain such a limitation. The Sayour Parties maintain that the general tenor of the Powers of Attorney is that Jamil was given only limited authority to act for Plaza, not a broad and unlimited authority. 8. As to the earlier version of the Powers of Attorney, the Deiri Parties say that the following words in cl 8 ("not limited except to …") confirm that full power is there conferred on Jamil, subject only to the exception expressed in the wording that there follows (namely "encumbering or selling any of my real estate properties"). The Deiri Parties argue that the wording which then follows (i.e., "where my attorney IS NOT empowered to …") is illustrative or descriptive of what the attorney cannot do in relation to encumbering or selling any real estate but these words do not amount to a separate and discrete category or exception (simply an elaboration as to the exception of encumbering or selling real estate assets). In this regard, emphasis is placed on the use of the word "where", which it is said serves to identify the circumstances to which the subsequent words pertain. 9. Thus, it is submitted that the attorney could not (in relation to encumbering or selling real estate properties) seek finance or refinance but that the exception does not prohibit the attorney from seeking finance where there would be no encumbering or selling of real estate. It is said that, contrary to Plaza's submissions, there was no general prohibition on borrowing (rather, the reference to seeking finance was expressed to be in connection with selling or encumbering real estate). Put differently, it is said that the words "where my attorney IS NOT empowered to" are clearly intended to be the prefatory words to all that follows; the Deiri Parties noting that the capitalisation ("IS NOT") identifies the opening words of a prohibition; and that those words are preceded by and are inseparable from the words "except to encumbering or selling any of my real estate properties". 10. In other words, the Deiri Parties say that the words preceding the word "where" are a limitation (namely, encumbering or disposing of real estate) and that the subsequent words ("if they do anything") only narrow the limitation on selling or encumbering real estate, but they do not amount to a stand-alone or general exception on borrowing. 11. Similarly, CBA maintains that, correctly understood, the exception contained in cl 8 of each of the Powers of Attorney operated to prohibit disposition of interests or obtaining finance in cases where the attorney was encumbering or selling real estate of the donor. CBA says that there was no blanket prohibition upon raising finance; rather, that that limitation is to be read as part of the broader prohibition upon encumbrance and sale. 12. Insofar as the Sayour Parties have submitted that the prohibition on encumbering or disposing of real estate shows that it was intended that the early Powers of Attorney of 30 May 2010 and 8 December 2011, were to be confined to leasing, the Deiri Parties argue that the opposite is true. It is said that, if anything, the restriction suggests that leasing is not permitted because arguably it involves encumbering real estate. 13. As to the additional wording introduced by the Power of Attorney of 26 March 2012 (and subsequent Powers of Attorney), the Deiri Parties say that the additional wording provided in positive terms that Jamil could deal with leasing, it was not a limitation. It is said that the reference to leasing expanded the powers previously conferred, by ensuring that the prohibition on disposing or encumbering real estate did not preclude leasing. 14. Further, insofar as the Sayour Parties have relied on the limitation on encumbering or disposing of Plaza's "personal estate", the Deiri Parties say that that limitation on the conferral of power would not limit the otherwise full authority conferred on the attorney to direct where payments are to be made and to receive cheques on behalf of Plaza. It is said that directing where payments are to be made and receiving payments from creditors cannot be construed as disposing or encumbering Plaza's "personal estate"; nor would that limitation preclude the payment of creditors. Sayour Parties' submissions: further observations 1. The Sayour Parties maintain that the Deiri Parties' submissions (which emphasise the general empowering clause and other interpretive considerations) overlook the limit inherent in the words "may lawfully do", noting that cl 1 in each Power of Attorney is limited to "anything the Grantor may lawfully authorise an attorney to do" (thus, it is said, picking up the ordinary restrictions on delegation by a trustee at common law and under s 53 of the Trustee Act); and is subject to the additional details provided in cl 8, which contains an express restriction on encumbering and selling real estate. It is submitted that this conforms with the evidence that it was leasing (or perhaps demolition) that was in actual contemplation at the time. 2. The Sayour Parties point to the express prohibition on any form of disposal of both the real and personal estate of the grantor and the express restriction on financing and refinancing, as well as the provision of any guarantee or assurance "in any form or shape". They say that "personal estate" must include money; that the restriction on financing must include borrowing; and that the restriction on the provision of any guarantee or assurance must include the giving of negotiable instruments. It is said that these restrictions were evidently intended to confine closely the attorney's power, when read with the inherent restrictions involved in cl 1. 3. On that basis, it is submitted by the Sayour Parties that these were clearly very far from being "full" Powers of Attorney. The Sayour Parties also point to the acceptance by Mr Deiri in cross-examination that he did not act on the basis of the Powers of Attorney at the time (see, for example, at T 859.31-45); but say that, even had Mr Deiri relied on the Powers of Attorney, he was not entitled to do so without careful scrutiny of the Powers of Attorney, citing what was said by White J, as his Honour then was, in SWC v Makucha (at [56]). It is submitted (I note not for the first time) that, as a man of considerable business experience and acumen, Mr Deiri must have understood that Powers of Attorney require care and attention to detail. 4. As to the additional words inserted in the Power of Attorney of 26 March 2012 (again, see at [276] above), the Sayour Parties say that if (as the Deiri Parties submit) the words commencing "IS NOT" are to be construed as a limitation on the foregoing limitation (i.e., as words that carve out from the restriction on selling and encumbering an excepted area of action), then the Powers of Attorney did permit leasing unless it was a lease in the course of a sale, mortgage or charge (because leasing itself is neither encumbering nor selling) and it would follow that the concern of Mr Malouf was misplaced and that the additional words inserted into the 26 March 2012 were unnecessary. Accepting that the subjective opinion of Mr Malouf must be disregarded in the process of construction, the Sayour Parties submit nevertheless that the Power of Attorney would not be construed in a manner to render superfluous the words that Mr Malouf added thereto (because of the ordinary rule of objective construction that the instrument should be construed as a whole and all of its parts given harmonious effect to the extent possible). It is submitted that the inclusion of the final sentence in cl 8 in the Power of Attorney of 26 March 2012 supports the construction that the earlier portion of cl 8 is so limited that the additional words were necessary to permit leasing and licensing in respect of real property. 5. As to the Deiri Parties' submission that there was no general prohibition on borrowing, it is noted that the Deiri Parties do accept that the reference to seeking finance applies in connection with selling or encumbering real estate and it is said that there is no attempt to confront the problem that the finance facility with CBA was supported by a mortgage over the Broadway Site. In particular, it is said that there is no attempt to explain how the Power of Attorney of 26 March 2012 (or any other Power in force at the time), supported the drawing of any particular payment under the finance facility; nor how, in light of that accepted restriction, any of the Powers of Attorney could have authorised Jamil to execute the variation deeds with CBA in June and September 2013 (as to which, see the above chronology). 6. It is also said by the Sayour Parties that the Deiri Parties' arguments do not develop how the Powers of Attorney are relevant to the accommodation notices (since Jamil did not sign them, except for the second, third and fourth accommodation notices on the Stage 1 Loan) or how the Powers of Attorney authorised a drawing on a second facility that was void because it was a forgery. It is submitted that the proposition that the Powers of Attorney authorised Jamil to borrow "upon the false pretence of giving security without actually giving it" would not be a reasonable, let alone strict, construction of the Powers of Attorney. 7. As to the reliance placed by the Deiri Parties on "the grammar and structure of the clause", the Sayour Parties maintain that the relevant clause has no grammar; rather, they say that it "is intractable and a paradigm case for application of the rule of strict construction against the grant". As adverted to above, it is said that the additional words (being a prohibition on sale of both realty and personalty) cannot be read as qualifying a prohibition on sale of realty (and that the supposed qualification leaves no exemption at all, so far as sale is concerned). Similarly, it is said that the supposed qualification on the prohibition on encumbrance of realty includes a further prohibition on disposal, assignment, giving, parting with or granting any part of either realty or personalty of the grantor, and adds an express prohibition on seeking finance. It is said that this leaves no scope at all for any kind of encumbrance of realty. 8. The Sayour Parties submit that the words that follow "IS NOT" are not restricting the scope of a prohibition on encumbering or selling realty; rather, they add restrictions on dealing with personalty, borrowing, giving any guarantee and on giving any assurance in any form. It is said that the Powers of Attorney in fact allowed very little to be done (even disregarding the problem of s 10 of the Powers of Attorney Act) before they were amended (but that the one thing Jamil was permitted to do was to give instructions for demolition, provided it did not involve parting with possession of the Broadway Site). 9. As to the Powers of Attorney granted by Moustafa specifically, the Sayour Parties say that the terms of operation of the CBA Partnership Account did not authorise Moustafa to delegate his function as authorised signatory for the partnership (citing the principle delegatus not potest delegare). The Sayour Parties say that a power given by Moustafa to act for Moustafa was not a power to act for Plaza, still less a power to act for both Plaza and Investments. As to the Power of Attorney dated 28 September 2007 granted by Moustafa, it is said that this was expressly limited to a subject matter that does not include the partnership or its property. As to the next Power of Attorney granted by Moustafa dated 30 May 2010, it is noted that this expressly provides that the attorney is not empowered to provide any "assurance" on the grantor's behalf "in any form or shape". Thus, it is submitted that, even assuming that Moustafa had been empowered to delegate his function as an account signatory, this Power of Attorney did not delegate that function to Jamil, because it excluded power to give assurances on behalf of Moustafa. It is noted that the last Power of Attorney granted by Moustafa that is here relied on, dated 4 February 2013, was limited in the same way. 10. As to the Powers of Attorney granted by Plaza specifically, the Sayour Parties say that each of these powers was expressed to be subject to the limitations set out in Part 2 of the Powers of Attorney, including in each case a limitation on the power to give assurances in the same terms as that mentioned above in respect of the two later grants by Moustafa; and that each expressly provided that the attorney was not empowered to "dispose of" or "part with or grant any part of [the grantor's] real or personal estates" (which the Sayour Parties say would include drawing cheques) and prevented the attorney from acting to "seek finance or refinance" and from "encumbering" any of the grantor's "real estate properties". It is submitted that the latter would prevent the attorney from operating on the finance facility which was secured by registered mortgage. 11. Further, the Sayour Parties say that the authority given under the Powers of Attorney is not "authority to misrepresent himself as if he were Moustafa and to forge Moustafa's signature as if it were genuine" and that no grant would be construed as effective to go that far (referring to s 9 of the Powers of Attorney Act, which confines grants to "lawfully" granted authority). Similarly, they say that Plaza could not lawfully have asked Jamil to misrepresent himself as Moustafa so as to deceive both CBA and Investments into believing that cheques (referring to s 3(3) of the Cheques Act 1986 (Cth)) and accommodation notices were signed by an agreed signatory when they were not so signed. I interpose here to note my preceding observations in relation to the immateriality of the precise manner in which Jamil signed. 12. It is convenient next to consider submissions regarding the statutory provisions (which I have excerpted above). Section 11 of the Powers of Attorney Act 1. The Sayour Parties further say that s 11 of the Powers of Attorney Act, following the common law, prohibits the attorney from giving gifts and thereby rendered the Powers of Attorney ineffective to confer such a power (assuming they were otherwise effective at all notwithstanding s 10). They say that Jamil could not direct payment to himself; could not direct payment to a new trust in which he had a better interest (the Sayour Family 2 Trust that was established at the time of the Arncliffe Development); and could not "recycle" the Sayour Family Trust funds for his benefit, in effect taking it outside the terms of the Sayour Family Trust. 2. In response to this, the Deiri Parties say that s 11 is irrelevant. It is said that the directions given by Jamil to Investments as to where to make the payments owed to Plaza, and the receipt of the cheques provided by Investments, did not constitute the giving of "gifts" of Plaza's property to Jamil. 3. In this regard, it is noted by the Deiri Parties that: almost all the cheques were deposited into the two bank accounts operated for Plaza (the Westpac #202 Account and Westpac #238 Account), and that Plaza did not have its own bank account at the relevant time; and that almost all of the cheques were made out to "Sayour Family Trust", "Moustafa and Jamil", "Sayour Investments Pty Ltd" or "Broadway Plaza Pty Ltd" (with one cheque made payable to "Moulikyah Pty Ltd", a company of which Moustafa and Jamil were the directors and shareholders). The Deiri Parties say that, in respect of these payments and cheques, Jamil cannot have "gifted" Plaza's property to himself. It is said that he caused those payments to be received by Plaza (and that the same is true in respect of the $10,000 payments to the Westpac #202 Account). 4. As to the two cheques made out to Jamil's name (a cheque drawn on 17 August 2012 for $150,000, which the Deiri Parties say was a payment towards the land purchase price, and a cheque drawn on 15 August 2013, which the Deiri Parties say was a payment towards the additional $2 million agreed to be paid), the Deiri Parties submit that Jamil had actual authority to receive payments on Plaza's behalf and that what then happened with those funds is a matter between Plaza and the estate of Jamil. In any event, it is submitted that Plaza has not proven that Jamil (the attorney) gave a gift of any of moneys. 5. I return to s 11 in due course. Sections 12 and 13 of the Powers of Attorney Act 1. Further, the Sayour Parties also point to ss 12 and 13 of the Powers of Attorney Act, which provide that a power of attorney does not confer authority on the attorney to confer benefits on himself or others (and to the common law principle to that effect – see, for example, Perochinsky v Kirschner [2013] NSWSC 400; (2013) 16 BPR 31,481 at [59]-[92] per White J (as his Honour then was); and consider also Dimitrovski v Australian Executor Trustees Ltd [2014] NSWCA 68 at [68] per Emmett JA, with whom Bergin CJ in Eq agreed). 2. The Sayour Parties submit that the email communications referred to above and the evidence of payments demonstrate that: Jamil signed without question whatever he was asked to sign; Jamil signed numerous cheques, as well as the replacement Stage 2 Construction Contract, and accommodation notices benefiting Mr Deiri or his companies; Mr Deiri was "something of a favourite of" Jamil; and Mr Deiri's companies paid Jamil considerable sums of money. Under those circumstances, the Sayour Parties submit that the Powers of Attorney are of no assistance to CBA or Investments. 3. As to the submissions made by the Sayour Parties by reference to ss 12 and 13 to the effect that Jamil was not authorised to execute instruments in his own favour or in favour of a third party (without the express authority of the grantor of the power of attorney), the Deiri Parties say that the receipt of the payments in question discharged genuine obligations Investments owed to Plaza and hence conferred a benefit on Plaza, not Jamil. 4. It is said in this context that the payments were directed and received on Plaza's behalf as amounts owed to Plaza and it is again noted that the payments were in the main deposited into bank accounts under Plaza's control (the Westpac #202 Account and the Westpac #238 Account), those being designated as trust accounts for the Sayour Family Trust of which Plaza was trustee (albeit that one cheque was deposited into an account in the name of Moulikyah, again though, of which Jamil and Moustafa were shareholders and directors). 5. As to the two cheques not deposited into any of those accounts (the cheques each for $150,000 made out to Jamil on 17 August 2012 and 15 August 2013, the Deiri Parties say that Jamil received these payments from a creditor of Plaza, on its behalf. It is said that the fact that the money was deposited into an account in Jamil's name does not necessarily mean that Jamil received the money for his benefit; rather, that Jamil will have held the funds as trustee for Plaza and that, if he later used the funds in some unauthorised way to his personal benefit, then it might be said that that act was unauthorised by the Powers of Attorney; but that Plaza has not shown the mere receipt was to Jamil's benefit. 6. In this connection, reference is made by the Deiri Parties to Orr v Slender (2005) 64 NSWLR 671; [2005] NSWSC 1175, where it was contended that a sale of a unit pursuant to a power of attorney was not permitted by s 163B of the Conveyancing Act 1919 (NSW) (as it then was), because it resulted in a benefit to the plaintiff and Nicholas J said (at [31]) that the relevant enquiry required as to the extent of authority was limited to a consideration whether the attorney's act was, or would be, as a matter of practical reality and common sense, a direct cause of a benefit to him. 7. In the present case, the Deiri Parties submit that, as a matter of "practical reality and common sense", the acts that Jamil took of ensuring that a creditor paid into bank accounts under the control of the principal moneys genuinely owed cannot be said to have been a direct cause of a benefit to Jamil. It is submitted that Plaza has failed to discharge its onus of demonstrating that the acts in question (of Jamil directing where to make payments and in receiving cheques on Plaza's behalf), resulted in a benefit conferred on Jamil within the meaning of the relevant provisions of the Powers of Attorney Act. 8. Again, I will return to ss 12 and 13 in due course. Section 10 of the Powers of Attorney Act 1. There was also much debate as to the submission by the Sayour Parties, relying upon the analysis of the Court of Appeal in Belfield v Belfield (2012) 83 NSWLR 189; (2012) 16 BPR 31,177 (Belfield) in relation to the previous Conveyancing Act provision, that the Powers of Attorney granted by Plaza, as trustee of the Sayour Family Trust, could confer no relevant powers upon Jamil by virtue of s 10 of the Powers of Attorney Act. The Sayour Parties here note that s 10 of the Powers of Attorney Act expressly provides that a prescribed power of attorney (defined by s 8 by reference to the prescribed form) does not confer authority to exercise any function as a trustee that is conferred or imposed on the principal. 2. As I have noted, each of the Powers of Attorney was in the form prescribed and is expressed in cl 1 to be made under Part 2 of the Powers of Attorney Act. Furthermore, it is noted that each of the Powers of Attorney granted by Plaza is expressed to be made and executed by it "atf the Sayour Family Trust" (and, in any event, the Sayour Parties say, and I accept, that Plaza had no other relevant activity). Thus, it is submitted that each of the Powers of Attorney granted by Plaza was ineffective. 3. The Sayour Parties say that s 10 preserves the law that a trustee may not make a general delegation and requires that any delegation by power of attorney of a trustee's powers be specially authorised, and not conferred through a prescribed power. 4. In that regard, both CBA and the Deiri Parties maintain that the prohibition in s10 is upon a person delegating by power of attorney its functions "as a trustee", pointing out that both Campbell JA and Young AJA noted the ambiguity in that expression (see Belfield at [51], [102]-[103]). 5. CBA says that, on one broad view, the term "as a trustee" refers to a broad range of powers and functions exercisable by a trustee but also by others; but that, on a narrower view, the expression applies only where one exercises the powers because one is a trustee (i.e., in the capacity of a trustee) (see Belfield at [51]). CBA says that that the Court of Appeal concluded that the latter was the preferable construction (referring to Belfield at [67], [87], [103]). 6. Reference is made (and, see further below) to the historical rationale for the prohibition in s 10 (the need for notice to be given to the person entitled to appoint a new trustee or to a co-trustee) (referring to Belfield at [60]); and it is said that what s 10 prohibits is a delegation by power of attorney of powers the exercise of which would result in the attorney standing in the shoes of the trustee, or acting as if it were the trustee; but that it does not prevent the attorney undertaking ordinary managerial tasks on behalf of an entity (such as a builder or developer) which happens also to be a trustee (i.e. the exercise of attributes or functions which are not intrinsic to the role of trustee). 7. CBA submits that, absent clear and unambiguous language, the legislature cannot be presumed to have intended to deprive a company which acts as a trustee of its capacity to delegate (by power of attorney) any of its ordinary functions that fall short of an effective substitution of its role as trustee. Accordingly, CBA submits that s 10 did not prohibit Plaza from delegating to Jamil the functions of signing cheques or accommodation notices for the purposes of enabling construction of this Project. Indeed, CBA notes that Plaza's own evidence was that it properly granted to Jamil in this way the right to undertake leasing activities on its behalf and to delegate to the partners' lawyers, Blackstone Waterhouse, the right to sign sale contracts. 8. In response to the submission by the Sayour Parties that the powers of attorney executed in favour of Jamil were ineffective because of s 10, Investments prepared submissions based on an analysis of the general law relating to powers of attorney and the legislative history as to the introduction of s 10. I will consider further these matters in due course. 9. In summary, Investments points to s 7(1) of the Powers of Attorney Act (set out earlier) and says that s 10 must be construed having regard to the principles and rules of common law or equity already governing the subject matters covered by the Powers of Attorney Act (referring also to the general presumption that statutes should be read in a manner consonant with principles of common law and equity – see, for example, Balog v Independent Commission Against Corruption (1990) 169 CLR 625 at 635-6; [1990] HCA 28 and Smorgon v ANZ Banking Group Ltd (1976) 134 CLR 475 at 487, which in turn cites R v Bishop of Salisbury [1901] 1 QB 573 at 577 per Wills J; Minister for Lands and Forests (NSW) v McPherson (1991) 22 NSWLR 683 at 700-702 per Kearney J; Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353 at 368). 10. Investments notes that in Belfield, Campbell JA (with whom Sackville AJA agreed (at [87])) held (at [51], [67]), in relation to the predecessor to s 10 of the Powers of Attorney Act (as noted, s 163B(2)(a) of the Conveyancing Act), that the section fell to be construed having regard to the circumstances in which the existing law permitted delegation by trustees of their functions. It is said that the existing law, relevantly, was to the effect that, generally, trustees may delegate the powers or functions that they have by virtue of being a trustee in four categories of case (see Belfield at [53] per Campbell JA), namely: under an express power to delegate contained in the trust instrument; by virtue of a power contained in legislation; by virtue of the power "to do ministerial acts involving no exercise of discretion"; and "where in common business usage a person would employ an agent whose ordinary business it was to do acts of the type delegated to that agent" (referring also to JD Heydon and MJ Leeming, Jacob's Law of Trusts in Australia (8th ed, 2016, LexisNexis) at [17]-[23] (Jacob's)). 11. Investments says that, on its true construction, s 10 prevents a prescribed power of attorney from being used on its own to delegate the functions of a trustee; but that it does not prevent a prescribed power of attorney being used to delegate the functions of a trustee in any of the four categories of case in which a trustee could already lawfully do so under the existing law (provided that the conditions attending to those categories are satisfied). It is submitted that this is consistent with Young JA's holding in Belfield (at [111]-[112]) that the provision only authorises the attorney to do "what the donor could lawfully authorise an attorney to do". 12. Investments argues that the legislative model on which s 10 is based was concerned to preserve a trustee's existing powers to delegate functions under the general law and to permit such delegations to be effected by means of a short form power of attorney, subject to the trustee meeting the conditions for such delegations imposed by the general law. Investments maintains that the Powers of Attorney Act does not abolish general law powers of attorney, which continue to be an effective mechanism by which trustee powers may be delegated; and says that, statute apart, the powers of attorney in this case are in any event valid delegations of Plaza's trustee powers at general law. Delegations under a trust instrument and delegations under statute 1. As to the first and second categories of permissible delegation by a trustee of its powers or functions, namely, delegations specifically permitted by the trust instrument, and delegations specifically permitted by statute, Investments says that, read in its legislative and historical context, s 10 was enacted was to prevent a trustee from delegating its powers in a way that circumvents the relevant provisions of the Trustees Act 1925 (NSW) (that is, delegations in the second category) but did not prevent such delegations outright. It is submitted that the Powers of Attorney at issue in this case are outside the mischief to which s 10 is directed because they rely, not on the Trustees Act, but on an express power of delegation contained in the trust deed (i.e., they were a delegation in the first category). 2. It is noted that the purpose of Pt 2 of the Powers of Attorney Act is to provide for the creation of powers of attorney by means of a "short form" instrument in the form set out (at the relevant time) in sch 2 of the Powers of Attorney Act (the benefit of such a short form instrument being, first, that it was more convenient to those tasked with drafting powers of attorney, as it allowed the delegation to be effected in a single paragraph, and, second, that it was intended to eliminate debate about whether a particular function had or had not been conferred). 3. It is submitted that the dual purposes (of simplifying the drafting of powers of attorney and of reducing debate about construction) appear throughout the historical materials (reference being made to the historical context of s 10 of the Powers of Attorney Act as summarised in Belfield – see from [53]ff) and, in particular, to the reference there made to the report of the Law Commission of England of September 1970 (the Law Commission 1970 Report)). Investments also refers to the release in 1973 by the Law Reform Commission of New South Wales of its Working Paper 10. Powers of Attorney (1973) which (at [169]) commended the English model (s 10 of the Powers of Attorney Act 1971 (UK) (Powers of Attorney Act UK)) and to the final report of the Law Reform Commission of New South Wales (Powers of Attorney (1974) LRC, 18) which (at [53]-[54]) proposed a similar provision to that which had been adopted in the United Kingdom. 4. Reference is also made to statements made in 1983 in the Legislative Council of the bill introducing s 163B into the Conveyancing Act by Sir Adrian Solomons and by the Hon WJ Holt (see at 4927) (Conveyancing (Powers of Attorney) Amendment Bill 1983 No 26). 5. Investments points out that, in 2003, the provisions of s 163B of the Conveyancing Act were "substantially re-enact[ed]" or "restate[d]" in ss 9-12 of the Powers of Attorney Act (see Explanatory Note to the Powers of Attorney Bill 2003 (NSW), 4-5). Thus, Investments says that the purpose of Pt 2 of the Powers of Attorney Act is clear: it provides for "prescribed powers of attorney", being a convenient alternative to general law powers of attorney and delegating the "fullest possible authority in the briefest possible terms". 6. As to the purpose of s 10 in particular, Investments points out that, at the same time that the Law Commission of England recommended the creation of "short form" powers of attorney, it also made recommendations as to the circumstances in which trustees should be permitted to delegate their functions while travelling abroad (see the summary by Campbell JA in Belfield at [54]; and see Law Commission, Powers of Attorney: Report on a Reference under Section 3(1)(e) of the Law Commissions Act 1965 (September 1970, Cmnd 4473) (Law Commission 1970 Report) Appendix, xl 8, Explanatory Notes to Clause 8, [2]-[5]), that recommendation being adopted and enacted as the new s 25 of the Trustee Act 1925 (UK). 7. Investments emphasises here that this statutory power to delegate trustee functions was merely one of two sources of express power that a trustee might enjoy to delegate his or her functions (see the Law Commission 1970 Report at [11]); and that, in addition to the statutory power which all trustees enjoyed, a trustee might separately have a specific power of delegation in the relevant trust deed (and where such a power existed, the trustee could choose to rely on either of the two alternative sources of express power to delegate, as appropriate). In this regard, reference is made to the recognition (see at [11]) of the Law Commission 1970 Report that, "[t]he office of trustee can be delegated only under an express power contained in the trust instrument or by virtue of any power given by the Trustee Act 1925" and to what was said by Campbell JA in Belfield (at [53]) as to the first and second categories of delegation. 8. Investments also refers to s 67 of the Trustee Act (inserted into the Trustee Act by cl 4.6 of Sch 4 of the Powers of Attorney Act as originally enacted) and says that the Powers of Attorney Act was plainly enacted with its interaction with the Trustee Act squarely in view; and that the two instruments are thus to be read together and that a trustee cannot, by s 9 of the Powers of Attorney Act, circumvent the requirements of s 64 of the Trustee Act in order to delegate the execution of the trust. 9. In the present case, Investments points to cl 7.49 of the Sayour Family Trust Deed (set out earlier). It says that to read s 10 as preventing delegations even in cases where the trustee enjoys an express power of delegation, would be to give it an interpretation broader than necessary to achieve its statutory anti-circumvention purpose (it is said contrary to s 33 of the Interpretation Act 1987 (NSW)). 10. Investments thus submits that s 10 of the Powers of Attorney Act should thus be read as having no relevant application to the Powers of Attorney in this case, with the result that those Powers are valid "prescribed powers of attorney" within the meaning of s 8 of the Powers of Attorney Act. 11. In response to this, the Sayour Parties say that the reference by Investments (and CBA) to the extensive powers of the trustee under the provisions of the Sayour Family Trust Deed is beside the point, as those powers do not include an extensive power of delegation of the trustee's extensive powers. It is noted that cl 7.49 does not express for what purposes such a power of attorney may be conferred, save that it is limited to "the purposes of administration of the trust". The Sayour Parties submit that, given the ordinary requirement that a trustee act personally, except as provided by the limited exceptions provided by the common law and the Trustee Act 1925, cl 7.49 can only operate within the limits of the existing law as to delegation by trustees; otherwise, the conferral of power would not be for the purpose of administration of the trust, which has as its central provision the personal appointment and responsibility of the trustee, but would amount to an abdication of that administration. 12. It is said that, even if this were not so as a matter of construction, the scope of cl 7.49 must be controlled by the law, including s 10 of the Powers of Attorney Act and that the power of delegation is further constrained by the common law, as modified by s 53 of the Trustee Act. Delegations of ministerial acts and common usage delegations 1. As to the third and fourth categories of delegation recognised in Belfield, Investments says that none of the functions exercised by Jamil (making and receiving payments) was a "function as a trustee that is conferred or imposed on the principal" within the meaning of s 10 of the Powers of Attorney Act. Rather, it says that they were ministerial functions of a kind that equity has long permitted to be exercised by agents without the need for any special authority to delegate. It is said that they were not functions of a kind that a trustee must exercise personally, such as those that involve the exercise of a judgment or discretion (which are not functions that a trustee may, by common usage, employ an agent to perform). 2. The Sayour Parties point to what was said in Ex parte Belchier (1754) Amb 218; 27 ER 144 (Ex parte Belchier) (see at 145 per Lord Hardwicke LC) as the origin of the principle that a function may be delegated where "trustees ex necessitate rei are bound to employ an agent, provided that the trustees in so doing act in conformity with common usages and as prudently as if acting for themselves and provided further that the agent is employed in a matter which it is within the ordinary scope of the agent's business to perform". Investments says that the receipt of payments is the paradigm example of a function that a trustee might delegate without the need for specific authority to do so, noting that Ex parte Belchier was followed by the House of Lords in Speight v Gaunt (1883) 9 App Cas 1 (see at 10 per the Earl of Selbome LC and at 19-20 per Lord Blackburn). 3. It is noted that the other situation in which trustees may delegate their powers without specific authorisation in the trust instrument or in statute is where the delegation is of purely ministerial acts (as distinct from acts requiring discretion or judgment on the part of the trustee – see, for example, Attorney-General v Scott (1749) 1 Ves Sen 413; 27 ER 1113; Re Hetling and Merton's Contract [1893] 3 Ch 269 at 280; Buckby v Speed [1959] Qd R 30 (Buckby v Speed) at 35 per Philp J (with whom Wanstall and Stable JJ agreed; and see also, as to the application of those principles, Fouche at 641 per Dixon, McTiernan and Fullagar JJ; Commercial and General Acceptance Ltd v Nixon (1981) 152 CLR 491 at 520; [1981] HCA 70; Retail Employees Superannuation Pty Ltd v Pain (2016) 115 ACSR 1 at 87 per Blue J). It is said that these principles form part of the general law background against which s 10 of the Powers of Attorney Act (specifically, the words "any function as a trustee") is to be construed. 4. Investments argues that Belfield is instructive insofar as it outlines the legislative history and context, but that in terms of its precedential status it is relevant only to determining whether a person is a trustee at all, not to whether a particular function that a trustee has is a "function as a trustee". Particularly, Investments submits that the latter question was not at issue in Belfield and was not considered by the Court of Appeal. 5. Investments further says that, in the present case, it is common ground that Plaza was a trustee and therefore the relevant question is not whether Plaza had "function[s] as a trustee" at all but, rather, whether the particular functions at issue were functions of that kind. It says that, plainly, not everything that Plaza can lawfully do is a "function as a trustee" (postulating, by way of example, the answering of telephone calls or emails by a receptionist employed by Plaza or the reconciliation of accounts by an accountant employed by Plaza). It is said that, if that were the case, then the expression would extend to any act of any employee of a trading trust. 6. Investments submits that the reason that a director (or trustee) may not delegate his or her duties of office is that those duties are his or her own personal responsibility as a director (or trustee), and can only be discharged by the person who holds the office. Thus, it is said, as also does CBA that s 10 relevantly re-affirms that those functions that must be exercised "as a trustee" are not to be delegated using a prescribed power of attorney, so as to make it abundantly clear that the Powers of Attorney Act has not provided trustees with a means of circumventing the distinction between those functions that equity permits a trustee to delegate without specific authorisation, and those that it does not. 7. Investments says that it follows that "functions as a trustee" should be taken to mean those trustee functions that are neither "ministerial act[s] involving no exercise of discretion" nor functions "where the trustees ex necessitate rei are bound to employ an agent, provided that the trustees in so doing act in conformity with common usages and as prudently as if acting for themselves and provided further that the agent is employed in a matter which it is within the ordinary scope of the agent's business to perform" (citing Jacob's at [17-23]). Reference is made also to s 163B(2)(a), Law Commission 1970 Report (and, particularly, the form of words recommended in cl 9 by the Law Commission of England, again, which became s 9 of the Powers of Attorney Act (UK) – see above) and the explanatory materials to the Bill. 8. Investments places emphasis on the fact that although s 163B(2)(b) (which was modelled on s 10 of the UK Act), adopted the language of "any power, authority, duty or function as a trustee conferred or imposed on the person executing the instrument", s 10 of the Powers of Attorney Act has since reverted to the original English formulation of "functions". Investments says that the comments of the Court of Appeal in Belfield (referring to a "power, authority, duty or function" - see at [67]) were simply restating the language that then appeared in s 163B(2)(b) (which has now been repealed and replaced with simply the word "function"). 9. Accordingly, Investments argues that a prescribed power of attorney could not validly authorise an attorney to appoint new beneficiaries, make advances and payment to beneficiaries or seek judicial advice (all of those being functions that equity would regard a trustee as bound to perform personally), at least absent specific authorisation in the trust deed or in legislation; but that, in contrast, simple disbursements and receipts in the course of carrying on a trust business are a classic example of both exceptions and, indeed, are acts where it may be accepted that any trading trust would, as a matter of common usage, employ an agent. 10. Investments submits that it follows that Jamil's impugned actions in this case are not covered by the prohibition in s 10. 11. I will also return to these submissions in due course. Argument that the Powers of Attorney are valid under the general law 1. Notwithstanding the preceding, Investments maintains that the Powers of Attorney at issue here are nonetheless valid under the general law. In this connection, Investments reiterates that the purpose of Pt 2 of the Powers of Attorney Act and its predecessors was to enable powers of attorney to employ a more convenient short form of words, and to minimise debate about the scope of powers thus conferred; and that it did not thereby abolish general law powers of attorney. It is submitted that, if a principal so wishes, he, she or it can still draft a power of attorney in the traditional way, and leave it to the court to construe its meaning in the event of a dispute. 2. That general law powers of attorney have not been abolished is said to be plain from both the text and the historical context of Pt 2 of the Powers of Attorney Act (reference here again being made to the legislative history and the work of the Law Commission). 3. Investments also points to what was said in Belfield (see at [60]), namely that, in the case of trustee delegations where the short form power of attorney was not available, "a special form of delegation should be required". Again, it is said that this demonstrates that the alternative path is left open, not abolished. 4. In amplification of this, Investments says that the language of ''prescribed powers of attorney" makes clear that these are merely a subset of powers of attorney more generally – they are not the exclusive method of creating powers of attorney. Similarly, it is said that s 8 of the Powers of Attorney Act nowhere requires powers of attorney to be made in the prescribed form: it simply provides that, if a power of attorney is made in the prescribed form, then it has the consequences set out in Pt 2 of the Powers of Attorney Act. Investments also refers again in this context to s 7(1) of the Powers of Attorney Act. 5. Those general law powers of attorney having not been abrogated, Investments says therefore that, under the general law, it is open to a donor may use whatever language he, she or it wishes to use (although it accepts that, at general law, what power is in fact conferred will ultimately be a question of construction of the power). For example, it is noted that the powers conferred may be described comprehensively in the instrument itself, or may be described in a document that is incorporated by reference. It is said that there is no reason why a general law power of attorney cannot define its powers by reference to a description of powers contained in some legislative instrument (and that it is no different to defining the powers by reference to an appendix to the power) or to a provision of a contract between the donor and donee, or even "to a list of powers contained in a textbook on trusts". 6. In the present case, Investments submits that the Powers of Attorney describe the powers conferred by reference to particular provisions of the Powers of Attorney Act and that what effect is to be given to such a power is a question of construction (but that this does not deny, at the conceptual level, that a general law power of attorney can "pick up" a statutory provision for its substantive content in this fashion). 7. Specifically, Investments contends that what was intended by the principal (described as "Broadway Plaza Pty Ltd ATF the Sayour Family Trust") was to confer power "to do on the Grantor's behalf anything the Grantor may lawfully authorise an attorney to do", and that the power should be so construed. 8. Before turning to determine these issues, it is convenient briefly to consider some of the submissions in reply made by the Sayour Parties. Sayour Parties' submissions in reply 1. As to the operation of s 10 of the Powers of Attorney Act, the Sayour Parties cavil with the contention that s 10 of the Powers of Attorney Act (though it prevents a prescribed power of attorney from being used on its own to delegate the functions of a trustee) does not prevent a prescribed power from being used to delegate functions in any of the four categories under which at general law a trustee can lawfully delegate its functions, provided the legal conditions for delegation are satisfied; and with the further proposition that the Powers of Attorney in question conform with that limitation. 2. The Sayour Parties maintain that the ordinary meaning of the words in s 10 is that a prescribed power is ineffectual in respect of any function as a trustee. Insofar as Investments (by reference to legislative history and the reports of the law reform bodies) makes a submission founded in the mischief rule, and seeks to read down the express words of s 10 so as not to prevent use of short form powers of attorney where there is an express power of delegation (provided that any conditions of delegation stated in the trust deed are complied with), the Sayour Parties say that the effect of that contention would be that, where a trustee is expressly empowered to delegate, it may do so by a prescribed power of attorney, but that where it is not so empowered, it may not do so. 3. The Sayour Parties say that one difficulty with this is that it gives no work for s 10 to do, noting that s 9 already contains the limitation that a prescribed power of attorney is limited to powers that the principal may lawfully delegate. The Sayour Parties say, rather, that the additional work that s 10 does is to prevent prescribed powers from being used at all for the delegation of power to exercise functions as a trustee. For this reason, it is submitted that Investments' alternative argument, to the effect that a prescribed power contravening s 10 can nevertheless be valid "under the general law", must also be rejected. The Sayour Parties say that s 10 specifically provides that such a power is not effective. 4. The Sayour Parties identify another difficulty with Investments' mischief rule arguments as being that they overlook the object of clarity identified of the reasons in Belfield, where Campbell JA (see [55]) cited the Law Commission 1970 Report and highlighted the words "which would avoid argument as to the extent of the authority conferred", and the further policy of requiring trustees to consider specifically the particular terms of delegation that his Honour there cited (see at [61]ff of his Honour's reasons). The Sayour Parties submit that the present case would illustrate a failure of that object on the construction contended for by Investments (because the next plank of Investments' argument is concerned with the scope of the power of delegation given in the relevant trust deed, which Investments contends is unconfined by conditions). The Sayour Parties also note that, in oral submissions for Investments, it was submitted that cl 7.49 operated upon an array of powers in the trust deed (see at T 1595). 5. The Sayour Parties say that this is itself a contentious proposition. They contend that cl 7.49 of the Sayour Family Trust deed is confined to administrative functions and is to be construed as limited within the scope of the exceptions otherwise provided by the common law and the Trustee Act and, even if not so construed, is nevertheless controlled by the limits imposed by s 53 of the Trustee Act. The Sayour Parties say that, thus, a debate arises of the very kind that s 10 was enacted to prevent. 6. Finally, the Sayour Parties say that Investments' argument is contrary to the conclusion reached by Campbell JA in Belfield (see at [60], [67] and [75]) that the short form cannot be used "when the power of attorney purports to delegate any power, authority, duty or function that a person has by virtue of occupying the office of a trustee" (see at [67]). 7. As to the further argument of Investments that "functions as a trustee" in s 10 does not include ministerial acts involving no exercise of discretion, and the similar argument put orally by CBA (see at T 1682.32ff), the Sayour Parties submit that this should be rejected. It is noted that in Belfield (see at [67]) Campbell JA concluded that the prohibition extends to "any power, authority, duty or function that a person has by virtue of occupying the office of a trustee". It is said that that does not mean that the concept is confined to powers involving the exercise of some element of discretion. 8. The Sayour Parties say that Investments seeks, on the one hand, to rely on the various powers of the trustee under the Sayour Family Trust Deed (to invest, receive, pay and the like) in support of an argument that delegation was permitted under the terms of the trust but then, on the other hand, to argue that these are not functions as a trustee. The Sayour Parties say that clearly the general law proposition that certain functions of a trustee were delegable does not extend to a proposition that they are not functions of the trustee, or that they do not arise by virtue of holding that office. 9. The Sayour Parties submit that these "nice distinctions" would arrive at a position where one would have to evaluate the particular acts of Jamil which Investments and CBA contend were authorised by the powers to see whether each one was merely administrative. By way of example, it is said that a decision to sign the Stage 2 Construction Contract with a price higher than that previously negotiated with Moustafa would have to be, on that case, contended to be merely administrative; as would the receipt of misappropriated funds have to be contended to be an "administrative" misappropriation. The Sayour Parties say that these questions do not arise in the context of s 10 because an administrative power of a trustee is just as much held by virtue of office as trustee as is any other power of a trustee. 10. Insofar as Investments has submitted that s 53(6) "permits one to have regard to the trust deed", the Sayour Parties repeat the submission that cl 7.49 in terms only permits delegation for the purpose of administration of the trust (and hence does not expand the ordinary limits at law on delegation). They say that, given those ordinary limits and the long history in the law of restraint on delegation by trustees, one would not give cl 7.49 an expansive construction. It is submitted that this is conformable with the narrowness of the power to employ servants given by cl 7.15. The Sayour Parties say that either cl 7.49 is a power to delegate everything (which would be an abdication) or it is confined within the ordinary limits of delegation for the purpose of administration; and that the latter construction is to be preferred. 11. As to the alternative submission made by CBA, that the personal Powers of Attorney granted by Moustafa authorised Jamil to sign cheques, notices and the like on behalf of Plaza, the Sayour Parties say that this submission would have the curious effect that, despite the prohibition on a prescribed power being used to delegate trust functions, the result can effectively be achieved by the human person authorised to sign on behalf of the trustee (in this instance its director) making a delegation of power to act on his behalf. They say that the signatures on the cheques, accommodation notices and other instruments were not "on behalf of" Moustafa; rather they were purportedly on behalf of Plaza. 12. Nor, it is said, was Moustafa authorised to delegate his functions as signatory, so that the power to sign such instruments was not something he could "lawfully authorise an attorney to do". The Sayour Parties cite Young AJA in Belfield (see at [111]) that, "[i]t seems quite clear that, under the general law, an attorney cannot exercise the donor's office as an executor, administrator or a director". 13. As to the Deiri Parties' submission that the Powers of Attorney granted by Moustafa authorised Jamil to act, under the Duomatic principle, to control Plaza (even in its capacity as trustee) and to take actions on its behalf by exercising Moustafa's power as sole shareholder, the Sayour Parties say that this submission involves in substance a form of "back door delegation" by the shareholder of the trustee, to permit a third party to control the corporate trustee. It is said that, if this submission is correct, it would have the consequence that every time a shareholder of a trustee company gives a power of attorney, the attorney is thereby empowered to take control of the trustee and act as the trustee, by virtue of the shareholding, if the grantor is the sole shareholder or controls all shareholders, or if the grantee of the power were in a position to command the assent of the other shareholders in the trustee. 14. Insofar as the proposition is that Jamil's powers as donee of Moustafa personally were unlimited as to the exercise of the power to control and direct Plaza (so that he could do in relation to Plaza's property, acting as sole member in control of its affairs, virtually anything, free of the restrictions that would apply under the terms of Moustafa's power to a dealing with Moustafa's property), since those restrictions are expressed to apply only to dealings with Moustafa's property, it is noted that this would be the consequence notwithstanding that Plaza had also given express registered Powers of Attorney to Jamil, so that Jamil by virtue of Moustafa's power, would be free of any of the restrictions imposed by the power granted by Plaza. The Sayour Parties say that this argument amounts to a complete form of abdication of the functions of trustee to Jamil, pointing out that he could even determine trust distributions if this argument were correct. 15. The Sayour Parties say that the answer to the argument lies in the nature of corporate power. They say that the Duomatic principle is a recognition of the capacity of the shareholders (as an incident of their property in the company's shares), acting unanimously either in general meeting or informally, to control the affairs of their own company (see what was said in Re Duomatic by Buckley J at 373). It is noted that, in acting under this principle, shareholders act as an organ of the company; that the principle operates to short cut steps that are otherwise required but the acts taken remain acts of the company; and that, in the present case, the company is a trustee and cannot delegate except within the limits permitted by law. 16. The Sayour Parties submit that, if the actions of Jamil were regarded as an act of the company making a complete delegation of the trustee's powers to Jamil himself, they would clearly contravene the powers of the company as trustee and so would be contrary to law, outside the terms of the trust deed and thus outside the terms granted by Moustafa's Power(s) of Attorney, which is confined to power to do things that Moustafa could lawfully do. It is said that Moustafa could not lawfully cause the company to breach the terms of the trust and the legal limits on delegation; therefore, his Power of Attorney does not authorise Jamil to do so. 17. They submit that it follows that the Deiri Parties' argument must be driven to a contention that no question of delegation is involved at all, but that Jamil in acting on each occasion was acting, in effect, as the general meeting of the company exercising as an organ of the company its powers as trustee directly and not as delegate. The Sayour Parties say that this suffers from the difficulty that the company being an artificial person is unable to act except by human agency. It is said that Jamil, in acting to undertake specific actions, would be acting ex hypothesi as an agent of the company and, simultaneously, as the agent of Moustafa to procure himself as agent of the company; and, further, that this would be a parallel form of control, as Moustafa remained the sole director, the business of the company was committed to the sole director (see s 198E of the Corporations Act), Moustafa could not delegate his functions as director, and either as director or principal under the Power of Attorney, Moustafa could countermand Jamil's action and Jamil would be accountable for his actions. The Sayour Parties say that all this points to the conclusion that it was impossible for Jamil to act under the Duomatic principle directly as an organ of the company and he could, at best, procure for himself a form of agency, but that would still amount to delegation, which was not lawful and therefore not capable of being authorised by the Powers of Attorney granted by Moustafa. 18. The Sayour Parties say that the Deiri Parties' submission also involves the proposition that the donee of the power could act as a competing source of control of the trustee company, notwithstanding the wishes of its sole director whilst still in office or, if there were more than one director, notwithstanding the wishes of the board. Reference is made in this regard to the summary by Neuberger J, as his Lordship then was, of the Duomatic principle in EIC Services Ltd v Phipps [2003] EWHC 1507 (Ch); [2004] 2 BCLC 589 (EIC Services v Phipps) at [122] (cited with approval in Dickinson v NAL Realisations (Staffordshire) Ltd [2019] EWCA Civ 2146 at [14] per Newey J, Baker and Dingemans LJJ agreeing), that: 14. The essence of the Duomatic principle, as I see it, is that, where the articles of a company require a course to be approved by a group of shareholders at a general meeting, that requirement can be avoided if all members of the group, being aware of the relevant facts, either give their approval to that course, or so conduct themselves as to make it inequitable for them to deny that they have given their approval. Whether the approval is given in advance or after the event, whether it is characterised as agreement, ratification, waiver, or estoppel, and whether members of the group give their consent in different ways at different times, does not matter. (Emphasis added as per the Sayour Parties' submissions) 1. The Sayour Parties say that the proposition that an agent, in fraud of both his principal sole director and shareholder of a trustee company, as well as in fraud of its beneficiaries, or at least in excess of the delegation granted to him under another instrument, might under the Duomatic principle exercise any or all of the powers of the trustee without the knowledge of the trustee company's director, and without regard to either the terms of the trust or the trustee's fiduciary obligations, is not an apt description of any form of meaningful assent by the shareholder principal, nor one that a court of equity would recognise as an expression of the will of the company, notwithstanding the terms of s 198E of the Corporations Act. 2. They, therefore, submit that the Duomatic principle has no application to such a case; and note that restraint in the application of the Duomatic principle where the interests of persons other than the members are involved in the directors' obligations was recognised in Kinsela v Russell Kinsela Pty Ltd (in liq) (1986) 4 NSWLR 722 and Massey v Wales (2003) 57 NSWLR 718 (see at [49] per Hodgson JA, Beazley JA (as her Excellency then was) and Meagher JA agreeing). Determination re actual authority by reason of Powers of Attorney 1. As to the claimed actual authority based on the Powers of Attorney, I have already concluded that the express revocation by Plaza in March 2012 of the Power of Attorney dated 8 December 2011 had no effect upon the continued operation of the prior Powers of Attorney dated 30 May 2010 (or the subsequent ones dated 26 March 2012 and 4 February 2013). 2. Similarly, by reference to the authorities cited by CBA, I accept CBA's submission that the grant of successive powers did not impliedly revoke previous powers granted by the respective donors (i.e. the existence of one power of attorney does not cast doubt over the validity of another). While I accept that successive powers of attorney conferring the same power would be unnecessary if earlier powers of attorney remained in force, it seems to me not implausible that Moustafa simply did not turn his mind to whether there were earlier extant powers of attorney at the relevant times. I also consider it significant that when there was a decision to revoke an earlier Power of Attorney it was done by a formal instrument (and, not left to implication by reference to the grant of the fresh Power of Attorney). 3. Indeed, I have found that there was always at least one extant power of Attorney in favour of Jamil from each of Plaza and Moustafa at all relevant times of the Broadway Development. 4. Rather, the critical question here is whether the scope of authority conferred on Jamil by those Powers of Attorney extended to authorising Jamil to sign cheques in the name of, or on behalf of, Plaza in its capacity as trustee for the Sayour Family Trust (or accommodation notices on behalf of Plaza), along with other such acts. 5. As noted above, each of the Powers of Attorney given to Jamil by Plaza and Moustafa, respectively, is in the form set out in Sch 2 to the Powers of Attorney Act (as it was at the time) and each was a "prescribed power of attorney". 6. This raises, then, anterior questions both as to the proper construction of the respective Powers of Attorney and of the operation of s 10 of the Powers of Attorney Act (as to which there was much debate in the course of argument, as would be evident from the preceding). I deal first with the latter issue. Section 10 and the Powers of Attorney Act 1. A "prescribed power of attorney" as defined by s 8 of the Powers of Attorney Act confers on the attorney the authority to do on behalf of the principal anything that the principal may lawfully authorise an attorney to do (see s 9(1)). 2. I have referred above to the legislative reforms which, inter alia, provided for the use of relatively short pro forma instruments to be used in executing powers of attorney in particular circumstances. An objective behind this innovation was the desirability of making easier, more efficient and pellucid the execution of powers of attorney in particular circumstances; hence, "short form" powers of attorney (see, particularly, Sir Adrian Solomons, New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 March 1983 at 4925). 3. I accept the submission by the Sayour Parties that each of the Powers of Attorney granted by Plaza was made and executed by it as trustee for the Sayour Family Trust. That conclusion follows from the express terms of the Powers of Attorney and the fact that, in any event, Plaza had no other relevant activity. However, I do not necessarily accept, as the Sayour Parties submit, that each of the Powers of Attorney granted by Plaza was necessarily "ineffective". Rather, in the context of the present discussion, any such "ineffectiveness", and the extent of that ineffectiveness, depends upon the interpretation and application of s 10 of the Powers of Attorney Act. 4. I will turn shortly to the discussion in Belfield as to the ambiguity in meaning of the expression "as a trustee" in s 10 of the Powers of Attorney Act. However, it is useful at this stage to identify three possible, albeit not necessarily mutually exclusive, constructions of s 10. These alternate constructions are as follows. 5. First, that a distinction is to be made between trustee functions that are merely "administrative" from those functions (and, the exercise of powers) which are not merely "administrative"; and following, if such a distinction be accepted (and, it is not necessarily accepted – as to which see below), then, on this construction, the provision prohibits conferral of authority by prescribed power of attorney of only those functions that are not merely "administrative". In this way, it may be said that the signing of cheques, direction of payments, signing of (or agreeing to) accommodation notices and other such matters were merely "administrative", such that s 10 did not render relevantly ineffective the Powers of Attorney. For ease, I will refer to this possible construction as the "administrative/non-administrative construction". 6. Second, that s 10 should be read as a statutory prescription of the extant legal, equitable and statutory principles and rules regulating the delegation of trustee functions and powers. In this way, it may be said, in effect, that a trustee, prior to the enactment of s 10 and nowadays, could and can delegate functions that would cover the signing of cheques and such matters; that s 10 merely "picks up" those principles and rules; and, therefore, those functions could and can be delegated by form of prescribed power of attorney. For ease, I will refer to this possible construction as the "ambulatory construction". 7. Third, that (what might on one view be said to be) the literal reading of the language of s 10 should be given full effect: namely, that a prescribed power of attorney does not confer authority to exercise any function as a trustee that is conferred or imposed on the principal. On this approach, if not construction, no distinction is to be made between merely "administrative" functions and other trustee functions. For ease, I will refer to this possible construction as the "literal construction". 8. Although the parties did not deploy this framework for analysis (and it is not on all fours with the discussion in Belfield), I see it as a convenient means by which to explore this issue. As adverted to above, these three possible approaches to the meaning of "as a trustee" are not necessarily mutually exclusive – for example, the first and second might have an overlapping scope of operation. For that reason, some submissions could be seen as supporting either or both. If the "literal" meaning is preferred, the Powers of Attorney granted by Plaza could not, and did not, confer authority on Jamil to sign the cheques, direct payments, sign of (or agree to) accommodation notices and other such matters on behalf as Plaza as trustee for the Sayour Family Trust. 9. It is convenient next to record some observations regarding the decision of the Court of Appeal in Belfield (as noted above, a decision on which the parties here rely and, indeed, place some significance). Court of Appeal's decision in Belfield 1. Belfield concerned a claim for provision under the now repealed Family Provision Act 1982 (NSW) (Family Provision Act 1982) by a deceased's son against the estate. The estate had no significant actual assets. However, the son claimed that there was a substantial asset which should be designated as notional estate, being shares in a company that were held by a trustee on behalf of a family trust. 2. In the events that had happened, the trustee had entered into a deed under which the trustee agreed to act in accordance with the deceased's instructions. The son's case was that the deceased could thereby have directed the trustee to transfer those shares to herself and that her failure to do so fell within the definition of "prescribed transaction" under s 22 of the Family Provision Act 1982 (because, by such failure, the property remained held by a trustee and subject to the trust). However, the deceased had lacked legal capacity as from the beginning of 2001 so that, but for (it was argued) an enduring power of attorney, s 23 of the Family Provision Act 1982 would have precluded an order designating the shares as notional estate. 3. Relevantly, the son submitted that the execution in 1995 by the deceased of that enduring power of attorney meant that the failure by the deceased's attorney to give such direction to the trustee itself enlivened s 22 of the Family Provision Act 1982. Section 163B(2)(a) of the Conveyancing Act provided that the authority conferred under a power of attorney did not include authority to exercise or perform any power, authority, duty or function as a trustee conferred or imposed on the person executing the instrument. The primary judge found that, because the deceased in effect had the power to exercise the functions in the trust deed, such power was an authority to act "as a trustee" under s 163B(2)(a) and, thereby, the section prevented the attorney from exercising such powers under the deed. As adverted to already, in 2003, the provisions of s 163B of the Conveyancing Act were substantially re-enacted in ss 9-12 of the Powers of Attorney Act (see cll 9-12 of Explanatory Notes to the Powers of Attorney Bill 2003 (NSW) and generally). 4. In Belfield, Campbell JA (with whom Sackville AJA agreed) noted ambiguity in the expression "as a trustee", stating (at [51]-[52]): 51. There is no extended definition of the word "trustee" or of the phrase "as a trustee" contained in s 163B(2)(a), that could assist in coming to understand its meaning. To make matters worse, there is some semantic ambiguity in the phrase "as a trustee" in s 163B(2)(a). In ordinary English, one can exercise a power "as a trustee" if one exercises the power in the manner a trustee exercises it. If "as a trustee" were interpreted in that way, it might cover many exercises of power by a fiduciary who was not a trustee. It is likewise in accordance with ordinary English to say that one exercises a power "as a trustee" if one exercises the power in the capacity of (i.e., because one is) a trustee. If it were interpreted in that way, it could cover only powers that a trustee has, by virtue of being a trustee. 52. That ambiguity makes it of particular importance to consider the purpose of the introduction of the provisions in the Conveyancing Act dealing with enduring powers of attorney, and in particular the purpose sought to be achieved by excluding from the wide powers conferred by a general form power of attorney "authority to exercise or perform any power, authority, duty or function as a trustee". [My emphasis] 1. His Honour continued (at [67]): 67. In light of this history, and the existing law concerning delegation by trustees, it is clear that the purpose sought to be achieved by s 163B(2) was the same as that of s 10(2) of the English legislation. It was to enable a simple form of power of attorney to be effective in all circumstances, apart from the exception contained in s 163B(2)(b) (a New South Wales addition to the English model), and except when the power of attorney purports to delegate any power, authority, duty or function that a person has by virtue of occupying the office of a trustee. [My emphasis] 1. Similarly, Young AJA, as his Honour then was, said (at [102]-[103]): 102. As Campbell JA points out at [51] above there is semantic ambiguity in the expression "as a trustee" in s 163B. (Probably it is better to consider the composite phrase "powers … as a trustee"). Indeed there is ambiguity both with the use of the word "as" and with the use of the word "trustee". 103. Campbell JA noted that "as" could mean "because the person occupies the office of trustee" or it could mean "in the same way in which a trustee would act". At [67] he concludes that the former is the position. [My emphasis] 1. Furthermore, Campbell JA identified one of the historical rationales for the prohibition as follows (at [60]): 60. The purpose of s 10 of the UK legislation was thus that in most circumstances a short form power of attorney should be effective to delegate authority to perform every conceivable act that the person granting the power of attorney could perform. However, concerning actions that a person could perform by way of administering a trust, such a general power of attorney should not be effective. Rather, a special form of delegation should be required when powers that a person has by virtue of being a trustee are delegated, because the delegation should be effective only if specific notice of it is given to the persons entitled to appoint new trustees, and the co-trustees. Thus in the English legislation, when s 10(2) uses the phrase "functions which the donor has as a trustee", it means functions that he has in the capacity of holding the office of trustee. [My emphasis] 1. As CBA has noted (citing Campbell JA's reasons at [60], which I have just excerpted) an historical rationale for the prohibition was the need for notice to be given to the person entitled to appoint a new trustee or to a co-trustee. 2. Nevertheless, it does not necessarily follow from that proposition that s 10 prohibits only a delegation by power of attorney of powers the exercise of which would result in the attorney standing in the shoes of the trustee or acting as if it were the trustee. Similarly, it does not necessarily follow that s 10 does not otherwise operate to prohibit the attorney undertaking ordinary managerial, or merely "administrative", tasks on behalf of the trustee (i.e. attributes which are not intrinsic to the role of trustee). 3. In this regard, and having in mind the "administrative/non-administrative construction", one difficulty is that the postulated distinction between the exercise of trustee powers and ordinary managerial tasks is not readily apparent. Indeed, any such distinction is certainly not always obvious when one attempts to apply it to the facts of a case. For example, a trustee may only have authority to draw cheques from a trust account because that person occupies the office of trustee; yet, on the distinction proposed, the signing of such a cheque could be said to be an ordinary, managerial (or, indeed, "administrative") task, even though the legal effect of that signature (that is, as authorising the cheque withdrawal from the trust account) derives directly and only from the powers conferred personally on the trustee as the holder of that office. As noted, the Sayour Parties, in this regard, submit that an administrative power of a trustee is just as much held by virtue of the office as trustee as is any other power of a trustee. 4. It is convenient next to consider the plain meaning of the language used in s 10. Plain meaning so wide as tolerably permits? 1. As Investments here submits, an operative distinction might be made between whether the particular functions at issue are, or are not, trustee functions of a relevant kind. Such a postulated distinction is not necessarily, though might in reality be, the same as that contended for under the "administrative/non-administrative construction". 2. Investments poses by way of, perhaps rhetorical though nevertheless a potentially illustrative, example a receptionist answering telephone calls and replying to emails relating to the affairs of the trust, or an employed accountant undertaking a reconciliation of trust accounts. Plainly, it argues, that these tasks and functions can be delegated. This is despite the fact that ostensibly, and at least on one possible interpretation of the language of s 10, those tasks involve the exercise of a trustee's functions and powers. 3. This rhetorical device is an imperfect one, not least because the answering of the telephone or replying to an email does not necessitate, nor would it in the ordinary course of things be the subject of, the grant of a power of attorney. The same can be observed of the employed accountant and the reconciliation of trust accounts (which are, also, arguably not in any event trustee functions). 4. Having said that, the device does reveal a potential need to circumscribe the meaning of the statutory expression on the basis that s 10 could not have a meaning as wide as the words used could possibly permit (that is, in the sense revealed by the example of replying to an email and otherwise). The difficulty of "nice distinctions" 1. It is instructive next to turn to the legislative history, as well as the general law position prior to (and since) statutory intervention. 2. This legislative and general law history is particularly relevant to the proposition that the expression "any function as a trustee" could, or perhaps should, be construed as referring only to those functions that equity, law and statute requires, and has required, that a trustee exercise personally. This is, in effect, the thrust of the submissions made in support of the "ambulatory construction". 3. As Young AJA said in Belfield (at [111]-[112]): 111. It seems quite clear that, under the general law, an attorney cannot exercise the donor's office as an executor, administrator or a director. 112. It may be that this provides the answer to the problem as s 163B only authorises the attorney to do what the donor could lawfully authorise an attorney to do. As a person cannot delegate his or her powers etc as an executor so he or she cannot use an enduring power of attorney to do so. [Emphasis added] 1. As Investments contends, this passage may suggest that his Honour was there of the view that s 163B should be construed as replicating, or picking up, the position at general law and under statute. On this view, a purpose of s 10 was only to put beyond doubt that the then innovative short form powers of attorney could not provide a means of circumventing the prohibitions recognised by the general law and under statute. 2. One rationale for those prohibitions is, of course, that the responsibilities of a trustee, like those of a director, are personal and can therefore only be discharged by the person holding that office. In this way, and consistently with those principles, s 10 might be construed merely as re-affirming the rule that such powers and functions as are, and were, non-delegable in equity, at law and under statute are also non-delegable under the short form power of attorney. Again, this is the tenor of the "ambulatory construction". 3. From this, then, "any function as a trustee" under s 10 could be taken to refer to those trustee functions other than ministerial acts that do not involve the exercise of discretion and those functions where the trustee ex necessitate rei is bound to employ an agent (provided that the trustee, in so doing, acts in conformity with common usages and as prudently as if acting for themselves and provided also that the agent is employed in a matter which it is within the ordinary scope of that agent's business). 4. Put differently, "any function as a trustee" could be taken to refer only to those functions that equity insists be performed by the trustee personally. This elides into CBA's submission (outlined above) that, absent clear and unambiguous language, a legislative intendment to deprive a company which acts as a trustee of its capacity to delegate (by power of attorney) any of its ordinary functions that fall short of an effective substitution of its role as trustee cannot here be presumed. 5. Meanwhile, a counter-argument to these arguments is that the inherent nature of the office of trustee, being a personal office whereby the functions and powers of the trustee (other than specific, recognised exceptions) must be exercised personally, tells against this construction. 6. In this context, there is some force to Plaza's submission that the "nice distinctions" sought to be drawn by the other parties would mean that the Court would need to consider each of the particular acts of Jamil which it is contended were authorised in order for the Court to determine if each of those particular acts fell within, and was done in accordance with, those specific, recognised exceptions. The same can be said of the "administrative/non-administrative construction", whereby the Court would need to determine whether each, particular act was, in fact, merely "administrative". While the need for such forensic examinations is not dispositive, as I have indicated, it may be said that it tells against such an approach. 7. Furthermore, if, for example, the "administrative/non-administrative construction" were adopted, there would be some difficulty in characterising a decision, say, to sign the Stage 2 Construction Contract with the higher price as merely "administrative". While the specific act of signing might be "administrative", surely it could not be said that the decision to sign, and thereby accept and/or authorise that higher price, was "administrative". Likewise, while the specific act of receiving and depositing cheques into a particular bank account may well be seen to be "administrative", the decision to accept those moneys (or, as Plaza on its case would have it, to conspire or collude in the misappropriation of moneys), could hardly be said to be "administrative". Further statutory context 1. Putting those observations to one side for the present moment, consistent with the approach of Campbell JA in Belfield in relation to s 163B(2)(a) of the Conveyancing Act (see, particularly at [60]), I accept that s 10 falls to be construed having regard to the circumstances in which the existing law permitted delegation by trustees of their functions. 2. As noted by Investments, while s 163B(2)(b) of the Conveyancing Act (which was itself modelled on s 10 of the Powers of Attorney Act UK) adopted the language of "any power, authority, duty or function as a trustee conferred or imposed on the person executing the instrumenf", s 10 of the Powers of Attorney Act now deploys the language of the formulation of "functions" originally enacted in the UK. In this way, the references by the Court of Appeal in Belfield to a "power, authority, duty or function" (see, for example, at [67]) may be seen as only restating the language that then appeared in s 163B(2)(b). 3. Turning then to that UK legislation, as has been noted, those statutory reforms followed reporting and recommendations by the Law Commission. Relevantly for present purposes, the then Law Commissioners had recommended the form of words in cl 9 (which became s 9 of the Powers of Attorney Act UK) of "functions"; and the relevant explanatory note to cl 9 of the then Bill records that cl 9(2) "makes it clear that the statutory power of attorney does not cover the delegation by a trustee ... of his discretions" (emphasis added). As Investments notes, there was included a cross-reference to [39] of the Law Commission 1970 Report which similarly paraphrased "functions" (as "powers and discretions"). 4. On this basis, I see some force to construing the word "functions" in s 10 as connoting only those discretionary powers that are conferred on trustees which the general law already provided were required to be exercised personally (and, perhaps, absent specific authorisation in the trust deed or in legislation in accordance with accepted principles and particular rules). For example, the power to appoint new beneficiaries, to make advances and payment to beneficiaries or to seek judicial advice, would come within the meaning of "functions" and therefore could not be delegated by a prescribed, or short form, power of attorney. 5. In this way, one may distinguish the exercise of those powers from the processing of simple disbursements and receipts in the course of carrying on a trust business. It will be recalled that Investments describes the latter as "a classic example" of two of the principal exceptions recognised at general law: ministerial acts involving no exercise of discretion and acts which any trading trust would, as a matter of common usage, employ an agent to perform. 6. However, in the circumstances of this case (specifically, that the impugned conduct of Jamil concerns the signing of cheques and payment of moneys), the preceding analysis, even if it be accepted, is not dispositive of the issue as to Jamil's authority under the extant Powers of Attorney and the operation of s 10 (not least because of s 53 of the Trustee Act). Section 53 of the Trustee Act 1. As adverted to, as was recognised since at least Langford v Gascoyne (1805) 11 Ves 333; 32 ER 1116, historically a trustee could not delegate the trustee's duties or powers, irrespective of the extent of any advice taken before making a decision (by reference to the principle delegatus non potest delegare) (see also G Jones, "Delegation by Trustees: A Reappraisal" (1959) 22 Modern Law Review 381). 2. The rigours of this strict prohibition have been substantially ameliorated over the course of the last several centuries. Nowadays, a trustee may delegate in various circumstances: where delegation is specifically permitted by the trust instrument (see, for example, Doyle v Blake (1804) 2 Sch & Lef 231; Kilbee v Sneyd (1828) 2 Mol 186); where delegation is permitted by statute; and, in circumstances where the delegation is not otherwise covered by the trust instrument or statute, where the delegation is to do a ministerial act involving no exercise of discretion or where the trustee of necessity is bound to employ an agent, provided that the trustee in so doing acts in conformity with common usage and as prudently as if acting for themselves and, further, provided that the agent is employed in a manner within that agent's ordinary scope of business. 3. In relation to statutory overlay, as adverted to (and to which I will shortly come), s 53 of the Trustee Act is of particular import to the present discussion. Pausing here however, and before turning to that section, it is convenient to note the following as regards the general question of employment of agents (see also Belfield at [53] per Campbell JA). 4. As noted (at [17-23]) by the editors of Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis) (Jacobs'), J D Heydon and M J Leeming, Speight v Gaunt is the leading case (which followed the earlier case of Ex parte Belchier). 5. The following principles can be derived from Speight v Gaunt and the other authorities. First, that employment of the agent must have been virtually necessary according to ordinary usage of mankind – trustees could not employ an agent where the trustee could quite easily undertake the work to be done themselves (see, for example, Re Brier (1884) 26 Ch D 238). Second, that trustees had to ensure that a suitable agent was employed (see Fry v Tapson (1884) 28 Ch D 268 at 280 per Kay J (Fry v Tapson)); and, to employ an agent with a conflict of duty or interest is not to appoint a suitable agent (see, for example, Wilkinson v Feldworth Financial Services Pty Ltd (1998) 29 ACSR 642 at 694). Third, that the agent so employed had to be employed within the scope of that agent's business. Indeed, as was said in Fry v Tapson (at 280): "[i]f a trustee employs an agent to do that which is not the ordinary business of such an agent and he performs that unusual duty improperly, and loss is thereby occasioned, the trustee would not be exonerated". Fourth, that, where the delegation involved the receipt of money, the money could not be left for an unnecessarily protracted period of time out of the control of the trustee. Fifth, that trustees had to be diligent in ensuring that the agent had duly performed the duty delegated to him or her. 6. With this background, it is now convenient to turn to the statutory rules, particularly (as adverted to) s 53 of the Trustee Act, regulating the right to delegate. As the editors of Jacobs' emphasise (see at [17-24]), these statutory rules vary from jurisdiction to jurisdiction. 7. Importantly, s 53 restricts the trustee's power to permit an agent, other than a bank, to receive or pay trust moneys. In this regard, the editors of Jacobs' observe (at [17-30]) that: … yet in no case at all can the trustee permit the agent (other than a bank) to receive or pay trust moneys. The rigour of this requirement is not, it would seem, mitigated by s 59, because a trustee who, in the face of the express prohibition in s 53(4), permits an agent to receive or pay money, would surely be guilty of wilful neglect and default. [My emphasis] 1. Following therefrom, it can be seen that s 53(4) contains a general prohibition on a trustee delegating their powers and functions in relation to the receipt and payment of moneys (other than to banks and other such entities or specified persons). This is (potentially to belabour what is obvious) particularly important here, namely that, by signing (or otherwise authorising) the cheques, accommodation notices and such matters, Jamil (who was not a bank or other such person) was engaging in the payment of partnership moneys on behalf of Plaza, who held its interest in the partnership as trustee. Section 10 and ss 53(4) and (6) 1. For this reason (if nothing else), on any of the potential constructions of s 10, the scope of authority conferred on Jamil by the Powers of Attorney could not extend to authorising Jamil to sign cheques in the name of, or on behalf of, Plaza in its capacity as trustee for the Sayour Family Trust other than in accordance with s 53 of the Trustee Act. 2. On the "administrative/non-administrative construction", irrespective of whether Jamil's acts were relevantly characterised as "administrative" or not, the Powers of Attorney could not authorise the impugned signing of the cheques other than in accordance with s 53 of the Trustee Act. 3. Similarly, on the "ambulatory construction", by which s 10 is interpreted to do no more than pick up the general law and statutory rules, the Powers of Attorney could not extend to Jamil signing the cheques because, again, s 53 prohibits any such delegation except in accordance with that section. 4. For that reason and to that extent, the submissions that s 10 does not prevent a prescribed power of attorney being used to delegate trustee functions in any of the four categories of case in which a trustee could already lawfully do so under the existing law (provided that the conditions attending to those categories are satisfied) are not dispositive. This is, however, not the end of the matter. 5. Section 53(6) (excerpted above) provides as follows: "[section 53] applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust and shall have effect subject to the terms of that instrument and to the provisions therein contained". Relevantly, s 53(6) applies to s 53(4). 6. It follows, then, that even if the "administrative/non-administrative construction" and/or "ambulatory construction" are or is preferred, the Powers of Attorney will nevertheless be relevantly "ineffective" if s 53(4) is engaged. That itself turns on whether the trust instrument(s) permitted such authorisation or delegation and whether any relevant requirement(s) mandated by the trust instrument(s) were complied with. 7. Therefore, two further issues are raised: first, whether the trust instrument(s) properly construed disclose an intention contrary to the provisions of s 53(4) such that, pursuant to s 53(6), the prescribed powers of attorney could confer authority to sign the cheques and such other matters pursuant to the terms of the trust instrument(s); second, whether, if so, is reliance on the trust instrument(s) otherwise precluded by s 10? 8. The second of these questions brings one back to the competing constructions of s 10. That is to say, if the "literal construction" is preferred then s 10 of its own force renders relevantly "ineffective" the Powers of Attorney; and the issue as to construction of the trust instrument, by reason of engagement of s 53(6), does not arise. 9. Accordingly, it is convenient to deal with the second question before turning to construe the trust instrument(s). The literal or "plain meaning" construction 1. The Sayour Parties submit (as noted above) that Investments' submissions founded on the mischief rule (and which seek to read down the express words of s 10 so as not to prevent use of short form powers of attorney where there is an express power of delegation) would give s 10 no work to do. To understand this submission, it is convenient to consider s 9 of the Powers of Attorney Act (set out at above). 2. If the construction of s 10 here pressed by Investments (and the other parties whose interests are aligned on this point) is preferred then, at least to a large extent, it is arguable that s 10 would be rendered otiose. That is because s 9 makes express provision in relation to the particular instrument(s) creating the power(s) conferred on the principal(s) and later authorised to be conducted by the attorney. In this way, if s 10 is construed so as impliedly to pick up such powers, conditions and limitations then, given the clear terms of s 9, s 10 would do nothing further than that already accomplished by s 9. 3. This tells against the "ambulatory construction", and also the "administrative/non-administrative construction", pressed by Investments and the other respective parties. 4. Furthermore, I also note, by way of comparator to s 10, the language used in ss 11-13 of the Powers of Attorney Act (set out above). For example, it is notable that s 11 (contra s 10) makes express provision to accommodate any contrary intention appearing in the relevant instrument, as does s 12. These textual considerations arguably also tell against the "ambulatory construction" and the "administrative/non-administrative construction". 5. As to the explanatory materials to the Powers of Attorney Bill 2003 (NSW), it is also to be noticed that the notes to cll 11, 12 and 13 record that those sections prohibit the respective authorisation "unless the instrument creating the power expressly authorises…" (emphasis added); meanwhile, the notes to cl 10 do not indicate this legislative intendment in relation to purported conferrals to exercise a trustee function. Indeed, the notes to cl 10 record simply that: Clause 10 makes it clear that a prescribed power of attorney does not confer authority to exercise any function as a trustee that is conferred on a principal. The proposed section substantially re-enacts the provisions of section 163B(2)(a) of the Conveyancing Act 1919. [Emphasis added] 1. Each of the preceding textual and contextual considerations may be said to support the third construction of (or approach to) s 10; that is, what I have here referred to as the "literal construction". Thus it might be said that s 10, properly construed, prohibits the purported conferral of authority under a prescribed power of attorney to exercise any trustee function, notwithstanding any contrary provision or intention disclosed in a trust instrument(s). This would, on one view, be consistent with what was said by Campbell JA in Belfield (see, for example, at [60] – as excerpted above); and consistent with what his Honour identified as one of the objects of the statutory reforms, being to bring clarity, simplification and certainty. Specifically, his Honour said (at [55]): 55. Another topic considered by the Report was whether powers of attorney could be standardised, simplified and given greater certainty. At the time of writing that Report it was common for powers of attorney to be pages long, and to seek to list, somewhat in the fashion of the memorandum of association of a company, every type of transaction into which the attorney was authorised to enter. Inevitably, that sometimes gave rise to doubts about whether a transaction that the attorney proposed to enter fell within one of the types of transaction that the power of attorney listed. Concerning a proposal that a simple statutory form of power of attorney be authorised, the Commission Report said at [39]: "We have concluded that the best way to achieve the objective of having a statutory form of general power which would avoid argument as to the extent of the authority conferred would be to provide in the Act itself that a power in the statutory form should confer on the attorney authority to do on behalf of the donor anything which the donor can lawfully do by an attorney. The power itself can then be a very simple one-paragraph document referring to the relevant section of the Act. This in our view will quieten argument more effectively than any general words in the power itself (which, as experience shows, people are reluctant to take at their face value) or a long string of specific clauses which can never be all embracing. It will enable the attorney to say firmly: 'I can do anything that the donor could do; the Act says so'. This one exception must be in respect of the donor's powers and discretions as a trustee. It is already recognised as the better practice in such a case to refer specifically to the trusts concerned and it is thought that this practice should be encouraged and that the statutory form should not embrace a delegation of this sort. Under our foregoing recommendations attention will have to be directed to the particular trusts involved since the delegation will be effective only if the requisite notices are given." 1. In this respect, there is force to the Sayour Parties' submission that, in the present case, if either of the other constructions were adopted, this would illustrate a failure of that objective because the "next plank" in the analysis would of necessity be to construe the scope of any power of delegation provided for under the trust deed(s) (and, see also what was said by the New South Wales Law Reform Commission in its report of June – noted above and as referred to by Campbell JA at [61] in Belfield). 2. More specifically, as Campbell JA in Belfield noted, Appendix D to that Report was a working paper that the Law Reform Commission had produced earlier in April 1973. The Law Reform Commission there said (at [175]): We believe that no short form should confer on the donee authority to discharge a function which the donor has as a trustee or legal personal representative (Powers of Attorney Act 1971 (UK), s. 10(2)). The office of trustee or legal personal representative attracts such special duties and responsibility that in our view its delegation always demands particular consideration of the terms in which the delegation is to be made. [Emphasis added] 1. As Campbell JA had earlier noted (at [62]-[63]): 62. Notwithstanding that remark in the Working Paper, the draft of a new s 163B of the Conveyancing Act, contained in the Report, made no mention of any exemption of powers as a trustee. 63. The Working Paper (at [176]) said it made no specific proposals for a statutory form of power of attorney, but invited the views of interested persons. However, by the time the recommendations of the Law Reform Commission came to be enacted, the English model for a short form power of attorney was followed, including its exception relating to exercise of powers, etc, "as a trustee". [Emphasis added] 1. Arguably, the third of the constructions I have postulated also sits comfortably with what was ultimately concluded by Campbell JA in Belfield (see at [67] – as excerpted above). 2. Ultimately, I have concluded, having regard to the discussion in Belfield and the matters referred to above, and for the moment putting aside any delegations permitted by the instrument of trust itself, that the proper construction of s 10 of the Powers of Attorney Act (consistent with the reasoning in Belfield) is that what cannot be conferred by a prescribed power of attorney is the authority to exercise functions by the donor in its capacity as trustee (i.e., those functions that it exercises by reference to its office as trustee). Leaving aside any question as to the precedential force (or otherwise) of Belfield and arguments about what is properly to be seen as the ratio of the decision, the unity in the reasoning of Campbell JA and the "plain meaning construction" fortifies this conclusion. 3. Accordingly, this would not include mere administrative functions, but the difficulty for CBA and the Deiri Parties here is that the very signing of cheques, receipt of payments by Plaza and other such matters were in the exercise of the office of trustee; and, crucially, Jamil was, on any view of the matter, left to make, or was making, those decisions – he was not merely being directed to, say, sign a cheque for a determined amount, or attend at the bank branch with a cheque or, indeed, answer the telephone. In short, the functions that Jamil was undertaking were not merely administrative functions. Construction of cl 7.49 1. As adverted to, it is next necessary at this juncture to consider the construction of cl 7.49 of the trust instrument (which I have extracted above). 2. As noted, the Sayour Parties submit that Plaza was not empowered to delegate to Jamil, by the Powers of Attorney or otherwise, either the power to receive money or the power to pay money (referring, inter alia, to s 53 of the Trustee Act). 3. As to the trust deed, I consider that that cl 7.49 in terms only permits delegation for the purpose of administration of the trust (and hence does not expand the ordinary limits at law on delegation). Furthermore, s 53 in terms precludes a trustee from conferring authority to receive or disburse trust money. For the reasons here stated, it is unnecessary to say anymore in relation to s 53. 4. I thus find that the Powers of Attorney did not confer actual authority on Jamil to draw cheques or to receive funds in relation to trust property, or sign or otherwise acquiesce in the execution of accommodation notices and other such matters. Implied actual authority by reason of Jamil's role 1. I now turn to consider the alternative basis on which it is submitted that Jamil had actual authority to make and receive payments in connection with the Broadway Development, being an implied authority deriving from Jamil's role in managing Plaza's involvement in the Broadway Development. 2. It is convenient first to consider the position put for the Deiri Parties. Deiri Parties' submissions 1. The Deiri Parties note that a person may be vested with implied authority to perform a particular role or function in the management of a venture, even though he, she or it has never been formally appointed to that position (referring to Law of Agency at [8.41]) and that this is sometimes referred to as implied actual authority by acquiescence. 2. Reference is made to In the matter of Matlic Pty Ltd (in liq) [2014] NSWSC 1342 (at [40]), where Black J noted that such authority "may be established if persons who have actual authority to delegate acquiesce in another person's entry into transactions which would otherwise be outside his or her authority"; and to what was said by Hammerschlag J in Junker v Hepburn [2010] NSWSC 88 (Junker v Hepburn) (at [43]) to the effect that an implied grant of actual authority can result from acquiescence in the course of behaviour by persons who have actual authority to delegate (giving as an example where directors as a board stand by whilst a single director enters into transactions outside his or her authority). It is submitted that Moustafa clearly acquiesced in Jamil exercising authority in the present case, knowing the Broadway Development was being built, that payments were being made and that Jamil was "running everything" (just as, they say, Moustafa represented to Mr Deiri at the start of the project that Jamil would). 3. The Deiri Parties also here refer to Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549 (at 583-4) per Lord Denning MR, where there was implied authority arising from the board's acquiescence in conduct over many months in committing the company to contracts without sanction from the board; and to the similar situation recognised in Cambridge Gulf Holdings NL v CLC Corporation (Full Court of the Federal Court of Australia, 28 August 1998, unrep) (at 19, per Foster, Lee and Nicholson JJ). 4. Furthermore, reference is made to the summary in Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50 (Equiticorp Finance v Bank of New Zealand) (see at 134 per Clarke and Cripps JJA) of the decision of the Victorian Court of Appeal in Brick and Pipe Industries Ltd v Occidental Life Nominees Pty Ltd [1992] 2 VR 279 (Brick and Pipe) as to the factors relevant to a finding of implied authority (see at 360-361). 5. The Deiri Parties submit that there is ample evidence that Moustafa conferred actual authority on Jamil to act for Plaza in partnership dealings, including attending to day-to-day payment of expenses and communicating with Investments about how and where funds were to be paid or distributed. 6. In particular, the following facts are said to be demonstrative of implied actual authority: that Moustafa met with Mr Deiri at the beginning of the project, in the presence of Jamil, and did so for a number of initial coordination meetings (as to which, see the above chronology); that Moustafa then, in effect, left Jamil in charge of Plaza's day-to-day involvement in the Broadway Development, and had almost no direct communication with Mr Deiri about the details of the project other than occasional "high-level" telephone calls; that Moustafa never attempted to interfere with Jamil's actions and decisions taken in connection with the Broadway Development; that Moustafa represented to Mr Deiri that Jamil would be running the entire project from Plaza's side, he would be the primary point of contact, that Moustafa was semi-retired and Jamil runs everything and that dealing with Jamil was like dealing with Moustafa (as to which, see particularly my findings above); and that Jamil negotiated the price for sale of the 50% interest in the Broadway Site, not Moustafa, and that Moustafa then signed the contract for sale. 7. The Deiri Parties also note that Moustafa asked Jamil for updates on the project and about whether Jamil was happy with the amounts being paid; and that Moustafa claims he never saw any progress claims, and clearly relied on Jamil to keep him informed about what was happening and to take care of Plaza's interests. It is noted that Moustafa received moneys into his Blom Bank Lebanon account on several occasions without communicating directly with Mr Deiri, plainly (it is said) relying on Jamil to communicate to Mr Deiri where moneys were to be paid, such that when Jamil directed other payments, Mr Deiri had every reason to believe that Moustafa had authorised Jamil to make such directions; and that Moustafa was given two cheques for settlement proceeds and banked those cheques himself, never complaining (it is said) to Mr Deiri that the drawing of those cheques was not authorised. 8. The Deiri Parties further point to the fact that Moustafa gave Jamil the ability unilaterally to operate the Westpac #202 Account (which was Plaza's principal trust operating account and into which it received many of the impugned payments and distributions). They say that Moustafa knew that moneys were being paid to build the development, and therefore must have known that the CBA facility he executed was being drawn upon, and that expenses were being paid from the CBA Partnership Account, yet he never complained to Investments. They also point to the execution by Moustafa of the respective Powers of Attorney both personally and from Plaza in favour of Jamil (and to the evidence from Mr Deiri that the 26 March 2012 version was shown to him by Jamil). 9. In these circumstances, the Deiri Parties and CBA both contend for a finding that Jamil had implied actual authority to "run" Plaza, including: to pay creditors and expenses; to communicate with and direct Investments about how and where funds were to be paid or distributed; to receive and manage those funds on Plaza's behalf; to supervise and make decisions concerning the construction as it progressed; and to bind Plaza in respect of all transactions with CBA. 10. It is convenient now to consider CBA's submissions in this regard. CBA's submissions 1. CBA points to Jamil's activities on behalf of Plaza, including: attendance at on-site meetings; the giving of instructions during the construction phase; taking receipt of the builder's progress claims; attending meetings with CBA representatives and its quantity surveyor preparatory to CBA's payment of those claims; and, also, exercising internet banking access to the CBA Partnership Account from the time it was opened. 2. CBA maintains that this is not a case of ostensible authority (which requires an inquiry into representations by the principal to a third party); rather, the inquiry here requires consideration of the dealings between the principal and his agent (citing Law of Agency at [20.15]). It is said that, here, Moustafa ceded to Jamil the discharge of all tasks which a responsible officer of Plaza, as a partner in the Broadway Development, would be expected to have; and that Jamil's authority to bind Plaza is properly to be implied from the nature and extent of his involvement in the above activities. 3. It is noted that, whether authority may be implied and (if so) the scope of the authority to be implied, is found upon a close analysis of the evidence (CBA similarly referring to Equiticorp Finance v Bank of New Zealand at 134; Junker v Hepburn at [44]); and that implied actual authority is the authority given to an agent having regard to the relationship and dealings of the principal and the agent; and the implication may result from acquiescence in the course of behaviour by those having actual authority to delegate (citing Junker v Hepburn at [41]; Awad v Australian Sales & Leasing Pty Ltd [2018] VSC 627 at [45] per Croft J). 4. CBA submits that, on the evidence, Moustafa undoubtedly delegated to Jamil, from the commencement of construction, all aspects of Plaza's involvement in the Broadway Development. It is said that, once the initial documentation was signed, Moustafa had virtually no personal involvement in the construction process or the funding of that process; and that Moustafa did not seek involvement and relied entirely upon Jamil. CBA maintains that Moustafa was content so long as Jamil was happy; that he stood by and allowed the whole Broadway Development to be built and completed, provided that at the end of the process CBA was repaid all that it was owed and Plaza received its share of any residual profits. It is said that Moustafa saw and understood that the Broadway Development was under construction at very considerable cost, the funding for which derived from CBA; and Moustafa had not been involved in signing anything that facilitated the provision of funding by CBA, yet he raised no complaint with CBA, Mr Deiri or Jamil. 5. It is submitted that Moustafa's acquiescence in these events establishes Jamil's implied authority to act for Plaza, within the principles discussed in the authorities cited above. In addition, as the Deiri Parties, CBA says that Moustafa's repeated execution of Powers of Attorney in favour of Jamil, even if found to be ineffective to establish express authority at law, provides further evidence supporting a finding of authority by implication. 6. I next turn to consider the submissions for the Sayour Parties. Sayour Parties' submissions 1. The Sayour Parties maintain that the various grounds on which it is asserted that Jamil had implied actual authority to sign in place of, or as, Moustafa are not made out. In particular, it is said that the fact that Jamil was Moustafa's son is not a tenable basis for alleging authority; nor does the assertion that Jamil had "day to day responsibility for Plaza's participation in the partnership" establish (in the face of the express terms of operation of the CBA Partnership Account) that Jamil had authority to sign Moustafa's name on the cheques. The Sayour Parties say that the express contractual stipulation (to which both CBA and Investments agreed) that both Moustafa and Mr Deiri were to sign establishes that Jamil was not an authorised signatory and that he did not have authority to sign cheques on behalf of the partnership. 2. The Sayour Parties further contend that a day-to-day management function does not self-evidently extend to signing cheques; saying that it would be a matter for specific proof of the precise content of the authorised functions of Jamil. The Sayour Parties say that nothing in the evidence establishes any specific grant of authority to Jamil to sign cheques; and that the very fact that somebody assumed to forge Moustafa's signatures demonstrates acceptance that his signatures were required. Similarly, the Sayour Parties say that the evidence of Mr Deiri that it was his practice to leave cheques with Jamil in order for him to obtain his father's signature demonstrates that there was no acceptance by the partners that Jamil was authorised to sign cheques. 3. The Sayour Parties point, in this context, to the fact that, on 13 February 2013, Combined Projects paid $400,000 into the Westpac #295 Account (which was controlled by Jamil) (as to which, see at [336] in the above chronology); and that, on 19 February 2013, one week before the date of cheque #226, Jamil sent an email to Mr Deiri, saying "Fouad whos [sic] gonna visit us in jail" (as to which, see at [338] in the above chronology). 4. It is further noted that there was a cheque of about $200,000 every month to Deicorp Constructions in this period; and that, after the, 2013 CBA cheque query (as to which, see at [340] in the above chronology), there were only four more cheques signed with a "Jamil" signature and no Moustafa signature (these being for relatively small amounts), none of which were in favour of any Deicorp Group entities; and that, after those four cheques, there were only six more cheques bearing a Jamil signature and these also bore a "forged" Moustafa signature and the signature of Mr Deiri. One of those six cheques was a cheque #242 dated 6 June 2013 in favour of Deicorp Constructions. 5. Following, the Sayour Parties contend that, if Jamil was understood to have authority to sign, it is difficult to see why it was thought necessary also to have the signature of Moustafa on the cheques. 6. The Sayour Parties say that the pattern of cheque signing (to which I have referred earlier) does not indicate any general course of authority for Jamil to sign cheques. They further say that the making of substantial payments to Jamil (as set out in the reply to the defence to First Broadway Cross-claim and in the Fifth Broadway Cross-claim) has the effect of impeaching any claim by Investments that Jamil was authorised to act on behalf of Plaza in the various ways alleged in its defence to the First Broadway Cross-claim. 7. In reply to CBA's submission on the scope of implied actual authority, the Sayour Parties say that the scope of Jamil's implied authority was limited to administrative and managerial tasks. It is said that the scope of Jamil's authority with respect to Biomed was materially greater than that which had been granted to him with respect to Plaza but, even then, that authority was not absolute. 8. It is said that the extent of the disclosed acts by Jamil with respect to CBA is that he sent an email providing details of Moustafa's role and asset position in December 2011 (see at [199]/[200] above) and that his email address received, usually, copies of Mr Hammond's reports to CBA. It is said that, beyond this, there is "not a single instance" where Jamil appears to have been contacted by CBA or where he communicated with the bank other than by forging Moustafa's signature. 9. Insofar as CBA submits that Moustafa had delegated to Jamil, from the commencement of construction, "all aspects of Plaza's involvement in the Project", the Sayour Parties say that there is not sufficient evidence to support any such finding. It is said that Moustafa was involved throughout the project, referring to his attendances at meetings, his provision of a personal guarantee to CBA and grant of a charge over Biomed for the loan facility and that he permitted Biomed to contribute to expenses. It is further noted that Moustafa was required to be involved when Jamil was seriously ill and receiving treatment from mid-2014. 10. With respect to the division of responsibility between the partners, the Sayour Parties say it was not within Plaza's remit to be heavily involved in the construction phase; and that Moustafa's level of involvement was appropriate where Mr Deiri's role as contract superintendent and builder was "at the fore" during construction. 11. Before disposing of the issue of Jamil's purported implied actual authority, I should note the submissions in reply vis-à-vis the extent of Moustafa's involvement in the Broadway Development. For example, CBA here says that Moustafa's involvement was confined to "the formation of the partnership and commencement of the development". It says that Moustafa had no involvement after construction had commenced, which was the period in which the Broadway Partnership was required to draw down and expend funds. It says that Moustafa's withdrawal from active involvement in this period supports CBA's contention that Moustafa gave responsibility for all aspects of the implementation of the Broadway Development (including responsibility for expenditure) to Jamil. Determination re implied actual authority by reason of Jamil's role 1. At the outset, I accept the submission of the Sayour Parties that one must focus on the relevant acts for which authority must be established (here, relevantly, the drawing of cheques, signed and delivered in the name of the Broadway Partnership; the drawing of accommodation notices, signed and delivered in the name of the partnership; and the execution of the Second Facility Agreement and the amending agreements in the name of Plaza). 2. I have concluded, consistent with my earlier factual determinations, that there was implied actual authority for the day-to-day tasks, including the direction for payment or various receipt of funds (though not for payments into Jamil's personal account) and as to the issue of accommodation notices. 3. However, I cannot be satisfied, and do not accept, that this extended to the drawing of cheques (not least since that was inconsistent with the express provisions of the CBA mandate) and certainly not for the making of decisions to commit Plaza to substantial construction contracts. Indeed, those acts, to my mind, go far beyond the day-to-day administrative management of project decisions in the management of company affairs. 4. I should here note that I also see force to the submission that the very fact that someone assumed a practice of imitating Moustafa's signature tells towards factual acceptance that the relevant parties knew that Moustafa's signature was required and, indeed, against factual acceptance that Moustafa was content for Jamil to be signing the cheques (noting also the 2013 CBA cheque query and the practice that then seems to have been assumed in relation to the signing of cheques). While one might accept that the purported agent might have thought it necessary, as a matter of form so to speak, to sign in Moustafa's hand (while all the while Moustafa being content for the cheques to be signed), I think that the totality of the evidence, in the circumstances, discloses that any authority, express or implied, did not extend to the drawing of cheques. Indeed, similarly, Mr Deiri's evidence that it was his practice to leave cheques with Jamil in order for him to obtain Moustafa's signature also tells against there having been any acceptance that Jamil was himself authorised to sign cheques. 5. I turn now to consider purported actual authority by reason of the Partnership Act. Actual authority pursuant to Partnership Act 1. CBA also contends that, by s 5 of the Partnership Act, the acts of Investments bound the partners of the Broadway Partnership in and concerning the business of undertaking the Broadway Development; and it is said that this included the payments of its accounts by cheque or drawdown from funds provided by CBA. Thus, CBA submits that, apart from any question of signature by Moustafa, Plaza (as a partner in the Broadway Partnership) was bound by Investments' payments and authorisations to CBA with respect to the business of the Broadway Partnership (citing Cappe v Tsung [2018] NSWCA 86 at [46] per Emmett AJA (Cappe v Tsung)). 2. I note here that Plaza has emphasised (referring to Ardern v Bank of NSW) that the condition not to honour cheques unless signed by both Mr Deiri and Moustafa was a condition for the benefit of each of Plaza and Investments as a measure to ensure no dishonest drawings between the partners. Determination re actual authority pursuant to Partnership Act 1. In Cappe v Tsung, the respondent (Dr Tsung) and the appellants operated a diagnostic imaging practice pursuant to a partnership agreement. Relevantly, six of the partners (including Dr Tsung) held a one-seventh share in the partnership; meanwhile, two of the partners held a one-fourteenth share. Clause 32 of the partnership agreement provided that, where consideration needed to be given to the partnership accepting an offer by a corporation to acquire all or part of the partnership business, the decision could only be made where a minimum of twelve (of the total fifteen votes) were in favour of the motion. In the events that happened, on 11 July 2016, a private company wrote to the chairman of partners making a "non-binding indicative offer" to purchase the partnership business. Dr Tsung did not wish to accept the proposal. Then, on 16 March 2017, the chairman of the partners gave notice of a proposed meeting for the purpose of considering and accepting in principle the offer. At a meeting on 30 March 2017, were cast in favour of the proposal. Dr Tsung abstained from voting. 2. On 21 April 2017, a Securities Purchase Agreement (the SPA), which proposed a two-stage transaction to be completed on 30 June 2017, was entered into; and on 26 June 2017, it was resolved to accept the "finalised" offer for the acquisition and the transaction then proceeded. 3. Dr Tsung commenced proceedings in the Equity Division seeking a declaration that, on settlement of the SPA, he was entitled to one-seventh of the surplus proceeds of realisation, less liabilities. The primary judge made that declaration. 4. On appeal, the issues were: first, whether cl 32 was limited to binding all partners in relation to dealings with a third party concerning "merger or acquisition", or whether the clause also extended to enabling the specified majority of partners to bind all partners in relation to the apportionment, division and distribution of purchase consideration; and, second, whether the cash and shares received by the partners were partnership assets, or partly referable to promises given by them under the practice management agreements made as part of the transaction. 5. Meagher JA (Basten JA agreeing) and Emmett AJA dismissed the appeal. It was held that cl 32 did not confer on the majority the right to sell partnership assets on a basis that entitles some partners to receive a greater share of the proceeds than the proportion attributed to them under the partnership agreement and the Partnership Act (see at [1], [14], [101], [105]); and that the disposal of partnership assets by the firm is conceptually distinct from an adjustment of a partner's entitlement to share in the proceeds of a disposal, such that, while the majority can impose upon the minority the terms of a merger or acquisition between the partners and a third party, the clause did not enable a majority to determine the manner of apportionment, division and distribution of the consideration payable (see at [1], [16], [103]; and see also Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321; [1974] HCA 22). 6. Most relevantly for present purposes, Meagher JA said (at [46]): 46. Section 5, in Division 2 [of the Partnership Act], relevantly provides that every partner in a partnership is an agent of the firm and of the other partners for the purpose of the business of the partnership, and the acts of every partner who does any act for carrying on in the usual way business of the kind carried on by the firm of which the partner is a member binds the firm and the other partners unless the partner so acting has in fact no authority to act for the firm in the particular matter and the person with whom the partner is dealing knows that the partner has no authority. Section 6 relevantly provides that an act or instrument relating to the business of a firm and done or executed in the firm name, or in any other manner showing an intention to bind the firm by any person thereto authorised, is binding on the firm and all the partners. [My emphasis] 1. As I have sought to indicate by the above emphasis, the immediate problem that arises in relation to CBA's reliance on Cappe v Tsung concerns the extent of Mr Deiri's authority, through his partnership entity, to conduct the business of the Broadway Partnership and thereby bind it (and, indeed, the same can be said of Jamil). 2. In addition to that, there is also the issue concerning the bank's mandate and the duties of banks to adhere to that mandate (as to which, see particularly, for example, Ardern v Bank of New South Wales). 3. I consider these issues at various junctures in disposing of the multiplicity of issues raises on each of the cross-claims. Suffice it here to say that I do not accept that vis a vis CBA, Plaza was bound as a partner of cheques not countersigned by Moustafa. 4. Next is the contention that Jamil had ostensible authority to act in way he did and so to bind Plaza. Ostensible authority 1. Here, in short, CBA and the Deiri Parties say that Plaza held Jamil out to Investments as having authority to act for Plaza throughout the Broadway Partnership, by the conduct of its director (Moustafa). 2. It is noted that in order to establish ostensible authority there must be a representation or holding out by the principal (and not merely the agent), signalling to the third party that the third party is entitled to treat the agent as having relevant authority (see Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 at [36] (Pacific Carriers v BNP Paribas); Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 503 per Diplock LJ, as his Lordship then was); and that where there is such a representation (which may be made by conduct) and it is acted upon by dealing with the agent, this operates as an estoppel preventing the principal from asserting that he or she is not bound by the agent's conduct. 3. Furthermore, reference is also made to what was said by Charles, Eames and Nettle JJA (as his Honour then was) in Clarey v Permanent Trustee Co Ltd [2005] VSCA 128 (at [107]); and that a "representation by conduct may include omission to interfere where interference could reasonably be expected" (see Soanes v London and South-Western Railway Co (1919) 88 LJKB 524 (at 527 per Bankes LJ), cited in Soiland Pty Ltd v Ridgepoint Corporation Pty Ltd [2005] WASC 124 at [159]). 4. Relevantly, the Deiri Parties say that Plaza held Jamil out to them as having authority to "run" Plaza. In particular, it is said that, through Moustafa, Plaza held Jamil out as having authority to direct and receive payments to Plaza or to be the point of contact for communications about payments, without Moustafa needing to be told directly. Noting that a representation as to authority may be made by arming an agent to sign a document, even where that document proves to be invalid, it is said that the execution of the Powers of Attorney in Jamil's favour (even if, contrary to Investments' submissions, they be ineffective at law) amounted to a representation by conduct of Jamil's authority to act on behalf of Plaza. With reference to Pacific Carriers Ltd v BNP Paribas, the Deiri Parties say that here the execution of the Powers of Attorney similarly armed Jamil with apparent authority, holding him out to third parties as authorised to act on Plaza's behalf on the terms expressed on the face of the instruments. 5. Thus, it is submitted that there was ostensible authority conferred on Jamil, in particular, to direct and receive payments on Plaza's behalf. Determination re ostensible authority 1. I do not accept that Jamil was held out as having ostensible authority to do anything other than those acts for which he had implied actual authority (as to which, see above). I do not consider that the evidence establishes that Moustafa relevantly armed Jamil; rather, it is clear, not least in the circumstances in which the Broadway project commenced (cf the later Arncliffe project), that Moustafa was the ultimate decision maker for Plaza. It is unnecessary here to recite those other factual matters, and evidence, that tells to this conclusion (and, instead, it is sufficient to refer to all that I have said in relation to the preceding determinations). Determination re Jamil's authority 1. Given the multiplicity of claims and arguments in relation to Jamil's authority, it is convenient here to summarise the determinations which I have reached above. 2. In short, in relation to the various Powers of Attorney, I have found that these did not confer actual authority on Jamil to draw cheques or to receive funds in relation to trust property, or sign or otherwise acquiesce in the execution of accommodation notices and other such matters. 3. As to implied actual authority by reason of Jamil's role, I have found that there was implied actual authority for the day-to-day tasks involving, inter alia, the direction of payments and the like (noting again however, for example, not for payments into Jamil's personal account) and as to the issue of accommodation notices. However, this did not extend to the drawing of cheques and did not extent to making decisions to commit Plaza to substantial construction contracts (though, it did extend to approving, to the extent necessary, various of the variations and escalation costs). 4. In relation to authority by operation of Partnership Act, for the reasons outlined above, I consider that vis à vis CBA, Plaza was not bound (as a partner) of cheques that were not countersigned by Moustafa. 5. Finally, in relation to ostensible authority, I do not accept that Jamil was held out as having ostensible authority to do anything other than those acts for which he had implied actual authority. Estoppel (and acquiescence) 1. As to any defence based on principles of estoppel by acquiescence and conventional estoppel (to argue that Plaza is estopped from denying that the Broadway Partnership's dealings with CBA were undertaken with the actual or implied authority of Plaza), it is sufficient here to record the following. CBA's submissions 1. At [193D] of its defence, CBA alleges that CBA, Plaza and Investments "knew and assumed" various matters there set out; and (at [193E]) it is alleged that Moustafa and Plaza acquiesced in the payment of funds and that each of Plaza, Investments and CBA acted upon the convention that payment of funds would be made from the facility agreements and the CBA Partnership Account, even where cheques and other instruments had not been signed or executed by Moustafa. In essence, CBA submits that, whatever the contractual terms, throughout their dealings Plaza and CBA acted upon the common assumption that Moustafa's signature was not required to authorise partnership transactions. 2. In this regard, it is said that: Moustafa was aware from the outset that Deicorp had tendered to construct Stage 1 of the Broadway Development for $40 million and Stage 2 for $23 million; Moustafa knew that the whole of the construction and development phase throughout Stage 1 and Stage 2 was to be funded substantially by CBA (i.e., entirely, other than loan funds to the Broadway Partnership from other parties); Moustafa attended the site from time to time and was kept abreast by Jamil of developments; Moustafa attended the opening ceremony for the car park and retail centre at the end of 2013, by which time Stage 1 had been completed; and Moustafa knew that the Stage 2 residential apartments had been completed and that settlements from sales were occurring in late 2014 and that Plaza was receiving a portion of the proceeds of such sales (see chronology above). 3. CBA maintains that Moustafa knew and must have appreciated that the funding for the construction was derived from CBA and says that this is manifest not least from the fact that Moustafa delegated to Jamil the task of attending site meetings, as construction proceeded, in the company of CBA's quantity surveyor (it will be recalled, Mr Peter Hammond), for the undoubted purpose of having construction costs approved and then paid by CBA. 4. CBA points to the fact that one of the earliest cheques drawn on the CBA Partnership Account (cheque #104) was for $77,234.50 made payable to Biomed, of which Moustafa was a shareholder and its sole director. It is noted that the Broadway Partnership MYOB accounts indicate that this was a reimbursement of funds advanced by Biomed to meet partnership expenses. CBA says that, although Moustafa says he did not sign any cheques, Moustafa was content for his own company to receive payment by cheques signed without his signature (noting that there were at least two other cheques similarly made payable to Biomed). 5. CBA also points to the fact that Plaza ultimately received, and Moustafa personally deposited, two substantial cheques (neither of which was signed by Moustafa) totalling $5 million drawn on the CBA Partnership Account and made payable to the Sayour Family Trust, of which Plaza was the trustee. CBA says that this demonstrates Plaza's propensity throughout to treat payments as good and effective to discharge the Broadway Partnership's liabilities, whether or not they bore Moustafa's signature. 6. Accordingly, it is submitted that each of Plaza, Investments and CBA proceeded throughout their dealings together upon the common premise that payments by CBA (whether on presentation of cheques or on accommodation notices) would give rise to commensurate liabilities by the Broadway Partnership to CBA, whether or not such transactions had Moustafa's express imprimatur; and that Moustafa (and thus Plaza) knew that the construction of the Broadway Development and the realisation of profits through rents and sales were the product of CBA's provision of funds (by cheques and drawdowns). It is said that not once throughout the period of the development did Moustafa take issue with the course of conduct described above; rather, to the contrary, he accepted the benefit of it, in particular by Plaza's receipt of Broadway Partnership distributions. 7. More specifically, as to the reliance on the principles of estoppel by acquiescence, CBA points to what was said in Priestley v Priestley [2016] NSWSC 1096 (Priestley v Priestley) by White J, as his Honour then was, at [109]-[110] (his Honour there referring in turn to what was said by Priestley JA in Austotel Pty Ltd v Franklins Self-Serve Pty Ltd (1989) 16 NSWLR 582 at 610-612) and, on appeal, by Macfarlan JA in Priestley v Priestley [2017] NSWCA 155 (see at [13]), as well as to the discussion of principle in E Co v Q [2018] NSWSC 442 (E Co v Q)). 8. Again, CBA submits that Moustafa well knew that the construction costs for the Broadway Development were throughout the project being funded by it without his signature; yet he stood by in silence, permitting CBA to continue to pay out on cheques drawn on the CBA Partnership Account and drawdown requests made under the facility agreements. Thus, CBA maintains that Moustafa acquiesced in CBA's provision of funds, despite the absence of his own signature. 9. CBA also invokes West v Commercial Bank of Australia Ltd (1935) 55 CLR 315; [1935] HCA 14 (West v Commercial Bank) (see at [322]) as a case (it is said) directly on point. CBA says that it must have been apparent to Moustafa that CBA had been acting and was continuing to act upon the assumption that, although the cheques and drawings may have been irregular, CBA might nevertheless safely allow them. In such circumstances, CBA says that Moustafa (having acquiesced in the assumption) cannot now seek (through Plaza) to depart from it. It is said that Plaza received the full benefit of the funds that were expended and is now estopped by acquiescence from asserting the claims it makes against CBA. 10. As to the conventional estoppel analysis, CBA refers also to the principles and authorities reviewed in Anthony v Morton [2018] NSWSC 1884 (see at [490]-[521]) and contends that the requisite elements for conventional estoppel (also identified by Brereton J, as his Honour then was, in Moratic v Gordon at [32]; and approved by the Court of Appeal – see Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWSCA 65 at [199] per Tobias JA, Mason P and Campbell JA agreeing (Ryledar); Rebenta Pty Ltd v Wise [2009] NSWCA 212 at [65] per Basten JA, Ipp JA and Sackville AJA agreeing) are satisfied in the present case. 11. CBA emphasises that the common assumption here was that Mr Deiri's signature on cheques and drawdown requests sufficed to authorise payment out by CBA. As to Plaza, CBA submits that the assumptions made by Plaza are demonstrated by Moustafa's knowledge and understanding (i.e., that CBA was paying expenses without his signature on cheques); and, as to Investments, CBA submits that Mr Deiri knew that Moustafa was not signing cheques and drawdown requests. Thus, CBA says that both CBA and its customer (the partnership of Plaza and Investments) shared the assumption that adherence to the strict terms of the banking contract and, in particular, the mandate was not obligatory. 12. It is submitted that the evidence establishes that both parties conducted their business relationship on the basis of that mutual assumption, noting that the adoption of such assumption may be inferred from all the surrounding circumstances and the course of dealings between the parties (see, for example, Anthony v Morton at [509]). In particular, it is said that the evidence establishes that the parties knew or intended that their counterpart in the transactions was acting upon that basis; and that any departure from the assumption now would cause manifest detriment to CBA. It is said that it may properly be inferred that, had the absence of Moustafa's signature been the subject of complaint to CBA, it would have declined payment or determined to "follow the money" (see, for example, West v Commercial Bank at 323). 13. In these circumstances, CBA submits that that Plaza is estopped by convention from denying Plaza's authority (citing Con-stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 (Con-Stan) at 244; [1986] HCA 14; Moratic v Gordon at [32]; Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 (Franklins v Metcash) at [572]; Miller Heiman Pty Ltd v Sales Principles Pty Ltd (2017) 94 NSWLR 500 (Miller Heiman v Sales Principles) at [42] per Macfarlan JA, McColl JA and Sackville AJA agreeing). 14. It is also noted that s 32(1) of the Cheques Act renders inoperative a signature on a cheque written without the authority of a person whose signature it purports to be, unless that person is estopped from denying the existence of authority for the signature. CBA submits that, in the present case, each of Plaza's claims fails because Plaza is estopped from asserting those claims against CBA (and, in the case of the cheques for which Plaza sues, the estoppel prevails). 15. As to the 2013 CBA cheque query and the Cheque Authorisation Alteration Instruction, CBA maintains that (contrary to Plaza's contention) neither of these matters alters the above analysis. It is said, in particular, that by March 2013 the convention upon which the banking contract was conducted had become well entrenched (indeed since, it is said, February 2012). It is said that when, for whatever reason, the cheque signature was queried, the immediate response of approval by reference to Mr Deiri alone (and continued adherence thereafter to the parties' approach to the contract) confirmed that convention. Thus, CBA submits that the Cheque Authorisation Alteration Instruction was a recognition, not a denial, of the convention and simply confirmed that the existing procedure would continue. Sayour Parties' submissions 1. The Sayour Parties (by reference to Con-Stan at 244, cited in Carbone as Trustee for the S & N Carbone Family Trust v Mills [2019] NSWCA 15 at [71]), say that the allegation by CBA (in effect that CBA, Plaza and Investments proceeded throughout their dealing upon a common premise that payments by CBA would give rise to commensurate liabilities by the Broadway Partnership to CBA no matter whether Moustafa had authorised such payments) fails in the face of the express agreement of the parties comprised in the account operating authorities and the evidence showing the continuing assumptions that those terms were to be operative. 2. Insofar as the conventional estoppel defence is raised against the allegations of breach of CBA's mandate by reference to the non-genuine Moustafa signatures, the Sayour Parties say that an essential condition for such a defence is that it be established that Plaza knew of the forgeries (and that this has not been alleged). The Sayour Parties point in this context to the fact that CBA referred the questioned cheque in March 2013 not to the customer whose signature was in question (i.e., to Plaza) but to Investments (referring to Greenwood v Martins Bank Ltd [1932] 1 KB 371 (Greenwood) at 381, where Scrutton LJ pointed out that the obligation to inform of known forgeries is reciprocal). They say that CBA's acceptance of instructions from Mr Deiri's office alone demonstrates that it did not rely on any representation by Plaza (and is thus fatal to any estoppel defence). Reference is also made to Fried v NAB, where Gray J (at [147]-[150]) refused to extend the limited extent of the Greenwood obligation (which the Sayour Parties say is the foundation for the implied representation involved in the estoppel cases). 3. Furthermore, the Sayour Parties maintain that there is an absence of "proof of custom" to support any contention that the alleged premise was adopted by all parties as the conventional basis for their relationship. In this connection, it is said that CBA maintained the ordinary requirements for signing mandates and it is noted that CBA has adduced no evidence that it believed and adopted the alleged convention. It is submitted that, to the contrary, the evidence shows that CBA required correct mandates, and genuine instruments (but was deceived). The Sayour Parties emphasise that the undertaking of CBA not to honour cheques unless signed by both Mr Deiri and Moustafa was a condition which enured for each of the Plaza and Investments as a measure to ensure no dishonest drawings between the partners (citing Ardern v Bank of NSW at 573-574). It is submitted that, in that context, the 2013 CBA cheque query is significant (that being described as the prime example of the fact that CBA failed to take basic measures and failed to act in accordance with its mandate). 4. The Sayour Parties emphasise the following matters. First, that the cheque query in March 2013 shows that CBA expected all cheques to be drawn on the account to bear Moustafa's signature. Second, that the Cheque Authorisation Alteration Instruction which purported to change the operation of the account and Mr Deiri's evidence concerning the signing of cheques shows that Investments did not intend or adopt as an assumed state of fact the absence of Moustafa. Third, that the requirement by CBA that Moustafa give a personal guarantee and execute the amended and restated facility in June and September 2013 and the forgeries of those documents suggest this cannot be the case. Fourth, that, in circumstances where a company seeks to claim on a drawing under a bank guarantee, to have a person acting under a Power of Attorney requires that the person provide a copy of the power. 5. The Sayour Parties submit that, after Moustafa's cross-examination, there remains no clear evidence that Moustafa was aware of Jamil's and Mr Deiri's actions in forging his signature or issuing accommodation notices under the facility; at its highest, there being concessions by Moustafa that he was aware that the construction was being funded by a loan and that payments for matters pertaining to land, such as council rates had to be met from the CBA Partnership Account. The Sayour Parties say that this does not establish knowledge by Moustafa of the deception that was being practised upon him. It is noted that Moustafa was inexperienced in construction of this scale and that CBA knew of his inexperience. In addition, emphasis is placed on Moustafa's evidence that he was confident that nothing could occur in respect of cheques because the operation of the account required both his and Mr Deiri's signature; and that he contacted Mr Deiri when he discovered that cheques were being signed by him alone. 6. In their reply submissions, the Sayour Parties maintain that Moustafa was under the impression that the Broadway Partnership had entered into commitments with Deicorp for the construction to cost $63.5 million plus GST (not quite $70 million); and that the facility would not exceed what he had bargained for (see, for example, his affidavit sworn on 31 May 2019 at [131]). The Sayour Parties say that it stands to reason that Moustafa believed that the facility would be limited to $63.5 million plus GST and that no more funds would be or were being disbursed beyond that amount (and they argue that such a conclusion is supported by Jamil's 10 November 2013 email, to which there has been copious reference already). 7. The Sayour Parties contend that it is obvious that the payments that were made were not those that Moustafa approved. They say that it does not follow that, because Moustafa was content with a construction cost of $63.5 million plus GST, he acquiesced in the payments that were actually made. It is noted that those payments were substantially larger than was provided for under either the Stage 1 Construction Contract or the approved tender for Stage 2, and that the payments in question were not authorised. 8. As to the impact of non-disclosure on the position of Mr Deiri and his alter egos, it is said that the fact of Jamil's various explanations and discussions to Moustafa (said by Moustafa to have been not very in-depth) does not discharge Investments' responsibility as a member of the partnership to deal with Plaza; and to inform and to account to Plaza. It is noted that Investments was a fiduciary; that, under the terms of the partnership, Investments' allocated role was to be responsible for construction and finance; and that Investments had negotiated a fixed price contract at the commencement of the partnership. 9. The Sayour Parties therefore maintain that, both out of responsibility for its allocated role as well as out of its duty to adhere to the terms of association, Investments had a duty to inform Moustafa of the departures from the fixed price, i.e., and increases in expense, as well as any other unusual matter, including the payments made to Jamil. It is submitted that Mr Deiri failed in cross examination credibly to support his protestation that he did not know that Moustafa's signature was being forged (I have already dealt with this). It is submitted that the evidence shows that Mr Deiri knew that Moustafa was being misinformed (or left uninformed) by Jamil (because Jamil told Mr Deiri in writing) and that Investments, as a partner, was not entitled to remain silent. 10. The Sayour Parties say that these failures to inform meant that Investments and Mr Deiri were not entitled to draw inferences or make assumptions that Moustafa approved of the various increases, extensions and other matters that were benefiting the Deiri Group, including Deicorp, or (even without reference to the law relating to bribery) to assume that Moustafa knew and approved of the payments to Jamil, at the expense of Plaza, in respect of purchase money, partnership distributions and other payments. 11. It is submitted that these matters disqualify Investments and the Deiri Group from asserting acquiescence or estoppel. It is said that, in the accounting process, if Plaza cannot falsify the unauthorised debits because the partners are bound to CBA by actions that, as between partners, were not authorised then it must be entitled to surcharge Investments for them. 12. As to the submission by the Deiri Parties that Moustafa's failure to ask questions or raise concerns meant that he had left it to Jamil to manage Plaza's affairs, the Sayour Parties criticise the logic of that submission (see earlier their response to the factual finding sought in that regard). The Sayour Parties say that Moustafa's evidence, which (it is said) remained consistent under cross-examination, was that he was inexperienced to the point that he did not know what to ask (see, for example, his affidavit sworn on 31 May 2019 at [140]; T 577.46 – T 578.3). They submit that Moustafa was not in the position to understand when things were going wrong, or to know when to raise the alarm; and that his failure to raise concerns is not because he had left it to Jamil to manage; rather, it is because he did not even know if he should be concerned. 13. As to the impact of non-disclosure on CBA's position and its consequential remedies, the Sayour Parties accept that this may differ from that of the Deiri Parties. It is said that Investments cannot support the debits to the facilities, nor the payments to Deicorp from the cheque account, since, as between the partners, they were unauthorised. It is noted that CBA's position is that it accepts that it did not have a mandate. Insofar as CBA relies on implied actual authority for the payments to be made, or estoppel, the Sayour Parties say that, although CBA did not have the "egregious knowledge" of Mr Deiri, CBA is nevertheless bound by the limitations and disadvantages that apply to a case of implied authority founded in acquiescence or estoppel. 14. In particular, reference is made to: the condition of full knowledge in the consenting party as a foundation for consent by acquiescence (referring to Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26 at [25], [30] per French CJ, [79] per Gummow and Hayne JJ and [136] per Heydon and Crennan JJ (Byrnes v Kendle); Orr v Ford (1989) 167 CLR 316 at 340; [1989] HCA 4 per Deane J); CBA's lack of knowledge of the suggested consent by acquiescence (as to which see, Byrne v Kendle); the element of reliance to support an estoppel; and the requirement for CBA to comply with its own duty of disclosure to Plaza. The Sayour Parties point to the obiter reference of Deane J in Orr v Ford (see at 340), adopted in Byrne v Kendle (see at 79), to acquiescence in the sense of "calculated [i.e. deliberate and informed] inaction or standing by which encouraged another reasonably to believe that his assertion of rights and consequent actions were accepted or not opposed". The Sayour Parties say that CBA cannot rely on acquiescence if compliance with its duty of disclosure might have led the customer to object. 15. Thus, the Sayour Parties submit that the primary want of mandate stands unimpeached by implied actual authority or estoppel and that in consequence CBA did not have a mandate to pay Deicorp. It is said that CBA has, in consequence, a sound remedy against Deicorp for moneys had and received and, against Mr Deiri and his alter egos, a sound remedy for misrepresentation of the kind described National Commercial Banking Corporation v Batty (that, in causing the cheques to Deicorp to be presented to CBA for payment and in sending accommodation notices directing payment to Deicorp, Mr Deiri was impliedly representing to CBA that Deicorp was the owner of the cheques or acting with the authority of the owner) (see also, by way of example, Pascali v Carr [2019] NSWCA 151 at [47] per Macfarlan JA, with whom Bathurst CJ and Bell P agreed) and that Mr Deiri was authorised to give the accommodation notices because they were signed by Moustafa, or at the very least representing that he had reasonable grounds for so believing and did so believe. 16. Indeed, the Sayour Parties say that, so far from demonstrating that Mr Deiri was entitled to think that Moustafa knew and approved of all that was going forward, the evidence shows that Mr Deiri had no reasonable grounds for such a belief (if he had any such belief at all) because: he was bribing Jamil; he knew that Jamil was forging the cheques or, in the earlier period, signing his own name when he was not an authorised signatory; he was himself sending accommodation notices that he well knew Moustafa had not signed; he knew that Moustafa was not being informed by Jamil but was being actively misled on matters to which it was understood he would object; and, having a duty to inform, he did not inform Moustafa of any of these matters. Therefore, the Sayour Parties say that Mr Deiri could not possibly have had reasonable grounds for believing that Moustafa was in approval of the behaviour. The Sayour Parties invoke the maxim that he who seeks equity must do equity. They say that Mr Deiri has not done equity; and that he cannot assert an equitable estoppel against Plaza. 17. As to CBA's acquiescence case, the Sayour Parties point to the description of a bank's duty to customer with respect to presentation of cheques and the implicit duty of a customer to the bank (as described in, for example, Varker v Commercial Banking Co [1972] 2 NSWLR 967 at 973B-C), noting that the customer's duty to a bank is twofold (see, for example, Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80 at 108) and demands the exercise of due care in drawing cheques and to notify the bank immediately of any known forgeries. 18. The Sayour Parties submit that West v Commercial Bank is not factually on all fours with the facts in the present case, in that the element of full knowledge is missing here. It is noted that in Taylors Fashions Ltd v Liverpool Trustees Co [1982] QB 133 (see at 147) (after the decision of Fry J in Willmott v Barber (1880) 15 Ch D 96 and the decision in De Bussche v Alt (1878) 8 Ch D 286), Oliver J stated that "in a case of mere passivity, it is readily intelligible that there must be shown a duty to speak, protest or interfere which cannot normally arise in the absence of knowledge or at least a suspicion of the true position". 19. The Sayour Parties say that Moustafa did not have full knowledge; that he did not realise the cheque account was being used along the way and that he believed that Biomed and Mr Deiri's companies were paying the expenses (see the evidence at T 395.18-42; T 398.10ff cf CBA's cross-examination at T 571.24-36). It is submitted that this belief was justified (referring to the list of transactions in Ex FD3 which shows that Biomed and Mr Deiri's companies contributed funds along the way for expenses in relation to the project). 20. The Sayour Parties further note that Moustafa's evidence on this point was that: he understood the partnership account could only be operated with his and Mr Deiri's signatures together (see T 393.29-31; T 558.21 – T 559.10); he understood that the intended purpose of the CBA Partnership Account was to receive rents collected from the shopping centre and settlement moneys from the sale of the residential units (see, for example, at T 394.14-20); he did not know until late 2014 that cheques were being drawn on the partnership account without his signature (see, for example, at T 470.26 – T 471.24); as to whether he had suspicion that cheques were being drawn on the account without his signature (and, in particular for expenses such as council and water rates), he believed costs associated with the development which were not funded by the facility were met by Biomed on behalf of Plaza and by Mr Deiri's companies on behalf of Investments (see, for example, at T 395.18-41; T 398.10ff cf CBA cross-examination at T 571.27-36). 21. It is said that Moustafa's position was similar to that of the plaintiff in De Bussche v Alt (1878) 8 Ch D 286, namely that the acts had occurred without his prior knowledge and thus his failure to take steps to sue or object post facto are irrelevant. 22. In respect of the First Facility Agreement, it is again noted that the evidence is that the mechanics of its operation were not explained to Moustafa; nor did he know that amounts paid were not due under the construction contract(s) and included various extensions, variations and the like; and it was not suggested that Moustafa was told that the price had increased. 23. In respect of the Second Facility Agreement, the Sayour Parties say the same problems arise but that there is the more fundamental problem that the facility agreement itself was a forgery (and hence they say no facility). The Sayour Parties emphasise that Moustafa was not informed that his son's information was misleading, or that his partner (Mr Deiri) was paying his son, or that his son was prepared to sign whatever he was asked without question (recalling, for example, the 16 May 2013 email). It is submitted that it is not realistic to think that Moustafa consented to the conduct; rather, it is said that Plaza was defrauded and that Moustafa's conduct was not consent. 24. Insofar as CBA submits that Moustafa knew that the construction costs for the project were being mistakenly funded by CBA without his signature, the Sayour Parties say that such a mistake is the opposite of the convention for which CBA contends. Further, it is said that it is clear that Mr Deiri did not adopt the suggested convention. It is said that Mr Deiri's evidence that "template" documents were prepared by his office apparently bearing two signatures, and then sent to CBA (see T 901.5ff) does not support the suggested convention that Moustafa's signature was not required. It is said that Mr Deiri's evidence about partnership cheques, pro formas and templates with respect to accommodation notices shows that he was not operating under a common assumption, but that he misled the CBA to the effect that Moustafa's signature was being applied. 25. The Sayour Parties say that, whether Mr Deiri believed the instruments were authorised by Moustafa or if he understood they were unauthorised, either way he expected that CBA required two signatures; and he intended either to conform or to pretend to conform with that requirement; and that the Cheque Authorisation Alteration Instruction was only necessary because two signatures were required. It is said that demonstration that people are acting at cross purposes is not proof of a convention. 26. Insofar as CBA suggests that the two cheques in favour of Biomed in February 2012 and May 2014 respectively are examples that show Moustafa was willing to accept the advantage of the lack of adherence to the account authorisation, the Sayour Parties say that, to the contrary, Moustafa's evidence was that Jamil undertook most of the management, including banking, for Biomed (see, for example, at T 522.35ff) and it is noted that Moustafa was not even asked if he knew about these cheques at the time. 27. Again, as to the 2013 CBA cheque query, the Sayour Parties say that, had CBA in fact relied on the assumption that Moustafa's signature was not required, then no inquiry would have been made (indeed, for it would not have been necessary). The Sayour Parties say that the fact that the CBA took steps to verify the authority to draw funds on the cheque takes it out of the normal position of a bank which, for reasons of business efficacy, may not carefully consider or weigh the authorisation of each and every cheque presented. The Sayour Parties say that CBA's conduct in making these inquiries was evidence that: CBA regarded the irregularity as important; and CBA did not accept that Moustafa's signature was not required; rather his signature was required or some additional verification process had to be undertaken before funds would be released. It is said that while that verification process was "deeply flawed", the fact that the cheque was queried (even when it contained two signatures) is clear evidence that there was no convention adopted by Plaza or Moustafa and the CBA and there was no assumption which Moustafa knew of that the CBA had adopted. The Sayour Parties further say that CBA's submission that Mr Deiri's confirmation of the cheque in March 2013 was sufficient to confirm the conventional estoppel is at odds with the recognised elements of that defence. 28. As to the Cheque Authorisation Alteration Instruction, it is noted that, before receiving that letter, of the 321 cheques drawn on the account, there were just three which bore only one signature. It is said that the submission that this letter merely confirmed the existing procedure is not sustained by the objective documentary evidence which was not disputed at trial. Determination re estoppel (and acquiescence) 1. As to the defence based on acquiescence, in Byrnes v Kendle, French CJ noted (at [27]) that acquiescence as a defence to a claim for equitable relief is used in at least two different senses (citing Meagher, Gummow and Lehane at [36-090], [36-095]), relevantly being: first, where a person who is aware that an act is about to be done to his, her or its prejudice takes no step to object to it; and, second, where a person being aware of a violation of his, her or its rights which has occurred fails to take timely proceedings to obtain equitable relief (see also what was said by Heydon and Crennan JJ in Byrnes v Kendle at [133]-[140]). 2. In Orr v Ford, Deane J (at 344) referred to acquiescence in the sense of a deliberate and informed inaction or standing by which encouraged another reasonably to believe that his, her or its assertion of rights and consequent actions were accepted or not opposed. 3. As to acquiescence, the difficulty I see is that I am not persuaded that Moustafa had actual knowledge that Jamil was signing cheques (whether in his own name or in Moustafa's name) (although he was obviously aware that money was coming from somewhere insofar as he did not suggest the construction works was not at cost). Therefore, but for (and only to the extent of) the finding of authority, I would have concluded that estoppel by acquiescence was not made good up until it became apparent to Moustafa that there were cheques that had been drawn on the CBA Partnership Account and not signed by him (which was, relevantly, at the time of the two cheques in 2014). At that stage, Moustafa was clearly on notice of the fact that cheques were being drawn without his signature and (apart from his evidence of a telephone conversation with Mr Deiri) he did not take any action to alert CBA to a problem or to complain about the cheques having been issued without his signature. From that time, in 2014, I consider that an estoppel by acquiescence defence is made good. 4. As to the accommodation notices, the Sayour Parties submit that there is no clear evidence as to Moustafa's knowledge that accommodation notices were being issued (with the signature block or otherwise). I see some force to the submissions here made for the Sayour Parties in relation to the accommodation notices. However, Moustafa had signed at the outset a pro forma accommodation notice and had clearly left it to Jamil to manage the day-to-day running of the project. I consider this is sufficient to establish acquiescence in the issuance of the accommodation notices. 5. As to the elements of conventional estoppel, in Moratic v Gordon it was said that it is necessary for the party asserting the estoppel to establish: first, that it has adopted an assumption as to the terms of its legal relationship with the party said to be estopped; second, that the party said to be estopped has adopted the same assumption; third, that both parties have conducted their relationship on the basis of that mutual assumption; fourth, that each party knew or intended that the other act on that basis; and, fifth, that departure from the assumption will occasion detriment to the party claiming the estoppel (see also, for example, Miller Heiman v Sales Principles at [39]-[49]), 6. I am not persuaded that CBA adopted an assumption as to the terms of its legal relationship with Plaza, Investments or the Broadway Partnership to the effect that no signature from Moustafa was required or that a signature from Mr Deiri would suffice. I accept that CBA required at least cheques to be prepared and signed in a manner which included two signatures (though there is I think a distinction between the cheques and to accommodation notices); that CBA required contracts to be signed, draw-down notices and accommodation notices to be given under the facility agreements; and that CBA required personal guarantees to be supplied (and updated) with attested and witnessed signatures (as to which, see the above chronology). 7. In particular, I consider that the 2013 CBA cheque query is significant in showing that there was no assumption, and no reliance, as at that time that only one signature would suffice to satisfy the bank's mandate or that Moustafa's signature was not necessary; and, indeed, the very fact that the Cheque Authorisation Alteration Instruction was accepted indicates that CBA, and indeed Investments, considered that such an instruction was necessary in order to change the assumed basis of the bank's mandate. 8. Aside from that, I see that the claimed convention is entirely inconsistent with the express agreement of the parties comprised in the account operating authorities and the evidence showing the continuing assumptions that those terms were to be operative. While, of course, a conventional estoppel may operate such that a contract may be enforced other than in accordance with the express terms, I see the preceding evidence as militating strongly against such a convention, particularly having in mind those other matters that I have here mentioned. Relatedly, I also have in mind that the undertaking by CBA not to honour cheques unless signed by both Mr Deiri and Moustafa was a condition which enured for the benefit of each of Plaza and Investments. 9. In addition, I here also note my earlier factual findings in relation to Moustafa's knowledge, or lack thereof, as to the cheque drawings, accommodation notices and the Second Facility Agreement. 10. As to the evidence of Mr Deiri, I consider that Mr Deiri's evidence that "template" documents were prepared by his office apparently bearing two signatures and then sent to CBA (see at T 901.5ff) is inconsistent with the conventions here claimed. 11. For these reasons, I accept the Sayour Parties' submission that there is an absence of requisite proof of custom relevant to making good the claims, or defences, based on conventional estoppel in relation to the cheques (although that would not extend to the accommodation notices – see my reasoning elsewhere). "No loss" or "Liggett defence(s)" 1. CBA and the Deiri Parties also contend that the payments made by CBA were made in payment of genuine partnership expenses and, in this regard, rely on the so-called "Liggett defence" (see Liggett (B) Liverpool Ltd v Barclays Bank Ltd [1928] 1 KB 48 (Liggett v Barclays Bank)). That is, that if payment of a cheque or other payment discharges a debt owed by the customer to the payee then the customer may not recover the amount from the paying bank while also retaining the benefit of the payment. 2. In this regard, reference is made to O3 Capital Pty Ltd v WY Properties Pty Ltd [2016] WASCA 82 (O3 Capital v WY Properties), where the Court of Appeal of Western Australia referred to Liggett v Barclays Bank and said (at [95]) that it was unnecessary there to decide the ambit of the circumstances from which the court may infer that the debtor has used or applied the third party's money to pay its debt and that, "[t]he equity would at least prima facie arise where the debtor authorises the payment in advance, or authorises the payment retrospectively by effectually adopting the payment in application to the satisfaction of the debt". Reference is also made to the observation by Hunter J in Majesty Restaurant v CBA (see at 608-9) to the effect that Liggett v Barclays Bank had been treated as good law in Australian courts over a considerable period. 3. In the present case, the position of CBA and the Deiri Parties is that Plaza has retained the benefit of the payments made to it and has adopted the payments by CBA of the partnership expenses and the construction costs, and continues to seek to take advantage of that benefit, by: having received, and now claiming an entitlement to receive, proceeds from the completed Broadway Development in excess of $9.5 million, including surplus proceeds held by the Receiver of approximately $3 million from the sale of the completed shopping centre; having received a judgment against Jamil's estate in the Estate Proceedings in excess of $5 million (in which, it is noted, Plaza claimed ownership of bank accounts into which the bulk of the partnership distributions were made); and seeking to have Investments bear the cost of all payments made under the construction contracts by which the Broadway Development was built and all partnership distributions made at Jamil's direction. 4. It is submitted, broadly, that Plaza cannot both retain the benefit of the Broadway Development and claim an entitlement to moneys paid by CBA from the CBA Partnership Account used to fund it. It is said that, in any event, if any loan advances were required to be paid back to the CBA Partnership Account, those moneys would need to be repaid to CBA. CBA's submissions 1. CBA submits that all of the funds paid out by CBA, whether on presentation of cheques or drawdowns of the Stage 1 Loan and Stage 2 Loan, were utilised for the purposes of (and in the course) of the Broadway Development. It is said that these payments went in discharge of debts owed to creditors, direct payments to the builder, payments and repayments to CBA and the distribution of partnership profits; and that the Broadway Partnership and Plaza received the benefit of those payments. Thus, it is submitted that, even if CBA's payments were made without Plaza's authority, the Broadway Partnership (and Plaza) suffered no loss and hence Plaza's claims against CBA must fail. 2. Put differently, CBA maintains that where, as here, the liabilities of the Broadway Partnership have been met using the funds of the CBA, the partners may not retain the benefit of those payments, even if (to apply the language of Liggett v Barclays Bank) the "borrowings [were] made without authority" (see at 61) (and see also Associated Midland Corporation Ltd v Bank of New South Wales (1983) 1 NSWLR 533 (Associated Midland v Bank of NSW) (at 537F per Hutley JA, 550-1 per Mahoney JA); and Majesty Restaurant Pty v CBA at 602 ff). 3. CBA says that, faced with a claim for moneys had and received, a defendant bank has an equity to have the amounts paid in aid of the claimant's creditors set off against the claim (referring to Liggett v Barclays Bank at 58ff; Associated Midland v Bank of NSW at 537, 547, 550-551; Majesty Restaurant v CBA at 602, 606-609). It is also noted that the right to a reduction of the claim in equity is concerned with the possibility of the unjust enrichment of the claimant (see, for example, Australia and New Zealand Banking Group Ltd v Hunter BNZ Finance Ltd [1991] 2 VR 407 (ANZ v Hunter BNZ Finance) at 410). 4. As to the circumstances here, specifically, CBA says that all of the funds paid out by CBA were applied in the Broadway Development (of which Plaza reaped the benefit) in meeting the obligations of the Broadway Partnership, either to creditors or by way of returns to the partners themselves. CBA points in this regard to the evidence given by Mr Deiri as to the application of the proceeds of cheques and drawdowns; that drawdowns on the loan accounts were applied in payment of Deicorp Constructions for its construction expenses; and that no cheques were paid otherwise than related to the Broadway Development and the Broadway Partnership. It is said that Mr Deiri's affidavit and oral evidence in this regard was not the subject of challenge in cross-examination by Plaza's Counsel. 5. CBA also notes that, in its defence to the First Broadway Cross-claim, CBA pleaded the absence of loss by Plaza and that, in its reply, Plaza pleaded merely a broad denial. CBA says that CBA's schedule listed all cheques drawn on the CBA Partnership Account and the documents which supported the cheque payments. It is noted that Plaza produced documents, identifying those cheque payments to be challenged on a basis other than want of authority (i.e. because the reason for the payment had not been established, or because the cheque was paid in respect of an obligation which was not that of the Broadway Partnership). 6. CBA therefore says that Plaza's challenge to the cheque transactions has been met by CBA in three ways: first, by matching the cheques to Investments' invoices and related documents contained in Ex J; second, by the affidavits of Mr Deiri; and, third, by Mr Deiri's oral evidence. Deiri Parties' submissions 1. Similarly, the Deiri Parties maintain that the payments and advances made by CBA were made in payment of genuine Broadway Partnership expenses. The Deiri Parties say that, if payment of a cheque or other payment discharges a debt owed by the customer to the payee, the customer may not recover the amount from the paying bank while also retaining the benefit of the payment (citing Majesty Restaurant v CBA and O3 Capital v WY Properties at [94]-[96]). 2. The Deiri Parties (in submissions that largely parallel those of CBA) say that, in the present case, Plaza has retained the benefit of the payment, and continues to seek to take advantage of that benefit, by: having received, and now claiming an entitlement to receive, proceeds from the completed Broadway Development in excess of $9.5 million, including surplus proceeds held by the Receiver of approximately $3 million from the sale of the completed shopping centre; having received a judgment against Jamil's estate in the Estate Proceedings in excess of $5 million (as noted, in which Plaza claimed ownership of bank accounts into which the bulk of the Broadway Partnership distributions were made); and seeking to have Investments bear the cost of all payments made under the construction contracts by which the Broadway Development was built and all Broadway Partnership distributions made at Jamil's direction. 3. The Deiri Parties say, like CBA, that Plaza cannot both retain the benefit of the Broadway Development and claim an entitlement to moneys paid to fund it; and, in any event, that if any loan advances were required to be paid back to the CBA Partnership Account, those moneys would need to be repaid to CBA. Sayour Parties' submissions 1. As to the reliance placed on the so-called "Liggett defence" (which Plaza notes was further considered in, inter alia, In re Cleadon Trust Ltd [1939] 1 Ch 286 (In re Cleadon Trust), W J Simms Son & Cooke (Southern) Ltd [1980] 1 QB 677, Crantrave Ltd v Lloyd's Bank Plc [2000] QB 917 and Swotbooks.com Ltd v Royal Bank of Scotland Plc [2011] EWHC 2025), the Sayour Parties say the following. 2. First, that the mere fact of payment by the bank to the benefit of the customer does not establish the defence (referring to what was said by Isaacs J, as his Honour then was, in City Bank of Sydney v McLaughlin (1909) 9 CLR 615 (City Bank of Sydney v McLaughlin) at 632-633; [1909] HCA 78). 3. Second, that it is necessary for the bank to show that the payment discharged or reduced a legal liability of the customer. 4. Third, that a voluntary payment by a third party (here, CBA) to a creditor (here, a creditor of the Broadway Partnership) does not discharge the liability of the debtor (here, the Broadway Partnership) unless the debtor authorised or subsequently ratified the payment (citing Falcke v Scottish Imperial Insurance Co (1886) 34 Ch D 234 (Falcke v Scottish Imperial Insurance) at 238 and referring also to Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635; [2008] HCA 27 (Lumbers v W Cook Builders) at [80], [663]-[664]). Crucially, the Sayour Parties say that the onus lies on CBA to establish the defence (and, indeed, maintain that CBA has not here done so). 5. The Sayour Parties submit that a payment by a bank without mandate is voluntary in the relevant sense (and that, for that reason, a bank paying without a valid mandate has a cause of action against the payee to recover money had and received to the use of the bank, which the Sayour Parties point out is inconsistent with the existence of a right to debit its customer's account). The Sayour Parties say that it follows that there is no principle that "some general or broad-brush concept of benefit" will suffice; rather, that what is required is a legal benefit in the sense of the discharge or partial discharge of a debt. 6. The Sayour Parties say that certain of the observations of Hunter J in Majesty Restaurant v CBA were obiter, pointing to the nature of the claim there being dealt with (a claim for damages for negligence or for breach of contract, not an action for moneys had and received); and they point to his Honour's emphasis on the question of authority of the person who caused the unauthorised cheques to be prepared and given to trade creditors (and on the operation of the then applicable statutory presumptions in favour of trade debtors dealing with the subject company to rely on receipt of the cheques as payment). 7. The Sayour Parties maintain that on the partnership accounting in the present case, in asserting that the Broadway Partnership was liable for any debt, CBA is depending upon the position as between the partners and the putative creditor; and they say that CBA must point to some act of adoption or ratification according to ordinary concepts. The Sayour Parties accept that this is an "easier task" in respect of ordinary trade creditors (and they say that, adopting a pragmatic approach during the course of the hearing, Plaza has withdrawn objection to a number of payments in that category), but they maintain that this cannot easily be established in respect of partnership distributions (which do not involve debts at all) nor for payments to strangers. 8. As to an election, the Sayour Parties say that election (whether by contemporaneous adoption or subsequent ratification) depends on full knowledge of all material circumstances. In this regard, they reiterate that Moustafa was being deceived in respect of the cost of construction. They say that it was the practice of Jamil to sign whatever Mr Deiri asked him to without question that Jamil had been bribed even before the formation of the Broadway Partnership and during its existence (as to which see my findings to the contrary above); that Mr Deiri acknowledged to his solicitors in November 2011 that his relationship with Moustafa was based on trust and confidence and that Jamil had, to the knowledge of Mr Deiri, a project of "recycling" the funds of the Sayour Family Trust from the Broadway Development into Combined Projects Arncliffe, which Investments failed to disclose to Moustafa. 9. I interpose to observe that those propositions involve a number of contentious elements (not least, the allegation of bribery, which I have considered separately above). Nevertheless, I do see that, for it to be said that Plaza has ratified or adopted any payments made by CBA without a mandate as discharging a Broadway Partnership debt, would require CBA to establish knowledge on the part of Plaza (and, for present purposes, that would require knowledge on the part of Moustafa, unless Jamil was authorised to bind Plaza in that regard). 10. As to payments made under the respective building contracts, the Sayour Parties say that these involve a number of issues, including: first, the impact of the (alleged) bribes; second, the question whether payment was due at the time of the unauthorised payment (including as to whether the Stage 2 Construction Contract was itself binding or otherwise operated to control quantum meruit liability); and, third, whether the builder (by reason of the involvement of Mr Deiri) was fixed with knowledge of the terms of the Broadway Partnership and consequent limits of Mr Deiri's authority. 11. The Sayour Parties say that (even leaving aside the allegations of bribery) the carrying on "in the usual way" of the business of the Broadway Partnership would not extend to alteration of the terms of the partners' agreement or understanding as to what were to be the terms of the construction contracts, nor to the terms of their association as partners (pointing to the increase in price under the Stage 2 Construction Contract; variations to either of the construction contracts; and departures from the agreed terms in respect of extensions and/or increases in cost), which matters it is said required the attention and agreement of the partners. To some extent I agree. However, I see a distinction between increases resulting from day-to-day approval of, say. Escalation costs or valuations, and an increase in the stipulated fixed sum for the contract, which is relevant to the claims involving the builder (that I consider in due course). 12. Furthermore, complaint is made by the Sayour Parties that, in its defence to the First Broadway Cross-Claim, CBA has alleged a generalised benefit and that it has not identified specific debts that existed and were discharged by the payments. The Sayour Parties submit that it is not sufficient that a payment simply related to the Broadway Development for the following reasons: first, because it assumes that a payment without liability is a relevant benefit for the purpose of the "Liggett defence"; and, second, because it wrongly assumes that an unrequested payment to a creditor discharges the debtor's liability. 13. Similarly, the Sayour Parties say that it is not sufficient evidence of the existence of a liability (at least in a partnership accounting) to establish, first, an invoice and, second, payment of that invoice (after which an onus shifts to the falsifying party to disprove the existence of the liability), because such an approach overlooks that to establish payment it is necessary to show that it was payment by the partnership (again, emphasising that a voluntary payment by a third party does not of itself discharge the debtor's liability). 14. Pausing here, insofar as the Sayour Parties say that CBA has applied a "broad-brush approach" to CBA's allegation that Plaza "suffered no loss", CBA points out that Plaza was directed to identify each transaction which it challenged on grounds other than the absence of authority (which resulted in the production by Plaza of documents marked MFI 5 and MFI 6). CBA says that it then addressed every one of these impugned transactions (I note, numbering in the hundreds) in order to demonstrate that they all concerned Broadway Partnership-related expenses (i.e., through identifying the invoices and other documents that demonstrated the purpose of the transaction, through the affidavit evidence of Mr Deiri and by reference to Mr Deiri's oral evidence). It is noted that, in contrast, Plaza did not contest any of the specific evidence led to establish the purpose of each cheque transaction; and elected not to descend into any of these details of the Broadway Partnership transactions. CBA says that Plaza cannot therefore be heard to suggest that this detailed evidence should not now be accepted. 15. As to certain of the categories of payments referred to by CBA, the Sayour Parties say as follows. 16. First, as to the Matthews Street Property, the Sayour Parties say that use of that the property for storage and as a facility for workers engaged in the construction project was not established in the proceedings and that, in any event, the ownership of the Matthews Street Property is a matter of contention in these proceedings. The Sayour Parties say that the use of that property by Deicorp in the course of construction was almost certainly governed by the construction contracts, both of which included significant allowance for "preliminaries" (for example, $7.5 million in the case of the Stage 1 Construction Contract) and that this would likely include storage and site meeting accommodation. It is submitted that this would make these expenses the responsibility of the builder. The Sayour Parties say that there is no evidence that the Broadway Partnership ought to have paid these expenses while construction was underway. 17. Second, as to the payments by way of cheque to various of the Deiri Group cross-defendants by way of Broadway Partnership distributions, the Sayour Parties say that these involve a multi-million dollar loss if, as Plaza contends, distributions were not properly paid because they were not balanced by distributions properly paid to Plaza (and, in any event, the Sayour Parties say that because of the bribery of Jamil the Deiri Group cross-defendants are accountable for the profits of the venture). Similarly, it is said that the payment of Plaza's share of distributions that were misappropriated and not recouped is a multi-million dollar loss. 18. The Sayour Parties also complain as to CBA's criticism of Plaza's election not to claim against CBA in respect of four of the cheques identified in Schedule E to the First Broadway Cross-Claim (which I have summarised earlier). They say that those cheques (in particular those cheques numbered from #508 to #514 and #526 to #531) are withdrawals from the CBA Partnership Account between 14 November 2014 and 5 January 2015. It is noted that, in respect of cheque #517 for an amount of $3.35 million and cheque #522 for an amount of $1.65 million, Plaza has recovered the funds misappropriated by Jamil in respect of the cheques (in total $5 million) in the Estate Proceedings (and accordingly, it does not seek to recover a second time). 19. As for the corresponding payments to Mr Deiri's companies (cheques #519 and #523), the Sayour Parties say that no claim was made in circumstances where Moustafa knew that he was in receipt of Broadway Partnership profits and that the partners were to receive distributions of profit in equal shares, so that a balancing distribution to Investments did not represent a loss. It is said that the Broadway First Cross-claim was formulated "before the full implications of the bribery case were appreciated" and that it may be that Plaza was "too generous" in omitting to claim against CBA in respect of these payments, but that they are claimed in the Broadway Fifth Cross-claim against the Deiri Group. 20. As to CBA's submission concerning Plaza's loss arising from the price inflation contained in the purported Stage 2 Construction Contract (as to which see the above chronology), Plaza repeats its submissions concerning its rights and obligations over the residential stage of construction. It is said that the payments did not discharge any liability of the partners and that attention must be focussed on each payment at the time it was made. It is said that the Broadway Sixth Cross-claim does not justify CBA's payment of a different sum for a different claim (and, in any event, it notes that that the Broadway Sixth Cross-claim is here being defended). 21. Insofar as CBA alleges that Moustafa ratified the Second Construction Contract, Plaza repeats its submission that ratification depends on full knowledge of all material circumstances. The Sayour Parties say that it does not arise in this case because there is no evidence that Moustafa ever knew that the price of the Second Construction Contract had inflated from $23.5 million $24.85 million (pointing to emails to the contrary from Jamil in May and November 2013 that demonstrate that Moustafa was unaware of the increase in price – as referred to above). It is submitted that the fact that Moustafa knew that Stage 2 was being built and that it was being funded by a loan from CBA is insufficient evidence on which to base a claim of ratification of this contract (because it does not show that Moustafa knew of the alteration of its terms from that which he expected). Determination re "no loss" or "Liggett defence(s)" 1. Generally, in the absence of an express or implied request by the notional defendant (here, the Sayour Parties) to the notional plaintiff (here, CBA and, perhaps also in the interests of clarity, the Deiri Parties) to pay, the notional plaintiff will be unable to recover if the notional plaintiff was under no present or imminent legal obligation to submit to the creditor's demand (see, for example, McLean v Discount & Finance Ltd (1939) 64 CLR 312 at 341; [1939] HCA 38 per Starke J (McLean v Discount)). Indeed, where the notional plaintiff has paid (or, indeed, also perhaps exposed itself to the liability) officiously (or, otherwise than under circumstances of practical compulsion – as to which, see, for example, North v Walthamstow Urban Council (1898) 67 LJ QB 972 at 975 per Channell J) then there can generally be no recovery. Of course, too, generally there can be no recovery until actual payment has been made by the notional plaintiff (see generally McLean v Discount at 328 per Latham CJ, 336-337 per Rich J, 341 per Starke J), it being unnecessary here to consider the quia timet jurisdiction. 2. Furthermore, as recognised by the Court of Appeal (Meagher, Handley and Cripps JJA) in Robinson v Campbell (No 2) (1992) 30 NSWLR 503 (see at 508), the law will not permit the restitutionary claim where it would be inequitable to do so. So, for example, the notional plaintiff may be denied restitution based on ordinary, general principles vis-à-vis disentitling conduct (see generally, for example, the discussion by Hodgson J, as his Honour then was, in AGC (Advances) Ltd v West (1984) 5 NSWLR 590). Relevantly, where the notional plaintiff has made a payment in discharge of a liability incurred in consequence of his, her or its own breach of duty, or in a transaction known or suspected to be unlawful, then no claim in restitution will succeed (see, for example, Re Gasbourne Pty Ltd [1984] VR 801 at 850 per Nicholson J). 3. For the preceding reasons and otherwise, I can readily accept the submission for the Sayour Parties (relying on City Bank of Sydney v McLaughlin) that the mere fact of payment by the bank to the benefit of the customer does not establish the defence. 4. However, it is to be recalled that in Liggett v Barclays Bank (and in other cases) it was recognised that subrogation may be available where a bank, in mistaken belief as to a valid mandate, discharges its customer's debts to a third party. As Wright J there said (at 60): … The equitable principle has been applied beyond question over and over again to cases where an agent not having the authority of his principal has borrowed money as on behalf of his principal. Under those circumstances at common law the principal cannot be sued and cannot be made to repay the amount so borrowed, but in equity it has been held that to the extent that the amount so borrowed has been applied in payment of the debts of the principal, the quasi-lender is entitled to recover to that extent from the quasi-borrower… 1. This is what substantially meets the Sayour Parties' submission that it is necessary for the bank to show that the payment discharged or reduced a legal liability of the customer. 2. As is well known, for a long period, the action for money had and received (and, indeed, more generally the postulated taxonomic category labelled "unjust enrichment") was predicated on a theory of quasi-contract (see, particularly, Viscount Haldane LC (at 630), with whom Lord Atkinson agreed, in Sinclair v Brougham [1914] AC 398, and see also Lord Sumner's speech). 3. So, in Re Cleadon Trust, a majority of the English Court of Appeal could find no basis for reimbursement to a director who had personally paid debts owed by his company to a third party in the expectation that his company so benefitted would repay him in circumstances where the debtor company had not duly requested nor ratified the payments before its liquidation. There was in Liggett v Barclays Bank no mention by Wright J of the principles of unjust enrichment as underlying his Honour's decision. However, notably, those principles were referred to in Re Cleadon Trust. More particularly, Greene MR, as his Lordship then was, thought (albeit in a dissenting judgment) that the cases were moving in the direction of a general doctrine of unjust enrichment: "... equity will assist a person who has no right at law but is able to show that money belonging to himself has gone to swell the assets of the person to or for whose benefit he has paid it" (at 301). 4. The observations of the Master of the Rolls aside, Re Cleadon Trust is nevertheless a good illustration of the law's general reluctance to allow reimbursement to a third party who pays another's debt(s) other than in request or under legal compulsion. Mason, Carter and Tolhurst have suggested that Re Cleadon Trust and other cases were strongly influenced by the failure to find evidence of the notional defendant's consent (that is, the consent of the debtor who obtained the relevant benefit). They have argued that, "it is hard to see the relevance of this now that restitutionary theory is once again freed of a false contractual gloss" (see K Mason, J W Carter and G J Tolhurst, Restitution Law in Australia (2nd ed, 2008, LexisNexis Butterworths) at [845] (Restitution Law in Australia)). Indeed, I note that liability of this kind may be categorised as a species of unjust enrichment; however it is unnecessary here to delve further into those taxonomical and theoretical controversies. As Greene MR observed in Re Cleadon Trust, "it is, I think, fair to observe that the precise ground upon which the equity is based has not been fully stated. It may be that it is a mere anomaly" (at 306). 5. Nevertheless, it is convenient here to consider in some more detail the decision of Hunter J in Majesty Restaurant v CBA – a case on which each of the parties here place some emphasis – before disposing of this aspect of the First Broadway Cross-claim. 6. In Majesty Restaurant v CBA, Majesty's cheques were supposed to be signed by two directors. However, in the events that had happened, a many number of cheques had in fact been signed by just one director, Liu. Later, Liu was appointed the only director and was authorised by his company to issue company cheques to pay trade creditors. 7. Majesty argued that, notwithstanding Liu's authority, CBA had no mandate to honour cheques only signed by Liu and claimed damages for the value of the cheques (on the basis that the cheques were not paid out in accordance with the mandate). The principal issue was as to the measure of damages for the CBA's breach of contract. Relevantly then, as Hunter J sought to emphasise, "any right of action Majesty may have against the bank is limited to any loss arising from the bank's failure to insist upon adherence to the terms of Majesty's mandate in the operation of the account" (at 600). His Honour went on (at 602): The customer suffers no loss solely by reason of the honouring of cheques which fail to conform with the customer's mandate to the bank relating to the operation of that account. The customer's entitlement must be measured in loss or damage beyond the mere debiting of its account by the amount of the honoured cheques. 1. In the result, Hunter J found that no damages had been occasioned from the CBA's breach of contract with Majesty, since the cheques (on the basis that Liu had the apparent authority to sign the cheques vis-à-vis the payees) went to discharge legitimate trade debts. 2. As to the CBA's argument (Majesty Restaurant v CBA) relying on Liggett v Barclays Bank that (even if the moneys were paid contrary to the mandate, because the cheques were paid to creditors to whom Majesty owed money) CBA was entitled to an equitable set-off, Hunter J said in obiter that Majesty's case against the CBA would fail on the basis of Liggett v Barclays Bank that, where the making of an unauthorised payment discharges a debt, the drawee bank may have the advantage of the discharge of that debt as against its customer. 3. However, his Honour did opine (at 611) that: I have difficulty in understanding the basis of the equitable principle in the terms expressed in B Liggett. In all likelihood, in modem terminology, the conduct of the company in B Liggett in seeking recoupment of the value of the cheques honoured other than in accordance with its mandate to the bank would be expressed in terms of unconscionability or unconscientious conduct, the company having taken advantage of the honouring of those cheques in satisfaction of its trade creditors: rather than in terms of subrogation or as giving rise to an equitable debt or set-off on the part of the bank as appears to have been favoured in older authority. 1. I have concluded, though only in relation to certain sums, that the so-called "Liggett defence" here succeeds, such that CBA can recover those sums. The defence succeeds in respect of these sums whether one conceives of the doctrine as predicated on mistake, agency, authority, unjust enrichment or some other basis (consider generally, for example, Robin Edwards, "The Liggett Defence and Apparent Authority" (2001) 31 Hong Kong Law Journal 224). Indeed, for some of the sums, one theoretical or normative rationale may be more compelling than another vis-à-vis other sums. Again, it is unnecessary here to explore the precise basis, and which discloses the ultimate theoretical satisfaction, for the result. 2. More specifically, I have concluded that the CBA's claim has been made good, or conversely has failed as the case may be, as follows. 3. First, I consider that the defence has been made good in relation to payments that are accepted as having discharged, or should be taken to have discharged, incontrovertible expenses and liabilities of the Broadway Partnership. This includes the claims in relation to land tax, real estate fees and other such payments. 4. Second, I consider that the defence has not been made good in relation to payments relating to the acquisition and maintenance of the Matthew Street Property (as to which, see the above chronology). 5. Third, I consider that the defence has not been made good in relation to partnership distributions (which do not discharge a liability as such). 6. Fourth, in relation to claims predicated on supposed ratification (including, particularly, the increase in construction costs), I consider that the defence succeeds. This is because, in short, such claims are predicated on the anterior question as to Jamil's authority to manage the day-to-day conduct of the project, which would in my opinion extend to authorising increases in construction costs once the project was underway (and, once authorised, payments for those sums would thereby be in discharge of an incontrovertible obligation or liability). 7. With the preceding general dispositions in mind, it is convenient here to outline those sums the subject of specific proof from cheques and invoices, the affidavit evidence of Mr Deiri and Mr Deiri's oral evidence, along with other specific payment categories. 8. Turning then to the particular categories of payments I note as follows. Cheques and invoices 1. The transactions proved by cheque (and cheque butt) and corresponding invoice are reproduced in the Schedule B to CBA's closing submissions. To the extent that Plaza's challenge is founded upon an alleged absence of an underlying contract or retainer justifying the payment, it is said that the production of cheques and corresponding invoices provides "strong evidence" of the contract (CBA referring to Associated Midland v Bank of NSW at 643-644; Galaxidis v CBFC Leasing [2005] NSWCA 347 at [9], [10] and [14]; General Reinsurance Australia Ltd v HIH Casualty & General Insurance Ltd [2009] NSWCA 22 at [64], [81]-[82]; Peter's of Kensington Pty Ltd v Seersucker Pty Ltd [2008] NSWSC 897 at [83]; Allpro Building Services Pty Ltd v C&V Engineering Services Pty Ltd [2009] NSWSC 127 at [18]; Aged Care Services Ltd v Macedonian Aged Care & Accommodation Ltd [2012] NSWSC 531 at [29]). 2. CBA says that the invoices and documents identified in Schedule B (derived from MFI 3) authenticate these payments. It is said that, in the face of this evidence, there is no remaining basis upon which Plaza can establish that the payments were made without an underlying contract, or for that matter were not used for the purposes of the Partnership's construction of the Broadway Development. I agree with this submission. Payments proved by Mr Deiri affidavits 1. Schedule C to CBA's closing submissions identifies the evidence given by Mr Deiri on affidavit. It is noted that Mr Deiri's affidavit of 3 December 2019 was sworn for this purpose; and that it relates, first, to circumstances where the nature of the payment is such that there would not be expected to be an invoice corresponding to the payment; for example, GST payments made by the Broadway Partnership to the Australian Taxation Office on account of its BAS returns, payments to Deicorp Constructions for GST reflected in its progress claims, payments to tenants or purchasers of apartments by way of rebates, repayment of loans made to the Broadway Partnership and distributions of Broadway Partnership profits. 2. Second, CBA says that Schedule C also includes instances where it was necessary to have recourse to more than one document and to have the benefit of some additional explanation of the correlation between the cheque and the obligation; for example reimbursement of payments made by employees or agents (such as to Mr Rosa, Ms Luo, Mr Deiri and Jamil) payments made to satisfy multiple invoices, part-payment of invoices, and payments made (at the direction of an invoicing third party) to entities other than that third party. Mr Deiri's oral evidence 1. To the extent that the cheque transactions were not fully addressed by the tendered cheques and invoices (identified in Schedule B) or in Mr Deiri's affidavits (Schedule C), CBA says that they were the subject of evidence given by Mr Deiri in cross-examination. The relevant transcript references are contained in Schedule D to CBA's closing submissions. It is said that Plaza did not contest any of Mr Deiri's explanations for these transactions, either in cross-examination or through its own evidence in reply; and that the evidence, whether general or specific, therefore stands. 2. CBA submits that as a result there should be a finding that each of the cheques drawn on the CBA Partnership Account was applied towards meeting an obligation of the Broadway Partnership in relation to Broadway development, and that the Broadway Partnership suffered no loss as a consequence of these cheques having been paid by CBA. Specific payment categories 1. CBA makes the following submissions as to a number of specific payment categories. 2. First, as to the Matthews Street Property, it is noted that Plaza initially alleged that payments relating to the Matthews Street Property did not relate to the Broadway Development. However, CBA points to Moustafa's evidence in cross-examination confirming that this adjacent property was used for storage and as a facility for the workers engaged in the construction of the Broadway Development. On that basis it is submitted that these payments related to expenses in relation to the Broadway Development. (As noted above, I do not accept that simply because the site was used for workers' car parking this was a partnership expense.) 3. Second, as to the repayment of advances made to or for the Broadway Partnership, it is said that cheques paid, for example, to Biomed or Deiri companies (such as CP Gibbons) were all provided in reimbursement of contributions made to or for the Broadway Partnership, or were in any event all paid for the purpose of the Broadway Partnership. I accept that repayment of advances to the partnership would fall within the degree. 4. Third, as to repayments to it, CBA emphasises that Moustafa acknowledged that the Broadway Partnership had initially borrowed approximately $45 million from CBA to finance the construction of Stage 1 of the Broadway Development, and that it intended to borrow further funds to finance Stage 2 at a later stage; and that Moustafa also acknowledged that he knew that the amount borrowed would total approximately $70 million plus GST, and that this amount would need to be repaid to CBA, together with interest and bank fees charged in respect of the loan. It is noted that Moustafa further acknowledged that CBA would need to be repaid all moneys that had been borrowed by the Broadway Partnership from CBA and all of the costs of borrowing those funds before the partners became entitled to any profit. It is said that, while Plaza sues CBA for the net debits made to the CBA Partnership Account (that Plaza asserts were wrongly, without authority, so debited), the actual debits in fact included repayments of the principal amounts owing to CBA under the Second Facility of $11,297,000 on 1 October 2013 and $41,627,717.53 (comprised of 3 payments on 10-13 November 2014); and that Plaza also sues in respect of a repayment (to the CBA Partnership Account) by the Receiver of $34,345,783.45 on 30 March 2017, being the amount owing on the First Facility at that date (which funds were then transferred to repay the First Facility). It is said that in light of cll 10.2(h) and 19 of the First Facility Agreement, and Moustafa's express acknowledgment that CBA was entitled to be repaid these funds, Plaza's case concerning these repayments must fail. 5. Fourth, as to partnership distributions, it is said that all of the moneys paid out, both to Plaza's or Moustafa's interests and Investments or Mr Deiri's interests were made by the Broadway Partnership in relation to the Broadway Development. It is noted that Mr Deiri's evidence is that approximately $9.6 million was distributed to each of the partners towards the end of 2014. As referred to above, CBA points out that, in the Estate Proceedings, Plaza averred, and Moustafa verified, that all of the cheques paid by the Broadway Partnership to the Sayour Family Trust as Broadway Partnership distributions were the property of Plaza (see my conclusion above). 6. CBA points out that in the present proceedings Plaza does not sue Mr Deiri and CBA for approximately $10 million of these distributions – being the cheques personally received and deposited by Moustafa ($3.35 million and $1.65 million) and the corresponding payments to Mr Deiri's companies, but that it sues for the remaining distributions to Plaza (and the corresponding payments to Mr Deiri) despite the pleadings in the Estate Proceedings and the evidence of Moustafa referred to above. 7. As to the Second Construction Contract, CBA says that there is no substance to Plaza's contention that, because Moustafa did not "sign off" on the construction contract for Stage 2, Plaza thereby suffered a loss of $1.35 million (referring to the Sayour Parties' closing submissions at [187(c)]). CBA says this for the following reasons. 8. First, it is said that, even if the contract were ineffective due to a lack of authority, the apartments were undoubtedly built and the Broadway Partnership was liable to Deicorp on a quantum meruit. It is said that the evidence of the expert quantity surveyor, Mr Portelli, (see in relation to the fifth and sixth cross-claims) comfortably establishes the reasonableness of the construction cost and thus the existence of the Broadway Partnership's liability to Deicorp. 9. Second, CBA invokes the principle of acquiescence. It is said that the cost of construction of the Stage 2 apartments (whatever that cost was) was accepted by Moustafa as having been funded by, and therefore became repayable to, CBA. In any event, it is said that Moustafa's oral evidence of that acceptance constituted ratification of the Second Construction Contract. 10. In accordance with the below Orders (see at [4468]), the parties are to bring in short minutes in relation to the payment categories vis-à-vis the First Broadway Cross-claim. 11. I turn now to the Second Broadway Cross-claim. Second Broadway Cross-claim 1. As adverted to above, the Second Broadway Cross-claim is brought by Plaza against Investments claiming moneys allegedly owing, and interest thereon, under a written loan agreement, and for two directions in the taking of the partnership account (concerning items that it says Investments agreed to contribute to the Broadway Partnership, including excavation work). The purported loan agreement in question was not signed by Plaza – it was an annexure to the contract for sale of land. A counterpart of the loan agreement was signed by Investments. 2. As noted earlier, under the contract for sale executed on 27 December 2011 (see at [215] above) in respect of the Broadway Site, Investments was required to pay $6 million for the land with a deposit of $400,000 payable on entry into the contract. Plaza disputes that the sum of $400,000 was paid to it, but, as I understand it, it does not contend that this amount was that covered by the alleged loan agreement and hence it does not claim interest under the loan agreement in respect of that amount. 3. As to the balance (being $5.6 million), the contention is that this was lent by Plaza to Investments upon the terms of the pro forma loan agreement attached to the contract for sale (see at [220] above), which loan was repayable on 30 June 2012 with an interest rate of 9% per month. It is also alleged (and not disputed) that it was a term of the contract that Investments would pay a further $2 million to Plaza by 30 June 2012 in consideration for entering into the Broadway Partnership. 4. In short, Plaza's case is that it only received $5 million from Investments; and it claims to be owed $5.6 million plus interest on that amount at 9% per month (which sum now exceeds some $30 million), with interest continuing to accrue at some $504,000 per month. It is further contended that, if Investments did not enter into the loan agreement annexed to the contract for sale, then Investments breached special condition 43.3 of the contract for sale (which I have excerpted above). More particularly, the amounts claims are as follows. Some further aspects re amounts claimed 1. As alluded to above, the Sayour Parties say that the deposit payable under the contract for sale (the sum of $400,000) was never paid to Plaza. Relevantly, Plaza has elected (see [43(b)] of the Broadway Second Cross-claim) to appropriate to the deposit a sum received on 6 February 2013. Plaza also gives credit in the Broadway Second Cross-claim for the sum of $1.5 million paid into Moustafa's overseas account following the email of 15 June 2012 (referred to at [287] above). 2. Pausing here, although cl 42 of the contract for sale contains an acknowledgement of receipt of the deposit sum prior to the date of contract, the Sayour Parties say that such an acknowledgment is not conclusive (here pointing to s 13 of the Conveyancing Act). 3. Insofar as Investments in its defence alleges that payment to Jamil was payment to Investments, the Sayour Parties point out that the ordinary requirement to establish that a payment is effective is that there be a valid receipt, which requires authority to receive. They say that Jamil's involvement in antecedent negotiations does not imply any authority to receive money on behalf of Plaza. Pausing here, I have found above did have implied actual authority to direct and receive payments on behalf of Plaza (albeit not to direct payments to himself personally). 4. The Sayour Parties say that a further answer to Investments' payment defence is the allegation that the amounts paid were bribes (raised by Plaza in its reply to the Broadway Second Cross-Claim), referring in particular to the payment on Deiri Nominees' account on 10 October 2011 of $400,000 to "Micheal Sayour" (as to which, see at [149] above); the monthly payments by Deicorp to Jamil commencing on 30 November 2011 (as to which, see at [162] above); and the payment of $200,000 directed by Jamil on 15 June 2012 to his account (as to which, see at [288]; [289] above)). I have disposed of the issue of the alleged bribes above. 5. It is convenient to turn first, by way of background, to the parties' respective submissions. Sayour Parties' submissions generally 1. At the outset of the Sayour Parties' submissions on the Second Broadway Cross-claim, there is a dispute as to Jamil's authority to bind Plaza to the antecedent negotiations in relation to the contract for sale (relying on the proposition that an agent does not have authority to bind his or her principal to a contract for sale of land unless it is given expressly or by necessary implication – see, for example, Pianta v National Finance and Trustees Ltd (1964) 180 CLR 146 at 152; [1964] HCA 61 per Barwick CJ, Kitto, Menzies, Windeyer and Owen JJ agreeing). More particularly, while it is not disputed that the contract for sale was signed by Moustafa on behalf of Plaza, it is relevantly in issue whether the sums payable under the admitted contractual arrangements were in fact paid to Plaza and what interest, if any, is now owing to Plaza under the alleged loan agreement. 2. As to the first of those issues (being the purported unpaid debts), Plaza claims as unpaid debts the following amounts: the deposit (of $400,000) payable under the contract of sale; the $2 million payable under the further handwritten contract; the money lent at completion (i.e., the vendor finance) of $5.6 million; and interest said to be due under the loan at the rate of 9% per month on the sum of $5.6 million. 3. There is also an issue raised by the Sayour Parties as to the appropriation of payments as between interest bearing debt and other debt. In particularly, the Sayour Parties maintain the position that a debtor is not entitled to elect to pay interest bearing debt first but, in any event, they say that there is no evidence that the debtor made any election at the time. It is said that mere assertions in Mr Deiri's evidence or pleading do not establish a contemporaneous appropriation by the debtor. 4. The Sayour Parties refer to the normal rule of appropriation of payments, namely that, where interest is accruing, a creditor is entitled to insist on appropriation of payments to interest before principal (citing Falk v Haugh at 173 per Rich, Dixon, Evatt and McTiernan JJ) and that, otherwise, in the first instance, while a debtor indebted for more than one debt is entitled to appropriate the payment between the debts (Mita Copiers Australia Pty Ltd v Condor OA Pty Ltd (Supreme Court (NSW), Hunter J, 10 October 1994, unrep); Moratic v Gordon per Hunter J), if the debtor does not do so, the creditor is entitled so to appropriate the payment. The Sayour Parties say that it is not suggested that Investments made any contemporaneous appropriation in relation to the payments and that, accordingly, Plaza has appropriated the payments as provided for in the Second Broadway Cross-claim, thereby deriving the balances of principal from time to time on which it has calculated the interest claimed. 5. I have referred above to the dispute as to whether there was an effective appropriation of payments to the debts. In some instances, there is evidence to support a conclusion that there was an appropriation by the Deiri Parties (albeit generally retrospectively). For example, such as the attribution (in the contract of sale itself) of the payment of $400,000 to the deposit; and references in the later emails between Mr Deiri and Jamil as to the state of repayment of the amounts due under the contract. 6. As to the second of those issues (being the interest claim), the Sayour Parties say that the provisions of the loan agreement are clearly stated, noting that interest (defined in the document as being 9% per month) was payable on each "Interest Payment Date" (see cl 3.2(c)); that the "Interest Payment Date" was the last day of each "Interest Period" (see cl 1.1); and that "Interest Period" was defined in cl 1.1 to provide for monthly rests. They say that the construction contended for by the Deiri Parties (see at [18] of the Deiri Parties' defence), to the effect that the interest rate was 9% per annum, is untenable. 7. The Sayour Parties point out that the amount lent was unsecured and that it was interest-free until 30 June 2012. They say that this amount was clearly intended to be repaid at that time, in circumstances where both parties were to be contributing the land to an equal partnership; and that in those circumstances the 9% per month interest rate fits naturally with the arrangements between the parties. 8. The Sayour Parties maintain that there is no ambiguity in the relevant clause; that there is no obvious mistake that requires recourse to rectification (citing Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101 at 1114) (Chartbrook v Persimmon Homes); that there are no words which are necessary to be supplied, omitted or corrected to avoid absurdity or inconsistency (citing Fitzgerald v Masters (1956) 95 CLR 420 (Fitzgerald v Masters) at 426-427; [1956] HCA 53 per Dixon CJ and Fullagar J); and that the context disclosed in the document as a whole does not support the defence (citing Fitzgerald v Masters at 437 per McTiernan, Webb and Taylor JJ). 9. As to mistake, it is submitted that there is not a high level of certainty that the document, in fact, contains a mistake (citing Betts v Conolly (1970) 120 CLR 417 at 421-422; [1970] HCA 18 per Barwick CJ, in dissent, but not as to this principle). 10. Furthermore, the Sayour Parties further contend that the interest rate clause is not absurd or inconsistent with the contract read as a whole (citing Westpac Banking Corp v Tanzone Pty Ltd (2000) 9 BPR 97,814; [2000] NSWCA 25 (Westpac Banking Corporation v Tanzone) at [22]-[23]). 11. I summarise in due course the Sayour Parties' response to the rectification case raised by Investments, as well as its estoppel, fiduciary duty and unconscionable conduct defences. Deiri Parties' submissions generally 1. Insofar as the Sayour Parties have submitted that Plaza is entitled (if there be outstanding amounts owing under the contract of sale or loan agreement) to elect how to appropriate payments towards capital or interest (relying upon Falk v Haugh, where Rich, Dixon, Evatt and McTiernan JJ said that when payments are received generally on account of a debt, which is in part interest and in part principal, they are treated as applicable to interest in priority to principal), the Deiri Parties emphasise that their Honours went on to note that the rule is only a presumption in the absence of any actual or express appropriation (by the debtor or the creditor). 2. In this case, the Deiri Parties say that it is clear that both Investments and Plaza treated the moneys that were paid as having been attributed to repayment of the principal. In particular, reliance is placed on Mr Deiri's evidence of his conversation with Jamil, when Investments paid the final payment towards the $6 million purchase price, to the following effect, that Mr Deiri had now paid the $6 million and that "[w]e're all done and dusted" and Jamil's response is said to have been that "[t]hat's fine. It's all good"; and also to the letter sent by Mr Deiri to Jamil when Investments paid the final instalment completing the additional $2 million payment, stating that the full $8 million had been paid (as to which, see at [414] in the above chronology). 3. I interpose to observe that the Deiri Parties here say that this evidence was not challenged, though I consider it squarely to have been put in issue by the Sayour Parties. Further, this is but another instance where the difficulty is an alleged conversation with someone now deceased. 4. That aside, the Deiri Parties say that those events (and evidence) show an intention by Investments to allocate those payments to the principal owed (and that this could have been the only intention of Investments because Investments never considered there was interest payable). For the same reason, it is said that Plaza also elected to appropriate the payments this way, having confirmed through Jamil that the money was paid on each occasion. Accordingly, to the extent (which is denied) that there were any amounts due on which interest ran, the Deiri Parties say that Plaza is not entitled now to elect to appropriate the payments towards interest before payment to the principal. 5. As to compliance with the payment obligations themselves, the Deiri Parties maintain that Investments has met its payment obligations by paying the money as directed by Jamil. It is said that Investments paid the deposit of $400,000 in October 2011 (and that Moustafa was or must have been aware of the deposit having been paid, it being specified and acknowledged on the contract for sale when he signed it – again, see at [215] above); that Investments progressively paid the $5.6 million balance of the purchase price; and that Investments paid the additional $2 million agreed in relation to Plaza's expenses it had incurred. It is said that Jamil had authority from Plaza to direct and receive the cheques for these payments. The Deiri Parties say that the additional $2 million of the purchase price (though agreed to be paid by 30 June 2012) was paid by 10 August 2012. In particular, reference is here made to the evidence of Mr Deiri that Jamil agreed that the balance of the purchase price would be paid progressively, and that interest would not be payable if the contemplated partnership proceeded. It is said that it was on this basis that Investments agreed to enter into the contract for sale and did not pay the amount of $5.6 million by 30 June 2012. 6. The Deiri Parties also rely upon the letter of 25 September 2013 (see at [414] in the above chronology) in which Investments (again, purportedly through Jamil) confirmed the last payment in respect of the purchase and that there were no further obligations under the contract of sale or the loan agreement. It is said that Jamil acknowledged that no further moneys were owing on behalf of Plaza; and that Mr Deiri relied upon that representation, such that it would be unconscionable now for Plaza to depart from the assumption created. 7. Pausing here, there may well be a distinction to be drawn in this context between a claim for interest on unpaid purchase moneys and a claim for the unpaid purchase moneys itself. That is, for example, it might readily be said to be unconscionable for interest now to be claimed on purchase moneys that it was only sometime later said were not paid; it is another thing to say that if part of the purchase price was not in fact paid it would be unconscionable for Plaza now to seek that amount. I return to this in due course, including in disposing of the estoppel issues. 8. Indeed, it is contended that Plaza is estopped from denying the assumption induced that there were no further moneys owing. Alternatively, it is said that the parties thereby reached an accord and satisfaction of any obligations under the contract of sale or the loan agreement. 9. It is further submitted that, whatever authority Jamil had, in fact almost all of the cheques for the balance of the purchase price were deposited into bank accounts held in the name of Moustafa and Jamil. Thus, it is said that, in fact, the moneys did "reach" Plaza and that the fact that Jamil then may have subsequently diverted the moneys elsewhere does not change the position. Put perhaps differently, it is also said that what may have later occurred once Plaza had received the moneys, in relation to payments out of that account, does not change the position. 10. I will return to the submissions for the Deiri Parties in due course. It is convenient next briefly to outline HWLE's submissions as relevant to this matter generally. HWLE's submissions generally 1. HWLE, against whom claims are made in relation to the interest claimed by Plaza (as to which, see the Third Broadway Cross-claim and the Fourth Broadway Cross-claim) similarly contends that (even if the parties did enter into the loan agreement, as to which it contends to the contrary) and Investments "borrowed" $5.6 million from Plaza, Mr Deiri's evidence shows that $5.6 million was fully repaid by 20 August 2012 (see, for example, Mr Deiri's affidavit sworn on 22 August 2019 at [118]-[131]) but that, in any event, Plaza's calculation of unpaid money under the loan agreement is flawed because it assumes that Plaza was entitled to appropriate payments to the reduction of non-interest bearing debt in priority to interest bearing debt under the loan agreement. 2. More particularly, HWLE says that, if it is assumed that Investments owed two debts to Plaza (the $5.6 million purchase price and the $2 million additional payment), then it was Investments (not Plaza) which had the primary right to appropriate payments against those debts (citing Deeley v Lloyds Bank Ltd [1912] AC 756 at 783). Following, HWLE argues that Investments appropriated payments to the $5.6 million purchase price in priority to the $2 million additional payment when Mr Deiri told Jamil that he would pay the $2 million additional payment sometime after he paid the $6 million (see Mr Deiri's affidavit sworn on 22 August 2019 at [51]). 3. Thus, HWLE argues that the payments actually made by Investments have fully repaid the purchase price and any interest which accrued. It is said that, if money has remained unpaid since 2013, it is the $2 million additional payment which was not subject to the loan agreement and for which there was no interest obligation. 4. Assuming that Investments' obligation to pay interest arose at some stage after 30 June 2012, HWLE notes that the obligation was only to pay interest on the "Principal Outstanding" (see cl 3.2). It says that, in the absence of any "Advance" (as defined), the "Principal Outstanding" was always nil. Alternatively, it argues that, upon repayment of all money advanced, the "Principal Outstanding" was also nil. 5. I now turn to consider the reply submissions for the Sayour Parties in relation to the payment defence, appropriation of payments and related matters. Sayour Parties' reply submissions 1. The Sayour Parties accept that payment is a defence. As adverted to above, however, they say that the appropriation of payments is relevant to the quantum of unpaid interest and principal because the loan was only in respect of the balance of $5.6 million and interest applied only to that sum (and thus it is in the interest of the Deiri Parties to appropriate payments so far as possible to that sum before interest runs). 2. The Sayour Parties say that it is clear that the cross-defendant bears the onus to plead and prove payment; and that the parties are at issue as to payment and appropriation of payments on the pleadings, as Plaza has specifically pleaded those payments for which it gives credit (and how they were or are appropriated). Thus, the Sayour Parties say that the complaint that Mr Deiri was "unchallenged" as to some of his affidavit assertions about verbal appropriations between himself and Jamil is not available to be made. They say (and, I accept) that Investments was expressly challenged in the pleading on the issue of appropriations and that it knew exactly what case had to be met. As to the submissions in respect of the appropriation of moneys to the respective debts, I have considered those above. Determination re the specific aspects of the Second Broadway Cross-claim 1. With the preceding background in mind, I now turn to each of the specific claims made here. It is convenient to consider, and to determine, each such issue seriatim, and I here proceed on that course. 2. As to Plaza's claim on the alleged loan agreement, the position of Investments (and Investments' submissions in this regard are largely echoed by the submissions of HWLE and will therefore be dealt with together) can be adumbrated as follows. 3. First, that Plaza never signed the loan agreement (and therefore the agreement was not binding and no question of interest under that agreement arises). 4. Second, that Plaza's alternative case based on breach of special condition 43.3 is not established but, in any event, there is no loss. 5. Third, that, even if the loan agreement was entered into and binding, no request for the loan funds was made and none were advanced (see cl 2.1) 6. Fourth, that, even if in force and binding, as a matter of construction the loan agreement should be construed such that the reference to "9% per month" should mean 9% payable per month, or alternatively 9% per annum. 7. Fifth, that, if the requirement was to pay an interest rate of 9% per month, this is extravagant and unconscionable and void as a penalty. 8. Sixth, that, in the alternative, the loan agreement should be rectified such that 9% per month is to be changed to 9% per annum (this being the subject of the Third Broadway Cross-claim – as to which, see below). 9. Seventh, that, further or in the alternative, Plaza is estopped from denying the assumption induced by it that (after the final payment in November 2013 – see above chronology) there were no moneys owing under, or in connection with, the contract for sale. 10. Eighth, and lastly, that Plaza's conduct in this regard is unconscionable in breach of the prohibition on unconscionable conduct under s 21 of the Australian Consumer Law. 11. I note that HWLE also argues that, even if the parties did enter into the loan agreement and it was binding, the loan was repaid such that no interest accrued. 12. Again, I will address each of these matters in turn. Loan agreement never entered into and not binding 1. I turn first to the submissions for the Deiri Parties and HWLE. Deiri Parties' and HWLE's submissions 1. As adverted to, Investments (and HWLE) maintain that no binding loan agreement ever came into existence and therefore that no question of interest under that agreement arises. For example, HWLE points out that, although Mr Deiri signed a counterpart of the loan agreement and gave it to Jamil (see Mr Deiri's affidavit sworn on 22 August 2019 at [74]), the loan agreement was not a deed. Thus it is submitted that the document signed by Mr Deiri was not capable unilaterally of imposing legally binding obligations on Investments unless both parties agreed to its terms. I interpose to note that I agree with this submission. 2. Furthermore, the Deiri Parties say that it is not clear from the evidence whether or not the loan agreement that Mr Deiri took to the meeting with Moustafa and Jamil was physically attached to the contract for sale, but that the legal position is the same in either case. It is noted that special condition 43.3 of the contract for sale shows the loan agreement was a distinct and separate contract. That clause provided for the parties to execute the loan agreement, and provided for a waiver of that obligation if it was not fulfilled. As a matter of construction, it is said that this shows that the parties cannot be taken to have intended to be bound by the loan agreement merely by signing the contract for sale. 3. It is also noted by Investments that there is no evidence at all that Moustafa was even aware of the existence of the loan agreement; that the loan agreement was a separate contract; and that the mere execution of the contract for sale did not entail entry into the loan agreement, whether or not it was attached to the contract for sale. In these circumstances, it is said that there was no meeting of the minds (and that Plaza admits as much at least as far as the interest rate is concerned, by its submission that there was, relevantly, no meeting of the minds and no evidence of a relevant consensus). It is said that the lack of a consensus ad idem was broader than that there was no agreement for there to be a loan agreement at all, because that document was a separate agreement which Moustafa never executed and of which he was entirely unaware. 4. I interpose also to observe that it is noted that Plaza conceded from the commencement of the hearing that Plaza never executed the loan document which was found, unexecuted by Plaza, in the offices of Biomed after Jamil's death (see T 26.41-44). 5. Furthermore, the loan agreement itself contemplated that it could be executed in any number of counterparts (see cl 8.7). HWLE points out that no counterpart of the document was ever signed (let alone exchanged) by anyone on behalf of Plaza (nor was there any allegation that it was); and thus it is said that, absent a counterpart signed by Plaza, there was no express agreement by Plaza to enter a contract on the terms set out in the loan agreement. In this regard, HWLE points to the following matters: that there is no evidence of a copy of the document signed by anyone other than Mr Deiri; Moustafa's evidence is that he does not remember seeing the loan agreement (see Moustafa's affidavit sworn on 31 May 2019 at [120(e)]; [126]); no witness gives evidence of seeing anyone sign a copy of the loan agreement on behalf of Plaza (cf, for example, Mr Deiri's affidavit sworn on 22 August 2019 at [70]-[75]); when Moustafa signed the contract for sale (as adverted to, to which the loan agreement was annexed), he signed only one document only (see, for example, Moustafa's affidavit sworn on 31 May 2019 at [111]-[117], [120]); Ms Gray, the responsible solicitor at HWLE, would in the ordinary course have seen a counterpart of the loan agreement had it been signed by Plaza, but when she received the contract for sale executed by Plaza she did not receive an executed loan agreement (see Ms Gray's affidavit sworn on 9 October 2019 at [25]-[26]); Ms Gray does not recall ever seeing a copy of the loan agreement signed by Plaza (see Ms Gray's affidavit sworn on 9 October 2019 at [26]);and there is no counterpart of the signed loan agreement on HWLE's file, where one would ordinarily be located had HWLE received it (see Ms Gray's affidavit sworn on 9 October 2019 at [27]-[28]). 6. As to the fact that a counterpart of the loan agreement signed by Plaza has not been produced, HWLE says that the significance of this is that Plaza has not proved the contract upon which it sues (HWLE says that it is not for Investments to disprove the contract); and it is said that reliance by Plaza on Mr Deiri's signature under cl 8.8 as evidence of agreement takes the case no further. It is noted that no one on behalf of Plaza signed cl 8.8 (and it is contended that it is not enough for Plaza to submit that Mr Deiri signed cl 8.8 "in front of" Moustafa). 7. Insofar as the Sayour Parties have submitted that the parties had not contracted that the loan agreement must be entered into by signing, HWLE says that whether that is correct is a question of construction of special condition 43 of the contract of sale; and HWLE submits that the text, context and purpose of special condition 43 make clear that the loan agreement had to be in writing signed by both parties. 8. It is also noted that the term "loan agreement" is defined by reference to terms which at the time the contract of sale was entered into had been physically documented and attached as "annexure A" (see special condition 43.1(a)). HWLE argues that the words used in special conditions 43.2 and 43.3 ("enter into") would naturally mean execution by signature. It is noted by reference to the last page of this annexure A that it contemplates it will be "executed" as an agreement and that it provides for execution by both parties. It is said that an agreement entered into other than by signature is not an agreement "substantially on the same terms" as this "annexure A" because it is not "executed as an agreement". Again, I interpose to note that I agree with this submission. 9. In support of the contention that the terms of the document in "annexure A" show that the parties contemplated that their transaction would be conducted by signed writing, HWLE refers to the provisions for: notices and other communications, including requests, demands, consents or approvals, only by signed writing (see cl 7.1); waiver only in writing (see cl 8.3); variation only by signed writing (see cl 8.4); execution by signed counterpart (see cl 8.7); and that the loan agreement was included in the definition of "Transaction Document" in cl 1.1 in circumstances where "documents" were defined to include written agreements (see cl 1.2(g)). It is said that, with the intention that their transaction must be conducted by signed writing (including any variation of it), the parties could not objectively have intended that the loan agreement be entered into at the outset other than by signed writing. 10. HWLE further argues that, objectively viewed, signed writing would be expected to be the minimum formalities for a commercial transaction worth $5.6 million. It is said that this is especially so if it was intended that the transaction have the "remarkable and objectively implausible" term for which Plaza now contends, namely interest at the rate of 9% per month. It is said that, had that been intended, then the parties would have wanted the term specified with undisputable clarity and not left to uncertain inference from their subsequent conduct. 11. HWLE submits that the fact that the parties agreed in special condition 43 that the loan agreement be entered into by signed writing is a factor to which an objective bystander would have regard when considering whether the parties' conduct was consistent only with an implied agreement. It says that another factor to which the objective bystander would have regard is the fact that the terms of special condition 43 make clear that: as at the date of the contract for sale, entry into the loan agreement had not yet have occurred and, if it did occur, it would happen in the future; and that it might not happen at all, for which possibility a number of provisions were made (referring by way of example to special conditions cl 43.4 and cl 43.5). 12. HWLE further submits that there was no implied agreement by Plaza. It is noted that, despite the absence of express agreement, Plaza here alleges that it lent Investments $5.6m "upon the terms of the pro forma loan agreement attached to the Contract of Sale" (see Second Broadway Cross-claim at [14]). It is noted that no particulars are there given (although reference is made here to Plaza's defence to the Third Broadway Cross-claim at [14(e)]). 13. HWLE says that, at its highest, Plaza's allegation should be understood as an allegation that a contract on the terms of the loan agreement may be implied from the parties' conduct. 14. In that regard, HWLE points to the statement of principles relevant to an implied contract endorsed in Laidlaw v Hillier Hewitt Eisley Pty Ltd [2009] NSWCA 44 (Laidlaw v Hillier Hewitt Eisley) (see at [58]-[59] per Macfarlan JA). HWLE submits that, insofar as those principles include the proposition that the conduct "must be of such a character as necessarily to lead to an inference that an agreement has been made and its terms" (there referring to Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 (Empirnall Holdings v Machon Paull) at 535-536; Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 (Brambles Holdings v Bathurst City Council) at 195 per Heydon JA (as his Honour then was)), the character and circumstances of the conduct must indicate unambiguously that the parties intended to contract on the alleged terms. HWLE argues that the parties' conduct must not be capable of any explanation other than the intention to contract on the terms alleged (citing Laidlaw v Hillier Hewitt Eisley at [5]-[9] per Macfarlan JA, his Honour there citing Brogden v Metropolitan Railway Co (1876-77) 2 App Cas 666, Empirnall Holdings v Machon Paull and Brambles Holdings v Bathurst City Council). 15. It is noted that, when assessing the parties' intentions, regard may be had to their subsequent conduct but that the conduct of the parties before the dispute arose has much greater weight than their conduct after the dispute arose (HWLE here citing J D Heydon, Heydon on Contract (2019, Lawbook Co) (Heydon on Contract) at [2.1101]). 16. In amplification of the preceding, HWLE submits that the facts in this case do not unambiguously give rise to the implication of a contract between Plaza and Investments on the terms of the loan agreement, in that an alternative explanation for the parties' conduct is available (namely, that Investments did not pay the purchase price on 20 January 2012 and Plaza was happy to acquiesce in the breach because it expected that Investments would pay later). In this connection, reference is made to Moustafa's evidence in his affidavit to the effect that payment was expected as soon as Mr Deiri finished his project at Redfern (which might be in May or June of 2012) (see Moustafa's affidavit sworn on 31 May 2019 affidavit at [99], [113]-[114]). HWLE submits that that explanation of the parties' conduct is not only available on the facts but more consistent with the agreement by Plaza to lend money to Investments. 17. Those various other facts which are said to support this delayed payment explanation are identified as follows: that Mr Deiri's original discussions with both Moustafa (see again, for example, Moustafa's affidavit sworn on 31 May 2019 at [99]) and Jamil (see also, for example, Mr Deiri's affidavit sworn on 22 August 2019 at [49]; [63]) were in terms of deferred settlement, rather than vendor finance; that the question of vendor finance was first raised, not by the parties, but by HWLE because of the parties' need for Investments immediately to receive title to the land for the purpose of securing external funding (see Mr Deiri's affidavit sworn on 22 August 2019 at [64]); and that both parties were concerned to have their lawyers involved in the documentation of the transaction (see, for example, Moustafa's affidavit sworn on 31 May 2019 at [108]-[110], [120]-[121]; Mr Deiri's affidavit sworn on 22 August 2019 at [64]; Moustafa's affidavit sworn on 16 September 2019 at [46]), which it is said objectively suggests that the parties intended that any document which recorded their agreement would be properly executed. 18. As adverted to above, it is also noted that special condition 43 was added to the contract for sale in terms which expressly contemplated entry into a further document before a loan would arise; and that special condition 43.4 further contemplated that entry into the loan agreement would be a benefit for Investments which Investments was free to waive (which is said to show an expectation by the parties that Investments might not want to take a loan from Plaza and, instead, might make some other arrangement for payment of the purchase price, such as obtaining Plaza's acquiescence in a delayed payment). 19. Again, HWLE notes that no one at Plaza, including Moustafa, signed and returned a counterpart of the loan agreement, even after Mr Deiri signed it and gave it to Jamil at the time the contract for sale was executed, contrasting the parties' behaviour in relation to the loan agreement with their behaviour in relation to the contract for sale which they properly executed and exchanged. 20. HWLE says that, at no time after 20 January 2012, did Mr Deiri act as if the terms of the loan agreement were contractually binding (especially in relation to making payments to Plaza), noting that the loan agreement expressly regulated the making of payments to Plaza (see cll 4, 5 and 7) yet Mr Deiri acted as if those clauses did not apply; and that Mr Deiri's conduct included writing his letter dated 25 September 2013 to Plaza, in which he referred to the contract for sale and the final payment for the "purchase price" but made no reference to the loan agreement or repayment of any "loan". 21. Similarly, it is said that at no time between 20 January 2012 and the commencement of the partnership dispute did Moustafa or Jamil, or anyone else at Plaza, act as if there was a loan from Investments to Plaza; and at no time after September 2013 did Moustafa or Jamil say anything to Mr Deiri about money owed by Investments to Plaza for the purchase of the land (see Mr Deiri's affidavit sworn on 22 August 2019 at [156] cf Moustafa's affidavit sworn on 16 September). 22. HWLE says that the mutual disregard of a contractually binding loan is all the more remarkable given the interest rate contended for and the "astonishing" amount of interest said to have been accruing. It is noted that, in November 2015, there was occasion for Moustafa to complain to Mr Deiri about money owed to Moustafa but that Moustafa said nothing about an outstanding loan or unpaid interest (see Mr Deiri's affidavit sworn on 22 August 2019 at [271]). Further, it is noted that, even after the current proceedings commenced in September 2016, they continued for more than a year before the first suggestion was made that Plaza had lent the purchase price to Investments in January 2012 and was still owed tens of millions of dollars in unpaid interest (that being raised in the Second Broadway Cross-claim). It is submitted that, had an interest bearing loan truly been intended since 2012, it would naturally have been raised as soon as the proceedings commenced, having regard to the content of the dispute between the former partners. 23. HWLE says that Plaza's case is no more than the "fallacious argument" that, simply because conduct occurred which was not inconsistent with the alleged loan (non-payment of the purchase price at settlement), it should be concluded that that conduct occurred because of the alleged loan. HWLE maintains that the parties' conduct does not give rise to an inference that they agreed in January 2012 to make a loan on the terms as here asserted. 24. In any event, it is submitted that the implied agreement which Plaza seeks to extract from the parties' conduct is inconsistent with their express agreement as set out in special condition 43 of the contract for sale, noting that special condition 43.1 contemplated that the parties would take a further step before a contract would arise on the terms of the "Loan Agreement" (that further step being "entering into the loan agreement"). As noted above, HWLE says that the natural meaning of those words is the execution and exchange of a document in the form of "annexure A" to the contract for sale. 25. Apart from the plain meaning of the words "entering into", it is said that that construction is apparent from the context in which they were used, namely that: the term "loan agreement" was defined by reference to a specific document (again, special condition 43.1); special condition 43.3 contemplated that, at the time of completion, the act of entering into the loan agreement may have already been "done" by the parties; special condition 43.3 alternatively contemplated that the parties would take "reasonable steps" to enter into the loan agreement; and the time at which the parties enter into the loan agreement had to be capable of ready ascertainment because it had to be done by reference to a particular date (i.e., the sunset date on 30 June 2012) (see special conditions 43.2, 43.4 and 43.5). 26. HWLE says that these matters are all consistent with an objective intention that the loan agreement would be entered into by signing and exchanging the document. Further, HWLE says that the logic which prohibits the implication of a term into a contract which contradicts the express terms of the contract (see BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 (BP Refinery) at 283) also applies to Plaza's argument that an inconsistent implied contract arose on the same day as the parties entered into the written contract for sale. 27. Thus, HWLE contends that the only relevant contract which arose between the parties on 20 January 2012 was the contract for sale which both parties executed and exchanged (and that, although Investments breached its obligation to pay the remaining purchase price at settlement, Plaza was happy to acquiesce in the breach). 28. HWLE argues that, although a number of Plaza's submissions are based on the assumption that the parties acted as if the loan agreement had already been entered into when the contract for sale was exchanged, the terms of special condition demonstrate otherwise. Insofar as Plaza contends that the parties' conduct give rise to the inference that they entered into an agreement on the terms of "annexure A" at some time between 27 November 2011 (when the sale contract was exchanged) and 20 February 2012 (when settlement occurred), HWLE says that the matters referred to by Plaza do not rise to the high standard required for an implied contract (as referred to above) and it is said that Plaza has not addressed any of the objective facts which indicate that there was no loan agreement, including Plaza's subsequent conduct. 29. I now turn to the submissions for the Sayour Parties. Sayour Parties' submissions 1. The Sayour Parties say that there is no legal requirement for a loan agreement to be signed (citing Alonso v SRS Investments (WA) Pty Ltd [2012] WASC 168 at [49]-[50] per Edelman J, his Honour then a Justice of the Supreme Court of Western Australia; Heydon on Contract at [4.360]; Tonitto v Bassal (1992) 28 NSWLR 564 at 570G; ANZ v Widin (1990) 26 FCR 21; [1990] FCA 674 at [36]; Elias v George Sahely & Co (Barbados) Ltd [1982] UKPC 31). 2. The Sayour Parties say that the parties had not contracted that the loan agreement must be entered into by signing; and note that special condition 43.3 imposed a contractual obligation on both parties to enter into it "as soon as possible". It is said that the method of entry into the loan agreement was left at large, permitting any lawful means; the only prescription was that it must be "substantially on the same terms as the loan agreement attached as Annexure A to this contract" (see cl 43.1(a)). It is noted that this did not preclude additional terms. 3. The Sayour Parties say that the handwritten cl 8.8 (that Mr Deiri drafted, signed and delivered) acknowledged the existence of the loan agreement, noting that it expressly acknowledges the existence of "the Loan", acknowledged that "interest" was to be "paid" and referred to "the whole agreement". It is submitted that the word "whole" signifies that the loan agreement is part of a wider agreement, constituted by both the sale and the loan and that this indicates that the parties considered the transaction as one bargain. It is said that this strongly supports the view that going ahead to completion involved entry into the loan agreement. 4. The Sayour Parties say that it has not been suggested that there was any other loan to which this language was referable. It is also noted that the additional clause was written on to the blank page nine of the agreed form of loan agreement, and was numbered sequentially following the last printed clause in that form of loan agreement, clearly indicating (it is said) that the loan is the loan referred to in that form of instrument. 5. The Sayour Parties note that cl 8.8 gave the vendor an additional right of rescission of the sale. Specifically, in the contract of sale, special conditions 43.2 and 43.1(a) provided that completion was conditional on the vendor and purchaser entering into the loan agreement substantially on the same terms as provided in "annexure A" by the sunset date, which was defined by special condition 43.1(b) as 30 June 2012. It is noted that special condition 43.3 obliged the parties to enter into the loan agreement as soon as possible; however, special condition 43.4 provided that the purchaser might waive the benefit of special condition 43 by serving a notice on the vendor at any time before two business days after the sunset date. 6. The Sayour Parties say that the condition was for the purchaser's benefit, and might be waived not later than 2 July 2012, by giving the prescribed written notice, in which event the purchaser would be obliged to complete by paying cash, rather than by taking vendor finance. 7. They say that, absent such waiver, the vendor might rescind the contract of sale pursuant to special condition 43.5, in which event cl 19 would apply if the loan agreement was not entered into before the sunset date. 8. They say that the effect of the additional cl 8.8 to the loan agreement was to grant to the vendor an additional right, that it did not obtain under the contract for sale, which was to rescind the sale even though the purchaser did enter into the loan agreement, if the purchaser did not repay the loan by "31st September, 2012" which must mean (it is said) either the last day in September or 1 October 2012. 9. The Sayour Parties argue that the addition of this provision at the same time that the contract of sale was signed indicates that the parties intended the loan agreement to be effective and that the two instruments must be read together (citing Smith v Chadwick (1882) 20 Ch D 27 at 62-63; Manks v Whiteley [1912] 1 Ch 735 at 754-755; McVeigh v National Australia Bank Ltd [2000] FCA 187; (2000) 278 ALR 429 at [30]; Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd (2016) 18 BPR 36,121; [2016] NSWCA 224 at [67]-[70]; see also Realtek Pty Ltd v Wetamast Pty Ltd [2019] NSWSC 1869 at [71]-[72]). 10. As to completion of the sale without paying cash, it is noted that it has not been suggested that the purchaser gave a notice under special condition 43.5, or completed the purchase by paying cash. Relevantly, the evidence shows that transfer was registered on about 10 February 2012). It is noted that, under cl 31.1, the "Completion date" was 20 January 2012 (subject to special condition 43.2 and consequently to other provisions of special condition 43). 11. Relevantly here, and as adverted to, Investments denies that it paid the balance on completion. From this, the Sayour Parties say that this implies that the vendor gave the transfer voluntarily in the sense of completing a dependent contract with without payment of the consideration. It is submitted that such an extraordinary course would not readily be inferred; that it would require a conclusion that the vendor completed without security. In this regard, it is noted that a vendor's lien would not be implied where the parties had bargained for a special mode of payment (see, for example, Re Brentwood Brick and Coal Co [1876] 4 Ch D 562) and that here the parties had done so. 12. It is said that it was not expected that cash would change hands on completion where vendor finance was agreed as the method for payment because the Deiri Parties were waiting for the completion of the Redfern project to obtain funds for this purchase. 13. It is also noted that Investments pleaded that the pro forma loan agreement provided for a request for the advance and that no such request was made and that this is of no significance if the loan agreement was not entered into – the loan agreement did not require such a "request" to be made, but merely obliged the Vendor to make the advance within five days of request (nor was the request required to be in writing). It is said that a request for the advance was necessarily involved in an appointment or arrangement to complete the sale without having waived the right to vendor finance. 14. The Sayour Parties say that it follows that, by the omission to serve a notice waiving the right to vendor finance and proceeding to completion without proffering cash or suggesting that it would proffer cash, the purchaser requested that the loan be advanced on completion. It is submitted that this supplies a further basis for acceptance that the loan agreement was entered into. 15. The Sayour Parties say that it was not open to Investments to take the transfer without tendering cash, except on the proffered basis of the vendor finance Loan (citing Empirnall Holdings v Machon Paull; Surfstone Pty Ltd v Morgan Consulting Engineers Pty Ltd [2016] QCA 213 at [4], [7], [13], [17]; Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmson Agency Pty Ltd [2001] NSWCA 313 at [79]-[80]). 16. It is said that delivery of a signed form of loan agreement by Investments and delivery of the transfer by Plaza, particularly with the addition of cl 8.8, without payment in cash and in circumstances where Investments did not waive special condition 43.2 nor tender payment in cash before receiving and registering the transfer on the strength of having provided a signed, written loan agreement, was conduct constituting entry into the loan agreement. 17. As to the suggested waiver, the Sayour Parties say that it is of no significance that a counterpart signed by Plaza has not been produced, where separate counterparts were prepared for execution. It is said that one would not expect a counterpart signed by Plaza to be in the possession of Plaza and, if Investments did not insist on receiving a signed counterpart, that was a matter for it. Furthermore, it is noted that Mr Deiri did not give evidence of due search and enquiry for such a counterpart. It is further noted that Mr Deiri did not explain what happened to the second counterpart, but it is said that it is apparent that the handwritten cl 8.8 must have been written on the blank page nine provided in the second counterpart unless a photocopy was made of that page from the first counterpart. 18. The Sayour Parties say that the course urged by HWLE is that Plaza acquiesced in a breach by Investments in failing to pay the purchase price by the completion date, or waived the requirement. The Sayour Parties say that one would not attribute to the parties such a serious breach or such an uncommercial waiver, nor acquiescence in so serious a breach, by conduct that was consistent with entry into the vendor finance loan agreement that their contract expressly contemplated, even without the formal step of the loan agreement being signed and delivered, and certainly not with that event having happened (and, indeed, having happened with the addition of a clause such as cl 8.8). 19. Further, it is said that the case of Investments and HWLE must attribute no operation or effect to cl 8.8 of the loan agreement, because it operates only upon a failure to repay "the Loan" within the time prescribed in that clause. It is said that that was evidently given for the benefit of Plaza and had contractual effect as a term of the loan, in addition to the other terms of the loan (noting also that it was signed in front of Moustafa – see Moustafa's affidavit sworn on 31 May 2019 at [124], Mr Deiri's affidavit sworn 22 August 2019 at [71]-[74]). 20. It is noted that HWLE submit (as considered above) that the facts do not unambiguously give rise to the implication of a contract between Plaza and Investments on the terms of the loan agreement. As to this, the Sayour Parties say that it was not submitted however (and there was no evidence) that Investments arranged for completion to occur and accepted a transfer having informed Plaza that it would neither pay the price in cash, nor accept vendor finance for the price. It is said that that would have been repudiation and to make such a repudiatory intention manifest some outward act was necessary (such as a representation that that was its intention, or some other outward step being taken between the parties that necessarily involved proceeding on that basis). It is noted that no such act has been identified in evidence or alleged in the pleading or submissions. 21. The Sayour Parties say that, as a result of pre-contractual communications from Mr Deiri, Moustafa knew that Mr Deiri and/or Investments would be unable to meet the purchase price for the land until mid-2012 at the earliest. It is said that this inability was not repudiation, because of the contracted right to vendor finance. It is said that Mr Deiri necessarily knew these facts and also believed that there needed to be a loan because he was advised by his own lawyers that one was required (or at least desirable) for the purpose of finance, given the suggested difficulty in obtaining finance for the development of the property by Plaza and Investments if completion of their contract for the sale of the half-share in the Broadway Site was delayed under terms providing for a "delayed settlement". 22. It is here to be noted that HWLE, by its letter of 21 December 2011 (see at [205] in the above chronology), forwarded to Mr Deiri a draft of the loan agreement together with a separate engrossed version ready to be signed in two counterparts. 23. It is said that, according to Mr Deiri's evidence, the loan agreement was the subject of negotiation at the meeting which he alleges took place at the offices of Biomed on 27 December 2011 where Moustafa, Jamil and Mr Deiri were all present (see at [206] in the above chronology). 24. It is said that the impugned cl 8.8 expressly assumed and operated on the existence of a loan, and a liability to pay interest on the loan, which were provided for only by the loan agreement, of which this additional clause was in form a term. Thus, it is said that cl 8.8 drafted and provided by Mr Deiri could not take effect unless the underlying loan agreement was to be effective. 25. The Sayour Parties note that Mr Deiri's own evidence is that it was proferred, drafted, signed and delivered at the meeting as a result of a question raised by Jamil about the prospect and consequence of delay. They say that it was clearly intended to take effect and to supply the basis upon which completion of the contract would take place, and that this was an offer to complete the contract on the terms of vendor finance in accordance with the pro forma loan agreement with the additional cl 8.8, thus complying with special condition 43 of the contract which required all reasonable steps to be taken to enter into an agreement, "substantially in accordance with" the pro forma loan agreement unless the purchaser waived the right to vendor finance, and was proffered to satisfy a concern on the vendor. 26. The Sayour Parties say that, by proceeding to completion without giving a formal waiver of the right to vendor finance and without proposing to pay cash, Investments requested the advance to be made at completion as the only reasonable conclusion for Plaza would be that vendor finance was still required. 27. It is said that, in the absence of entry into the loan agreement, the vendor was entitled to refuse to complete; that it did not do so; and that the vendor retained the signed loan agreement with the additional clause. It is said that the objective bystander would therefore conclude that Plaza accepted the offer and entered into the loan agreement by completing the contract on the basis proffered and, thus, that what occurred was a vendor loan. 28. It is said that there was no legal requirement for acceptance to be communicated in any particular fashion (noting that the loan agreement was not a deed). Again, it is said that the fact that a contract on the terms of the loan agreement was entered into by Plaza and Investments is unambiguously indicated by the conduct of the parties. 29. It is said that the alternative suggested by HWLE and the Deiri Parties is that Plaza completed the contract without payment and permitted Investments to raise mortgage finance on Plaza's property for which Investments had not paid, when hitherto Plaza had been negotiating for advantage in a commercial deal. 30. It is said that, Investments having done everything reasonable to enter into the loan agreement, it would require a conclusion that Plaza was at once rejecting the offer, breaching special condition 43 and that, by failing to sign and deliver a counterpart loan agreement (which was not a legal requirement for the formation of agreement), was thereby refusing to give vendor finance and yet at the same time waiving the requirement for payment of the balance at completion and allowing an indeterminate time to pay, "all without a word" and yet holding on to the signed loan agreement. It is said that this would not be rational conduct and the objective bystander would not draw those conclusions. The Sayour Parties say that this is the opposite of what occurred. 31. It is noted that the loan agreement was signed by Mr Deiri in two places (on pp 9 and 11) and that no counterpart signed by the Sayour Parties' side has been produced. It is said that the inference to be drawn from that (contrary to HWLE's submission) is not that Moustafa "did not take the trouble to sign and return a counterpart of the Loan Agreement", but rather that it was considered unnecessary because the promise(s) had the promisor's signature, or because it has been lost or simply not produced by the Deiri Parties or because it went without further saying that the contract was being completed with vendor finance as had been arranged. Determination re loan agreement never entered into and not binding 1. On this first issue, I consider that it is clear that the contract for sale contemplated that the parties would execute the impugned loan agreement as a separate contract and that it was not sufficient for them simply to sign the contract for sale in order for there to be a binding agreement on the terms of the loan agreement. To my mind, any other conclusion leaves special condition 43 (noting 43.1, 43.2 and, particularly, 43.3) with no relevant work to do, which, along with various other matters considered in the preceding discussion, tells strongly against the construction (and, indeed the claim) here pressed by the Sayour Parties. As I have observed above, in this respect, it is to be recalled that the alleged loan agreement was not a deed. 2. Likewise, the terms of the last page of "annexure A" also tells towards the construction that I here prefer, including that this document contemplated it would be "executed", along with inclusion of language of "substantially on the same terms [as this] annexure A". 3. Furthermore, it should again be noted, in this respect, that Plaza conceded at the commencement of the hearing (again, see at T 26.41-44) that Plaza never executed the loan document (putting aside for one moment whether it otherwise agreed and, indeed, the absence of any exchange from Plaza's side). 4. Similarly, and for the reasons advanced by HWLE and Investments, I do not accept that the evidence establishes that there was otherwise an implied agreement in the terms contained in the annexure to the contract for sale and here alleged. Not least, I see force to the submission that signed writing would be expected to be the minimum formalities for a commercial transaction of this scope (and, I add, that is so even putting aside the rate of interest alleged to have been a term of this alleged loan contract). 5. Relatedly, I see force to the submissions that the parties' conduct is referable to arrangements, or an understanding, other than an agreement on the terms here alleged by the Sayour Parties. This observation applies equally to pre-contractual conduct and the subsequent conduct, even before the dispute had arisen (and, it seems, even for a period of time after the dispute had arisen – as to which, see particularly the submission to that effect which has been considered above). 6. Otherwise, and again for the reasons advanced by HWLE and Investments, I do not accept that the evidence establishes that the alleged agreement was ever formed, particularly noting again the absence of evidence as to entry from the Sayour Parties' side and as to Moustafa's lack of knowledge. 7. Accordingly, Plaza has not proved the contract upon which it sues on the Broadway Second Cross-claim. This conclusion is fatal to the principal way in which the interest claim is put under the Second Broadway Cross-claim. 8. Furthermore, I also here note that this conclusion is determinative of the Third Broadway Cross-claim and the Fourth Broadway Cross-claim. 9. Nevertheless, in the event that I be wrong in this conclusion, I now turn to address the various other issues under the Second Broadway Cross-claim, and then the Third Broadway Cross-claim and the Fourth Broadway Cross-claim. Breach of special condition 43.3 1. As noted, Plaza's alternative case on its interest claim is based on a breach by Investments of special condition 43.3 of the contract of sale (see Second Broadway Cross-claim at [15]), which provides that "the vendor and purchaser must take all reasonable steps to enter into the loan agreement as soon as possible". 2. As noted above, Mr Deiri's evidence is that at the same time as the contracts for sale were exchanged he signed a counterpart of the loan agreement and gave it to Jamil (see Mr Deiri's affidavit sworn on 22 August 2019 at [74]); while Moustafa's evidence is that he does not remember this (but it appears that he does not deny it – see, for example, Moustafa's affidavit sworn on 16 September 2019 at [48]) and he accepts that Jamil brought to him the contract for sale which he (Moustafa) then signed (see Moustafa's affidavit sworn on 31 May 2019 at [111]-[115]). 3. It is convenient to consider first the submissions for the Deiri Parties' and HWLE. Deiri Parties' and HWLE's submissions 1. Both Investments and HWLE argue that the obligation to take reasonable steps to enter into the loan agreement applied equally to Plaza (i.e., it is said that the obligation on Investments was concurrent and mutually dependent on the obligation of Plaza doing the same). It is said that Investments cannot have breached that clause where Plaza did not do so and that, in circumstances where only Investments has complied with the obligation under special condition 43.3, it is Plaza which is in breach and that it cannot recover damages from Investments in those circumstances. 2. Similarly, HWLE says that, when considering the reasonableness of the steps taken by Investments to enter into the loan agreement, regard must be had to the fact that Plaza was also obliged to take reasonable steps. It is said that Investments was entitled to assume that Plaza would comply with that obligation, including by executing its own counterpart of the loan agreement and exchanging it with Plaza (or, at the very least, by pressing Investments for an executed counterpart if Plaza did not in fact receive one). 3. It is said that, by signing the loan agreement and giving it to Moustafa (or even to Jamil), Investments placed entry into the loan agreement entirely within the power of Plaza; and that, thereafter, any failure to enter into the loan agreement was the responsibility of Plaza, not Investments. HWLE contends that Investments took "all reasonable steps" and thus that Investments did not breach the special condition. 4. In any event, it is noted that, since Plaza alleges the breach, it bears the burden of proving that it suffered loss which was caused by that breach; and it is said that Plaza has not adduced any evidence to prove that it suffered loss. In particular, HWLE says that, under the special condition, Investments was only obliged to take all reasonable steps – it was not obliged to procure entry into the loan agreement by Plaza. It is noted that, on the facts (and, see my earlier disposition to this effect), Plaza did not execute and exchange a counterpart of the loan agreement, even though a copy of the document was executed by Mr Deiri and was placed in Jamil's hands. It is said that there is no evidence from which it can be concluded that, had Investments done something more, Plaza would have done anything different. 5. In this regard, HWLE points to Moustafa's evidence that he always thought there would be a deferred payment of the purchase price (see Moustafa's affidavit sworn on 31 May 2019 at [99], [113]-[114]); and that no one ever mentioned vendor finance to him (see Moustafa's affidavit sworn on 16 September 2019 at [47]). HWLE says that Moustafa never had any reason to sign and exchange a counterpart of the loan agreement, no matter what Investments did. 6. In reply to Plaza's submissions, insofar as Plaza maintains the alternative argument (that Investments breached special condition 43.3 by not entering into the loan agreement), HWLE says that special condition 43.3 did not oblige Investments to enter into the loan agreement but, rather, to "take all reasonable steps" and it is said that the difference in the obligation explains why there was no breach and no causation of loss. 7. Further, and in any event, Investments says that special condition 43.2 provides that completion is subject to, and conditional upon, the vendor and purchaser entering into the loan agreement on or before the sunset date (as will be recalled, 30 June 2012 – see at [216] above). In circumstances where completion occurred without the parties entering into the loan agreement, it is said that any requirement to enter into the loan agreement was plainly waived. 8. Finally, it is said that any rights that Plaza had to sue upon the contract for the alleged breach by Investments were lost by reason of the doctrine of merger (it being noted that provisions in a contract for the sale of land merge on completion). 9. In summary, as to Plaza's alternative argument that Investments breached special condition 43 by failing to enter into the loan agreement, HWLE submits this alternative argument must fail for want of breach and causation of loss. Further, it is said that the facts do not warrant a finding that any draw down or advance occurred under the loan agreement (even if it there was entry into that agreement). Sayour Parties' submissions 1. In summary, it is said for the Sayour Parties that HWLE's case that there was breach and acquiescence in non-payment of the price (about which it is said there is no evidence and Moustafa was not cross-examined), cannot relieve Investments of liability for the alternative case for damages for breach of the special condition 43.3 promise to enter into the loan agreement. It is said that that breach sounds in the expectation measure to place the vendor in the position in which it would have stood had the loan agreement been entered into if, contrary to the primary case of Plaza, there were to be a finding that it was not binding. Determination re breach of special condition 43.3 1. On the alternative way in which the claim is put, I consider that no breach of special condition 43.3 of the contract of sale has been established. In short, Investments signed the loan agreement and provided it to Jamil. Moustafa signed the contract for sale and must be taken to have been aware that it made provision for the loan agreement to be entered into (and must have been aware that, on his own evidence, he had not signed a separate contract to that effect). At that point, it was wholly within Plaza's hands to execute and press for exchange of the loan agreement. It did not do so. It cannot complain of a failure on the part of Investments to take reasonable steps for entry into the loan agreement when Investments did what was required of it by signing the loan agreement and delivering it to Jamil. Moreover, insofar as this was a condition to completion of the contract of sale, compliance with that condition was clearly waived when the purchase was completed. Accordingly, this alternative claim for damages for breach of special condition 43.3 fails. 2. I add that, if I am wrong, then I see that Plaza still faces problems in proving that it has suffered any loss, and the quantum of any such loss, from the breach. In particular, I note the paucity of evidence in this regard. Furthermore, in this connection, I note that, if the obligation was only to take reasonable steps, then there is then an issue as to what would have occurred but for the breach (for example, I have in mind, albeit in a different context, the observations in Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26, and particularly those of Nettle J (Crown Melbourne v Cosmopolitan Hotel)). No request for funds made and none advanced 1. As charted above, it is next submitted by Investments and HWLE that, even if the loan agreement was entered into and was binding, there was no loan made under that agreement. In particular, they note that, under the terms of the loan agreement, Plaza promised to provide $5.6 million to Investments on the terms and conditions of the loan agreement (see cl 2.1(a)), one of which was that Plaza was obliged to do so "within 5 Business Days of the Borrower's [i.e., Investments'] Request" (see cl 2.1(b)). It is noted that the request was to be in writing and was to conform to the formal requirements specified in cl 7.1. HWLE says that the obligation to provide money only in response to a formal request was reinforced by limiting the obligation to pay interest to the "Principal Outstanding" (see cl 3.2), that term being defined by reference to "Advances" which were drawings on the loan (see cl 1.1). 2. Of course, this issue only arises if it were to have been found that the loan agreement was entered into and was binding. I have rejected that claim and so this issue does not now arise. Nevertheless, as I have said, I will now proceed to consider the position, in the event that I am wrong on the above. 3. Again, it is convenient first to consider briefly the submissions for the Deiri Parties and HWLE. Deiri Parties' and HWLE's submissions 1. HWLE notes that Plaza does not plead that a request was ever made, nor that there was a drawing or "Advance" made in answer to a request. It is submitted that the allegation in the Second Broadway Cross-claim that two steps occurred (first, a loan from Plaza to Investments; and, second, a payment of the purchase price by Investments to Plaza) is "artificial". It is said that Investments never made a request for funds under the loan agreement. 2. It is thus contended that there is no evidence from which it can be concluded that a loan was made, even if it is found that there was entry into the loan agreement; and that the balance of the purchase price simply remained unpaid on completion. 3. Insofar as the Sayour Parties have submitted that the essential request for a drawdown under cl 2 was implied, HWLE says that this argument proceeds from the (incorrect) proposition that the loan agreement did not require the request for a drawdown to be in writing (referring to the inclusion of the word "request" in cl 7.1). Sayour Parties' submissions 1. The position of the Sayour Parties in response to this issue is broadly as set out in response to the first two issues considered above. It is unnecessary here to record anything further. Determination re no request for funds made and none advanced 1. The context in which the purported loan agreement was to be entered into was that it had been agreed that the purchase would be structured to include the provision of vendor finance. It seems apparent that it was not contemplated that there would be a transfer of funds as such to complete the purchase. Accordingly, I do not accept that the submission made by Plaza as to the two-step process for the loan was "artificial". 2. However, in the absence of compliance with the steps required under the loan agreement for the provision of funds, I have difficulty concluding that the parties approached the matter on the basis that there was any advance provided. Rather, it seems to me that they treated the vendor loan finance as notional (i.e., as a deferral of the obligation to pay the final balance of the settlement sum) and, certainly, neither Investments nor Plaza triggered the operation of the loan agreement (even assuming, contrary to my findings above, that the loan agreement was entered into and binding on Investments). 3. Accordingly, if it arose, this aspect of the claim would also fail. Proper construction of interest rate provision (the 9% per month issue) 1. Assuming (again, contrary to the findings that I have made above) that the loan agreement was in force and binding and that there was an advance on which the obligation to pay interest arose, both Investments and HWLE argue that, on the proper construction of cl 1.1 of the loan agreement, it should be held that the agreed interest rate was 9% payable per month (i.e., 9% per annum payable on monthly rests) or 9% per annum – not 9% per month. 2. It is convenient here to excerpt various clauses of the putative loan agreement. 3. Clause 3.2(a) provided for the payment of interest in, as follows: If the Loan is not repaid by the Repayment Date, the Borrower must pay interest on the Principal Outstanding at the Interest Rate. 1. Clause 3.2(c) provided that accrued interest on the "Principal Outstanding" is payable by the borrower on each "Interest Payment Date". Relevantly, the "Repayment Date" was defined in cl 1.1 to mean 30 June 2012. 2. Finally, cl 1.1 contains the following definition of the term "Interest Rate": "Interest Rate means 9% per month". 3. Again, I will consider first the submissions for the Deiri Parties and HWLE. Deiri Parties' and HWLE's submissions 1. HWLE points out that, even if unpaid interest does not compound monthly, on a literal reading of the definition the effective annual interest rate is 108%. 2. Indeed, I note that the magnitude of that rate is readily illustrated by the claims in the Second Broadway Cross-claim, where Plaza contends (see at [43]-[46]) that: the loan of $5.6 million accrued interest of $3.528 million in the first seven months, with the result that a repayment in late 2012 of $3.25 million was wholly consumed by interest arrears and completely ineffective to reduce the loan balance; the loan of $5.6 million has accrued interest of $29.232 million in a period of less than five years; and interest on the loan continues to accrue at $504,000 per month. 3. Mr Deiri (I observe, not surprisingly) gave evidence that an interest rate of 9% per month on a loan of $5.6 million to fund the acquisition of a 50% share in a parcel of land for development would be "commercial suicide". It is said that no businessperson in "his or her right mind" would agree to such a rate of interest, and that there would have been lenders willing to fund the purchase at far lower rates. 4. Furthermore, Investments says that the construction for which it and HWLE contend is consistent with cl 1.1, which (as outlined above) defined "Interest Payment Date" to mean, in effect, each period of one month, commencing one month after the "Repayment Date" and ending on the last day of that period, and each subsequent period, but ceasing on the "Termination Date" or earlier date of full repayment. It is noted that interest was to be payable monthly after the "Repayment Date". 5. I interpolate to note here that this is, of course, the subject of the rectification claim made in the Third Broadway Cross-claim (see below). 6. However, as HWLE notes, before any question of rectification arises, an anterior question of construction must be addressed (see, for example, Westpac Banking Corporation v Tanzone at [16]-[17]; Saxby Soft Drinks v George Saxby Beverages Pty Ltd (2009) 14 BPR 27,213; [2009] NSWSC 1486 (Saxby Soft Drinks Pty Ltd v George Saxby Beverages) at [10]-[11] per Brereton J, as his Honour then was). 7. Following from the above, reference is made to the relevant principles which govern the exercise of the construction of commercial contracts, namely that: the correct approach to construction is to consider the text, context and purpose of the contract (see Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [46] per French CJ, Nettle and Gordon JJ; [2015] HCA 37 (Mount Bruce Mining v Wright Prospecting)); in determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean (see Mount Bruce Mining v Wright Prospecting at [47]); consideration is to be given to the provisions of the contract read as a whole (see Australian Broadcasting Commission v Australasian Performing Right Association Ltd Association (1973) 129 CLR 99 at 109; [1973] HCA 36 per Gibbs J, as his Honour then was (ABC v APRA); Australian Guarantee Corporation Ltd v Balding (1930) 43 CLR 140 at 151; [1930] HCA 10 per Isaacs J, as his Honour then was (AGC v Balding)). 8. It is noted that the words of every clause must, if possible, be construed so as to render them all harmonious one with another (see ABC v APRA at 109) and to give rise to internal coherence (see Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522; [2005] HCA 17 at [16] per Gleeson CJ, McHugh, Gummow and Kirby JJ (Wilkie v Gordian Runoff)). It is further noted that regard must be had to the object of the contract (see McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 at 589 per Gleeson CJ and 601 per Kirby J; [2000] HCA 65 (McCann v Switzerland Insurance Australia); Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 (Toll v Alphapharm)); and that a commercial contract should be construed so as to avoid it making commercial nonsense or working commercial inconvenience (see Mount Bruce Mining v Wright Prospecting at [51]). 9. Following this, HWLE submits that, of particular relevance to the present case, is the principle that, when construing a contract, words may generally be supplied, omitted or corrected when it is clearly necessary in order to avoid absurdity or inconsistency (see Fitzgerald v Masters at 426-427 per Dixon CJ and Fullagar J); and that another formulation of the circumstances in which the Court may construe words contrary to their natural meaning is where it is clear that something has gone wrong with the language and that it is clear what a reasonable person would have understood the parties to have meant (see Chartbrook v Persimmon Homes at [25] per Lord Hoffman; Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181; [2001] HCA 70 at [43] per Gleeson CJ, Gummow and Hayne JJ). 10. Furthermore, reference is also made to what was said by Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at 913, namely that: The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax. […] The "rule" that words should be given their "natural and ordinary meaning" reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. 1. Both HWLE and Investments contend that, objectively viewed, the parties intended "Interest Rate" to mean 9% per annum and that the use of the words "per month" is an obvious mistake. 2. I note that HWLE accepts that mere unreasonableness is not sufficient to attract the operation of this principle; however, HWLE submits that there can be a "fine line" between unreasonableness and absurdity (referring to the different views taken by the various judges in Westpac Banking Corporation v Tanzone and Chartbrook v Persimmon Homes). It is noted that the principle is not limited to cases of ambiguity (referring to Westpac Banking Corporation v Tanzone at [21]). 3. HWLE further contends that the context in which the definition of "Interest Rate" is to be construed includes the terms of the contract for sale to which the loan agreement was an annexure and that the two documents must be read together (see Mount Bruce Mining v Wright Prospecting at [461]). In particular, HWLE says that relevant context in this case includes the following: that the sale price for the land was $6 million; that the deposit was $400,000, which left an outstanding purchase price of $5.6 million; that the loan amount under the loan agreement was $5.6 million (as to which, see the definition of "Loan" in cl 1.1 of the loan agreement); that Investments had to repay the loan by 30 June 2012 (again, see cl 4.1) (in that regard, it is said that, although there is some difficulty in the definition of "Termination Date", it must mean 30 June 2012 unless the parties otherwise agree – again, see cl 1.1). It is also noted that if there was a delay in repayment of the loan beyond 30 June 2012, Investments had to pay an additional sum which was described in the loan agreement using the word "interest" (see cl 3.2(a)) and that, in those circumstances, Investments had to pay the interest at the "Interest Rate" applied to the "Principal Outstanding" and accrued on a monthly basis (see cl 3.2). 4. It is further said that the context also includes that, as interest was payable on the "Principal Outstanding", interest would continue to accrue until that sum had been repaid; and that (by cl 8.8) the parties provided for the possibility that the loan was still not be repaid by 31 September 2012 (in that eventuality Plaza was given the option of terminating the "whole agreement", including the loan), which HWLE says suggests that continuation of the loan at the "Interest Rate" may or may not have been in Plaza's ongoing commercial interests. 5. It is further noted that a loan in accordance with the loan agreement (including the "Interest Rate") was expected to be of benefit to Investments (see cl 43.4 of the contract for sale); and that, by cl 33 of the contract for sale, the agreed interest rate payable by Investments, if it was responsible for a delay in completion, was 8% per annum. In that connection, it is noted that in cl 33, the interest rate for delay in completion was specified as a rate "per annum", not a rate "per month". 6. Accordingly, HWLE submits that, from the loan agreement read as a whole, it is clear that the commercial purpose of Investments' promise to pay interest was to compensate Plaza for a delay in receipt of the repayment of the loan beyond 30 June 2012. In addition to the preceding, it is said that that commercial purpose is apparent from the conventional use of the words "loan", "interest" and "rate". 7. It is also noted that, pre-settlement, if Investments caused a delay in completion of the sale then Investments promised to compensate Plaza for the delay in receipt of the purchase price at the rate of 8% per annum (again, see cl 33). It is said that the specification of 8% per annum demonstrates an objective intention of the parties that 8% per annum as an appropriate rate of compensation for delayed payment. 8. After settlement, as already noted, the literal definition of "Interest Rate" meant that the rate at which Investments had to compensate Plaza for a delay in payment of the purchase price changed to 108% per annum. It is said that, objectively viewed, a change in rate of that magnitude resulted in more than a quantitative difference; it produced a qualitative change to the obligation to pay "interest". It is noted that such an interest rate did not, or would not, be in contemplation of compensation based on the time value of money, but that it made the obligation to pay interest a punitive obligation which was in terrorem in nature. Thus, HWLE submits that the literal construction of "Interest Rate" does not serve the purpose of the loan agreement. 9. HWLE further contends that there is no commercial reason why the parties would have intended there to be such a disparity in the rate of compensation for delay to be paid pre-settlement and post-settlement; and that there is no commercial reason why the parties would have intended that the obligation to pay interest under the loan agreement to have a penal quality. It is submitted that the parties may be assumed to have had the commercial purpose of the obligation to pay interest to be enforceable and not at risk of being held void as a penalty (as to which, see below). 10. For these reasons, it is submitted that the definition of "Interest Rate" in cl 1.1 of the loan agreement should be construed as meaning 9% per annum. In addition to the preceding, it is said that such a construction also avoids a construction which makes "commercial nonsense" (either by making Investments liable to pay a rate of interest far in excess of compensation for the time value of money, or making Plaza unable to enforce any interest obligation at all because it is void as a penalty). 11. I note that HWLE accepts that the construction for which it contends requires the word "month" to be read other than in accordance with its usual meaning, but says that this is a case where it is clear that something has "gone wrong" with the language of the document. Similarly, I note that Investments submits that, when construing the document to derive the ascertain intention of the parties, the omission of the word "payable" would be seen as an apparent slip, in circumstances where the objective intention is nonetheless apparent. 12. Insofar as Plaza submits that "the terms as to interest under the loan agreement are clearly stated" and that "there is no ambiguity which would require construction or interpretation of them", the Deiri Parties say that this submission adopts an incorrect approach to the process of contractual construction. It is said that the proposition that there is no ambiguity requiring interpretation begs the question of what the words actually mean (referring to Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633 at 653-654 per Leeming JA, with whom Emmett JA and I agreed). Furthermore, it is submitted that the context of the words also includes the purpose of the transaction identified from the terms of the contract itself. The Deiri Parties say that the context of the interest rate term is evident on the face of the loan agreement: it was intended to apply to moneys owed under a loan for the balance of the purchase price under the contract for sale, of $5.6 million. It is submitted that it is clear from that context that the parties could not have intended the rate to be 9% per month. 13. Insofar as Plaza submits that the fact a monthly period was contained in a firm precedent used by HWLE supports the fact that the rate was not commercial nonsense, the Deiri Parties say that conclusion does not follow. Specifically, it is said that there is no evidence as to the circumstances in which the relevant precedent was typically used. The Deiri Parties say that the fact that the precedent specified a monthly rate per se does not demonstrate how common it is for similar parties to use a rate of 9% per month for a loan of this value and in these circumstances. 14. Insofar as reference is made by Plaza to Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47, it is said that the considerations applicable in that case, involving the construction of performance bonds, where weight was given to the principle of strict compliance (requiring strict adherence to the terms of the instrument in order for the issuing institution to be obliged to perform – see, particularly, French CJ at [10]) do not here apply (and see also to the comments of Gageler, Nettle and Gordon JJ at [97]-[100]). Sayour Parties' submissions 1. As to the claim for interest, it is noted that the contract for sale is a written document drafted by lawyers retained by Mr Deiri and Investments; and that it contained detailed special conditions and, annexed to it, a loan agreement. It is also noted that it was presented to Moustafa for execution (something on which the Sayour Parties place weight, as telling against Investment's "assertion of Jamil's plenary authority"). The Sayour Parties say that Moustafa was unaware that by this stage that Jamil had been in receipt of at least two undisclosed payments (one of $400,000 – as to which, see at [149] in the above chronology – and the first of his monthly $10,000 payments– as to which, see at [162] in the above chronology). 2. The Sayour Parties maintain that the terms as to interest under the loan agreement are clearly stated; and they say that there is no ambiguity which would require construction or interpretation of the term. It is noted that the rights and liabilities of the parties are to be determined objectively having regard to the text, contact and purpose of the document (see Mount Bruce Mining v Wright Prospecting at [46]) so as to avoid making commercial nonsense or working commercial inconvenience (see Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35]). 3. The Sayour Parties submit that there is "no doubt" that the loan agreement means 9% per month and that this rate fits comfortably with the machinery provisions in which it is set. 4. Indeed, the Sayour Parties maintain that Investments' construction arguments must fail, for the following reasons: that the term is clear and capable of compliance; that it is not a commercial nonsense (noting again, in this regard, that the monthly interest period was contained in a "firm precedent" developed and used by HWLE); that Plaza and Investments had intended that the loan was to be repaid by 30 June 2012 (by which stage no interest would be payable) and interest was only to run thereafter as a short term loan (it being submitted that a high rate is a clear incentive for prompt payment of a short term loan); and that the commercial basis of the bargain was that the land was to be introduced into the partnership after purchase (so, it is submitted, that it would be commercially unfair and unreasonable for Investments in effect to have the benefit of introducing land for which it had not paid). 5. Finally, it is noted that, "as if to underscore the short-term nature of the financial accommodation Plaza made to Investments under the loan agreement", Plaza negotiated the inclusion of cl 8.8 into the loan agreement under which Plaza was given the right to avoid the sale and have the half share transferred back to it if payment in full had not been made by "31" September 2012. 6. The Sayour Parties also note that in closing submissions (see, for example, at T 1575.41-1578.28), the Deiri Parties put the issue of construction as being that the loan agreement should be read as meaning "9% per annum payable per month" (in other words, as I understand it, the argument was that the interest rate was 9% per annum and that interest payments were to be made on a monthly basis). Following, the Sayour Parties say that the concession that it had to be put as "per annum" was significant. Specifically, they say that the argument involves supplying words that are not there, to alter the meaning and effect of words that are there. They say that is not a case of falsa demonstration and that one cannot see from the text itself that it is an obvious slip or error of the kind that would be corrected even at law. Determination re proper construction of interest rate provision (the 9% per month issue) 1. Again, I note that, in light of my preceding dispositions, this issue does not here arise; however, in the event that I am wrong, I record that I find as follows. 2. I accept that an interest rate of 9% per month, as the loan agreement seems on its face to have provided, appears on any view of things to be an uncommercial rate, even taking into account the anticipated short term nature of the loan, the purported commercial interest in incentivising prompt repayment and the evidence that suggested it was unlikely that it would ever be applied. 3. As to the last of those matters, that is not least, one might think, because of Moustafa's evidence that for religious reasons he was not interested in the issue of interest. I must observe that this is, at the very least, surprising evidence when his company is here seeking over $30 million in interest. 4. However, as appealing as the argument for construction of the definition by reference to common sense might be – and, as much as I see the commercial attraction of a construction that it means 9% per annum payable on monthly rests – I do not consider that it would be open to me under the guise of contractual construction simply to re-write the definition of "Interest Rate" as expressly provided for in the document. 5. In this regard, and while readily accepting that there is indeed a fine line between unreasonableness and absurdity (again, see Westpac Banking Corporation v Tanzone and Chartbrook v Persimmon Homes), I must have in mind that unreasonableness (as, I think, would here clearly be the case) is not sufficient (cf, for example, Fitzgerald v Masters at 426-427 per Dixon CJ and Fullagar J). 6. Furthermore, I do not see that the text, context and purpose of the contract (again, see Mount Bruce Mining v Wright Prospecting at [46] per French CJ, Nettle and Gordon JJ; and also ABC v APRA at 109 per Gibbs J and AGC v Balding at 151 per Isaacs J) here changes things. 7. Indeed, it is quite possible to read the impugned clause as providing for the monthly rate without doing violence to, or otherwise causing disharmony with, the other provisions of the purported contract (again, I have here in in mind, ABC v APRA at 109 and other such authorities); and, furthermore, to do so is not productive of internal incoherence in the relevant sense (cf Wilkie v Gordian Runoff) at [16] per Gleeson CJ, McHugh, Gummow and Kirby JJ). 8. Similarly, nor do I see that reaching for notions of reasonableness and the reasonable businessperson (again, see Mount Bruce Mining v Wright Prospecting at [47]) here establishes the requisite degree of absurdity or patent mistake so as to engage those rules here called in aid of the construction urged by the Deiri Parties and HWLE. The mistake here contended for is, for these reasons, not obvious in the relevant or requisite sense (indeed, for the preceding reasons, there are good arguments that there is no mistake at all). 9. Accordingly, had I found it to be binding, I would have concluded that, as uncommercial as it would seem to be (and notwithstanding the ostensible force of the arguments that it was an apparent slip or obvious mistake), the interest rate there specified was 9% per month. Interest provision void as a penalty 1. That then brings me to the further alternative contended for by the Deiri Parties (and supported by HWLE), namely that the requirement to pay an interest rate of 9% per month if the loan were not repaid by the "Repayment Date" is extravagant and unconscionable, and void as a penalty (reference being made to the much debated authorities on penalties over recent years, including Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205; [2012] HCA 30 (Andrews v ANZ) and Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525; [2016] HCA 28 (Paciocco High Court)). 2. I consider this issue in the context of the Third Broadway Cross-claim (see below). It is sufficient to record at this juncture that I consider that such an interest rate provision, assuming the loan agreement were otherwise binding, would be void as a penalty. 3. Again, it is unnecessary to here to say anything further in relation to this aspect of the Second Broadway Cross-claim, and I now turn to the issue of rectification. Rectification 1. In the event that it were to be found that the loan agreement was binding, that the interest rate was properly construed as 9% per month, and that the interest rate was not found to be a penalty, then the Deiri Parties say that the parties were labouring under a common mistake when the loan agreement was formed, and that it should be rectified so that "9% per month" is changed to "9% per annum". 2. Pausing here, the Sayour Parties note that the rectification defence arises in the Third Broadway Cross-claim (as to which, see below). In brief compass, the Sayour Parties say that the partnership based defence is misconceived because this transaction was antecedent to the relation of partnership; and it is submitted that the unconscionable conduct defence has no foundation (and adds nothing to the rectification defence). 3. Again, I consider the rectification issue in the context of the Third Broadway Cross-claim (in particular, see below). It is sufficient here to say that, had this alternative rectification claim here arisen (i.e., in the event that I had found that there was a binding loan agreement, that it provided for an interest rate of 9% per month, and that it was not a penalty), I would have concluded that the claim for rectification was made good. 4. I now turn to the issue vis-à-vis the alleged estoppel. Estoppel 1. Further, or in the alternative, the Deiri Parties say that Plaza held out and represented to Investments and induced it to assume and expect that: if any interest were to be payable by Investments, it would be at the rate of 9% per annum; no interest was in fact being charged; upon payment by Investments to Plaza of $8 million, no further amounts would be or were payable by Investments under or in connection with the contract for sale (or the loan agreement, in the alternative that it was binding). 2. As can be seen, therefore, the estoppel claim perhaps embraces various, or a multiplicity, of assumptions. It is convenient to consider the Deiri Parties' submissions, in this regard. Deiri Parties' submissions 1. In support of the estoppel claim(s), reliance is placed on the following: Mr Deiri's evidence that, in September 2013, upon the final payment to Plaza in connection with the Broadway Site (as to which, see at [413] above), Jamil on behalf of Plaza acknowledged that no further moneys were owing(as to which, see at [414] above). It is said that, at all times while the Broadway Partnership was on foot, Plaza provided accounts to Investments for the purposes of the partnership accounting, and Plaza made no suggestion that those accounts showed any entitlement to interest from Investments. It is noted that Plaza made no complaint about any amounts said to be owed in relation to the sale of land, or any interest accruing on amounts owed, until the filing of its Second Broadway Cross-claim on 22 December 2017. 2. The Deiri Parties say that Mr Deiri relied upon these representations. They maintain that so much is evident from the letter he provided to Jamil on 25 September 2013 stating that, "there are no other moneys owing or outstanding in regards to the purchase of the property". It is submitted that it would be unconscionable for Plaza now to depart from the assumption created; and that Plaza is therefore estopped from denying the assumption induced that there were moneys owing and from asserting that interest was accruing on the purchase price. Sayour Parties' submissions 1. As to Investments' estoppel defence, the Sayour Parties say that this must fail. The Sayour Parties say that the alleged representation(s) was not made; that there is no evidence of the alleged reliance and detriment; and that this is no more than a case of an unpaid debt, sued for within the limitation period. They say that Investments did not rely on any representation; and that it did not frankly disclose its dealings with Jamil, which would have inevitably brought the issue to a head (rather, it kept quiet and relied on Jamil "to keep his father in line"). 2. More particularly, the Sayour Parties submit that, insofar as the estoppel representation relates to a conversation on or about 23 November 2011, Mr Deiri again here chose not to communicate with Moustafa. It is also said that Jamil was not authorised to sign the letter that Mr Deiri wrote. The Sayour Parties point to Jamil's statement in correspondence with Mr Deiri to the effect that he was in the habit of signing whatever he was asked (as to which, see, for example, the November 2011 emails). It is said that Mr Deiri was too sophisticated to think that he could reasonably rely on that behaviour. 3. Insofar as reference is made to accounts provided by Plaza at those times while the partnership was ongoing, the Sayour Parties say that there is no evidence of any step taken relevant to the present claim as a result of reliance on those documents. 4. The Sayour Parties say that Mr Deiri's "self-serving letter" of 25 September 2013 (as to which, see at [414] above), if he was serious about it, would have been provided to Moustafa, and Mr Deiri would have laid out squarely to Moustafa everything that had happened, where all the money had gone and how he had been making payments to Jamil. They say that this letter was also long after the event; that Mr Deiri clearly knew he had not paid interest; that Mr Deiri clearly knew that the loan agreement provided for interest; and that he could not possibly have thought that interest was not payable. It is said that Mr Deiri evidently knew that it would not be in Plaza's interest to forgive it. Furthermore, complaint is made that Mr Deiri once again chose not to approach Moustafa. It is said that he did not fairly raise the question of interest; it is noted that he did not ask for a proper release; and that he did not recommend either Jamil or Moustafa to consult a lawyer. Rather, it is said that Mr Deiri, "dealt informally with his creature Jamil, behind Moustafa's back". 5. The Sayour Parties invoke the equitable maxim that he who seeks equity, must do equity; and they say that Investments has no equity. Determination re estoppel 1. In light of my preceding determinations, it is unnecessary here to dispose of the estoppel claim. However, again, it is appropriate that I here record my observations, in the event that I am wrong on the preceding. 2. Initially, I have some concern as to whether the impugned representation(s) were made with a sufficient degree of certainty (see particularly Crown Melbourne v Cosmopolitan). This is, to my mind, demonstrated by the ambulatory – and, perhaps imprecise – nature of the alleged representation(s) and, through that, the alleged assumption(s). 3. Furthermore, I see some difficulty in finding the requisite detrimental reliance having regard to what I think is a paucity of evidence going to that issue. That paucity aside, I also see force to the submission for the Sayour Parties that much of that evidence is potentially self-serving and, certainly, it is somewhat difficult to accept the Deiri Parties' claims when most, if not all, of the relevant communications passed only between Mr Deiri and Jamil (and, indeed, I see force to the proposition that Mr Deiri did not frankly disclose to Moustafa his dealings with Jamil, which might have, though I would add that this is speculation, brought the issue to the fore, so to speak). 4. For these reasons, I would have rejected the estoppel defence(s). Unconscionable conduct 1. Finally, also in the alternative, it is said by Investments that Plaza knew or ought to have been aware that Investments was proceeding on the basis of the assumptions set out above, yet it never informed Investments that those assumptions were incorrect and that Investments in fact continued to owe money to Plaza in connection with the sale of the Broadway Site; and that Plaza failed to communicate that interest would continue to accrue at a rate of 9% per month. It is said that this conduct took place in trade or commerce, because it was in connection with the sale of land for the purposes of commercial development. Deiri Parties' submissions 1. The Deiri Parties say that, by engaging in this conduct, and bringing the Broadway Second Cross-claim in the circumstances of the assumptions which it never corrected, Plaza has contravened the prohibition on unconscionable conduct in s 21 of the Australian Consumer Law. 2. Section 21 provides that a person must not, in trade or commerce, in connection with the supply or acquisition of goods or services engage in conduct that is, in all the circumstances, unconscionable. Relevantly, "services" is defined in s 2 of the Australian Consumer Law to include: … any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce 1. In this case, the Deiri Parties say that the conduct in question was in connection with the supply of services, in that it was conduct in connection with rights and interests in real property, and the loaning of funds in relation to the acquisition of that interest. They say that Plaza's conduct contravened the statutory standard concerning unconscionable behaviour, referring to the observations of Allsop CJ in Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50 (Paciocco Full Court Federal Court) (see at [296]). 2. It is said that, to allow Investments to labour under the belief that it had satisfied its payments obligations and that no interest was being charged, only to insist five years later that the amounts were not paid and interest was accruing all along with an interest liability of over $30 million is unconscionable conduct within the meaning of s 21. It is said to be "conduct that is so far outside societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience" (quoting Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1; [2019] HCA 18 at [92] per Gageler J (ASIC v Kobelt)). Sayour Parties' submissions 1. The Sayour Parties say that Investments' breach of fiduciary duty defence does not arise because the contract for sale of land was not entered into within the scope of any fiduciary relationship; rather, it is said, it was outside the scope of the partnership. The Sayour Parties say that this was preparatory to, and a condition for the commencement of, the Broadway Partnership. 2. As to the unconscionable conduct defence, the Sayour Parties note that the solicitor who prepared the documentation including the loan agreement, Ms Gray, gives evidence to the effect that she prepared that agreement from a "firm precedent" and that the precedent document referred to a rate per month (see Ms Gray's affidavit sworn on 9 October 2019 at [10]-[12]). They draw from this that it cannot be said that the inclusion of interest chargeable on a per month basis was not a standard practice by a reputable law firm; nor can it be said that the charging of such interest on a monthly basis was a commercial nonsense, or that such a clause was usurious and unconscionable. 3. The Sayour Parties say that the arrangement between it and Investments for delayed payment of the purchase price was a matter of short-term finance and notes that, on Mr Deiri's evidence, Investments had told Jamil that it would be unable to pay the purchase price until the second half of 2012. It is said that Moustafa's evidence is broadly consistent with Mr Deiri's evidence, in that he understood Investments expected to be in funds and able to pay the money by June 2012. It is noted that both Mr Deiri and Moustafa refer to the completion of a project concerning CP Redfern as being determinative of this timing (i.e., that funds would be available to Investments from CP Redfern in mid-2012). 4. The Sayour Parties point to the inclusion of cl 8.8 into the loan agreement (which gave Plaza the right to avoid the sale and have the half share transferred back to it if payment in full had not been made by "31 [sic] September 2012") as underscoring the short-term nature of the financial accommodation that Plaza extended to Investments under the loan agreement. It is submitted that Investments clearly wanted to participate in the transaction and wanted to "reassure" Plaza in circumstances where it obviously was concerned to be protected. 5. The Sayour Parties also note that (in submissions for HWLE) Commerce Consolidated Pty Ltd v Johnstone [1976] VR 724 (Commerce Consolidated) was cited as authority for the proposition that rectification will prevent unconscionable reliance on an agreement. They say that a key factual distinction between Commerce Consolidated and the present case is the absence of any evidence of an anterior agreement or consensus on which rectification might be founded. It is submitted that no principled basis for an assertion of unconscionable conduct is identified or established. It is said that the interest term was inserted merely by lawyers on behalf of Mr Deiri and Investments, presented to Plaza and accepted without question. 6. Insofar as the Deiri Parties make a submission in support of a claim for the statutory remedy for relief against statutorily defined unconscionable conduct in trade and commerce, the Sayour Parties say that there is nothing of "sharp practice" here involved on the part of Plaza. More particularly, they say that: Mr Deiri negotiated for a short-term loan; he had the benefit of Plaza's land to use for mortgage finance in the meantime without paying the price for it; he "took his own time to pay"; and he bribed Jamil and paid away the price without proper directions to suit Jamil. It is said that Mr Deiri is in no position to assert unconscionable conduct by someone to whom he chose not to make a clean breast of things. It is said that cl 8.8 clearly envisaged that the loan was always intended to be short term and that "Mr Deiri is simply hoist on his own petard". Determination re unconscionable conduct 1. Again, in light of my preceding determinations, it is strictly unnecessary to determine the claim for unconscionable conduct. However, if it were necessary so to determine it, I would have determined that the Deiri Parties' claim must fail. 2. As an initial matter, the forensic and other such difficulties inherent in the estoppel claim (as to which, see above) are also inherent in the unconscionable conduct claim. 3. Furthermore, I see substantial difficulties in finding that Mr Deiri and the relevant Deiri Parties were suffering under a requisite special disadvantage such as to render him, and them, incapable of judging what was in their own best interests (see particularly ASIC v Kobelt at [63]-[74] per Kiefel CJ and Bell J). Likewise, I see substantial difficulty in finding that Moustafa and the relevant Sayour Parties took unconscionable advantage of any such disadvantage (see particularly ASIC v Kobelt at [75] per Kiefel CJ and Bell J and at [115] per Keane J; see also, for example, Kakavas v Crown Melbourne (2013) 250 CLR 392; [2013] HCA 25). In this regard, and while unnecessary here to adumbrate them, I note the specific indicia identified by Gageler J in ASIC v Kobelt (see particularly at [98]-[110]). 4. In amplification of these difficulties, I note the emphasis placed by Gageler J in ASIC v Kobelt (see at [91]-[92]) on the need to identify conduct that falls outside of ordinary norms of societal conduct; and, again, I do not see that any of the impugned conduct here would meet that standard of behaviour. Loan has been repaid 1. This issue has been dealt with in the context of the factual findings sought by Broadway. 2. I now turn to the Third Broadway Cross-claim. Third Broadway Cross-claim 1. This, then, brings me to the Third Broadway Cross-claim. 2. As noted, Investments maintains, in the alternative (that is, on the basis that the loan agreement attached to the contract for the sale of the Broadway Site is binding, the interest rate is properly construed as 9% per month and the interest rate is not a penalty), that a 9% per month rate was plainly a mistake which did not reflect the common intention of Investments and Plaza (referring, for example, to Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336 at 350; [1973] HCA 23 (Maralinga); Caringbah Investments Pty Ltd v Caringbah Business and Sports Club Ltd (in liq) [2016] NSWCA 165 at [40]-[41], [44]-[47] per Bathurst CJ, McColl and Macfarlan JJA agreeing). 3. More particularly, the first prayer for relief under the Third Broadway Cross-claim seeks: An order that the Contract for Sale entered into between the plaintiff and the defendant and dated 27 December 2011 (Contract for Sale), be rectified by deleting the words "per month" in the definition of Interest Rate in the pro forma loan agreement and inserting the words "per annum". 1. In support of this claim, and as outlined above, Investments says that a rate of 9% per annum was inconsistent with Mr Deiri's discussions with Jamil, as well as with the instructions Mr Deiri gave to HWLE. It is submitted that, if the loan agreement is found to be binding, orders should be made as sought in the Third Broadway Cross-claim rectifying the loan agreement by deleting the words "per month" in the definition of "Interest Rate" and inserting the words "per annum". 2. I turn first to consider the submissions for the Sayour Parties generally in relation to this aspect of the proceedings. Sayour Parties' submissions generally 1. As adverted to above, the Sayour Parties point to the evidence of Ms Gray, the solicitor who prepared the documentation including the loan agreement, to the effect that she prepared that agreement from a "firm precedent" (see Ms Gray's affidavit sworn on [10]-[13]). In particular, they say that it is apparent from the mark-up draft which Ms Gray exhibits to that affidavit that the precedent document she used to prepare the pro forma loan agreement defined "interest rate" as a percentage per month. Accordingly, it is submitted that it can hardly be said that the inclusion of interest chargeable on a per month basis was not a standard practice by a reputable law firm; nor can it be said that the charging of such interest on a monthly basis was a "commercial nonsense" (or that such a clause was usurious). 2. As to the rate of interest charged being 9% per month, the Sayour Parties point to Mr Deiri's evidence in respect of his alleged loan agreement with Combined Projects Arncliffe that the rate of interest (there, 15%) reflected the unsecured nature of the loan. The Sayour Parties point out that, in the case of the loan agreement entered into in respect of the acquisition of a half share of the Broadway Site, the amount lent was unsecured and intended to be interest free until 30 June 2012. It is submitted that the rate and the period of charging are consistent with the evidence given by both Mr Deiri and Moustafa of the circumstances of the arrangement between Plaza and Investments as it existed at December 2011. 3. The Sayour Parties say that, on the rectification claim, Investments must demonstrate clear and convincing proof that the agreement of the Plaza and Investments as to the terms of interest in the loan agreement does not record their actual agreement; and they argue that the claim for rectification must fail in circumstances where Investments has not pleaded (nor has it led evidence which would amount to clear and convincing proof) that the parties had an actual common intention as to the legal effect of the clause of the loan agreement which provided for interest to be payable by Investments of 9% per month (see, for example, Ryldar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603 at 631). 4. It is also noted that on Moustafa's evidence he was presented with a document prepared by solicitors instructed by Mr Deiri which he "briefly looked at" (see his affidavit sworn on 31 May 2019 at [112]) and that he executed the agreement without turning his mind to the interest rate terms. Thus, it is submitted that there was no antecedent or extraneous consensus; and that the only bargain was the bargain contained in the instrument itself. 5. As to the pleading, it is noted that the particulars given base the claim on two oral conversations: the first, on 23 November 2011, between Mr Deiri and Jamil; and the second, on 27 December 2011, between Mr Deiri, Jamil and Moustafa. 6. As to the second of those particularised conversations, which the Sayour Parties say is the only occasion on which it is alleged a consensus was reached with Moustafa, they point out that Mr Deiri's affidavit contained no allegation that the alleged conversation took place. Thus, they submit that the claim fails for want of any proof at all. 7. As to the first of those particularised conversations, the Sayour Parties say that the affidavit evidence of this conversation does not rise to establish the representations alleged in the particulars. Rather, it is said that this was clearly a preliminary phase or part of negotiation; and it is noted that, in oral evidence, Mr Deiri was not able to recall significant aspects of the conversation. It is said that the terms set out in Mr Deiri's affidavit are quite different from the way the conversation is presented in the particulars. 8. More particularly, in this regard, it is noted that Mr Deiri attributes to Mr Stephen a representation (to Mr Deiri only) that 9% was the standard rate. The Sayour Parties say that it is difficult to see why Mr Deiri would need to take instruction from Mr Stephen on that matter, or why a solicitor would give that advice. It is noted that Mr Stephen was not called to give evidence (though it is submitted that it was in the interest of both Investments and HWLE to support the rectification claim). The Sayour Parties point out that the only witness called from HWLE, Ms Gray, received no information concerning this suggested conversation between Mr Stephen and Mr Deiri and no contemporaneous note of the conversation was tendered. 9. Again, as above, it is submitted that there is not clear and convincing proof of the alleged conversation and, in any event, that Jamil was not authorised to conclude the terms. It is said that it would not be usual for an agent to be authorised to conclude the terms. Indeed, the Sayour Parties say that the contract was signed by Moustafa and it was necessary to bring the terms home to him. 10. The Sayour Parties also point to Mr Deiri's evidence in his affidavit sworn on 22 August 2019, in which Mr Deiri deposes that he met with Moustafa to sign the contract for sale, that "we checked the purchase price, but did not otherwise read the document in detail" and that Mr Deiri instead assumed at the time that his solicitor had followed his instructions in preparing the contract for sale and loan agreement and had exercised care and skill in so doing (see at [71]). Hence, the Sayour Parties say it is apparent that, contrary to his pleadings, Mr Deiri did not bring to the attention of Moustafa the interest rate and there was, relevantly, no meeting of the minds (and no evidence of a consensus) which would found the relief sought in the Third Broadway Cross-claim. 11. It is convenient at this juncture to consider and determine the penalty claim (as to which, see as summarised above in my consideration of the Second Broadway Cross-claim). Interest provision void as a penalty 1. I turn first to the submissions for the Deiri Parties and HWLE. Deiri Parties' and HWLE's submissions 1. Investments' contention (see at [17] of the Third Broadway Cross-claim) is that the interest rate of 9% per month is extravagant or unconscionable in amount and is a penalty. Again, HWLE supports that contention. 2. I have excerpted above various of the relevant contractual provisions. However, it is convenient here to recount, as relevant, the relevant terms. 3. It is noted that there is a primary stipulation in cl 4.1 of the loan agreement that the borrower repay the "Principal Outstanding" on the "Termination Date", which in turn is defined in cl 1.1 to mean the later of the "Repayment Date", the date the loan is fully paid, or such other date as agreed. Clause 3.2(a) then provides that if the loan is not repaid by the "Repayment Date", the borrower must pay interest at the "Interest Rate" of 9% per month. The stipulated consequence of monthly interest thereby applies in circumstances where there has been a breach by the borrower of the obligation to pay in cl 4.1. 4. Relevantly, therefore, it is said that the common law doctrine of penalties (which requires an anterior breach of contract) can apply but that, in any event, the equitable doctrine would apply even if non-payment was a contingent, non-promissory condition to the stipulated consequence (I interpose to note, as to which, see particularly Andrews v ANZ cf Cavendish Square Holding BV v El Makdessi [2016] AC 1172; [2015] UKSC 67). 5. As is to be recalled, generally, whether or not a term constitutes a penalty turns on whether the impugned stipulation is extravagant and unconscionable having regard to, or out of all proportion to, the interest of the innocent party in enforcement of the primary obligation (see the discussion in Australia Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd; Guan v Linfield Developments Pty Ltd (2017) 18 BPR 36,683; [2017] NSWCA 99 (Guan v Lindfield) at [367] with which McColl and Gleeson JJA agreed). 6. In the present case, the Deiri Parties say that it is clear that the interest sought to be protected by the interest rate provision is Plaza's interest in the repayment of the loan by 30 June 2012. I interpose to record that I agree with this submission. 7. Following from this, it is submitted that that is a legitimate interest, but that the interest rate stipulation of 9% per month is out of all proportion to it, in such a way to be extravagant and unconscionable (that rate being said to be well beyond ordinary rates of finance, on any view). Again, I interpose to record that I agree with this submission. 8. The Deiri Parties here note that the contract for sale itself provided for an interest rate of 8% per annum where there is a delay in settlement. It is said that that is a good indication of the rate the parties considered necessary to protect Plaza's interest in the delay of receiving full payment of the purchase price (which, under the impugned loan agreement, is said to have been loaned back to Investments). 9. As noted above, HWLE supports the Deiri Parties' submissions on penalty and note that it is a question of construction whether the requirement to pay interest is penal (as to which, see Arab Bank Australia Ltd v Sayde Developments Pty Ltd (2016) 93 NSWLR 231; [2016] NSWCA 328 at [72] per McDougall J, with whom Gleeson JA and Sackville AJA agreed). HWLE maintains that this is a clear case of penalty and that, upon Investments submitting to terms to compensate Plaza for loss from the failure to repay the loan by 30 June 2012, equitable relief ought here to be made available. Sayour Parties' submissions 1. As to the submissions of both Investments and HWLE, in the alternative, that the interest rate of 9% per month is in the nature of a penalty and thus void, the Sayour Parties say that the imposition of 9% per month interest is not a secondary obligation arising from any breach nor may it be considered a collateral or ancillary stipulation. 2. It is noted that cl 3 of the loan agreement (headed "Interest on Loan and fees") sets out how interest is to be calculated; that cl 3.1 says that, "[i]f the Loan is repaid by the Repayment Date, the Loan does not bear any interest" and "Repayment Date" is defined as 30 June 2012; that cl 3.2(a) provides that, "If the Loan is not repaid by the Repayment Date, the Borrower must pay interest on the Principal Outstanding at the Interest Rate"; that cl 1.1 (headed "Definitions") provides in the relevant part that, "Interest Rate means 9% per month"; and that cll 3.2(b) and (c) set out the mechanics for accrual and payment of interest following the "Repayment Date". Significantly, it is also noted that "Interest Payment Date" and "Interest Period" are calculated by reference to monthly periods commencing on the "Repayment Date". 3. The Sayour Parties say that it is here important that there was no promise to repay the loan by the "Repayment Date". It is noted that, by cl 4.1, the borrower promised to repay the "Principal Outstanding" in full and all other moneys then due and payable under the agreement on the "Termination Date" (as defined in cl 1.1 as the later of the "Repayment Date", the date the loan is paid in full or such other date as the parties may agree in writing). More particularly, it is submitted that this might have presented considerable difficulties for the lender in recovering its loan principal, and it is said that this thus supports the commercial purpose of the incentive provided by a high interest rate. 4. Thus, the Sayour Parties say that the loan agreement, by its express terms, contemplated that the loan might not be repaid by the "Repayment Date", and included a mechanism for the accrual and regular payment of interest after that date. They say that, in effect, the borrower had an option: repay the principal in full within the interest free period, or repay the principal after the conclusion of the interest free period subject to interest. 5. It is noted that, by cl 8.8, the vendor became entitled at the end of September 2012 to exercise an option (that is, to keep the loan on foot or unwind the sale). It is said that this reflects an appreciation that, if the short-term loan dragged out, it would be a high-risk proposition for the lender. 6. The Sayour Parties submit that in this context the application of interest is not a penalty because it is not imposed as a remedy for breach or as a measure of liquidated damages; rather, it is simply the interest rate that applies after the interest free period expires, being a fee charged for the provision of an additional valuable service (namely, a further financial accommodation following the expiry of the interest free term). 7. Furthermore, it is said that the interest amount imposed is not a fixed sum, but rather an amount that is directly proportional to the length of term for which the further financial accommodation is provided; and that the longer the principal amount remains outstanding, the more interest that accrues. It is said that this is a fee for a service and not a penalty or even an estimate of liquidated damages. 8. It is submitted that the interest provisions are analogous to the non-payment and over-limit fees that were upheld by Gordon J in Paciocco v Australia and New Zealand Banking Group Ltd [2014] FCA 35 (Paciocco Federal Court) as fees for additional services (namely, the provision of an overdraft facility). 9. The Sayour Parties assert that it is not the case that, had the interest rate been payable from the outset (that is, the date of completion of the sale), the rate would have been said to be a penalty. They say that the contractual stipulations providing for 9% monthly interest are not in terrorem and did not seek to penalise Investments by way of a negative stipulation; nor was the requirement to pay 9% interest after the conclusion of the interest free period enjoyed by the lender as security for performance by the borrower of an obligation to repay the principal amount within six months, and thus they say it was not a penalty. Rather, again, they say it was an interest rate charged by the lender, as specified in its pre-existing arrangement with the borrower (namely, the loan agreement) for the further extension of the loan terms provided to the borrower. In this regard, the Sayour Parties also say the situation is analogous to the fees that were considered in Andrews v ANZ (see at [79]) where the High Court cited with approval (at [80]) the distinction drawn by a majority of the Court of Appeal in Metro-Goldwyn-Mayer Pty Ltd v Greenham [1966] 2 NSWR 717 (at 723-724 and 727) between "a stipulation attracting the penalty doctrine and one giving rise consensually to an additional obligation". 10. Insofar as Investments and HWLE have contended that the rate is out of all proportion to an unspecified "loss" and that it is "extravagant and unconscionable in amount" or "out of all proportion" with any loss suffered by the innocent party, the Sayour Parties say that there was no loss – this was simply an additional accommodation to the borrower. 11. Furthermore, the Sayour Parties say that the rate of interest or whether it is calculated annually or monthly is not determinative of whether an amount is a penalty. Instead, it is said that it is more important to consider the context of the bargain at the time it was struck; and that neither Investments nor HWLE recognises that Investments received a substantial benefit by entry into the loan agreement. Specifically, it is said that Investments received: a substantial sum advanced under the loan; a loan which required no grant of security or guarantee to be given to Plaza; immediate ownership of its half-share in the Broadway Site as a result of the vendor finance arrangement and the ability (without having advanced cash for the land) to raise on first registered mortgage the funding for construction; and a six-month interest free period, tailored to allow Investments or other members of Mr Deiri's group of companies to pay the loaned funds in full by June 2012 and thus escape any interest expense. 12. The Sayour Parties say that the evidence for both parties established that Mr Deiri had said that Investments was not in a position to pay for its half-share in the Broadway Site at the date of completion and would in fact be unable to repay any amount until the completion of a project at Redfern in about May or June 2012 (again, see Moustafa's affidavit sworn on 31 May 2019 at [99]; and, for example, Mr Deiri's affidavit sworn on 22 August 2019 at [63]). It is said that the loan agreement was thus specifically drafted to allow Investments to repay the advance made by Plaza without paying any interest in circumstances where both parties knew or believed that Investments (or the Deiri group of companies) would be in funds and able to pay out the advance in its entirety. In that context it is said that the applicable rate, once instituted, cannot be said to have been extravagant, unconscionable or out of all proportion to a "loss". 13. It is also noted that it was Mr Deiri's evidence that the standard unsecured rate for a loan at that relevant time was about 15% without reference to the interest period. It is said that if the rate of 9% was in fact intended to be payable per annum, then such an amount represented a 40% discount from the applicable interest available for short unsecured loans. 14. Further, it is submitted that the 9% monthly interest rate for an unsecured loan is not extravagant when one considers the intentions of the parties at the time of entry into the loan, being that it was intended as a short-term loan and that the borrower expressed an intention to repay it in full in short order. It is submitted that the interest free period on unsecured advances shows that the parties considered the loan to be a low-risk, short-term undertaking. It is said that if the borrower showed itself to be unable or unwilling to repay the loan within the specified interest free term, that would mean that the loan was neither a short-term loan nor, from the point of view of the lender, a low risk one. Indeed, it is said that it is apparent that it always entailed very considerable risk and that that risk has materialised. 15. Thus, the Sayour Parties say that it is entirely appropriate for the interest rate following conclusion of the interest free period to reflect the true risk of making the unsecured financial accommodation. 16. In this context, it is submitted that 9% per month is neither punitive nor extravagant. It is said that it is a reasonable measure of the borrower's risk of providing the financial accommodation and that it does not constitute a penalty and is thus valid. Determination re interest provision void as a penalty 1. I do not propose here to restate in detail the principles applicable when considering an argument that a contractual provision such as this is a penalty. Those principles have been amply set out in the authorities to which the parties have referred. 2. In short, it is necessary, first, to identify the interests which are sought to be protected by the impugned stipulation (here, the interest of Plaza in the payment of the balance of the purchase price for the Broadway Site – the subject of the vendor finance under the loan agreement); and, second, to ask whether the impugned stipulation was a stipulation collateral or accessory to another stipulation (the primary stipulation) which imposed an additional detriment upon Investments for the benefit of Plaza, in the sense that it was in the nature of a security for and in terrorem of the satisfaction of the primary stipulation in a manner that was out of all proportion to the interests of Plaza intended to be protected by the primary stipulation. 3. Relevantly here, HWLE says that the structure of the loan agreement is clear: the interest sought to be protected by the stipulation to pay money under cl 3.2 is, or was, Plaza's interest in having the loan repaid by 30 June 2012 (made clear by the fact that Investment's primary obligation to make the repayment by 30 June 2012 is mandatory and that there is no obligation to pay any interest if the mandatory obligation is performed); and the stipulation to pay interest at what is in effect 108% per annum is a stipulation collateral or accessory to the primary obligation and imposes an additional detriment on Investments to the benefit of Plaza. I accept this submission. 4. As to that collateral obligation, as I have adverted to already, I also accept that it is so in the sense that it is in the nature of security for, and in terrorem of, the primary repayment obligation in a manner that is out of all proportion to the Plaza's interest to be protected by the primary repayment obligation. 5. More particularly, I accept that the lack of proportion is apparent when the loan agreement is construed having regard to the terms of the contract for sale to which it was an annexure (that is, particularly, cl 33 of which stipulated a much lesser rate of interest). I accept HWLE's submission that this demonstrates the parties' agreement on true prejudice to which Plaza would be exposed from a delay in receipt of the purchase. 6. While I accept Plaza's submission that the short term nature of the loan is a relevant factor to take into account and that there may be cases where an otherwise apparently extortionate interest rate may not be a penalty (see, for example, Wu v Ling [2016] NSWCA 322), it seems to me that, on any view of things, the import of a 9% per month interest rate can only be seen as out of all proportion to the legitimate interest it was clearly intended to protect. I would therefore have found that it was void as a penalty. 7. I now turn to the parties' submissions in relation to the rectification claim. Rectification 1. Again, I consider first the submissions for the Deiri Parties and HWLE. Deiri Parties' and HWLE's submissions 1. As adverted to above, the Deiri Parties note that the purpose of the remedy of rectification is to make the instrument conform to the true agreement of the parties where the writing, by common mistake, fails to express that agreement accurately. They point out that an antecedent agreement is not necessary (it being enough that the written document did not reflect the parties' common intention) but they accept that there must be a common mistake either as to the words used or their legal effect (see Caringbah Investments Pty Ltd v Caringbah Business and Sports Club Ltd (in liq) [2016] NSWCA 165 at [40] per Bathurst CJ, McColl and Macfarlan JJA agreeing, referring to Maralinga at 350). 2. Following, that common intention of the parties is a matter of fact. In this regard, the Deiri Parties point to Mr Deiri's evidence of a conversation on about 23 November 2011 with Mr Stephen of HWLE (as to which, see also at [184] above) in which Mr Stephen said a loan agreement would need to be prepared in order to achieve the same outcome as a deferred settlement, and that a standard interest rate could be applied, of around 9% per annum (again, said not to have been challenged in cross-examination) and of his subsequent conversation with Jamil in which Mr Deiri says he explained that there would need to be a loan agreement and that HWLE had said 9% per annum was the standard rate on these agreements (as to which, see also at [184] above). Mr Deiri's evidence was that Jamil agreed to this, but said that he would charge interest if Investments did not proceed with the purchase. 3. The Deiri Parties submit that that evidence should be accepted, noting that Mr Deiri said that he distinctly recalled Jamil "had a chucke" at the prospect of charging Investments interest (see at T 1104.41-46). It is submitted that the thrust of Mr Deiri's conversation with Jamil was to relay what he had been told by HWLE; and it is said that it is likely that Mr Deiri would have relayed the details of what Mr Stephen said, including the likely interest rate. 4. The Deiri Parties further rely on the evidence that Mr Deiri then had a telephone call with Mr Stephen the next day, to inform him that Jamil was happy with the arrangement and instructing HWLE to prepare the contract and loan agreement, which is supported by the contemporaneous email communication later on 23 November 2011 (as to which, see at [185] in the above chronology) from Mr Stephen to Mr Schachna of HWLE (copied to Mr Deiri and others) confirming those instructions. In particular, it is noted that, in that email, Mr Stephen said that he had "just spoken with Fouad" and confirmed his instructions that, "[i]f Fouad is late, interest is payable at 9% per annum". 5. The Deiri Parties submit that the evidence shows that it was actually intended that there be an interest rate of 9% per annum; and, again, it is emphasised that the discussion of that figure is consistent with the contemporaneous emails from HWLE referring to a 9% per annum rate and a discussion with Mr Deiri. 6. As to the need to establish a common mistake, it is said that Mr Deiri and Jamil were the minds of their respective corporate entities (Investments and Plaza, respectively) for which they had authority to act concerning the contract for sale and loan agreement. While there is no dispute that Mr Deiri's intention and understanding (as a director of Investments) was Investments' relevant state of mind, there is of course dispute is as to whether Jamil had the authority to agree to an interest rate on Plaza's behalf (which raises the question of his authority considered above). 7. As to the Sayour Parties' submission that there was no meeting of the minds which would found a rectification claim (because Moustafa was never aware of the interest rate terms and therefore that there was no common intention as to the legal effect of the clause that was included in the loan agreement), the Deiri Parties say that the relevant subjective intention is Jamil's state of mind (again, since he was the person who negotiated the interest rate and agreed it with Mr Deiri). As to this, it is said that this is consistent with the principle that the knowledge of the agent in committing to a transaction may be imputed to the principal where the agent is authorised to enter into that transaction (see, for example, Permanent Trustee Australia Company Ltd v FAI General Insurance Company Ltd (2001) 50 NSWLR 679 at [87]-[89]; [2001] NSWCA 20). Further, it is said that Moustafa must have intended to agree to whatever Jamil had negotiated (and therefore he too laboured under the mistake that what Jamil had negotiated was reflected in the written terms of the agreement; in effect transposing Jamil's intention to Moustafa); and, also, that if, as the Sayour Parties submit, Moustafa's state of mind is the relevant focus, then the fact Moustafa was never aware of the loan agreement shows that there was no consensus at all in respect of any loan or interest rate (and hence there was no meeting of the minds at all and the loan agreement was never a valid contract). 8. HWLE makes the following submissions in support of Investments' claim for rectification, which it says raises only one issue, that being the actual intention of Plaza (since there is no doubt about Investments' actual intention, that being constituted by Mr Deiri's mind and Mr Deiri's intention at all times from 23 November 2011 being for the interest rate to be 9% per annum). 9. It is noted that, when canvassing vendor finance on that day, HWLE proposed a simple loan agreement with a "standard interest rate", which would be around 9% per annum (see Mr Deiri's affidavit sworn on 22 August 2019 at [64]) and that a couple of days later Mr Deiri gave instructions to HWLE to "do a contract for $6 million with 9% interest per annum" (see Mr Deiri's affidavit sworn on 22 August 2019 at [66]). Again, those instructions were recorded by Ms Gray in writing (using the words "9% per annum"). 10. HWLE says that the pro forma loan agreement was subsequently prepared but specified 9% "per month" by mistake (see Ms Gray's affidavit sworn on 9 October 2019 at [14]); and that Mr Deiri's evidence is that he did not notice the mistake when he executed the document and delivered it to Plaza (see to Mr Deiri's affidavit sworn on 22 August 2019 at [79]-[80]). It is said that, Mr Deiri being unaware of any change, it may be inferred that Mr Deiri's intention remained as articulated by him at that time. 11. HWLE submits that not only is Investments' "half of the common intention" demonstrated by the affidavit and contemporaneous documentary evidence, it is objectively plausible. It is noted that Mr Deiri has described an agreement to borrow money at 108% per annum as "commercial suicide" (see Mr Deiri's affidavit sworn on 22 August 2019 at [80]). 12. Furthermore, HWLE submits that Plaza also had the actual intention that the loan agreement specify an interest rate of 9% per annum, pointing to Mr Deiri's evidence to the effect that Jamil had that actual intention on about 24 November 2011 when a consensus was reached. It is noted that Mr Deiri nominated 9% per annum as the standard rate and it is said that it may be inferred from Jamil's reply that he agreed with that rate (see Mr Deiri's affidavit sworn on 22 August 2019 at [65]): Habib, like I am going to charge you interest. As long as I get my $8 million I don't care what the contract says. But if you don't proceed, then we have to take the site back, then I will apply interest. 1. HWLE notes that that Mr Deiri was cross-examined on this conversation (see T 1104.32ff), when he said again that he would have mentioned to Jamil the rate that was mentioned to him by Mr Stephen (see T 1104.50ff). It is said that Mr Deiri had reason to remember the conversation because of Jamil's response to the suggestion that interest would be charged. It is noted that, whilst it was put to Mr Deiri that he did not remember the conversation generally (which he denied), it was not put to him that the rate "9% per annum" was not mentioned. 2. HWLE maintains that the conversation with Jamil as described by Mr Deiri is objectively plausible, noting that it took place between two conversations with Mr Stephen which were not challenged in cross-examination, in both of which the rate of "9% per annum" was discussed (first, it is said, in tentative terms and then with precision). Insofar as the Sayour Parties submit that there is no file note of these conversations with Mr Stephen, HWLE says that they are amply demonstrated by Mr Stephen's contemporaneous emails: first, his email on 22 November 2011 to his Melbourne partner (Mr Schachna) and Mr Deiri with a rough outline of the transaction and which asked "what is the interest rate?"; and, second, his email on 23 November 2011, in which he stated, "I have just spoken to Fouad" and records the interest rate as "9% per annum". 3. HWLE says that it may further be inferred that, at no time subsequent to the conversation and up to 27 December 2011 (when Mr Deiri delivered his executed loan agreement) and when the sale completed, did Jamil's intention change. It is said that the applicable interest rate never again arose for discussion; and that the only circumstance in which Jamil's intention could conceivably have had occasion to change is if he had read the loan agreement and noticed that it specified an interest rate which was different to that earlier discussed. It is said that there is no suggestion that Jamil noticed any change in the document; indeed, that the evidence indicates that he did not notice this. HWLE again notes that Mr Deiri's evidence is that he took the documents to Jamil and Moustafa on 27 December 2011 whereupon they checked the purchase price but did not otherwise read the documents in detail (see Mr Deiri's affidavit sworn on 22 August 2019 at [71]-[75]). 4. HWLE thus submits that, on 23 November 2011, Mr Deiri and Jamil reached a consensus on 9% per annum. 5. HWLE says that the only real question is whether Jamil's participation in that consensus affects Plaza's position. In this respect, HWLE submits that this specific issue ought not to be "caught up" in broader disputes about Jamil's general authority. It is said that the undisputed facts are that Moustafa intended Plaza to sell the Broadway Site and that Moustafa concerned himself with the price, but otherwise left the terms of the documents entirely to Jamil to negotiate and approve (see, for example, Moustafa's affidavit sworn on 31 May 2019 at [108]-[115]). Following, HWLE submits that Jamil had Moustafa's actual authority to negotiate the terms of the documents (which they say is all that matters for the purposes of rectifying the documents). 6. It is said that the alternative contention is that, apart from price (which Moustafa checked himself), Moustafa intended to agree to whatever terms Jamil had already negotiated with Mr Deiri; which included the interest rate of 9% per annum. HWLE says that it is clear that Moustafa intended to agree to whatever Jamil had already negotiated with Mr Deiri, other than the purchase price. It is said that both Moustafa's evidence (see, for example, his affidavit sworn on 31 May 2019 at [108]-[114]) and Mr Deiri's evidence (see, for example, his affidavit sworn on 22 August 2019 at [71]) demonstrate Moustafa's attention to the purchase price but otherwise indifference to the documents. 7. HWLE submits that the case is factually the same as that considered in Commerce Consolidated (as to which, see also at [2805] above), where rectification was ordered to correct a mistake as to the date from which interest would be payable on the outstanding purchase price under a contract (it being inferred, on the assumption that the borrower was unaware of the mistake in the document, that the borrower had held the same intention as when consensus to the document was reached). 8. In sum, HWLE says that rectification is necessary here to make the loan agreement conform to the true agreement of the parties; and that, given the claims now made by Plaza in the Second Broadway Cross-claim, there is utility in granting such relief. 9. In reply to the Sayour Parties' submission that the consensus reached between Mr Deiri and Jamil on 23 November 2011 is not corroborated with documentary evidence (as to which, see below), HWLE points to Mr Stephen's emails both before and after the 23 November 2011 conversation as corroborative of Mr Deiri's evidence (as excerpted and considered at [185]ff above). Sayour Parties' submissions 1. As to Investments' rectification case, the Sayour Parties similarly note that rectification requires clear and convincing proof of an antecedent contract or consensus from which, through some miscarriage or inadvertence, the contract departs. 2. The Sayour Parties say that no such case can here be established since no antecedent contract or consensus has been established. Again, it is noted that the particulars do not say anything as to any bargain to which Moustafa was consulted in respect of interest; and it is submitted that the assertions about oral agreements with Jamil are neither convincing nor relevant. 3. In any event, the Sayour Parties say that there is no basis on any orthodox legal principle for considering that Jamil had authority to commit Plaza to a consensus or binding agreement, nor any proper basis for concluding that he purported to do so; and that the matter was left to be concluded by a binding agreement signed by Moustafa on behalf of Plaza. It is submitted that this is a sufficient basis to dispose of the rectification claim (even without the "bribes", which also are said to be fatal to it – as to which, see my disposition of those allegations above). 4. The Sayour Parties say that it is "striking" that the alleged oral agreement on 27 December 2011 is not consistent with the express handwritten additional cl 8.8. It is noted that that clause gave to Plaza an option to avoid the bargain if the principal was not paid by September 2012, and does not mention interest at all. It is said that there was no need for it to do so. Plaza argues that what emerges clearly from cl 8.8 is that relatively prompt payment after the agreed interest holiday was considered so important by the parties as to move them to agree to the additional protection of an option to rescind. It is said that this was to be, so far as any delay after 30 June 2012 was concerned, a short-term (unsecured) loan. The Sayour Parties say that the interest rate was commensurate with that intention, providing an incentive for Investments to pay promptly. 5. It is said that the parties were not committed until they signed and that they were still negotiating to the last minute. The Sayour Parties say that there was no antecedent or even contemporaneous bargain or consensus in which Plaza expressed an outward accord with 9% per annum. 6. While it is accepted by the Sayour Parties that, absent an antecedent consensus, an instrument may, nonetheless be amenable to rectification where it is the only agreement between the parties (see, for example, Maralinga at 350, referred in Simic v NSW Land and Housing Corporation (2016) 260 CLR 85 (Simic) at 120 per Gageler, Nettle and Gordon JJ), it is noted that Kiefel J, as her Honour then was, said in Simic (see at 102), that the relevant intention "must be proved by admissible evidence and proved to a high standard". 7. Insofar as HWLE and the Deiri Parties submit that there was consensus between Jamil and Mr Deiri as to the rate of interest to be applied (as noted, said to have been reached on 23 November 2011, nearly a month before the execution of the contract of sale and the loan agreement on 27 December 2011 – see at [185] above), the Sayour Parties raise the same issue as to the limitations on the authority of Jamil. They argue that authority to negotiate is not authority to conclude terms. 8. Further, it is said that in this particular instance it is not suggested that Jamil did purport to conclude the terms of the contract of sale and the loan agreement. It is noted that these were signed by Mr Deiri in the presence of Moustafa and that Moustafa signed at least the contract of sale (which contained a pro forma copy of the loan agreement as an annexure). 9. The Sayour Parties say that it follows that authority of Jamil does not figure as an issue in respect of the rectification claim because this contract was formed through the personal agency of the principal in the person of Moustafa as sole director of Plaza; and it is said that it must be shown that Moustafa knew, understood and communicated objective outward assent to the consensus, such that it became a consensus between Plaza and Investments. The Sayour Parties say that this has not been shown. 10. It is also noted that, in the pleaded case, it was alleged that there was a further conversation to which Moustafa was party on 27 December 2011 which adopted the consensus, but that no evidence was led to support this allegation. It is said that this is a fundamental difficulty for the rectification claim. 11. As to the evidence of the alleged consensus with Jamil, it is noted that this comes solely from Mr Deiri who provides an account of a telephone conversation he had with Jamil about this subject. It is submitted that – given the difficulties with Mr Deiri's explanations over, for example, cheque signing procedures and his evidence of conversations with a dead person (which were not corroborated with documentary evidence – these accounts should be treated with caution (see, for example, Blendell v Byrne; The Estate of Noeline Joan Blendell [2019] NSWSC 583 at [189]-[191]). It is submitted that this does not satisfy the requirement for clear and convincing proof, or proof to a "high standard". 12. That aside, the Sayour Parties say that, having regard to Mr Deiri's account of the conversation he had with Jamil as deposed in his affidavit, it is not apparent that a consensus was in fact reached between them during that telephone call. It is noted that, according to Mr Deiri, rather than accepting the interest rate and terms, Jamil in fact had proposed an entirely different arrangement (that interest would not be charged except if the project did not proceed and that Plaza would require the site to be taken back – see Mr Deiri's affidavit sworn on 22 August 2019 at [65]) and that evidently this was not the deal that was ultimately done. 13. As to the handwritten cl 8.8, it is said that this has significant differences: that it is beneficial to Plaza, unlike the suggestion in the conversation of 23 November 2011; and it is noted that cl 8.8 did not have its genesis in that conversation. Rather, it is said that, according to Mr Deiri's own evidence, it was drafted on the spot by him on 27 December 2011 to satisfy an enquiry or objection raised by Jamil when he was under the eye of his father. 14. The Sayour Parties say that the suggested conversation of 23 November 2011 is not conformable with Mr Deiri's drafting of cl 8.8. Accordingly, they argue that, whether or not that conversation ever occurred in the terms suggested by Mr Deiri, it did not involve a consensus between the parties, was remote from the earlier negotiation and has no significance because it was but an early comment during that process of negotiation. 15. As to Jamil's comments in the 23 November 2011 conversation as set out in the affidavit, it is said that they did not actually conform with Mr Deiri's position at any time. Even leaving aside the question of authority, the Sayour Parties say that there is not established a consensus between Mr Deiri and Jamil as at 23 November 2011. It is said that Mr Deiri's evidence in cross-examination also did not disclose a consensus reached on 23 November 2011 between he and Jamil because Mr Deiri did not retain a specific memory that the rate of interest was disclosed to Jamil; he merely asserted that Jamil, "would have mentioned to him the rate that was mentioned to me…" (see at T 1104.50) (my emphasis). 16. Thus, it is said that there was in fact no evidence adduced by any party of a concluded bargain or consensus between Plaza (whether by Jamil or Moustafa) and Investments, other than the purported loan agreement itself. 17. The Sayour Parties also raise in this context the fact that Jamil stated repeatedly to Mr Deiri that he was answerable to his father (referring to Jamil's emails of 16 May 2013 – as to which, see at [359] in the above chronology – and 10 November 2013 to Mr Deiri – as to which, see at [419] in the above chronology). In particular, it is noted that Jamil was required to transmit information and terms to his father and bring documents to him for execution, but the Sayour Parties say that such a role does not amount to authority to set terms in relation to the sale or bind Plaza to any terms, nor did his, Moustafa or Plaza's conduct in respect of this transaction infer such authority (citing Vukmirica v Betyounan [2008] NSWCA 16 at [50] per Giles JA, Bell JA (as his Honour then was) and McColl JA agreeing). 18. In this connection, the Sayour Parties point to Moustafa's evidence that Mr Deiri dealt directly with him in advising him that he would be unable to pay for Investments' half share of the land until the completion of another project in May or June 2012 (as referred to above, see Moustafa's affidavit sworn on 31 May 2019 at [99]). It is also noted that Moustafa was not asked about this directly in cross-examination; instead, it was put to him (and he agreed) that he was aware of a deal that Jamil had done which involved vendor finance (see T 371.22-27). It is said that that was the entire extent of cross-examination of Moustafa Sayour on the topic of the loan agreement. Mr Deiri's evidence was that he advised Jamil only of the rate (see Mr Deiri's affidavit sworn on 22 August 2019 at [63]-[65]; T 1104.25-46). 19. The Sayour Parties say that it may be accepted that it is likely that Mr Deiri had some discussion with Jamil about the deal, but that it does not follow that he had none with Moustafa; and in such conversation as he had, no one suggests that Mr Deiri discussed the rate with Moustafa. Determination re rectification 1. As I have noted above, in the event that it were to be found that the loan agreement was binding (that the interest rate was properly construed as 9% per month, that the interest rate was not found to be a penalty, and otherwise), then I would have concluded that the claim for rectification was made good. 2. In particular, and crucially to this claim, I accept that the contemporaneous communications to Mr Stephen of HWLE (see particularly at [185] above) make it most likely that what was agreed was 9% per annum, not 9% per month. 3. While I accept that Jamil was permitted by his father to enter into the negotiations for the loan agreement and contract of sale, it was Moustafa who was the ultimate decision maker and I accept that it was his intention that is relevant to determination of the rectification issue. However, I have concluded that Moustafa, at least on this occasion, did not pay much attention to the interest rate and for that reason when he signed the contract he must be taken to have acquiesced, if not agreed, in whatever Jamil and Mr Deiri had agreed as to the interest rate. 4. I now turn to the Fourth Broadway Cross-claim. Fourth Broadway Cross-claim 1. I have summarised above the relief sought under the Fourth Broadway Cross-claim. In short, should the loan agreement be found to be binding but that there be no order for its rectification, then Investments submits that HWLE (as drafter of the loan agreement and contract for sale) is liable to compensate Investments for any liability to Plaza. 2. In particular, Investments pleads that HWLE breached its common law and contractual duties to take care, engaged in misleading or deceptive conduct, and contravened the obligation to exercise due care and skill under s 60 of the Australian Consumer Law in preparing and providing the loan agreement to Investments with the incorrect interest rate. 3. It is noted that HWLE admits it made a mistake. Indeed, Investments says that there can be no doubt that that mistake arose by a failure to take reasonable care in preparing the document. I readily agree that this must be so. 4. The Deiri Parties submit that liability is, in this scenario, clear, and Investments is entitled to damages at general law and under s 236 of the Australian Consumer Law. 5. Meanwhile, if (as I have now found – see my determinations as to the issues raised by the preceding cross-claim) Investments has no liability to Plaza for interest under the Second Broadway Cross-claim, then HWLE says that both the Second Broadway Cross-claim and the Fourth Broadway Cross-claim cross-claims should be dismissed. Otherwise, HWLE accepts that a mistake was made in drafting the loan agreement because the word "month" was not changed to "annum" in the definition of "Interest Rate" (see Ms Gray's affidavit sworn on 9 October 2019 at [14]). 6. It is convenient first to turn to the submissions for HWLE. HWLE's submissions 1. On the basis of its argument that the proper construction of "Interest Rate" means 9% per annum notwithstanding the use of the word "month", it is submitted that the loan agreement accords with Investments' instructions; and hence that no negligence, breach of retainer or misleading or deceptive conduct occurred. 2. Pausing here, I have not upheld that construction of the loan agreement and so this submission cannot be accepted. 3. Nevertheless, even if "Interest Rate" is construed as meaning 9% per month, it is submitted by HWLE that Investments has not suffered any loss because: the loan agreement was never entered into; even if it was, no loan was ever made under it; even if it was, it was repaid; even if it was not repaid, Investments is entitled to have the loan agreement rectified; and even if it is not rectified, Investments is not liable to pay interest to Plaza by reason of one or more of Investments' other defences to the Second Broadway Cross-claim. 4. Again, pausing here, each of those issues on which this submission is predicated have been dealt with above. 5. HWLE also maintains a limitation defence. Specifically, it is noted that the fourth cross-claim was filed on 28 June 2018 and that the amended fourth cross-claim was filed on 26 September 2018. HWLE contends that all the claims now made in the amended fourth cross-claim are statute barred (see its defence to the Fourth Broadway Cross-claim at [39]). 6. Following from this, it is noted that the breach of duty and contravention of the statutory prohibition on misleading or deceptive conduct are alleged to have occurred on 21 December 2011 when HWLE provided the loan agreement to Mr Deiri (see amended fourth cross-claim at [11]; [24]). Relevantly too, it is alleged that Investments relied upon HWLE's conduct by signing and exchanging the loan agreement on 27 December 2011 (see at [12]; [25]). It is said that on that date, or by 20 January 2012 at the latest, Investments became a contractual party to a loan on terms which required it to pay interest at the rate of 9% per month. In those circumstances, it is said that loss was suffered on 27 December 2011 or 20 January 2012 (see at [34]), both of which was more than six years before the fourth cross-claim was filed (again, on 28 June 2018). 7. By amendments made in the amended pleading filed 26 September 2018, Investments added allegations which HWLE says are in substance allegations that HWLE owed Investments duties which continued after 20 January 2012 and up to 30 June 2012 (that being the time by when the loan could have been repaid interest free) and indefinitely thereafter (see, particularly, amended fourth cross-claim at [20]-[21]). It is noted that there are also allegations of continuing representations (see, particularly, amended fourth cross-claim at [26]-[28]). In essence the complaint is said to be one of failing to discover the original mistake and inform Investments, and thereby depriving Investments of the opportunity to repay the loan sooner (see, particularly, amended fourth cross-claim at [35]; [36]). 8. Following then, HWLE says that the claims added by those amendments fail for a number of reasons. 9. First, it is alleged that HWLE was retained in November 2011 to provide legal services to Investments, including to prepare the loan agreement (see amended fourth cross-claim at [4]). It is said that, whilst the retainer is alleged in inclusive terms, there is no allegation that the retainer continued indefinitely. HWLE points out, for example, that it is not alleged that Investments requested HWLE to do anything after 20 January 2012 or that HWLE did anything after 20 January 2012 when the sale completed (see amended fourth cross-claim at [13]-[15]). 10. HWLE says that, without a retainer which extended past 20 January 2012 in some relevant way, HWLE owed no further duty to Investments (citing Winnote Pty Ltd v Page (2006) 68 NSWLR 531; [2006] NSWCA 287 at [25] per Mason P, with whom Tobias JA agreed (Winnote v Page)). For the same reason, it is said that a failure to inform after the cessation of the retainer could not constitute misleading or deceptive conduct in all the circumstances in which that failure occurred. 11. Second, it is noted that the gravamen of Investments' complaint is the mistake in the drafting of the loan agreement. It is said that that task was complete by 21 December 2011, when HWLE delivered the document to Mr Deiri (see amended fourth cross-claim at [11]). HWLE says that, having regard to the limits of the retainer, any failure by HWLE after 21 December 2011 to revisit and correct the drafting mistake was a failure to remedy an existing breach of duty rather than the commission of a further breach (referring to Winnote v Page at [100]-[101] per Mason P, with whom Tobias JA agreed). It is submitted that Investments' attempt to avoid the limitation period by recourse to "continuing" duties, breaches and representations is artificial and should not be accepted. 12. HWLE further relies upon the proportionate liability regime in circumstances where Mr Deiri was a concurrent wrongdoer whose acts or omissions caused the loss which is the subject of Investments' claim against HWLE (see, particularly, defence at [40]-[48]). 13. More specifically, two separate aspects of Mr Deiri's conduct are relied upon: first, Mr Deiri's evidence that he caused Investments to enter into the contract for sale (and annexed loan agreement) without checking the terms other than the purchase price (see, for example, Mr Deiri's affidavit sworn on 22 August 2019 at [70]-[71] and [80]; and defence at [45]); and, second, that although Mr Deiri subsequently caused repayments of the loan to be made on behalf of Investments, he did not comply with cll 4.2 and 5.1 of the loan agreement (which, on this hypothesis, were binding on Investments) so as to ensure that the repayments were effective and the obligation to pay interest was thereby reduced or eliminated (see amended defence at [45A]). 14. HWLE says that, as the director of Investments, Mr Deiri owed Investments a duty to discharge his director duties with the degree of care and diligence that a reasonable person would exercise if he or she was a director of Investments (see s 180(1) of the Corporations Act). It is said that Mr Deiri's conduct amounted to failure to perform that duty and causative of the same loss for which HWLE is now sued. 15. In these circumstances, it is contended that any liability which HWLE otherwise has to Investments is limited to an amount reflecting that proportion of the loss claimed by Investments which is considered just, having regard to Mr Deiri's responsibility (referring to s 35 of the Civil Liability Act 2002 (NSW) and s 87CD of the Competition and Consumer Act 2010 (Cth)). Determination 1. But for the limitations defence, I would have concluded that (assuming the premise of the claim – namely that the loan agreement is binding but there is no order for its rectification and assuming that the agreement as to the interest rate was not otherwise voidable or unenforceable) there was no doubt that there was a breach of the duty of care owed by HWLE. Otherwise, I have doubts as to whether it would have amounted to breach of the statutory duties claimed, but ultimately it is not necessary here to explore this issue. 2. Similarly, in these circumstances, I have doubts that HWLE could here rely on concurrent wrongdoing or proportionate liability by its client (here, through Mr Deiri, Investments). Again, however, it is not necessary here to explore this issue. 3. As to the limitations defence, I consider that the loss was sustained when the contract was entered into (as to which, consider the extensive discussion in Globe Church Inc v Allianz Australia Insurance Ltd (2019) 99 NSWLR 470; [2019] NSWCA 27) and hence is now statute barred; and that there was no ongoing retainer to support the allegation of a continuing breach of the duty of care. Had I decided otherwise, then insofar as Mr Deiri's failure to check the terms of the contract might be said to be a breach of his duty of care to the company (as well as, to the extent relevant, a duty to take care of his own interests) then the proportionate liability regime would apply. However, in that event, I would have considered that primary responsibility for the loss lay with HWLE. As it is, it is not necessary to consider this further. 4. I now turn to the Fifth Broadway Cross-claim. Fifth Broadway Cross-claim 1. The Fifth Broadway Cross-claim is primarily directed against Investments and against CBA's assertion of benefit, by disputing the existence of a liability to Deicorp (or Deicorp Constructions) under the respective construction contracts. The claims brought by Plaza against the Deicorp Entities on the Fifth Broadway Cross-claim overlap significantly with claims brought against other cross-defendants, including Mr Deiri and Deiri Nominees. 2. More particularly, the allegations by Plaza (against Mr Deiri and Deiri Nominees, as well as against the Deicorp Entities) relate principally to the dealings between Mr Deiri and Jamil concerning the Broadway Development (and the distribution of profits therefrom) and the construction contracts for both stages of the Broadway Plaza Development. 3. In summary, the principal relief sought by Plaza arising out of its bribery allegations (see, particularly, at [48]-[292]) is for: recovery of the amounts of the alleged bribes (including the share that Plaza says Jamil received of what should have been Plaza's partnership profit distribution, as well as the other payments made to him), relying on the principles articulated in cases such as Hovenden v Millhoff (see prayers 1 to 28); claims against the builder for profits (see prayers 57 to 59); and claims against the Deicorp Group parties which have participated in Investments' profits of the Broadway Partnership venture, to recover the profits made (see prayers 60 to 72). There are also discrete claims against individual corporate defendants (those being the claims for relief in prayers 73 and 74 – see below). As will be seen, various other claims are also made or, otherwise, the claims made also traverse other issues. 4. Insofar as the claims in the Fifth Broadway Cross-claim that are centred on the bribery relief are concerned, Plaza's position (confirmed by the Sayour Parties in their closing submissions) is that these are not founded as claims at common law for recovery of money paid but, rather, are founded in the equitable jurisdiction to give relief against bribery. The Sayour Parties say that none of these claims is based on any question of the existence or validity at common law of either of the construction contracts, or the legal validity of the various variations or extensions under the construction contracts; rather, they are claims to recover bribes and profits from the payers of the alleged bribes. It is accepted, for example, that there is no claim in the Fifth Broadway Cross-claim against Deicorp for moneys had and received; rather, the Sayour Parties say that the claims made against Deicorp and others by prayers 57 to 59 of the Fifth Broadway Cross-claim arise from the bribes (as to which, see the consideration of the bribery allegations above). 5. Moreover, as to those claims for relief in prayers 57 to 59, these arise only if, or to the extent that, the Broadway Partnership does not recover from CBA in respect of the Deicorp payments (because it is said that, if recovery is made by the Broadway Partnership from CBA, then CBA has a restitutionary claim against Deicorp Constructions in which case Deicorp Constructions will not have profited from the payments). 6. The primary case of Plaza as to the impugned construction payments is that they were not payments by the Broadway Partnership at all. In particular, and as considered further below, prayers 40 to 56 concern the payments under the two construction contracts (and purported variations or extensions) and seek to establish that the payments were not due and were not payments by the Broadway Partnership (a conclusion to which the Sayour Parties attach significance in the context of CBA and the Deiri Parties' "Liggett defence" to the First Broadway Cross-claim – as to which, see above). In the alternative, it is alleged that, if the payments were due and were payments by the Broadway Partnership, then they are surchargable to Investments and can be recovered from the Deicorp group as benefits which it is not entitled to retain because of the bribes. 7. The alternative relief claims the difference between the amounts paid for construction and the price referred to in the 19 September 2011 email from Jamil to Mr Deiri (see above at [130]) (i.e., the Dyldam quote) or, alternatively, the difference between the price for construction and that contained in the price referred to in the Deicorp Constructions' 2011 tender (see at [139] above). 8. The Sayour Parties say that the Deicorp Entities' submissions proceed on an assumption that relief is limited to the recoupment of loss; whereas they say the relief available to Plaza extends to the recovery of gains or profits. 9. With this background, it is convenient now to consider the position generally of the Deiri Parties and the Deicorp Entities. 10. However, before doing so, I note that the claims here made, as is evident for the preceding summary, turn principally upon, if not are predicated on, the bribery allegations. I have already considered and determined those allegations (see above) and do not here recite the parties' submissions in that regard, nor the relevant principles. 11. Furthermore, I note that the Sixth Broadway Cross-claim (as to which, see below) is essentially defensive against the possibility of success on the Fifth Broadway Cross-claim. Deiri Parties' position generally 1. As an initial matter, the Deiri Parties say that Plaza received its share of the partnership distributions. More particularly, they say that Investments paid some $9.6 million to Plaza in distributions by drawing cheques on the CBA Partnership Account at the direction of Jamil, as residential units were sold and proceeds became available. It is submitted that Jamil had the authority to direct Investments how to make payment of the partnership distributions, and to receive the cheques made out by Investments (as to which, see particularly my factual disposition). Also, as noted above, it is submitted that Moustafa was aware that the partnership distributions were being made, having banked two of the cheques himself. 2. Again, it is said that almost all of the impugned cheques were deposited into trust accounts under Plaza's control: the Westpac #202 Account and the Westpac #238 Account. It is said that Plaza's claim that it did not receive those funds is wrong in fact; and that, whatever may have later been done with those funds, is a matter for Plaza. 3. Further, it is submitted that Plaza has already recovered some of the money from the partnership distributions for which it claims an entitlement. 4. It is noted that, in the Estate Proceedings, Plaza claimed (see above) an entitlement to the $300,000 paid on 11 December 2014 from the CBA Partnership Account, alleging it was paid into the Westpac #238 Account without authority; and that judgment was given in favour of Plaza for, inter alia, a discrete amount of $300,000 representing that sum (see Sayour v Elliott [2018] NSWSC 59 at [48], [64], [91], [106]). The Deiri Parties say that, in the present proceedings, Plaza makes no allowance and gives no credit for this recovered amount. 5. Again, I have referred already to the Deiri Parties' general position in relation to the bribery allegations. 6. Notwithstanding, the Deiri Parties say that, in any event, equitable compensation should be refused. They say that Plaza has retained the benefit of the payment, and continues to seek to take advantage of that benefit, by: having received, and now claiming an entitlement to receive, proceeds from the completed Broadway Development in excess of $9.5 million, including surplus proceeds held by the receivers of approximately $3 million from the sale of the completed shopping centre; and seeking to have Investments bear the cost of all payments made under the construction contracts by which the Broadway Development was built and all partnership distributions made at Jamil's direction. 7. As to the allegations by Plaza that the various provisions of the construction contracts governing payment procedures were not complied with, including that Mr Deiri did not himself certify any progress certificates (and that, therefore, all of the progress claims were invalid), it is said that there is no basis for these allegations (see Investments' defence to the Fifth Broadway Cross-claim). It is submitted that progress certificates were assessed by Napier & Blakeley, the quantity surveyor appointed by CBA, pointing to the acknowledgement contained in the First Facility Agreement, signed by Moustafa on behalf of Investments on 15 February 2012 at cl 10.2(b)(i) (see above). 8. It is noted that the provision for Napier & Blakeley to certify progress claims also applied to Stage 2. The Deiri Parties say that these provisions bound Plaza as a matter of contract, and provided for the process by which progress claims were to be certified. In any event, it is said that Plaza knew that work was being carried out under the construction contracts; it knew that payment claims were required to be submitted for certification by Napier & Blakeley; and it never objected to the payment claims. In these circumstances, it is said that Plaza and Investments must be taken to have varied the constructions contracts so as to reflect that the payments claims would be payable by the partnership entities if certified by Napier & Blakeley. 9. Alternatively, Investments contends that there is an estoppel by convention, because both Plaza and Investments must be taken to have adopted a convention or mutual assumption that payment claims certified by Napier & Blakeley would be payable by the Broadway Partnership. It is said that Plaza and Investments knew and intended that each other would act on that basis; and that Investments would suffer detriment if Plaza could now depart from that convention and contend that the construction payments were not valid partnership transactions. 10. It is next convenient to consider the general position put for the Deicorp Entities. Deicorp Entities' position generally 1. The Deicorp Entities' submissions in relation to the Fifth Broadway Cross-claim principally concern the construction-related claims. The Deicorp Entities emphasise (which, again, is not disputed by Plaza) that Moustafa signed the Stage 1 Construction Contract (as to which, see in the above chronology). They say that Plaza (and Moustafa) knew of, and consented to, the loan arrangements with CBA for Stage 1, and they maintain that (having signed the Stage 1 Construction Contract) it was apparent to Moustafa that at least $40 million of construction work was to be undertaken and a significant amount of funding from CBA was to be obtained. 2. They contend that the relief sought by Plaza against Deicorp (in respect of the Stage 1 Construction Contract and the Stage 2 Construction Contract) by way of restitution is unavailable because Deicorp supplied good consideration for the payments received. It is said that that consideration comprised both its promises under those two contracts (as well the supply of many millions of dollars of goods and services). The Deicorp Entities say that it is for Plaza to establish that Deicorp would be unjustly enriched and would be acting unconscientiously in retaining, or seeking to retain, those payments. 3. In that regard, the Deicorp Entities say that the evidence does not even establish that the terms of the respective construction contracts were disadvantageous to Plaza (or to the Broadway Partnership), pointing to the evidence adduced by Deicorp, both in response to the Fifth Broadway Cross-claim and in support of the Sixth Broadway Cross-claim (as to which, see below), to the effect that the reasonable value of the construction work matched or exceeded the amounts actually paid to Deicorp (noting that Plaza did not serve any expert evidence on this issue and thus, it is said, cannot contend to the contrary). 4. The Deicorp Entities say that, given that the respective construction contracts have been fully performed, Plaza could not seek to have those contracts declared void or unenforceable and recover the entirety of the payments made to Deicorp under those contracts without providing restitutio in integrum (or counter-restitution) (and, in that regard, they point to the fact that Plaza cannot now give counter-restitution in respect of its 50% share in the building on the Broadway Site, which has been sold). 5. Put perhaps slightly differently, the Deicorp Entities say that Plaza cannot now seek to "unravel or unwind" arrangements, contracts and payments from which Plaza itself has benefited and that, insofar as Plaza seeks restitution of various moneys (including all construction-related payments), it bears the onus of establishing that it would be unjust if those moneys were to be retained by Deicorp. They say that the fact that Deicorp supplied good consideration for its receipt of payments is another reason why Plaza's claims must fail. 6. In this regard, reliance is placed on Adrenaline Pty Ltd v Bathurst Regional Council (2015) 97 NSWLR 207; [2015] NSWCA 123 (Adrenaline v Bathurst Regional Council) for the proposition that, as a matter of principle, a claim for restitution will always raise the question as to whether the payee's retention of the moneys (or benefit) is an injustice (see, particularly, what was said at [78] and [86]-[87] by Leeming JA, with whom Macfarlan JA and I agreed; and see also Ovidio Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd (2006) V ConvR 54-713; [2006] VSCA 6, to which Leeming JA there referred). Furthermore, it is to be noted what was said in Australian Financial Services and Leasing Pty Ltd (ACN 105 657 681) v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14 (Australian Financial v Hills) (see, particularly at [1] per French CJ, at [65]-[76] per Hayne, Crennan, Kiefel, Bell and Keane JJ, and at [105]-[106] and [138]-[142] per Gageler J). 7. The Deicorp Entities maintain that what Plaza is seeking in the Broadway Proceedings is a "wholesale unwinding" of transactions without accounting for the benefits received by it under those transactions (or under the transactions, which were made possible by the payments in question), including the benefit of Plaza being relieved of its financial obligations to CBA under the loan and security arrangements upon the realisation of the proceeds of sale of the finished Broadway Development (or lots within it). 8. The Deicorp Entities say that even the partnership moneys (which Plaza says were misappropriated from it by Jamil) constitute (at least for the purposes of assessing a claim for restitution) a benefit obtained by Plaza and the Sayour family (pointing in this context to the earlier Estate Proceedings, in which approximately $5 million was recovered) and it is said that this is a benefit to Plaza that undermines any restitutionary claim against Deicorp. CBA's position generally 1. CBA has also made submissions in relation to the Fifth Cross-claim. I have been assisted by those submissions, though it is unnecessary here to outline separately those submissions. 2. With those respective positions outlined generally, it is convenient now to turn to the specific claims made in the Fifth Broadway Cross-claim, by reference to the various prayers for relief. Allegations of bribes and recovery of "undisclosed payments" made to Jamil (prayers 1 to 28) 1. As adverted to above, prayers 1 to 28 of the Fifth Broadway Cross-claim seek to recover (on the basis that they are bribes) payments said to have been made to Jamil without disclosure to Plaza (i.e., without disclosure to Moustafa). 2. Crucially, the Sayour Parties maintain that these payments are bribes (and, indeed, the Sayour Parties say that it is not relevant what the intended purpose of the relevant cross-defendants was when those payments were made). 3. Again, I have already dealt with this allegation separately above. It is, however, necessary here to dispose of the Fifth Broadway Cross-claim, including those issues raised that are separate from those bribes allegations. Prayers 1 to 10 1. Prayers 1 to 10 seek equitable compensation from Investments and other cross defendants who, it is said, acted in concert with it for payments made from the CBA Partnership Account, to or at the direction of Jamil, ostensibly as Broadway Partnership distributions to the Sayour Family Trust, but which Plaza did not receive (or, in some instances, Plaza received only in part). Prayers 11 and 12 1. Prayers 11 and 12 seek relief for the $400,000 which Investments asserts was the deposit for the purchase of its share of the land. I note that this is the amount in the "Micheal Sayour" cheque, the destination of which has never been identified. 2. As has been noted, Deicorp paid this $400,000. Relevantly, the Sayour Parties submit that the Deiri group (or at least Mr Deiri and Investments) is liable having acted in concert with Jamil. Prayers 13 and 14 1. Next, prayers 13 and 14 seek payment of the nine monthly payments of $10,000 which Deicorp paid to Jamil from November 2011 until August 2012 (which I have outlined and considered in some detail above). 2. Again, the Sayour Parties submit that these payments were undisclosed payments to an agent or bribes; and, as such, may be recoverable from payer from the profits arising. The Sayour Parties note that, in Grant v Gold Exploration and Development Syndicate [1901] 1 QB 233, Collins LJ (at 249) stated: I think it follows in principle that where the buyer elects not to rescind the sale, but can nevertheless point to a specific sum over and above what must be taken as between the parties to be the real price, which has found its way into the vendor's pocket as a result of a sale so effected, he is entitled to recover it back. When the sum is thus liquidated, and in the hands of the vendor, I think it would be clearly contra aequum et bonum that he should retain it. I think that if he takes the hazardous course of paying a sum to the buyer's agent in order to secure his help, and does not himself communicate it, he must at least accept the risk of the agent's not doing so. He has taken a course which can be validated only by actual disclosure to the opposite principal, and as a result of it he is in possession of a sum which, whether the bargain stands or is rescinded, never ought to have been paid by the buyer, or found its way into the pocket of the seller. He is responsible as for money had and received to the use of the buyer, even though possibly he could not be made liable in an action of deceit. 1. Finally, there are then prayers 16 to 28. Prayers 16 to 28 1. Similarly, prayers 16 to 28 seek equitable compensation in respect of all payments made to Jamil by the various cross-defendants, which those cross-defendants allege were payments in respect of Investment's half share of the land but which were paid to or at the direction of Jamil and for which Plaza was entitled to receive. Determination re allegations of bribes and recovery of "undisclosed payments" made to Jamil (prayers 1 to 28) 1. As noted, I have already disposed of the bribery allegations. I have found that the various payments were not bribes. 2. Relatedly, and also crucially to this aspect of the proceedings, I have also found that Moustafa reposed in Jamil authority to direct payments and to manage the receipt of payments on behalf of Plaza in respect of partnership distributions from the Broadway Development, along with related responsibilities. As will be recalled, while I cannot accept that Jamil was given sole authority to conduct the business of Plaza, I do accept that he was given a level of authority and was held out as someone with whom Investments could deal on behalf of Plaza. This included that Moustafa permitted (and thereby impliedly authorised) Jamil to manage the day-to-day activities and business of Plaza in relation to the Broadway Development. 3. Accordingly, while I still cannot accept that the evidence establishes that Jamil was authorised to make decisions such as committing Plaza to the constructions contracts, I do consider that the evidence establishes that Jamil was authorised to communicate with Mr Deiri and to give directions as to payment of moneys due to Deicorp (again, including variations and escalation costs). 4. Furthermore, I also note, for the avoidance of doubt, that I have also already found that the $10,000 payments were not bribes. I also concluded (see above) that, insofar as moneys were paid into the Westpac #202 Account, those partnership distributions were received by Plaza and that Moustafa knew that Plaza had received some payments out of the settlement moneys from the sale of residential apartments (and, indeed, that it is difficult to understand how it is that, if Moustafa thought that no more had been received by way of partnership distributions, that Moustafa did not make enquiries at an earlier stage (see above). (I also note that Moustafa signed tax returns disclosing partnership income inconsistently with his current claims.) 5. It is unnecessary here to recite in any further detail those various determinations. In short, these prayers are predicated on the impugned payments being bribes or otherwise being made and received without authority. I have made findings adverse to those contentions. It follows that these prayers for relief fail. 6. Next, it is convenient to consider the claims in relation to payments made under the construction contracts and related claims. Payments made under the construction contracts and related claims (prayers 40 to 56) 1. Prayers 40 to 56 concern the payments under the Stage 1 Construction Contract and Stage 2 Construction Contract, including the purported variations, extensions, and other such payments. More specifically, these claims seek to establish that, first, the payments were not due and, second, that they not payments by the Broadway Partnership at all; or, third, if they were, they are surchargable to Investments. Stage 1 Construction Contract 1. It is convenient first to consider, by way of outline and submission, the specific submissions Deicorp Entities. Deicorp Entities' submissions generally 1. I have outlined in the chronology above various of the terms of the Stage 1 Construction Contract and the circumstances of its formation and its performance. 2. As to the Stage 1 Construction Contract claims in the Fifth Broadway Cross-claim, these claims are primarily directed against Investments and against CBA's assertion of benefit, by in effect disputing the existence of a liability to Deicorp (though, noting that there is no claim against Deicorp for money had and received). 3. The Deicorp Entities submit that the position for Plaza is predicated on the basic proposition that, had Plaza been made aware of the payments, it would have been entitled to rescind the contract. In this respect, the Deicorp Entities submit that the Sayour Parties are "mixing together and confusing entirely different factual circumstances", as well as conflating legal and equitable and claims. 4. The Deicorp Entities point, by way of example, to the following. 5. First, that if the Stage 1 Construction Contract had been the product of bribes, it may be accepted that Plaza would have been entitled to rescind the contract. However, the availability of the remedy of rescission is limited, both at common law and in equity, by the ability of the rescinding party to give restitutio in integrum (citing Alati v Kruger (1955) 94 CLR 216 at 223-224, 228; [1955] HCA 64 per Fullagar J). In this connection, it is submitted that Plaza here seems to accept that it cannot provide restitutio in integrum and, in light of its position on other extant cross-claims, "it apparently refused (and refuses) to give any counter-restitution whatsoever". 6. Second, that Plaza does not, however, seek to rescind the Stage 1 Construction Contract and, instead, seeks equitable compensation (and, perhaps, also an account) for what is said to have been the loss suffered by it (as a result of the alleged bribes and the inducements so caused). 7. Third, that an account of profits "is not assessed in a vacuum", in that the account does not necessarily equate to an account for all of the 'profits' earned by reason of the impugned transaction; rather, it is said that the profits for which the account must be given are those profits earned, by reason of the impugned transaction or as a consequence of the breach of duty, being profits to which the defaulting party was not otherwise entitled. In this regard, the Deicorp Entities analogise to the need for "sufficient connection" or relevant causation for the purpose of recovery (see Visnic v Sywak [2009] NSWCA 173 at [16]-[37] per Spigelman CJ, with whom Campbell and Macfarlan JJA agreed; and see also O'Halloran v R T Thomas & Family Pty Ltd (1998) 45 NSWLR 262 at 272-273 per Spigelman CJ, with whom Priestley and Meagher JJA agreed (O'Halloran)). Here, is it said that a partner with an interest of equal share in the partnership would always have been entitled to a 50% distribution and that this cannot be ignored by Plaza (in that Plaza cannot seek an account from Investments which are the "mirror image" of profits received by Plaza as a result of the same transaction(s)). 8. Fourth, that, insofar as equitable compensation is sought, then it remains the case, as with any claim for recovery of loss or damages, that Plaza must identify and prove the loss or damage suffered by it (and for which it ought to be compensated). Here, it is said that, if it is found that the construction contracts were induced by bribes (as to which, see my disposition of this issue above) but Plaza does not seek to rescind them, then Plaza must establish the relevant counter-factual (that is, that another builder of sufficient capability would have been willing and able to deliver the same construction services at a lower fee). It is said that no such evidence has here been put forward by the Sayour Parties. 9. Fifth, that, to the extent that the Sayour Parties seek to rely upon the Dyldam quote dated 27 September 2011 (as to which, see at [141] in the above chronology), it is noted that that quote was both of a summary form and that it is not comparable (in terms of scope of works) with Deicorp's tender dated 26 September 2011 (as to which, see at [139] in the above chronology). 10. Sixth, it is submitted that an award of equitable compensation, even in respect of a breach of fiduciary duty, will not be made if it were to place the plaintiff in a better position than if the breach had not occurred (citing Old v McInnes and Hodgkinson [2011] NSWCA 410 at [97] per Meagher JA, with whom Beazley JA (as Her Excellency then was) and Giles JA agreed, which passage has been cited with approval by, for example, Black J in Barescape Pty Ltd v Bacchus Holdings Pty Ltd [2012] NSWSC 984 at [237]). 11. Seventh, that the Sayour Parties cannot now seek equitable remedies without themselves doing equity, noting particularly that: first, the Sayour Parties recovered approximately $5.891 million in the earlier Estate Proceedings, those moneys being profits distributed out of the Broadway Partnership; and, second, that Plaza sold a 50% interest in the Broadway Development to Investments for an amount of either $6 million or $8 million. As to the second of these points, it is said that if the transaction were now to be "'unwound", then this also ought to be reversed. 12. With these points in mind, it is said that, ultimately, the Sayour Parties have sought to frame their arguments in an "ambit fashion", without due consideration for the substantial benefits which Plaza received out of the Broadway Partnership and the Stage 1 Construction Contract (and, indeed, the Stage 2 Construction Contract). 13. More particularly, as to the asserted issues as regards counter-restitution and otherwise, the Deicorp Entities observe that, notwithstanding the fact that the Stage 1 Construction Contract has been fully performed, Plaza now: challenges the payments made to Deicorp, not upon the basis that the payments were other than fair compensation for the completed work, but rather on the basis that there was less than strict compliance with the contractually prescribed procedure for authorising payments; asserts that the Stage 1 Construction Contract is void and of no effect; and seeks to "claim back every dollar paid to Deicorp, plus compound interest" (noting here the ambit of the relief sought by prayer 57); but "entirely ignores" the fact that Deicorp performed its obligations under the Stage 1 Building Contract and delivered a valuable benefit to both Plaza and Investments (as the partners in the Broadway Partnership). 14. As to the contractually prescribed procedure for authorising payments under the contract, it is said that this is not a case where Plaza pleads (nor could it plead) that variations were not, as a matter of fact, approved by Mr Deiri (as contract superintendent, principal of Deicorp and representative of the Broadway Partnership), but rather, that such approvals were not documented strictly in accordance with contractual processes. 15. As I consider in due course below, it is here to be noted that (both in defence of Plaza's claims by the Fifth Broadway Cross-claim and in support of its own defensive claim by the Sixth Broadway Cross-claim) Deicorp has led expert evidence from Mr Portelli of the reasonable value attributable to the works delivered by Deicorp and which resulted in the Broadway Development. It is here said that this evidence supports the conclusion that the payments received by Deicorp did not exceed the amount to which Deicorp would be entitled on a quantum meruit and/or quantum valebat. The Deicorp Entities here emphasise that Plaza did not seek to rely upon any expert evidence in response to Deicorp's quantum meruit evidence and that there is no substantive challenge made to the overall accuracy of the Mr Portelli's assessment. 16. In sum, the Deicorp Entities submit that Plaza's claims fail for a number of reasons, including the following. 17. First, that, if Plaza asserts that any of the Deicorp Entities breached the contractual provisions of the Stage 1 Construction Contract, the remedy for any such breach is an award of damages and Plaza would need to establish not only the relevant breach (and by whom, including the identity of the proper defendant), but also causation of some loss or damage. It is noted that no such claim has been brought, nor has an attempt been made to identify any category or quantum of relevant damage. 18. Second, that, to the extent that Plaza here asserts that Deicorp's entitlement to payment never arose because the contractual requirements for payment under the Stage 1 Construction Contract were never satisfied, then this might be the initial step in a claim for restitution of monies (on the basis that they were paid across by reason of a mistake of fact or law), however this is not a pleaded basis for Plaza's claims. It would had to have been pleaded (and, it is said, that this would have to have been pleaded, citing Electric Life Pty Ltd v Unison Finance Group Pty Ltd [2015] NSWCA 394 at [53]-[72], per Emmett AJA, with whom Gleeson JA and Tobias AJA agreed). Furthermore, it is said that no such claim is in fact pursued and there is no evidence to support the conclusion that payments under the Stage 1 Construction Contract were made to Deicorp by mistake. 19. Third, that given that Plaza asserts that the entire Stage 1 Construction Contract is "void and of no effect" (it is said, presumably as a consequence of the alleged "bribes" to Jamil), such claim, if any, would still be in the nature of a claim for equitable compensation (if loss could be proved) or restitution (because the lack of a valid contract leads to a potential restitutionary claim), as opposed to any claim in respect of the bribes themselves over which there may be declared a constructive trust or in respect of which there may be an order for an accounting. In this regard, it is again said that Plaza does not, however, plead (or purport to pursue), a claim in restitution and, even had Plaza chosen to pursue such a claim in restitution, an essential element in such a claim would have been establishing that it would be unfair or unconscientious or inequitable for Deicorp to retain the monies paid to it (citing, by way of example, Australian Financial v Hills at [1] per French CJ, [65]-[76] per Hayne, Crennan, Kiefel, Bell and Keane JJ, and at [105]-[106] and [138]-[142] per Gageler J). 20. Following, it is submitted that it is not apparent how Plaza could here have satisfied that necessary component of a claim in restitution when Deicorp has complied with its contractual promises and has delivered a valuable construction project. 21. Furthermore, it is said that, even if Plaza had sought to frame its claims as being brought in common law for monies had and received or as properly pleaded equitable claims for an account from a fiduciary, it remains the case that the Court would ultimately have to assess the availability of any claimed remedy by reference to the equities and justice of the situation. 22. In this connection, it is submitted that, insofar as Plaza seeks to suggest that it is automatically entitled to recover all monies which it claims in relation to the construction contracts, that approach is not supported by reference to either equitable or common law principles (here citing Mason CJ, Brennan, Deane, Dawson and Gaudron JJ in Warman International Ltd v Dwyer (1995) 182 CLR 544 at 559; [1995] HCA 18, that the liability to account on the part of a defaulting fiduciary may not arise where it would be unconscientious of the plaintiff to assert a liability to account and that the conduct of the plaintiff may be such as to make it inequitable to order an account; see also Deane J earlier in Chan v Zacharia at 204-205). 23. Fourth, and in addition to the above matters, it is submitted that a positive claim (albeit for defensive purposes) is brought by Deicorp by the Sixth Broadway Cross-claim (as to which, see below). In this regard, it is again noted that there has been no expert evidence served on behalf of Plaza to challenge Mr Portelli's evidence of reasonable value and, it is said, that there is therefore no evidentiary challenge to the conclusion that Deicorp delivered goods and services of a value which were equivalent to or exceeded the monies received by it under the Stage 1 Construction Contract (and also the Stage 2 Construction Contract). 24. With this background, I consider in turn each of the various claims asserted by prayers 40 through to prayer 56. Delay liabilities under the Stage 1 Construction Contract 1. First, Plaza pleads (see at paragraphs [346]-[368] of the Fifth Broadway Cross-claim) to various "delay liabilities" arising from what Plaza alleges were unauthorised delays in the "practical completion" of Stage 1 of the Broadway Development. 2. More particularly, paragraphs [347]-[349] plead that the Stage 1 Construction Contract defined the "Date for Practical Completion" such that the initial date for practical completion was 9 September 2013; and paragraph [350] pleads that the contract specified a liability on the part of Deicorp to pay liquidated damages of $7,500 per day for any delays in practical completion (up to a maximum of $500,000). 3. Following, Plaza alleges that Deicorp failed to achieve practical completion within the required time, thereby becoming liable to pay the full amount of liquidated damages of $500,000; and relief in relation to these alleged delay liabilities is sought by prayers 40 to 43 (noting, that the Deicorp Entities here submit that, aalthough prayers 40 to 43 make no reference to an amount of $500,000, prayer 44, as well as other prayers, such as prayer 45 and prayer 46 (each of which is pursued "in the alternative to prayers 40 to 43"), suggests that this amount of $500,000 is part of what is said, in prayer 40, as being an amount that was never a liability of the Broadway Partnership 4. The Deicorp Entities' response to these claims comprises several aspects. 5. First, the Deicorp Entities have led evidence as to the date of practical completion, which was achieved in respect of the Stage 1 works, being 3 December 2013 (as to which, see in the above chronology). 6. Second, the Deicorp Entities identify evidence which, it is said, establishes that the date for practical completion under the Stage 1 Construction Contract was extended. In this regard, they recall that the "Superintendent" (Mr Deiri) had the power unilaterally, without prior request and "at any time" and "for any reason" to extend the date for practical completion (see cl 35.5). Specifically, it is said that this evidence comprises, inter alia: first, extension of time notices, which were signed by Mr Rosa (on behalf of Deicorp) and Mr Deiri (on behalf of the Broadway Partnership and as Superintendent) (including Notice No 2 dated 12 November 2012, notifying a revised date of 23 November 2013, Notice No 3 dated 15 February 2013, notifying a revised date of 29 November 2013, Notice No 4 dated 18 March 2013, notifying a revised date of 5 December 2013, Notice 5 dated 19 April 2013, notifying a revised date of 9 December 2013 and Notice No 6 dated 18 June 2013, notifying a revised date of 14 December 2013. 7. It is submitted that it is clear also from other materials that those extensions of time were known by the relevant parties and that the parties were proceeding upon that basis. It is said that this is particularly so when one refers to the Napier & Blakeley reports issued from time to time by Mr Hammond (or his office), noting, for example, the Napier & Blakeley report issued on 21 August 2013 which references an extended date for practical completion of 14 December 2013. 8. Second, the Deicorp Entities here also rely upon the fact that variations to the Stage 1 Construction Contract were requested by the Broadway Partnership during the period after 9 September 2013. That is, it is said that this itself evidences, by necessary implication, that the date for practical completion was extended. 9. In this regard, it is to be noted that Plaza itself identifies (see at paragraphs [400]-[407] of the Fifth Broadway Cross-claim) that the requests for variations 8 to 22 and 108 to 114 were made after 9 September 2013 (being the initial date for practical completion). The Deicorp Entities also point to other evidence in respect of various variations as corroborating the nature, content and timing of the variation requests and the work performed and/or goods delivered in respect of each variation. 10. It is said that either of two things following from these variations, either: first, if those requests for variations were made by or on behalf of the Broadway Partnership (noting here Mr Deiri's role as Superintendent and within the Broadway Partnership itself, so to speak), then it necessarily follows that, by agreement communicated expressly or by conduct, the date for practical completion must have been extended so as to accommodate at least a reasonable period for the completion of the newly requested variations; or second, pursuant to cl 35.5, Deicorp would be "entitled" to an extension of time in the event of a request for the completion of any variations after the date for practical completion. 11. As to the first of those two propositions, the Deicorp Entities also point to the principle that a contracting party cannot rely upon its own conduct as a basis for a claim against the other party (see, for example, Alghussein Establishment v Eton College [1991] 1 All ER 267; [1988] 1 WLR 587), such that it would not be open to the Broadway Partnership (through the Fifth Broadway Cross-claim) to sue Deicorp for liquidated delay damages, which only arose because of the Broadway Partnership's request for further work to be undertaken 12. Furthermore, it is submitted that, in the event that Plaza were to succeed in its claim to relief in prayer 41 by which it seeks a declaration that the Stage 1 Construction Contract is void and of no effect, then Plaza will have no contractual entitlement to claim delay liabilities (noting also that the Deicorp Entities nevertheless continue to resist any hypothetical claim for restitution of the monies received by it on account of its construction work, as well as pursuing Sixth Broadway Cross-claim). 13. Meanwhile, the Deiri Parties note that the Plaza's argument is that the notices seeking extensions of time only extended completion by a total of 23.5 days (that is, up to 25 September 2013). It is submitted that, in calculating the number of days by which time was extended, Plaza has only added up the extensions on each of notices 2 to 6, but that there was in fact an earlier notice extending time and, while that notice is not in evidence, each of the subsequent notices specifies the cumulative days by which time has been extended, so that it is "obvious" how long the first extension was in the original notice. Furthermore, it is submitted that each of the subsequent notices clearly identifies the actual date of practical completion as a result of the extension. Determination re delay liabilities under the Stage 1 Construction Contract 1. As I have already noted, the date of practical completion was 3 December 2013 (and, indeed, there was an opening ceremony two days later which Moustafa attended). 2. I accept the submission that the evidence establishes that the date for practical completion under the Stage 1 Construction Contract was extended, particularly having regard to the extension of time notices (which, properly construed, the cumulative days of extension takes the date to 14 December 2013) and the Napier & Blakeley reports. I consider that Moustafa leaving Jamil to manage day-to-day responsibility for the running of the development gave him authority to approve extensions to the extent that any such approval was needed from Plaza's side. 3. I also see force to the proposition that the very fact that variations were requested during the period after 9 September 2013 itself evidences that the date for practical completion was extended (noting, for example, paragraphs [400]-[407] of the Fifth Broadway Cross-claim). 4. Though they do not succeed, I would accept that, in the event that Plaza succeeded in obtaining a declaration that the Stage 1 Construction Contract is void and of no effect, then Plaza would thereby have no contractual entitlement to claim delay liabilities. 5. It follows that these prayers fail. Next is the claim for the excavation costs. Excavation costs 1. As has been adverted to above, Plaza alleges (see paragraphs [369]-[371] of the Fifth Broadway Cross-claim) that certain excavation and earthwork costs were to be borne by Investments, rather than charged by Deicorp as part of the Stage 1 Construction Contract. 2. It is to be observed, as to the Deicorp Entities, that the way in which this claim is framed (in prayers 40 to 43 and then prayer 45 of the Fifth Broadway Cross-claim), it is clear that Plaza seeks that the full amount thereof ought to be disgorged. 3. The Deicorp Entities here note that the apparent foundation for this contention (referring to paragraph [370] of the Fifth Broadway Cross-claim) is the pleading at paragraph [21(d)]. 4. It is submitted that one of the difficulties with this claim, "beside the inherent unlikelihood of such an arrangement", is that the written contract terms (in the Stage 1 Construction Contract) referred to this work as within the scope of works to be completed by Deicorp. 5. It is submitted that the commercial reality is that neither Deicorp nor Mr Deiri had any cause to agree to undertake these significant works without charge and that there is no suggestion that Investments' subsequent investment of some $8 million in its acquisition of a 50% share was discounted from fair market value. 6. Finally, it is submitted that there is no persuasive evidence put forward on behalf of Plaza to the effect that any such alleged arrangement (for earthworks to be undertaken "for free") was in fact reached (here contrasting this with that fact, which I have so found, that Moustafa himself signed the Stage 1 Construction Contract). Determination re excavation costs 1. I have already dealt with this issue (see above). Stage 1 variations 1. Next are claims in relation to Stage 1 variations. 2. As the Deicorp Entities observe, paragraphs [372]-[407] of the Fifth Broadway Cross-claim set out a range of claims in respect of $3,949,241.00 received by Deicorp on account of what have been treated by Deicorp and the Broadway Partnership as variations to the Stage 1 Construction Contract. 3. It is convenient here to consider first the submissions for the Deicorp Entities and then for the Deiri Parties. Deicorp Entities' submissions 1. The Deicorp Entities here point to the expert report of Mr Michael Sanig (of 22 October 2019), where Mr Sanig expresses the view that various items charged by Deicorp ought to have been treated as provisional sums, rather than as variations (see, particularly, at [5.27]-[5.28]). The Deicorp Entities submit that it is not apparent that this distinction has any bearing upon the ultimate financial outcome. 2. In any event, the Deicorp Entities submit that there are several reasons, in part repetitive of matters considered above, as to why these claims must fail. In particular, and "without intending to be exhaustive", these include the following. 3. First, it is submitted that the power to direct variations to the contractual works (as referred to in paragraph [375] of the Fifth Broadway Cross-claim) was exercised by Mr Deiri (as Superintendent) in respect of the variations to the Stage 1 Construction Contract. In this regard, and to the extent that Plaza points to a lack of specific documentation, it is said that this is reflective of the circumstance that Mr Deiri was simultaneously the Superintendent, the principal of Deicorp and the relevant principal on behalf of the Broadway Partnership. 4. Second, and notwithstanding the preceding, it is said that there is a volume of documentation in respect of the variations (as summarised in in Appendix A and Appendix B to the Deicorp Entities' closing submissions). 5. Third, and in any event, it is said that the Stage 1 Construction Contract expressly contemplated and permitted the giving of verbal directions for the performance of variations. 6. Fourth, and contrary to what is pleaded (at paragraph [377] of the Fifth Broadway Cross-claim), it is said that, rather than the variations being invalidly requested because this occurred after the initial date for practical completion, the fact of such requests for variations corroborates and confirms, as a necessary consequence, the fact of the extension of that practical completion date. 7. Fifth, it is said that the variations, which were performed by Deicorp, were requested by Mr Deiri (whether as Superintendent or as principal on behalf of the Broadway Partnership) and the work performed by Deicorp delivered a benefit to the Broadway Partnership, including because some of the variations were undertaken by reason of the requests or requirements of incoming tenants (pointing, by way of example, to Woolworths). Similarly, it is noted that other such variations or increased amounts for provisional sums arose because of the requirements of the local authorities, such as what was then known as the Roads and Traffic Authority (for example, pointing to the minutes of Coordination Meeting No 46 of 2 May 2012 at Item 1.40.1, which notes that the Roads and Traffic Authority had identified that certain items of work "will be part of DA Conditions"; and Mr Kyrikos' oral evidence in which he identified, "… often you have numerous council conditions that require you to do a whole lot of things, specifically more, than what you had originally priced" – see T 1233.32-39). 8. Sixth, it is said that, In circumstances where Plaza has not pleaded and now expressly disavows any claim for monies had and received, it is not apparent upon what basis Plaza is entitled to any judgment in its favour (noting, for example, that Plaza has not established that retention of those monies by Deicorp results in an unjust enrichment that offends the conscience). 9. Seventh, and finally, it is said that, in the event that Plaza is correct in its contention that the Stage 1 Construction Contract is void and of no effect, then it may be that any question of compliance with contractual terms is irrelevant. Deiri Parties' submissions 1. Relevantly, the Deiri Parties submit that the construction contracts specified that the builder was to deliver to the Superintendent a payment claim, the Superintendent would assess the claim and issue a payment certificate and that payment would then be made to the builder in the amount certified (see cl 42.1). As has been noted, Mr Deiri was the Superintendent. 2. It is submitted, however, that at no stage did any of the parties adhere to this procedure and the use of the standard construction contracts were simply not customised to remove the relevant terms about the payment regime and to specify that the regime that was used was to be adopted. 3. It is said that, at the level of contractual analysis, there was a variation of the written construction contracts in effect to replace the payment regime requiring the lodgement of payment claims with the Superintendent and the certification by the same, with a regime under which claims were submitted to CBA's quantity surveyor (as will be recalled, Napier & Blakeley), and payment would occur upon recommendation by it (see also Investments' amended defence to the Fifth Broadway Cross-claim at [192]) It is said that this variation is evidenced by the terms of the CBA cash facility and the practice itself. 4. Specifically, as to the facility, under the Stage 1 Loan (signed by Moustafa on behalf of Investments on 15 February 2012 – see at [261] in the above chronology), cl 10.2(b)(i) provided that the borrower acknowledges: … progress payments will be calculated on a cost to complete basis to the Bank approved development budget. The Bank approved external property consultant quantity surveyors certificate must state: (A) the value of the work completed (B) the amount required to complete the works, and (C) that on enquiry of both the Borrower and the major subcontractors, they have confirmed that there are no disputes pending either in respect of the standard of work completed or payment of monies due under the subcontracts. (Note: When calculating these items, GST is to be separately itemised. GST reconciliation to the project budget is to accompany each progress payment I drawdown request) 1. (The provision for Napier and Blakely to certify progress claims was also contained in the Stage 2 Loan.) 2. It is submitted that these provisions bound Investments and Plaza as a matter of contract, and provided for the process by which progress claims were to be certified. It is said that, in effect, the CBA facility contemplated and required that progress payments would be submitted to, and assessed by, the quantity surveyor, and that payment would occur upon recommendation by it. 3. Furthermore, it is said that, in this case, Plaza knew that work was being carried out under the construction contracts, it knew that payment claims were required to be submitted for certification by Napier and Blakeley and it never objected to the payment claims. 4. Furthermore, the Deiri Parties and Deicorp rely on a conventional estoppel to the effect that Plaza are here estopped by convention (quoting Brereton J, as his Honour then was, in Moratic v Gordon at [32], as approved by the Court of Appeal in TMA Australia Pty Ltd v Indect Electronics & Distribution GmbH [2015] NSWCA 343 at [115] per Meagher JA, with whom Macfarlan JA and Bergin CJ in Eq agreed, and Ryledar at [200]) from asserting otherwise than that payment claims certified by the CBA quantity surveyor were payable, and were claims in respect of which Plaza and Investments were responsible equally. 5. In this respect and otherwise, it is noted that Jamil knew the procedure adopted did not involve payment certificates, but rather the verification of work by CBA's quantity surveyor, and the payment by CBA once Napier & Blakeley recommended payment; and that he was copied to "almost all of that correspondence", but never suggested that the process being followed was not in conformity with the construction contracts. 6. As to this final matter, it is submitted that, because Jamil was authorised to act on Plaza's behalf in this respect, Jamil's knowledge is attributable to Plaza. Determination re Stage 1 variations 1. I accept the submissions for the Deicorp Entities, as to the Stage 1 variations claims. 2. Furthermore, as I have said, I have found that Moustafa left to Jamil, and thereby impliedly authorised him, relevantly to manage the day-to-day affairs of the Broadway Partnership and construction works. I consider that this authority extended to variation of works and, relatedly, that Jamil's knowledge must, at least in this particular context, be taken to be knowledge of Plaza. 3. This makes it unnecessary separately to determine the conventional estoppel point, though, for similar reasons as those given below in relation to another extant issue on the Fifth Broadway Cross-claim, I see force to that proposition. Variation No 8 1. At paragraphs [389]-[399] of the Fifth Broadway Cross-claim, Plaza raises a separate and discrete claim in respect of Variation No 8. 2. The Deicorp Entities submit that the precise basis for the complaint in relation to the sums claimed under Variation No 8 (being an amount of $2,028,166.00) is "not entirely clear". Indeed, it is said that the essence of Plaza's complaint appears to be that this variation included amounts, which were properly characterised as an upward adjustment of a provisional sum (rather than a variation to the contract). It is then said (at paragraph [391] of the Fifth Broadway Cross-claim, and see also further at paragraphs [393]-[395]) that this has the consequence that the superintendent was never authorised to approve this component of the purported variation. Determination re Variation No 8 1. This claim also fails, for several of those reasons given in relation to the preceding claims. 2. Furthermore, by cl 11 of the Stage 1 Construction Contract, Mr Deiri (as Superintendent) was entitled to direct Deicorp to undertake work in relation to a provisional sum item and, upon doing so, Deicorp was entitled to charge to the Broadway Partnership the amount of any such provisional sums, plus its profit and attendance margin of 15%. 3. As to the particulars (to paragraph [389] of the Fifth Broadway Cross-claim), and specifically Plaza's suggestion that Mr Deiri did not have the authority of the Broadway Partnership to sign contractual documents, I note my observations above as to Mr Deiri's authority as a partner (particularly both at general law and pursuant to section 5 of the Partnership Act) to act on behalf of the partnership and to bind the partnership; and, also, I note that a term of the partnership agreement was that, Investments would manage the design and construction. Next are the claims in relation to variations after practical completion. Variations after practical completion 1. Paragraphs [400]-[407] of the Fifth Broadway Cross-claim set out a complaint by Plaza that certain variations were requested or approved (though Plaza denies that they were validly approved) after the date for practical completion. Determination re variations after practical completion 1. As an initial matter, I recall my disposition in relation to the claims for "delay liabilities". 2. In this context, I accept the submission for the Deicorp Entities that there seems to be manifest inconsistency in that this claim is predicated on the fact that construction was continuing beyond 9 September 2014). 3. In any event, this claim fails for the reasons given in relation to the preceding claims. 4. Finally, at least in relation to Stage 1, there are the claims relating to provisional sums. Stage 1 provisional sums 1. Paragraphs [408]-[417] of the Fifth Broadway Cross-claim impugn the entitlement of Deicorp to retain payment of $3,480,861 in respect of provisional sums. 2. The Deicorp Entities here outline that "provisional sums" are amounts allocated, at the time of contract, in respect of works where the precise extent and/or cost of those works is uncertain. Indeed, as Mr Sanig has noted at paragraph [6.7] of his report dated 1 November 2019 in respect of the Arncliffe Development, "in some circumstances, unforeseen events mean that the Provisional Sum is exceeded, sometimes by a significant amount" and "[t]his can be added to the contract sum". 3. It is submitted that paragraph [409] of the Fifth Broadway Cross-claim does not accurately represent the meaning and effect of cl 11 of the Stage 1 Building Contract. In this connection, it is said that cl 11 has the effect that, where a provisional sum for some work or item is included in the contract and where that work or item is performed or supplied by a subcontractor, then Deicorp is entitled to receive that payment (which it must make to its subcontractor or supplier) plus 15%. 4. In particular, it is submitted that there is no required process of valuation of the works or items; and, even if Deicorp and the Broadway Partnership (through Mr Deiri or otherwise) erroneously characterised specific amounts as variations, instead of distinctly as provisional sum adjustments, this does not affect either Deicorp's ultimate entitlement or the overall reasonableness of the amounts charged by Deicorp. 5. The Deicorp Entities here point to Mr Sanig's cross-examination in respect of this "mixing up" of variations and adjustments to provisional sums (see T 1442.36 – T 1443.20) where, it is said, he agreed that this ultimately was an issue of characterisation or categorisation only. Determination re Stage 1 provisional sums 1. I accept Mr Sanig's evidence as to the basis on which the adjustments to provisional sums were made. I do not consider that lack of a written direction in relation to the provisional sums (irrespective of whether that was in breach of the procedure provided for under the contract) has the effect that they are now irrecoverable. 2. I now turn to the claims in relation to the Stage 2 Construction Contract, many of which, in light of the preceding, can be readily disposed of, being essentially repetitious of the claims made in relation to the Stage 1 Building Contract Stage 2 Construction Contract 1. As an initial matter, I must note that, as is apparent from the Formal Instrument of Agreement (as to which, see in the chronology above), the contract in question was as between the "Broadway Plaza Partnership" and "Deicorp Construction Pty Ltd", while Plaza has here pleaded its claim against Deicorp Pty Ltd (a different company). 2. By agreement, it is accepted that this error in the pleading ought not itself impede the ability of the Sayour Parties (on the Fifth Broadway Cross-claim) and the Deicorp Entities (on the Sixth Broadway Cross-claim, which has been brought in the name of Deicorp Pty Ltd) to obtain such, if any, relief as to which they might otherwise be entitled. Consequently, those parties were content for the Court to proceed upon the basis that, insofar as the Stage 2 Construction Contract is concerned, the Fifth Broadway Cross-claim and the Sixth Broadway Cross-claim each permits the liabilities and the entitlements of Deicorp Construction Pty Ltd here to be pursued. 3. Again, it is convenient first to consider the submissions for the Deicorp Entities (it being unnecessary here also to outline the submissions for Plaza or the Deiri Parties). Deicorp Entities' submissions generally 1. It is noted that paragraphs [418]-[437] of the Fifth Broadway Cross-claim plead to various allegations and complaints in relation to the Stage 2 Construction Contract. Prayers 49 to 57 (and also prayer 59(b)) set-out Plaza's claims for relief in relation to the Stage 2 Construction Contract. 2. Essentially, Plaza seeks to recover all payments made to Deicorp on account of the construction works. 3. More particularly, paragraphs [418]-[419] plead to the initial tender price of $23.5 million provided in September/December 2011 (as to which, see at [139] in the above chronology). 4. The Deicorp Entities here contend that the fact that, by May 2013, there was a need to issue a revised tender amount (as will be recalled, at $24.85 million – as to which, see at [354] in the above chronology) in respect of the Stage 2 works as "hardly surprising" (pointing to the period of around 18 months that had elapsed since the initial price indication and that it was necessary for the Stage 1 works to be complete, or at least substantially complete, before the Stage 2 works could commence). 5. It is also noted that this increase in tender price was in the order of 5.75% (which, on an annualised, compounding basis, is an increase or around 3.8% per annum). It is said that this is "hardly extraordinary", but that it "would, however, be extraordinary for a building to be held to a price for Stage 2 works, which had been submitted more than 18 months previously and at a time when Stage 1 of the project had not yet commenced". 6. Furthermore, the Deicorp Entities contend that, as is acknowledged in paragraph [420] of the Fifth Broadway Cross-claim, this proposed contract price of $24.85 million was, as a matter of fact, accepted both by Jamil and Mr Deiri on behalf of the Broadway Partnership (as to which, see at [356] in the above chronology). It is said that Mr Deiri (in his capacity as the director of Investments) would have been entitled, on behalf of the Broadway Partnership, to act on its behalf vis-à-vis entering a building contract. 7. Pausing here, I note my previous findings in relation to the extent of Jamil's authority and responsibility reposed in him by Moustafa. Similarly, I note my finding that the various Powers of Attorney did not authorise Jamil to enter into such a contract. Finally, I also note my disposition in relation to asserted actual authority on the part of Investments to bind Plaza by reason of the Partnership Act 8. The Deicorp Entities, however, say that, in circumstances where Plaza acknowledges that Jamil was its agent in respect of the Broadway Development, it is not permissible (nor consistent with good conscience) for Plaza now to ignore the legal and practical consequences flowing from Jamil's acceptance of the tender price of $24.85 million. 9. Pausing here, again, I note my disposition as to the extent of Jamil's responsibility and authority. I do not accept that the Stage 2 Construction Contract was validly entered into or binding by Plaza. However, I also note my disposition in relation to the quantum meruit claims, whether by way of cross-claim or defence. 10. Next, insofar as Plaza alleges (see paragraph [436] of the Fifth Broadway Cross-claim) that the Stage 2 Construction Contract was a "sham", the Deicorp Entities point to the observations of Leeming JA (with whom McColl JA and Sackville AJA agreed) in Lewis v Condon (2013) 85 NSWLR 99; [2013] NSWCA 204 at [57]-[69] as to the ambiguity of the expression "sham" in the necessity to use the term "precisely" (see at [57]). I accept the criticisms of the sham argument but, ultimately, I consider the agreement was unauthorised. 11. Otherwise, Plaza's claims in respect of payment claims under the Stage 2 Construction Contract are framed in the same way as those set out in respect of the Stage 1 Construction Contract, and the responses of the Deicorp Entities to these Stage 2 Construction Contract claims raise the same matters. 12. More specifically, the Deicorp Entities refer to the expert evidence of Mr Portelli as demonstrating the reasonable value of the entirety of the works undertaken on the Broadway Development which it said that answers any suggestion that Deicorp was overpaid for the value and benefit that it delivered and to the procedure for the issuing of progress claims is also the subject of affidavit evidence. Relevantly, such evidence is found in the affidavit of Mr Rosa sworn on 26 July 2019 (at [30]-[39]), the aaffidavit of Mr Hammond sworn on 16 August 2019 (at [30]-[34]) and the affidavit of Mr Deiri sworn on 22 August 2019 (at [164]-[174]) (see also Mr Portelli's expert report dated 6 June 2019 at [8.1] and [9.1]; and, an assessment of the reasonable value of the work performed in respect of variations – see Mr Portelli's expert report dated 6 August 2019 [8.1] and [9.1]). 13. If Deicorp is wrong in these contentions, it brings the Sixth Broadway Cross-claim seeking an award of monetary compensation on a quantum meruit and/or quantum valebat basis. 14. In the event that I am wrong in the conclusion that the Stage 2 Construction Contract is not binding (and only on that aspect), I turn to the specific claims made. Delay liabilities under the Stage 2 Construction Contract 1. Paragraphs [463]-[485] of the Fifth Broadway Cross-claim refer to matters pertaining to what Plaza says are "delay liabilities" arising from (it is said) unauthorised delays in the practical completion of Stage 2 works. 2. Relevantly, the Stage 2 Construction Contract specified a date for "Practical Completion" of 15 October 2014 and a liability on the part of Deicorp to pay liquidated damages of $6,500 per day for any delays in practical completion (up to a maximum of $500,000). 3. Plaza here contends that practical completion occurred on or around 4 November 2014 (see paragraph [480]) and claims an entitlement to reimbursement of $130,000 (see paragraph [482] and prayer 54). 4. Meanwhile, Deicorp's position is that the date for practical completion was extended by Mr Deiri (both as Superintendent and as representative of the Partnership). It is said that this is evidenced inter alia by extension of time notices (being Notice No 1 dated 31 March 2014, notifying a revised date of 31 October 2014; and Notice No 2 dated 30 April 2014, notifying a revised date of 5 November 2014). 5. Deicorp also provides evidence that practical completion of the Stage 2 works was achieved on 28 October 2014 (see, for example, Mr Hammond's affidavit sworn on 16 August 2019). 6. As in relation to Stage 1, the Deicorp Entities also observe that, to the extent that Plaza contends that the Stage 2 Construction Contract is void and of no effect (see prayer 50), this outcome would have the consequence that there is no contractual obligation on the part of Deicorp to pay any compensation on account of delays (even assuming that there were unapproved delays). Determination re delay liabilities under the Stage 2 Construction Contract 1. I accept the submissions for the Deicorp Entities. These claims fail for the same reasons as do the claims in relation to the Stage 1 Construction Contract. 2. Indeed, by way of amplification, it must be recalled that I have found that Moustafa left it to Jamil to manage the running of the project day-to-day, thereby giving him authority to approve extensions to the extent any such approval was needed from Plaza's side. 3. Next are claims in relation to variations. Stage 2 variations 1. Paragraphs [486]-[498] of the Fifth Cross-Claim refer to various contractual provisions in the Stage 2 Construction Contract relating to variations. Plaza here claims that payments of $2,073,282.00 (excluding GST) ought to be recovered from Deicorp (see prayer 55, together with prayers 49 to 53). As to the Deicorp Entities contend, essentially, Plaza is seeking that the entirety of the construction costs associated with the Broadway Development be reimbursed by Deicorp. 2. The variations in relation to the Stage 2 Construction Contract are set out in Schedule C to the Fifth Broadway Cross-claim. 3. The Deicorp Entities have provided evidence relating to the issues of variations and progress claims under the Stage 2 works, as follows. 4. First, the procedure for Deicorp issuing progress claims (including the progress claims which contained claims in respect of variations) is identified in: the affidavit of Mr Rosa sworn on 26 July 2019 (see at [30]-[39]); the affidavit of Mr Hammond sworn on 16 August 2019 (see at [30]-[34]); and the affidavit of Mr Deiri sworn on 22 August 2019 (see at [164]-[174]). 5. Second, the procedure, as between Deicorp and the Broadway Partnership, in relation to variations is traversed in the affidavit of Mr Rosa sworn on 26 July 2019 (at [58]-[66]). 6. Third, the approval by Mr Deiri and Mr Hammond of variations under the Stage 1 Construction Contract and Stage 2 Construction Contract is traversed in: the affidavit of Mr Rosa sworn on 26 July 2019 at (at [65]-[66]); the affidavit of Mr Hammond sworn on 16 August 2019 (at [34] and [273]-[274]); and, for example, the affidavit of Mr Deiri sworn on 22 August 2019 (at [200]). 7. Fourth, the reasonable value attributable to the variations performed in respect of both the Stage 1 Construction Contract and Stage 2 Construction Contract is identified in: the expert report of Mr Portelli dated 6 August 2019 (see at [8.1] and [9.1]); and the affidavit of Mr Hammond sworn on 16 August 2019 (see at [34]). Determination re Stage 2 variations 1. Again, I accept the submissions for the Deicorp Entities, as to the Stage 2 variations claims. 2. Furthermore, as I have said in relation to the Stage 1 variation claims, I have found that Moustafa left to Jamil, and thereby impliedly authorised him, relevantly to manage the day-to-day affairs of the Broadway Partnership and construction works. I consider that this authority extended to variation of works and, relatedly, that Jamil's knowledge must, at least in this particular context, be taken to be knowledge of Plaza. Variation No 1 1. At paragraphs [499]-[507] of the Fifth Broadway Cross-claim, Plaza raises a separate and discrete claim in respect of Variation No 1. 2. The Deicorp Entities characterise the essence of Plaza's complaint as being that Variation No 1 comprised amounts properly characterised as an upward adjustment of a provisional sum, rather than a variation. It is said that this has the consequence that the contract superintendent was never authorised to approve that purported "variation". 3. It is said for Deicorp that this allegation "makes no sense". Deicorp's response is generally as outlined in response to Variation No 8 under the Stage 1 Construction Contract (see above). 4. Furthermore, I note evidentiary references in respect of this variation are set out non-exhaustively in Appendix B to the Deicorp Entities' closing submissions. Determination re Variation No 1 1. This claim fails for the same reasons as those set out in relation to Variation No 8 under the Stage 1 Construction Contract. Variation No 2 1. This claim raises relevantly similar issues as those raised by the claim in relation to Variation No 1. Indeed, the Deicorp Entities' responses to the claims set out in this portion of the Fifth Broadway Cross-claim are relevantly the same. 2. Again, I note that evidentiary references in respect of this Variation No 2 are set out non-exhaustively in Appendix B to the Deicorp Entities' closing submissions. Determination re Variation No 2 1. This claim fails for the same reasons as those set out in relation to Variation No 1. Variation No 3 1. Paragraphs [516]-[529] of the Fifth Broadway Cross-claim raise claims in respect of Variation No 3. Under Variation No 3, Deicorp claimed an amount of $580,000 in relation to what were described as "escalation costs". The Deicorp Entities here note that "escalation costs" are increased costs attributable to the inflation in costs required to be incurred. 2. Relevantly here, Variation No 3 was submitted and was said to have been approved by agreement between Mr Deiri and Jamil (see the affidavit of Mr Deiri sworn on 22 August 2019 at [201]-[204]). 3. Given that the Stage 2 Construction Contract was a fixed price contract, Deicorp accepts that, were it not for the aforementioned agreement reached between Mr Deiri and Jamil, it would have had no contractual entitlement to recover any such escalation costs. In this connection, it is submitted that Jamil was authorised, on behalf of both the Broadway Partnership and Plaza, to agree to such matters in respect of construction-related issues and construction costs. 4. It is also said that, if Plaza's contentions (that the Stage 2 Construction Contract is void and of no effect (see prayer 50) is accepted, then the receipt (and retention) of payments by Deicorp falls to be assessed essentially on a quantum meruit basis (whether by way of defence to the Fifth Broadway Cross-claim or under the Sixth Broadway Cross-claim). Determination re Variation No 3 1. While I have found that Jamil had been left by Moustafa with day-to-day authority to manage the Broadway Development, I do not accept that this extended to entry into the Stage 2 Construction Contract. As to whether it extended to the variations (by approval of escalation costs), again, I consider that these were project management decisions within his authority and thus Jamil's day-to-day authority would extend to authority to bind Plaza to increased contract prices by way of acceptance of escalation costs. Accordingly, this claim by Plaza would fail but for the determination as to the invalidity of the Stage 2 Construction Contract itself. In those circumstances, however, the quantum meruit claim comes into play (see below). 2. In this connection, it is submitted that Jamil was authorised, on behalf of both the Broadway Partnership and Plaza, to agree to such matters in respect of construction-related issues and construction costs, here noting that he had himself "validly agreed" to the terms of the Stage 2 Construction Contract. 3. It is also said that if Plaza's contentions (that the Stage 2 Construction Contract is void and of no effect (see prayer 50) is accepted then the receipt (and retention) of payments by Deicorp falls to be assessed essentially on a quantum meruit basis (whether by way of defence to the Fifth Broadway Cross-claim or under the Sixth Broadway Cross-claim). Variations after practical completion 1. The Deicorp Entities note that a discrete claim is made by Plaza on the basis that Variation No 2, Variation No 3 and Variation No 4 occurred after the date for practical completion. Generally, the Deicorp Entities' response to this allegation is the same as set out in relation the equivalent claim vis-à-vis the Stage 1 Construction Contract (as to which, see above). 2. In summary, the position of the Deicorp Entities is that variations were performed and Deicorp was entitled to be paid for that work and those goods and services supplied. As a matter of fact, the date for practical completion was extended, so these variations did not occur after the actual date for practical completion of the Stage 2 works. Determination re variations after practical completion 1. I accept the submissions for the Deicorp Entities for the reasons set out in my determination of the equivalent claim made under the stage 1 Construction Contract. Claims against the builder for profits (prayers 57 to 59) 1. As adverted to, prayers 57 to 59 proceed on the alternative basis to that asserted in the First Broadway Cross-claim (as to which, see above) – that the payments were not payments by the Broadway Partnership at all. 2. I note again that the claims in prayers 57 to 59 arise only if, or to the extent that, the Broadway Partnership does not recover from CBA in respect of the Deicorp payments, because, if such recovery is made, CBA has a restitutionary claim against Deicorp in which case Deicorp will not have profited. 3. As above, it is convenient to consider various aspects of these claims seriatim. 4. I have outlined above, when considering the claims for payments made under the construction contracts, various of the relevant submissions for the Deicorp Entities. Prayer 57 1. Prayer 57 proceeds on the footing that Deicorp is not entitled to retain the benefit of the construction payments at all because those payments were associated with the entry into and performance of an arrangement to pay secret commissions. 2. Prayer 57 fails because the relief sought from Deicorp is predicated on a finding that the payments were associated with entry into (and performance of) an arrangement to pay secret commissions. I have made findings adverse to the basis for relief. Prayers 58 and 59 1. Prayers 58 and 59 seek compensatory relief for loss said to have been suffered by Plaza in respect of the Stage 1 Construction Contract and Stage 2 Construction Contract. Prayer 58 1. The first claim (prayer 58) is the difference between the amount paid and the figure mentioned in Jamil's email of 19 September 2011 (as to which, see at [130] in the above chronology). The latter, alternative, claim is more confined, being the difference between the Stage 2 construction price and the figure mentioned in Jamil's email of 19 September 2011 (as to which, see in the above chronology). 2. The Deicorp Entities submit that there are several difficulties with this claim, including the following. 3. First, that the legal and/or equitable basis upon which Plaza brings this claim is unclear. It is noted, for example, that there is no allegation further to an allegation that Plaza had no knowledge of the potential for a lower contract price to be achieved and that, even if such facts could give rise to a valid claim, it is for Plaza to establish that a "better" contract could have been obtained (and that no any lay or expert evidence has been led to support that conclusion). 4. Second, and relatedly, that the allegations that "another builder" was allegedly "willing" to contract to undertake the Stage 1 works for $32 million is "a meaningless contention", particularly without evidence that this unspecified builder had the experience, skill and resources (financial and non-financial) in order to complete the project at that price and in accordance with any other applicable terms or conditions. It is said that price is not the only relevant factor in determining the suitability of a contractor, especially in the context of a large development such as Broadway Plaza. Furthermore, it is said that it is not apparent that this builder had conveyed any "willingness" to contract at that price on the basis of a sufficient review of any relevant construction plans or documentation (noting also that no evidence has been led from that builder). 5. Meanwhile, the Deiri Entities submit that Plaza has not demonstrated that it has suffered any loss by the entry into the construction contracts. It is noted, similarly to the Deicorp Entities, that: first, when Jamil wrote the email to Mr Deiri on 19 September 2011, he had not received a quote for the amount he claimed in that email (and, at that point, had not received the quote from Dyldam and was attempting to "squeeze" Mr Deiri on price; second, that quotation is not a comparable competitor quote; third, Moustafa has given no evidence about what he would have done had the information been provided to him (and, again, nor has evidence been called from Dyldam about what it would have done and the terms of any joint venture); and, fourth, Plaza has not established that it would have been able to achieve a more favourable outcome had it not proceeded with Investments. 6. I accept each of these submissions and, accordingly, this prayer for relief fails. Prayer 59 1. The alternative (prayer 59) is more confined, being the difference between the Stage 2 construction price and figure mentioned in Jamil's email of 19 September 2011 (as to which, see in the above chronology). 2. Although more confined, the basis for relief is essentially the same as prayer 58 (it simply being an alternative point of reference for the quantification of loss). 3. Accordingly, this prayer also fails. Determination re claims against the builder for profits (prayers 57 to 59) 1. For the preceding reasons, each of prayers 57 to 59 fail. Deicorp profits, constructive trust and other claims in respect of profits (prayers 60 to 72) 1. As to the claim for a constructive trust, the Sayour Parties submit that bribers are not entitled to profit from transactions induced by bribery and the whole benefit of the Broadway Partnership was obtained in association with an arrangement to pay secret commissions; and again, Investments, Mr Deiri and the related entities acted in concert and are accountable for the distributions to them. 2. Alternatively, the case for the Sayour Parties is that each is severally accountable for the payments that it received by way of distribution. 3. In support of these claims, the Sayour Parties again rely on what was said in Grimaldi v Chameleon Mining (No 2) (at 575-576) (see above). 4. Furthermore, it is said that, where the advantage of Investments' wrongdoing accrues to an alter-ego (or various alter egos), then the liabilities of Investments are joint and several with the fiduciary (citing Grimaldi v Chameleon Mining (No 2) at [556]). In this connection, it is noted that Mr Deri's companies are all controlled by him and are owned by trusts associated with him. 5. In the alternative, it is submitted that, even were the Deicorp group of companies not considered alter egos, that would only have the effect of making each of those companies severally liable for the profits it made in consequence of the breach (again, citing Grimaldi v Chameleon Mining (No 2) at [557]). 6. It is also submitted that the liability of the Deicorp Entities to account is not dependant on Plaza demonstrating that the breach of fiduciary duty or dishonest conduct has resulted in loss or detriment to Plaza (citing Consul Development v DPC Estates at 394). Deiri Parties' submissions generally 1. In relation to the preceding claims, the Deiri Parties submit as follows. 2. The Deiri Parties note that Plaza here claims that Investments, Mr Deiri and the related Deicorp entities "are not entitled to profit from the transactions"; and, therefore, that they are liable to account for any profits made from the Broadway Partnership (and all of the profits are held on constructive trust, including any moneys the builder made by way of its construction contracts and any partnership distributions made to Investments). 3. The Deiri Parties say that the only authority cited in support of this entitlement is Grimaldi v Chameleon Mining (No 2). Though, it is submitted that, in the passage relied upon by Plaza, the Court was addressing the remedies available to a principal against the agent for breach of fiduciary duty (and, it is said, the Court was not addressing relief against the alleged maker of the bribe). It is submitted that the passage from Grimaldi v Chameleon Mining (No 2) has no possible application to a situation where there is a contractual regime for two partners to receive an equal share of partnership proceeds. 4. It is said that Plaza has not identified any other authority which would support its position that it is entitled to an account of Investments' profits. It is added that such an order would result in a windfall gain to Plaza, while it takes the benefit of the Broadway Development. It is said that there is "no reason in principle or logic" why Investments would be required to disgorge to Plaza its own share of the partnership distributions. 5. In amplification of this position and also as to various of the other claims, the Deiri Parties further submit as follows. Plaza not entitled to both compensation and an account of profits 1. As to claims in compensation and for an account, the Deiri Parties say that Plaza seeks equitable compensation in respect of what it claims were "bribes" paid to Jamil while at the same time seeking an account of profits from the Deiri Parties as a result of Jamil's alleged breach of fiduciary obligations. Crucially, it is submitted that the two are alternate remedies and Plaza is not entitled to both. 2. It is noted that, while, the Sayour Parties accept (see at [511] of the Sayour Parties' reply submissions) that they must elect between the two remedies, the Sayour Parties position is that such an election will only arise at the stage of judgment. Meanwhile, the Deiri Parties' position is that the time for election has passed and the right to elect has been lost. The Deiri Parties note that, Hexiva Pty Ltd v Lederer [2006] NSWSC 318, Brereton J (as his Honour then was) said (at [60]): 60. Thus, a plaintiff should not be required to elect, at least until all the evidence is complete, and if the trial is not split, the parties will have to call evidence addressing both damages and an account of profits, as would the respondents; whereas if the trial is split, so that there is a separate inquiry as to the quantum of compensation, then the issue does not arise until after liability has been determined, and the election is made before the inquiry as to quantum is embarked upon … 1. It is said that, here, there is no split trial, the evidence is complete, and Plaza has had an opportunity to assess the potential entitlement under each remedy. Account of profits as a remedy for bribes 1. The need for election aside, the Deiri Parties next observe that the Sayour Parties have here made various submissions concerning the grounds for relief for bribery. It is said that many of these submissions were made in reply, while they are to be properly characterised as submissions in chief (and, therefore, the Sayour Parties needed to be make the submissions in chief). Indeed, the Deiri Parties say that the Sayour Parties' submissions in chief, "failed entirely to explain the basis of the relief sought and the authorities which support it". 2. Following, it is said that the Sayour Parties now seek to explain the basis of their relief sought by reason that "bribers" are third-party knowing participants in a breach of fiduciary duty and because knowing assistants are liable to account to the principal (and, accordingly, a "briber" is accountable in the same way). It is noted that there is no pleading of a breach of fiduciary duty by Jamil, and no pleading of knowing assistance in breach of that fiduciary duty by Investments. Accordingly, it is said that Plaza cannot now make that claim. 3. In any event, it is submitted that, if the Court permits the claim to be made, the Sayour Parties have failed to identify (and to prove) the necessary causal connection between the relevant breach of fiduciary duty in which Investments is now alleged to be a participant, and the relevant profits for which an account is sought. In particular, it is noted that the prayers for relief seek an account of profits "received and receivable" by Investments and other Deicorp entities from the partnership, yet (it is said) the Sayour Parties were required to identify what profit the fiduciary has made "in consequence of" the breach of fiduciary obligation (quoting Grimaldi v Chameleon Mining (No 2) at 406) or "as a result of such participation" (quoting Consul Development v DPC Estates at 397 per Gibbs J, as his Honour then was). 4. It is further noted that more recently, in Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd (2018) 265 CLR 1; [2018] HCA 43 (Ancient Order), Kiefel CJ, Keane and Edelman JJ examined the causal requirements in a claim for an account of profits for knowing participation in a breach of fiduciary duty. Relevantly, their Honours said (at [9]): 9. Whether a benefit can be said to be obtained "as a result of" knowing participation in a breach of fiduciary duty by another contrary to the principles of equity is a question of causation or contribution that depends on "a precise examination of the particular facts" of the case … It is sufficient to show that the profit would not have been made but for dishonest wrongdoing. 1. Their Honours then said (at [13]) that: 13. … equity will not require an errant fiduciary or a participant in a breach of fiduciary duty to account for an advantage which the breach of fiduciary duty has not caused or to which it has not sufficiently contributed … 1. Similarly, Gageler J said (at [88]) that: 88. A causal connection between a fiduciary's breach of fiduciary obligation and a benefit or gain sufficient for the fiduciary or knowing participant to be liable to the equitable remedy of account will exist if the benefit or gain to the fiduciary or knowing participant would not have been obtained "but for" the breach, in the same way as a causal connection sufficient for the fiduciary to be liable to the equitable remedy of compensation will exist if a loss to the person to whom the fiduciary obligation is owed would not have been sustained but for the breach. Because the concern of equity is to vindicate the equitable obligation that has been breached, the "but for" connection will be sufficient even though other contributing causes might be in play. 1. Meanwhile, Nettle J said (at [179]) that this question: 179. … necessitates application of what is in effect, if not in name, an equitable conception of causation of whether the breach of fiduciary duty has materially contributed to the profit the subject of account, as opposed to legal tests of causation and remoteness. 1. It is submitted that, here, the Sayour Parties have "wholly failed" to identify, much less to prove, the particular breach of fiduciary obligation by Jamil and how Investments would not have obtained a profit but for that breach (noting also that the Sayour Parties have also not pleaded the same). It is submitted, by way of example, that it cannot be that all of the profits Investments obtained throughout the Broadway Partnership would not have been obtained but for a breach of Jamil's fiduciary obligations. Accordingly, it is submitted that an account of profits should therefore be refused on that basis alone. 2. Again further and in the alternative, it is submitted that, even if causation is here established, Investments would satisfy the burden that then shifts to it of demonstrating that the benefit of the advantage is beyond the scope of the liability for which it should account. In this regard, the Deiri Parties note that, in Ancient Order, Kiefel CJ, Keane and Edelman JJ said (at [15] and [16]): 15. A wrongdoer might prove that some profit or benefit is beyond the scope of liability for which he or she should account if the profit or benefit has no reasonable connection with the wrongdoing. … 16. No precise test has been prescribed for determining when it will be inequitable to account for a benefit on the basis that it has no reasonable connection with wrongdoing. Nor is there any need for such a test. All of the circumstances must be considered, including the nature of the conduct. 1. Following, it is said that, here, Plaza seeks to recover all profits that Investments made from the Broadway Partnership and all profits of Deicorp Constructions; and that, plainly this would be inequitable because the ordinary profit that the builder would have made, and the distributions from unit sales that Investments would have received as a partner, have no reasonable connection with any alleged breach of fiduciary obligation by Jamil. Put perhaps slightly differently, it is said that, no matter what Jamil may have done, Plaza was always going to share its profits of the Broadway Partnership with Investments and that the builder was always going to receive at least the construction price that Moustafa agreed upon. 2. In this connection, the Deiri Parties point to Grimaldi v Chameleon Mining (No 2) (at 406) in support of the submission that the remedy of an account of profits "should not be transformed into a vehicle for the unjust enrichment of the plaintiff", saying that this is precisely what it would achieve here in that Plaza seeks, in effect, a windfall gain which extends beyond the profits derived in consequence of any breach of fiduciary obligation. 3. Finally, it is also submitted that Plaza makes no submissions identifying what profit was made and (as already adverted to) it is said that this was required because liability and quantum were not split in these proceedings. Equitable compensation 1. As to the claim for equitable compensation (see particularly at [487] of the Sayour Parties' submissions in reply), it is submitted that Plaza should not be awarded equitable compensation insofar as Plaza seeks to retain the benefit of the Broadway Development (being the partnership distributions) while at the same time asserting that it is not obliged to pay anything as a partner for the construction contract with Deicorp. It is said that, otherwise, one of the partners would pay for all of the construction costs and the other "would walk away with all of the profit" (see also [194] of the defence). 2. It is also submitted (referring to [522] of the Sayour Parties' submissions in reply) that there appears now to be a further submission, not previously made, that, apart from the quote from Dyldam (as to which, see for example at [141] in the above chronology), there was some "other builder" who had given a quote to Jamil. It is submitted that, to that extent that a new builder has been introduced, "there is no basis for that theory". 3. More particularly, it is said that, when Jamil emailed Mr Deiri on 19 September 2011 (as to which, see for example at [130] in the above chronology), the "other builder" he referred to was Dyldam; though he had not at that stage obtained a quote. It is said that there is no evidence of any other builder with whom Jamil was in contact. 4. As to issues of causation, and the submission for the Sayour Parties that Plaza is not here required to prove what would have happened but for the bribes because equity only requires that if a breach has been committed then the trustee is liable to place the trust estate in the same position as if no breach had been committed (see also at [522]-[526] of the Sayour Parties' reply submissions), the Deiri Parties note that here there is no "trust estate"; and rather, what is necessary is a causal connection between the supposed "bribes" and the relevant loss claimed to have been sustained. 5. The Deiri Parties refer to Aequitas v AEFC, where Austin J said (at [381]-[382]) that, where a bribe is established, equitable compensation may be granted "in a measure designed to restore the plaintiffs to the position they would have occupied had the bribe not been given". 6. More particularly, it is submitted that a claim for equitable compensation still requires a causal link between the breach and the loss (citing also O'Halloran at 272-278 per Spigelman CJ, Priestley and Meagher JJA agreeing); and that, while equity may take "a different approach to causation" than the common law, it remains the case that "the only losses that are made good are those that, on a common sense view of causation, are caused by the breach of duty" (quoting V-Flow Pty Ltd v Holyoake Industries (Vic) Pty Ltd (2013) 296 ALR 418 at [56] per Emmett, Edmonds and Rares JJ). 7. Again, it is submitted that Plaza has not even identified, much less proven, a requisite causal connection. For example, it is said that, if the suggestion is that the Deiri Parties must place Plaza in the position as if there had been no breach of fiduciary duty and Plaza seeks to recover the difference between the construction price charged by Deicorp Constructions and the Dyldam quote, its claim must fail on the basis that Plaza has not proven any causal connection between the payments alleged to constitute bribes and the state of affairs where the construction price would have been agreed as that quoted by Dyldam and/or where Dyldam would have agreed to be a joint venture partner. 8. Finally, insofar as the Sayour Parties have attacked Mr Deiri's evidence concerning his conversation with Jamil in September 2011 as uncorroborated, the Deiri Parties say that this evidence was unchallenged in cross-examination and is also consistent with Plaza not continuing to engage with Dyldam and accepting Deicorp's tender. Furthermore, it is submitted that there can be no suggestion of any "bribes" inducing Jamil, because at that stage there had been no payments at all (as will be recalled, the first payment alleged to be to Jamil was not made until 10 October 2011 – see at [162] in the above chronology. It is submitted that Mr Deiri's evidence in relation to this should be accepted. Deicorp Entities' submissions generally 1. The Deicorp Entities note that some relevant allegations made are directed towards various of the Deicorp Entities. It is submitted that, generally speaking, Plaza appears to assert that payments out of the Broadway Partnership in respect of Investments' share of partnership profits are entitled to be recovered by Plaza (on behalf of the Broadway Partnership) simply because Investments (or Mr Deiri or Deiri Nominees) directed that its monetary entitlements be paid to one or other of the other companies in the Deicorp Group. 2. It is unnecessary here to recite further other submissions, in this regard. Determination re constructive trust and other claims in respect of profits (prayers 60 to 72) 1. As an initial matter, I note again that Plaza has failed to prove that the impugned payments were bribes. It follows, therefore, that the principal, if not sole, basis on which prayers 60 to 72 are predicated fails. 2. Additionally, I see some force to the submission for the Deiri Parties that Grimaldi v Chameleon Mining (No 2) has limited application the situation, as here, where there was a contractual regime for two partners to receive an equal share of partnership proceeds. 3. Furthermore, I see particular force to the proposition that the orders here sought would result in a windfall gain to Plaza, in that Investments (and related entities) would be required to disgorge to Plaza its own share of the Broadway Partnership distributions. I, too, see that this issue is itself related to causation issues (which, generally, Plaza has generally failed to make good). For example, I see difficulties with how Plaza can say, or perhaps can quantify, Investments' gains but for any alleged wrong. This includes, again, issues of proof in relation to some other, alternative builder. 4. In this connection, I here again note what was said by the Full Court in Grimaldi v Chameleon Mining (No 2) (at 406) that the remedy of an account of profits, "should not be transformed into a vehicle for the unjust enrichment of the plaintiff" (and, see also, the observations of Austin J in Aequitas v AEFC at [381]-[382], along with those other authorities referred to by the Deiri Parties). 5. I make the same observations in relation to the claim for equitable compensation made on this cross-claim. 6. It follows that these prayers also fail. Claims for moneys had and received by CP Holdings and Deicorp Constructions (prayers 73 to 76) 1. These claims are in respect of money totalling $500,000 paid to CP Holdings and Deicorp Constructions (under protest by Plaza) by the Receiver in response to demands by those companies for reimbursement of money paid by them to CBA to meet interest and bank fees. (Plaza notes that the claim of the companies was initially said to be for money lent to Mr Deiri who then paid it to the use of the Broadway Partnership but that, later, the money was said to be money paid to the use of the Broadway Partnership.) 2. Plaza disputes the liability of the Broadway Partnership to CBA for interest and fees in the First Broadway Cross-claim. Insofar as the relevant interest and fees are said to accrue under the reinstated cash facility, Plaza notes that Mr Dubedat has found Moustafa's signature on this not to be genuine. Plaza says that (even apart from its claim that no principal was owed), there was no liability by the Broadway Partnership for these amounts to CBA and the money accordingly was not money paid to the use of the Broadway Partnership. Thus, Plaza contends that the money paid by the Receiver is money had and received to the use of the Broadway Partnership. 3. Meanwhile, the Deicorp Entities submit that Plaza fails to identify any factual or legal basis upon which it is said that neither CP Holdings nor Deicorp were entitled to those moneys. It is said that the onus rests upon Plaza to establish that the payments were made by mistake, in the sense that the Receiver paid those monies purportedly on account of an entitlement which was asserted by CP Holdings or Deicorp but which did not exist. In this regard, it is noted that no mistake is pleaded, and it is said that it ought to have been if this claim were to be pursued. 4. Otherwise, it is submitted, in any event, that the bases for these payments are set out in the evidence of Mr Deiri (see Mr Deiri's affidavit sworn on 22 August 2019 at [285]-[298]). Determination re claims for moneys had and received by CP Holdings and Deicorp Constructions (prayers 73 to 76) 1. At the outset, I accept Mr Deiri's evidence as to the basis for these payments. With that finding in mind, and in this regard, I refer above to my determination of the "Liggett defence" vis-à-vis the First Broadway Cross-claim. Matthews Street Property (prayers 29 to 39) 1. As to the Matthews Street Property, the ultimate relief here sought with respect to it is a declaration of trust and order for transfer of that property to Plaza, or alternatively a vesting order (see prayers 29 to 32). This is principally on the basis, so the Sayour Parties say, that the circumstances by which the Matthews Street Property came into the possession of the Ninth Defendant are another example of the effect of bribery and forgery to the detriment of Plaza. Relatedly, in respect of the Matthews Street Unit Trust, a declaration is sought that that it is void and an order that the trust deed be delivered up for cancellation because it is a forgery. Sayour Parties' submissions 1. The Sayour Parties note that, in opening submissions, Mr Deiri and Investments contended that the Deiri Group also contributed to the purchase price of the Matthews Street Property (and, they there point to a payment into Jamil's personal account of an amount which equates to half the of the balance of the purchase price – see Annexure A to Mr Deiri's affidavit sworn on 10 November 2019). 2. The Sayour Parties contend that this submission "once again confuses the payment of sums to [Jamil] with contributions to purchase of a property" that had been offered for sale to Plaza. 3. It is submitted that a payment to Jamil, made after settlement of the purchase of the Matthews Street Property, is not a matter of relevance to Plaza because it was not a recipient of those funds. 4. It is submitted that the relief sought here, that Matthews Street Co is held on trust for Plaza, should be preferred over the application now made on the Ninth Broadway Cross-claim (as to which, see further below), in circumstances where it was (the Sayour Parties submit) unchallenged that: first, the contract for sale originally identified Plaza as the purchaser; second, "non-genuine" signatures of Moustafa appear throughout the Matthews Street Co constituent documents with no explanation from Mr Deiri as to how this occurred other than a suggestion (without any basis) that his signature was also forged; and, third, that funds from Plaza and Biomed were applied to fund the purchase. Deiri Parties' submissions 1. The Deiri Parties note that the acquisition of the Matthews Street Property is a discrete issue in the proceedings; and that, in around the second half of 2011 (see at [164]ff in the above chronology), Jamil proposed that he and Mr Deiri also purchase the Matthews Street Property and develop it; that Mr Deiri agreed and the two set up Matthews Street Co (the shareholders being Deiri Nominees and Plaza) (see at [165] in the above chronology); Matthews Street Co contracted to buy the Matthews Street Property (see at [171] in the above chronology); settlement took place in April 2012 (see at [279] in the above chronology); and Mr Deiri paid half of the purchase price and Jamil paid the other half (see at [279] in the above chronology). 2. It is also noted that Plaza here alleges that Moustafa instructed Jamil to buy the property, but that Jamil ended up agreeing with Mr Deiri that Matthews Street Co would purchase it instead; and further, that Plaza contends that all but for $29,500 of the purchase price of the Matthews Street Property was sourced from Biomed and that the property is held on constructive trust for it. 3. Following, it is submitted that Plaza's contention that its own, or Biomed's, funds can be traced into the settlement funds used to pay the balance of the purchase price cannot be sustained. It is said that there is no basis to infer that such monies found their way into the bank cheques used to settle the purchase. 4. As for Deiri Nominees, it is noted that Mr Deiri made out a cheque to Jamil on the bank account of Deiri Nominees in the amount of $266,700 (see Mr Deiri's affidavit sworn on 10 November 2019 at Annexure A at p 15), which was banked on 4 April 2012 in Jamil's Bank of Sydney account (see at [279] in the above chronology). 5. It is submitted that there is therefore no doubt that Mr Deiri paid to Jamil an amount equal to half the purchase price of the Matthews Street Property. 6. Otherwise, given the intractable dispute about the Matthews Street Property between shareholders, Deiri Nominees maintains it claim to wind up Matthews Street Co and to appoint a liquidator to sell the property (as to which, see the Ninth Broadway Cross-claim below). Determination re Matthews Street Property (prayers 29 to 32) 1. I have dealt with the relevant factual findings above. In circumstances where there appears to be an intractable dispute between the shareholders, I see force to the argument that the appropriate order is for the winding up of the company. Conventional estoppel 1. Finally, Investments pleads that Plaza represented and held out to it that Moustafa and Jamil were "one indivisible family unit", in the sense that Investments could proceed on the basis that: first, payment to, or at the direction of one of them, was for the benefit of, and discharged any obligation owed to all, and each of them; and second, each of them would know about and consent to any payment made to any other of them in connection with the Broadway partnership or the land contract. 2. Following this, various factual matter are identified as forming the basis for such representations, and it is noted that Mr Deiri gives evidence that he made the first payment towards the land contract, and subsequent payments, in reliance on the assumption. 3. It is submitted that the elements of conventional estoppel are here satisfied here, including that Investments would suffer detriment if Plaza were now permitted to resile from the assumption, as it would be liable to Plaza for making the payments it did on Jamil's instructions in respect of the land contract and for partnership distributions. Determination re conventional estoppel 1. As already noted at various junctures, I have found that Moustafa reposed in Jamil authority to direct payments and to manage the receipt of payments on behalf of Plaza in respect of partnership distributions from the Broadway Development, along with related responsibilities. It is unnecessary here to record again those findings. 2. Likewise, it is unnecessary here to determine this conventional estoppel plea, in light of my preceding dispositions because, in disposing of each discrete claim, I have considered and taken into account these factual findings such that any asserted conventional estoppel is, or would be, coterminous to those determinations. 3. I now turn to the Sixth Broadway Cross-claim. Sixth Broadway Cross-claim 1. As adverted to, the Sixth Broadway Cross claim (brought by Deicorp) is, in essence, a defensive cross-claim, premised on a finding in favour of Plaza in respect of its challenge to the payments made to the Deicorp Entities for the construction of the Broadway Development. 2. In light of my preceding disposition of the Fifth Broadway Cross-claim, the claims made in the Sixth Broadway Cross-claim do not arise. 3. Nevertheless, I propose here to record my observations in relation to this cross-claim. 4. Specifically, in the event that any of the challenges made on the Fifth Broadway Cross-claim were to succeed, Deicorp pleads a quantum meruit and quantum valebat claim for the retention of the benefit of those moneys already paid in respect of work completed on the Broadway Site and pursuant to the Stage 1 Construction Contract and Stage 2 Construction Contract. In support of those claims, Deicorp relies principally upon the expert evidence of Mr Portelli. 5. Deicorp's primary position is that reliance upon the Sixth Broadway Cross-claim is unnecessary, because: Plaza's allegations and claims in the Fifth Broadway Cross-claim fail; and, even if there is any technical merit in Plaza's allegations regarding the Stage 1 Construction Contract and Stage 2 Construction Contract (or payments purportedly made pursuant to those contracts), it remains for Plaza to establish that it would be just and equitable for restitution to be ordered (or unjust and inequitable for Deicorp to retain the benefit of the payments). Again, I interpose to note that, the Fifth Broadway Cross-claim having failed, Deicorp's primary position is good. 6. It is convenient first to consider Mr Portelli's evidence. Mr Portelli's expert evidence 1. As to the expert reports of Mr Portelli, insofar as they relate to the Broadway Development, these reports were served on or around 6 June 2019 (concerning Stage 1 and Stage 2 contract costs) and also on or around 6 August 2019 (concerning variations in respect of both Stage 1 and Stage 2). It is noted that Plaza has not served any responsive expert report, despite having the opportunity to do so. Mr Portelli's evidence is to the following effect. 2. In relation to the Stage 1 Construction Contract (which was for an initial price of $40 million excluding GST and upon which an additional amount of $3,949,241.21 excluding GST was charged for variations, being a total of $43,949,241.21 excluding GST), Mr Portelli has assessed the reasonable amount to have charged for the work identified in the Stage 1 Construction Contract as being in the range of $40,760,866 to $42,585,032 (again, each exclusive of GST). Mr Portelli assessed the reasonable amount to have charged for the variations performed under the Stage 1 Construction Contract as being $4,146,087.18. Mr Portelli's overall assessment in respect of the reasonable amount to have charged for all work under the Stage 1 Construction Contract is an amount around $44,906,953.18 to $46,731,119.18 (again, each exclusive of GST). 3. In relation to the Stage 2 Construction Contract (which was for an initial price of $24.85 million excluding GST – and upon which an additional amount of about $2,073,282 excluding GST was charged for variations, being a total of $26,923,282 excluding GST – see, in the above chronology), Mr Portelli assessed the reasonable amount to have charged for the work identified in the Stage 2 Construction Contract as being in the range of $27,346,469 to $30,559,000 (again, each exclusive of GST). Mr Portelli assessed the reasonable amount to have charged for the variations performed under the Stage 2 Construction Contract as being $1,384,230.68. Mr Portelli's overall assessment in respect of the reasonable amount to have charged for all work under the Stage 2 Construction Contract is an amount in the vicinity of between $28,730,699.68 to $31,943,230.68 (again, each exclusive of GST). 4. Following then, in relation to the entire Broadway Development, it is noted that cumulatively Deicorp charged the Broadway Partnership a total amount in the vicinity of $70,872,523.21, but that Mr Portelli's assessments result in the conclusion that the reasonable amount to have charged in respect of the entirety of those works was in the range of $73,637,652.86 to $78,674,349.86. 5. Although Mr Portelli's evidence is relied upon in support of the Sixth Broadway Cross-claim, it is also relied upon, as adverted to, by the Deicorp Entities (particularly Deicorp Constructions) defensively in answer to the Fifth Broadway Cross-claim. Specifically, it is said that, if it is correct that a fundamental aspect of Plaza's claims under the Fifth Broadway Cross-claim can only be (and properly ought to be) viewed as claims in restitution, then the objective merit of the amounts charged by Deicorp Constructions goes to the central issue as to whether it would be unjust or inequitable for Deicorp to retain the benefit of those moneys. 6. Furthermore, the Deicorp Entities further complain that confusion arises from certain portions of Plaza's defence to the Sixth Broadway Cross-claim. In particular, it is said that there is an apparent internal inconsistency between [4(e)], [4(f)] and [4(h)] of Plaza's defence to the Sixth Broadway Cross-claim. 7. It is convenient, next to consider the submissions for the Sayour Parties. Sayour Parties' and Plaza's submissions 1. The Sayour Parties note that Deicorp Constructions admits the allegation that it entered into the Stage 1 Construction Contract with Plaza and Investments on about 8 February 2012 (contained at [318] of the Fifth Broadway Cross-claim) and that the contract was wholly in writing; and that Deicorp Constructions further admits in its defence that the on-site construction under the Stage 1 Construction Contract commenced on 9 January 2012 (see at [348](a)). 2. Insofar as by the Sixth Broadway Cross-claim Deicorp pleads the Stage 1 Construction Contract and Stage 2 Construction Contract and (expressly against the contingency that it be held that the partners were not liable to pay the Deicorp Entities under those contracts) claims on a quantum meruit and quantum valebat for the supply of work and materials "pursuant to or purportedly pursuant to" those "Contractual Arrangements", the Sayour Parties say that Deicorp maintains the Sixth Broadway Cross-claim as a claim for remuneration for work and materials supplied, whether the contracts are enforceable or not (and, in either case, on the assumption that it was not entitled to payment as a matter of contract, whether that be because it was not entitled to enforce the contract or because the conditions for liability were not fulfilled). The Sayour Parties note that the "Contractual Arrangements" as defined in the pleading include variations, notwithstanding the issue in the Fifth Broadway Cross-claim as to whether the variations were ever approved under the contracts (as to which, see my preceding determinations above). 3. The Sayour Parties maintain that it is not possible to "outflank" the contractual allocation of liability in this way. In particular, they say that non-compliance with the conditions for payment under the Stage 1 Construction Contract has the result that there is no contractual entitlement to payment and that a quantum meruit or quantum valebat claim cannot change that position. In this regard, extensive reliance is placed on the High Court's decision in Mann v Paterson Constructions Pty Ltd [2019] HCA 32 (Mann), to which I refer in due course. 4. Furthermore, they say that there is a contractual time bar under cl 42.5 which is fatal to the claim (citing Jennings Construction Ltd v QH & M Birt Pty Ltd (1986) 8 NSWLR 18 at 24 (Jennings Construction v Birt); Lucas Earthmovers Pty Ltd v Anglogold Ashanti Australia Ltd [2019] FCA 1049). 5. More particularly, it is contended that Deicorp is seeking to proceed on the basis of an average of items and that this approach is contrary to Mann (i.e., that the contract sets a limit and that, even in respect of a failed contract, it establishes the value for the work). Thus, it is said that the position is no different between the Stage 1 Construction Contract (which was in fact signed by Moustafa) and the Stage 2 Construction Contract (which was signed without his knowledge); and, thus, that the evidence of, inter alios, Mr Portelli and Mr Rosa, as to the value of the works is irrelevant and that it is fanciful to suggest that the Court is now placed in a position to do "what an honest and diligent contract superintendent should have done in 2012 to 2014". 6. As to "outflanking" the contract, it is said, by way of example, to be obvious that, in respect of variations which under the contract terms provide for an elaborate mechanism of request, direction and valuation, the contractual purpose is to ensure that requests are made, evaluated, directed and valued contemporaneously during the work and within time periods. It is said that the attempt to mount a restitutionary claim seeks to outflank the established requirement for a request for the work and/or materials, as well as the contractual mechanisms for determining whether such a request is to be made at all, and if made, as to how it is to be valued and paid for. In this regard, the Sayour Parties rely on the submissions made in relation to PC 24 in the Arncliffe Development. Again, it is submitted that, if there is no liability under the contract, there will be no restitutionary liability. 7. It is said that this is true even in respect of failed contracts. It is said that the builder cannot, for example, do better in respect of Stage 2 than remuneration under the conditions that it was prepared to accept for the Stage 2 Construction Contract. The Sayour Parties say that it is well established that a failed contract will be the measure of the value of a restitutionary claim for the performance of work and supply of materials. They maintain that the builder could never do better in this case for Stage 2 than the tender of 27 November 2011 (of $23.5 million), which was the only figure for Stage 2 that was ever discussed and agreed between the builder and the partners (and they maintain that that too would be subject to the standard terms of the AS4300-1995 form of contract). 8. The Sayour Parties submit that, in important respects, the Sixth Broadway Cross-claim appears to "miss the point" of the Fifth Broadway Cross-claim. It is said that the First Broadway Cross-claim alleges that the payments were not authorised, that Investments and CBA then alleged in their defences that the partners received a benefit from the payments and that the Fifth Broadway Cross-claim disputes that the partners were liable to make those payments and thus puts benefit in issue. It is said that Sumpter v Hedges and Steele v Tardiani established that, where work is performed on terms which do not result in a liability, then there is no liability to make restitutionary payment for a benefit that cannot be returned, in the absence of some further undertaking so to pay (it being here noted that in the case of land, the point has been put that one cannot hand back the building). 9. It is said that, if there had been a contractual liability, it would have been open to the Deicorp Entities to pursue a claim in contract. It is said that the point that CBA was not authorised to pay exposes Deicorp to a restitutionary action; and that Deicorp's remedy against the Broadway Partnership must depend on establishing a debt (and that turns on the enforcement of a liability under the terms accepted at the time). 10. Following, it is said that the Fifth Broadway Cross-claim is primarily directed against Investments and against CBA's assertion of benefit, by disputing the existence of a liability to Deicorp Constructions (there being no claim in the Fifth Broadway Cross-claim against Deicorp Constructions for money had and received). That the claims made against Deicorp Constructions and others by prayers 57 to 59 of the Fifth Broadway Cross-claim arise from the alleged bribes, means (it is said) that the primary case of Plaza is that the construction payments were not payments by the Broadway Partnership at all (and, the alternative case is that they ought be surcharged to Investments and can be recovered from the Deicorp Group as benefits which it is not entitled to retain because of the bribes). Likewise, the alternative relief claims the difference between the amounts paid for construction and the price referred to in the 19 September 2011 email from Jamil to Mr Deiri (as to which, see at [130] in the above chronology) or, alternatively, relief in respect of other, lesser differences. 11. The Sayour Parties thus say that a quantum meruit or quantum valebat contention cannot have relevance in answer to these claims (which nonetheless in the Sixth Broadway Cross-claim Deicorp seeks to set off). 12. As noted above, a limitation issue is also raised, including in relation to the Sixth Broadway Cross-claim. 13. More particularly, it is noted that cl 42.5 of the Stage 1 Construction Contract (set out at [260] above) provides that, subject to some exceptions that are not here relevant, within 28 days of expiry of the "Defects Liability Period", the contractor shall provide the superintendent with a final payment claim and endorse it as such. The final payment claim is required to include all claims for payment under cl 42.1 and all claims for money which the contractor considers to be due from the principal arising from any alleged breach of the contract. 14. It is noted that cl 37 of the Stage 1 Construction Contract provides that the "Defects Liability Period" (stated on "Annexure Part A") shall commence at 4.00 pm on the "Date of Practical Completion"; and, item 44 of "Part A" to the contract provides that the "Defects Liability Period" is 52 weeks. Relevantly also, "Date of Practical Completion" is defined in cl 2, as the date so certified by the superintendent in a "Certificate of Practical Completion" (or, where another date is determined in any arbitration or litigation, then that date). The Sayour Parties say that this indicates that the matter is to be determined objectively and they note that no such certificate was issued by Mr Deiri. 15. The Sayour Parties say that a number of objective indicia may be seen in the contract: the regime in cl 35 for time for practical completion and extensions; and the provision in cl 35.2 that, "[u]pon the Date of Practical Completion the Contractor shall give possession of the Site and the Works to the Principal". It is noted that that date has long since happened. The Sayour Parties say that the period of time for practical completion and the date for practical completion are determined by reference to cl 2 and item 9 in "Part A" of the contract; and that item 9 provides that the date for practical completion is to be 20 months from "commencement". 16. It is said, therefore, that the date for practical completion under the Stage 1 Construction Contract was, without more, 9 September 2013. It is noted that there is in evidence a notice of practical completion, signed by Mr Rosa on behalf of Deicorp, which is dated 3 December 2013, but it is said that, for the purposes of this issue, nothing turns on whether the date is 9 September, 3 December or 9 December 2013. 17. It is noted that there are in evidence 23 progress claims in respect of Stage 1 (the last being in January 2014 and 15 such claims in respect of Stage 2 (the last being dated 29 October 2014); and that there has been reference a number of times in the evidence to the grand opening of the retail centre in December 2013 (and, indeed, throughout these reasons). 18. Likewise, it is noted that Deicorp (in its defence to the Fifth Broadway Cross-claim) pleads (see at [360]) that the time of issue of the occupation certificate was equivalent to a certificate of practical completion. The Sayour Parties say that, without accepting that proposition, it is clear that the issue of an occupation certificate is highly probative of the approximate time of practical completion and provides a general indication of the date of that event. It is noted that the following occupation certificates are in evidence: 6 December 2013 (being an "Interim Occupation Certificate"); and 28 October 2014 (being the "Final Occupation Certificate"). 19. Furthermore, it is not disputed that completion of the sales of the residential units took place in late 2014. 20. Following, the Sayour Parties say that, in those circumstances, there can be no realistic doubt that possession of the site was given by the builder to the owners not later than late 2014 and that the period of 12 months from expiry of the "Defects Liability Period" expired some years before the Sixth Broadway Cross-claim was filed. 21. Quite apart from this, the Sayour Parties also say that notice provisions relevant to the defects liability period have an obvious protective function (referring again, in this context, to Jennings Construction Ltd, where Smart J considered a similar clause and said that its purpose was to ensure that notice be given at an early stage so as to alert the contractor to the potential claim and give the contractor the opportunity to investigate promptly the events or circumstances and consider the contractor's position; and that the (common) requirement of written notice puts the matter on a formal and readily identifiable basis – see at 24). 22. Following, the Sayour Parties submit that the protection of a written notice (which "puts the matter on a formal and readily identifiable basis"), is available to both contracting parties (see, for example, Abergeldie Contractors Pty Ltd v Fairfield City Council [2017] NSWCA 113 at [63]-[66] per Meagher JA, with whom Beazley ACJ (as her Excellency then was) agreed). It is submitted that those considerations must apply with greater force where the contractual regime establishes a limitation period for a final payment claim which is to include, not only "claims for payment required to be included … under clause 42.1" (which is concerned with "the amount due to the Contractor") but "in addition" with "all claims for moneys which the Contractor considers to be due from the Principal arising out of any alleged breach of the Contract". 23. Thus, it is submitted that the builder is required to claim everything, and critically both debt and damages, and also, "all such claims, whether under Clause 42.1 of this Clause 42.5" after the expiration of the "period for lodging a Final Payment Claim". Thus, the Sayour Parties maintain that the sixth cross-claim is barred. 24. As to the issues of quantum which are raised by the Deicorp Entities in reply, the Sayour Parties say that, in principle, the criticisms made of PC 24 in the Arncliffe Proceedings and of the evidence of Mr Portelli apply also here to the Sixth Broadway Cross-claim, which they say is not computed in accordance with the contract measures. It is submitted that it is not permissible to regard the contract as "some kind of overall cap within which various individual items may exceed the contract allocations, without giving credit for savings on other items". Determination 1. It is convenient first to consider various aspects of the High Court's decision in Mann. 2. In Mann, Gageler J (who agreed with the orders proposed by Nettle, Gordon and Edelman JJ) held (at [101]-[102]) that the "contract price should limit a non-contractual quantum meruit to recover remuneration for services rendered in part performance of an enforceable contract", such that the "common law rule should accordingly be that the amount recoverable on a non-contractual quantum meruit as remuneration for services rendered in performance of a contract prior to its termination by acceptance of a repudiation cannot exceed that portion of the contract price as is attributable to those services". 3. Meanwhile, Nettle, Gordon and Edelman JJ held (at [215]) that: …where an entire obligation (or entire divisible stage of a contract) for work and labour (such as, for example, an entire obligation under or an obligation under a divisible stage of a domestic building contract) is terminated by the plaintiff upon the plaintiff's acceptance of the defendant's repudiation of the contract, the amount of restitution recoverable as upon a quantum meruit by the plaintiff for work performed as part of the entire obligation (or as part of the entire divisible stage of the contract) should prima facie not exceed a fair value calculated in accordance with the contract price or appropriate part of the contract price. [Emphasis added] 1. While this case does not necessarily involve, as did Mann, a claim for quantum meruit following termination for repudiation, as noted above, the Sayour Parties submit that Mann is authority for the proposition that a quantum meruit cannot be deployed to "outflank" the contract and thereby to obtain for the contractor such benefits which the contractor is not contractually entitled to, or is otherwise precluded from claiming, by operation of the contract. 2. To my mind, this perhaps puts the proposition too high, or at least imprecisely. That is to say, in many cases, a party will rely on a quantum meruit because they have no contractual right (in debt or otherwise) or their quantum meruit claim is more advantageous (and, in that sense, the restitutionary claim is deployed as an alternative to rights that the party has, or does not have, under any contractual obligation). 3. As Mason, Carter and Tolhurst note (at [1415]) in their learned text, Restitution Law in Australia, it is relevant in all cases to consider the basis upon which restitution is ordered; that is, whether the defendant accepted a benefit which was requested or is liable through (what has been referred to in the discourse as) "incontrovertible benefit". 4. For example, in Mann itself, the majority held that the builder could recover for works performed but for which no contractual right to payment had yet accrued. Meanwhile, the High Court held unanimously (see at [19]-[24] per Kiefel CJ, Bell and Keane JJ, [62]-[64] per Gageler J and [172]-[179] per Edelman J) that where a party has enforceable contractual rights to moneys that have become due under the contract, election to claim on a quantum meruit unconstrained by the contract between the parties is not available. (This is relevant insofar as the Stage 1 Construction Contract is binding but I have found that the Stage 2 Construction Contract is not.) 5. Nevertheless, there is some force to the proposition that a construction contract which prescribes a price for design and construction, and allocates provisional sums to certain items, should be seen as providing for the mutually agreed allocation of risk as between the parties; and, following, that restitutionary claims must respect that contractual allocation of risk (see Mann at [14] per Kiefel CJ, Bell and Keane JJ citing Steele v Tardiani; Lumbers v W Cook Builders at [45]-[48], [77]-[79], [111], [122], [126]; Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 at [26] (Equuscorp); and [200], [205], [211], [214] per Nettle, Gordon and Edelman JJ; though contra Mann at [83] per Gageler J). 6. In this respect, I bear in mind what was said by Mason CJ in Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 356; [1993] HCA 4, and repeated by Kiefel CJ, Bell and Keane JJ albeit in dissent in Mann (at [8]) that "[i]t is now clear that ... the discharge operates only prospectively, that is, it is not equivalent to rescission ab initio" (and see also McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457; [1933] HCA 25 (McDonald) per Dixon J, as his Honour then was, with whom Rich and McTiernan JJ agreed). 7. As was said by Gleeson CJ in Lumbers v W Cook Builders (at [46]), "[the contractual arrangements] effected a certain allocation of risk … [and there was] no occasion to disturb or interfere with that allocation" and "every reason to respect it". 8. Similarly, Gummow, Hayne, Crennan and Kiefel JJ cautioned (at [77]) of the need to take "proper account" of the contractual rights and obligations that existed and said (at [79]): "as is well apparent from this Court's decision in Steele v Tardiani, an essential step in considering a claim in quantum meruit (or money paid) is to ask whether and how that claim fits with any particular contract the parties have made" (emphasis added). 9. Each of Gleeson CJ and Gummow, Hayne, Crennan and Kiefel JJ cited with approval the speech of Lord Goff in The Trident Beauty [1994] 1 WLR 161; [1994] 1 All ER 470, where his Lordship said (at 475), "serious difficulties arise if the law seeks to expand the law of restitution to redistribute risks for which provision has been made under an applicable contract" (and see Kiefel CJ, Bell and Keane JJ in Mann at [17]). 10. Later, in MacDonald Dickens & Macklin (a firm) v Costello [2012] QB 244, Etherton LJ (as the Master of the Rolls then was), with whom Pill and Patten LJJ agreed, in rejecting a restitutionary claim said (said at [23]): The general rule should be to uphold contractual arrangements by which parties have defined and allocated and, to that extent, restricted their mutual obligations, and, in so doing, have similarly allocated and circumscribed the consequences of non-performance. That general rule reflects a sound legal policy which acknowledges the parties' autonomy to configure the legal relations between them and provides certainty, and so limits disputes and litigation. [Emphasis added] 1. I note that this passage was cited with approval by Kiefel CJ, Bell and Keane JJ in Mann (at [18]). 2. It is principally on this footing that it is submitted that, if there is to be adjustment to the amount allocated on account of provisional sums, then any such adjustment must be in accordance with the terms of the contract. 3. Specifically, as outlined above, it is said by the Sayour Parties that this required: pursuant to cl 23, a direction for the work to be given by the "Contract Superintendent", with any oral direction to be confirmed in writing as soon as practicable; pursuant to cl 42.1, the principal's payment obligation was to be subject to the provisions of the contract; and the "Contract Superintendent" was: to arrive at a reasonable measure of the value of any work (pursuant to cl 23); and honestly and fairly to assess any progress claim (pursuant to cll 23 and 42.1) and to set out in any payment certificate the calculations employed to arrive at that certified amount (pursuant to cl 42.1). 4. In this way, it can be seen here that the principal complaint is that the (purported) variation from the contract is said to arise, not ipso facto because the measure of the claimed restitutionary award exceeds the contract price (as in many of the other cases), but because the contractually prescribed method for the adjustment has, it is said, not been complied with. Furthermore, as adverted to, the contract contained a time limitation provision on claims made after the period for final claim (as to the specific provisions, see above) and, it is said, the contractually prescribed 56 week limitation period expired before the relevant claims (including the Sixth Broadway Cross-claim) were filed (again, see above). 5. The issue which I am presently considering is itself separable further into no less two discrete points: first, whether recoverability on a quantum meruit may, or may not, "outflank" that contractually prescribed adjustment method; and two, whether, in effect, recoverability on a quantum meruit is here time barred by operation of that contractually prescribed time limitation. 6. I will consider each of these points in turn. However, before doing so, it is convenient briefly to consider the reliance here placed on another aspect of the reasoning of the High Court in Mann (this is because my disposition of this aspect of the reasoning applies equally to each of the points which I have just identified). 7. As would be recalled, the High Court in Mann considered statutory provisions (specifically, ss 37 and 38 of the Domestic Building Contracts Act 1995 (Vic) (the DBC Act)) which regulated remuneration for work and labour done in response to requested building variations. The High Court unanimously found, in the words of Nettle, Gordon and Edelman JJ (at [158]), "a legislative intent to cover the field of the remuneration payable to builders for work and labour done in response to requested variations under major domestic building contracts" such that the statute precluded any alternative form of recovery for such work and labour performed under a variation not notified in accordance with the statutory prescriptions (which relevantly included a requirement of written notification of proposed variations). 8. It is here, correctly, accepted that the High Court in Mann was there reasoning in respect of a (prohibitive) statutory regime; however, it is said that, being essentially a matter of construction, there is no reason why this would not apply equally to a like contractual regime imposing limitations of liability (whether by way of a contractual limitation period and otherwise). 9. I have some difficulty with this submission: the provisions of a contractual bargain are not, for presently relevant purposes, an analogue to the statutory prohibition. That is to say, while the terms of a contractual bargain must be enforced according to applicable common law and statutory rules, the contractual bargain does not apply in the same way as does a statutory provision which is itself a source of law. For example, there of course exist common law, equitable and statutory principles and rules the application of which sometimes has the result that extant contractual arrangements are effectively avoided (the various species of common law and equitable estoppel being a good example); meanwhile, relevantly to the analogy here urged upon me, the prescriptive and proscriptive statutory rules are not, and cannot be, avoided in the sense which I have just described. Accordingly, I prefer not to reason by analogy in this manner. 10. Following on from this, I next consider the relationship between the quantum meruit claim and the contractually prescribed adjustment method. Quantum meruit and the contractually prescribed adjustment method 1. At the outset, it is necessary to bear in mind the important distinction made by Nettle, Gordon and Edelman JJ in Mann (at [164]) between the following: first, on the one hand, an "open" contract – that is, a contract "not discharged" (citing Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 at [67] per Gummow J; [2001] HCA 68) — for which there is, generally, "neither occasion nor legal justification for the law to superimpose or impute an obligation or promise to pay a reasonable remuneration" (quoting Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at 256; [1987] HCA 5 per Deane J (Pavey & Matthews)) because such an obligation "would be either inconsistent with the contract or ... would duplicate the contractual obligation" (quoting Pavey & Matthews at 238 per Brennan J (as his Honour then was)); and, second, on the other, a "closed" contract, including a contract which has been terminated for repudiation (as was the case in Mann). 2. Further, it is elementary that the contract price represents the value of the services or work to be done as agreed between the parties. As such, insofar as a claim for reasonable remuneration is a claim to recover the value for such services so rendered or work done in performance of the contract, the contractually agreed price is (at the very least) good evidence of the value of those services or work (and, indeed, in a case such as Mann that price will operate as a "ceiling" on the restitutionary claim). 3. From this, I can accept that the terms of the contract, so far as any such terms have been negotiated, are good evidence of what was required to be done in order to earn the contract price (see, for example, Stevenson v Hook (1956) 73 WN (NSW) 307 at 314; BP Exploration Co (Libya) Ltd v Hunt (No 2) [1979] 1 WLR 783 at 805 per Robert Goff J, as his Lordship then was). 4. With that said and as I have already adverted to, there is a relevant difference between, on the one hand and by way of example, contractual terms regulating the procedure for the assessment of a payment claim, and, on the other, the contract price. This is because, inter alia, terms of the former kind may be non-essential in character while the latter is (in the usual case) sine qua non of the bargain. 5. Against that still, however, is the imperative of respecting the mutually agreed allocation of risk under the contract. In this respect, clearly the contractually-prescribed procedure for the assessment and payment of claims reflects a desire on the part of contracting parties properly to regulate claims in an attempt to allocate the risks associated with such claims. 6. For example, Mason, Carter and Tolhurst note (see Restitution Law in Australia at [1430]) that other terms (such as exclusion clauses) express, as much as does the contract price, the parties' allocation of risk; and the "factor which renders the contract ineffective - breach of repudiation – [should not and does not] impugn that allocation". The authors, citing McDonald, note that the law of contract "stresses the contrast between pre-contractual and post-contractual conduct. Breach, as a matter occurring after contract formation, cannot be used to upset a prior risk allocation. There is a clear contrast with rescission of a contract for misrepresentation, where the plaintiff's consent was vitiated" (cf, for example, Boyd & Forrest v Glasgow and South-Western Railway Co 1915 SC (HL) 20 at 43). 7. In this respect, I consider it particularly relevant to bear in mind that this was a very large construction project and the parties are (to a relative extent) sophisticated, well-advised entities and individuals. 8. Further still, I see force to the analysis (see, for example, Restitution Law in Australia at [1430]) that an approach which ignores the contract price, or other such terms of the bargain, gives insufficient regard to the basis for holding the defendant liable in restitution. 9. That is to say, where the basis for restitution is acceptance by the defendant (as, it seems, alleged here), contra liability based on an "incontrovertible benefit", then it is necessary to consider the various forms of acceptance. 10. Here, as in most cases, the basis for the claim is deemed acceptance in, or by, the Sayour Parties contractual receipt (contra a genuine, free acceptance proved as a matter of fact). In this way, "acceptance" is being asserted by reference to (purported) receipt of part of the agreed contractual return and it Is, therefore, not persuasive to say that "acceptance", so conceived and asserted, operates independently of the contract (and, thereby, that one can effectively discard the contractual terms). 11. Aside from cases of this kind, there are those cases of receipt of: an "incontrovertible benefit"; a benefit which was not part of the agreed contractual return (that is, "extra-contractual benefits"); and a benefit which was, as a matter of fact, actually accepted. In each of these three classes of case, the reasoning which I have just outlined does not necessarily apply such that the contractual price, and other relevant contractual terms, does not necessarily limit the restitutionary claim. 12. As to the first class of case, as alluded to, here there has been no receipt of an "incontrovertible benefit" (the archetypal example being receipt of money) – the alleged benefit is a service (that is, the construction works). 13. Meanwhile, as to the second class of case, I note that the Sayour Parties in closing submissions appear to accept that the basis for the payment, and the claim, was (and is) extra-contractual. Specifically, the submission was that it was an extra-contractual payment which Deicorp was only able to receive because the persons charged with scrutinising the propriety, and the contractual adherence, of the payment so acted in reliance on an assumption that no person (other than Mr Deiri) had any interest in the correctness of the payment. 14. To my mind, however, this then raises the issue of whether, on the facts, it can be said that the works were relevantly requested or accepted; and, if that be so, then I would conclude that the contractually prescribed adjustment method does not here apply so as to limit this claim. 15. I have concluded that if there was no contract (because, say, it was void ab initio or unenforceable – which must be the case with the Stage 2 Construction Contract) then the issue as to the contractually prescribed payment regime does not apply and one is left with a restitutionary claim based on acceptance of the obvious benefits conferred by the construction works. As for the Stage 1 Construction Contract, contractual limitations on recovery would apply, but as I have noted above, non-compliance with the contractual regime does not in all instances make the payment recoverable. 16. Next is the relationship between a claim on a quantum meruit and the contractually prescribed time limitation. Quantum meruit and the contractually prescribed time limitation 1. In relation to the contractually-prescribed time limitation, to the extent that the Sayour Parties' submissions proceed on analogy to the construction given by the High Court to the relevant legislation in Mann, for the reasons which I have previously indicated, I prefer not to reason in this way. Nevertheless, it is still necessary to consider the relationship of the contractual time limitation with any restitutionary claim on a quantum meruit or otherwise. 2. Pausing here, in relation to the Arncliffe Development, as the Sayour Parties note, the date of practical completion in this instance was certified by Momentum (Mr Kyrikos) as 8 February 2018; and, therefore, the 56-week limitation period expired before the Second Arncliffe Cross-claim was filed on 23 August 2019. And, as to the Broadway Development, as noted above, the Sayour Parties contend that the date for practical completion under the Stage 1 Construction Contract was 9 September 2013, 3 December or 9 December 2013 (again, noting, for example, that Mr Hammond has exhibited a notice of practical completion dated 3 December 2013; that Deicorp, in its defence to the fifth cross-claim, pleads that the time of issue of the "Occupation Certificate" was equivalent to a certificate of practical completion; that completion of the sales of the residential units took place in late 2014; and, following, the Sayour Parties say that there can therefore be no doubt that possession of the site was given over not later than late 2014 and that the period of 12 months from expiry of the "Defects Liability Period" expired some years before the Sixth Broadway Cross-claim was filed. 3. With those dates in mind, it will be recalled that the Sayour Parties contend that the contract here clearly does contain an express statement of intention to bar claims that are out of time and, in these circumstances, it would defeat the contractual purpose if that time bar could be effectively outflanked by the expedient of a restitutionary claim. 4. To my mind, there are several ways to conceptualise, and dispose of, this submission. 5. First, it could be said (and, indeed, which I consider to be the position) that the restitutionary claim is extra-contractual and is therefore not barred by the contract. 6. Second, it could be said that the works were undertaken post-termination such that they were not contractual works and the contractual time bar does not apply. (However, the difficulty with such a disposition is that, as a matter of fact, this is not so – the works, at least vis-à-vis the Broadway development, were completed at a time when the contract was still on foot.) 7. Third, it could be said that, even though the works were contractual, the contract has since been discharged such that the contractual time bar no longer applies. (However, the difficulty with such a disposition is that, to my mind, reasoning in this way is to commit the "rescission fallacy" and it is inconsistent with each of the three judgments in Mann. As to the latter, I note, particularly, that Gageler J writing separately and Nettle, Gordon and Edelman J held that the contractor could recover on a quantum meruit basis where no right to payment had yet accrued under the relevant contract, but that the amount recoverable was limited to the contract price for the relevant stage or part of the works (that is, even post-discharge and putting aside an exceptional situation there envisaged, the "contractual ceiling" still applied). For the reasons which I have indicated, there is relevantly an analogy between the "contractual ceiling" in Mann and the contractual time limitation here – even where no contractual right to payment has accrued, the contractual provision applies to the claim.) Application to the Sixth Broadway Cross-claim 1. Were it necessary to determine, I would have concluded that the quantum meruit claim was made good. 2. I now turn to the Seventh Broadway Cross-claim. Seventh Broadway Cross-claim 1. The Seventh Broadway Cross-claim is brought by CBA and is premised on Plaza succeeding in its First Broadway Cross-claim against CBA (as to which, see my determination of that cross-claim above). 2. More specifically, the Seventh Broadway Cross-claim encompasses claims for (or arising from) moneys had and received, conspiracy and misleading or deceptive conduct. I note that many of the issues arising under this cross-claim have been deferred (as noted earlier in these reasons above), in particular, the change of position defence that the Deiri interests foreshadowed to the claims made against them. 3. In essence, what CBA says is that, if the moneys paid out by it were not all properly payable with respect to the Broadway Development, such that CBA is liable to the Broadway Partnership for that money, then it will be because Plaza has established that the Deicorp Entities received moneys to which they were not entitled; and that CBA, having paid out the funds received by those parties, is entitled to recover them from those parties. It is said that otherwise the recipients of the payments will in each case have been unjustly enriched to the extent of the funds received. Hence the claim is principally for moneys had and received in those circumstances. 4. As adverted to, CBA also brings a conspiracy claim premised on the claims made by Plaza that Mr Deiri arranged with Jamil to have Jamil sign all the documentation by reason of which CBA paid out large amounts of money purportedly at the request of the Broadway Partnership. It is said that, if cheques, debits and drawdowns purportedly obtained by the Broadway Partnership were the result of Jamil's participation as if authorised by Plaza, that will necessarily be because Mr Deiri and Jamil agreed in that course. Thus, it is contended that the agreement necessary to establish a count of civil conspiracy is thus satisfied (see, for example, Fatimi v Bryant at [103]). 5. It is convenient first to consider the submissions for CBA. CBA's submissions 1. It is said that the intention on the part of Mr Deiri and Jamil to injure CBA is to be inferred from the knowledge that Mr Deiri and Jamil must have had that, if they drew cheques or other moneys from CBA for purposes which Plaza establishes were improper or unjustified, it was inevitable that CBA would thereby suffer loss. It is submitted that the intention to injure may properly be drawn from these circumstances and thus that CBA is entitled to damages from Mr Deiri and Investments (as well as Deicorp, which received the majority of the funds) commensurate with any amount which CBA is held liable to pay to Plaza. 2. CBA accepts that, in the absence of a finding that payments made to Jamil were "bribes" (as to which, see my disposition of that issue above) then the aspects of the Seventh Broadway Cross-claim based on a count of conspiracy will have no force. 3. As to the misleading conduct claim, in respect of debits made by CBA to the CBA Partnership Account which Plaza claims were unauthorised, CBA argues that: Investments and Mr Deiri represented to CBA, by signing the First Facility Agreement (as to which, see at [261] in the above chronology) and Second Facility Agreement (as to which, see at [363] in the above chronology), that CBA had authority to and should debit the joint account with fees, charges, interest and repayments, in respect of Stage 1 Loan and Stage 2 Loan; should Plaza establish that those debits were not authorised (for want of Moustafa's signature), CBA will have suffered loss in reliance upon and by reason of such representations; and therefore CBA is entitled to be compensated by Investments and Mr Deiri for the total of those debits. 4. As to the drawdowns on the Stage 1 Loan and Stage 2 Loan, CBA says that: all drawdowns followed CBA's receipt of a requisitioning accommodation notice; each notice was executed by Investments, through Mr Deiri and thereby amounted to a representation by Investments and/or Mr Deiri that the drawdown was authorised by, and should be paid for the purposes of the Broadway Partnership; should Plaza establish that the drawdowns were not authorised, it follows that CBA has paid away the funds (to the Deicorp Entities) in reliance upon the representations of Investments and/or Mr Deiri; and, in such circumstances, CBA is entitled to recover from Investments and Mr Deiri the funds determined to be payable by CBA to the Broadway Partnership. 5. As to the cheques, CBA says that: if they were unauthorised they were nevertheless paid by CBA on presentation; in the case of every cheque, Investments and Mr Deiri paid or arranged to pay the Deicorp Entities and other entities for work done, goods, services or otherwise discharged a liability in favour of a third party; and that, every time they did so, they represented to the payee that the cheque was duly authorised as a means of payment in discharge of a liability due (and impliedly represented to CBA that when the cheque was duly presented to CBA for payment it ought be paid – i.e., was duly authorised for payment). 6. As to the first such representation, it is accepted that the representee was not CBA (but, rather, was the third party payee of the cheque), but it is said that it is not necessary that the representation relied upon be made to the party bringing the claim under s18 of the Australian Consumer Law, nor even that there be reliance by the party suffering loss (rather, it is said that it suffices that the loss is caused by the misleading conduct) (citing Janssen Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526 at 529 (Janssen Cilag v Pfizer); McCarthy v McIntyre [1999] FCA 784 at [48] (McCarthy v McIntyre); Hoath v Connect Internet Services Pty Ltd [2006] NSWSC 158; (2006) 229 ALR 566 at [109] (Hoath v Connect Internet Services)). 7. As to the second (implied) representation, it is noted that CBA paid out moneys by reason of the representations made indirectly to it by Investments and/or Mr Deiri that payment of the cheques was required (and appropriate) to satisfy the obligations of the Broadway Partnership to the payees. 8. Following, CBA's loss (if it is liable to Plaza) is thus said to have been caused by the conduct of Investments and Mr Deiri in drawing and utilising the cheques in discharge of Broadway Partnership's purported obligations. 9. In response to Investments' submission (on the misleading conduct claim) as to reliance (i.e., that CBA would need to call evidence to the effect that someone at CBA paid out cheques because they believed payment was properly authorised and regardless of the written mandate – see, particularly, T 1821.36-45), CBA maintains that it is not essential to the success of such a claim that there be direct evidence as to reliance and that CBA's reliance can be inferred from all of the evidence (citing Hanave Pty Ltd v LFOT Pty Ltd (1999) 43 IPR 545 at [11], [45]; [1999] FCA 357). 10. CBA says that, although the mandate existed, it was treated as a formality by Moustafa (referring to his evidence at T 564.47-565.3) (as, it is said, it obviously was by Mr Deiri). CBA says that it is manifest that, had it not been relying on the sufficiency of the signature by Mr Deiri (absent Moustafa's signature), it would not have paid the cheques on presentation or drawdowns on request (pointing to the fact that, on the one occasion when a cheque signature was queried, the query was assuaged by reference to Mr Deiri alone, who confirmed that the cheque could properly be paid – see at [340]ff in the above chronology). Deicorp Entities' submissions 1. In response to the Seventh Broadway Cross-claim, the Deicorp Entities respond only to the bribery allegations, denying those allegations as they do the corresponding bribery allegations in the Fifth Broadway Cross-claim. Deiri Parties' submissions 1. In relation to the Seventh Broadway Cross-claim, the Deiri Parties maintain that the representations alleged by CBA do not arise. It is said that, by signing a cheque, Mr Deiri represented no more than that his signature is his and that he cannot be said to have represented that another signature on the cheque is authentic. Nor, it is said, can CBA show reliance on those representations. 2. As to the conspiracy claim, it is said that there is no basis to infer an agreement of the kind alleged, even if Plaza's allegations as to the representations were to be accepted. 3. As to the pleading by CBA that there was a representation that the cheques were duly authorised on behalf of the Broadway Partnership and that the payee was entitled to payment in the amount of the cheques (and that it relied on the representations made by making payment on each of the cheques), the Deiri Parties say that this part of the cross-claim cannot be sustained, for two reasons. 4. First, they say again that the representations alleged by CBA do not arise; in that, by signing a cheque and having it delivered, Mr Deiri and Investments did not represent that the cheque was "duly authorised" by the Broadway Partnership. 5. Second, they say again that CBA has failed to prove reliance. It is said that CBA did not adduce any evidence to demonstrate that a person paid out money because of a belief that the cheque was duly authorised, regardless of there only being one signature. It is submitted that this is fatal to the misleading conduct claim. It is said that, to the contrary, CBA honours cheques when the signatures match, in accordance with its mandate. It is said that so much is clear from the 2013 CBA cheque query (as to which, see at [340] in the above chronology), when a signature did not match (it will be recalled that the query noted that the signatures did not match the specimens held and asked whether it was approved). It is said that CBA was not there considering whether or not the cheque was authorised. 6. As to the conspiracy claim, the Deiri Parties say that (even if Plaza's allegations as to bribes were to be accepted) there is no basis to infer that there was an agreement between Mr Deiri, Investments and/or Deicorp on the one part, and Jamil on the other part, to the effect that the former would make the payments to Jamil pleaded in paragraphs the Fifth Broadway Cross-claim as not having been disclosed, and that Jamil would sign his father's name on certain cheques and correspondence. The Deiri Parties say that a finding that the payments in question "induced" Jamil to sign documents (which is part of the bribes case) does not demonstrate an agreement. It is said that the pleading of inducement in Plaza's bribes case is a causal allegation (i.e., Plaza pleads that there is an irrebuttable presumption, and the fact was, that Jamil was induced to do certain things), not an allegation involving an intention element on the part of Investments or Mr Deiri. It is submitted that Jamil could be induced to behave in a certain way without an agreement to do so. Determination 1. At the outset, it is to be recalled that the claims in the Seventh Broadway Cross-claim arise only if and to the extent that Plaza succeeds in its First Broadway Cross-claim against CBA. 2. Accordingly, to the extent Plaza has succeeded on that claim, the proceeding determinations must be understood in the context of those factual findings. Otherwise, to the extent Plaza has not succeeded, what follows should be taken as the determinations that I would have made had I relevantly reached a different conclusion as to those earlier findings. 3. Furthermore, I again note that CBA accepts that, in the absence of a finding that payments made to Jamil were "bribes" then the aspects of the Seventh Broadway Cross-claim based on a count of conspiracy will have no force. 4. I have already determined that the "bribes" allegations have not been made good. Accordingly, those aspects of the Seventh Broadway Cross-claim based on a count of conspiracy do not arise and I say nothing of them. 5. Otherwise, I find on the Seventh Broadway Cross-claim as follows. 6. First, I accept the submission for CBA that an intention, so far as such a finding be necessary, on the part of Mr Deiri and Jamil to injure CBA may readily be inferred from the knowledge that Mr Deiri and Jamil must have had as to the drawing of moneys from CBA for purposes which Plaza establishes were improper or unjustified, along with all the surrounding circumstances. Indeed, I readily accept that to that extent, it can be inferred that Mr Deiri and Jamil must have known that it was inevitable that CBA would thereby suffer loss if those matters were discovered. 7. As to the misleading and deceptive conduct claim, in respect of debits made to the CBA Partnership Account and which Plaza has claimed were unauthorised, I accept that Investments and Mr Deiri represented to CBA (by signing the First Facility Agreement, by signing the Second Facility Agreement and all the circumstances) that CBA had authority to, and should debit, the account with fees, charges, interest and repayments, in respect of Stage 1 Loan and Stage 2 Loan. Again, I also accept that, to the extent Plaza has established that those debits were not authorised, CBA has suffered loss in reliance upon and by reason of each such representation. 8. As to the drawdowns on the Stage 1 Loan and Stage 2 Loan, I accept CBA's submission that all drawdowns followed CBA's receipt of an accommodation notice, that each notice was executed by Investments (through Mr Deiri) and that each thereby amounted to a representation by Investments and/or Mr Deiri that the drawdown was authorised by, and should be paid for the purposes of, the Broadway Partnership. Again, I also accept that, to the extent Plaza has established that those drawdowns were not authorised, CBA has paid away moneys in reliance upon the representations of Investments and/or Mr Deiri. 9. As to the cheques, I accept CBA's submission that, each time a cheque was so paid by CBA, it was paid based on a representation that the cheque was duly authorised as a means of payment in discharge of a liability due (and thereby at least an implicit representation to CBA that when the cheque was duly presented to CBA for payment it ought be paid – i.e., was duly authorised for payment). 10. I agree that it is not necessary that the representation(s) relied upon be made to the party bringing the claim, nor even that there be reliance by the party suffering loss and that it suffices that the loss is caused by the misleading conduct. For example, I note that, in Janssen Cilag v Pfizer, Lockhart J said (at 529): Section 82 is the vehicle for the recovery of loss or damage for multifarious forms of contravention of the provisions of Pts IV and V of the Act. It is important that rules laid down by the courts to govern entitlement to damages under s 82 are not unduly rigid, since the ambit of activities that may cause contraventions of the diverse provisions of Pts IV and V is large and the circumstances in which damage therefrom may arise will vary considerably from case to case. What emerges from an analysis of the cases (and there are many of them) is that they do not impose some general requirements that damages can be recovered only where the applicant himself relies upon the conduct of the respondent constituting the contravention of the relevant provision. 1. I also accept, by parity of reasoning, the submissions for CBA in relation to the second (implied) representation (i.e., that payment of the cheques was required). 2. In this connection, I do not accept the submission for Investments that CBA needed to call evidence to the effect that someone at CBA paid out cheques because they believed payment was properly authorised and regardless of the written mandate. This is because I readily accept that such reliance can, and here ought to, be inferred from all of the evidence. It is, indeed, manifest that, had CBA not been relying on the sufficiency of the signature by Mr Deiri (or, indeed, the forged "Moustafa" signatures), it would not have paid out the moneys as it did. However, I do not think CBA could reasonably rely on such a representation when there was no second signature affixed. 3. Payments made based only on Mr Deiri's signature prior to the Cheque Authorisation Alteration Instruction, in circumstances where CBA knew that the mandate required both signatures, are akin, say, to a failure to take care to protect one's own interests. With that said, as between CBA and the Deiri interests, any loss should be borne by the latter since they have obtained the benefit of the payments out by CBA. 4. Thus, for the avoidance of doubt, I find that CBA could rely on the Cheque Authorisation Alteration Instruction for the purposes of payments after it was issued. 5. I now turn to the Eighth Broadway Cross-claim. Eighth Broadway Cross-claim 1. The Eighth Broadway Cross-claim is premised on a finding of liability on the part of the Deiri Parties under the Fifth Broadway Cross-claim (as to which, see above) or the Seventh Broadway Cross-claim (as to which, see above). 2. In summary, it is alleged that, if Investments is liable to Plaza or to CBA, then any such liability is said to have been caused by the misleading conduct of Plaza and Moustafa. It is alleged that, in those circumstances, Plaza and Moustafa are in turn liable to make Investments good for the full amount of its liability on the basis that Investments relied on representations from Plaza and/or Moustafa regarding, inter alia, whether Jamil was a person who could be trusted to act honestly in its dealings with the Broadway Partnership. That liability is said to arise under s 18 and s 236 of the Australian Consumer Law. 3. Investments also alleges that, if Investments is liable to CBA, then CBA is liable for that amount by reason of it falsely representing to Investments that the payments from the CBA Partnership Account were paid in accordance with the bank's mandate. It is said that when cheques were drawn on and debits made to the CBA Partnership Account, and CBA made and allowed those transactions to occur, CBA represented to Mr Deiri and Investments that it was doing so in accordance with its mandate. It is said that Mr Deiri relied on that representation and he would not have continued to sign cheques if he had known that Moustafa's signature on those cheques had been forged by Jamil. 4. As such, the Deiri Parties say that, if CBA's contingent claim against Mr Deiri, Investments and other Deicorp Entities is correct (as to which, see my disposition of the Seventh Broadway Cross-claim above), then the representations CBA made were false, and CBA would have contravened s 18 of the Australian Consumer Law and would in that event have caused, and would be liable for, any liability that the Deiri Parties have to CBA under the Seventh Broadway Cross-claim. 5. It is convenient to consider seriatim each of the claims against Plaza and CBA. Deiri Parties' submissions re claim against Plaza 1. Turning first to the claim against Plaza (which is based on the alleged false representations concerning Jamil's authority and character), Investments alleges that Plaza and Moustafa each represented to Mr Deiri that: Jamil was authorised to act on behalf of Plaza in its dealings with Investments and Mr Deiri in relation to the Broadway Development and the Broadway Partnership, including as to the direction of the payment of moneys; Jamil was a person who could be trusted to act honestly in his dealings with the Broadway Partnership; and Plaza had no reason to believe that Jamil was not a person who could be trusted and relied upon to act honestly in his dealings involve Plaza and the Broadway Partnership. 2. It is said that Plaza and Moustafa held Jamil out as Moustafa's son and Plaza's representative authorised to act on Plaza's behalf, allowed Jamil to manage the day-to-day dealings of Plaza in the Broadway Partnership, and allowed Jamil to be the point of contact for communications with Investments (including concerning payments to Plaza). It is said that these representations were made in particular through the various powers of attorney; through the representations deposed to by Mr Deiri that dealing with Jamil was like dealing with Moustafa, and vice versa; and by the fact that Moustafa stood by and left Jamil to take carriage of Plaza's involvement. 3. The Deiri Parties say that the representations were also implied, particularly concerning the authority of Jamil to give directions as to the payment of moneys by Investments, in circumstances where Investments had caused moneys to be transferred to Moustafa's overseas bank account in Lebanon on four different occasions, without direct communication with Moustafa, and Moustafa never communicated to Mr Deiri that Jamil had any lack of authority to give directions concerning payments. It is alleged that those representations were made in trade or commerce. 4. The Deiri Parties say that if Plaza's allegations are correct (and Jamil was not authorised to sign on his father's behalf, and Jamil did so without his father's knowledge or acquiescence – as to which, see my earlier determination of these issues above), then the representation was false; and the making of those representations by Moustafa and Plaza therefore contravened the prohibition on misleading and deceptive conduct under s 18 of the Australian Consumer Law. 5. Further or in the alternative, it is alleged that Moustafa was knowingly concerned in and thereby involved in that contravention, as he caused the representations to be made and was a director of Plaza with knowledge of the falsity of the representations. 6. As noted above, Mr Deiri's evidence is that he relied upon these representations, and would not have dealt alone with Jamil if he had known he could not be relied upon to act honestly. As a consequence, it is said that Plaza and Moustafa are liable to an award of damages under s 236 of the Australian Consumer Law to the extent that Investments or Mr Deiri are liable to Plaza in respect of Plaza's claims. Sayour Parties' submissions 1. The Sayour Parties say that the observation of Latham CJ in P&O Steam Navigation v Johnson (see at 214), to the effect that the taking by an agent of commissions without disclosure to the principal is a dishonest act, applies equally to the person making the payment. It is submitted that the person making the payment must know that the recipient agent is engaging in a dishonest act, or does not care whether or not he is doing so, because such a person takes that hazard. 2. In the present case, the Sayour Parties submit that Mr Deiri knew quite well that he was paying moneys to Jamil for Jamil's own benefit (because Mr Deiri admits that the November 2011 arrangement was for Jamil's own benefit – as to which, see above). They say that Mr Deiri is a person who was prepared falsely to attest that he witnessed a signature of Moustafa on the Matthews Street Unit Trust Deed, for gain; and that he allowed cheques to be signed by Jamil and, in the face of the 2013 CBA cheque query, did not even consult Jamil (let alone Moustafa) before instructing CBA to honour a cheque for a large amount made out to Mr Deiri's building company. Further, the Sayour Parties emphasise that, in the face of Jamil's express statement that he had lied to his father, Mr Deiri made no attempt to inform Moustafa. 3. The Sayour Parties say that Mr Deiri was clearly involved in Jamil's conduct (or at least reckless as to it), that Mr Deiri profited by it (or at least sought to do so) and that Mr Deiri did not rely on any such representation as is alleged. They emphasise (as they do in relation to the bribery allegations per se – see above) that a briber cannot be heard to say that he believed in the honesty of the payee; and that such a conclusion would destroy the law as to bribes (which is not to be weakened). It is submitted that any reliance would not have been reasonable reliance but that, in any event, there was no such reliance. 4. It is submitted that, so far as authority is concerned, this is just another way of alleging that Jamil had implied actual authority (as to which, see my determination of that issue above). It is said that, upon the hypothesis that the Fifth Broadway Cross-claim and/or Seventh Broadway Cross-claim succeed(s), and Jamil had no such authority, the premise of the claim falsifies its pleaded basis. 5. The Sayour Parties further says that there was no warranty of character; and that such implications do not arise by necessity. It is said that a man does not warrant the integrity of his son; and that no reasonable person would expect a man to expose every indiscretion of his son, or never to give him a second chance. It is said that the natural and normal expectation in human behavior is that a father will love his son, and give him every reasonable chance he can to make something good out of himself. Further, they say that an implied representation on such a topic would never rise to an unqualified warranty, noting that, normally, implied warranties of matters of opinion are limited to representations of reasonable belief; and that there would never be an implied warranty that a person never has a doubt or has no doubt. It is said that not even representations of opinion rise that high. 6. In their submissions in reply, the Sayour Parties also emphasise that a claimant may only recover under s 236 if the misleading or deceptive conduct under s 18 is the "but for" cause of the claimant's loss. They say that there is a fatal logical flaw in Investments' argument in that Investments will not be held to be liable to Plaza unless it is found that there has been some relevantly wrongful conduct on the part of Investments itself. It is noted that it is pleaded by Plaza that Investments, through Mr Deiri, was well aware of (and party to) Jamil's dishonest conduct in relation to the Broadway Partnership. Similarly, it is noted that CBA pleads a conspiracy and misleading conduct. 7. As to the "authorisation" representation, again it is said that it does not arise. It is said that if the representation was made that Jamil had authority, then it amounted to actual authority and if it was made it could not be false (as to which, see my determination of that issue above). To the extent that it is said to arise by implication, it is said that no such representation could reasonably be understood unless the circumstances did amount to authority. The Sayour Parties say that the alleged express representation turns on the effect of the Powers of Attorney (as to which, see my determination of that issue above), and cannot rise above their terms which either do or not give the alleged authority. Further, it is said that the alleged oral comment was an opinion, not a warranty, and could not be a basis for reasonable reliance. 8. The Sayour Parties say that, in any event, whatever statements or representations were made to Investments regarding Jamil's character or honesty, these were not representations in trade and commerce. It is said that it does not follow from the fact that people are engaged in commerce with family members beside them that everything they do is in trade and commerce. It is submitted that all sorts of social and networking connections go on and that people's opinions or representations about the character of members of their own family are not normally in trade and commerce. It is said that, "if those opinions are collected socially it is difficult to graft more on to them". It is noted that Mr Deiri met Jamil before he met Moustafa and it is asserted that Mr Deiri has not been straightforward in his account of his dealings with Jamil. Determination re claim against Plaza 1. I accept (see factual finding #1) that Plaza through Moustafa represented to Mr Deiri that Jamil was authorised to act on behalf of Plaza in its dealings in relation to the Broadway Partnership, including as to the directions to pay moneys. I do not accept that the representation extended to a representation as to the signing of cheques (which is inconsistent with the CBA mandate) nor to the direction of benefits for Jamil's benefit for the reasons stated earlier (and, in the case of accommodation notices, noting Mr Deiri was well aware that they were being prepared in his office). The moneys required to be repaid do not extend to those in respect of which the representation was made. 2. I do not accept that there was a representation as to Jamil's honesty or integrity; nor that any such representation was relevantly in trade or commerce. Moreover, Mr Deiri was an astute businessman. He was capable of judging those with whom he dealt without reliance on Moustafa. 3. Therefore, I find that the claim against Plaza fails. 4. As to the claim against CBA, it has an inevitable element of circularity. Both CBA and the Deiri Entities were aware of the account operating mandate, and I cannot accept that Mr Deiri relied on any representation by CBA in allowing the transactions to occur as they did. That claim also fails, for reasons that I now elaborate. Deiri Parties' submissions re claim against CBA 1. As to the claim against CBA, Investments alleges that, if Investments is liable to CBA (which is denied), then CBA is liable for that amount by reason of it falsely representing to Investments that the payments from the CBA Partnership Account were paid in accordance with the bank's mandate. It is said that, when cheques were drawn on and debits made to the CBA Partnership Account and CBA made and allowed those transactions to occur, CBA represented to Mr Deiri and Investments that it was doing so in accordance with its mandate and that Mr Deiri relied on that representation. It is said that Mr Deiri would not have continued to sign cheques if he had known that Moustafa's signature on those cheques had been forged by Jamil. 2. As such, it is said that if CBA's contingent claim against Mr Deiri, Investments and other Deicorp entities is correct, then the representations CBA made were false, and CBA would have contravened s 18 of the Australian Consumer Law. It is said that CBA would, in that event have, caused (and would be liable for) any liability that the Deiri Parties have to CBA under the Seventh Broadway Cross-claim. CBA's submissions 1. In relation to this aspect of the Eighth Cross-claim, it is sufficient to have in mind CBA's submissions vis-à-vis the First Broadway Cross-claim and, additionally, its position vis-à-vis the Seventh Broadway Cross-claim. Determination re claim against Plaza 1. As to the submission that CBA is here liable by reason of it falsely representing to Investments that payments from the CBA Partnership Account were paid in accordance with the bank's mandate, the difficulty I have with this is, initially, that I struggle to see that CBA at any time relevantly so represented to Investments. That is, I do not accept that, when CBA permitted the drawing of cheques and debiting to the CBA Partnership Account, that CBA represented to Mr Deiri and Investments that it was doing so in accordance with its mandate. Rather, I see that the relevant representation in fact came from Mr Deiri and was to CBA (when he signed the cheques, drawdown notices, or the like) (as to which, see also my determination of the Seventh Cross-claim above). 2. Furthermore, even if these were relevant representations, I do not accept that Mr Deiri relied on any such representation(s), not least having in mind the totality of circumstances prevailing at the time and, particularly in that regard, Mr Deiri's relationship with Jamil. In this connection, even if there was reliance, I cannot accept that this was reasonable. 3. This is sufficient to dispose of this aspect of the proceedings. 4. Finally, I turn to the Ninth Broadway Cross-claim. Ninth Broadway Cross-claim 1. Finally, I turn to the Ninth Broadway Cross-claim, by which Deiri Nominees seeks orders winding up Matthews Street Co on just and equitable grounds under s 461(k) of the Corporations Act in the event that Plaza's claims in respect of a constructive trust over the Matthews Street Property fail. The claim thus does not arise if Plaza succeeds on the Matthews Street claim in the Fifth Broadway Cross-claim (as to which, see my determination of that claim above). 2. Deiri Nominees seeks the appointment of Mr Lord (as will be recalled, the Receiver presently holding the Broadway funds) as liquidator of Matthews Street Co. Mr Lord has consented to that appointment. Deiri Nominees also seeks an order that the liquidator sell the property, and that the net proceeds of sale, after payment of expenses and liquidator's fees, be distributed equally between Deiri Nominees and Plaza as members. 3. In summary, the Deiri Parties say that plainly there is an intractable dispute between the shareholders; that the only asset of the company is the Matthews Street Property; and that the company has no purpose and no future. It is said that there is no prospect of any future endeavour between the shareholders concerning the property. In that regard, Deiri Nominees notes that it wrote to Plaza proposing that the property be sold and the funds held pending the outcome of these proceedings, but that proposal was rejected by Plaza. The Deiri Parties say that there is nothing left to do other than to sell the property and distribute the proceeds to members. Sayour Parties' submissions 1. As to the relief sought, the Sayour Parties say that the distribution of the net sale proceeds equally to Plaza and Investments as members of the Company (see as summarised above) itself seems to indicate that Investments does not maintain that the property is held on the terms of the purported Matthews Street Unit Trust, and presumably the only reason for seeking this order is to establish a binding determination that the asset is to be administered as an asset of the company in its liquidation and not as an asset of the purported trust. 2. Insofar as the Deiri Parties' submissions assert that it is wrong to describe instances where Jamil signed Moustafa's name as forgeries; and rely on the execution of the "Matthews Street Joint Venture Documents" (see in the above chronology) as a factor assisting in finding that the Broadway Partnership commenced no later than 29 November 2011, the Sayour Parties say that is implicit in this submission that the Matthews Street "documents" including the trust deed were validly executed. 3. The Sayour Parties say that, having regard to the manner of execution of the Matthews Street Unit Trust Deed, that would entail a contention that the forged signature of Moustafa as sole director of Plaza on the deed and other Matthews Street documents was in fact written by Jamil and that he did so with authority under Power of Attorney, notwithstanding that the execution clause purports the execution on behalf of Plaza to be by its director and notwithstanding the rule that a director's performance of office cannot be delegated by power of attorney. 4. It is said, that given the inconsistency between these submissions and the relief claimed in the Ninth Broadway Cross-claim, it is not clear whether that means that the Deiri Parties contend that that trust deed is itself valid. The Sayour Parties say that, if it is valid, a winding up of the company would be pointless and would merely tend to throw expense on to the administration through administration by an unfunded trustee company in liquidation. However, it said that order 3 as sought in the Ninth Broadway Cross-claim could not be made in any event. 5. Indeed, the Sayour Parties say that the Ninth Broadway Cross-claim is misconceived: that either the Matthews Street Unit Trust fails and there is a resulting trust back to the contributors because the beneficial title has not successfully vested and Matthews Street Co was never intended by anyone to be the beneficial owner; or the Matthews Street Unit Trust is valid and must be carried into execution. 6. It is said that, if judgment were adverse to Plaza on its claim in relation to the Matthews Street and the validity of the Matthew Street Unit Trust is upheld, then that would leave the parties in joint control of the trustee and they would have every incentive to work together to exercise the trustee's powers; and, in an orderly way, terminate the trust and enter into a redemption or buyout regime or some other consensual approach to achieve an orderly separation without burdening this single asset with further expense. It is said that, in case they cannot work together to achieve this, there could be liberty to apply for the administration and execution of the trust, including (if so advised) the appointment of a new trustee; and that this is the more efficient course to take. Determination 1. At the outset, I note my disposition of Plaza's claim in relation to the Matthews Street and the validity of the Matthew Street Unit Trust recorded above. 2. Otherwise, I accept that, having regard to the fact that the property is the only asset of the trustee and that it is generally desirable not to burden that asset with further expense, I accept the position advanced by the Sayour Parties. If the parties cannot cooperatively manage the affairs of the trustee and consensually bring about an orderly separation, then they will have liberty to apply. 3. I now turn to the Arncliffe Proceedings. Arncliffe Proceedings 1. Again, before turning to the issues raised by the various cross-claims in the Arncliffe Proceedings, I address various preliminary and critical factual issues. Key factual findings sought in the Arncliffe Proceedings 1. I first consider those findings of fact sought by the Deiri Parties. Preliminary factual findings sought by the Deiri Parties in the Arncliffe Proceedings 1. First are those factual findings sought by the Deiri Parties, and which they characterise as being of a preliminary nature. Factual finding A: Jamil first told Moustafa about the Arncliffe "project" in 2012 1. The first preliminary finding of fact contended for by the Deiri Parties in the Arncliffe Proceedings is that Jamil first told Moustafa about the Arncliffe project in 2012. 2. Although couched by the Deiri Parties as a preliminary finding of fact, I note that the whole issue as to the circumstances in which Jamil came to learn of the Arncliffe Site (and/or its development potential) ultimately assumed a great deal of significance in the various parties' submissions, not least because each of Zapphire and Konstructions maintains an entitlement to receipt of substantial sums based on its alleged involvement in either the identification of the site (in Zapphire's case) or the preliminary investigations in relation to the site (in Konstructions' case). Deiri Parties' submissions 1. The Deiri Parties point to Moustafa's affidavit evidence (specifically, his affidavit sworn on 27 October 2016 and his affidavit sworn on 16 September 2019 affidavits), in which he deposes to first having heard of the project in 2012 and to his evidence in cross-examination. It is noted that Moustafa placed his conversation with Jamil in relation to the site prior to a trip by Moustafa to Lebanon in February 2013. Similarly, both Zapphire and Konstructions point to Moustafa's evidence as to when Jamil told him about the Arncliffe Site in support of their contention that Jamil was introduced to the site earlier than his meeting with Mr Dale in around October 2013. 2. The Deiri Parties submit that Moustafa's evidence in this regard (as to the conversation being in 2012) should be accepted, as it is against the interest of the Sayour Parties. Pausing here, I interpose here to note that the Sayour Parties say that the Deiri Parties cannot "pick and choose" in this regard; but, in essence, what the Deiri Parties say is that evidence of Moustafa that is against his interest can be accepted. 3. The Deiri Parties say that the evidence demonstrates that Jamil was aware of the Arncliffe Site, and investigating developing it, from at least twelve months before bringing it to the attention of Mr Deiri. It is also noted that there is no suggestion that Mr Deiri knew about the Arncliffe Site until October 2013. 4. I note that Moustafa, in his affidavit evidence, makes clear that what Jamil was at that time contemplating was a development project to be carried out on his own behalf (i.e., not seemingly as a family venture with Moustafa, which is consistent with Moustafa apparently not having any involvement in the development during Jamil's lifetime but inconsistent with the way in which the corporate structure was ultimately put in place for the project, which I have outlined above. Sayour Parties' submissions 1. The Sayour Parties say that the evidence that Jamil first told Moustafa about the Arncliffe Development as early as 2012 is inconsistent with evidence that no such conversation could have occurred until late 2013 at the earliest. For example, in his affidavit sworn on 27 October 2016, Moustafa deposed that Jamil mentioned to him in 2012 a "joint venture between Jamil and Fouad" (see at [39]), and that Jamil said he was "thinking of going into business with Fouad to build some apartments on it" (see at [40]); and that, in cross-examination about his initial discussions with Jamil about the possibility of a development in Arncliffe, Moustafa said that "I remember, your Honour, he, he mentioned in 2012, he, he, he has find a land with Fouad, becomes partner in 2012, I remember" (T 444.47-48). The Sayour Parties submit that it is not plausible that Jamil told Moustafa in 2012 that he had a plan to develop the Arncliffe Site with Mr Deiri. 2. The Sayour Parties emphasise that Moustafa's evidence was that the original information given to him by Jamil was that Jamil was doing the project with Mr Deiri. It is said, therefore, that either Moustafa is wrong about the date of the conversation being 2012 or his evidence is evidence that Mr Deiri was involved at that early time. The Sayour Parties say that this is not evidence of an admission that Jamil had been introduced to the site in 2012, but that he entered into a venture with Mr Deiri only a year or many months later (i.e., in 2013). 3. It is said that there is no particular reason why anyone in the "Sayour camp" in 2016 (when Moustafa first gave evidence about these matters) would have considered the year in which Jamil and Mr Deiri discussed Arncliffe to be significant; rather, that it was only much later, in November 2018, that Mr Deiri's solicitors first disclosed to the Sayour Parties that Combined Projects Arncliffe had paid so-called "site identification fees" to third parties, thus putting in issue for the first time the question of when the Arncliffe Site was discovered, and by whom. It is said that, until November 2018, the Deiri Parties' unqualified position was that Jamil had identified the Arncliffe Site and had introduced it to Mr Deiri in late 2013 (referring, by way of example, to Mr Deiri's affidavit sworn on 26 June 2017 at [19]-[21]). 4. Following, the Sayour Parties say that the Deiri Parties' submission (that Moustafa's evidence in 2016 that Jamil mentioned the Arncliffe project to him in 2012 is against interest) ought to be rejected. It is said that the objective evidence now indicates comfortably that it was 2013, not 2012, because that was when Mr Dale's evidence establishes that the introduction to Mr Deiri took place, and that Moustafa was simply mistaken about the date, the Sayour Parties noting that Moustafa did not fix the date of his first conversations with Jamil about Arncliffe by reference to the occurrence of some other event. 5. I interpolate to note, however, that, in cross-examination, Moustafa did place this discussion as being before he went to Lebanon in 2013, so at least to that extent he did place the conversation by reference to an event. 6. In any event, the Sayour Parties say (and I accept) that, even if Jamil had located the site in 2012, it does not follow that it was Mr Zafiropoulos who introduced it, nor that Mr Kanj ever became involved in any significant way. The Sayour Parties say that Mr Deiri's evidence that Jamil first told him about the Arncliffe Site in October 2013 is supported by Mr Dale's evidence, and in particular by the email exchanges between Mr Dale and Jamil on 14 October 2013 (see, for example, as set out in the above chronology). 7. Nor, it is said, does Moustafa's evidence that he discussed the Arncliffe project with Jamil in 2012 fit well with the timelines advanced by Messrs Zafiropoulos and Kanj. The Sayour Parties note that Mr Zafiropoulos has deposed (see in his affidavit sworn on 9 October 2019 at [28]ff) that he first mentioned the Arncliffe Site to Fadi Ibrahim and Jamil in or around December 2012; and that Mr Kanj has deposed (see in his affidavit sworn on 20 September 2019 at [19]-[21]) that "[i]n or about mid to late 2013" he had a series of discussions with Jamil about working together in the construction trade and that it was only "some time later" (i.e., later than mid to late 2013) that Jamil told Mr Kanj about the Arncliffe Site, and that, even then, Mr Kanj's evidence is that Jamil raised the Arncliffe Site in the context of Jamil doing the development himself, with Mr Kanj's assistance (specifically, Mr Kanj's evidence (at [23] of his affidavit sworn on 9 October 2019) being that "[i]t was pretty clear to me in these early conversations that Jamil was not interested in involving Fouad in the Arncliffe site"). 8. In sum, the Sayour Parties' case is that: Jamil was not aware of the Arncliffe Site as a prospective development until his "fortuitous" meeting with Mr Dale in about October 2013; Jamil quickly formed the view that he could only do the development in partnership with Mr Deiri and Deicorp; Jamil shortly thereafter told Mr Deiri about the site (probably on 14 October 2013), and the Combined Projects Arncliffe joint venture was established; and the only plausible inference is that Moustafa is simply mistaken in saying that Jamil had told him as early as 2012 that he had gone into partnership with Mr Deiri to develop the Arncliffe Site. 9. The Sayour Parties say that, insofar as the case advanced by the Deiri Parties, Zapphire and Konstructions is that Mr Zafiropoulos told Jamil and Fadi Ibrahim about the Arncliffe Site in about December 2012, Jamil told Moustafa (before the end of 2012) that he had gone into partnership with Mr Deiri to develop the site, Jamil told Mr Kanj (no earlier than mid 2013) about the Arncliffe Site but made it clear to Mr Kanj that he had no interest in involving Mr Deiri in the development and, by no earlier than October 2013, Mr Deiri first heard about the Arncliffe Site and the possible development, then the only date in this timeline that can be fixed with reasonable certainty by reference to contemporaneous documentary evidence is the date on which Jamil first told Mr Deiri about the Arncliffe Site (because that date is confirmed by the emails exhibited to Mr Dale's affidavit). 10. It is noted that, in giving this evidence, Moustafa had to rely on his unaided recollection. It is submitted that, if he had sought to be dishonest, he could have tailored his evidence; and that there is no rational basis for any finding other than that Moustafa made an honest mistake in saying that Jamil had told him in 2012 that he was doing a project in Arncliffe with Mr Deiri as his partner. 11. The Sayour Parties thus seek a finding that Jamil first told Moustafa about the Arncliffe Site some time after he spoke to Mr Dale, and then Mr Deiri in October 2013. They say that there is no reliable evidence that Jamil told Moustafa about Arncliffe in 2012 (and they say that this is a crucial point for the Deiri Parties' case, and to the case of Konstructions and Zapphire as well – i.e., that Jamil already knew about the Arncliffe Site before he spoke to Mr Dale in late 2013). Deiri Parties' submissions in reply 1. I note that, to this, the Deiri Parties in reply say that this position (i.e., that the evidence of Moustafa, is "mistaken" and "not plausible") is taken notwithstanding that Moustafa gave this evidence in his affidavit sworn on 27 October 2016, his affidavit sworn on 16 September 2019 and also in cross-examination. It is submitted that this submission should be rejected, and it has been "belatedly made" because this date is "fundamentally inconsistent" with the Sayour Parties' case (and, it is said, this is exactly why Moustafa's consistent and repeated evidence on this topic is an admission). 2. Furthermore, and in any event, the Deiri Parties say that the Sayour Parties point to no objective evidence which suggests that Moustafa's evidence is "mistaken"; and that "the best they assert" is that Moustafa's evidence must be taken as a whole and either Moustafa was wrong about the date or Mr Deiri was involved in the project in 2012. It is submitted that this assertion "fails at the threshold", because Moustafa's evidence that Jamil told him that Mr Deiri was involved in the project in 2012 is not evidence of the fact, it is only evidence of what Jamil told Moustafa and assumes that Jamil was being truthful with Moustafa (which is generally inconsistent with the Sayour Parties' case). Accordingly, it is said that the fact that Mr Deiri became aware of the Arncliffe Site in around October 2013 takes the matter no further and, additionally, that "it is plain" from all the evidence (including the evidence of witnesses such as Mr Bazzi and Mr Zafiropoulos) that Jamil was aware of the Arncliffe Site from 2012. 3. Following this, the Deiri Parties maintain that the Sayour Parties' argument must be rejected and, it is said, that has significant ramifications for the remainder of the matters advanced by the Sayour Parties Determination as to factual finding A 1. It is convenient first to consider the parties' positions in relation to factual finding C, and then to make relevant factual findings in due course as to factual finding A (see below). Factual finding B: Sayours changed accountants to Mr Gramelis in September 2013 and appointment of Mr Gramelis 1. The second preliminary finding of fact that the Deiri Parties submit should be made is that Moustafa and Jamil (and their related entities) changed accountants (to Mr Kon Gramelis) in September 2013. It is said that this occurred no later than 25 September 2013, when Mr Gramelis sent an email to Jamil stating that it was a "pleasure to finally [sic] get you across" and setting out the next steps that needed to occur to effect a handover from the former accountants to Mr Gramelis. 2. It is noted that this is confirmed by Moustafa's affidavit sworn on 8 November 2019 (at [11]), in which he states that Mr Gramelis is "an accountant" and "the principal of an accounting business known as 'New Wealth Tax & Accounting Services'" and in which he deposes that "Jamil had in 2013, persuaded me to engage Mr Gramelis to provide accounting services for myself and the family businesses". 3. The Sayour Parties accept that Moustafa engaged Mr Gramelis and New Wealth to provide accounting services in around September 2013. Determination as to factual finding B 1. This is now not disputed and is common ground. It accords with the documentary evidence. Accordingly, I find that the Sayours changed accountants to Mr Gramelis in September 2013. Factual finding C: Jamil approached Mr Dale in relation to the Arncliffe Site 1. The third preliminary finding of fact sought by the Deiri Parties (which is related to the first – see above) is that, in mid to late 2013, Jamil approached Mr Rodney Dale, whose company, Brano, was the then owner of what is now the Arncliffe Site, in relation to the potential acquisition of the Arncliffe Site for the purpose of development (the Deiri Parties here pointing particularly to the evidence that Mr Dale gave to that effect in cross-examination). 2. Mr Deiri's evidence is that, in this period of time, Jamil and Mr Deiri were already in frequent contact in connection with the Broadway Development. In his affidavit (although in cross-examination he said it was more likely that this was in September or more probably October – see, for example, at T 824.10), Mr Deiri deposed that, in or around November 2013, he and Jamil had a conversation at the Deicorp offices where Jamil told him that he had "found a development site at Arncliffe" and Mr Deiri agreed to go and take a look at the site with Jamil. In cross-examination, Mr Deiri confirmed that before the conversations he knew nothing about the site and that, from his conversation with Jamil, by the time of their discussion Jamil knew a "fair bit about the site" (see at T 824.30) and "was across what we could get on the site" and "across the floor space … certain aspects of the site" (see at T 824.30-32). Mr Deiri placed the conversation as being before he first met Mr Dale and he made the observation that when they went to the site that Jamil seemed to know his way around. Deiri Parties' submissions 1. The Deiri Parties say that it should be accepted that, in around September or October 2013, Jamil approached Mr Deiri in relation to the potential acquisition and development of the Arncliffe Site, with which Jamil was evidently already familiar, and subsequently took him on a tour of the site. As noted (see above), they also say that Jamil told Moustafa about the Arncliffe Site in 2012 and that Jamil well knew about the site and its potential when he approached Mr Dale; and that this is consistent with the evidence of Mr Zafiropoulos and Mr Kanj. Sayour Parties' submissions 1. The Sayour Parties say that the Deiri Parties' above submission is based on a "misrepresentation" of Mr Dale's evidence. In particular, the Sayour Parties say that Mr Dale was clear (in both his affidavit evidence and his evidence in cross-examination) that, as far as Mr Dale was aware, Jamil did not know about the Arncliffe Site until it was mentioned to Jamil by one of Mr Dale's sales staff (see, for example, [15]-[17] of Mr Dale's affidavit sworn on 9 August 2019 and Mr Dale's cross-examination at T 687.17-T 690.4). Specifically, emphasis is placed on Mr Dale's evidence (at [10]-[14] of his affidavit sworn on 9 August 2019) that he had asked his employees at the Purnell yard to look out for anyone who might be interested in buying the Arncliffe Site and that he had asked them to introduce Mr Dale to anyone who looked like a property developer or property investor. 2. It is said that there is nothing "fanciful" about the Sayour Parties' case that Jamil was fortuitously introduced to the Arncliffe Site by Mr Dale's salesman; and that this is supported by credible evidence from a disinterested witness (Mr Dale) and by documentary evidence (Mr Dale's emails exhibited to his affidavit). 3. By way of reply, the Deiri Parties contend that the Sayour Parties "do not squarely grapple" with the evidence that it was Jamil who approached Mr Dale in relation to the Arncliffe Site, and not vice versa. In this regard, the Deiri Parties point, by way of example, to Mr Dale's affidavit sworn on 9 August 2019, as follows (at [15]): I have a customer that has purchased a Range Rover from Purnell who expressed interest in meeting you. I mentioned to him the EFCO site at Arncliffe and he is involved in real estate development. [Emphasis per submissions.] 1. It is said that, read as a whole, this passage is consistent with it having been Jamil who took the initiative, and the representative having then arranged the meeting with Mr Dale in response. It is asked, perhaps rhetorically, why else did Jamil, at the outset, express interest in meeting Mr Dale? 2. Similarly, the Deiri Parties contend that, in cross-examination, Mr Dale went further than expressing a sentiment and (it is said) he expressly accepted the accuracy of a version of events put to him by counsel for the Deiri Parties; namely, that Mr Dale's employee told Mr Dale that he had a "customer … downstairs … who'd like to meet you". 3. It is submitted that the Sayour Parties are unable to point to any express statement in Mr Dale's evidence that it was he, or his representatives, who first informed Jamil that the site existed (as distinct from giving Jamil information about the site); and that, at its highest, the passages to which the Sayour Parties refer show that, after Jamil approached Mr Dale and his staff expressing an interest in the site, they then told him more about it. 4. Following, it is said that Jamil's knowledge of the site before approaching Mr Dale therefore clearly fits with the evidence given by Mr Dale and is supported by the evidence called by the other defendants. 5. The Deiri Parties also note that the Sayour Parties submit that factual finding C cannot be correct because factual finding A is not correct; and that the Sayour Parties' case on the former now also relies upon the rejection of Moustafa's own consistently maintained evidence that Jamil first told him about the Arncliffe Site in 2012. Determinations as to circumstances relating to discovery of Arncliffe Site (factual findings A and C) 1. As I have indicated above, I now consider together the first and third of the preliminary factual findings sought by the Deiri Parties (and the related findings sought by Konstructions and Zapphire). 2. In this regard, I accept what is, in effect, the Sayour Parties' submission that the time at which Jamil first learnt about the Arncliffe Site cannot now be determined with any degree of certainty, save that it is clear that he knew about it by the time (in October 2013) that he had the meeting with Mr Dale and that he then introduced Mr Deiri to Mr Dale as his partner (which is consistent with a meeting in 2013 by which time the Broadway Partnership was well established). 3. In this regard, and to the Deiri Parties' submission that the Sayour Parties are unable to point to any express statement in Mr Dale's evidence that it was he (or his representatives) who first informed Jamil that the site existed (as distinct from giving Jamil information about the site) and that the passages to which they refer are consistent with the hypothesis that Jamil approached Mr Dale and his staff, I must say that it is equally true that the Deiri Parties likewise cannot point to any express statement or clear, objective evidence in support of their hypothesis and, indeed, both competing hypotheses fit with the evidence given by Mr Dale and others. 4. In this connection, as I have noted above, I accept that Mr Dale was a truthful and credible witness and I accept his account of how Jamil was introduced to him in relation to the Arncliffe Site. However, again, I consider that this does not preclude the possibility that Jamil already had learnt about the Arncliffe Site by some other means and that it was, in that context and with that knowledge, that Jamil initially approached the salesman at Purnell Motors. In particular, Mr Dale's account can only go so far as how he came to meet Jamil (and what he recalls Jamil telling him on that occasion), not what Jamil might have known about the site from an earlier time (and, indeed, how he had come to know anything he did at that stage). In those circumstances, I do not consider that the finding here sought by the Deiri Parties advances the case one way or the other and I make no such finding. 5. I place little weight on Mr Zafiropoulos' assertions as to his identification of the Arncliffe Site and initial discussions with Jamil. I accept that Mr Zafiropoulos may well have been researching properties in the Arncliffe area in 2011 or 2012 and that he may have spoken to Jamil about such sites. However, there is nothing objectively to corroborate his evidence that he was responsible for introducing the Arncliffe Site to Jamil other than the generalised account that Mr Deiri says he was given by Jamil in the "the deathbed conversation" (i.e., that Jamil had been introduced to the site by someone to whom he had promised a fee. The evidence of the discussions at the First Sake Restaurant lunch rests on nothing more than Mr Zafiropoulos' account of that meeting. 6. I do accept that there was a discussion between Mr Deiri and Jamil on 30 September 2015 to the effect that Jamil had promised a site identification fee to one or more others (because that is supported by the evidence of Mr Vamvakaris, which I accept, as to what he was told on that day by Mr Deiri, and I consider that his account of Mr Deiri's reaction to that is credible). However, this is quite a different proposition to there being a rational basis for Jamil to have promised a particular sum to either Mr Zafiropoulos or Mr Kanj at that time (even assuming they were the persons to whom Jamil considered he had some obligation in relation to the identification of the site or, in Mr Kanj's case not even for identification of the site but for some kind of disappointed expectations payment). Indeed, I cannot accept that there was. 7. Meanwhile, the reference (in the email to Mr Dale) to Mr Deiri being Jamil's "partner" and the suggestion that Jamil would do (another development) with Mr Deiri makes far more sense if such a discussion with Moustafa occurred later in 2012 or in 2013 than early in 2012 since in early 2012 the partnership in relation to the Broadway Development had only just commenced – (while at that stage one might think it was very early days, so to speak, for the partners to be contemplating other developments together – since they could have had no real idea how the present partnership would go – it nevertheless seems that it did not take long for them to move onto another venture together – the Matthews Street Property). Therefore, I would be inclined to accept that it is more likely than not that Moustafa was mistaken in placing his first conversation with Jamil about the Arncliffe Site as occurring in 2012. 8. While it is not implausible that Jamil learnt about the Arncliffe Site at an earlier time than his first meeting with Mr Dale (which would make more credible the alacrity with which it seems Jamil took up the possibility of acquiring the land from Mr Dale) there is nothing to put this as occurring a long time before the first meeting with Mr Dale. As to Mr Kanj's evidence, there is simply nothing by way of contemporaneous documentation to support his account. 9. I therefore cannot be satisfied as to the time when Jamil first learnt about the site or its development potential and thus am not persuaded as to the proposed factual finding "A" (that Jamil first told Moustafa about the Arncliffe project in 2012) though I accept that Jamil may well have learnt about the site at a time earlier than his first meeting with Mr Dale. 10. Meanwhile, for the preceding reasons, I accept that the evidence establishes that, by no later than 14 October 2013, Jamil had approached Mr Deiri in relation to the Arncliffe Site as a potential development site and I accept that Mr Deiri did not know about the site before that time (and, see my disposition of factual finding D below). Factual finding D: Jamil approached Mr Deiri in relation to the Arncliffe Site 1. The Sayour Parties accept that Jamil approached Mr Deiri in relation to the Arncliffe Site. As the Sayour Parties submit and as I have just observed, the date on which this occurred can be fixed with a fairly high degree of certainty (by reference to the contemporaneous emails) as being no later than 14 October 2013. Determination as to factual finding D 1. This finding is now common ground and is supported by the evidence to which I have referred. I so find. Factual finding E: Mr Deiri negotiated the purchase of the Arncliffe Site with Mr Dale 1. Next, the Deiri Parties say that it should be found that Mr Deiri negotiated the purchase of the Arncliffe Site with Mr Dale. They point to the email communications from October 2013 (see the chronology above) between Jamil and Mr Dale and between Mr Deiri and Mr Dale in relation to the site, the evidence given by Mr Dale (again, see the chronology of events above), and the emailing of the draft heads of agreement by Mr Deiri to Mr Dale on 29 January 2014. 2. The Deiri Parties submit that it is clear beyond doubt that Mr Deiri negotiated the purchase of the Arncliffe Site with Mr Dale. I note that the Sayour Parties accept that Mr Deiri directly negotiated the purchase of the Arncliffe Site with Mr Dale. Determination as to factual finding E 1. This finding is now common ground and is supported by the evidence to which I have referred. I so find. Factual finding F: Arncliffe Agreement formed in December 2013 or January 2014 1. Finally, and more contentious, is the sixth preliminary finding of fact that the Deiri Parties contend should be made, namely that the so-called Arncliffe Agreement was formed in December 2013 or January 2014. 2. I here note that what is in contention is not that there was an agreement formed around then; rather it is as to the terms of that agreement. 3. The two primary conversations on which the Deiri Parties rely in this regard are set out in Mr Deiri's affidavit sworn on 16 October 2019, those being a conversation with Jamil in December 2013 and a further conversation with Jamil in January 2014. The Deiri Parties say that those two conversations "laid the groundwork" for the Arncliffe Agreement. Deiri Parties' submissions 1. The Deiri Parties note that, after the two conversations between Mr Deiri and Jamil on which they rely, on 28 January 2014 Jamil emailed Mr Deiri, nominating his half shareholding entity as Sayour Holdings; that Mr Deiri chose Deiri Nominees as his shareholding entity; and, the following day, Combined Projects Arncliffe was incorporated with two equal shareholders (Sayour Holdings and Deiri Nominees) and with Mr Deiri as sole director and company secretary, using an incorporation agent (as to which see the above chronology) . 2. The Deiri Parties therefore contend that, upon the incorporation of Combined Projects Arncliffe, an agreement was formed between Deiri Nominees, Sayour Holdings and Combined Projects Arncliffe (the Arncliffe Agreement) which gave effect to the understanding Mr Deiri and Jamil had reached in December 2013 and January 2014. It is said that the Arncliffe Agreement was partly express (by the two conversations between Mr Deiri and Jamil) and partly implied in the circumstances. It is noted that an agreement may come into effect through conduct (see Brambles Holdings v Bathurst City Council at 177-179; [2001] NSWCA 61 per Heydon JA, as his Honour then was). 3. The Deiri Parties say that the terms of the Arncliffe Agreement included that: Combined Projects Arncliffe was incorporated to acquire and develop the Arncliffe Site; Mr Deiri was sole director of Combined Projects Arncliffe and had full control of it; Sayour Holdings was to be a passive investor in Combined Projects Arncliffe; Mr Deiri and Sayour Holdings would make equal financial contributions to Combined Projects Arncliffe for the development of the Arncliffe Site; and any profits of Combined Projects Arncliffe would be distributed to Deiri Nominees and Sayour Holdings proportionately to the financial loan contributions made by each, as a percentage of overall shareholder financial contributions. 4. In this regard, I note that, at [128] of the further amended defence and at [36] of the further amended third cross-claim, the alleged terms of the "Arncliffe Agreement" are pleaded (in identical terms). Specifically, sub-paragraphs (f) and (g) of each such paragraph are in the following terms: (f) subject to the Sayour family (or an entity nominated by them) contributing the same amount to the development of the Arncliffe Site as [Deiri Nominees] contributed, the Sayour Holdings would hold 50% of the shares in Arncliffe; and (g) further or alternatively to (f) above, subject to Sayour Holdings contributing the same amount to the development of the Arncliffe Site as Deiri Nominees contributed, Sayour Holdings would be entitled to 50% of any profits, proceeds or distributions of the Company to be incorporated. 1. The Deiri Parties say that the Arncliffe Agreement is wholly consistent with the arrangements that the parties entered into in respect of the Broadway Partnership (in effect, that each party contribute equally to the transaction in order to obtain an equal benefit of the profits). It is said that, in Broadway, Mr Deiri contributed $6 million towards the purchase of the land (i.e. an equal contribution to the purchase of the land) and the partnership made equal contributions to the expenses of the partnership, such as marketing, fit-out, legal fees and the like. Sayour Parties' submissions 1. The Sayour Parties accept that an agreement was struck between Mr Deiri and Jamil in relation to the development of the Arncliffe Site in about December 2013 or January 2014. Indeed, as I have said, the only issue between the parties is as to the terms of the agreement. 2. The Sayour Parties accept that the incorporation of Combined Projects Arncliffe in January 2014, with entities nominated by Mr Deiri and Jamil as equal shareholders, could only have been the result of an agreement struck between Mr Deiri and Jamil. 3. However, the Sayour Parties say that there is no good reason to depart from the only objectively reliable contemporaneous written document setting out the respective rights and entitlements of the parties in relation to the Arncliffe Development (namely, the constitution of Combined Projects Arncliffe itself, which provided for the pro rata distribution of profits to shareholders). 4. In this regard, the Sayour Parties say, first, that the Deiri Parties' closing submissions depart materially from their pleaded case as to the terms of the alleged Arncliffe Agreement made in February 2014. It is said that, in their closing submissions, the Deiri Parties have reformulated the terms of the Arncliffe Agreement from those that were pleaded; now submitting (at [544](e) of their closing submissions) that one of the terms of the Arncliffe Agreement was that any profits of Combined Projects Arncliffe would be distributed to Deiri Nominees and Sayour Holdings proportionately to the financial "loan" contributions that each had made (as a percentage of overall shareholder financial contributions). 5. The Sayour Parties say that the addition of the word "loan", in the above, is both "telling and significant". The Sayour Parties say that Mr Deiri profited very substantially from lending money to Combined Projects Arncliffe. They note that Combined Projects Arncliffe paid Deiri Nominees nearly $5.3 million in interest (see Mr Deiri's affidavit sworn on 16 October 2019 at [49]), calculated at a rate of 15% per annum. It is said that this $5.3 million came out of the funds of Combined Projects Arncliffe and has reduced the amount available for distribution to its shareholders. It is said that Sayour Holdings never received any interest on the $670,000 it contributed to Combined Projects Arncliffe; and that the closest Mr Deiri comes to explaining why Deiri Nominees received interest on moneys it lent to Combined Projects Arncliffe, while Sayour Holdings did not, is at [49] of his affidavit sworn on 16 October 2019 where Mr Deiri deposes that "[i]nterest was charged on the amounts loaned by Deiri Nominees to CP Arncliffe only from 24 February 2015, the date of the written loan agreement, at 15% per annum". 6. The Sayour Parties say that there is no evidence that Jamil or Sayour Holdings ever agreed or accepted that Combined Projects Arncliffe would pay 15% interest on moneys advanced by Deiri Nominees after 24 February 2015. It is noted, for example, that there is no reference to interest on "contributions" in the Tripoli Minute. 7. The Sayour Parties say that the fact that Mr Deiri had caused Combined Projects Arncliffe to pay $5.3 million in interest to Deiri Nominees, in circumstances where Sayour Holdings was denied any interest on amounts it contributed and where there was no evidence of any agreement or acknowledgment by Jamil or Sayour Holdings that any such interest would be paid, put Mr Deiri "on the horns of a dilemma" when it came time for him to justify his conduct as the controller of Combined Projects Arncliffe. They say that Mr Deiri's initial position was that he agreed with Jamil that Combined Projects Arncliffe's profits would be shared pro rata according to "contributions". It is said that this formulation of the supposed Arncliffe Agreement raises the question as to what amounted as a "contribution" for the purposes of determining entitlements. 8. The Sayour Parties say that a "perfectly reasonable interpretation" of "contribution" is that it meant capital contributions (noting that this was the approach adopted in correspondence by Deiri Nominees' former solicitors, Corrs Chambers Westgarth). They say that, if "contribution" means capital contribution, then Sayour Holdings and Deiri Nominees are equal contributors to Combined Projects Arncliffe and entitled, under the terms of the Arncliffe Agreement as pleaded by the Deiri Parties, to half of the profits of Combined Projects Arncliffe (noting that the company extract for Combined Projects Arncliffe shows that Sayour Holdings and Deiri Nominees each hold 10 fully paid $1.00 shares in Combined Projects Arncliffe). In other words, it is said that each has made a capital contribution of $10.00. 9. Following, the Sayour Parties say that if, on the contrary, "contribution" means a contribution to the capital of Combined Projects Arncliffe, then the same outcome is obtained under the Arncliffe Agreement as would be obtained under Combined Projects Arncliffe's constitution (namely, profits are shared equally among the shareholders). 10. Similarly, the Sayour Parties say that if contribution means contributions of interest free funds to Combined Projects Arncliffe, then the same equal profit share obtains, on the basis that Sayour Holdings and Deiri Nominees had each contributed the same amount to Combined Projects Arncliffe ($670,000) as of 24 February 2015, being the date on which (on the Deiri Parties' case) Deiri Nominees started lending funds to Combined Projects Arncliffe at 15% interest. 11. The Sayour Parties say that, in the present proceedings, Mr Deiri "wants 97% of the profits" of Combined Projects Arncliffe and that it is to that end that he has repleaded the Arncliffe Agreement in his closing submissions to mean that Combined Projects Arncliffe is to distribute profits according to "financial loan contributions". 12. The Sayour Parties say that there is no evidence at all that any agreement was ever struck between Jamil or Sayour Holdings, on the one hand, and Mr Deiri or Deiri Nominees, on the other hand, to the effect that Deiri Nominees would be entitled to 15% interest in addition to an enhanced profit share for each dollar it "contributed" to Combined Projects Arncliffe. 13. It is said that the payment of nearly $5.3 million in interest to Deiri Nominees amounts, in practical effect, to a distribution of significant profits from Combined Projects Arncliffe to Mr Deiri. The Sayour Parties submit that this amounts to a "double helping" of profits. It is said that the Deiri Parties have not attempted to explain why Deiri Nominees should not be considered to be seeking a double helping of profits; and nor have they addressed how Mr Deiri's claim to 15% interest on loans plus an enhanced profit share for every dollar advanced to Combined Projects Arncliffe could be read to be consistent with the supposed "Arncliffe Agreement" as pleaded. Nor, it is said, have the Deiri Parties addressed the point raised by the Sayour Parties to the effect that Deiri Nominees obtained a profit share credit, at the expense of Sayour Holdings, in respect of more than $4 million in funds that were "contributed" to Combined Projects Arncliffe for "less than a single day". 14. The Sayour Parties say that, on the Deiri Parties' case, it must be that "contribution" under the alleged Arncliffe Agreement includes all funds that pass through Combined Projects Arncliffe's bank accounts, even for less than a banking day; and that there must be an implied term in the Tripoli Minute that, thenceforward, Deiri Nominees would be entitled to charge 15% interest on amounts it contributed to Combined Projects Arncliffe, but that no interest would accrue on the funds already provided by Sayour Holdings. The Sayour Parties say that the term contended for in the Deiri Parties' submissions (that any profits would be distributed proportionately to the shareholders' financial contributions) should be rejected. 15. The following additional points are made by the Sayour Parties in response to the Deiri Parties' submissions in relation to this sixth preliminary finding of fact. 16. First, the Sayour Parties say that an equal profit share in accordance with the constitution would still deliver substantial profits to Mr Deiri and his controlled entities. In this regard, it is noted that the Deiri Parties suggest that it would be "highly improbable" for Mr Deiri to have agreed to give to Jamil half of the share of the profits of the project, with Mr Deiri left to take on all of the funding and risk. The Sayour Parties say that this submission "ignores the simple fact" that the Arncliffe Development gave Mr Deiri, and his controlled entities, ample opportunity to profit, and to be compensated for providing funding and taking on risk, over and above the profit that they would be entitled to in the form of dividends from Combined Projects Arncliffe. It is said that any risk assumed by Mr Deiri was manageable because his controlled entities were doing the development (and being "paid handsomely" for their efforts). It is accepted that Mr Deiri gave personal guarantees, but it is said that he was in effect guaranteeing the performance of obligations by his own group of companies. In those circumstances, it is said that whether the project was successfully carried to fruition was a matter substantially within Mr Deiri's control. 17. The Sayour Parties note that Mr Deiri was able to arrange for his entity, Deicorp Constructions, to be the prime contractor on the Arncliffe Development (for which it agreed a lump sum price of $71.6 million, which it is said presumably included a substantial profit margin for Deicorp Constructions); that another of his entities, Deicorp Properties, was paid over $750,000 for the provision of marketing services (although the Sayour Parties here challenge the legitimacy of these payments); and that Deiri Nominees was paid $5,289,332.23 in interest on account of its provision of "funding" (also here challenged by the Sayour Parties). 18. Second, the Sayour Parties say that the provision by Jamil of the $5 million cheque in December 2014 is not inconsistent with the constitutional arrangement. The Sayour Parties say that what "exactly" Jamil intended when he proffered to Combined Projects Arncliffe, and later withdrew, the $5 million cheque in about December 2014 will remain "mysterious". It is said that (contrary to the Deiri Parties' submissions) the facts that Sayour Holdings had advanced $670,000 to Combined Projects Arncliffe and that Jamil, at one time, proffered a further cheque for $5 million are not "wholly inconsistent" with there being an agreement between the shareholders that Combined Projects Arncliffe would distribute its final profits on a pro rata basis to its shareholders. 19. The Sayour Parties further say that it is common ground that one shareholder (Deiri Nominees) earned substantial interest on the amounts it paid into Combined Projects Arncliffe's bank accounts from February 2015 onwards. It is said that it might reasonably be speculated that, in December 2014, Jamil was of the belief that Sayour Holdings would, similarly, earn interest on the funds that it paid into Combined Projects Arncliffe's bank accounts. 20. As to the rhetorical question posed by the Deiri Parties as to why Jamil would have arranged for any funds to be advanced to Combined Projects Arncliffe and the suggestion that Jamil must have thought Sayour Holdings would receive an enhanced profit share on account of these contributions, the Sayour Parties say that there is no basis for excluding the possibility that Jamil thought that the arrangement was a case of two shareholders providing interest free loans with a view to an eventual return of profit or, alternatively, that interest (as opposed to an enhanced profit share) would accrue on such contributions. 21. In this regard, the Sayour Parties point to Mr Deiri's evidence that in February 2015 he arranged for Combined Projects Arncliffe to pay 15% interest on all amounts loaned to it by Deiri Nominees. The Sayour Parties point out that there is no evidence as to the decision making process that led to this supposed loan agreement being made: there is no resolution of the director or shareholders of Combined Projects Arncliffe approving it, nor any other relevant documentation; and no evidence from Mr Deiri as to what Jamil understood about interest on funds advanced to Combined Projects Arncliffe (though whether any such evidence would have been admissible in any event is a different issue). 22. Third, as to the submission by the Deiri Parties that Jamil was not (as of late 2013 or early 2014) in a strong negotiating position in relation to Mr Deiri, the Sayour Parties say that it is entirely plausible (and they maintain that it is consistent with all of the evidence) that Jamil and Mr Deiri might have already formed an agreement in general terms before Jamil mentioned the Arncliffe Site to Mr Deiri. It is said that one might expect Jamil to have told Mr Deiri that he had found a prospective development site, and that he was in discussions with its owner, but that he wanted Mr Deiri's agreement that Jamil's nominated entity would be entitled to an equal distribution of the ultimate profits of any development undertaken by Mr Deiri or Deicorp before Jamil would disclose the location of the site or the identity of the owner to Mr Deiri. It is noted that it is Mr Deiri's evidence that Jamil did not disclose to him the precise location of the Arncliffe Site in the course of their first conversation on the subject. 23. In this connection, reference is made to Mr Deiri's affidavit sworn on 26 June 2017, where Mr Deiri deposes (at [19]) that, in or around November 2013, he had a conversation with Jamil where Jamil told him that he had bought a car "from a guy" that owned a development site at Arncliffe ("Rodney") and that he (Jamil) had told Rodney that he would ask Deicorp if they were interested in buying the site; and that (at [20]) Mr Deiri attests that, "[s]ometime after that conversation" Jamil told me him about the Arncliffe Site. 24. The Sayour Parties note that Mr Deiri has not given evidence about what transpired between the first conversation (in which Jamil told him that he had found a potential development site) and the second conversation (in which Jamil actually disclosed the location of the site). So, for example, the Sayour Parties postulate that Jamil may have asked Mr Deiri to agree that, if Jamil disclosed the address, Mr Deiri would not "go behind Jamil's back" but would share eventual profits equally, after allowing for Deicorp its usual profits of developing the site. The Sayour Parties say that the submission that Jamil was not in a strong negotiating position in relation to Mr Deiri ought be rejected, since it is common ground that Jamil knew of the Arncliffe Site (and knew its owner) before Mr Deiri did and thus "was in a position to dictate terms". 25. Fourth, the Sayour Parties say that it is telling that the Deiri Parties here submit that Mr Deiri considered Combined Projects Arncliffe's constitution to be a "pro forma document" and a "mere matter of formality". They note that Combined Projects Arncliffe did not adopt the replaceable rules under the Corporations Act and that its constitution was the only written record of any agreement between its shareholders. It is submitted that Combined Projects Arncliffe's constitution was not a "pro forma" document 26. In this regard, the Sayour Parties say that the Deiri Parties' reliance on In the matter of Mosman & Co Pty Ltd [2019] NSWSC 1155 (In the matter of Mosman & Co) (as to which, see below) is misplaced. It is noted that that case dealt with a company in relation to which there was a duly executed, written shareholders agreement but no constitution had ever been formally adopted (such that the replaceable rules were in effect); and that the written shareholders agreement was held to prevail over the replaceable rules. In contrast, they say that, in the present case, there is a duly adopted written constitution but no written shareholders' agreement. It is said that there is, at best, the "incoherent" alleged Arncliffe Agreement (it being said that "despite the best efforts of Mr Deiri's lawyers over the years" it was only in the course of final submissions that the fundamental terms of the agreement were specified – i.e., that profits were rateable to "financial loan contributions"). 27. The Sayour Parties say that the Deiri parties' submission that the duly adopted constitution of Combined Projects Arncliffe can be disregarded as a pro forma document, or mere formality, ought also to be rejected. 28. Fifth. as to the significance of Mr Deiri's failure to document his conversations and agreements with Jamil and the submission by the Deiri Parties that the Mr Deiri's failure to create a proper documentary record of any of his relevant conversations with Jamil ought be considered in light of the fact that Mr Deiri is the defendant in these proceedings (with no choice but to defend the litigation as best he can), the Sayour Parties say that this ignores the fact that Mr Deiri has not merely failed to document conversations with the late Jamil but that he also failed to document in a proper way any of the several material agreements he says he struck with his fellow shareholder in a development project with a value well in excess of $100 million. In particular, the Sayour Parties say that it is striking that Mr Deiri never sent a copy of the alleged Tripoli Minute to Jamil in order to memorialise the agreement allegedly reached. 29. The Sayour Parties maintain that the fact that there is not a single document (apart from the constitution of Combined Projects Arncliffe) that serves as an objectively reliable contemporaneous record of any agreement between the shareholders of Combined Projects Arncliffe is striking; and they say that this is due entirely to decisions made by Mr Deiri in the course of his management of his commercial property development business. The Sayour Parties say, again, that it is not plausible that a prudent and experienced commercial property developer in Mr Deiri's position would fail to create any satisfactory documentary record of important commercial agreements with third parties. 30. It is submitted that it ought to have been "perfectly obvious" to Mr Deiri during Jamil's lifetime that, if Deiri Nominees wished to enforce its rights as a shareholder in Combined Projects Arncliffe in a manner adverse to the constitutional rights of Sayour Holdings, it ought to obtain some written acknowledgment from Jamil, as Sayour Holdings' representative, to the effect that the constitutional agreement had been amended by formal decision of the shareholders. It is, once more, noted that Mr Deiri is a very sophisticated businessman; and it is said that he must understand the practical desirability of documenting important commercial agreements. The Sayour Parties say that it is "absurd" for Mr Deiri to suggest that it is unreasonable to query the absence of any document objectively corroborating what he says he agreed with Jamil; and that it is in no way unfair to draw inferences from the fact that there is no objectively reliable documentation of any of his, and Deiri Nominees', alleged material agreements with Jamil and Sayour Holdings. Deiri Parties' submissions in reply 1. As an initial matter, the Deiri Parties note that the Sayour Parties now accept (see at [940] of their reply submissions) that an agreement was struck between Mr Deiri and Jamil in relation to the development of the Arncliffe Site in about December 2013 or January 2014. The further additional points are made. 2. First, as to the submission that the Deiri Parties have departed from their pleadings on this issue, it is said that the purported departure is, in reality, only to expound the pleaded case. It is said that there would be a departure if there were some inconsistency between the pleadings and the submissions, but that the pleadings referred to contributions generally (which are, it is said, capable of encompassing both equity and debt). 3. In any event, it is said that the Sayour Parties are not, and have not been, taken by surprise, in that It has always been the Deiri Parties' case that they contributed in excess of $20 million to the Arncliffe Development by way of loans, whereas the Sayour Parties had only contributed $670,000 by way of loan (all of which the Deiri Parties say has been repaid to the Sayour Parties). 4. Second, as to the suggestion there was some kind of unequal treatment in that Deiri Nominees received interest on the loans advanced to Combined Projects Arncliffe from 24 February 2015 onwards whereas Sayour Holdings did not receive interest on the $670,000 it contributed before that date, it is said that this submission ignores the risk that Deiri Nominees took in funding the Arncliffe project. Furthermore, it is said that, at the Tripoli meeting (as to which, see in the above chronology), Jamil made it clear that Sayour Holdings would no longer be contributing further funds to the project; and it is contended that, from this point on, Deiri Nominees "had to shoulder the financial burden" of the Arncliffe project on its own. It is submitted that, to say that Deiri Nominees' contributions after this meeting were of a piece with Sayour Holdings' contributions before, is to ignore the fact that in the latter period the project was a "solitary one". Likewise, it is said that there was no unequal treatment in the former period, noting, for instance, that there is no suggestion that Deiri Nominees earned interest on its own $670,000 contribution prior to January 2015. 5. It is said that it is unclear how (and no basis is put forward for such a belief) "[i]t might reasonably be speculated that in December 2014 Jamil Sayour was of the belief that Sayour Holdings would, similarly, earn interest on the funds that it paid into CP Arncliffe's bank accounts" given that, at that time, neither shareholder had earned any interest on its contributions. 6. Third, as to the postulated attempt made by the Sayour Parties to "impugn the interest received by Deiri Nominees on its loan contributions on the alleged basis that there was no agreement entitling Deiri Nominees to that interest", it is contended that any such attack goes to a different issue and is not relevant to the terms of the Arncliffe Agreement. 7. In any event, it is submitted that this is a departure from the Sayour Parties' pleaded case (it is here noted by the Deiri Parties that the Sayour Parties' pleading simply denied that the "payments were made in repayment of loans to Deiri Nominees" and did not plead anything as to the existence of the loan agreement, nor about the propriety of Mr Deiri entering into such a loan agreement). Following, it is said that it is not open to the Sayour Parties to mount a case of this kind now, for the first time. 8. Similarly, it is said that the Sayour Parties now seek to contend that the making of the interest payments was a breach of the profit rule. To this, it is submitted that this is also irrelevant to the question, and in any event has not been pleaded. Again, it is submitted that it is not now open to the Sayour Parties to argue for such a breach when they have failed to plead it. 9. Fourth, as to the argument put for the Sayour Parties that it would have been commercial for the Deiri Parties to enter into an agreement where the parties simply received an equal profit share, it is said that this submission "fundamentally fails to understand" the commercial reality of risk in a property development of this kind. It is noted that Deiri Nominees was the only entity in the Deiri group that took on this risk, both by loan contributions and putting up security to obtain further finance from the banks and that the more funds it contributed, the greater its exposure to that risk. 10. It is contended that to say that Mr Deiri generally (rather than to focus specifically on the position of Deiri Nominees) stood to be compensated from the project is "to fail to grapple with the very significant financial risk which Deiri Nominees shouldered alone"; and it is said that it would not at all be compensated for that specific risk merely because another company in the same group was to be paid for providing construction services in relation to the same project. Furthermore, it is said that the Sayour Parties' submission also ignores the commercial unreality of the "free ride" that would be given to Sayour Holdings if it received an equal profit share without matching the loan contributions of Deiri Nominees. 11. Fifth, as to the Sayour Parties' argument that, as of late 2013 or early 2014, Jamil was in a "strong negotiating position" vis-à-vis Mr Deiri because he alone knew of the location of the Arncliffe Site and could have chosen not to disclose it to Mr Deiri unless acceptable terms were reached, it is contended that the Sayour Parties here speculate as to the possibility that an agreement advantageous to Jamil was reached before Jamil showed Mr Deiri the site, but that there is no evidence of such an agreement and Mr Deiri was not cross-examined as to this issue. 12. Furthermore, it is said that such an agreement is also inconsistent with the affidavit evidence of Mr Deiri, in which he said he explained to Jamil that Sayour Holdings' entitlement to an equal share of the profits was contingent on equal contributions, and that he had undertaken similar joint ventures with passive investors at Meadowbank and Kogarah (see Mr Deiri's affidavit sworn on 16 October 2019 at [13]). It is submitted that this is also inconsistent with the fact that, until the meeting in Tripoli, both Sayour Holdings and Deiri Nominees had made equal contributions. 13. Additionally, it is submitted that a further problem with this submission is the "inherent improbability" that Mr Deiri would have entered into a multi-million dollar contract with Jamil in relation to a property that he had not yet seen (pointing out that the Sayour Parties themselves submit that Mr Deiri is a "very sophisticated businessman" and a "savvy and experienced commercial operator". It is submitted that to suggest that Mr Deiri would go into a project like this "blind", based merely on what Jamil had told him about the site, "simply beggars belief". 14. Sixth, as to the Sayour Parties' submission that the Combined Projects Arncliffe constitution was not a "pro forma" document because it was not in the form of replaceable rules, the Deiri Partises say that a constitution can equally be "pro forma" because it is the standard constitution used by a company whose business it is to incorporate companies. It is said that, here, the corporate constitution is a document of that kind. 15. Furthermore, while the Deiri Parties accept that In the matter of Mosman & Co was a decision that related to a written shareholders constitution prevailing over the replaceable rules, they say that the broadly stated principles discussed in that case assist the Deiri Parties. The Deiri Parties here point specifically to Rees J's reference (it is said with evident approval) to the holding in Re Rectron Electronics Pty Ltd [2013] VSC 384 that a shareholders' agreement can, without more, amend a company's constitution, being effective "as a resolution of the members" (see at [68] per Judd J). 16. In this connection, it is again emphasised that the Sayour Parties now accept that an agreement was struck between Jamil and Mr Deiri as to the Arncliffe project. It is submitted that, once that is accepted, any argument that the constitution is to be afforded paramount status "cannot stand": either the oral agreement was in identical terms as the constitution (a fact of which the constitution itself is not proof one way or another) or the oral agreement was in different terms, in which case it prevails over the constitution to the extent of any inconsistency. 17. Seventh, and finally, as to the Sayour Parties' submission that adverse inferences should be drawn from the fact that there is no written document corroborating what was agreed between Jamil and Mr Deiri, it is noted that there was also no such documentation of the partnership agreement in relation to the Broadway Development (the Deiri Parties also noting that there is a contemporaneous written record of the fact that when Mr Deiri was advised by his solicitors to document a joint venture agreement concerning the Broadway Development, he declined to do so, saying that he was dealing with Moustafa on the basis of "trust and handshake". It is submitted that, given that this was the way in which Mr Deiri did business with the Sayour Parties, no adverse inferences could be drawn; and, moreover, it is noted that Moustafa himself was an experienced businessman and a wealthy individual with resources at his disposal to obtain whatever advice he required, yet he, too, was content to proceed upon a partnership venture without documenting its terms by a written agreement. Determination as to factual finding F 1. As to this proposed preliminary finding, I note at the outset that I draw no inference one way or the other from the lack of documentary evidence of any shareholders' agreement (other than so far as there is an agreement evidenced by the constitution of Combined Projects Arncliffe, of course). In this connection, I can readily accept that both Mr Deiri and Moustafa are experienced businessmen (albeit Moustafa less so in the context of property development), with substantial resources, and yet (perhaps surprisingly) each seems content to have proceeded largely in the absence of formal documentation. 2. However, what that means is that, in circumstances where I consider there must be great caution exercised before accepting either side's account of oral conversations unsupported by objective contemporaneous evidence, the unfortunate reality may well be (as it is in a number of respects in this case) that, in the absence of written documentation, I am unable to be persuaded to the requisite degree of satisfaction of the existence of the alleged oral agreements. 3. I accept (and it is not relevantly disputed) that, by January 2014, agreement had been reached between Jamil and Mr Deiri that the two would (through their respective corporate entities) participate in a joint development of the Arncliffe Site. That this must be the case is evident from the instructions given to Mr Gramelis to incorporate the corporate entities which were to participate in the development (and it is not disputed by the Sayour Parties). 4. However, critically, there is nothing to satisfy me that the participation was to be on the terms suggested by Mr Deiri; and the constitution of the company that was incorporated is inconsistent with any such differential profit sharing. In this connection, I do not accept – having in mind particularly the absence of other cogent evidence and my circumspection as to the recollection of oral conversations and the like – that the constitution of the company can be disregarded as a mere formality. 5. I accept that Moustafa's evidence corroborates the evidence of Mr Deiri that there was a discussion between Mr Deiri and Jamil in which they discussed the basis on which they agreed to participate in the Arncliffe Development. I can also accept that common sense might suggest that, if profits were to be shared equally, then capital and/or loan contributions would equally be structured that way; but this is no more than supposition and it assumes that contributions were only to be assessed in a monetary sense (and, indeed, it also assumes that the parties were proceeding in a manner that others might consider to be a matter of common sense). 6. Ultimately, I consider that any unfairness to the Deiri interests arising out of the fact that the transaction was not documented in writing is something for which they must bear their share of responsibility (either because there was a decision made not to document the arrangement in writing – perhaps another deal based on trust and a handshake as the Broadway Partnership was said to be, or a preference not to commit such matters to writing; or perhaps simply inattention to the need to do so). 7. In addition, as I have already adverted to, I do not accept that the account of the conversations (with Jamil in December 2013 and January 2014) set out in Mr Deiri's affidavit sworn on 16 October 2019, and elsewhere, can be taken as a reliable account of what was agreed, particularly in circumstances where the formalised corporate arrangements did not reflect this. I have great difficulty accepting that Jamil was ever in a strong negotiating position. I say this not least since it does not seem to be established that Mr Deiri or his companies was, or were, in any way desperate to carry out the Arncliffe Development and Jamil was certainly not in a position to do so without a suitable joint venture partner due to his relative inexperience in property matters. Furthermore, the general tenor of the communications between the two (as evidenced in the contemporaneous email communications) indicates to me that Jamil very much saw Mr Deiri as his senior partner and as someone whom Jamil was concerned to impress. However, again, these matters say little about what deal was actually arrived at between the two. 8. Insofar as the Deiri Parties maintain that the terms of the Arncliffe Agreement for which they contend are not contrary to probabilities, the difficulty I have is that this submission assumes a number of matters about which there can be no more than speculation. It is, for example, not implausible that the arrangement was one pursuant to which calls for capital were to have been made through the corporate vehicle (which would be consistent with the constitution). 9. Insofar as the Sayour Parties submit that the arrangement put forward by the Deiri Parties is inconsistent with the other parts of the conversations between Mr Deiri and Jamil (such as the need for each to contribute $10 million, and the option Mr Deiri gave to Jamil to take a finder's fee and exit the project), about which the Deiri Parties say there was no challenge in cross-examination, the foreshadowing of a need for further contributions is consistent with there being a requirement to meet a call for capital at some future time; and I am not persuaded that the conversation as to a finder's fee has been established on the evidence. As to the suggestion that Mr Deiri was the sole contributor of the funds likely to be required for the project, the manner in which the funding was achieved raises more questions than it answers (particularly, for example, in relation to the option fees paid for potential sites that did not seem to result in any outcome at all for Sayour Holdings and the Sayour Parties – the source of those contributions by Jamil most likely coming from the circuitous parts of funds through the myriad of bank accounts in evidence). 10. I have little doubt that Mr Deiri was by far the more experienced commercial negotiator of the two (and would have been well able to call Jamil's bluff, so to speak, in any negotiations, as he seems to have done in relation to the Dyldam quote – see above) but, again, that does not establish that there was in fact an agreement that profits should be tied to contributions (or what constituted a relevant contribution and how such contributions were to be measured). 11. Accordingly, I find that an agreement was reached between Mr Deiri and Jamil in relation to the development of the Arncliffe Site in about December 2013 or January 2014, but that the terms of that agreement (other than as can be discerned from the documents signed on the incorporation of Combined Projects Arncliffe) have not been established on the balance of probabilities to be as contended for by the Deiri Parties. Key factual findings sought by the Deiri Parties in the Arncliffe Proceedings 1. With that factual basis, I turn then to the key findings of fact sought by the Deiri Parties in the Arncliffe Proceedings, they are as follows. Factual finding #1: Moustafa agreed to be sole director and member of Sayour Holdings in December 2013 1. The first key finding of fact for which the Deiri Parties contend is that Moustafa was aware of, and agreed to be the sole director and shareholder of, Sayour Holdings in December 2013. 2. I interpose here, however, to note that there is a pleading to the contrary (seemingly, put in the alternative to the proposition for which the Deiri Parties have here contended as a key finding of fact) in the Deiri Parties' defence (at [114]-[115]; [123]) and in the Third Arncliffe Cross-claim (at [8], [10], [20]), where it is contended that Moustafa: did not consent in writing or at all to be a member or director of Sayour Holdings prior to or at the time of its registration; was never issued with shares in Sayour Holdings and was never a member or director of Sayour Holdings; and hence that Sayour Holdings has had no directors and has at all times been unable to act – and thus all of the pleadings in the Arncliffe Proceedings were filed without authority (see at [124] of the defence and [21] of the Third Arncliffe Cross-claim). Deiri Parties' submissions 1. In any event, insofar as the Deiri Parties maintain factual finding #1, they rely on the matters set out below. 2. First, that the register is conclusive (unless the Sayour Parties prove to the contrary – pointing to s 1274B(2) of the Corporations Act). The Deiri Parties maintain that the Sayour Parties have failed to discharge their onus in this regard. They note that the register for Sayour Holdings relevantly provides that Moustafa was appointed as director of the company on 16 December 2013 (as to which, in the above chronology). It is noted that the extract is stated to contain information derived from the ASIC database under s 1274A of the Corporations Act (and see, for example, Kocic v Deputy Commissioner of Taxation [2011] NSWCA 322 at [41]–[43] per Gzell J, with whom Beazley JA, as Her Excellency then was agreed at [1] and Handley AJA agreed at [2]). 3. Second, that Moustafa signed consents and a number of other documents on 16 December 2013. It is noted that in the email sent from Mr Gramelis to Jamil on 25 September 2013 (in which Mr Gramelis stated that it was a "pleasure to finally [sic] get you across" – and, again, see the above chronology), Mr Gramelis set out the next steps that needed to occur to effect a handover from the former accountants to Mr Gramelis; including that Mr Gramelis take over the "ongoing audit" involving the "Sayour Family Trust and all the family individuals" (which was Moustafa's personal tax audit), as well as to take over the accounting of Biomed (which Mr Gramelis ultimately did, along with the accounting for other Sayour entities, such as Plaza). 4. It is noted that there are a number of further documents, all of which have been signed by Moustafa, often next to a "Sign & Date" sticker or a "Sign Here" sticker, the key documents here identified being: a "Consent to Act as Director" of Sayour Holdings, dated 16 December 2013; a "Consent to Act as Secretary" of Sayour Holdings, dated 16 December 2013; an "Agreement / Consent of Members to take Shares" in Sayour Holdings, dated 16 December 2013; a "Share Certificate" certifying that Moustafa was the holder of 100 ordinary shares in Sayour Holdings, dated 16 December 2013; and a "Minutes of Meeting of Directors or Record of Decision of Sole Director" of Sayour Holdings, resolving that a banking account for the company be opened (undated). 5. In addition to those documents, it is noted that Moustafa also signed: the Constitution of Sayour Holdings, dated 16 December 2013; and the Trust Deed for the Sayour 2 Family Trust, signed by Moustafa as "Director" for Sayour Holdings (undated). I note that this trust deed is also signed by Mr Gramelis, as settlor of the trust, and Mr Roni Kumar of Mr Gramelis' office, as witness of Mr Gramelis' signature. It is noted that the beneficiaries of the Trust were Moustafa and Jamil. 6. The Deiri Parties point to the fact that, in his affidavit sworn on 8 November 2019, Moustafa's evidence in relation to the first five documents referred to above was that he accepted that the signatures on these documents were his, but did not "specifically recall signing" them (see at [26]ff); and that he believed (which belief the Deiri Parties say can be no more than speculation or reconstruction in circumstances where he admits he has no specific recollection) that he signed them eight months later, in August 2014, when Mr Gramelis attended upon him at his offices in Belmore with a bundle of documents for him to sign in relation to Moulikyah. As will be recalled, Moustafa's evidence is that he only became aware that he was a director of Sayour Holdings after Jamil died. 7. Thus, the Deiri Parties note that, as matters stood when he served his 8 November 2019 affidavit, Moustafa's evidence was that: he did not specifically recall signing the Sayour Holdings documents; he did not deny that he could have signed them on the dates appearing on the documents themselves (i.e., 16 December 2013); and he believed, in the absence of any specific recollection, that he signed them in August 2014. 8. In this connection, it is noted that in cross-examination, Moustafa contradicted his own affidavit evidence in that, in cross-examination, Moustafa positively denied that he had become sole director and shareholder of Sayour Holdings in December 2013 (see, for example, at T 460.5). It is said that Moustafa's ultimate position, despite some equivocation, seemed to be that he signed the documents on August 2014 in the presence of Mr Gramelis. The Deiri Parties say, in relation to this, that this means that on that occasion he paid sufficient regard to them to be able now to recall (five years later) that these specific documents were among the documents presented to him for signing on that occasion, but insufficient regard to recall anything else about them, pointing to the following evidence in cross-examination (see at T 456.28-31), and his evidence that: A. WITNESS: Your Honour, he bring me bundle of document, and I sign it. I, I didn't notice - I didn't go through all the, the document. He told me, "Sign here, sign here". I thought I signed for Moulikyah. That's what my, my son wish. He, he want me to be a director. Exactly, your Honour. 1. The Deiri Parties say that the above answer above was non-responsive. They say that Moustafa could not, and did not, provide an explanation as to how he now recalled that he signed the Sayour Holdings documents in August 2014. It is submitted that Moustafa's evidence in this regard was contrived in order to dissuade the reaching of the natural conclusion that the documents themselves suggest (namely, that they were signed on the date they bear; December 2013); yet, simultaneously, to persuade the Court that Moustafa did not become aware of Sayour Holdings until after Jamil's death (that, it is said, being a central plank in the Sayour Parties' case that Jamil lacked authority to act on behalf of Sayour Holdings). It is submitted that the Court should not depart from the inference to which the contemporaneous documentary evidence would otherwise give rise, namely, that the Sayour Holdings documents were signed on the date on which they purport to have been signed (again, that being 16 December 2013). 2. Third, that the other group of documents that Moustafa signed on 16 December 2013 were those relating to the incorporation of Moulikyah (as to which, see the chronology above), which was described as a tax minimisation vehicle set up for Moustafa by Mr Gramelis. It is noted that this company was set up in an almost identical fashion to Sayour Holdings. Moustafa' signature, again often next to a "Sign Here" sticker, appears on the following documents: an "Agreement/Consent of Member to take Shares", by which Moustafa agreed to take up 100 ordinary shares in Moulikyah, dated 16 December 2013; a "Share Certificate", certifying that Moustafa was the holder of 100 ordinary shares in Moulikyah, dated 16 December 2013; the Constitution of Moulikyah, dated 16 December 2013; and a "Minutes of Meeting of Directors or Record of Decision of Sole Director" of Moulikyah(undated), resolving that a banking account for the company be opened. 3. It is submitted that Moustafa's own reasoning was that the Moulikyah documents and the Sayour Holdings documents must have been signed on the same date, given that they all share the common feature of bearing the date of 16 December 2013 on their face. The Deiri Parties say that, by the same logic, if the Moulikyah documents were signed on 16 December 2013 (as they purport to have been), it should similarly be concluded that the Sayour Holdings documents were signed on 16 December 2013. 4. Fourth, it is noted that on 16 December 2013, Mr Gramelis registered Sayour Holdings and Moulikyah by causing an "Application for Registration as an Australian Company" to be lodged for each of them. The fact that the registrations of each company actually occurred on 16 December 2013 is drawn from the "Certificate of Registration of a Company" issued by ASIC for each of them. Each application form listed Moustafa as the company's sole director and secretary. Each application form also listed Moustafa as the company's sole member. It is noted that ASIC's instructions on the form are to "[u]se this section to notify the name address of each person who consents to become a member", and to specify "the number and class of shares the above member has agreed in writing to take up". It is noted that, consistently with the share certificates and the agreements/consents to take shares, the forms each listed Moustafa as having taken up 100 shares. 5. The Deiri Parties say that the lodgement of these forms with ASIC is further support for the conclusion that Moustafa had signed the directorship and shareholder consents on 16 December 2013. It is noted that Mr Gramelis was a chartered accountant, that these were solemn forms being submitted to the corporate regulator and that they contained the following declaration: I/we apply for the registration of a company on the basis of the information in this form and any attachments. I/we have the necessary consents and agreements referred to in the application concerning the member and officeholders and I/we shall give the consents and agreements to the company after the company becomes registered. The information provided in this application and in any annexures is true and correct at the time of signing. 1. It is said that Mr Gramelis must have satisfied himself that this declaration was true, especially given that he personally held powers of attorney on behalf of the applicant named in each form, Company Dynamics Pty Ltd, authorising him "[t]o obtain and hold the necessary signed consents and agreements from the officeholders and members required under the Corporations Act for the purposes of registration of each of the two companies". It is said that the only way Mr Gramelis could have so satisfied himself is by in fact having had Moustafa sign the requisite consent and applications on 16 December 2013, prior to the lodgement of the ASIC forms. It is submitted that the failure of the Sayour Parties to call Mr Gramelis as a witness strengthens this inference. 2. Fourth, reference is made to the email from Mr Gramelis to Jamil on 17 December 2013, confirming that Mr Gramelis had set up a discretionary trust for the purpose of holding 50% of the shares in the new development (see the chronology above). The Deiri Parties point to this as a contemporaneous communication to Jamil confirming that the Sayour 2 Family Trust had been set up by this time, and that, from its inception, its purpose was to hold 50% of the capital in the new development (i.e., of Combined Projects Arncliffe). 3. It is submitted that Moustafa would not have signed the consent and appointment forms without an explanation as to the purpose of the companies and the business that he was proposing to undertake; and it is said that when Moustafa was asked in cross-examination about the manner in which he came to sign the Sayour Holdings documents, he dissembled (see at T 456.22-31): Q. You tell her Honour that you did not execute it on that date? A. WITNESS: Your Honour, my accounter(as said) Kon - he bring me bundle of, of, of document, tax return, passes and everything, and he told me to sign it, and I don't check everything. When Jamil - he told me, your Honour, to make Moulikyah, I didn't look at the, the, the paper because I, I, I wanted make him - this paper for my son. I, I said to Kon, "What you" - "Where I want to sign?", because knows, because Jamil - he ring him up from Germany and tell him, "My dad - he wants to sign", and Jamil - he ring me up. I didn't look for - I said to the - what do you say - Kon, the accounter(as said), "Where I have to sign?" and he told me where I sign. 1. The Deiri Parties say that this evidence should not be accepted. It is submitted that it is highly improbable that Moustafa would have sat down and signed all of the legal documents referred to above, without seeking to gain some understanding of what the documents were for, and without at least casting an eye over their contents to see what it was that he was signing. 2. Next, the Deiri Parties point to the file note by Mr Gramelis recording a conversation with Jamil about changing the structure of Sayour Holdings, which conversation is placed as occurring the evening prior to a meeting between Moustafa, Jamil and Mr Gramelis on 21 August 2014; and to the meeting on 21 August 2014 when (according to Mr Gramelis' note) Moustafa met with Mr Gramelis at the Biomed offices and they discussed changing the structure of Sayour Holdings. It is said that the meeting is likely to have concluded by 9.53am, as Mr Roni Kumar (as will be recalled, of Mr Gramelis' office) was able to send an email at that time to Mr Zack Salah (of Biomed's office) attaching forms signed by Moustafa at the meeting. It is submitted that this would have been "an ideal timeslot" to account for the time difference with Jamil then overseas, (as 9am in Sydney was 11pm in Germany). 3. It is noted that, until this point, on the ASIC register Moustafa was recorded as the sole director and shareholder of Sayour Holdings. The Deiri Parties say that it can be inferred from the changes that this meeting precipitated that the proposal under discussion was to transfer a 50% shareholding in Sayour Holdings to Jamil and to make him a second director. It is said to be unsurprising that Mr Gramelis was only prepared to give effect to Jamil's wishes with Moustafa's express agreement, as neither change could be made without such agreement. Again, it is said that the failure of the Sayour Parties to call Mr Gramelis as a witness only strengthens this inference. 4. Meanwhile, Moustafa's evidence was that he thought these forms related to Moulikyah, not Sayour Holdings (which, again, he claims never to have heard of at this time). The Deiri Parties note that the forms refer only to Sayour Holdings (not to Moulikyah). Again, Moustafa's evidence in cross-examination was that he signed the forms without paying any regard to their contents (see at T 459.34-41): A. WITNESS: Well, I didn't, I, I didn't read - because when Jamil, he told me, and he was very sick, I, I need to make me further, please make yourself director, because he is very ill, your Honour, I thought maybe he want me to appoint me as a director to look after, you know, his family, or whatever, his asset. That's, that's exactly what I, I didn't check. I just, he told me, "Sign here, sign here," so I signed it, but with not to check it. Because this is my, my son, that Jamil wishes to, to make me director. 1. The Deiri Parties say that this evidence is not credible, and they contend for a finding that Moustafa knew full well what he was signing, and that he would not have signed these documents without an explanation. 2. It is submitted that, since Mr Gramelis' file note records that he discussed the 484 form and structure changes with Moustafa and Jamil at the very meeting at which Moustafa signed these documents, for Moustafa's evidence to be accepted, it would be necessary to find either that the file note is wrong, and the forms and their effect were not discussed, or the file note is correct, but Moustafa was not listening to the discussion. 3. It is submitted that the second possibility is highly unlikely. It is said that it is one thing to accept that Moustafa did not look closely at the forms he was signing, but it is another to accept that he ignored his own accountant's explanation of those forms. 4. The Deiri Parties also again point to the forms that were signed in relation to the opening of the accounts for Sayour Holdings and Moulikyah (see above). The Deiri Parties say that Moustafa's evidence in relation to these forms is hard to believe; referring to Moustafa's insistence that, despite the appearance of his signature immediately below Sayour Holdings' name on the form to open the Sayour Holdings #340 account, he had never heard the name "Sayour Holdings" until some three years later, after Jamil's death (at T 463.32-34): Q. How do you know you didn't see it? A. WITNESS: I did not - I don't want to - who, who give me that? That's, that's - Jamil was here when I think when, when, when this one here. 1. The Deiri Parties say that Moustafa's answer to the question of how he knew, more than five years after the fact, that he did not see the words "Sayour Holdings" at the time that he wrote his signature immediately below them, was not only non-responsive; it was false. The Deiri Parties say that Moustafa also knew of the Westpac #202 Account (for the reasons given above in relation to the factual findings sought by them in the Broadway Proceedings). They say that, not only was Moustafa aware that the account existed, but that he was familiar with the transactions being conducted on it. 2. The Deiri Parties also refer to the events of around the end of November 2014 (see the chronology above) in this context. They contend for a finding that, when Jamil delivered the original cheque for $1.75 million, Moustafa was aware of this and was content for Jamil to invest it in Combined Projects Arncliffe; alternatively, that, when Jamil asked for the $1.56 million back, Moustafa was aware of this and was content for the difference between the two cheques (a sum of $190,000) to be invested into Combined Projects Arncliffe. It is submitted that it is highly improbable that Moustafa was oblivious to both the original payment of $1.75 million and the subsequent repayment of $1.56 million. 3. The Deiri Parties say that the payment of $1.75 million and the repayment of $1.56 million should be considered part of the same transaction, such that, overall, there was a loan contribution by Sayour Holdings to the Arncliffe venture of $190,000. It is submitted that the fact that the two payments were part of the one integrated transaction is evident from their close temporal proximity, some five days apart. Even if this were not the case, the Deiri Parties say that there is no basis for the Sayour Parties to seek to recover $1.56 million from Mr Deiri. 4. First, they say that the payment of $1.75 million was made not by Sayour Holdings but by Moulikyah (and hence they argue that the only party which could conceivably make a claim in respect of these funds is Moulikyah, which is not a party to these proceedings). Second, that Combined Projects Arncliffe was entitled to rely upon the instructions given by Jamil in directing the account into which repayment should be made. 5. It is said that, properly characterised, both payments were made at Jamil's direction between Sayour Holdings and Combined Projects Arncliffe, and, even though the two payments are recorded as separate transactions, the repayment of $1.56 million discharged a liability of Combined Projects Arncliffe to Sayour Holdings, being part of the $1.75 million loan. 6. It is contended that Moustafa knew that $5 million had been deposited in the Westpac #238 Account by December 2014, having personally handed the two cheques totalling that amount to his bank manager in Lakemba (as to which, see the above chronology). The Deiri Parties say that Moustafa must have been aware of the transfers between the three accounts of his, and that equally, he must have been aware that they were for the purpose of enabling Sayour Holdings to invest $5 million in the Arncliffe development. 7. The Deiri Parties also here rely on the Tripoli meeting, and the Tripoli Minute (see above) as shedding further light on the question of Moustafa's knowledge. 8. The Deiri Parties submit that it should be inferred that, at some point shortly before 8 January 2015, Moustafa discussed the $5 million contribution with Jamil, and directed Jamil to ensure board representation on Combined Projects Arncliffe before those funds were contributed. The Deiri Parties say that Moustafa knew that the money Jamil was proposing to use to fund Combined Projects Arncliffe was from the proceeds of the Broadway Development, but that he was not prepared to see those funds invested in the Arncliffe project without first having Sayour Holdings represented on the board. It is said that Moustafa volunteered this himself in cross-examination, in response to a question that had nothing to do with directors (at T 466.40- T467.5): Q. What I want to suggest to you is that you knew that participate in Arncliffe as a full partner, Sayour Investments had to match the cash investment of Mr Deiri's interests, that's correct, isn't it? Sayour Holdings, I do apologise. […] A. WITNESS: Your Honour, can I say something? If I know I'm the director of Holding, Sayour Holding, I put my name with the Deiri. Director was him in Arncliffe. I never let him. Listen, that's, that's exactly what they were. If I know I'm Sayour Holding, I'm with the director, I will put myself with - as Deiri as a director. HUTLEY Q. Exactly. A. WITNESS: Yeah, if I know, that's what I'm saying. 1. The Deiri Parties describe this (somewhat emotively) as "an island of truth" in Moustafa's evidence, namely that he was not prepared to invest further funds in Combined Projects Arncliffe without some directorial control over the company. It is submitted that Jamil's demand to be made a director of Combined Projects Arncliffe, which (it is said) otherwise came "completely out of the blue", "has Moustafa's fingerprints on it". The Deiri Parties say it should be inferred that it was Moustafa's idea for Jamil to demand a directorship on Combined Projects Arncliffe, which is precisely what Moustafa said he would demand if he had known that he was the director of Sayour Holdings. The Deiri Parties say that this all points to the conclusion that Moustafa did know he was the director of Sayour Holdings. 2. It is submitted that further support for Sayour Holdings having been set up with Moustafa's knowledge and consent is that this was more consistent with other corporate entities that Moustafa had caused to be set up in the past. 3. For example, it is noted that, when Plaza was incorporated, just as with Sayour Holdings, Moustafa was the company's sole director and shareholder; and that each of Plaza and Sayour Holdings was set up in the same way, and in each case operated as a trustee of a very similarly constituted family trust (the Sayour Family Trust and the Sayour 2 Family Trust, respectively). It is said that the exception to this (that the Sayour 2 Family Trust also expressly listed Jamil as a beneficiary) made sense, given that Jamil found the Arncliffe Site, whereas the Broadway site was found by Moustafa. 4. The Deiri Parties maintain that there is no rational explanation as to why, if Jamil set up Sayour Holdings without Moustafa's knowledge or consent, he arranged to have Moustafa registered as a shareholder or director, rather than simply registering himself as shareholder and director (as he did with JS75 Pty Ltd). In this regard, it said that the submission by the Sayour Parties (that Jamil was "not yet bold enough to cut out his father entirely") is "simply speculation, designed to fit the Sayour Parties' grand narrative that Jamil was defrauding them every step of the way". The Deiri Parties say that the simple answer is the right one: that Jamil made himself shareholder and director when he intended to make a company for his own use alone, and that this was not such a case. 5. The Deiri Parties say, further, that the money that was proposed to be invested in Combined Projects Arncliffe was Moustafa's money or Plaza's money. They point out that no-one suggests that Jamil had $10 million of his own to contribute to the Arncliffe project. They ask, rhetorically, why Jamil would be doing all of this (with his father as a director and shareholder of Sayour Holdings from the outset, from 16 December 2013) if Moustafa knew nothing about it; and if the money was not going to be funded effectively through Moustafa. 6. The Deiri Parties submit that the answer is that this was (for Jamil and, they say, no doubt for Moustafa) another opportunity to capitalise on the Sayours' relationship with Mr Deiri. It is noted that they had just received significant profits from the Broadway Project (some $9.5 million). It is said that Moustafa ("a man who had never undertaken a property development in his life") had suddenly been involved in the profitable development of a shopping centre and of a residential tower. It is said that, no doubt, Moustafa and Jamil turned their minds to how they could replicate this success and, when Jamil found another viable site, the Sayours saw that this was an opportunity for them to receive a 50% share of the profits of what would likely be another successful project. 7. Following, the Deiri Parties say that the Sayour Parties knew they would need to contribute funds; that they had such funds in hand, in the form of the $9.5 million received from the Broadway distribution; that they were not funds for which Moustafa had any immediate need (he being a very wealthy individual, owning some $31.25 million in Australian assets and some USD$24.175 million in overseas assets); and, therefore, that it was an entirely rational decision to recycle the funds from the Broadway Development into the Arncliffe Development (that is, to use the profit from the first project as an investment contribution for the next, which is what they say Moustafa decided to do). 8. It is submitted that the timing and the opportunity was ideal for Jamil to introduce Mr Deiri to Mr Dale and set the Arncliffe Development in motion; that this explanation "is intuitively plausible and matches up with the objective facts" and that it has far greater explanatory power than any other theory. 9. The Deiri Parties maintain that Mr Gramelis' email of 6.50am on 21 August 2014 (see the above chronology) does not contradict this. It is noted that one of the attachments to Mr Gramelis' email is an unsigned version of the "Consent To Act As Director" form dated 16 December 2013. 10. The Deiri Parties maintain that the explanation for Mr Gramelis attaching an unsigned copy of that form to an email some eight months after it is said to have been signed by Moustafa is that the version of the 21 August 2014 email that appears at Ex 15 and Ex 3 is (on its face) an incomplete record of that email. Specifically, it is noted that in the "Attachments" field in the header to the email, there are 22 attachments but that in Ex 15 and Ex 3, only six of these 22 attachments appear. 11. In this regard, it is to be noted that, in response to a subpoena from the Deiri Parties, Mr Gramelis produced the native (.msg) version of the 12 August 2014 email (see S-39, which has the file identifier "ESI-0076" and the file name "Combined Projects (Arncliffe) Pty Ltd.msg"). The Deiri Parties note that the native version of the email contains the original PDFs of each of its 22 attachments. These include a pro forma "Instructions for Completing Company Documents"; in respect of Combined Projects Arncliffe, there is the ASIC Current Company Extract for Combined Projects Arncliffe dated 21 August 2014 at 6:27am; in respect of the Sayour 2 Family Trust, there is a Deed Poll of appointment for the Sayour 2 Family Trust, the Deed for the Sayour 2 Family Trust; a "Minutes of Meeting of Directors or Record of Decision of Sole Director" of Sayour Holdings (accepting the trust); a statutory declaration by Moustafa declaring that he is director of Sayour Holdings and that the assets of the Sayour 2 Family Trust comprise the sum of $10; in respect of Sayour Holdings, there is an ASIC Certificate of Registration of a Company, the Constitution, Moustafa's "Consent to Act as a Director", Moustafa's "Agreement / Consent of Members to take Shares"; a "Consent to Specified Address As The Address Of The Registered Office" from New Wealth Tax & Accounting Services, the Register of Members, Moustafa's "Consent to Act as Secretary" and Moustafa's Share Certificate for 100 ORD Shares; and, in respect of Moulikyah, there are the same eight documents as those listed in respect of Sayour Holdings. 12. The Deiri Parties emphasise that not one of these 22 documents is signed, but that every one of the documents in respect of Sayour Holdings and Moulikyah is dated 16 December 2013. The Deiri Parties say that the natural inference is not that these 22 documents were all signed for the first time on the morning of 21 August 2014 and backdated to look as though they had been signed on 16 December 2013. Rather, it is said that the natural inference is that they were signed on 16 December 2013, but that Mr Gramelis retained the original native versions of each of the files on his computer; and that, when seeking to compile and send all of the relevant documents for Combined Projects Arncliffe, the Sayour 2 Family Trust, Sayour Holdings and Moulikyah, the quickest and most convenient way for him to do so was simply to attach the original native versions of the files that were still saved on his computer, rather than to collate and attach the scanned and signed versions (if the signed versions had indeed been scanned at all by this time, rather than simply retained in a physical file). 13. It is submitted that this inference is strengthened by the metadata for the 22 attachments, which records the time and date at which they were created. In particular, it is noted that the 22 PDF files were created in the 13-minute period between 6.34am and 6.47am. 14. The order in which Mr Gramelis proceeded appears to have been as follows. 15. First, at 6.34am, he created a PDF of the current company extract for Combined Projects Arncliffe, which he downloaded at 6.27am (as its front page records). Second, at 6.36am, Mr Gramelis created PDFs for the four documents for the Sayour 2 Family Trust. The Deiri Parties say that the fact that these were all created simultaneously suggests that Mr Gramelis used a bulk "convert to PDF" function, most likely converting four Word files to PDFs at that time. Third, at 6.39am, Mr Gramelis created PDFs for the eight Sayour Holdings documents, plus the generic ASIC instructions on completing forms. Again, given that Mr Gramelis was able to create nine documents in the same exact minute, the Deiri Parties say this suggests that these documents were already saved in another form, likely in a folder dedicated to Sayour Holdings, and that he simply converted these eight documents to PDF. Fourth, at 6.47am, Mr Gramelis similarly created PDFs for the eight Moulikyah documents. 16. The Deiri Parties submit that, with the exception of the then current company extract document, it could not be suggested that the actual drafting of these 22 documents took place on the morning of 21 August 2014; rather, the documents must have been created at some earlier time. Given that Jamil only told Mr Gramelis on the prior evening that he desired to make changes to the structure, the Deiri Parties say that the inference to be drawn is not that Mr Gramelis hastily prepared the 22 documents overnight, ready for signing on 21 August 2014 (in an attempt to "seize the moment" when Moustafa would be coming into the office to sign the 484 documents as an opportunity to rectify a situation created in 16 December 2013 when he caused forms to be filed with ASIC which (on this hypothesis) falsely stated that the relevant director and shareholders consents existed, when they in fact did not exist). 17. Rather, they say that the inference to be drawn is that Mr Gramelis in fact prepared all these documents prior to the incorporation of Sayour Holdings, and had them signed on 16 December 2013 as they purported to be (and all he then needed to do prior to Moustafa's arrival was to make sure that the 484 forms were printed out). 18. As for the email with the 22 attachments, the Deiri Parties say its purpose was apparently to explain for Mr Salah's benefit (and ultimately Jamil's) the key details of the Combined Projects Arncliffe, the Sayour 2 Family Trust, Sayour Holdings and Moulikyah (for example, who were the directors, appointors beneficiaries). It is noted that Mr Salah (as I have noted, an employee of Biomed) would not have been expected by Mr Gramelis to be "across" all the details. It is said that the terms of the email itself make clear that the 22 documents were attached for that purpose, rather than for signing. It is noted that nowhere in the email is it suggested that Moustafa is yet to sign these forms and consents, or that he is unaware of these companies. 19. The Deiri Parties say that it makes "no sense" in any event that Mr Gramelis would send documents for signing to Mr Salah if the intent was that they were to be printed out for that purpose (rather, he would have asked his own staff to do it, such as Mr Kumar, rather than the client). 20. It is next noted that, at 7.40am, Jamil responded to this email with the "confused" response: "Hope your well, my instructions were that I'm still a director and my father is now a director"; and that, at 7.52am, Mr Gramelis (it is said correctly interpreting Jamil's instructions despite the "slip") sent an email to Mr Kumar (along with Jamil and Mr Zack Salah) stating: Roni Can you prepare and submit 484 form to ensure Jamil is Director and equal shareholder of Moulikya and Sayour holdings this morning when you get in please. Print off company extracts reflecting the changes the bank will most likely request them. Also provide Zack with 484 forms for Moustafa to sign. 1. The Deiri Parties say that Mr Gramelis can here be seen instructing his employee as to the only documents that actually needed to be printed for Moustafa to sign: the "484 forms". It is said that it is clear that the first reference to "484 form", in the singular, was a typographical error, given that Moustafa in fact signed two 484 forms. 2. The Deiri Parties note that it is those same forms, now signed, that Mr Kumar sent to Mr Salah at 9.53am that morning, along with a confirmation that these changes have now been successfully lodged with ASIC. It is said that, had other forms been signed that one morning, one would expect Mr Kumar to have sent the scans of those to Mr Salah as well. 3. The Deiri Parties say that another important difference between the consent forms purportedly signed on 16 December 2013 and the 484 forms signed on 21 August 2014 is that the former each had "Sign Here" or "Sign & Date Here" stickers next to Moustafa's signature, while none of the latter forms did. It is said that if they had all been signed at once, one would expect a single approach to have been applied uniformly to all the documents Moustafa signed. The Deiri Parties say that the different approach suggests two different signing events: one on 16 December 2013, and another on 21 August 2014. 4. The Deiri Parties also emphasise the significance of the email that Mr Gramelis sent to Yesmine on 3 May 2016 in response to her request for information (see above). That email attaches a number of documents, including the same unsigned consent forms that are attached to the 21 August 2014 email, yet it is common ground that Moustafa had signed the consent forms by at least this time. The Deiri Parties say that this demonstrates that Mr Gramelis' practice of attaching unsigned consent forms to emails does not provide a safe foundation for an inference that signed versions of those forms did not already exist elsewhere. 5. For these reasons, it is submitted that the unsigned "Consent to Act as Director" for Sayour Holdings attached to Mr Gramelis' email affords no basis to conclude that the actual consent was yet to be signed at this time. 6. Furthermore, and as has been adverted to in the preceding, in circumstances where Mr Gramelis was not called as a witness, the Deiri Parties say that a Jones v Dunkel inference should be drawn. It is noted that Mr Gramelis is the only person (other than Jamil) who could have confirmed or contradicted Moustafa's evidence. The Deiri Parties say that the matters on which Mr Gramelis would have been able to give evidence include: when Moustafa signed the consent forms for Sayour Holdings; who instructed him to call and email Ms Luo with the ultimatum that Jamil be made a director of Combined Projects Arncliffe or else he would not make his promised $5 million contribution; and what occurred on the call with Jamil on 20 August 2014 and the meeting with Moustafa and Jamil on 21 August 2014. 7. The Deiri Parties say that it should be inferred that the evidence that Mr Gramelis would have given on these matters would not have assisted the Sayour Parties. It is said that this means that the inference that Moustafa signed the consent forms on 16 December 2013, already available on the evidence from the dating of the consent forms, can thus more confidently be drawn. 8. Further, it is said that it is implicit (in the Sayour Parties' case that Moustafa did not sign the shareholder and director consents on 16 December 2013) that Mr Gramelis, their own accountant, caused a false declaration to be submitted to ASIC to the effect that he had done so. It is submitted that that is a serious finding of fact which would not lightly be made. Sayour Parties' submissions 1. As this is linked to an alternative finding (factual finding #2), I consider the Sayour Parties' submissions together in that context (see below). Determination as to factual finding #1 1. Again, as this is linked to an alternative finding (factual finding #2), I determine both together below. Factual finding #2: alternatively, Moustafa agreed to become director and member of Sayour Holdings in August 2014 with full knowledge of the company's purpose 1. In the alternative, the Deiri Parties submit that it should be found that Moustafa agreed to become a director and member of Sayour Holdings in August 2014 with full knowledge of the company's purpose (having regard to the emails of 21 August 2014 referred to above). Deiri Parties' submissions 1. In addition to the preceding, it is submitted by the Deiri Parties that if, as at 21 August 2014, Moustafa had not yet signed the forms dated 16 December 2013, then it is highly unlikely that he would only have signed the 484 forms making changes to the directorship and shareholding of Sayour Holdings, without also signing the original consent forms which put in place the starting position, so to speak, to which changes were now being made. It is noted that Moustafa's own evidence is that he believes he signed the forms dated 16 December 2013 on this occasion in 21 August 2014. 2. The Deiri Parties say that, even if Moustafa only signed the 484 forms on 21 August 2014, this itself constituted an acceptance by Moustafa that he was a director and member of Sayour Holdings. They note that each 484 form states that the "company name" in question is "SAYOUR HOLDINGS PTY LTD" and that on each form, Moustafa's signature appears beneath the words "I certify that the information in this form is true and complete". Additionally, it is noted that the second 484 form lists Moustafa as having his shares in Sayour Holdings decreased from by 50 shares, leaving him 50 shares "now held". 3. It is submitted that Moustafa would not have signed these very short, two-page forms, without looking at them; that he must have seen that the company in question was Sayour Holdings, and he must have seen he was signing as a director. It is said that, if he saw these things and yet was content to sign anyway, he must not have been surprised by what he saw. The Deiri Parties submit that the logical inference is that Moustafa was aware of Sayour Holdings and its purpose. Sayour Parties' submissions 1. The Sayour Parties' position is that Moustafa became a director of Sayour Holdings no later than about 21 August 2014. They submit that the evidence suggests that Moustafa signed the consents on about 21 August 2014, when Mr Gramelis brought the Sayour Holdings documentation to him, but they say that whether Moustafa signed the relevant consents in August 2014 or in December 2013 is of little import. 2. More particularly, it is said that, in either case, the fact that it is common ground that Moustafa was a director from at least August 2014 onwards is sufficient to dispose of prayers for relief 1 through 9 of the further amended iteration of the Third Broadway Cross-claim (as to which, see below). 3. The Sayour Parties do not accept, however, that Moustafa, because he consented to be a director of Sayour Holdings, should be deemed to have had "full knowledge" of Sayour Holdings' purpose, or of its dealings with Combined Projects Arncliffe and Deiri Nominees. It is said that that is a non sequitur. 4. Insofar as the Deiri Parties submit that Moustafa had "full knowledge of the company's purpose", relying on the emails of 21 August 2014, the Sayour Parties say that those emails establish (at most) that Moustafa signed consents to be a director and shareholder of Sayour Holdings; but that they do not show anything about Moustafa's knowledge of the business or purpose of Sayour Holdings. 5. The Sayour Parties note that there is no document or other evidence to indicate that Moustafa was ever aware, during Jamil's lifetime, that Sayour Holdings was formed for the purpose of holding shares in Combined Projects Arncliffe, or was otherwise connected to the Arncliffe Development; or that Moustafa had, during Jamil's lifetime, any substantial knowledge or awareness of the Arncliffe Development or the business and activities of Sayour Holdings. It is said that, significantly, Mr Deiri himself always proceeded on the basis that Moustafa was ignorant of the workings of Sayour Holdings, and of its shareholding in Combined Projects Arncliffe. 6. For example, it is noted that (at [30] of his affidavit sworn on 16 October 2019), Mr Deiri deposes that "I did not have any dealings or communications relating to the Arncliffe development with other members of the Sayour family. Moustafa Sayour had no involvement with me, nor to my observation with anyone in relation to the Arncliffe development". It is said that, consistent with his evidence that Moustafa had no involvement in the Arncliffe Development (and his knowledge that funds from the Broadway Development were being "recycled" through Combined Projects Arncliffe), Mr Deiri never told Moustafa about his supposed "deathbed" conversation with Jamil (that being the conversation on 30 September 2015 to which Mr Deiri has deposed – see the chronology of events set out earlier). It is also said (and this surely cannot be disputed) that Mr Deiri withheld from the Sayour Parties, until November 2018, the fact that the "site fees" had been paid. 7. It is submitted that, if Mr Deiri ever believed that Jamil was conducting the affairs of Sayour Holdings with the knowledge and consent of Moustafa, he would surely have approached Moustafa at some point in time between Jamil's death and the time for payment of the supposed "site fees". It is said that, if one accepts Mr Deiri's version of events, he had at least a "colourable argument" that the obligation to pay the site fee properly fell not on Combined Projects Arncliffe but on Jamil, or on Sayour Holdings, and thus it was to Mr Deiri's interest to discuss the matter with his business partner, Moustafa, with a view to having Moustafa assume the obligation to assume the payment; and that this is also the case if Mr Deiri ever genuinely believed that Sayour Holdings was only entitled to 3% of Combined Projects Arncliffe's profits. It is observed that, instead, Mr Deiri remained silent about the supposed site fee obligation until November 2018, even after these proceedings had commenced and there was an active contest over the parties' entitlement to the fruits of the Arncliffe Development. It is submitted that this is entirely inconsistent with any genuine belief on the part of Mr Deiri that Jamil conducted the affairs of Sayour Holdings with the knowledge and consent of Moustafa. 8. Furthermore, the Sayour Parties say that, if Moustafa was fully aware of Jamil's conduct of the affairs of Sayour Holdings and if the obligation to pay the site fee to Konstructions and Zapphire was legitimate, then Jamil's decision only to inform Mr Deiri of the site fee arrangement at the Meriton Serviced Apartments (as to which, see the above chronology) is as "incomprehensible" as Mr Deiri's decision not to mention the deathbed conversation, or the obligations supposedly arising from that conversation, to Moustafa or anyone in the "Sayour camp" until well after these proceedings commenced and after the fees had been paid. 9. It is noted that Mr Deiri also gave evidence (in his affidavit sworn on 16 October 2019 at [106]) that, on the (it is said) sole occasion that he ever raised "Arncliffe" with Moustafa, Moustafa told him "It is not my problem – it is not my project. I don't want anything to do with Arncliffe". The Sayour Parties say that iit is hard to credit that Moustafa would have said this if he was in fact fully aware of the Arncliffe project and his own (indirect) shareholding in the Arncliffe Development entity. 10. Similarly, the Sayour Parties submit that the Deiri Parties' submissions (first, that Moustafa was aware of the Jamil's delivery of the $1.75 million cheque to Combined Projects Arncliffe and, second, that that Moustafa must have been aware that the transfers were for the purpose of enabling Sayour Holdings to invest $5 million in the Arncliffe Development) ought be rejected. It is said that the conduct of the parties is inconsistent with Moustafa having any substantial knowledge of Sayour Holdings' activities in relation to Combined Projects Arncliffe. The Sayour Parties say that the Deiri Parties can point to no evidence to indicate that Moustafa had any awareness of Jamil's delivery of the $1.75 million cheque or his demand for the return of $1.56 million a few days later or that there were transfers made for the purpose of enabling Sayour Holdings to invest $5 million in the Arncliffe Development (and that this is mere supposition). Determination as to factual finding #2 (and factual finding #1) 1. As an initial matter, I note that, by way of reply, the Deiri Parties emphasise that the Sayour Parties accept that Moustafa became a director and member of Sayour Holdings by August 2014; and the Deiri Parties say that this is sufficient for their purposes. 2. More significantly to my mind, is the Deiri Parties' reply submission to the contention that whether Moustafa signed the relevant consents in August 2014, or in December 2013, is of little import because the Sayour Parties do not accept that Moustafa had any knowledge of the company's purpose or dealings. The Deiri Parties say that the Sayour Parties, in this respect, seek to "walk a tightrope", by on the one hand accepting that Moustafa had sufficient awareness of what he was doing to sign the forms that made him a director and member of the company while; on the other, arguing that, at the same time, he was oblivious as to the company's purpose. The Deiri Parties say that this is untenable and I here record that I see some force to that submission. 3. Likewise, and in any event, the Deiri Parties say by way of reply that, even if Moustafa was oblivious as to the company's purpose, it is now clear that he was not oblivious as to the fact of his directorship and shareholding; and yet (it is said despite knowing that he was the sole director and shareholder) he nonetheless seemed content to leave the management of the company to Jamil. Again, the Deiri Parties say that this is itself sufficient for their case. Again, I here record that I see some force to this submission. 4. With those observations, I find that the evidence comfortably establishes that Moustafa signed the relevant consent forms in relation to Sayour Holdings on or about the date they bear (16 December 2013). 5. I consider that the documents establish that Moustafa signed the consents in question and on the balance of probabilities (and having regard to the analysis of the documents referred to above) I find that he did so on 16 December 2013. I have concluded that Moustafa should be taken to have consented to becoming a shareholder and director of Sayour Holdings at that time. 6. Pausing here, I note that this finding is relevant in relation to (and inconsistent with the submissions made by the Deiri Parties in respect of) the Third Arncliffe Cross-claim (see below) insofar as there it is contended (as I understand it in the alternative) that Moustafa did not consent to be a member or director of Sayour Holdings prior to, or at the time of, its registration and was never issued with shares in the company and was never a member or director of the company (see particularly the defence at [114] and [115]). 7. Therefore, to this extent, the alternative factual finding #2 does not arise. 8. With this said, what I am not persuaded of is that Moustafa, at the time he signed the forms, did so with "full knowledge" of the purpose of incorporation of Sayour Holdings. In this regard, the evidence, and preceding submissions thereto and analysis thereof, do not demonstrate to the requisite standard, or perhaps at all, that Moustafa had such knowledge. I consider it more consistent with the evidence as a whole that Moustafa considered the Arncliffe Development (at least at the outset) to be a project in which Jamil was involved for his own benefit. 9. Similarly, nor can I be satisfied that Moustafa knew in any detail what Jamil was doing in relation to the Arncliffe Development. I cannot accept that the evidence establishes on the balance of probabilities that Moustafa was aware of the circumstances in which the $1.75 million cheque was provided to Mr Deiri by Jamil (nor as to Jamil's demand for the return of $1.56 million shortly thereafter); nor that Moustafa was content for moneys to be "recycled" from the Broadway Development into the Arncliffe Development by way of investment in or contributions to Combined Projects Arncliffe or otherwise. Of course, several of the issues, or issues anterior to this finding, are traversed in other aspects of the proceeding and in other parts of these reasons. However, the preceding disposition is sufficient for present purposes. Factual finding #3: Jamil controlled Sayour Holdings with Moustafa's consent or acquiescence 1. The third key finding of fact that the Deiri Parties submit should be made in the Arncliffe Proceedings is that Jamil controlled Sayour Holdings with Moustafa's consent or acquiescence. Related to this factual finding is the finding sought by Konstructions (and, as I understand it, Zapphire) as to Jamil's authority. Deiri Parties' submissions 1. The Deiri Parties say that this finding of fact is supported by no less than three matters, several of which cover the same ground as the preceding. 2. First, that Moustafa stood back and permitted Jamil to incorporate and control Sayour Holdings. It is submitted that Moustafa was aware of Sayour Holdings and its purpose. The Deiri Parties note that there is no evidence that Moustafa took any active role in managing the affairs of Sayour Holdings (other than in relation to the $5 million payment, and the conditions which he imposed upon it). It is submitted that Moustafa must have known that Jamil would continue to make all decisions and exercise all functions in relation to Sayour Holdings. The Deiri Parties also note that Moustafa did not have any direct dealings himself with Mr Deiri in relation to Combined Projects Arncliffe. Again, it is submitted that he must have known that it was Jamil who was dealing with Mr Deiri and that this involved Jamil acting on behalf of Sayour Holdings. 3. In particular, the Deiri Parties say that, if Moustafa's evidence that he knew nothing about Sayour Holdings until 2017 is rejected, then it becomes clear that Moustafa was intentionally distancing himself from the company. It is said that the logical inference is that he was seeking to negative the inference that would otherwise arise from his consciously passive stance in relation to Sayour Holdings: that he left the management of the company to Jamil. 4. Second, that Jamil was Moustafa's attorney in his capacity at least as a shareholder of Sayour Holdings, noting that the relevant Power of Attorney was made on 4 February 2013 (see the above chronology) and is executed by Moustafa personally in Jamil's favour. The Deiri Parties say that, subject to the limitation in cl 8 of the instrument (which is not presently relevant), Jamil was authorised to do anything that Moustafa was entitled to do as a shareholder of Sayour Holdings. It is noted that no issue arises as to the power of attorney conferring powers of a trustee as this Power of Attorney was made by Moustafa personally, and the role of shareholder is not subject to any limitations on delegation. 5. Third, that Jamil was a de facto director of Sayour Holdings. It is noted that Jamil is the only person who purported to act for Sayour Holdings at any point in time prior to the commencement of these proceedings, that he alone from the Sayour family discussed the Arncliffe Development with Mr Deiri and that he held himself out as having authority so to act. 6. It is noted that Moustafa's own affidavit evidence acknowledged that Jamil was centrally involved in the Arncliffe Development in that he described the project as a joint venture between Jamil and Fouad about which Jamil had spoken to him occasionally over the years. 7. In the circumstances of Moustafa's admitted knowledge that Jamil was centrally involved in the Arncliffe Development, and his inferred knowledge that Sayour Holdings was the entity through which this was effectuated for the Sayour family, the Deiri Parties say that it should be found that Moustafa knew that Jamil was acting as a de facto director of Sayour Holdings and permitted that state of affairs to continue. 8. It is convenient next to consider Konstructions' position in relation to Jamil's authority. Konstructions' position as to Jamil's authority 1. On the issue as to the level of Jamil's authority in relation to the Arncliffe Development, Konstructions submits that there is an inherent inconsistency in Moustafa's position regarding the reliability of Jamil and his business capacity or acumen. In particular, it is noted that, on the one hand, Moustafa gave evidence that Jamil had an unreliable aspect to his personality and that Jamil would make imprudent decisions that would adversely affect him (and Konstructions seeks the making of findings to this effect) and that Moustafa gave sworn evidence that he did not trust Jamil much; whereas, on the other hand, elsewhere in his evidence Moustafa stated he trusted Jamil to the extent that, if Jamil presented documents to him for signing, Moustafa commonly signed them without reading them or making enquiry as to their purpose or effect. Konstructions submits that the evidence of Moustafa that he signed documents without reading them should not be accepted. Konstructions contends for a finding that Moustafa was well aware of the documents he was signing and says that, by giving this evidence, Moustafa is seeking to evade the consequences that follow and the impact such evidence has on this litigation. 2. It is also noted that Moustafa was absent from Australia for many months of the year; and that, in that period, Jamil would look after his business interests. It is said that this indicates a high degree of trust in Jamil. Konstructions points to inconsistency also in this regard by reference to the evidence of Moustafa to the effect that Jamil seemed to be in control of significant sums of money from overseas and local bank accounts. It is noted that Moustafa said he was a careful man with his money. Konstructions says that, if that be true, then Moustafa must have thought he was being careful by entrusting the control of his numerous bank accounts to Jamil. It is submitted that this alone makes it inherently more likely that Moustafa said the words, or words to the effect that, "dealing with Jamil is like dealing with me" (as Mr Deiri has deposed). Konstructions contends for a finding that the giving of access by Moustafa to Jamil in respect of his bank accounts demonstrates the level of trust that was conferred upon Jamil. Konstructions says that, if Moustafa's evidence about the control of the moneys is accepted, then it is inconsistent with the statement by Moustafa as to his perception that Jamil was a risk to himself and by extension to others. In other words, it is said that Moustafa's evidence about his perception of Jamil's qualities is inconsistent with his own conduct. 3. Konstructions also says that Moustafa held Jamil out as a director of Biomed; that Jamil had a number of tasks in that role; and that Moustafa basically left all financial matters to Jamil. It is noted that Moustafa did not get any regular reports of the financial affairs of Biomed (which it is said implies that he left management to Jamil). 4. Furthermore, reliance is also placed by Konstructions, as do the Deiri Parties, on the fact that Moustafa appointed Jamil as his attorney and as an attorney for Plaza; and that those Powers of Attorney were registered (in all but one instance within days of execution) at the Land Titles Office (from which it is said an inference can be drawn that these Powers of Attorney were not simply held "in the bottom drawer" in case of some emergency or unforeseen circumstances but were obviously to be immediately utilised by Jamil for the conduct of business). 5. It is submitted that, if the evidence of Moustafa is accepted to that effect that he so trusted Jamil that he would sign anything Jamil presented to him, then it tells against Moustafa's assertions that Jamil had no authority to bind him in other transactions; and that, if the evidence of Moustafa is accepted, it demonstrates he trusted Jamil unconditionally and totally. Konstructions says that it renders it more likely that Moustafa conferred that trust upon Jamil in other situations as well. It is said that the provision of Powers of Attorney in favour of Jamil also reinforces the likelihood that Moustafa represented Jamil as his agent or that of his various companies and that, if Moustafa trusted Jamil to the extent that he signed documents without informing himself of what they were, it makes it far more likely that Moustafa would have said the words "dealing with Jamil is like dealing with me". 6. Konstructions also submits that that there were a number of independent witnesses who were available to give evidence to support Moustafa's claims, but were not called to do so. It is said that these include: his former solicitor, Mr Naif (as to the preparation of contracts and the preparation of powers of attorney); his accountant, Mr Gramelis (as to the financial affairs of his company, the incorporation of companies). It is also noted that records in relation to the existence of another bank account in the name of Sayour Holdings have not been produced. Konstructions says that an inference can be drawn that such witnesses or other evidence would not have assisted the Sayour Parties. 7. Konstructions also points to the fact that Jamil was the eldest son (he was, as I understand it, Moustafa's only son) and says that in a traditional Lebanese family this conferred great status upon him. It is submitted that Moustafa obviously conferred favour upon Jamil in the management of the Biomed business and held him out as a manager, despite Jamil's limited business experience. It is noted that Moustafa also conferred responsibility upon him in the property development activities. 8. For these reasons, Konstructions contends for a finding that Moustafa conferred authority on Jamil, and Jamil was given either actual authority or was held out as having authority on behalf of the Sayour business interests. 9. Additionally, Konstructions notes that Moustafa's evidence was that he did not think Jamil was dishonest. However, Konstructions maintains that there is a question to be resolved as to whether Jamil was dishonest "or simply naïve about the importance of the usual practices and procedures of business, and commercial training and experience and the use of a power of attorney". The evidence to which Konstructions points in this regard is that: Jamil signed cheques by replicating the signature of his father for the purpose of payment of partnership expenses; Jamil signed his own signature on CBA cheques for payment of partnership expenses; to the extent that he is found to have done so, Jamil may have signed accommodation notices which he was not entitled to sign to facilitate payment of partnership expenses; Jamil applied Moustafa's signature on accommodation notices to facilitate payment of partnership expenses; the failure of Jamil to sign any of the accommodation notices by clearly indicating he was signing under a power of attorney; Jamil's email to Mr Deiri regarding the increase in price of Stage 2 (as to which, see in the above chronology); the signing of the resolution of members for Combined Projects Arncliffe on or about 30 September 2014 in which Jamil signed on behalf of both Sayour Holdings together with Moustafa's signature (since Moustafa says that is not his signature, then it is said to be most likely that Jamil signed on his behalf). 10. It is convenient now to turn to the Sayour Parties' submissions. Sayour Parties' submissions 1. The Sayour Parties submit that the Deiri Parties' submission that Moustafa "stood back" from Sayour Holdings and intentionally distanced himself from the company is not supported by any direct evidence. Insofar as it is said to proceed logically from a finding that Moustafa had full knowledge of Sayour Holdings and its purpose, the Sayour Parties emphasise that there is no evidence that Moustafa knew of Sayour Holdings' purpose, and thus they say that the factual finding here contended for has not established. 2. I interpose to note here that the Deiri Parties, by way of reply, say that this submission "mischaracterises" the Deiri Parties' position in that the Deiri Parties' submission proceeds from the fact that Moustafa became the sole director and shareholder of Sayour Holdings and hen saw fit to do nothing more. The Deiri Parties submit that "[i]f that is not standing back from the company, it is difficult to imagine what would be". 3. Further, the Sayour Parties argue that it is a mystery as to why Moustafa would want to "distance himself" from Sayour Holdings, or the Arncliffe Development, during Jamil's lifetime. Following this, it is submitted that the inference that Moustafa was, during Jamil's lifetime, ignorant of any of the details of the Arncliffe Development, or the business of Sayour Holdings, is more reasonable than that he knew everything yet wished to remain distant for some unknown reason. 4. I interpose to note here, again, the Deiri Parties, by way of reply, say that this submission "mischaracterises" the Deiri Parties' position in that the submission made is that Moustafa has sought intentionally to distance himself from Sayour Holdings during these proceedings – not during Jamil's lifetime generally, as it were. Determination as to factual finding #3 1. Generally for the reasons advanced by the Deiri Parties and Konstructions (and, as outlined above), I find that Jamil was acting as a de facto director of Sayour Holdings and that Moustafa, who must be taken to have been aware of the company's incorporation since he signed the consent forms for the registration of the company, permitted that state of affairs to continue. 2. As to the findings sought by Konstructions, I do not accept that the evidence permits any finding as to Jamil's unreliability or dishonesty or otherwise, nor do I draw any inference from Moustafa's, perhaps inconsistent, conduct in expressing views as to Jamil's unreliability in the past but at the same time having been prepared to appoint him as his attorney when he travelled overseas and having been prepared to allow Jamil to manage certain of the family business affairs (including Biomed). Nor do I draw an inference from whatever cultural practices might suggest in this context (having again the absence of any expert sociological or anthropological evidence as to applicable cultures or customs). Suffice it to note that, whatever in fact be the extent of Moustafa's understanding at the relevant time as to the purpose of Sayour Holdings and whatever his understanding as to the Arncliffe Development, he certainly left to Jamil the day-to-day running of the Arncliffe Development and, to that extent, he either impliedly authorised Jamil to act on behalf of Sayour Holdings in that project or he acquiesced in him so acting. Factual finding #4: Moustafa directed Jamil that he was only permitted to contribute $5 million to the Arncliffe Development if the Sayours had board representation 1. The fourth key finding of fact for which the Deiri Parties contend in the Arncliffe Proceedings is that Moustafa directed Jamil that he was only permitted to contribute $5 million to the Arncliffe Development if the Sayours had board representation. Deiri Parties' submissions 1. In short, the same evidence and arguments addressed in the context of factual finding #1 (as to which, see above) are said to apply equally here, with the difference that here those matters are relied upon, not as an intermediate step in showing that Moustafa agreed to be sole director and member of Sayour Holdings in December 2013, but as a key finding of fact to be made in and of itself. 2. The Deiri Parties contend that, in early January 2015, Moustafa directed Jamil to demand board representation for Sayour Holdings as a condition for its contribution of $5 million for the Arncliffe Development. It is said that that demand was the catalyst for the Tripoli meeting on 8 January 2015 (as to which, see the above chronology). Sayour Parties' submissions 1. The Sayour Parties say that the Deiri Parties' submission that Moustafa directed Jamil to demand board representation in Combined Projects Arncliffe is based on the unfounded assumption that Moustafa effectively knew everything that was going on within Sayour Holdings and Combined Projects Arncliffe. They say that the paucity of documentary evidence that is available on this point does not support the Deiri Parties' submission that Moustafa dictated Jamil's demand for board representation. 2. It is also noted that Mr Gramelis' email of 8 January 2015 (as to which, see above) does not refer to Moustafa – it only refers to Jamil. It is said that Mr Gramelis' appeal to Mr Deiri for board representation within Combined Projects Arncliffe would surely have had more weight if it had been couched as a demand bearing the "imprimatur of the patriarch of the Sayour family" (i.e., Moustafa). 3. It is also noted that the Tripoli Minute makes no reference to Moustafa Instead, the fourth bullet point says that "Jamil's accountant" had demanded that an agreement be reached "for Jamil to be appointed as director". The Sayour Parties ask rhetorically why, if Moustafa had demanded board representation in Combined Projects Arncliffe, would he not have demanded that he be the representative; and why would his name not even have been mentioned if he was the party with the true interest in representation? It is submitted that there was no reason why Jamil would be coy with Mr Deiri. The Sayour Parties say that the absence of Moustafa's name, even in the document prepared by Mr Deiri (the Tripoli Minute), is powerful evidence that Jamil, and not Moustafa, was the driving force. It is submitted that the conduct of the parties is, again, inconsistent with Moustafa having directed Jamil's conduct. Determination as to factual finding #4 1. I am not persuaded that there is sufficient, or perhaps even any, evidence to support a finding that Moustafa dictated that Jamil should become a director of Combined Projects Arncliffe. 2. In this regard, I accept the submissions for the Sayour Parties that the documentary evidence, including the Tripoli Minute, is equivocal. The fact that Moustafa was not himself appointed the board representative is consistent with an hypothesis that Moustafa dictated to Jamil that the Sayours be represented on the board but was content to leave that to Jamil; but it is also consistent with an hypothesis that Moustafa did not make any demand at all. 3. I should also note that, by way of reply, the Deiri Parties place particular emphasis on what they contend was a "critical, and entirely voluntary", concession made by Moustafa in cross-examination that, if he had known about his shareholding in Combined Projects Arncliffe and his directorship in Sayour Holdings, he would have insisted upon board representation. 4. I note that the latter of those matters, at least, is now accepted by the Sayour Parties and, indeed, I have made factual findings that Moustafa did have knowledge of the Combined Projects Arncliffe shareholding and of the Sayour Holdings' directorship through the signing of the consent forms (see above). 5. However, to this, no less than three points must be noted. First, to some extent, my preceding factual findings are based upon findings of constructive knowledge, as opposed necessarily to actual knowledge. Second, and relatedly, while I have found that Moustafa had knowledge and that he left management matters (at least to a large extent) to Jamil, such findings do not necessarily go so far as to embrace a finding that Moustafa had a detailed knowledge of these matters. Third, I do not see that a purported concession made in cross-examination many years after the fact can comfortably support the inferences here sought by the Deiri Parties (this being an exercise of inference), particularly in the context of such a paucity of contemporaneous evidence. Accordingly, I do not accept that submission. Factual finding #5: by 8 January 2015, there was an agreement between Sayour Holdings and Deiri Nominees that profit share would be based on respective contributions (the Tripoli minute) 1. The fifth key finding of fact that the Deiri Parties submit should be made is that, by no later than 8 January 2015, there was an agreement between Sayour Holdings and Deiri Nominees that the profit share for the Arncliffe Development would be proportionate to their respective shareholder loan contributions. Deiri Parties' submissions 1. As an initial matter, the Deiri Parties say that the absence of any reference to the Tripoli Minute in the audited accounts of Combined Projects Arncliffe for 2014 to 2016 provides no basis to infer that the minute was not drafted contemporaneously. 2. The Deiri Parties say that it was for the same reason that the Sayour Parties were not permitted to cross-examine Mr Vamvakaris on the topic of whether he had retrospectively altered the time on the system clock of his computer before saving the Development Management Agreement to make it appear that it had been prepared earlier than it had in fact been prepared. It is noted that the Deiri Parties objected to that line of questioning (see at T1136.33ff) on the basis that there needed to be a proper factual basis to put an allegation like that kind and that the factual basis said to have existed was that it was not until the audited accounts of 2018 that there was reference to this deed and to the site fee. (I note that Mr Vamvakaris denied having altered the time on his computer (see T 1142.2) and I accept that evidence. 3. The Deiri Parties say that the absence of a reference to a document in a company's audited accounts provides no evidentiary basis to allege that the author of the document misrepresented its date and that the same reasoning applies to the Tripoli Minute. They argue that the position is even more compelling in relation to the Tripoli Minute because the audited accounts for the years 2014 to 2016 were prepared after May 2017, yet still did not refer to the Tripoli Minute or the effect of it. The Deiri Parties say that this confirms that the absence or presence of any reference to the minute in the accounts had nothing to do with the timing at which it had come into existence. 4. Further, they say that the fact that Mr Deiri did not disseminate the document when it was drafted says nothing about its contemporaneity. The Deiri Parties say that it is "unsurprising" that the Tripoli Minute was not provided to anyone in the "Sayour camp" until 1 May 2017 (that being the date on which it was provided to Sayour Holdings' solicitors in response to a request for information issued by them) since this amounts to the proposition that Mr Deiri did not provide the Tripoli Minute to the Sayour Parties until they asked for it (a proposition said to have little, if any, probative value). 5. Insofar as the Sayour Parties assert that Mr Deiri scanned the Tripoli Minute into electronic format, the Deiri Parties say that there is no basis for any suggestion that this must have occurred at around the same time that Mr Deiri printed and signed it. It is said that there is no evidence as to when the Tripoli Minute was scanned, or by whom. In any event, the Deiri Parties say that they rely upon the original minute, which is in evidence. 6. Turning to the Tripoli Minute itself, the Deiri Parties emphasise that it was not drafted by a lawyer. They say that the document should not be assessed as if it were drafted by a solicitor as a formal minute or with "a zealous eye for nice distinctions" but, rather, in a practical and common sense way. It is submitted that each of the bullet points in the Tripoli Minute makes sense and presents entirely naturally as how a layperson such as Mr Deiri would have recorded, using his own words, the key points of the meeting he had had with Jamil. 7. As to the first bullet point, the Deiri Parties say that it is correct. As to the second bullet point (and the exception taken by the Sayour parties to the statement that Jamil had "added no value", given that Jamil introduced Mr Deiri to the Arncliffe Site), the Deiri Parties say that the first sentence must be read in light of the second sentence, which explains that the Deiri parties "had done everything to date including running approvals, arranging finance, pre-sales and construction". It is noted that, in cross-examination, Mr Deiri referred to himself as the "sponsor" of the project. It is said that he was the person "on the frontlines" of the project, negotiating with banks, meeting with councils and with planners, engaging consultants, and the like; and that Jamil had not done any of those things. The Deiri Parties say that Jamil's involvement was limited to identifying the site, and that he provided no further value to the project or the partnership once these were actually on foot. It is said that, since that time, it was entirely accurate to say that Jamil had "added no value to the project or to the partnership". 8. As to the reference to "and construction", the Deiri Parties accept that demolition did not commence until December 2015. However, they point out that the sentence speaks of "arranging" those things there mentioned (including finance, pre-sales, construction and such); and they say that Mr Deiri had clearly arranged the construction. It is noted that, as for approvals, Mr Deiri on 6 May 2014 put together a team of consultants to start working on the development application and rezoning of the Arncliffe Site, including architects, structural engineers, surveyors and a town planner; as for finance, Mr Deiri had by then already secured a loan facility, and was working on arranging a construction facility, which he ultimately did secure the following month on 20 February 2015 (see the above chronology); as for presales, it is noted that Mr Deiri had secured 114 presales by the time of this meeting. 9. As for construction itself, it is noted that Deicorp had, as early as 20 April 2014, submitted a tender for the construction of the project, including fully itemised costings and providing for a 90-week building programme. It is noted that the tender submission specified the contractors proposed to be engaged, specified particular building materials that would be used and contained technical drawings (including floor plans, elevation diagrams, section details, ramp details, adaptability details, shadow diagrams, a stormwater concept plan, an erosion and sediment control plan and a construction and management plan). It is also noted that, on 27 April 2015 (see the above chronology), Combined Projects Arncliffe entered a construction contract with Deicorp, which annexed the tender submission. 10. As to the third bullet point, it is submitted that this is correct, pointing out that it accords with a contemporaneous email from Mr Deiri to Ms Luo, which makes reference to Jamil having issued a cheque made payable to Combined Projects Arncliffe Pty Ltd for the amount of $5 million to go against his loan account and to be banked on 5 January 2015. 11. As to the fourth bullet point, it is said that this is also correct. The Deiri Parties point to the 8 January 2015 email from Mr Gramelis to Ms Luo referring to their telephone conversation earlier that day (see the above chronology). 12. As to the fifth bullet point, the Deiri Parties say that this is also correct; that Mr Gramelis' email of 8 January 2015 delivers this very ultimatum; and that this accords with Mr Deiri's evidence in re-examination that he refused to accept funds from Sayour Holdings if they were conditional upon him being a director (see at T 1114.41-42). 13. As to the sixth bullet point, the Deiri Parties say that this differentiates between Jamil and Sayour Holdings. In particular, the Deiri Parties say that it is significant that there had been no money paid directly by Sayour Holdings (and note that the bank account for Sayour Holdings was yet to be opened). It is submitted that this is why the minute refers to the funds "put in by Jamil and his associated entities". However, they point out that the Tripoli Minute acknowledges and records that it is Sayour Holdings that will, or perhaps would, be entitled paid a profit share, rather than Jamil (because it, rather than Jamil, is the shareholder). 14. As to the seventh bullet point, the Deiri Parties say that this (as does the second bullet point) records that all of the work for the project was being done by Mr Deiri and his companies alone. It is noted that it includes a reference to the personal guarantees and company guarantees which Mr Deiri was going to need to provide in order to obtain finance for the project (again, also pointing to his evidence in re-examination). It is also noted that it lists some of the tasks for which responsibility rested with the Deiri Parties, including finance, marketing, design, construction and the like. 15. Insofar as the Sayour Parties point out that construction had not commenced at this time (suggesting that the Tripoli Minute was written only after construction had begun), the Deiri Parties say that there are four answers to that contention. 16. First, that the seventh bullet point expressly records Mr Deiri as having "repeated" what he said earlier about what he was doing in relation to the project. It is said that this is evidently a reference back to the second bullet point, which is the only bullet point in the Tripoli Minute that speaks to this topic. The Deiri Parties say that the critical sentence in the seventh bullet point is therefore best understood as a repetition of the corresponding sentence in the second bullet point. It is submitted that these were intended to convey the same idea. It is submitted that nothing turns on the absence of the word "arranging" in the seventh bullet point (that it was either implicit, or inadvertently omitted, from the second sentence of the seventh bullet point). 17. Second, that, even construing the seventh bullet point on its own, the expression "finance, marketing, design and construction and the like" simply gives more content to the phrase "everything involved with the project". It is submitted that the sentence conveys that, of all of the tasks "involved with the project" that have needed to be done to that point, they had all been done by Mr Deiri and his associated entities. It is said that this was clearly not intended to be a precise account of all of the tasks that had and had not yet been completed in the project (referring to the words "and the like"). Rather, it is said that the purpose was simply to convey that the entirety of the responsibility for the running of the project fell with Mr Deiri and his associated entities alone. It is submitted that the precision with which it is drafted should be assessed by reference to the message that the sentence was intended to convey. 18. Third, that in the very next sentence Mr Deiri refers to the fact that he "will also be providing his personal guarantee and company guarantees to secure the construction loan". The future tense of the word "will" is said to be consistent with the date of the minute being prior to the giving of the personal and corporate guarantees for the $100 million construction loan (which occurred the following month). 19. Fourth, it is said that the Sayour Parties' argument seeks to fix the Tripoli Minute with a degree of precision that its words were never intended to bear. It is noted that the minute contains a number of typographical errors and, again, emphasis is placed on the fact that it was not drafted by a lawyer. It is submitted that, to bring linguistic and grammatical precision to the construction of the minute, would be to burden it with more weight than its words will bear. 20. As to the eighth bullet point, the Deiri Parties say that this is unexceptionable; that it is conveying that, if Sayour Holdings is deciding not to contribute any further, then its profit share will fall to be determined by reference to the $670,000 already contributed only (and that Mr Deiri would have a directors' meeting to record that this was the final amount of Sayour Holdings' contributions). 21. Insofar as the Sayour Parties suggest that it is incongruous to say that Jamil had "only" contributed $670,000 (because Deiri Nominees' contribution at this point in time was also $670,000), the Deiri Parties say that this fails to appreciate the context that each party was to contribute $10 million over the life of the project. It is said that the point there being made was that a contribution of $670,000 is only a fraction of the $10 million or so that each shareholder would ultimately need to contribute and that, if Sayour Holdings was then to cease any contributions from that point, it would have "only contributed $670,000" by the conclusion of the project. It is submitted that the word "only" here draws a comparison, not with Mr Deiri's contributions up to that point in time, but with the total contributions that had been agreed would be required for the project over time. 22. As to the ninth bullet point, the Deiri Parties say that this was accurate because Sayour Holdings refused to contribute any further funds to the project (otherwise than upon its unaccepted condition that Jamil become a director). It is said that was also borne out by subsequent events, as Jamil never came back to Mr Deiri proposing to invest further funds into the project (whether conditionally or not). 23. As to the tenth bullet point, the Deiri Parties say that this was a return to the theme of the sixth bullet point, the point here being made that the funds received so far had been contributed not by the shareholder, Sayour Holdings, but rather by Jamil personally. The Deiri Parties say that it is simply a statement of fact: no cheques had been received from Sayour Holdings and the company was yet to open a bank account. The Deiri Parties say that this was not an attempt by Mr Deiri to depart from the obligation to pay Sayour Holdings on the basis that the money had been sourced from elsewhere (and that this was made abundantly clear by the sixth bullet point, in which the obligation to pay Sayour Holdings is clearly acknowledged). 24. Insofar as the Sayour Parties point to the fact that the minute records that Mr Deiri "insisted [upon]", "stated" and "reiterated" various matters, the Deiri Parties say that, analysed as a matter of contract, the Tripoli meeting involved Jamil proposing to vary the Arncliffe Agreement by providing for him to become a director, rather than a passive investor; and that it was entirely open to Mr Deiri to refuse Jamil's offer to amend the contract, and to insist that the parties adhere to their original agreement. It is said that the Tripoli Minute serves as a record of the rejection of an amendment and the continuation of the original agreement. 25. Insofar as the Sayour Parties submit that the whole tenor of the Tripoli Minute appears to be the suggestion of a new arrangement, the Deiri Parties say that the only thing that was new was the realisation that Sayour Holdings would no longer be contributing further funds to the project. It is said that that provided the occasion for Mr Deiri to calculate ("on the spot") the likely entitlement that Sayour Holdings would have to any profits at the end of the day, as a way of bringing home the consequences of Jamil's ultimatum. They say that the tenor of the Tripoli Minute is not here a new agreement but, rather that, "if you pull out now, then under our agreement, this is all that you'll get". 26. As to the contention by the Sayour Parties that the Deiri Parties are estopped from alleging that any enforceable agreement emerged from the Tripoli Minute, on the basis of representations made in a letter sent by Combined Projects Arncliffe's former solicitors (Corrs Chambers Westgarth) on 4 May 2018 (to the effect that no enforceable agreement arising from the Tripoli Minute was then alleged – see the above chronology), the Deiri Parties complain that the Sayour Parties make no submissions directed to the elements of the claimed estoppel, or its nature. In particular, it is submitted that there are no submissions which identify, nor cite any evidence in support of, any assumption, expectation or convention; and that the estoppel argument fails on this basis alone. 27. The Deiri Parties further say that, had any such submission been made that an assumption or expectation been adopted, it would have faced the very serious difficulty that the letter from Corrs Chambers Westgarth was sent at a stage where the Sayour Parties were merely seeking information. It is noted that this issue was raised in the context of the Deiri Parties' application for leave to file its defence to the First Arncliffe Cross-claim and the third Arncliffe Cross-claim (see In the matter of Combined Projects (Arncliffe) Pty Ltd [2019] NSWSC 1070). The Deiri Parties note that, on that application, they submitted that it was unrealistic and unreasonable to expect that Deiri Nominees and Mr Deiri necessarily would have put in issue the matters they now seek to raise concerning membership of Sayour Holdings and of Combined Projects Arncliffe in proceedings for access to records and ancillary relief, given the amount at stake and the nature of the relief sought. 28. Additionally, the Deiri Parties complain that there are no submissions directed to the nature of the detrimental reliance which would be required to found an estoppel, and no evidence referred to in support of such reliance, despite the observation made by me at the time leave was granted to the Deiri Parties in relation to the Tripoli Minute, namely that (at [114]): 114. As to the inconsistency between the position reflected in the existing pleading (disavowing an intention to rely on the so-called Tripoli minute or alleged variation of the Arncliffe Agreement by reference to that minute) and the position now sought to be adopted, again it seems to me more appropriate for that to be dealt with at the final hearing rather than summarily to preclude any argument based on the so-called Tripoli minute. If it be contended that there has been detrimental reliance on a representation made to the effect that there would be no reliance placed on the Tripoli minute, that can be a matter for reply and will need to be the subject of evidence at the hearing. 1. It is said that, despite those observations, the Sayour Parties have failed to adduce any evidence of detrimental reliance in support of their asserted estoppel. It is said that they bore the onus of doing so and that the estoppel argument also fails for this reason. 2. Insofar as the Sayour Parties rely on a letter from Corrs Chambers Westgarth stating that no consideration was given for the agreement represented by the Tripoli Minute, the Deiri Parties say as follows. First, that the letter was drafted in circumstances where the earlier s 247A proceedings involved a fundamentally different set of claims, in different pleadings, about access to documents and the board of Combined Projects Arncliffe. Second, and in any event, that that letter was accurate insofar as the Tripoli Minute is to be seen as simply recording the acknowledgement of an existing agreement, rather than the creation of a new one. It is said that, on the Deiri Parties' primary case, the question of consideration does not arise, because the meeting at Tripoli was an affirmation of the existing Arncliffe Agreement and that the terms recorded in the Tripoli Minute did not depart from or alter what had already been agreed in the Arncliffe Agreement. 3. Insofar as the Sayour Parties argue that the term that each shareholder would be entitled to profits in rateable proportion to its contributions was a new one, the Deiri Parties say that on Mr Deiri's evidence this was an express term from the outset. They further say that, even if Mr Deiri's evidence in that regard is not accepted, the term was implied. It is said that, in circumstances where it was agreed that each party would receive 50% of the profits and it was a common assumption that the parties would contribute equally (as they in fact did until the Tripoli Minute), a term providing that failure to continue making contributions would result in a corresponding diminution in profit entitlements was one that was both necessary to give business efficacy to the contract and so obvious that it goes without saying. 4. The Deiri Parties say that the question whether there is consideration for the variation of the Arncliffe Agreement arising from the Tripoli meeting only arises if the term that each shareholder would be entitled to profits in rateable proportion to its contributions is not accepted to be a term of the Arncliffe Agreement. In these circumstances, the Sayour Parties submit that there was no enforceable agreement arising from the Tripoli meeting, because no consideration was given by either side. Meanwhile, the Deiri Parties say that such a submission should be rejected. They say that the consideration was a promise by Sayour Holdings not to seek a return on more than he contributed; and a promise by Deiri Nominees not to seek any further contributions from Sayour Holdings and not to terminate or sue for damages in the event that such further contributions were not received. 5. The Deiri Parties argue that the practical effect of the variation was that Sayour Holdings would receive a profit share on the $670,000 already contributed; and Deiri Nominees would continue to contribute the remainder of the approximate $20 million required to complete the project and receive a profit in rateable proportion to its contribution. 6. As to the submission made by the Sayour Parties as to the incongruity of that Mr Deiri having some tea with Jamil's family after the meeting, the Deiri Parties say, to the contrary, that the fact that Mr Deiri was able to sit down with Jamil's family speaks to the fact that the Tripoli meeting had resolved the issue that had arisen between the two men the previous day. It is noted that Mr Deiri and Jamil were long-term friends, were friendly with each other's families and were adults. 7. In addition to all of the preceding, the Deiri Parties point to Moustafa's travels to and from Lebanon at the time of the Tripoli meeting. They say that it follows that the only representative of Sayour Holdings who could meet with Mr Deiri to discuss the directorship issue was Jamil himself; and that this was in keeping with the arrangement that had been followed to date, whereby Jamil had been the sole contact with Mr Deiri in relation to the Arncliffe project generally. 8. The Deiri Parties submit that some agreement must have been reached as to the cheque and that the Sayour Parties' contention that there was no agreement at this time is contrary to objective probabilities. 9. It is submitted that, at a minimum, there must have been an oral agreement between Mr Deiri and Jamil about what to do with the $5 million cheque, noting that Mr Deiri still had the cheque in his possession at this time. They argue that there would be no reason for Mr Deiri to tear it up unless there was an agreement with Jamil not to bank it. It is said that, clearly, there was agreement insofar as Mr Deiri respected Jamil's wishes that the cheque should now not be banked. 10. Insofar as the Sayour Parties submit that (had Mr Deiri felt the arrangement was operating unfairly to him) it is striking that he did not call for additional capital at any time, the Deiri Parties say that it should not be inferred that Mr Deiri "stoically decided to bear the financial burden of the project alone because he 'did not want' Jamil's contributions" and that such a conclusion would be highly implausible. It is noted that Mr Deiri knew that additional capital (including the $5 million) was not available unless Jamil was appointed a director of Combined Projects Arncliffe and it is (again) said that this was inconsistent with the earlier agreement in January 2014 and, following, that Mr Deiri was not prepared to accede to the proposal to depart from that arrangement. It is submitted that, as the only additional funds that Jamil wanted to contribute were conditional upon Jamil being made a director, the position is that Mr Deiri declined to capitulate to the imposition of that condition. 11. Alternatively, it is submitted that the agreement arose partly by implication. The Deiri Parties say that, to the extent that some or other of the terms of the Arncliffe Agreement are not found to have been orally agreed between the parties, those other terms were implied in the circumstance, noting that an agreement may come into effect through conduct (see, again, Brambles at 177-179). 12. It is submitted that, here, the agreement is to be inferred from the conversation, the almost exclusive financial contribution made to the project by Mr Deiri and the failure of Jamil and the Sayour companies to contribute or to offer to contribute any further funds. It is submitted that it is entirely contrary to all probabilities that a "seasoned commercial developer" (like Mr Deiri) would ever have agreed to contribute $20 million in funds, to give personal and corporate guarantees for a $100 million loan and to take full responsibility for the running of the project, only then to give away half of the profits to a joint shareholder whose sole contribution to the project was finding the site and paying $670,000. It is said that it makes no sense for Mr Deiri to have agreed to make such an "extraordinarily unequal contribution", unless there was some agreement between the parties that distribution of profits was to be proportional to contributions. Sayour Parties' submissions 1. As noted already, there was much focus in the course of the hearing on this so-called "Tripoli Minute". The Sayour parties make the following further submissions in relation to it. 2. First, it is noted that the Deiri Parties argue for a finding that the Tripoli Minute records an agreement that the Arncliffe profit share would be proportionate to their respective shareholder loan contributions. The Sayour Parties note that the word "loan" does not appear anywhere in the Tripoli Minute, and that the supposed loan agreement between Combined Projects Arncliffe and Deiri Nominees was (on Mr Deiri's evidence) not entered into until after the supposed Tripoli meeting. Indeed, it is noted that the Tripoli Minute only refers to "contributions". It is said that the fact that Mr Deiri (through Deiri Nominees) might be entitled to an enhanced profit share based on its contributions, as well as profits on account of interest for loans subsequently advanced, is not contemplated by the Tripoli Minute, and would run counter to the plain language of the second last bullet point on the first page of the minute (which is described as a fulsome statement of the entitlements that would arise as a result of contributions to Combined Projects Arncliffe). 3. Second, insofar as the Deiri Parties submit that it is "unsurprising" that Mr Deiri did not provide the Tripoli Minute to the Sayour Parties until they asked for it, the Sayour Parties note that Mr Deiri not only did not provide the supposed minute to the Sayour parties but he never gave a copy of it even to Jamil, despite the fact that Mr Deiri "supposedly took pains" to reduce the Tripoli agreement to writing for the purpose of establishing it as a record of an amendment to Combined Projects Arncliffe's constitutional terms, adverse to Sayour Holdings. It is submitted that it is "indeed very surprising" that Mr Deiri would take pains to prepare the Tripoli Minute, and sign it, and yet never send it to Jamil under cover of an email that said words to the effect of, say, "Dear Jamil – Attached for your records is the minute of our shareholders meeting at Tripoli on 8 January where you agreed on behalf of Sayour Holdings that profit shares would be based on amounts loaned to CP Arncliffe". 4. It is (again) noted that Mr Deiri is a sophisticated businessman who would understand that important commercial agreements should be properly documented, particularly so when the agreement serves to resolve a fundamental dispute between shareholders in a very substantial joint venture enterprise. It is said that Mr Deiri inexplicably failed to prepare any objectively reliable documentary record of the agreement that he supposedly struck with Jamil in Tripoli (which must reduce the weight that can be given to his posthumous account of his supposed agreement with Jamil). 5. Third, as to the submission that "it makes no sense for Mr Deiri to have agreed to make such an extraordinarily unequal contribution, unless there was some agreement between the parties that distribution of profits was to be proportional to contributions", the Sayour Parties say that this submission ignores the fact that Mr Deiri stood to make very substantial profits quite apart from any profits he received in the form of distributions from Combined Projects Arncliffe. In particular, it is noted that Deicorp Constructions took the profit from undertaking a $71 million development, that Deicorp Properties took the profit from the provision of its marketing services and that Deiri Nominees took nearly $5.3 million in profit on interest on loans advanced to Combined Projects Arncliffe. It is also said that the submission is "all the more absurd" when considered in light of the fact that Mr Deiri ultimately (by his account) considered it quite sensible to agree to pay out $14.4 million in site identification fees to unknown parties. 6. Furthermore, and as adverted to above), the Sayour Parties say that one of the most curious aspects of this document is that, by all accounts, Mr Deiri kept the document entirely to himself throughout the remainder of Jamil's lifetime, and did not disclose its existence to Sayour Holdings (or any of the Sayour Parties) until a copy was provided to Combined Projects Arncliffe's then solicitors (as will be recalled, Corrs Chambers Westgarth) provided it to Sayour Holdings' solicitors. 7. The Sayour Parties therefore say that the course of events according to Mr Deiri is that: Mr Deiri attended the meeting with Jamil in Tripoli on 8 January 2015; Mr Deiri told Jamil that in order to make the arrangement struck at the meeting "absolutely clear", Mr Deiri would "document this shareholders meeting and prepare minutes"; Mr Deiri, on returning to his hotel that night prepared some notes of the meeting; on returning to Sydney, Mr Deiri typed up on a computer, or arranged to be typed up, a minute based on those notes; that minute was then printed out; Mr Deiri signed the printed minute; and (at some stage) the signed minute was then scanned into electronic format as it is now in evidence in the proceeding. 8. The Sayour Parties say that what is "striking" is what did not occur (given Mr Deiri's awareness of the significance of the meeting and the importance that it be documented so that the arrangement was "absolutely clear"). First, again, that there is no evidence that Mr Deiri emailed his notes, or any record of the meeting, to Jamil when he returned to his hotel on 8 January 2015 (or at any other time), nor did Mr Deiri keep his notes from that day. Second, that, having typed up, printed, signed and scanned the Tripoli Minute, Mr Deiri did not then email it to Jamil or arrange for Jamil to affix his signature to a printed copy of the minute. Third, that Mr Deiri does not appear to have told his accountants of the deal struck in Tripoli. In that regard, it is noted (as I have outlined above) that the accounts for Combined Projects Arncliffe (prepared on Mr Deiri's instructions) did not reflect the terms of the Tripoli Minute at all times until 2019 (i.e., the audited accounts and annual reports for Combined Projects Arncliffe were prepared on the basis that the two shareholders in the company would share rateably in distributions according to their shareholdings). 9. It is noted that Mr Deiri was used to "regular minuted project meetings" and had obtained signatures on a shareholders' minute adopting Combined Projects Arncliffe's 2014 accounts; yet "did not so much as send an email" to Jamil about the Tripoli Minute. 10. The Sayour Parties submit that the evident failure of Mr Deiri to take any steps during Jamil's lifetime to create an objective record that the Tripoli meeting occurred when and as Mr Deiri now says it did "renders incredible his entire tale of what transpired in Tripoli". 11. The Sayour Parties point to the following other aspects of the Tripoli Minute that they say are highly unusual. 12. First, that it is presented in the form of a series of declarations (or assertions) made by Mr Deiri to Jamil. 13. Second, that there is no indication of anything that Jamil said in response to any of the assertions there recorded (even, it is said, in respect of assertions to which Jamil would have been expected to take exception). 14. Third, that the Tripoli Minute records Mr Deiri telling Jamil that "Fouad had insisted that he did not need Jamil or Sayour Holdings as a partner on this project and was only doing this transaction to help Jamil. Fouad insisted that Jamil or Sayour Holdings has added no value to the project…", whereas Mr Deiri's evidence is that Jamil had told Mr Deiri about the Arncliffe Site, that there would have been no project without Jamil and that Jamil told Mr Deiri that he would take the project to someone else if Mr Deiri did not go "50/50" with him. Moreover, it is said that if the Tripoli deal was to operate "it does not seem that Jamil was to be helped by the project" (and it is said that this is even more apparent if the minute is the same or close to what the original deal was). 15. Fourth, as already adverted to, that Mr Deiri's statement to Jamil that "Fouad, Deicorp and Deiri Nominees have carried out everything involved with the project, including finance, marketing, design and construction and the like" is "curious", given that (as Mr Deiri conceded in cross-examination – see at T 967.1) no construction had occurred as at January 2015. The Sayour Parties say that this suggests the minute does not document a conversation that occurred in January 2015. 16. Fifth, that Mr Deiri's statement that "he would have a directors meeting to reflect that Jamil and associated entities have only contributed $670,000" is "entirely incongruous", given that Mr Deiri and his entities had also only contributed $670,000 to the Arncliffe project as of 8 January 2015 (as to which, see the table set out at [46] of Mr Deiri's affidavit sworn on 16 October 2019). Again, the Sayour Parties say that this suggests the minute does not document a conversation that occurred in January 2015. 17. Finally, they say that the concluding statement (that "Fouad also reiterated that Sayour Holdings had put no money into Combined Projects (Arncliffe) and the $670,000 had come from Jamil Sayour himself") is "bizarre". In this regard, the Sayour Parties ask a series of rhetorical questions, as follows. Why would Mr Deiri "reiterate" to Jamil the source of Jamil's funds? Did Jamil not know where the funds had come from? Why did Mr Deiri need to say that to Jamil? What relevance did it have to the state of play as at 8 January 2015? 18. It is submitted that it is "entirely incongruous" for Mr Deiri to have made a statement to Jamil on 8 January 2015 that Jamil had put the funds in himself (and it is said that this is contradicted by Mr Deiri's acknowledgment that Jamil "recycled" into Combined Projects Arncliffe funds taken from the Broadway Development). It is submitted that the assertion that Jamil had put the money in "himself" was not an assertion made for the benefit of Mr Deiri or Jamil; and that it appears to have been made for the benefit of persons reading the document in 2017, when the source of funds was a matter of dispute in these proceedings. 19. It is also submitted that Mr Deiri's evidence that he went and "had some tea" with Jamil's family after this "heated confrontation" is also incongruous. 20. The Sayour Parties further submit that a significant problem arising from the Tripoli Minute is its lack of any legal effect. It is said that the only arrangement or agreement between the shareholders in Combined Projects Arncliffe that is recorded in an objective contemporary document is the company's constitution. 21. Insofar as the Deiri Parties now rely upon the Tripoli Minute as an amendment to the (undocumented) January 2014 arrangement (to the effect that the distributions would be rateable according to "contributions"), the Sayour Parties ask, again rhetorically, what consideration was given for any amendment to the previous bargain. The Sayour Parties again note that the Tripoli Minute records a series of demands and assertions from Mr Deiri to Jamil but say that it does not record Mr Deiri giving anything of value to Jamil or Sayour Holdings. They also note that the Tripoli Minute purports to record Mr Deiri refusing to take any further funds from Jamil or Sayour Holdings. 22. The Sayour Parties point out that Mr Deiri's former lawyers have previously conceded in these proceedings that the Tripoli Minute does not record any enforceable agreement or enforceable promise, and that no consideration was given or agreed in relation to the Tripoli Minute. 23. In this regard it is noted that, on 25 February 2019, Combined Projects Arncliffe filed and served its defence to Sayour Holdings' further amended statement of claim in the Arncliffe Proceedings, at [124] of which Combined Projects Arncliffe pleaded that the Tripoli Minute "recorded an agreement between Arncliffe's shareholders". The Sayour Parties point to the response by Combined Projects Arncliffe's former lawyers on 4 May 2018 to a request for particulars of this pleading made by Sayour Holdings' solicitors, in which it was said of the pleadings in relation to the alleged meeting in Tripoli on 8 January 2015: 7. Deiri Nominees and Mr Deiri repeat paragraph 130(b) of the POD, in which they each admit that the meeting was held without formal notice being given. Mr Jamil was given notice of the meeting in a telephone discussion with [Mr Deiri]. 9. Deiri Nominees and [Mr Deiri] do not allege that the minutes record any enforceable agreement or enforceable promises. 10. Deiri Nominees and [Mr Deiri] repeat the response to paragraph 9 above. For the avoidance of any doubt, it is not alleged that the promises had any enforceable contractual effect. 11. Deiri Nominees and [Mr Deiri] do not allege that any consideration was given or agreed by each promisor in respect of each promise, and repeat paragraph 9 above. 12. Deiri Nominees and [Mr Deiri] do not allege any enforceable agreement. 14. Deiri Nominees and [Mr Deiri] only allege that the words were said as recorded in the minute… 1. The Sayour Parties submit, as I have outlined in considering the submissions for the Deiri Parties, that an estoppel arose from the acknowledgement given by Corrs Chambers Westgarth, in response to a formal request for particulars of a pleading filed and served in the current proceedings, that no enforceable agreement emerged from the Tripoli Minute and that no consideration was given by either side. Determination as to factual finding #5 1. The principal difficulty that I have with the Tripoli Minute is that it is inherently self-serving. There is nothing to corroborate the evidence of Mr Deiri that Jamil agreed to anything that it there recorded. I do not suggest that this is not what Mr Deiri created shortly after the meeting in January 2015, and I likewise accept that it may well have been what Mr Deiri recalls was said or what Mr Deiri believes was agreed (albeit that there are certainly a number of oddities as to the expression there set out, to which the Sayour Parties have pointed). 2. However, again, there is simply no evidence that Jamil ever saw the Tripoli Minute or confirmed that it accorded with his understanding of what had been discussed or agreed. 3. Accordingly, I cannot accept that this evidences an agreement binding on Sayour Holdings, even leaving aside any issues as to Jamil's authority. 4. Moreover, I am troubled by the fact that the Deiri Parties have adopted an inconsistent stance in relation to reliance on the Tripoli Minute (see particularly as outlined above). However nothing turns on that (and it is not necessary to debate the niceties of the estoppel argument), since I am not persuaded that it can be relied upon as evidencing a binding agreement in any event. Factual finding #6: the meeting on 30 September 2015 occurred as set out in Mr Deiri's affidavit (the "deathbed conversation") 1. The next key finding of fact for which the Deiri Parties contend is that the meeting between Mr Deiri and Jamil on 30 September 2015 occurred as set out in Mr Deiri's affidavit (referred to above and throughout as the "deathbed conversation" – see in the above chronology). 2. It is convenient to consider, first, the Deiri Parties' submissions, before turning to the submissions for the Sayour Parties and then the position for Konstructions. Deiri Parties' submissions 1. Further to the preceding in relation to the Tripoli Minute, the Deiri Parties say that the agreement with, and assent by, Jamil to what occurred on 30 September 2015 is corroborated by both Mr Deiri's and Mr Vamvakaris' accounts of a conversation between them that happened immediately after the conversation between Mr Deiri and Jamil. It is said that the account of that conversation given by each witness was not challenged in cross-examination and, in the absence of any such challenge, it is not open to the Sayour Parties to submit that the conversation never occurred. 2. The Deiri Parties say that the two accounts of the conversation are mutually corroborating; that, although Mr Vamvakaris' account of the conversation is less detailed than that of Mr Deiri's, the three key points of the conversation that he recalls are each reflected in Mr Deiri's fuller account of the conversation. It is submitted that Mr Vamvakaris presented as a witness of truth, who had no reason to tailor his evidence. 3. The Deiri Parties say that, if the conversation occurred, it is powerful evidence that the conversation with Jamil on 30 September 2015 also occurred as set out in Mr Deiri's evidence. It is submitted that the probability that Mr Deiri fabricated a false account of his conversation with Jamil on the 10-minute drive back from Zetland/Waterloo to Redfern is far lower than the probability that he fabricated such an account in the days, weeks or months following the conversation. It is submitted that the timing of the conversation with Mr Vamvakaris limits both the opportunity for, and probability of, fabrication. 4. Insofar as the Sayour Parties also challenge the credibility of Mr Vamvakaris' and Mr Deiri's account that the amount agreed to be paid was $14.4 million (on the basis that that figure could not have been known to them at this time) and point to the fact that the LandMark White valuation of the Arncliffe Site was not issued in final form until 5 October 2015 (as to which, see the above chronology), despite bearing the date of 28 September 2015 on its face, the Deiri Parties respond as follows. 5. The Deiri Parties point to the fact that Mr Wiltshire of LandMark White performed a site visit, and to his evidence that it was not uncommon for him to discuss indicative valuations during or shortly after such site visits. 6. The Deiri Parties take issue with the submission by the Sayour Parties that Mr Deiri's claim to have known the indicative valuation figure by 30 September 2015 (two days after the site visit) is a "transparent ruse" in light of the evidence that the valuer gave evidence that it was not uncommon for the clients to know the indicative valuation by that point in time. 7. Insofar as the Sayour Parties point to Mr Wiltshire's evidence in cross-examination that he "would have" read the ANZ letter imploring him not to reveal the valuation to anyone other than ANZ, and that it was not his practice to disregard such instructions; the Deiri Parties emphasise that Mr Wiltshire went on to say that he did not recall what he did on this occasion (and that his evidence is of reconstruction, rather than of recollection). 8. To the extent that there are two conflicting pieces of evidence concerning the witness' practice (one being that it was not uncommon to discuss the indicative valuation prior to report date, and the other that he would not generally disregard letters of instruction); the Deiri Parties say that a conclusion cannot confidently be drawn either way and hence the Sayour Parties have not discharged their onus of establishing to the civil standard that Mr Wiltshire did not communicate the valuation figure prior to 30 September 2015. 9. Further, it is noted that Mr Vamvakaris attended the valuation inspection with Mr Wiltshire. It is said that, in cross-examination on this topic, Mr Vamvakaris gave clear and credible evidence that he had received the valuation before Jamil died, and before he prepared the Development Management Agreement. The Deiri Parties say that Mr Vamvakaris was a witness of truth and that this direct evidence should be accepted in preference to speculation between competing reconstructions of Mr Wiltshire's past practices. 10. The Deiri Parties say that the agreement between Mr Deiri and Jamil is also corroborated by the terms of the Development Management Agreement, referring by way of example to cl 1 (definitions) which provides that: Site Identification Fee means the difference between the Project Funding valuation amount of $32,580,000 and the purchase price of the Land of $18,100,000. 1. They note that this corresponds with Mr Deiri's account of the conversation with Jamil, namely that Jamil said that, "I agreed to pay the them the difference between the valuation and the purchase price". 2. Similarly, they point to cl 3.9(a) which records, consistently with the conversation between Mr Deiri and Jamil, that "[t]he Owner is liable for all Development Costs including the Site Identification Fee as agreed by Jamil in 2015". 3. The Deiri Parties say that the Development Management Agreement was created on 24 March 2016 at 9.50am, that is, about six months after the conversation between Mr Deiri and Mr Vamvakaris. They say that there can be no suggestion that, contrary to the date of the document appearing in its metadata, it was in fact created later (as to which, see above in relation to cross-examination on this matter). It is submitted, again, that Mr Vamvakaris was a witness of truth, and it is said that his detailed evidence of the steps he took to prepare the Development Management Agreement should be accepted, including his explanation as to why it took him six months to draft the Development Management Agreement. Mr Vamvakaris said he drafted the Development Management Agreement in March 2016 because that was the first time his workload allowed him to do so. 4. The Deiri Parties say that this evidence accorded with the detailed account that Mr Vamvakaris gave of the various projects he was involved with in the six months leading up to March 2015. 5. The Deiri Parties further say that it is not open for the Sayour Parties now to submit that an Allen v Tobias inference is to be drawn against Mr Vamvakaris. It is noted that such an inference is available where a party by a deliberate act destroys a document but, here, Mr Vamvakaris is not a party to the proceedings and (it is said) has no interest in it. It is submitted that Mr Vamvakaris gave full and frank disclosure that, in around March 2019, he replaced his laptop with a new Apple Mac Book Air as his old laptop was approximately 10 years old and his experience was that the device was failing, and that he then disposed of his old laptop. 6. It is noted that the Sayour Parties expressly disavowed any suggestion that Mr Vamvakaris had in any way committed any sort of contempt and that they were not permitted to cross-examine Mr Vamvakaris to the effect that he had altered the properties of the Development Management Agreement (again, see above). In these circumstances, the Deiri Parties say that it is not open for the Sayour Parties nonetheless to run the argument that inferences adverse to Mr Vamvakaris should be drawn in relation to the disposal of his old laptop, particularly where the inferences sought to be drawn were not put to the witness. 7. The Deiri Parties say that the conversation between Mr Deiri and Jamil is also corroborated by Mr Deiri's mobile phone records from that month (see above). 8. Finally, the Deiri Parties contend that Mr Deiri's explanation as to why he agreed to Jamil's request was a commercially rational one that should be accepted. It is noted that, as explained in his confidential affidavit sworn on 31 October 2019, Mr Deiri then had a substantial amount in current loan facilities extending over several projects, and was seeking further finance in the range of a further substantial amount. 9. More particularly, the Deiri Parties say that, first, Mr Deiri was concerned that if he refused to pay the site identification fee, the people to whom it was owed might pursue Combined Projects Arncliffe for payment or lodge a caveat in respect of the debt, which could disrupt the Arncliffe Development and potentially cause ANZ to withdraw its finance. It is said that the simple answer to the criticism by the Sayour Parties that Mr Deiri was unable to identify any basis for there being a caveatable interest is that Mr Deiri was not a lawyer. It is submitted that it is immaterial whether there would have been a caveatable interest or not, and that what matters is that it was reasonably open for him to think, as a lay person, that the Jamil's creditors might be able to hinder the project in some way if not paid. Further, it is submitted that it is not outlandish to think that Mr Zafiropoulos or Mr Kanj might have lodged a caveat if not duly paid. In this connection, reference is made to the High Court's confirmation that, so long as a person has an honest belief on reasonable grounds that there is a caveatable interest (even if that turns out to be wrong), that person will be immune from liability to pay compensation in respect of the lodgement of that caveat (so as to avoid "an undesirable chilling effect on the proper lodgement of caveats that are honestly and reasonably believed to be necessary to protect legitimate interests") referring to Boensch v Pascoe [2019] HCA 49; (2019) 375 ALR 15 at [113] per Bell, Nettle, Gordon and Edelman JJ. In these circumstances, it is submitted that the criticism of Mr Deiri for not being able to identify a basis on which a caveat might have been lodged is unwarranted. 10. Second, it is noted that there were 164 pre-sales of residential apartments at this time, and Mr Deiri's evidence is that he was concerned that if ANZ withdrew its funding the development would not be able to proceed, and Mr Deiri would have 164 aggrieved purchasers with whom to deal. It is said that this evidence was not challenged in cross-examination. 11. Third, it is noted that several of Mr Deiri's entities at this time had facilities of a substantial amount which Mr Deiri had personally guaranteed, and that Mr Deiri was seeking further substantial amounts in finance. Mr Deiri's evidence is that he was concerned that, if ANZ withdrew its finance, then other lenders would do the same, causing a chain reaction that would disrupt far more than just the Combined Projects Arncliffe project. It is submitted that, in the scheme of things, paying out a $14 million site fee was worthwhile to avoid jeopardising the hundreds of millions of dollars tied-up Deicorp's other projects. 12. Following, the Deiri Parties say that the suggestion that Mr Deiri could have "pushed back" against Mr Zafiropoulos and Mr Kanj misses the point. It is said that, however justified Mr Deiri might have been in adopting a more robust posture, to do so carried with it a risk of the dispute impacting upon the Arncliffe project and others. It is said that Mr Deiri's stance can be summarised as being "never stop a job". It is submitted that, for a seasoned developer to have taken that stance is not improbable, even if the Sayour Parties say that it was improvident. 13. The Deiri Parties say that, in any event, there is also a timing issue with these criticisms, which are focussed on Mr Deiri's actions at the time that payment was made to Mr Zafiropoulos and Mr Kanj. It is noted that, by this time, Mr Deiri and Jamil had already resolved that these payments were to be made, and it is said that Combined Projects Arncliffe was under an obligation to make them (though the Deiri Parties say that the existence of such an obligation is not necessary for the Deiri Parties' case). It is submitted that, for the Sayour Parties' criticisms to have any salience, they need to be directed to Mr Deiri's actions at the time of the agreement with Jamil, not his subsequent actions in carrying that agreement into effect. 14. Insofar as the Sayour Parties also contend that Mr Deiri's account of the 30 September 2015 conversation (as to which, see the above chronology) is not to be believed because, in the Deiri Parties' third cross-claim as originally filed, it was pleaded that Jamil said that the Arncliffe Site was introduced to him by Mr William Zafiropoulos, whereas Mr Deiri's evidence of 16 October 2019 is that Jamil told him that the Arncliffe site was introduced to me through a couple of people, the Deiri Parties say that what is not here mentioned is that, on 3 December 2019 (two weeks before the Sayour Parties served their closing submissions), the Deiri Parties filed a further amended statement of cross-claim removing any references to Mr Zafiropoulos. 15. Accordingly, while the Deiri Parties accept that the earlier version of the cross-claim contained an error and no longer pleads that the conversation of 30 September 2015 involved any mention of Mr Zafiropoulos by name, it is said that the error is explicable on the basis that the Arncliffe Proceedings were brought on very quickly, in order to catch up to the Broadway Proceedings, which were already well advanced. 16. In any event, the Deiri Parties say that the error relates to a relatively minor matter of detail: the substance of the conversation is the same in both accounts, that is, Jamil had agreed to pay out a site identification fee and asked Mr Deiri to take care of this for him. 17. To the extent that there is any doubt as to which version of the 30 September 2015 conversation is to be preferred (that contained in the original pleading or that in Mr Deiri's affidavit) it is said that the Development Management Agreement supplies the answer. Specifically, it is noted that the Development Management Agreement contains no reference to Mr Zafiropoulos at all, it simply provides: "The Owner is liable for all Development Costs including the Site Identification Fee as agreed by Jamil in 2015". It is said that this is consistent with Mr Deiri's evidence, which is now reflected in the amended pleading, that at this time the identity of the people to whom the site identification fee was payable was not known. 18. Insofar as the Sayour Parties also contend that the drafting of two deeds between Ms Elliott and Moustafa on December 2015 on Mr Deiri's instructions undermines Mr Deiri's account of the conversation of 30 September 2015, the Deiri Parties maintain that none of the arguments advanced in connection with this matter supports that conclusion. 19. As to the submission that the deed itself assumes that Ms Elliot would be in a position to recover an amount of at least $2 million (and that this assumption could not have been made good in circumstances where Ms Elliott could only hope to receive $670,000), the Deiri Parties say that the argument proceeds from a false premise. It is noted that the draft deed did not provide that Ms Elliot would receive $2 million from Combined Projects Arncliffe (rather, it provided for a loan arrangement). 20. The Deiri Parties say that the completion of the Arncliffe Project was simply an event triggering Ms Elliott's obligation to repay the loan to Moustafa; and that the deed says nothing about the extent to which the proceeds of that completion may have been sufficient to meet that obligation. They say that the deed does not assume that those proceeds will be sufficient to meet the obligation in full. It is submitted that an equally available possibility is that the proceeds from the project would have enabled Ms Elliott to pay off a portion of the loan (perhaps $670,000 or more) and that Ms Elliott would then re-finance the balance. The Deiri Parties say that the deed "was simply not concerned to address the question of how Catherine might make repayment of the loan in 3 years' time"; rather, it was intended to deal with a more immediate and practical problem, being that Ms Elliott needed money then to get back on her feet. 21. It is also submitted that the argument fixes Mr Deiri with a degree of certainty about the eventual profits that would ultimately be generated by the Arncliffe Development that he could not have had at this time, and that he expressly disclaimed having. It is noted that, in December 2015, demolition had only just started and that practical completion would not take place until 2018. It is said that, in these circumstances, Mr Deiri did not know, and could not know, what the ultimate profits of the project would be; and that he gave clear evidence to that effect in cross-examination. 22. As to the submission by the Sayour Parties that the first deed shows that Mr Deiri knew that Moustafa was a director of Sayour Holdings, the Deiri Parties say that this, too, is incorrect. 23. It is submitted that, while Mr Deiri might have had some reason to suspect that Moustafa could have had some interest in Sayour Holdings, his clear evidence is that he did not know the details of its shareholders and directors; rather, he knew that Jamil was the one with whom he had dealings in relation to the project. 24. In these circumstances, it is submitted that the impugned portion of the first draft deed presents no difficulty. It provides that: Moustafa and his Related Entities release their interest in and will not propose or make any claim in relation to the Arncliffe Project at 108 Princes Highway, Arncliffe. The interest that Moustafa has in the Arncliffe Project through his Related entities will go to the Jamil Family Trust. 1. The Deiri Parties say that this provision is for the avoidance of the doubt, that if Jamil were the sole shareholder of Sayour Holdings, then there would be nothing to release or transfer; if Moustafa were the sole shareholder or a shareholder of Sayour Holdings, then this provision would cause it to be released and transferred to the Jamil Family Trust. It is said that Mr Deiri did not know the internal workings of the Sayour family companies and trusts, and who was entitled to what payments from the various Sayour entities. In this context, reference is also made to his evidence in cross-examination that, "I don't know, nor would I be across, what money belonged to who in the family" (see at T 892.49-51). It is said that, whatever the entitlements as between themselves of each Sayour family member to payments in respect of the Arncliffe project, the intent of this provision was clear (i.e., to consolidate those entitlements and vest them in Jamil personally, and thereby to Ms Elliott, the executor of his estate). 2. It is submitted that Mr Deiri's ignorance of the internal workings of the Sayour family companies and trusts is confirmed by the final reference to the "Jamil Family Trust", which the Sayour Parties submit is not a trust that is known by Plaza to have ever existed, or to exist now. It is submitted that this is further evidence that Mr Deiri was attempting to assist in resolving an internal family affair about which he did not know all the details. 3. Finally, as to the submission that the draft deeds contain no mention of the Development Management Fee, the Site Identification fees, the Arncliffe Agreement and the interest agreement goes nowhere, it is said by the Deiri Parties that none of those fees or agreements had anything to do with Ms Elliott or Moustafa personally or with the subject matter of the deeds, which was the making of a loan to Ms Elliott. 4. As to the submission by the Sayour Parties made by reference to inter party correspondence that, if Mr Deiri thought those payments were properly made, he would have certainly disclosed them to Sayour Holdings well before November 2018, the Deiri Parties say that a party is under no obligation to volunteer information to another party with whom it is in dispute, whether through its solicitors or otherwise. It is submitted that none of the points affirmatively made by Combined Projects Arncliffe's and/or the Deiri Parties' solicitors during the period from 1 May 2017 onwards stands in the way of accepting that Mr Deiri and Jamil had agreed to Combined Projects Arncliffe paying site identification fees and Development Management Agreement fees on 30 September 2015. 5. As to the statement in the letter from Minter Ellison of 23 March 2018 that "the Company is continuing to operate in its ordinary course", the Deiri Parties say that it was so doing, but that this says nothing about the impugned fees. As to the statements in subsequent correspondence to the effect that payments were made in the ordinary course of Arncliffe's business, the Deiri Parties say that such a statement is accurate: that payments made pursuant to the Development Management Agreement were payments in the ordinary course of Combined Projects Arncliffe's business (that business being to develop the Arncliffe project). It is said that carrying out transactions which were genuinely part of that core business do not fall outside the expression as used in this context. Further, the Deiri Parties cavil with the proposition that the phrase "ordinary course of business" has an established meaning (as to which, referring to what was said by Street J, as his Honour then was, in Re Bradford Roofing Industries Pty Ltd (in liq) & Companies Act [1966] 1 NSWR 674 at 680, as to the meaning of that particular expression differing significantly depending on the context). 6. Insofar as the Sayour Parties have used the concept of a transaction "not calling for remark" (see the words used by Kitto J in Taylor v White (1964) 110 CLR 129 at 477; [1964] HCA 11), the Deiri Parties note that there what was construed was the meaning of the "ordinary course of business" in bankruptcy legislation. It is submitted that the attempt to apply a particular definition in that context to correspondence of this kind is misplaced but, in any event, they say that Kitto J's judgment is to be contrasted with the judgments of Taylor J (see at 153-154) (holding that not calling for remark was a sufficient, but not necessary condition), Menzies J (at 159) and Windeyer J (at 161). It is submitted that many other cases take a wide view of the meaning of that phrase in the bankruptcy context, and do not consider how common a transaction is, or whether it calls for comment (see Robertson v Grigg (1932) 47 CLR 257 at 267; [1932] HCA 29 per Gavan Duffy CJ and Starke J; Burns v McFarlane (1940) 64 CLR 108 at 125; [1940] HCA 25 per Rich, Dixon and McTiernan JJ; Harkness v Partnership Pacific Ltd (1997) 41 NSWLR 204 at 268 per Priestley JA; Jones v Southall & Bourke Pty Ltd [2004] FCA 539 at [38] per Crennan J, then sitting in the Federal Court). The Deiri Parties say that the phrase does not have the established meaning asserted by the Sayour Parties; and that reasonable minds might differ about how the correspondence is interpreted, but they maintain that clearly a meaning which encompasses the payment of the Development Management Fee is open and reasonable. 7. The Deiri Parties say that the submission that they should have "disclose[d] their intention" to pay the site identification fees and the Development Management Fee earlier than when they did is a complaint with no consequence; and that it provides no basis to find that those fees were not lawfully owing. Sayour Parties' submissions 1. It is convenient to outline the Sayour Parties following incidental submissions in reply. 2. First, that Mr Deiri was directly challenged both by pleading and in cross-examination as to whether the supposed meeting with Jamil on 30 September 2015 occurred, and whether Jamil could possibly have told Mr Deiri that the site fee was about $14.4 million (see, for example, at T 1064.17-23; T 1070.47-49; T 1081.39-40). It is said that that challenge necessarily entails that he could not have told Mr Vamvakaris immediately afterwards about a conversation that did not happen. 3. Second, insofar as the Deiri Parties submit that the accounts given by Mr Deiri and Mr Vamvakaris regarding the conversation they supposedly had immediately after Mr Deiri's 30 September 2015 "deathbed" conversation with Jamil were not challenged in cross-examination, the Sayour Parties say that this is not so. They note that it was put to Mr Deiri that (contrary to his evidence) he did not tell Mr Vamvakaris that the site fee was about $14.4 million and that the development management agreement was not prepared until sometime in 2017 (see at T 1081.42-48), and Mr Vamvakaris was asked whether he prepared the Development Management Agreement in 2017 (see at T 1136.7) and (see at T 1141.49ff); and also whether he altered the document properties to make it falsely appear that it was created on 24 March 2016 (which Mr Vamvakaris denied, bringing that line of questioning to an end) (again, see at T 1141.49ff). 4. Third, insofar as the Deiri Parties submit that Mr Deiri's decision to agree to Jamil's request that Combined Projects Arncliffe pay out the site fee was a commercially rational decision, the Sayour Parties say that this submission appears to conflict with the Deiri Parties' oral submission in closing arguments that the deal struck on 30 September 2015 was to Mr Deiri's detriment, and that the Deiri Parties were "the victim of the deal, inasmuch as Sayour Holdings want to suggest that they are now the victim" (see at T 1655.2-3) and that, "[i]t doesn't make commercial sense for $21 million to be paid out and for us to lose money that would've otherwise been a profit available to shareholders" (see at T 1655.6-8). 5. The Sayour Parties submit that this goes to the fundamental implausibility of Mr Deiri's account of the 30 September 2015 meeting. 6. It is said that, if Mr Deiri considered himself "victimised" by the outcome of the meeting, then one would have expected him to have taken some steps to unwind that outcome. The Sayour Parties say that one way for him to have done so would have been for Mr Deiri to approach the sole surviving shareholder of Sayour Holdings (Moustafa) to explain to him that Jamil had asked Combined Projects Arncliffe to assume an obligation to pay site identification fees that was rightly the obligation of Sayour Holdings, or Jamil personally. They say that another way for Mr Deiri to prevent his own victimisation would have been to challenge the claimants (Messrs Zafiropoulos and Kanj) to justify their claims when they came asking for payment of more than $14 million from (in Mr Deiri's account) his own pocket. It is said that Mr Deiri has shown in this litigation that he has considerable resolve in defending claims he considers illegitimate, yet when Messrs Zafiropoulos and Kanj called on him he made immediate payment "without asking a single question". 7. The Sayour Parties say that – instead of approaching Moustafa, or taking any steps to unwind the site fee arrangement, or challenging the persons claiming more than $14 million or, "even better", to understand the nature and basis of the fee obligation (e.g. the identities of the persons to whom the fees were supposed to be paid and the parties to, terms and effect of the alleged contracts) – Mr Deiri not only paid the fees to Messrs Kanj and Zafiropoulos but in fact "affirmatively withheld" any information about the fees from Moustafa and Sayour Holdings until November 2018. It is submitted that there cannot have been any good reason for this. 8. It is said that, in trying to justify Mr Deiri's failure to disclose the obligation to pay the site fees until well after they had actually been paid out, the Deiri Parties submit that a party is under no obligation to volunteer information to another party with whom it is in dispute, whether through its solicitors or otherwise; but that, while that submission may have merit in a case of disputing parties who are at arms' length, here Mr Deiri was a director of Combined Projects Arncliffe, with an overriding fiduciary obligation to its shareholders (including Sayour Holdings). 9. Further, it is said that, even if he had no affirmative obligation to disclose the site fees to Sayour Holdings, it was self-evidently in Mr Deiri's own financial interest (as well as being his duty to the company) to disclose the site fee arrangement to the shareholders (relevantly the Sayour Parties) sooner rather than later. This is said to be the case for the following two reasons. First, given that Mr Deiri was a "victim" of Jamil's supposed agreement to pay the site fees to certain unknown third parties, it was clearly in Mr Deiri's interest to discuss that arrangement with Moustafa, even if only to find out if Moustafa had any idea who those third parties were, or whether there was some prospect that the amount of the fee could be negotiated down. Second, that from 2017 onwards, Mr Deiri and Sayour Holdings were in a hard-fought dispute about the proceeds of the Arncliffe Development. It is said that, if the site fee obligation was believed by Mr Deiri to have been legitimate, there is no rational explanation for his reticence in telling the Sayour parties about the obligation, and in disclosing the fact that Mr Deiri – because he is a man of his word – had assumed this payment obligation on behalf of Jamil. It is said that one would have expected Mr Deiri to complain that the Sayours, instead of suing him in the Supreme Court, ought to be grateful to him for his integrity in assuming, without question or complaint, the cryptic $14.4 million burden that Jamil had placed on him during a 15-minute deathbed conversation. It is further said that one would also have expected Mr Deiri to tell the Sayours that the Arncliffe Proceedings were in any event futile, and that no further costs ought to be expended, because there were no proceeds to be distributed because of the site fees that Mr Deiri had magnanimously agreed to pay on behalf of Jamil and Sayour Holdings. It is said that perhaps this restraint reflected his understanding of differences between the Sayour family and Jamil's estate. 10. The Sayour Parties say that (again) one would expect a "savvy and experienced commercial operator" such as Mr Deiri not lightly to assume an obligation to pay the debts of another person, and the fact that he never complained to Moustafa that Moustafa's son, and fellow shareholder in Sayour Holdings, had left Mr Deiri and Combined Projects Arncliffe with a mysterious $14.4 million debt is simply not credible. It is said that for this reason alone, the Mr Deiri's account of his deathbed conversation with Jamil should be rejected. 11. The Sayour Parties also point to material inconsistencies in Mr Deiri's varying accounts of what transpired at the alleged deathbed meeting. 12. In particular, it is noted that the Deiri Parties submit that Mr Deiri's erroneous assertion in the original version of the third cross-claim that Jamil told him in the deathbed conversation that the Arncliffe site was introduced to him by Mr Zafiropoulos is explicable on the basis that the Arncliffe Proceedings were brought on very quickly. The Sayour Parties say that is a "weak excuse" for a material factual inconsistency in the pleadings. 13. Furthermore, it is noted that the Arncliffe Proceedings had been ongoing for over two years by the time that Mr Deiri filed the Third Arncliffe Cross-claim: the originating process naming Mr Deiri and Deiri Nominees as defendants was filed on 16 June 2017, and the cross-claim pleading was filed on 3 July 2019. It is said that Mr Deiri had "plenty of time to get his story straight"; and it is noted that Mr Deiri has not explained how he got the information for the version that he originally put in his pleadings, but later withdrew. It is submitted that this is good reason for doubting the veracity of the version of the deathbed conversation upon which Mr Deiri ultimately relies. 14. As noted, it is convenient next to consider the position advanced for Konstructions. Konstructions' position as to the "deathbed conversation" 1. It is of particular relevance here to note Konstructions' position as to the alleged "deathbed conversation" because Konstructions submits that the Development Management Agreement is a critically important event in the chain of events (see, in this context, Fox v Percy (2003) 214 CLR 188; [2003] HCA 22), in that Konstructions says that its existence provides powerful corroboration of Mr Kanj's evidence and establishes the meeting between Mr Deiri and Jamil on 30 September 2015 (again, see above); and that the existence of the Development Management Agreement provides inferential support for Mr Deiri's knowledge of the valuation amount at the time of his meeting with Jamil. I also note that it is said that Mr Deiri was not challenged on this aspect of his evidence. 2. Pausing here, I have difficulty with the submission that the Development Management Agreement provides more than faint corroboration for Mr Kanj's account of events. To my mind, it does no more than provide a basis for concluding that Jamil had said something to Mr Deiri to the effect that he had promised a fee to one or more people in relation to the site (the identity of whom was not apparently disclosed to Mr Deiri at the time). 3. Insofar as it was, or is, contended by the Sayour Parties that there was no conversation between Mr Deiri and Jamil on 30 September 2015 and that (because it is not referred to in the 2016 accounts) the Development Management Agreement was not created until sometime in late 2017 but the written agreement was probably backdated to 16 March 2016, Konstructions points to the secondary witnesses whose evidence it says may corroborate the account given by Mr Deiri. In that regard, Konstructions refers to Mr Gav's affidavit in which Mr Gav deposes to a conversation with Mr Deiri in about October or November 2017 about a call that he had received from Mr Zafiropoulos about a deal that had been done on the Arncliffe Site. Konstructions says that this conversation was not challenged by counsel for Combined Projects Arncliffe and stands as unchallenged, corroborative evidence that a conversation took place in October or November 2017 that there had been: an agreement between Jamil and Mr Zafiropoulos; that there was the promise of a "site fee" (which is how Jamil characterised the fee payable to Mr Kanj); that there had been a discussion between Mr Deiri and Jamil; that Mr Deiri was advised of the agreement with Mr Zafiropoulos proximate to Jamil's death; and that the payment to Mr Zafiropoulos was to be made at the conclusion of the development. Thus, Konstructions says that, if there was any "backdating" arrangement in relation to the Development Management Agreement, it had to have evolved prior to October 2017. Konstructions places weight on the fact that Mr Gav was unchallenged on the statement by Mr Deiri to the effect that "[y]es I know about the deal, Jamil only told me on his death bed". 4. As such, it is said that Mr Gav gave evidence of the "deathbed conversation" at which Mr Deiri says the Development Management Agreement was discussed. It is submitted that the failure to cross-examine is significant to any suggestion the conversation did not take place and to any allegation of "backdating" of the Development Management Agreement. 5. More important, Konstructions says, is the affidavit of Mr Vamvakaris which places a corroborative conversation, as adverted to above, much closer to the actual date of death of Jamil (before Jamil's death and well before October 2017). It is said that the information to which Mr Vamvakaris deposed provides strongly corroborative evidence as to: the fact of a recent conversation between Jamil and Mr Deiri; the contents of that conversation; and the likelihood that Mr Deiri had access to either the LandMark White valuation or the draft valuation figures (because the essential terms of the agreement were sufficient to proceed to give instructions to draft the Development Management Agreement). 6. This evidence by Mr Vamvakaris (said not the subject of cross-examination) is said to be clear contemporaneous corroborative evidence that: establishes an instruction that Jamil had done a "deal" on Arncliffe; corroborates the occurrence of the conversation between Jamil and Mr Deiri on 30 September 2015; establishes that, in that conversation, there was discussion of a development management agreement; and there was a discussion about a site fee which was going to be the difference between a valuation and the purchase price. It is said that all these statements directly corroborate Mr Deiri's account and that the evidence of Mr Vamvakaris indirectly corroborates the account of Mr Kanj. 7. Furthermore, reliance is also placed on Mr Deiri's evidence (see his affidavit sworn on 16 October 2019) to the effect that, straight after the conversation with Jamil, he returned to the Deicorp offices and went into Mr Vamvakaris' office where there was a conversation about that. Konstructions says that it is notable that there was no cross-examination of Mr Deiri about the existence of this conversation. It is said that, when one has regard to the unchallenged evidence of Mr Vamvakaris and the unchallenged evidence of Mr Deiri, it is clear that both Site Identification Fee(s) and Development Management Agreement were discussed on the day that Mr Deiri returned from visiting Jamil. It is said that this unchallenged evidence is wholly corroborative of Mr Deiri's account of the meeting with Jamil at the Meriton Serviced Apartments and the topic of conversation between them (because his actions immediately after are consistent with a Development Management Agreement being discussed). 8. Konstructions says that what is demonstrated and unchallenged is that Mr Deiri immediately returned to the office and asked for a development management agreement to be drafted; and that eventually Mr Vamvakaris took the relevant steps in about March after being pressed by Mr Deiri to do so. It is submitted that this is so close to the events in question that, absent any cross-examination on that topic, it is "impregnable evidence" in favour of the account advanced by Mr Deiri. 9. Konstructions says that the evidence of Mr Vamvakaris and Mr Gav strongly supports the conclusion that this agreement was reached with Jamil. Konstructions points out that, if this evidence of Mr Vamvakaris is accepted, then he was instructed to prepare the document before Jamil died and before the dispute arose between Moustafa and Mr Deiri. 10. Insofar as the Sayour Parties place weight on the fact that no valuation figures were available by the time of the meeting on 30 September 2015, Konstructions points to the evidence of Mr Wiltshire that, on occasion, even prior to the issue of the final report, he would advise the likely figures that would be disclosed in the report (as also considered above). Konstructions notes that the valuation report was dated 28 September 2015 (two days before the 30 September meeting). It is submitted that it is likely that Mr Wiltshire would have either provided the report or advised Mr Deiri of the figures contained in that report. Accordingly, it is said that, not only does Mr Deiri say he was provided with draft figures, but Mr Wiltshire indicated that most likely he would have provided such information. 11. I interpose to record that I do not accept that this was the import of Mr Wiltshire's evidence. Rather, I understood Mr Wiltshire simply to be accepting that it was possible the he could have disclosed the figures in advance of the final report. 12. Insofar as Mr Deiri's evidence is that he pressed Mr Vamvakaris over the next five months to produce the Development Management Agreement, Konstructions says that this conduct is consistent with Mr Deiri's intention to have the Development Management Agreement entered into promptly and with an agreement having been reached between Mr Deiri and Jamil in or about late September 2015. It is said that the account by Mr Vamvakaris is inconsistent with the first creation of this agreement in late 2017 and an attempt to "back date" it, and that the backdating argument, so to speak, cannot be accepted in these circumstances. 13. Konstructions says that, because of the unchallenged corroboration of Mr Vamvakaris, the existence of the agreement with Jamil in September 2015 is not affected by the evidence by Mr Deiri regarding the 2016 accounts for Combined Projects Arncliffe. It is noted that Mr Deiri gave an explanation to the effect that the accounts reflect expenses that are paid then "booked". It is also noted Mr Deiri had a great number of companies and it is said that Mr Deiri was clearly provided with documents by other people and told to sign accounts prepared by others. Konstructions says that the possibility that there may have been mistakes or misunderstandings in their preparation which was not an issue addressed in cross-examination of Mr Deiri. Accordingly, it is submitted that only limited use can be made of the cross-examination on these annual accounts. 14. Pointing to the cross-examination directed to the fact that the "site identification fee" was not referred to in the 2016 annual accounts, Konstructions says that an allegation that the fee agreed between Mr Kanj and Jamil is false (as is an allegation that the agreement between Mr Deiri and Jamil to honour the payments was false) is a serious allegation to make as it has implications for fraud, deceit or seeking to procure financial advantage or inflict financial disadvantage. Konstructions says that the submissions cannot be made that the agreement did not exist simply because it is not referred to in the accounts; noting that there may be many other explanations including internal procedures, poor accounting practices, mistake or volume of work. Similarly, it is said that any suggestion that the site assistance fee agreements did not exist because Mr Kanj did not respond to pre-ligation correspondence is similarly flawed, noting that, even if Mr Kanj received the letter from Adams & Partners, there was no obligation to respond to it. Determination as to factual finding #6 1. The so-called "deathbed conversation" is one of the more problematic areas in the evidence. 2. I accept that the evidence establishes that Jamil was at the Meriton Serviced Apartments on 29 and 30 September 2015 for the purpose of treatment being administered by Dr Hemm before his flight to Germany (as to which, see in the above chronology of events). This is not least because of the various contemporaneous and probative items of evidence that place him there. 3. I also accept that Mr Deiri visited the apartment on 30 September 2015. In particular, his telephone records place him in the vicinity and his affidavit evidence was given before those records were available. I also accept Mr Vamvakaris' account of the conversation when Mr Deiri returned to the office. Therefore, if nothing else, it is simply too much of a coincidence that Mr Deiri just happened to be in the area at that time and yet was not visiting the apartment, not least given his account to Mr Vamvakaris immediately afterwards. 4. However, what I do not accept is that I can place reliance on the accuracy of Mr Deiri's recollection or account of the conversation. In particular, while I can accept that something of the kind that Mr Vamvakaris says was relayed to him by Mr Deiri after the conversation was likely to have been told to Mr Deiri by Jamil in the conversation (particularly that Jamil had agreed to pay site identification fees to one or more unnamed persons), I do not accept that the actual amount of the fee was known or discussed at that time. Furthermore, while I can readily accept that Mr Deiri would have demanded some form of fee to offset a loss of profits caused by such an identification fee being payable, I cannot be satisfied that there was an agreement in the terms ultimately drafted by Mr Vamvakaris; nor am I persuaded that Jamil had authority to negotiate those terms (the particular significance of which I deal with in due course below). 5. Otherwise, I do not accept that submissions such as that it is not suggested that Mr Deiri obtained any benefit or advantage for himself personally in agreeing with Jamil to pay the Site Identification Fee or in fact making that payment assist me to draw the factual finding here sought. 6. Likewise, I do not accept that, to the extent that witnesses such as Yesmine Sayour may have sought to conceal what they know about the conversation (see my earlier findings as to the Jones v Dunkel or Fercom inferences here sought) that this would enable me, on the extant evidence, permissibly to infer what was likely to have been said at the meeting. 7. As to the submissions in relation to some purported commercial benefit or rationality (as regard the lodgement of a caveat or otherwise), of Mr Deiri agreeing to pay the site identification fees, to which I will return shortly again, I do not consider that this permits an inference as to what was said in the conversation, at least in the manner here pressed by the Deiri Parties. 8. Accordingly, I do not find that the "deathbed conversation" occurred as set out in Mr Deiri's affidavit, though I do find that Mr Deiri had a conversation with Jamil on 30 September 2015. Any findings as to the specific content of that conversation insofar as they bear upon later determinations, I will deal with in due course. Factual finding #7: that the September 2015 meeting constituted an assent by shareholders 1. The seventh key fact for which the Deiri Parties contend is that the meeting between Mr Deiri and Jamil on 30 September 2015 constituted an agreement or an assent by shareholders to the payment of the site identification fees and the Development Management Fees by virtue of the Duomatic principle (see Re Duomatic at 373 per Buckley J). 2. In Re Duomatic, the principles regarding shareholder assent to a transaction were considered. Buckley J said that (at 373): … where it can be shown that all shareholders who have a right to attend and vote at a general meeting of the company assent to some matter which a general meeting of the company could carry into effect, that assent is as binding as a resolution in general meeting would be. 1. Again, it is convenient first to consider the Deiri Parties' submissions. Deiri Parties' submissions 1. The Deiri Parties submit that there is no question that Mr Deiri had authority so to act on behalf of Deiri Nominees; and they submit, for the reasons given above, that Jamil equally had authority so to act on behalf of Sayour Holdings. 2. Next, the Deiri Parties note that shareholder assent may be manifested by the shareholders acting together at a formal meeting, but that it can also occur more informally (see, for example, Brick and Pipe at 298, 314-319 per Ormiston J). 3. The Deiri Parties say that, here, the meeting of 30 September 2015 was an informal meeting between two people each of whom had authority to speak for the respective corporate shareholders. They submit that it was, therefore, this shareholder meeting alone that imposed an obligation upon Combined Projects Arncliffe to pay out the Site identification Fee, rather than any pre-existing deal that Jamil entered into with Mr Kanj or Mr Zafiropoulos. In this regard, the Deiri Parties say that whether or not Jamil in fact entered into such an arrangement, and on what terms, is immaterial to the Deiri Parties' case; rather, that all that matters is that Jamil had authority to agree or assent on behalf of Sayour Holdings to the payment, and that he did so. 4. Similarly, the Deiri Parties say that the assent given at the meeting was binding among all of the shareholders and Combined Projects Arncliffe, and it is not necessary to identify a distinct contract to the effect of that agreed. They say that it is not necessary, for example, to ask whether there was consideration as between Jamil and Mr Deiri for the asset to the making of the payment and that all that is required is that the shareholders assent to some matter which at a general meeting of the company they could carry into effect. 5. More particularly, the Deiri Parties accept that the meeting was obviously an informal one, but they say, analysed in formal terms, what occurred was that the shareholders acting unanimously in a general meeting resolved that Combined Projects Arncliffe: would pay the difference between the valuation and the purchase price of the Arncliffe Site ($14.4 million) to two people having the following identifying characteristics (they "had done business" with Jamil "in the past"; they were people to whom Jamil had agreed to pay a fee for introducing him to the site; and the amount that they had been promised was the difference between the valuation and the purchase price); and would pay Mr Deiri's company a management fee of around 7% based on total costs. 6. It is submitted that it was incumbent on Mr Deiri to give effect to the shareholder resolution as best he could. It is said that, as events transpired, Mr Zafiropoulos and Mr Kanj presented themselves to Mr Deiri and identified themselves as people having the identifying characteristics set out above. It is noted that no-one else did this (or has done this in the five years since this meeting occurred). It is submitted that, it was entirely appropriate (and, it is said, necessary, given the binding nature of a unanimous shareholder resolution) for Mr Deiri to cause Combined Projects Arncliffe to make the payments in these circumstances. 7. It is submitted that the position is no different than if the shareholders had passed a written resolution requiring Combined Projects Arncliffe to pay $10 million to a particular unnamed charity having certain identifying characteristics. It is said that the directors would undoubtedly be required to make payment once that charity, or one that appeared to the directors to have the relevant identifying characteristics, had been identified. 8. As to the (said to be new) submission by the Sayour Parties that Mr Deiri "undertook zero proper investigations" as to the identity of the people to whom Jamil had agreed to pay a Site Identification Fee, the Deiri Parties say that the difficulty with this argument is that it is not pleaded. It is noted that the amended statement of First Broadway Cross-claim contains no mention of investigations in this connection. The Deiri Parties say that the extent to which Mr Deiri did or should have taken steps to verify that Mr Kanj and Mr Zafiropoulos were the people that Jamil had spoken of at the meeting of 30 September 2015 formed no part of the Sayour Parties' pleaded case. 9. Rather, they say, the case that has been pleaded, and run, has always been simply that the 30 September 2015 conversation between Mr Deiri and Sayour did not happen or, if it did, that it did not happen in the terms that Mr Deiri has recounted. It is said that there has been no alternative case to the effect that, assuming the conversation did occur in the way that Mr Deiri recalls, he ought to have taken different or further investigatory steps in giving effect to the agreement reached that day between him and Jamil. 10. I interpose to add that, to my mind, another such difficulty with that argument put for the Sayour Parties is that the relief they here seek is, in effect, recovery of the payment for their own benefit – not for payment to some other party to which the payment is properly due. Having said this, in light of my ultimate disposition in relation to this finding, nothing ultimately turns on this observation. 11. In these circumstances, it is said for the Deiri Parties that it is not open to the Sayour Parties now to allege (or for there to be a finding) that the payment of the Site Identification Fee was invalid by reason of a failure on Mr Deiri's part to undertake proper investigations. It is accepted by the Deiri Parties that, the Sayour Parties plead that "… [i]n the premises, in causing the said payment … Mr Deiri failed to exercise his powers and discharge his duties as an officer of [Combined Projects] Arncliffe with that degree of care and diligence that a reasonable director of Combined Projects] Arncliffe would exercise". 12. However, the Deiri Parties say that the critical words here are "[i]n the premises", which direct attention to the preceding paragraphs, in which (it is said) there is no suggestion that Mr Deiri should have carried out, and failed to carry out, proper investigations before making the impugned payments. The Deiri Parties say that the Sayour Parties must be held to their pleaded case. 13. In any event, the Deiri Parties say that, even if a proper investigations case can now be run and even if Mr Deiri did fail to take proper investigations, the Sayour Parties' case fails at the causation stage. It is submitted that, in determining the loss suffered by reason of the asserted breach, regard must be had to the counterfactual scenario: what would have happened but for the breach? It is said that here, in all the years since 30 September 2015, no-one else has come forward claiming to be the persons that Jamil spoke of at the meeting with Mr Deiri. It is said that at some point, after any amount of investigations on Mr Deiri's part, he would have been reasonably justified in coming to the conclusion that the people to whom payment was required to be made was, indeed, Mr Zafiropoulos and Mr Kanj. Thus, it is submitted that Mr Deiri's failure to conduct proper investigations, if it was one, can therefore not have caused any loss. 14. In the alternative that it is found that Jamil did not have authority to act on behalf of Sayour Holdings at the time Combined Projects Arncliffe was incorporated, and Moustafa later became a director of Sayour Holdings on 21 August 2014 when he signed the consent to become a director and company secretary, it is said that the only way for Sayour Holdings to have validly received shares in Combined Projects Arncliffe is if it ratified the conduct of Jamil in purporting to consent to the issue of those shares. It is noted that it was Jamil who applied for the shares in Combined Projects Arncliffe on Sayour Holdings' behalf. 15. Following, the Deiri Parties note that ratification is an election by a person to adopt a transaction purportedly entered into in the name or on his behalf, but not in fact authorised; and that effective ratification is equivalent to antecedent authority, and thus has retrospective effect. It is said that a party wishing to ratify a transaction must adopt it in its entirety but that adoption of a part of a transaction may amount to the ratification of the whole. 16. It is submitted by the Deiri Parties that, upon ratifying Jamil's agreement for Sayour Holdings to become a shareholder in Combined Projects Arncliffe, Moustafa is bound by Jamil's actions vis-à-vis Combined Projects Arncliffe as a whole. It is said that it is not open to Moustafa to act selectively (ratifying the parts he likes, and abjuring the parts he dislikes, so to speak) so as to create for himself a better deal than was ever actually reached between the parties. Accordingly, it is submitted that Moustafa actions have the necessary effect of ratifying all of Jamil's conduct in relation to Combined Projects Arncliffe, including those of 30 September 2015. Sayour Parties' submissions 1. The Sayour Parties submit that the primary reason why there should not be a finding that proper assent was given by the shareholders of Combined Projects Arncliffe to the payment of $14.4 million plus GST to Konstructions and Zapphire is because the varying accounts of that meeting proffered by Mr Deiri are mutually inconsistent and fundamentally implausible. 2. It is said that the Deiri Parties' attempts to rely on the Duomatic principle merely emphasise the implausibility of Mr Deiri's "story". It is said that this principle also cannot assist the Deiri parties in the Arncliffe Proceedings. 3. Insofar as it is submitted on Mr Deiri's behalf that Mr Deiri considers company constitutions to be mere formalities and pro forma documents (and that this should not be held against him) and that his focus was on getting the job done (rather than any formalities or technicalities), it is suggested that this is inconsistent with the reliance also placed by Mr Deiri on the Duomatic principle. In any event, the Sayour Parties say that the submission that whatever was agreed between Mr Deiri and Jamil in the deathbed conversation was "binding among all of the shareholders and CP Arncliffe", and that "it was this shareholder meeting alone that imposed an obligation on [Combined Projects] Arncliffe to pay out the site identification fee" (and that, once the deathbed meeting had concluded "it became incumbent on Mr Deiri to give effect to the shareholder resolution as best he could"), defies the practical realities of Combined Projects Arncliffe's position. The Sayour Parties ask, once again rhetorically, why Sayour Holdings could not simply have withdrawn from the supposed agreement, when it did not have full information, and ask what was the consideration that bound Sayour Holdings forever (noting that the pleadings do not even allege consideration). 4. It is said that the "absurdity" of the Deiri Parties' Duomatic submissions can be seen from the analogy drawn that if a company's shareholders resolved to pay $10 million to an unnamed charity having certain identifying characteristics, the directors would be bound to pay over that sum to a charity that appeared to have the relevant identifying characteristics. The Sayour Parties say that a bare shareholders' resolution to pay a sum of money to an unidentified person could be withdrawn at any time by a further resolution of shareholders; that there is no contractual obligation to make the payment; and there is no basis on which the unidentified person could claim an enforceable interest in the performance of the resolution. It is said to be a gratuitous undertaking; and only binding (if at all) between the parties themselves such that it could be unwound at any time. 5. Even if there be a finding that the "deathbed conversation" occurred, and that it gave rise to a Duomatic agreement between the shareholders of Combined Projects Arncliffe, and that the terms of that agreement are sufficiently definite to be enforced despite the varying and inconsistent accounts of the agreement given by Mr Deiri in the course of these proceedings (i.e. whether it was an agreement that Mr Zafiropoulos be paid, or merely an agreement that "some people" who would later identify themselves be paid), it is said that there is no basis for a finding that this agreement was one that could not be entirely unwound by Combined Projects Arncliffe's shareholders. I interpose to note that I agree, and will return to this in due course. 6. It is noted that, in the case of Combined Projects Arncliffe, the director charged with enforcing the resolution (Mr Deiri) was the sole controller of one of the 50% shareholders in the company. It is said that there was nothing preventing Mr Deiri from approaching the other shareholder (Sayour Holdings) to discuss revocation or amendment of the resolution, and no explanation why he elected not to do so. 7. In other words, it is said that, after Jamil's death, all that Mr Deiri needed in order to terminate Combined Projects Arncliffe's supposed obligation to make the payment was the consent of Moustafa, as the sole surviving director and shareholder of Sayour Holdings but, instead, he chose to keep the "supposed agreement" and the "supposed obligation secret" from his fellow shareholder. 8. The Sayour Parties say that the Deiri Parties' submission that the Duomatic principle means that Combined Projects Arncliffe was effectively fixed with an unavoidable obligation to pay a site fee to "any person who popped his head up and claimed the fee" defies common sense and practical reality and is not legally sound (since the alleged resolution to make the payment could (by operation of the same Duomatic principle) be withdrawn or revoked at any time by further resolution of Sayour Holdings and Deiri Nominees). Again, I note that I agree with this submission. 9. Indeed, it is said that any such resolution (if it ever happened at all) could be withdrawn unilaterally by Sayour Holdings because it had been entered into by an unauthorised person without full information and consent, sacrificing the interests of Sayour Holdings. 10. The Sayour Parties also say that they have sufficiently pleaded a failure by Mr Deiri to undertake due investigations before causing the payments to be made. It is alleged that Mr Deiri had no belief in the alleged liabilities and that a reasonable person of business could not have believed in them. Further, it is said that Mr Deiri's failure to conduct any investigation in relation to the performance or enforceability of the site fee obligation (in circumstances where he now complains he was the "victim" of this obligation) goes directly to the credibility of his account. 11. The Sayour Parties say that it was not just Mr Deiri's duty as a director of Combined Projects Arncliffe to determine whether Combined Projects Arncliffe was subject to a legitimate obligation to make the payments; it was the only sensible thing for a practical businessman to do. 12. It is noted that it is pleaded by Combined Projects Arncliffe that, when Mr Deiri caused Combined Projects Arncliffe to make the payments to Konstructions and Zapphire, he did not believe that Combined Projects Arncliffe was obliged to make those payments or that it was in Combined Projects Arncliffe's interest to do so; and, further or in the alternative, a reasonable person of business would not have believed that Combined Projects Arncliffe was obliged to make those payments, or that it was in its interests to do so (see amended statement of first cross-claim at [144]-[147]); and that, in the premises, in causing Combined Projects Arncliffe to make those payments, Mr Deiri failed to discharge his duties with due care and diligence (see amended statement of first cross-claim at [166] and [174]). 13. In other words, the Sayour Parties say that it is squarely pleaded that Mr Deiri breached his duties in causing Combined Projects Arncliffe to make the site fee payments insofar as he did not hold a genuine belief that the payment ought to be made or, alternatively, no reasonable person in his position would have held such a belief. 14. It is said that it is entirely proper for the Sayour Parties, in support of these pleadings, to point not only to Mr Deiri's failure to conduct an investigation as to the identity of the people that Jamil "had done a deal with"; but also to his affirmative decision to withhold information about the supposed oral shareholders' resolution from his fellow shareholder (Sayour Holdings) when it was obviously contrary to the interests of Combined Projects Arncliffe and its shareholders that this information be disclosed. Determination as to factual finding #7 1. As adverted to above, I agree with the submission of the Sayour Parties that the accounts of the "deathbed conversation" are, at least to some extent, contradictory or inconsistent, such that I cannot be satisfied as to what precisely was discussed and agreed. This difficulty intrudes here in relation to Re Duomatic. 2. Furthermore, I agree that it is not the case that the "deathbed conversation", even if (which I do not accept – see below) this constituted unanimous assent of shareholders, would have amounted to an irrevocable resolution such that Mr Deiri was thereafter under some binding agreement between shareholders to pay site identification fees to unidentified people. As the Sayour Parties point out, it would have been open to Mr Deiri simply to put forward another resolution to amend the "deathbed resolution. Mr Deiri did not even make these matters known to Moustafa, nor is there any explanation as to why he chose not to approach Moustafa to discuss revocation or amendment of the purported resolution. 3. I consider it inconsistent with Mr Deiri's duties as a director to the company not to have sought at the very least to consider whether there was a binding obligation, or whether the company could properly have avoided the purported obligation before paying out these not unsubstantial amounts, (particularly when they were raised at a time after the concerns as to disruption to the development had passed). 4. In any event, I do not accept that this was a shareholder meeting as such and I do not accept that it was incumbent on Mr Deiri to give effect to "the shareholder resolution" as best he could. I do not accept that there was a binding arrangement of any kind and I consider that it beggars belief that it could have been thought to be in the company's best interest to agree to such an amorphous arrangement. Having said that, it was clear in cross-examination that Mr Deiri was genuinely affected by emotion when he gave evidence of this meeting and I accept that he may well have felt a moral obligation to honour Jamil's deathbed wishes. Nevertheless, what I do not accept is that he (or the company) was legally bound to do so. 5. Again, I accept the Sayour Parties' submission that a bare shareholders' resolution to pay a sum of money to an unidentified person could be withdrawn at any time by a further resolution of shareholders; that there is no contractual obligation to make the payment, and that there is no basis on which the unidentified person could claim an enforceable interest in the performance of the resolution. I accept that it is no more than, at best, a gratuitous understanding as between Jamil and Mr Deiri and that it could have been unwound at any time. Further, while I accept that Jamil was left with ostensible authority to manage the Arncliffe project, (which must follow from Moustafa's apparent lack of knowledge of its day-to-day activities and his seeming understanding at the outset that it was Jamil's project) at least from the time that Moustafa signed the consent forms for Sayour Holdings I consider that his assent was required for a binding commitment of this kind to have been concluded. Summary of the various Arncliffe Cross-claims 1. As noted above, there are three cross-claims in the Arncliffe Proceedings: first, a claim by Sayour Holdings (in the name of Combined Projects Arncliffe) in relation to a series of impugned payments; second, a restitutionary claim by the Deicorp Entities; and third, a claim by the Deiri Parties, seemingly premised on a finding inconsistent with the Arncliffe factual finding #1 and #2 for which they contend, that Moustafa did not consent to become a director or shareholder of Sayour Holdings and hence that Sayour Holdings was never a member of Combined Projects Arncliffe. 2. I now consider each of the cross-claims in turn. First Arncliffe Cross-claim 1. As has been noted, the amended first cross-claim in in the Arncliffe Proceedings was filed by Sayour Holdings as trustee for the Sayour Family 2 Trust, on behalf of Combined Projects Arncliffe as cross-claimant. 2. Sayour Holdings says that the relief sought under the First Arncliffe Cross-claim arises from its investigations into the affairs of Combined Projects Arncliffe, and the progress of the Arncliffe Development, as a result of production of documentary materials to Sayour Holdings pursuant to orders made by this Court for the production of documents, and earlier orders. As noted above, I gave leave for the bringing of a derivative suit in the name of Combined Projects Arncliffe. When initially commenced, however, Sayour Holdings' primary claim was a claim under s 247A of the Corporations Act for access to Combined Projects Arncliffe's documents. 3. On 21 November 2018, Sayour Holdings filed and served pleadings upon which it now moves, namely: a fourth further amended originating process (filed 10 December 2018); and a second further amended points of claim (filed 10 December 2018). The principal claim being an oppression suit by Sayour Holdings as a member of Combined Projects Arncliffe. 4. In that context various declaratory relief is sought, which I will consider in the context of the Third Arncliffe Cross-claim that has since been filed by the Deiri Parties since they raise not dissimilar issues (see below). 5. At this juncture, it is relevant to record that Sayour Holdings pleaded that it has been a 50% shareholder in Combined Projects Arncliffe since the date of Combined Projects Arncliffe's incorporation. This pleading is repeated in identical terms in the second further amended points of claim. The Deiri Parties admitted that allegation in their defences to Sayour Holdings' original points of claim, and in their defences to the second further amended points of claim. The Sayour Parties point out that those admissions (that Sayour Holdings has at all times been a 50% shareholder in Combined Projects Arncliffe) are now contradicted by the Deiri Parties' pleadings in their respective defences to the First Arncliffe Cross-claim which were served in July 2019. This appears to be the first time that the Deiri Parties had disputed that Sayour Holdings was a shareholder in Combined Projects Arncliffe. 6. The relief sought by Sayour Holdings under the fourth further amended originating process and the second further amended points of claim relates, in general terms, to three broad subject areas. 7. First, by prayers 1A and 1B, declarations are sought (the No Directors Declarations): that Combined Projects Arncliffe has not adopted a constitution; that its affairs are governed by the replaceable rules under the Corporations Act; and that it has no directors. 8. Second, there are prayers for declarations and appropriate relief in relation to the constitution of Combined Projects Arncliffe, and the composition of its board of directors (the Constitutional Relief). In particular, by prayer 1C, orders are sought appointing as directors of Combined Projects Arncliffe: Yesmine (a director of Sayour Holdings); a nominee of Deiri Nominees; and an independent third director. By prayer 1D, an order is sought appointing an independent person as chair of Combined Projects Arncliffe's board of directors and its general meetings (noting that the reference to "paragraph 1C" in prayer 1D ought be to read as "paragraph 1C(c)"). By prayer 1E, an order is sought amending the constitution of Combined Projects Arncliffe to provide for a board of three persons, comprising a representative of each of Sayour Holdings and Deiri Nominees, and an independent chair. 9. Third, prayers 6, 6A, 7, 7A, 7B and 8 are prayers for appropriate relief in relation to the payment by Combined Projects Arncliffe of any dividend or distribution to its shareholders (the Dividend and Distribution Orders). 10. On 28 February 2019, Parker J made an order by consent of the parties, until further order and on a without admissions basis, that had substantially the effect of prayer 7 of the fourth further amended originating process (namely, that Combined Projects Arncliffe was enjoined from making certain payments without prior notice to Sayour Holdings). 11. It is submitted that the Constitutional Relief and the Dividend and Distribution Orders will have utility if it is held that, as pleaded by Sayour Holdings in the First Arncliffe Cross-claim, Mr Deiri has breached his fiduciary duties to Combined Projects Arncliffe and if corresponding orders for equitable compensation or damages are made in favour of Combined Projects Arncliffe. 12. Sayour Holdings submits that, if moneys are to be returned to Combined Projects Arncliffe as a consequence of the First Arncliffe Cross-claim, then an appropriate governance regime for Combined Projects Arncliffe along the lines of the Constitutional Relief and the Dividend and Distribution Orders ought to be implemented so as to ensure that any such moneys are dealt with appropriately. Given such findings, which are relied on by Sayour Holdings as oppression, it is said that it would be an essential protection for Sayour Holdings that Mr Deiri not be left in effective control of the company's assets. 13. By the prayers for the No Director Declarations under the fourth further amended originating process, Sayour Holdings seeks a declaration that Mr Deiri was never properly appointed as a director of Combined Projects Arncliffe. In particular, it is pleaded that Mr Deiri was not properly appointed to hold the office of director or secretary of Combined Projects Arncliffe. 14. It is submitted that Mr Deiri's invalid appointment to these offices ought not be treated as a mere procedural irregularity, capable of simple cure. It is said that Sayour Holdings, and the trusts for which it is trustee or constructive trustee, would be materially prejudiced by confirmation of Mr Deiri's appointment as the sole director and sole effective controller of Combined Projects Arncliffe, or by ratification of his past acts taken under his purported authority as the properly appointed sole director of Combined Projects Arncliffe. 15. It is said to be common ground among Sayour Holdings and the Deiri Parties that Mr Deiri has, at all times since the incorporation of Combined Projects Arncliffe on 29 January 2014, acted as its director and company secretary. 16. Sayour Holdings submits that, even if Mr Deiri was never properly appointed as a director of Combined Projects Arncliffe, he nonetheless owed the company fiduciary duties at all relevant times. It is noted that a person will be found to be in a fiduciary relationship with another when, and in so far as, that person has undertaken to perform a function for, or has assumed a responsibility to, another as would thereby reasonably entitle that other to expect that he or she will act in that other's interests to the exclusion of his or her own or a third party's interest (see, by way of example, Hospital Products at 96-97 per Mason J, as his Honour then was). It is said that, regardless of the invalidity of his appointment, Mr Deiri has clearly acted at all times as a director and as an acting director owes the same fiduciary and officers' statutory duties as a director would owe. 17. It is said that the fiduciary duties that Mr Deiri owed at all relevant times, and continues to owe, to Combined Projects Arncliffe include duties to protect Combined Projects Arncliffe, and to subordinate his own interests to those of Combined Projects Arncliffe and to obtain the fully informed consent of Combined Projects Arncliffe in relation to transactions in which he has a personal interest. 18. It is convenient here first to outline some initial, general observations by way of submissions by the Deiri Parties. Deiri Parties' position generally 1. The Deiri Parties commence their closing submissions by addressing what consequences (it is said) flow in the event that it is found that Moustafa did not agree to become a director and shareholder of Sayour Holdings on 16 December 2013. This is in the context that the factual finding they seek is that Moustafa did consent to this on 16 December 2013. 2. I interpose to note that I have found that Moustafa did consent to this on 16 December 2013 (see my determination above) and so it unnecessary here to adumbrate the Deiri Parties' (alternative) submissions, in this regard. 3. Nevertheless, it must here by noted that the consequence of my factual finding is that Sayour Holdings is (and was) not, to use the expression deployed by the Deiri Parties, a "lame duck"). That is, based on my factual finding, from the time that Sayour Holdings was incorporated, Moustafa was validly appointed a director or member of Sayour Holdings; and, thereby, Sayour Holdings did have at least one member (see ss 114 and s 461(1)(d) of the Corporations Act). Likewise, Sayour Holdings did have at least one director (see s 201A(1) of the Corporations Act). Again, it follows that Sayour Holdings was not incorporated as a "lame duck" and it does not follow that Sayour Holdings has never validly taken any action at all, and the Deiri Parties' contention that it never became a shareholder of Combined Projects Arncliffe (and, thereby, that the Sayour Parties' claims in the Arncliffe proceedings must fail, predicated as they are upon Sayour Holdings being a shareholder of Combined Projects Arncliffe) fails. 4. Following, the analysis on which they are predicated having failed, this means that the following dispositions sought by the Deiri Parties on this analysis also fail: first, pursuant to s 175 of the Corporations Act or the inherent jurisdiction of the Court, that the register kept by Sayour Holdings be corrected by removing Moustafa and Jamil as members; second, pursuant to s 1322(4)(b) of the Corporations Act or the inherent jurisdiction of the Court, that the register kept by ASIC in respect of Sayour Holdings be rectified, by removing the records of Moustafa and Jamil as members, and by removing the records of Moustafa, Jamil and Yesmine Sayour as ever having been a director or company secretary of Sayour Holdings; third, that leave to bring the First Arncliffe Cross-claim should be revoked nunc pro tunc; fourth, that Sayour Holdings was never a valid shareholder in Combined Projects Arncliffe, because when Combined Projects Arncliffe was incorporated in January 2014, Jamil was not authorised on behalf of Sayour Holdings to consent to the receipt of shares in Combined Projects Arncliffe. 5. Again, that analysis fails and this proceeding, or at least this aspect of it, cannot be determined in that way. 6. Likewise, and as has been adverted to above, another consequence of my factual finding is that the so-called "ratification" analysis does not arise (i.e., the contention put by the Deiri Parties that the Sayour Parties cannot "pick and choose" among Jamil's actions and it must instead accept his purported acts on behalf of Sayour Holdings as a whole). 7. It is also convenient to consider and to determine, at the outset, several allegations made of dishonesty. Allegations of dishonesty 1. Zapphire says that central to the claim against it for moneys had and received (whether as a volunteer or as a trustee for knowing receipt) are the allegations that: Jamil found the Arncliffe Site and that Mr Zafiropoulos did not identify the Arncliffe Site to Jamil; there was never any agreement or deal made between Jamil and Mr Zafiropoulus for the payment of any such site identification fee; and, therefore, Zapphire was not entitled to receive the payments for site identification or for any other reason; Zapphire knew that it was not entitled to receive any such payments; and Zapphire received those payments with knowledge that the payment was made in in contravention of Mr Deiri's fiduciary obligations to Combined Projects Arncliffe. 2. Zapphire notes that this gives rise to the following factual issues: whether Jamil found the Arncliffe Site through his contact with an employee of Purnell Motors or Mr Dale; if not, whether Mr Zafiropoulos introduced the Arncliffe Site to Jamil; and whether or not agreement was reached for a fee to be paid following completion of the development, calculated as 50% the difference between the purchase price and the value of the property with development consent. 3. Similarly, Konstructions complains that, although allegations of dishonesty have been raised in the course of argument by the Sayour Parties, no pleaded claim of fraud or dishonesty has been advanced against it. Rather, the cross-claim against Konstructions is for moneys had and received, it being contended that Konstructions received moneys to which it had no legitimate entitlement. 4. Complaint is made that, given the nature of the allegations advanced in the submissions against Mr Deiri, Mr Vamvakaris and Mr Kanj, obligations of procedural fairness were not met during trial (whether by way of a failure to plead the case, a failure to open the case on that issue, a failure to serve a tendency or coincidence notice, despite the Sayour Parties being put on notice of the need for notices by the objections of Konstructions). 5. Konstructions notes the (circumscribed, following its successful objection thereto) line of cross-examination on 9 December 2019. It says that, insofar as the allegation has been effectively revived in final address, this is impermissible. Konstructions points to the obligation of procedural fairness to challenge the evidence of a witness so that the witness may be given the opportunity of providing an answer to the proposition. While accepting that the rule is not an absolute one, Konstructions says that, in the present case, there is no basis to excuse the failure to challenge the witnesses in this case. Determination re allegations of dishonesty 1. I here refer to my previous observations as to the evidence of Mr Zafiropoulos, Mr Kanj and others. 2. In particular, I note that I make no findings of dishonesty against Mr Zafiropoulos or Mr Kanj and so, to a very large extent, the complaints adumbrated above fall away. 3. In that connection, I note that a claim for moneys had and received and/or knowing receipt can, in my opinion, succeed without there needing to be any positive findings of dishonesty (contra knowledge – see, particularly, Farah Constructions) on the part of a party and/or a witness (and, so putting aside whether such an allegation of dishonesty was adequately pleaded or otherwise, I consider that Mr Zafiropoulos and/or Mr Kanj were adequately put on notice of the case that they are here required to meet). Impugned payments and some of the relevant evidence 1. As may be observed then, several payments made by Combined Projects Arncliffe are impugned under the First Arncliffe Cross-claim, as follows. 2. First, the payment of sums described (at least initially, in the case of the payment to Konstructions) as "site identification fees", namely the payments of to Konstructions (which I refer to below as the Konstructions Fee) and to Zapphire (which I refer to below as the Zapphire Fee); and the related payments to Deiri Nominees on account of a "development management fee" (which I refer to below as the Development Management Fee). 3. I note that Konstructions no longer suggests that the payment to it was for a site identification fee; rather, it now characterises the payment as, in effect, compensation for Jamil having chosen not to proceed with the Arncliffe Development in a joint venture of some kind with Mr Kanj or his company (as will be recalled, Konstructions) and having proceeded instead with Mr Deiri's company. 4. Second, the payment of about $5.3 million on 28 February 2018 to Deiri Nominees in repayment of interest on loans allegedly made to Combined Projects Arncliffe by or on behalf of Deiri Nominees. 5. Third, the payment of $1.56 million to Jamil on about 24 November 2014. 6. Fourth, the payment of $753,709 to Deicorp Properties in 2018 as commissions on sales of lots in the Arncliffe Development, and of $5,967,271.69 in commissions on sales of lots to Aust Sunshine Marketing Pty Ltd trading as Home789 (Home789). 7. I interpose to note that Home789 is not joined as a defendant; rather, the claim is that the Home789 commissions were uncommercial and excessive, and that Mr Deiri breached his fiduciary and statutory duties in authorising these payments. 8. Fifth, the payment by of about $3.6 million to Deicorp Constructions on account of purported "extra over amounts" (plus a 15% uplift and GST) claimed by Deicorp Constructions under the final progress claim issued under the construction contract for the Arncliffe Development (that being PC 24 – see the above chronology). 9. As adverted to, Sayour Holdings (in the name of Combined Projects Arncliffe) claims, inter alia, that: those moneys are moneys had and received to the use of Combined Projects Arncliffe and that those moneys received by each of Deiri Nominees, Konstructions, Zapphire, Deicorp Properties and Deicorp Constructions were received and held by those persons on resulting or constructive trust for Combined Projects Arncliffe. 10. It further claims that Mr Deiri acted contrary to his fiduciary duties and also his statutory duties under the Corporations Act as an officer of Combined Projects Arncliffe in causing those payments to be made, and that Combined Projects Arncliffe is thus entitled to a taking of accounts, or equitable compensation or compensation under s 1317H of the Corporations Act from Mr Deiri in respect of the losses suffered by Combined Projects Arncliffe as a result of his breaches of duties. Again, claims are also made against the recipients for knowing receipt or knowing involvement in the alleged breaches. 11. For the avoidance of doubt, I here note that it is common ground between Sayour Holdings and the primary defendants (i.e., the Deiri interests) that Combined Projects Arncliffe was incorporated for the purpose of undertaking the development of the Arncliffe Site; and that Mr Deiri has at all material times acted as a director and the company secretary of Combined Projects Arncliffe (albeit that whether he was properly appointed as a director is a matter of contention), been the sole director and company secretary of Deiri Nominees, been the registered and beneficial holder of all of the share capital of Deiri Nominees and held himself out as the sole director of Combined Projects Arncliffe (and as having had effective control of Combined Projects Arncliffe). 12. It further appears to be common ground that, on about 27 April 2015, Combined Projects Arncliffe entered into the Arncliffe Construction Contract with Deicorp Constructions in relation to the construction and development of the Arncliffe Development, and that Mr Deiri is the sole director of Deicorp Constructions. 13. As noted earlier, the Arncliffe Development is now complete. Sayour Holdings says that Combined Projects Arncliffe's sole purpose has now been achieved, save for final accounts and the distribution of its profits to its shareholders. 14. I note at this point that the claim made by prayer 29 of the First Arncliffe Cross-claim (relating to settlement allowances in the aggregate amount of $929,375.00 made by Combined Projects Arncliffe to purchasers of lots in the Arncliffe Development) is not pressed, and nor are [315]-[318] of the First Arncliffe Cross-claim. 15. I turn then to each of the impugned payments. Development Management Fee and Site Identification Fees 1. It is convenient first to consider the Development Management Fee. Development Management Fee 1. Prayers 1 to 9 of the relief claimed under the First Arncliffe Cross-claim relate to payments made by Combined Projects Arncliffe pursuant to the Development Management Agreement (the validity of which is disputed) between Combined Projects Arncliffe and Deiri Nominees. 2. More particularly, Sayour Holdings claims that the Development Management Agreement was not a bona fide agreement (and the impugned payments were not made pursuant to any genuine debt or contractual obligation on the part of Combined Projects Arncliffe) and that Combined Projects Arncliffe obtained no genuine commercial or other benefit from the making of the impugned payments (and the making of the impugned payments was not in Combined Projects Arncliffe's best interest). 3. Furthermore, Sayour Holdings complains that Mr Deiri did not obtain the fully informed consent of either Combined Projects Arncliffe or Sayour Holdings prior to causing Combined Projects Arncliffe to make the impugned payments, and nor did he obtain any independent advice regarding the propriety of the payments; that Mr Deiri had no proper purpose in causing Combined Projects Arncliffe to pay the Development Management Fee (and, I note, the same is said in relation to the Konstructions Fee and Zapphire Fee); and that the payment of those fees depleted the asset pool of Combined Projects Arncliffe to the detriment of Sayour Holdings and to the benefit of Mr Deiri and Deiri Nominees. It contends that Mr Deiri breached his fiduciary duties (the profit and conflict rules) to Combined Projects Arncliffe in making the impugned payments, and that Combined Projects Arncliffe suffered loss as a consequence of that breach of duty in the amount of the impugned payments. 4. Sayour Holdings (in the name of Combined Projects Arncliffe) seeks: an account of profits and recovery from Deiri Nominees of the amount of the Development Management Fee, or in the alternative equitable compensation or an order for compensation under s 1317H of the Corporations Act (and again, I note, corresponding orders from each of Zapphire and Konstructions on account of the Konstructions Fee and the Zapphire Fee, respectively). 5. I interpose to note that, In the principal claim, Sayour Holdings also complains that Mr Deiri's conduct in causing Combined Projects Arncliffe to make the impugned payments was oppressive, unfairly prejudicial to and discriminatory against Sayour Holdings (as to which, see further below). 6. Insofar as the Deiri Parties have submitted that Mr Deiri had given three explanations as to why he made payments to Konstructions and to Zapphire (and have criticised the Sayour Parties as only cross-examining Mr Deiri with respect to one such explanation), the Sayour Parties say that there was only one explanation and, in effect, that the so-called three reasons amount to one: that this was as a result of a caveat being placed on the Arncliffe Property. It is said that the cross-examination appropriately and squarely put this to Mr Deiri, and he agreed with that characterisation (see particularly at T 1068.6-15). The Sayour Parties say that the three reasons cannot be "simply disentangled" from each other. Determination re Development Management Fee 1. At the outset, I record that I harbour, principally in light of the factual matters identified above, serious doubt concerning the circumstances in which the purported Development Management Fee was fixed and ultimately paid. 2. In particular, I am of the view that the totality of the evidence points to the conclusion that, whatever Jamil may have said to Mr Deiri, there was not an immediate binding agreement in terms of what was subsequently documented by Mr Deiri, the Development Management Agreement. Hence I cannot accept that the impugned payments were made in satisfaction of any genuine obligation or debt, nor can I accept (at least in that sense) that there was thus a proper purpose for doing so. 3. That aside, I also find that Mr Deiri did not obtain the fully informed consent of either Combined Projects Arncliffe or Sayour Holdings prior to causing Combined Projects Arncliffe to make the impugned payments. It seems that he also did not obtain independent advice regarding the propriety of the payments (though, this in itself would not, to my mind, be dispositive). 4. I accept also that the payment necessarily depleted the asset pool of Combined Projects Arncliffe to the detriment of Sayour Holdings and, given the group nature of his interests, to the benefit of Mr Deiri (and, indeed, Deiri Nominees). 5. Accordingly, I find that this was a contravention of Mr Deiri's fiduciary duties (the profit and conflict rules) to Combined Projects Arncliffe, by which Combined Projects Arncliffe has suffered loss. 6. It follows that this sum is recoverable from Deiri Nominees. 7. Next, it is convenient to consider the payment made to Konstructions (and see prayers 10 to 13). Konstructions Fee 1. It is convenient first to adumbrate the submissions for Konstructions. Konstructions' submissions 1. Konstructions broadly adopted a number of submissions advanced by other cross-defendants on issues such as: whether the Sayour Parties have standing to bring a derivative suit against any of the cross-defendants; whether, in arranging the payment to Konstructions there has been a breach of fiduciary duty by Mr Deiri; whether Konstructions was aware of the breach of fiduciary duty in the making of the payments; and whether Jamil had the authority of Sayour Holdings to come to the arrangements he did with Konstructions and to direct Mr Deiri to make the payments. 2. In relation to the Konstructions Fee, Konstructions' position (relying on the affidavit of Mr Kanj sworn on 20 September 2019) is that the invoice provided by it in about March 2018 to Combined Properties Arncliffe reflected an amount to be paid as agreed in late 2013 between Mr Kanj and Jamil; and that the sum was to be paid on completion of the Arncliffe Development. It is said that, at the time of Mr Kanj's involvement in mid-late 2013, Jamil had sought assistance from Mr Kanj with respect to the Arncliffe Site and had been planning the further development with Mr Kanj. It is Konstructions' case that Jamil changed his plans and entered into arrangements with Mr Deiri to develop the site, thus excluding Mr Kanj from further involvement with consequent loss of income and chance of substantial profit; and that an agreement was reached whereby Mr Kanj would be paid a sum of money at the conclusion of the development. 3. Konstructions points to Mr Deiri's evidence that he was told of the existence of the agreement by Jamil and that Mr Deiri resolved to honour the agreement. Konstructions says that it is irrelevant that it was only incorporated as a company after the agreement between Mr Kanj and Jamil was reached. It says that the payment of the moneys to Konstructions amounted to satisfaction of the amount owed to Mr Kanj. 4. As to the amendment of the defence by Konstructions, it is noted that the original defence was filed on 19 July 2019; that, at a directions hearing on 7 August 2019, complaint was made by Combined Projects Arncliffe that the current defence was inadequate; that leave was granted on 22 August 2019 to file an amended defence; and that that amended defence was filed on 29 August 2019 and set out the position asserted by Mr Kanj and which is consistent with his evidence. Konstructions says that the amendment does not amount to a change of case but, rather, the correction of a potential misunderstanding and the articulation of the proper defensive position. It says that no criticism should be made of it for the terms of the amendment of the defence. 5. Mr Kanj (now, as opposed to when he issued an invoice to that effect) does not suggest that a fee was payable to him for the identification of the site. Konstructions says that other parties have described both payments as "site identification fees" but Konstructions says that this is not a correct characterisation of the work he performed or the basis upon which it was paid. It is noted that Mr Kanj did not recall any contact with any architects or town planners; and that his evidence is that he gave advice and assistance to Jamil primarily on the building side, but would assist with zoning. 6. Konstructions' contention is that there were three agreements between Jamil and Mr Kanj: the request from Jamil to Mr Kanj to assist with preliminary investigations and attend site visits; the agreement with Jamil to coordinate and supervise the construction; and, after Jamil made a decision to proceed with Mr Deiri, the agreement to compensate Mr Kanj at the end of the development of a figure that was half of what he would have been entitled to if Jamil had proceeded with Mr Kanj and Jamil. 7. Insofar as Combined Projects Arncliffe suggests (with, I interpolate to observe, much force) that the making of such an agreement was inherently improbable given the skills of Mr Kanj and the size of the payment, Konstructions says this needs to be carefully considered in the context between the two men concerned. It is said that there were considerable number of subjective factors that did not make such an agreement inherently improbable. In particular, those factors are as follows. 8. First, that it is likely that over time it dawned on Jamil that the development was beyond him and beyond Mr Kanj's capacity. It is said that this unfolding realisation would have taken time to evolve, which it is said explains a substantial period of the nine month delay between telling Moustafa about it and entering into negotiations with Mr Deiri; explains the secrecy surrounding the early investigations; and explains Jamil's accumulation of details that helped him "sell" the proposal to Mr Deiri. It is said that this gave Jamil "a sense of investment" which explains the "initial unrealistic" approach of which Mr Deiri speaks in the earliest negotiations with Jamil about the site. 9. Second, that the two men had become firm friends over a considerable period of time (which was not the subject of challenge) and that Mr Kanj was about to marry Jamil's cousin (also not the subject of challenge) and thus Mr Kanj was on the verge of becoming "family". 10. Third, that, if Moustafa's evidence is to be accepted, then the Arncliffe Development was a development for Jamil's benefit. 11. Fourth, that there were strong cultural influences at work involving "honour" and status with family and "handshake agreements", rather than legal documentation. 12. Fifth, that Jamil had little experience in building work; and Mr Kanj had strong family connections in the building industry; that Mr Deiri was a man Jamil admired; and that Mr Deiri had appointed Mr Kanj as a site foreman on a large and complex construction site (which it is said, to the outside world, must have involved an acknowledgement of skill and expertise and faith in ability). It is submitted that, as Jamil had only been a builder's labourer, it is easy to see that he could over-interpret Mr Kanj's skill and experience and consider him to be a man of greater technical ability than he was; and that this is likely to have been influenced by both the evolving friendship between the two, impending marriage and cultural issues. 13. Konstructions also points to the evidence that Jamil had a habit of entering into transactions that worked against him, that he was imprudent according to his father and would "hurt himself". This feature is said to make it inherently more likely that Jamil he would enter into three agreements that were "not particularly sensible (in an objective sense and with the benefit of hindsight)". 14. A finding is sought that Jamil kept his knowledge of the site secret from his father (except for one very limited conversation), and from Mr Deiri for at least nine months. It is said that this tends to corroborate Mr Kanj's account of the conversation with Jamil and a finding should be made to this effect. 15. Konstructions says that, if Moustafa is correct in his repeated assertions that he was introduced to the Arncliffe Site in 2012 (and, as I have explained above, I consider that this is not established), then it is noted that Jamil did not tell Mr Deiri about the project for about nine months of first finding it. It is said that this supports Mr Kanj's statement that Jamil did not want to proceed with Mr Deiri, and then had a change of mind; and that this evidence supports Mr Kanj's evidence (and that, combined with Jamil having told his father almost nothing about it, gives rise to the obvious inference that Jamil wanted the opportunity of acquiring and developing the site on his own account). Thus, it is said that Jamil's conduct with his father corroborates the account given by Mr Kanj in his statement. Konstructions submits that it is quite clear Mr Kanj had investigated the site before Mr Dale was approached. 16. Konstructions also seeks a finding that Mr Kanj's agreement with Jamil was verbal rather than in writing (something that Konstructions says is not unusual between family members and for which Mr Kanj gave an explanation in his affidavit sworn on 20 September 2019 – see at [40]). 17. Pausing here, I have no difficulty accepting that any agreement reached between the two is one that was likely to be verbal – the difficulty I have is accepting that there was any agreement as contended for by Mr Kanj when there is nothing but his word for it that there was. 18. As to the submissions by Sayour Holdings as to the inherent improbability or implausibility of the existence of the alleged agreements, it is submitted by Konstructions that, having regard to all the aspects of the case, the agreements Mr Kanj alleges were made are not inherently improbable. Further, complaint is made as to the submissions made to the effect that the various explanations given by Mr Deiri and other witnesses are untruthful (and, further, that Mr Kanj "was merely a channel for putting those funds in the hands of a third party" – as to which, Konstructions submits that this is impermissible speculation and that there is no pleading on the point). 19. Again, pausing here, I refer to my above observations in relation to any findings of dishonesty. 20. It is said that, at the time of the agreement, Jamil had (actual and/or ostensible) authority to reach an agreement with Mr Kanj, reliance being placed on Jamil's active business involvement in the Broadway Site as making it apparent that he had authority to deal and make arrangements in relation to Arncliffe and it being submitted that at the time of the agreement with Mr Kanj, Jamil was the only person (or his family interests were) interested in the Arncliffe Site. 21. Otherwise, Konstructions accepts that a person who receives trust property otherwise than a bona fide purchaser for value without notice, but innocently and thereafter acquires notice of the trust and deals with it in a manner inconsistent with the trust, would also be liable as a constructive trustee (noting that this is the not the same as the first limb in Barnes v Addy because it is the subsequent dealing with the property rather than the receipt of it that founds the liability). However, it is said that this is not the situation in the present case. 22. It is said that such an argument cannot arise in circumstance where: a service was rendered by Mr Kanj to Jamil; a fee for service was charged by way of invoice as directed; the invoice was submitted by Konstructions at the direction of Mr Kanj; and payment was effected to Mr Kanj. It is said that, in this case, Mr Kanj believed he had an entitlement to payment (and complaint is made that he was not cross examined on this issue either at the time he rendered the services, submitted the invoice or received payment). It is submitted that Mr Kanj submitted an invoice because he had performed work for Jamil and he had reached an agreement with Jamil to that effect after Jamil proceeded to a partnership with Mr Deiri. It is said that, once payment was effected, the transaction is complete; and that any information that he obtained after that time is not relevant. It is said that, to suggest that Mr Kanj "made up" the account for the purpose of the case is not the relevant question or issue for the purpose of these proceedings; rather, it is his state of mind at the time he rendered the invoice or received payment that is relevant. 23. Further, it is said that any question of the reasonableness of the amount relative to the work that he performed for Jamil is not relevant (since the claimant, by its cross examination, has accepted that such work was performed). This issue is said to affect the question of procedural fairness in the Browne v Dunn sense (as adverted to earlier), because Mr Kanj could have been (but was not) cross examined on his belief at the time of submitting the invoice and at the time of receipt of payment. It is said that Mr Kanj was not challenged on the underlying conversations that he had with Jamil that he says gave rise to any agreement; that the question of the provision of consideration by Mr Kanj was implicitly accepted; and that the suggestion that Mr Kanj took payment as a volunteer is not available in the absence of cross examination on the issue. Thus, Konstructions says that the claimant's onus cannot be discharged. Sayour Parties' submissions 1. Next, it is convenient to consider various submissions for the Sayour Parties, particularly in relation to the evidence of Mr Kanj. 2. It is submitted that Mr Kanj's evidence regarding his receipt of $7.2 million plus GST from Combined Projects Arncliffe cannot be accepted, for at least the following reasons (noting that several of these matters have been traversed above in relation to credibility findings and otherwise). 3. First, that, In cross-examination, Mr Kanj was unable to give a coherent or plausible account of "the most basic things", such as his address or the year in which he became engaged to his wife (as to which, see also my factual findings on credibility above). 4. Second, that Mr Kanj did not even obtain his builder's licence until 2018 and he has never conducted a property development, made a rezoning application or applied to a local council for a development consent (see, for example, T 1274-T 1275), yet (it is said) the premise of his account of his dealings with Jamil in relation to the Arncliffe Development is that Jamil considered Mr Kanj to be somebody that Jamil could "go with" instead of Mr Deiri and Deicorp (see particularly Mr Kanj's affidavit sworn on 20 September 2019 at [27]). 5. Third, that Mr Kanj has "not retained a single piece of paper or documentation" that evidences any of his dealings with Jamil, noting Mr Kanj's evidence that his computer and laptop bag was stolen (see particularly Mr Kanj's affidavit sworn on 20 September 2019 at [42]-[43]). 6. Fourth, that Mr Kanj has not identified any information or thing of value he contributed to Jamil's work on the Arncliffe Development, other than the fact that Jamil could get 200 units on the site, the demolition would be simple, excavation did not look too difficult, and Arncliffe is close to the airport and might be subject to height restrictions (see particularly Mr Kanj's affidavit sworn on 20 September 2019 at [32]). 7. Fifth, it is said the notion that Jamil would agree to pay Mr Kanj $7.2 million plus GST for the work he says he did is "preposterous"; that work amounting, it appears, to about ten site visits for a maximum of two hours each, and assisting Jamil with his "opinions" and "research" (see particularly Mr Kanj's affidavit sworn on 20 September 2019 at [30]). 8. Sixth, that, on the one hand, Mr Kanj says that he trusted Jamil and would not have asked him for any agreement regarding the site fee in writing; but that, on the other, he says that if Jamil had not offered him money he would have been very offended and would have gone and seen a lawyer about what to do about it (see particularly Mr Kanj's affidavit sworn on 20 September 2019 at [40]-[41]). 9. Seventh, it is said that Mr Kanj's chronology does not fit with the evidence of any other witness. For example, it is noted that Mr Dale says that he first met Jamil in October 2013, and that within about two weeks Jamil had introduced him to his "partner", Mr Deiri. Following, it is said the notion that Mr Kanj performed $7.2 million dollars' worth of work for Jamil in that period is "absurd". 10. Those matters aside, it is also submitted that Mr Kanj's use of the proceeds that he received from Combined Projects Arncliffe "tends to indicate that he was merely a channel for putting those funds in the hands of a third party". 11. More particularly, it is noted that Mr Kanj accepted in cross-examination that, upon receiving the site fee, he made two payments of $546,029 and $6.05 million to Pasloc Pty Ltd to acquire "Permaform", which Mr Kanj described as a "structural wall system" or "type of formwork" (see T 1306.38-44); but that Mr Kanj never received any delivery of Permaform (see T 1311.15) while, having received a site fee of $7.2 million plus GST, he paid over $6.5 million for Permaform that is in storage in China, and he did not receive delivery of any of the product (see T 1311). 12. As has been noted above, Mr Kanj expressed surprise to discover that Pasloc Pty Ltd had gone into liquidation, and he expressed an intention to seek legal advice on how to get his money back (see T 1312.4-5). 13. More specifically, the cross-examination proceeded as follows (at T 1310.39 – T 1312.35): Q. You see there's a withdrawal— A. Yep. Q. --not quite a week later on 15 May of $6,050,035. A. Yep. Q. Where did that go? A. That went to the Paslock, I paid, I paid for Permaform through Paslock. Q. Was the earlier payment of 546-- A. Same. Q. --that's for Permaform, is it? A. Yeah, Permaform. Q. How much Permaform did you get for these payments? A. I can't remember off the top of my head, but I bought a fair bit because ‑ I bought a fair— Q. Can't remember-- A. Can't remember off the top of my head, no. Q. Have you sold any? A. No, not yet. Q. You haven't taken delivery, have you? A. No. Q. You haven't received any of the Permaform in your possession? A. No, but I know, I know when I need it, it's there. Q. You know when you need it, it's there? A. Yeah. Q. Who's got it? A. Well, it's in China, so when we - so whenever I need it, they just send it over to me. Q. If we look back at the back of the volume that you've got, you see page 99‑‑ A. Yep. Q. --is that a picture of the Permaform in China? A. No, I think that's a - that's stock they had, but they were just showing me what, what they - what— Q. So that's not your Permaform? A. No. Q. You paid over six and a half million for Permaform that's in China? A. Yep. Q. Is that right? A. Yep. Q. And you haven't received one square metre of that Permaform? A. No, because I got— Q. Now, you actually paid the money to Paslock; is that right? A. Yep, but for - yes. Q. You know that Paslock has gone into liquidation? A. I found out this morning. Q. That must come as a terrible shock? A. I found out this morning. My lawyer broke the news to me and now I'm going to try to seek legal advice on how, how to obtain that money back. Q. You thought you were set up for life? A. Yeah, because I got a legal - I got a written contract with them, but now I've got a - now I've got to see what I'm going to do. Q. You said you've got a written contract with them. Can you turn to page 36. Is that your contract with Paslock? A. Yep. Q. If you keep turning the pages through to page 48, is that the last page of your contract with Paslock? A. Yep. Q. Who did you deal with at Paslock? A. Mr Loccisano. Q. Is his name pronounced "Loccisano"? A. Yeah, Loccisano, Loccisano. Q. You don't know how to pronounce his name; is that the position? A. Well, I was trying to remember it. Well, I called him Peter. Q. You call him Peter? How did you get to meet Peter? A. Through word of mouth. Q. Word of mouth? A. Yep. Q. You thought it would be a good idea to pay Peter's company six and a half million dollars for Permaform in China? … 1. It is submitted that, in sum, "Mr Kanj's story does not pass the credibility test"; that Konstructions had no contractual relationship with Combined Projects Arncliffe; and Jamil had no right to be paid by Combined Projects Arncliffe. 2. It is further said that Konstructions has not even alleged in its pleading that it took the funds without notice that Jamil had no right to the money. 3. It is said that Konstructions' defence is, in effect, the defence of bona fide purchaser for value from a third party (here, Jamil) without notice (i.e., that Jamil was not entitled to the money), but (it is said) that Konstructions "does not get to the first step of pleading a sufficient defence". 4. Aside from Mr Kanj's evidence and related matters, the Sayour Parties also point to various other (purported) discrepancies or incongruities in relation to the impugned site identification fees. 5. It is submitted that there are other discrepancies and incongruities in Mr Deiri's account of how the site identification fee arrangement came to be (again, several of these matters have been traversed above). 6. For example, it is noted that Mr Deiri says that Jamil had no family members with him at the Meriton Serviced Apartments (see T 1009); but it is contended that it is "inherently improbable" that Jamil, dying of cancer and about to fly to the airport and leave Australia for the last time, would abandon (or be abandoned by) all of his family members after having discharged himself from hospital to receive treatment to give him the strength to fly to Europe. 7. It is noted that Jamil left the hospital about 6.00 am, and yet was still at the Meriton Serviced Apartments at 8.20 am with no family support, "Mr Deiri supposedly drives through peak hour traffic, parks the car, gets to the Apartments and finds the room, without let or hindrance, only to then have a 15 minute meeting with his dear friend whom he is seeing for the last time, before leaving". 8. It is submitted that the story has been contrived to fit the meeting between the phone calls in the Telstra records and that it is "nonsense". 9. Furthermore, it is noted that Mr Deiri also gives evidence (see his affidavit sworn on of 16 October 2019 at [101]) that he did not seek legal advice, despite Mr Vamvakaris himself having expressed incredulity to Mr Deiri regarding Jamil's insistence that site fees were payable and despite Mr Deiri being so worried about a possible caveat that "he did not bother to consult one of his lawyers". 10. As to Mr Deiri's postulated justifications for paying the impugned fees, it is said that "it strains credulity" to think that a "tough, experienced businessman" such as Mr Deiri would agree to pay away $14.4 million dollars plus GST to unknown persons, without obtaining legal advice, simply because he "didn't really know what was going on". 11. It is submitted that that Mr Deiri would nonetheless make the payment when, some years later, he found out that the recipient of some $7.2 million plus GST, to be taken out of the profits of his project at Arncliffe, was Mr Kanj (a finishing foreman for Deicorp) is "beyond ridiculous". 12. It is also submitted that Mr Deiri could have easily resisted paying any money to Mr Kanj or Mr Zafiropoulos without threatening the ANZ facility (as to which, see my observations above). It is said, for example, that he could have said that he was in a Court case with a co-shareholder and he would have to clear it with those parties before making any payment. 13. Likewise, it is submitted that Mr Deiri's concern about the effect on other Deicorp entities is not a proper basis for him to cause Combined Projects Arncliffe to pay out some $14 million in site fees without justification, especially after the supposed danger (in relation to a caveat and such) had passed. Determination re Konstructions Fee 1. Again, I here record that I harbour serious doubts concerning the purported basis for this payment. 2. More specifically, I accept the submission for the Sayour Parties that Mr Kanj, and indeed others, have been unable to offer any plausible account as to what he provided in consideration for the quite incredible fee paid to him. Again, it seems that this work amounted to little more than ten or so site visits for a maximum of two hours each, and assisting Jamil with his opinions and research (which, on the evidence, seems to have been elementary at best). I say this notwithstanding that I did not consider that he was being dishonest in his evidence. 3. In this connection, I am troubled at the total paucity of any contemporaneous evidence as to those goods or services which Mr Kanj says he provided, along with Mr Kanj's lack of any relevant and requisite qualifications or expertise. To my mind, each of these matters supports the inescapable conclusion that there was no binding agreement providing any reasonable basis for this payment. 4. As to Mr Deiri's evidence and his interests, I also harbour some doubt, not least given his evidence (again, see his affidavit sworn on of 16 October 2019 at [101]) that he did not seek legal advice, despite Mr Vamvakaris expressing incredulity as to the payment of the site fees and even in circumstances where Mr Deiri says that he was concerned about the possibility of a caveat being lodged. Again, I accept generally the Sayour Parties' submissions in this regard. 5. Given the to my mind astronomical sum, even in the context of such a substantial construction project such as that as here for the assistance Mr Kanj claims to have provided, to my mind, these matters justify serious doubt concerning the propriety of the payment. 6. In short, I see that there is simply no evidence or insufficient evidence, in the totality of the evidence, to satisfy me that this payment was made for any proper purpose or for any proper basis. Accordingly, irrespective of how the claim is conceived, it follows that this aspect of the cross-claim succeeds. As to the issues concerning what Konstructions ultimately did with this money, those would more fully be scrutinised if there were to be the undertaking of an enquiry and taking of account. For present purposes, there should be judgment against Konstructions in accordance with prayer 12 and an order that Mr Deiri is jointly and severally liable to pay equitable compensation for that amount (prayer 13). In those circumstances, I do not see the need for a further enquiry or accounting process (prayer 11), but will hear submissions as to this if the Sayour Parties press it. 7. Finally, it is convenient to consider the fee to Zapphire (and see prayers 14 to 17). Zapphire Fee 1. The Sayour Parties say that there was no deal between Mr Zafiropoulos and Jamil but that, in any event, Jamil did not have any authority to bind Combined Projects Arncliffe to such a deal. They say that Mr Zafiropoulos did not comply with the condition of investment of $1 million in Combined Projects Arncliffe (and that this amount "went elsewhere" because "whatever deal he had" it was never about Combined Projects Arncliffe). It is said that Zapphire gave no consideration for any alleged contract with Combined Projects Arncliffe; did not bargain with Combined Projects Arncliffe; and had no contract with Combined Projects Arncliffe or with Jamil. It is noted that Mr Zafiropoulos did not mention Sayour Holdings and it is submitted that Mr Zafiropoulos had no belief that Zapphire was entitled to the money. On this basis, the Sayour Parties seek judgment against Zapphire for the entire sum paid to it. 2. More specifically, and as has been adverted to, Sayour Holdings (again, in the name of Combined Projects Arncliffe) alleges by its pleadings: that Jamil found the Arncliffe Site; that Mr Zafiropoulos did not identify the Arncliffe Site to Jamil; that there was no agreement or deal made between Zapphire and Jamil for the payment of a fee; and that Zapphire was not entitled to the Zapphire payments for site identification or for any other reason. 3. More particularly, Combined Projects Arncliffe pleads that: the Zapphire payments were moneys had and received by Zapphire to the use of Combined Projects Arncliffe and that, in the premises, Zapphire is indebted to Combined Projects Arncliffe for the sum of $7.898 million (see the First Arncliffe Cross-claim at [124]-[126]); further or in the alternative, by reason that in March 2018 Mr Deiri was not a director of Combined Projects Arncliffe, the Zapphire Payments were not authorised to be paid from the funds or assets of Combined Projects Arncliffe (see the First Arncliffe Cross-claim at [131]); further or in the alternative, that the Zapphire payments were received by Zapphire as a volunteer, by reason of which it is presumed the payments were received and held by it upon a resulting trust for Combined Projects Arncliffe and that, in the premises, the Zapphire Payments were received and held by Zapphire upon trust for Combined Projects Arncliffe (see the First Arncliffe Cross-claim [132]-[134]); Zapphire did not, and Jamil did, identify the Arncliffe Site and Zapphire was not entitled to receive any fee from Combined Projects Arncliffe on account of site identification or otherwise (see the First Arncliffe Cross-claim [137], [141] and [143]). 4. It is further alleged that Zapphire: knew that it was not entitled to receive any fee from Combined Projects Arncliffe on account of identification or otherwise; did not believe that it was entitled to receive the Zapphire payments; and, by reason of that knowledge and by reason of its receipt of the Zapphire payments, Zapphire was a person involved in contraventions of fiduciary and equitable duties owed by Mr Deiri to Combined Projects Arncliffe (see the First Arncliffe Cross-claim [179]-[180]). 5. Following, the cross-claim claims the following relief against Zapphire: a declaration that the Zapphire Payments were received and held by Zapphire on trust for Combined Projects Arncliffe (prayer 14); an order that an enquiry be held and account taken of the dealings of Zapphire with that fund and that, upon the enquiry and account, there be judgment against Zapphire and Mr Deiri for recovery of the assets found to have been acquired using the said fund, or $7.898 million plus interest (prayer 15); alternatively, judgment against Zapphire for $7.898 million plus interest (prayer 16). 6. It is noted that no claim is made against Zapphire for equitable or statutory compensation. 7. Again, it is convenient first to adumbrate the submissions for Zapphire. Zapphire's submissions 1. As an initial matter, Zapphire says that the documents evidencing the Zapphire payments transaction are: the tax invoice dated 28 March 2018 from Zapphire to Combined Projects Arncliffe; the cheques from Combined Projects Arncliffe (or otherwise at Combined Projects Arncliffe's direction); the copy of the tax invoice issued by Zapphire stamped paid by Combined Projects Arncliffe; Combined Projects Arncliffe's recipient created tax invoice and remittance advice; and Zapphire's Westpac bank statements for particular numbered accounts. 2. Zapphire denies the allegations pleaded against it and maintains that Mr Zafiropoulos identified the Arncliffe Site to Jamil in late 2012 and that it became entitled to the Zapphire payments for having identified the Arncliffe Site to Jamil (and, therefore, Combined Projects Arncliffe) and, pursuant to an agreement made between Mr Zafiropoulos and Jamil, for the payment of the fee to Zapphire. 3. More particularly, Zapphire pleads (see at [56]-[69] of its defence) that: in late 2012, its director (Mr Zafiropoulos), informed Jamil that the Arncliffe Site was available for off-market purchase; in about May 2015, Zapphire (represented by Mr Zafiropoulos) and Combined Projects Arncliffe (represented by Jamil) entered an agreement (at this juncture, hereafter referred to as the CPA Agreement), the material terms of which were that Zapphire would advance to Combined Projects Arncliffe the sum of $1 million (at this juncture, hereafter referred to as the CPA Investment) for use in the development of the Arncliffe Site; and, in consideration of Mr Zafiropoulos' identification of the Arncliffe Site and (further and/or alternatively) of the CPA Investment, Combined Projects Arncliffe would pay to Zapphire a fee. That fee is pleaded as being equal to 50% of the uplift value of the Arncliffe Site arising from the grant to Combined Projects Arncliffe of a development consent; and payable to Zapphire by Combined Projects Arncliffe from the proceeds of the development, upon completion of the development. 4. It is alleged that, pursuant to the CPA Agreement, in the period 31 May to 8 June 2015, Zapphire paid to Jamil (as Combined Projects Arncliffe's agent) the sum of $830,500 (by way of cheque payments) and a further cash payment of $169,500, being made on about 15 June 2015; and that, in the premises and pursuant to the CPA Agreement, Zapphire paid to Combined Projects Arncliffe the sum of $1 million. 5. In the alternative, it is alleged that, in about September or October 2015 (or, alternatively, in March 2018), Combined Projects Arncliffe ratified the CPA Agreement. 6. Accordingly, it is said that Combined Projects Arncliffe was obliged to make, and Zapphire was entitled to, payment of the Zapphire payments. In the alternative, it is alleged that the agreement for the payment of the fee was between Zapphire and Sayour Holdings. 7. I here note that no reply was filed to Zapphire's defence. 8. With that background, Zapphire says that the case against it essentially turns on the cross claimant establishing the following. 9. First, that Mr Zafiropoulos did not identify the site to Jamil and there was never any agreement for the making of the Zapphire payment. 10. Second, that Zapphire was a volunteer and was not entitled to, and knew that it was not entitled to, the Zapphire payments because Mr Zafiropoulos did not identify the site to Jamil, because Jamil (and not Zapphire) had identified the site and because Zapphire did not advance any money. 11. It is submitted that for the cross-claim to succeed against Zapphire, there would have to be a finding, in effect, that Zapphire fabricated a claim to the Zapphire payments that it knew it was not entitled to because it knew that it did not identify the site to Jamil, did not have an agreement with Jamil and did not advance the $1 million. 12. Pausing here, I have already dealt with Zapphire's submissions as to the discovery of the Arncliffe Site (see above). 13. As to the alleged agreement for the payment of a fee in respect of the site identification, it is submitted by Zapphire that, if it is accepted that Jamil became aware of the Arncliffe Site in 2012 rather than September or October 2013 (which, in my view, is not clearly established), and that he became aware of the Arncliffe Site because Mr Zafiropoulos informed him of it (which, in my view, has also not been established), then it can readily be accepted that Mr Zafiropoulos had an expectation that he would be financially involved or rewarded in the event of the Arncliffe Site being developed and that there would have been further discussion as to what was to occur. 14. Further, it is submitted that, if it is accepted that Mr Zafiropoulos informed Jamil of the Arncliffe Site and that it was likely he did so for financial gain and that it is likely there would have been further discussions, then the likelihood is that Jamil and Mr Zafiropoulos had a further discussion (to the effect deposed to at [37] of Mr Zafiropoulos' affidavit sworn on 9 October 2019) in mid to late 2013 (namely, the Second Sake Restaurant meeting – as to which, see also in the above chronology). 15. Zapphire notes that Mr Zafiropoulos was cross-examined about the second Sake Restaurant meeting in mid to late 2013 (see at T 1365.14-T 1369.40); and that it was put to Mr Zafiropoulos (at T 1377.28-32) that this meeting did not occur. 16. Zapphire also notes that, as at late 2013, the Arncliffe Site had not been purchased (and, in fact, Jamil and Mr Deiri had only just commenced negotiations with the owner Mr Dale for the purchase of the Arncliffe Site). It is said that it would make sense that the payment of a site identification fee would be subject to the site being purchased and developed. Zapphire submits that it follows that it is likely that further discussions to the effect of that deposed to by Mr Zafiropoulos (see at [39] and [46] of his affidavit sworn on 9 October 2019) also occurred in about April and May 2015. It is said that Mr Zafiropoulos was not challenged on these conversations, in particular, the conversation in May 2015 when he says he was told by Jamil that the money was required. 17. Furthermore, the following evidence is said to support Mr Zafiropoulos' evidence that the conversations occurred and that an agreement or deal to the effect contended for was reached. 18. First, that, from 31 May 2015 to 10 June 2015, Zapphire made cheque payments of $830,500 and a cash payment of $169,500 to Jamil. The making of the payments is said to be corroborated by: bank statements exhibited to the affidavit of Mr Zafiropoulos sworn 9 October 2019; cheque butts, copies of cheques and bank statements annexed to the affidavit of Mr Zafiropoulos sworn 7 November 2019; bank statements of Jamil that have been discovered; letters received from Westpac, Citigroup and Bank of Queensland and documents produced by the banks under subpoena annexed to the affidavit of Mr Zafiropoulos sworn on 10 December 2019. 19. Pausing here, it is noted that Sayour Holdings no longer disputes the making by Zapphire of the payments, save for the making of the final cash payment of $169,500. The difficulty I have is that this does not establish what the relevant payments ($830,500) were for and it is certainly not established that they were made for the purposes of the project. Mr Zafiropoulos may well have a claim against Jamil's estate, but I have difficulty seeing how he can obtain credit for them from Combined Projects Arncliffe. 20. In this regard, I also here note that the making of the payments is relied upon as post-contractual conduct consistent with a discussion having taken place between Mr Zafiropoulos and Jamil and agreement reached between them in relation to the payments. However, it nonetheless appears to be accepted that the only evidence as to an agreement or deal having been reached in relation to the making of the payments is that given by Mr Zafiropoulos (that being that, in consideration of having introduced the Arncliffe Site to Jamil and/or providing that he pay a further $1 million to go towards the development of the Arncliffe Site, Zapphire would be paid the Site Identification Fee). 21. As to this, I here note that, while the bank statements support the making of the payments (other than the cash sums) to Jamil, there is nothing to show that those payments were made for the purposes of the Arncliffe Development other than Mr Zafiropoulos' assertion to that effect; and the evidence as to the cash said to have been handed over in a bag at the Kyle Bay residence is implausible but, in any event, is not supported by any objective record of the amount said to have been paid. The fact that Mr Habkouk saw a bag with money in it is of no assistance in this regard – there is no way of knowing how much money was in the bag or what it was for. 22. Second, that in about April 2015 an application was made to CEG for a $1 million line of credit (which application was not approved until some time later). 23. Pausing here, again, I see that there is nothing to tie that credit application to the Arncliffe Development and no way of ascertaining whether any such amount was contributed to Combined Projects Arncliffe. 24. Third, that Jamil told Mr Deiri of his agreement to pay the Site Identification Fee. 25. Pausing here, to my mind, this submission suffers from the problems that I have already addressed in relation to the "deathbed conversation" (see above). 26. That aside, it is alleged that the relevant agreement was reached in about May 2015; and it is said that a finding that the agreement was reached and was binding before any written agreement was entered follows from the fact that the payments totalling $1 million were made before the written agreement referred to by Mr Zafiropoulos was signed. 27. Pausing here, I observe, again, that this depends largely on Mr Zafiropoulos' assertions. 28. Next, it is said that the fact that Mr Zafiropoulos informed Jamil of the Arncliffe Site and came to an agreement with Jamil for the fee to be paid is supported by, although not dependent on, the following evidence (independent of Mr Zafiropoulos' discussions with Jamil): evidence of the discussion between Mr Deiri and Jamil on or around 30 September 2015; the discussions between Mr Deiri and Mr Vamvakaris; the Development Management Agreement created in March 2016; and discussions between Mr Gav and Mr Deiri in relation to the payment of the fee. 29. Again, pausing here, I have already considered this evidence. It does not persuade me on the balance of probabilities that there was any such agreement as alleged; nor that any promise by Jamil (assuming it was in fact made to Mr Zafiropoulos and not some other unidentified person with whom he had had business dealings in the past) was binding on Combined Projects Arncliffe so as to warrant payment out of the amount ultimately paid at the direction of Mr Deiri. 30. Mr Zafiropoulos says that in about February 2018, when the development of the Arncliffe Site was near completion, Mr Zafiropoulos met with Mr Deiri. The meeting was arranged by Mr Gav. The meeting followed an initial enquiry made by Mr Zafiropoulos with Mr Deiri through Mr Gav after Jamil's wake in 2015. Mr Gav also recalled a meeting with Mr Zafiropoulos in late 2017 (as to which, see the above chronology). 31. To this, Zapphire says that the fact that Mr Gav does not recall the first contact having been made by Mr Zafiropoulos in 2015, does not mean that Mr Gav "squarely contradicted" Mr Zafiropoulos; and it is noted that, in cross examination, Mr Gav said that it is possible he no longer recalls the conversation and that he talks to people every day (and, indeed, to hundreds of people every week). 32. Mr Zafiropoulos says that he later gave Mr Deiri some identification documents and a copy of the written agreement Jamil had signed and that Mr Deiri said he would make the payment upon being provided with a tax invoice. Mr Zafiropoulos says, that following the meeting, a tax invoice was issued and that, in late March or early April, he collected the two cheques that made up the Zapphire payments. The cheques were deposited to Zapphire's Westpac accounts #786 and #045. 33. Mr Zafiropoulos also gives evidence of making the payments to Jamil as agreed (see his affidavit sworn on at [48]-[50]). As I have noted, the making of the payments is said to be corroborated by bank statements exhibited to the affidavit of Mr Zafiropoulos, cheque butts annexed to the further affidavit of Mr Zafiropoulos and bank Statements of Jamil that have been discovered. 34. Meanwhile, and as has been adverted to, Mr Deiri deposes that he caused the payment to be made because of what Jamil had said to him and that, based on what Jamil had said to him, believed that Jamil "had agreed that [Combined Projects] Arncliffe should honour that fee" (see Mr Deiri's affidavit sworn 16 October 2019 at [154]). 35. In light of the preceding and otherwise, Zapphire further says that there is little evidence to support the cross-claimant's contention that Mr Zafiropoulos did not identify the site to Jamil and that the evidence establishes that money was provided to Jamil. Sayour Parties' submissions 1. Again, it is convenient to consider various of the submissions for the Sayour Parties, particularly in relation to the evidence of Mr Zafiropoulos (noting, once more, that several of these issues have been traversed in relation to credibility findings and elsewhere). 2. The Sayour Parties submitted that Mr Zafiropoulos' evidence is, properly considered, no more credible than Mr Kanj's. In particular, the following matters are noted. 3. First, as with Mr Kanj, it is said that the bulk of the proceeds that Mr Zafiropoulos received in the form of a site fee (I note, howsoever characterised) ultimately ended up in the hands of a third party in short order. In this regard, I note that Mr Zafiropoulos agreed in cross-examination that he paid approximately $5.45 million on 22 May 2018 to Bronson Properties (see at T 1383:19-26; and noting that the details of that company and others, along with other matters, are in evidence). 4. It is said, in other words, that, shortly after receiving the site fee from Combined Projects Arncliffe, Mr Zafiropoulos transferred approximately $5.45 million to a company owned by Mr Ben Scott, who also owns half of the shares in the corporate entity that owns Mr Fadi Ibrahim's house. 5. The Sayour Parties also place significance (here pointing to various aspects of Mr Zafiropoulos' account as set out in his affidavit sworn on 9 October 2019) that Mr Fadi Ibrahim was present at virtually every stage of Mr Zafiropoulos involvement with Jamil in relation to the Arncliffe Development. 6. The significance of this is said to be, in summary, that Mr Fadi Ibrahim introduced Mr Zafiropoulos to Jamil, and "brokered every step" of Mr Zafiropoulos' dealings with Jamil and then, "the man who owns a half interest in Fadi Ibrahim's home (Ben Scott) ended up with nearly $5.5m of the proceeds of the site identification fee for previously undisclosed services rendered in 'consolidating' 108 Princes Highway". 7. It is submitted that this is enough to cast "serious doubt" on Mr Zafiropoulos' story that Jamil had offered to pay Mr Zafiropoulos half of the uplift value of the Arncliffe Site. 8. Furthermore, the Sayour Parties submit that there are other aspects of Mr Zafiropoulos' case that are not credible, including the following. 9. First, it is noted that Mr Zafiropoulos says that he contributed $1 million to the project in 2015, but Mr Deiri's evidence is that no moneys were contributed by or on behalf of Jamil after December 2014. 10. Second, it is noted that Mr Zafiropoulos insisted in cross-examination that he did not find out that Mr Deiri was involved in Combined Projects Arncliffe until after Jamil's death (which seems in his oral evidence to be one anterior aspect in Mr Zafiropoulos' claim that he thought Jamil was able to bind Combined Projects Arncliffe to the site fee agreement), but that this is contradicted by Mr Zafiropoulos' unambiguous evidence (see, for example, at [38]-[39] of his affidavit) that he well knew before Jamil's death that Mr Deiri was Jamil's partner in the Arncliffe project. 11. Third, that Mr Zafiropoulos claims that he found out about the Arncliffe Site from Mr Zouheir Bazzi, who was called to give evidence in support of Mr Zafiropoulos' version of events. It is here noted that Mr Bazzi, when asked in cross-examination, said that he had not spoken to Mr Zafiropoulos, "[b]efore today, for about six, seven years" (see T 1400.18-19), while Mr Zafiropoulos (in his affidavit sworn on 8 November 2019) deposed that he had a face-to-face conversation with Mr Bazzi on or around 7 November 2019 (see at [16]). Accordingly, it is submitted that Mr Bazzi is not a witness of truth, and his account of any conversations with Mr Zafiropoulos six or seven years ago is not to be credited. 12. Fourth, it is said that there is also the "remarkable coincidence" that Mr Zafiropoulos thought to reach out to Mr Deiri, after Jamil's death, through Mr Gav. In this regard, it is noted that Mr Zafiropoulos "barely knew" Mr Gav (and that he thought he was an accountant from Earlwood), yet he happened to locate, "purely by happenstance it seems", the one person to whom Mr Deiri chose to delegate the task of organising collection of the site fee invoices. Again, it is submitted that "such a coincidence is too much to credit". 13. Fifth, it is said that both Mr Zafiropoulos and Mr Deiri were squarely contradicted by Mr Gav as to the timing of these encounters which Mr Gav placed in late 2017, long after Jamil's death. It is said that this leaves unexplained the long delay in Mr Zafiropoulos reaching out to Mr Deiri. 14. Sixth, and finally, it is observed that Mr Zafiropoulos "unfortunately lost every piece of paper that recorded his agreement with Jamil"; and "did not have a single hard copy or electronic backup of any of the material". 15. In this regard (and, see as noted above), it is observed that Mr Zafiropoulos "suffered the same unfortunate fate as Mr Kanj", being to have his computer stolen with no backup data. In this connection, it is similarly observed that Mr Vamvakaris, too, disposed of his computer with no backups and no notes of his meeting with Mr Deiri (as to which, see above), and even Mr Deiri himself has no notes of the Tripoli meeting and never sent an email or kept any record of any of his dealings with Sayour Holdings and Jamil. 16. Again (and, see as noted above), it is said that it "defies belief" that, in this day and age, so many sophisticated men of business would "all lose every trace of documentation recording such critical details of major business transactions with a dead man". 17. Accordingly, it is submitted that the "story" is untruthful, that there was no deal between Mr Zafiropoulos and Jamil; and that Jamil did not in any event have any authority to bind Combined Projects Arncliffe. 18. Furthermore, it is submitted that Mr Zafiropoulos did not comply with the condition (if so found) of investment of $1 million in Combined Projects Arncliffe and that this money "went elsewhere" (because whatever deal was struck was never about Combined Projects Arncliffe). 19. Following from this, it is submitted that Mr Zafiropoulos had no belief that Zapphire was entitled to the money. 20. Accordingly, it is contended that there should be judgment against Zapphire for the entire sum paid to it. 21. At this juncture, I also note those submissions made by the Sayour Parties and referred to already as to other purported discrepancies and incongruities concerning the impugned site identification fees. Determination re Zapphire Fee 1. I have, in considering the preceding, already recorded various observations in relation to my reasoning on this matter, including the evidence and inherent improbabilities of Mr Zafiropoulos' account. It is not necessary here to repeat those observations. 2. Again, for the same or similar reasons to those concerning the Konstructions Fee, I here record that I harbour serious doubts concerning the purported basis for this payment. 3. I see force to the submissions that, properly considered and in the totality of evidence, Mr Zafiropoulos' evidence is no more credible than Mr Kanj's. 4. As to the paying out of the money received (and the relationship, if any to Mr Fadi Ibrahim, Mr Scott and others), I see that these matters can be more fully examined in the undertaking of an enquiry and taking of account again (as in relation to Mr Kanj and Konstructions). It is sufficient here to note that these matters, again in the totality of all the other evidence and circumstances, support the conclusion of knowing assistance and/or knowing receipt. 5. As to Mr Zafiropoulos' account that he contributed $1 million to the project in 2015, I have no little difficulty accepting this in light of Mr Deiri's own evidence that no moneys were contributed by or on behalf of Jamil after the end of 2014, as well as Mr Zafiropoulos' insistence that he did not even know that Mr Deiri was involved in Combined Projects Arncliffe until after Jamil's death. That is, one would think that if they were contributing $1 million to such a project they would, given his role on the development, have been at least aware of Mr Deiri's involvement. 6. Furthermore, I accept the Sayour Parties' submissions concerning apparent inconsistencies between Mr Zafiropoulos' claims and the evidence of Mr Bazzi (though I do not suggest that Mr Bazzi was not a witness of truth). 7. Finally, I harbour doubts concerning the fact that there remains no contemporaneous evidence recording Mr Zafiropoulos' account and/or dealing. In this connection, I do see that it is quite a remarkable coincidence that Mr Zafiropoulos decided to reach out to Mr Deiri, after Jamil's death, through Mr Gav (noting the contradictory evidence of each of Mr Zafiropoulos and Mr Gav in this regard). I draw no inference from the fact that Mr Zafiropoulos, like Mr Kanj, suffered the misfortune of theft without him having arranged any backup of his data or information. I simply note that the absence of documentation makes it difficult to find objective corroboration for Mr Zafiropoulos' account. 8. Accordingly, I find that there was no binding agreement giving rise to a relevant or proper basis for making the payment and that Mr Zafiropoulos can have had no genuine belief that Zapphire was entitled to the sum claimed. 9. As to the undertaking of an enquiry and taking of account, for present purposes, again, there should be judgment against Zapphire in accordance with prayer 16 and an order that Mr Deiri is jointly and severally liable to pay equitable compensation for that amount (prayer 17). In those circumstances, I do not see the need for a further enquiry or accounting process (prayer 15), but will hear submissions as to this if the Sayour Parties press it. 10. I now turn to the purported loan repayments to Deiri Nominees. Repayment of interest on loans to Deiri Nominees 1. Prayers 18 to 21 of the relief claimed under the First Arncliffe Cross-claim relate to payments made by Combined Projects Arncliffe to Deiri Nominees in the aggregate amount of $5,299,704.23 (the 28 February 2018 payments) in purported repayment of loans made by, or on behalf of, Deiri Nominees to Combined Projects Arncliffe. 2. As adverted to, Sayour Holdings (again, in the name of Combined Projects Arncliffe) contends that: the 28 February 2018 payments were not paid to Deiri Nominees on account of any bona fide debt or contractual obligation on the part of Combined Projects Arncliffe; Deiri Nominees received those funds as a volunteer; in causing Combined Projects Arncliffe to enter into a loan agreement with Deiri Nominees on the terms and in the manner that it did, and in causing the repayment of principal and the payment of interest to Deiri Nominees, Mr Deiri acted for the benefit of Deiri Nominees and used his position to gain an advantage for Deiri Nominees, to the detriment of Combined Projects Arncliffe; Mr Deiri breached his fiduciary duties (the profit and conflict rules) to Combined Projects Arncliffe in causing the payments to be made; and that Deiri Nominees was knowingly involved in Mr Deiri's breach of his duties to Combined Projects Arncliffe and is liable to account for the payments. Following, Sayour Holdings (again, in the name of Combined Projects Arncliffe) seeks an account of profits and recovery from Deiri Nominees of the amount of the 28 February 2018 payments or, in the alternative, equitable compensation or an order for compensation under s 1317H of the Corporations Act. 3. At this juncture, it is convenient to consider the submissions for the Sayour Parties. Sayour Parties' submissions 1. First, the Sayour Parties make several submissions vis-à-vis the purported relationship between these payments and the Arncliffe Agreement (as to which, see the above chronology) Relationship with the Arncliffe Agreement 1. The Sayour Parties say that the issue in respect of the $5.299 million payment has a significant factual overlap with issues in respect of the alleged Arncliffe Agreement. It is noted that the defence merely asserts that the payment was repayment of a loan, without asserting how it arose. The Sayour Parties note from Mr Deiri's evidence that it is alleged that there was an agreement dated February 2015 for the payment of interest on Deiri Nominees' shareholder loan; being an agreement said (in Mr Deiri's affidavit) to have been entered into by Mr Deiri on behalf of Deiri Nominees with Mr Deiri on behalf of Combined Projects Arncliffe. The Sayour Parties say that this proposition assumes Mr Deiri's directorship. 2. It is noted that, unlike other aspects of the returns obtained by Deiri Nominees, there is no suggestion that this alleged agreement for interest was ever discussed with, or agreed to by, anyone on behalf of Sayour Holdings. 3. The Sayour Parties say that this (unpleaded) alleged agreement sits "oddly" with the alleged Arncliffe Agreement. It is noted that, by [42] of the amended statement of Third Arncliffe Cross-claim (as to which, see below), Deiri Nominees pleads that, on 8 January 2015, Combined Projects Arncliffe, Deiri Nominees and Sayour Holdings varied the Arncliffe Agreement: to the effect that Sayour Holdings would receive no greater share of any profits or distributions from Arncliffe than its proportionate share of financial contributions, relative to total contributions made by shareholders, to Arncliffe, plus the return of any financial contributions it made to Arncliffe. 1. It is noted that this is the alleged variation of the agreement that was made between Mr Deiri and Jamil in Tripoli, Lebanon (the subject of the Tripoli Minute – as to which, see the above chronology). 2. It is noted that (at [46] of his affidavit sworn on 16 October 2019) Mr Deiri set out a table said to record loans made by or on behalf of Deiri Nominees to Combined Projects Arncliffe, and the principal amounts repaid to Deiri Nominees; the total of this table in the "Loan Amount ($)" column being $21,770,293; and (at [83] of his affidavit sworn on 16 October 2019) Mr Deiri confirms that this sum of $21,770,293 represents the basis on which Deiri Nominees' proportionate share of financial contributions is to be calculated. 3. It is also noted that, in written opening submissions, the Deiri Parties again confirmed that this figure is used as the basis for calculating Deiri Nominees' profit share: 4. Ultimately, Mr Deiri contributed approximately $21.7m or 97% of total shareholder loans to CP Arncliffe. He obtained bank funding, put up guarantees, obtained development approval, organised the marketing, and generally advanced the development. Jamil contributed $670,000 or 3% of total shareholder loans. He did not put up any security. Nor did he have any substantive role in the development. … 10. As such, in the alternative that Sayour Holdings is a member of CP Arncliffe, it is bound by the agreement between shareholders at the start of the venture, and it can only receive a profit proportionate to the total shareholder loan contributions it made – namely, 3%. 1. The Sayour Parties say that the critical significance of the $21,770,293 figure to the Deiri Parties' claim to a 97% profit entitlement is further confirmed by [73] of the further amended statement of third cross-claim, where it is pleaded that the total contributions to Combined Projects Arncliffe by the Deiri Parties were $21,770,293, representing 97.01% of total contributions. 2. The Sayour Parties therefore submit that it is the Deiri Parties' case that the deal struck by Mr Deiri and Jamil in Tripoli was that the more Deiri Nominees, "contributed" to Combined Projects Arncliffe relative to what Sayour Holdings contributed, the greater a portion of the proceeds that Mr Deiri would receive on conclusion of the project. 3. It is noted that it is also Mr Deiri's evidence (at [79] of his affidavit sworn on 16 October 2019) that, at the alleged Tripoli meeting, Mr Deiri told Jamil that he was going to return Jamil's proferred $5 million cheque made out to Combined Projects Arncliffe, and that he was happy to give back the initial $670,000 advanced by Jamil (Sayour Holdings) to the CBA Partnership Account, and that Mr Deiri told Jamil "I just don't want you involved anymore". 4. Relevantly here, Mr Deiri said in cross-examination that Jamil had no further involvement in the Arncliffe project after the Tripoli meeting, and that "obviously [Jamil] wanted to stay involved" (T 962.6), but "I just said 'enough is enough'" (T 962.6-7). When asked whether Mr Deiri refused to allow Jamil to stay involved in Arncliffe, Mr Deiri responded (see at T 962.10), "[w]ell refused is a strong word but I was firm on him yes". Mr Deiri said in cross-examination (see at T 962.16-18) that after the Tripoli meeting Jamil never again asked to put funds into the Arncliffe project. 5. Thus, the Sayour Parties say that on this case, from 8 January 2015, the quantum and timing of any further "contributions" by Deiri Nominees to Combined Projects Arncliffe were a matter within the sole discretion of Mr Deiri, and Sayour Holdings had no say over those contributions, or even knowledge as to when, or in what form, they were to be made. 6. It is noted that what comprises a "contribution" under the Tripoli Minute is not clear (in this regard, see also my observations above). It is noted that Deiri Nominees' previous solicitors, Corrs Chambers Westgarth, were under the apprehension that it meant a capital contribution, since they wrote to Sayour Holdings' solicitors on 27 July 2017 to assert that the agreement struck in Tripoli was that shareholders would share in the profits of the Arncliffe project, proportionately according to their capital contributions. 7. Furthermore, it is said that, even if the Tripoli Minute is accepted (contrary to Sayour Holdings' submissions – and, see my disposition above) as an accurate record of a deal struck between Mr Deiri and Jamil, it does not even suggest: that Jamil understood or agreed that the loans to Combined Projects Arncliffe that would be considered to be contributions for the profit of calculating profit entitlements were to include capitalised interest; or that Deiri Nominees intended to charge Combined Projects Arncliffe interest at all on amounts "contributed" to Combined Projects Arncliffe for the purpose of determining the ultimate profit share. 8. It is submitted that Mr Deiri now wishes the same money to perform the dual function of an interest-bearing debt, as well as a profit bearing equity investment. It is submitted that this is "double helping from the ice-cream bowl", and is inconsistent with the proposition that Jamil was to get at least a percentage of the rewards proportionate to his father's contribution. 9. It is noted that Mr Deiri has now put in evidence a supposed loan agreement between Combined Projects Arncliffe and Deiri Nominees. The loan agreement is signed twice by Mr Deiri: once for Combined Projects Arncliffe, and once for Deiri Nominees. It is said that there is no evidence of Combined Projects Arncliffe's entry into the loan agreement having been ratified by any shareholders' meeting. On the contrary, it is noted that the minutes of the alleged annual general meeting of 30 September 2015 purport to record Jamil in attendance (at the offices of Parras & Co at Devonshire Street, Surry Hills), and purport to adopt annual financial statements for the year ended 30 June 2015, which record no such interest liability to Deiri Nominees. 10. The Sayour Parties say that, if there was such an "agreement" of February 2015 between Mr Deiri and himself, it was concealed from the shareholders and the accountant. They maintain that there was no such agreement and that the loan "agreement" placed in evidence is a later production. 11. It is noted that the interest rate under the alleged loan agreement is 15% per annum and that cl 2.3 provides that interest accrues daily and capitalises on the last day of each calendar month. Mr Deiri says (at [49] of his affidavit sworn on 16 October 2019) that the total interest that accrued on the loans from Deiri Nominees was $5,655,589, and that the total interest repaid was $5,299,332.23. The Sayour Parties say that this sum was in fact paid on 28 February 2018 (and that Combined Projects Arncliffe seeks to recover it by way of the First Arncliffe Cross-claim). Alleged forbearance of interest in FY2018 1. Further to the preceding, it is next noted that Mr Deiri claimed in the 2018 audited accounts that interest due to Deiri Nominees on its loans greater than $670,000 was foregone in the 2018 financial year, and was replaced by the Development Management Fee under the alleged Development Management Agreement (which also provided for the payment of site identification fees). It is noted that this claim of foregone interest first arose in Combined Projects Arncliffe's 2018 Annual Report. 2. It is noted that, in the course of the present hearing, Mr Deiri's Counsel advised the Court that: interest was due on that shareholder loan under the shareholder agreement for three previous years, but was foregone only in FY18 and replaced by the Development Management Fee (see at T 102.33-36); the amount of interest that was payable for year 2018 was about $355,000, and that was not paid, as recorded in the notation in the 2018 Annual Report (see at T 102.43-45); the amount of interest foregone by Deiri Nominees in the 2018 financial year was $355,884 (see at T 103.25); and the figure of $5,299,704 was the interest for the preceding three years (i.e., the three years preceding the 2018 financial year) (see at T 103.30). 3. Similarly to the preceding, the Sayour Parties complain that it is not pleaded by the Deiri Parties (nor is there any evidence) that there was ever any agreement between any of the Deiri Parties and either Jamil or Sayour Holdings regarding interest on loans to Combined Projects Arncliffe; and that Mr Deiri did not mention any loan agreement, or any agreement to pay interest to Deiri Nominees, in any of his evidence regarding his communications with Jamil (or any other person in the "Sayour camp") before Jamil's death. 4. The Sayour Parties maintain that, on an analysis of Deiri Nominees' financial records, it is not correct to say that the amount of interest payable for the 2018 was about $355,000, or that the figure of $5,299,704 represented only the interest payable for the three financial years preceding the 2018 financial year (and they submit that Counsel for the Deiri Parties has been given false instructions in that regard). 5. The basis on which the Sayour Parties maintain this submission is by reference to discrepancies identified by (cf Mr Deiri's affidavit sworn on 16 October 2019 at [49]). Those discrepancies are identified in a series of spreadsheets prepared as aides memoire and accompanying the Sayour Parties' closing submissions. 6. First, by reference to Spreadsheet One (a reproduction of the an interest sheet prepared by the Deiri Parties with the figures in the "Day Count", "Interest ($) and Closing Balance columns calculated "live"), the Sayour Parties say that it can be seen that interest was capitalised every time there was an adjustment to the account, and not merely on the last day of each month (as provided under the alleged loan agreement). 7. Second, by reference to Spreadsheet Two (which adds, to the Spreadsheet One data, further figures gleaned from Combined Projects Arncliffe's financial statements), the Sayour Parties identify discrepancies in respect of amounts recorded as "contribution" or "borrowing expenses", as follows. 8. The first such discrepancy identified at row 16 of Spreadsheet Two, where an item for "contribution" in the amount of $275,292.80 is recorded as having been made. The Sayour Parties note that the description of this "contribution" in the MYOB records is as follows: "WONTON LOAN – BORROWING EXP". They say that there is no record in any of Combined Projects Arncliffe's bank statements of the sum of $275,292.80 having ever passed through any of the company's bank accounts; nor is the item "WONTON LOAN – BORROWING EXP" explained in any of Mr Deiri's evidence. It is noted that in the table (at [46] of his affidavit sworn on 16 October) Mr Deiri says that the column headed "page" refers to an extract from Combined Projects Arncliffe's bank statements showing the relevant receipt of funds; and that the reference in the table to this "contribution" is "N/A". It is said that this appears to reflect the fact that Mr Deiri can produce no documentation to support that this "contribution" was ever received by Combined Projects Arncliffe. It is noted that Deiri Nominees supposedly earned 15% compound interest on the $275,292.80 amount of the "WONTON LOAN – BORROWING EXP" from 12 June 2015 to 28 February 2018. 9. The second discrepancy identified as arising from Spreadsheet Two is at rows 15 to 21, where transactions in the Deiri Nominees' loan account on 12 June 2015 are reflected. It is said that all of the recordings for 12 June 2015 (other than the "WONTON LOAN – BORROWING EXP" transaction referred to above) are for funds that it can be seen passed through Combined Projects Arncliffe's bank account. So, for example, it is noted that the NAB bank statement shows, as do the relevant MYOB records, that: on 12 June 2015 the sum of $5 million was deposited into Combined Projects Arncliffe's NAB bank account and, on that same day, the sum of $4.11 million was withdrawn from the account. It is said that "by giving itself credit for 'contributing' the sum of $4,110,000" to Combined Projects Arncliffe for less than a single day, Deiri Nominees elevated its percentage profit entitlement at the expense of Sayour Holdings. 10. In this respect, complaint is made that there is no evidence that Jamil, or any other person, agreed with Mr Deiri or Deiri Nominees that running funds through one of Combined Projects Arncliffe's bank accounts for less than a single business day would amount to a "contribution" for which the Deiri Parties would then be entitled to an enhanced profit share (but that this is the basis on which Mr Deiri, or that interest sheet, has proceeded). 11. Third, reference is made to the "contributions" recorded as having been made by Deiri Nominees to Combined Projects Arncliffe between 11 July 2018 and 13 February 2019 in the total amount of $260,000 (by reference to Spreadsheet Three of the aides memoire). The Sayour Parties say that Deiri Nominees did not charge interest on these "contributions", but that those amounts did count towards Deiri Nominees' claimed profit share (in that the amount of $260,000 as shown on Spreadsheet Three, when added to the total "contribution" in Column E of Spreadsheet Two, amounts to $21,770,292.80, that being the total amount of "contributions" claimed by Deiri Nominees to Combined Projects Arncliffe). 12. Finally, it is said that, if interest did not accrue during the 2018 financial year (i.e., if interest stopped accruing as at 30 June 2017), then (as calculated in Spreadsheet Four) as at 28 February 2018 (when Deiri Nominees received $5,299,704 in "interest" on its "contributions"), the outstanding balance would have been negative (i.e., -$1,463,677). 13. Thus, it is said that Deiri Nominees caused Combined Projects Arncliffe to pay $1,463,677 in interest that accrued during the 2018 financial year and it is false to assert that interest was foregone in the 2018 financial year. 14. It is said that, if Mr Deiri's case is that there was a shareholders' agreement to the effect that Deiri Nominees would forego interest in the 2018 financial year, then Deiri Nominees ought to reimburse Combined Projects Arncliffe the sum of $1,463,677 on that basis. 15. The position of the Sayour Parties in this regard is that: the alleged loan agreement was not entered into in 2015 or at all; Deiri Nominees was not entitled to the payment of the $5.299 million that was paid to it; Mr Deiri, as an officer, had no proper basis for paying it, was interested in Deiri Nominees, has profited from his position, breached the conflict rule and breached his statutory duties as an officer; and, accordingly, that there should be judgment against Deiri Nominees and Mr Deiri for the amount so paid. The Deiri Nominees loan account and Arncliffe Agreement liabilities as recorded in Combined Projects Arncliffe's financial statements 1. In amplification of the preceding, the Sayour Parties say that the financial statements, both unaudited and (later) audited, of Combined Projects Arncliffe give a history of how transactions alleged by Mr Deiri have "crept in" to his explanation of the transactions of the company progressively since March 2017 when Sayour Holdings first wrote to the company seeking information. 2. More generally, it is submitted that they are of importance for the evaluation of the Site Identification Fee payments, the Development Management Fee, the $5.299 million payment, the reallocation of Sayour Holdings' loan account and the $1.56 million Payment to Jamil. Combined Projects Arncliffe's 2014 financial statements 1. It is noted that Combined Projects Arncliffe's unaudited financial statements for the financial year ended 30 June 2014 were apparently sent by the accountant to Mr Deiri on 16 September 2014. 2. In those unaudited financial statements, the statement of current liabilities of Combined Projects Arncliffe shows that the company had loans at call: from The F Deiri Family Trust in the amount of $600,000; and from The Sayour 2 Family Trust in the amount of $340,000. There is a purported resolution dated 30 September 2014 of the members of Combined Projects Arncliffe, that resolution bearing three purported signatures (that of Mr Deiri, for Deiri Nominees; and those of Jamil and Moustafa for Sayour Holdings). 3. As adverted to above, Moustafa has sworn that the signature on the resolution of members dated 30 September 2014 is not his, but a forgery. Furthermore, it is noted that Jamil's migration records show that he was overseas on 30 September 2014 and did not return to Australia until early November 2014. 4. It is noted that, asked about the signatures on the 30 September 2014 members' resolution in cross-examination (see at T 931-933), Mr Deiri's evidence was: that the financial statements were bound before they were signed (see at T 932.8); that Mr Deiri would have signed the members' resolution on 30 September 2014 (see at T 931.21); that he would have given a copy of the bound set of documents to Jamil (see at T 932.43); and that he had never seen the signatures on this document before he was cross-examined about them (see at T 933.31-32). 5. It is said that Mr Deiri also conceded: that Jamil was not in Australia in September or October 2014 (see at T 932.50 – T933.2); and that, given Mr Deiri's assertion that Jamil's position was that Sayour Holdings' was his (Jamil's) and his alone, there was absolutely no reason for Jamil to have Moustafa sign the members' resolution for Sayour Holdings (see at T 933.37). 6. The Sayour Parties say that how, and why, a simulation of Moustafa's signature came to be on this members' resolution is left unexplained; but that, however it came to be placed there, it is inconsistent with Mr Deiri's assertion that Jamil's position (and Mr Deiri's understanding) was that Moustafa had no financial interest in Sayour Holdings, and that Jamil considered Sayour Holdings to be his and his alone. It is submitted that this has a significant bearing on all of Mr Deiri's evidence concerning the Arncliffe Agreement and his dealings with Jamil in respect of returns on investment in Combined Projects Arncliffe. 7. The Sayour Parties say that it is necessary for Mr Deiri to explain why, if the interest agreement was indeed made in February 2015, he did not discuss it with Jamil and Moustafa who had both (according to the 2014 financial statements) signed on behalf of a shareholder a minute of a resolution of shareholders. It is said that the proposition that Mr Deiri never concerned himself with signatures and never noticed them on this document is as "incredible" as his evidence concerning signatures on cheques. 8. The Sayour Parties say that it is likely that the Moustafa signature was obtained because it was thought that, having an interest in Combined Projects Arncliffe through Sayour Holdings, it was prudent to have evidence of Moustafa authenticating the annual accounts. It is said that it is not necessary to speculate on whether or not the physical production and delivery of the forgery is solely attributable to the action of Jamil. Combined Projects Arncliffe's audited 2014 Annual Report (produced in 2017) 1. Combined Projects Arncliffe's Annual Report for the financial year ended 30 June 2014 contains a director's declaration dated 14 August 2017, bearing Mr Deiri's signature. The Sayour Parties note, therefore, that Combined Projects Arncliffe's 2014 Annual Report was prepared and settled after the commencement of Sayour Holdings' proceedings (see above), and thus that Mr Deiri was on notice of Sayour Holdings' claims at the time he signed this report. 2. The Sayour Parties point to the statement of current liabilities of Combined Projects Arncliffe. It is noted that, in contrast to the statement of liabilities in the unaudited financials (produced in September 2014) for the same year, this statement says that The Sayour 2 Family Trust is only owed $40,000, while $300,000 of the liability has been re-allocated to Jamil personally. It is noted that there is no explanation for this adjustment of the accounts. 3. The Sayour Parties also point to the description in that report of the rights of shares in Combined Projects Arncliffe (namely, that ordinary shares participate in dividends and proceeds of winding up in proportion to the number of and amounts paid on the shares held), which reflects the terms of Combined Projects Arncliffe's constitution but is inconsistent with Mr Deiri's allegation of an "Arncliffe Understanding" and "Arncliffe Agreement" entered into at Combined Projects Arncliffe's inception (by which distribution rights would be proportionate to amounts "contributed" to Combined Projects Arncliffe). 4. More particularly, the report notes that the "joint shareholders" of the company are: "Deiri Nominees P/L ATF The F Deiri Family Trust" as to $10 shares (fully paid); and "Sayour Holdings P/L ATF The Sayour 2 Family Trust" as to $10 shares (fully paid). 5. The Sayour Parties point out that in the statement of Combined Projects Arncliffe's liabilities as at 30 June 2014 there is no reference to any liability for Site Identification Fees or Development Management Fees, despite the fact that the document was prepared at a time (August 2017) when Mr Deiri was "supposedly" well aware of those liabilities, and despite him also (by August 2017) being aware of Sayour Holdings' keen interest in the financial position of Combined Projects Arncliffe and its expected returns to shareholders. 6. It is said that Mr Deiri's failure to ensure that those liabilities were included in the accounts is unexplained, other than his assertion in cross-examination (see at T 959.36-39) that he "didn't see it to be relevant" and that "we only book in the payments when they're paid at the back end". 7. It is said that Mr Deiri well knew that Sayour Holdings, as a shareholder in Combined Projects Arncliffe, would consider those liabilities to be highly "relevant", and it is submitted that his explanation for why they were not included in the financial statements is not credible, and casts doubt on his assertion that in 2017 he genuinely believed those site fees and the Development Management Fee to be legitimate liabilities. 8. Next, the Sayour Parties make various submissions in relation to the 2015 financial statements. 2015 Financial Statements 1. Combined Project Arncliffe's 2015 financial statements were signed on 8 September 2015. There is a balance sheet and statement of current liabilities. The amount recorded as owed to The F Deiri Family Trust as at 30 June 2015 is $7,095,293 (it is noted that that figure of $7,095,293 does not include any accrued interest). It is said that this balance sheet is not consistent with Mr Deiri's assertion that a loan agreement was entered into on 24 February 2015 under which interest of 15% accrued on Deiri Nominees' loans. 2. The Sayour Parties say that another unexplained material inconsistency identified is that the line items in the profit and loss statement for "Borrowing Expenses" and Interest do not record any interest having accrued on Deiri Nominees' loans. 3. It is submitted that the absence of any record in the 2015 financial statements of any liability for site fees, the Development Management Fee or interest on the Deiri Nominees' loans indicates that those are all "recent inventions", and were not in contemplation by Mr Deiri or his accountants as of 2015. 4. It is also noted that the 2015 financial statements refer to an alleged minute of the Annual General Meeting of Combined Projects Arncliffe represented to have been held on 30 September 2015, at which Jamil is recorded as being present. It is noted that this was the same day that Mr Deiri says he met with Jamil at the Meriton Serviced Apartments. The Sayour Parties note that Mr Deiri has not mentioned in any of his evidence that he held an Annual General Meeting of Combined Projects Arncliffe during the 15 minutes that he was supposedly with Jamil on that occasion. It is submitted that his account of this supposed Annual General Meeting (see at T 1071) is neither comprehensible nor credible. 5. Next is the 2016 Annual Report of Combined Projects Arncliffe. Combined Projects Arncliffe's 2016 Annual Report 1. The 2016 Annual Report contains a director's declaration signed and dated 10 August 2017. The Sayour Parties note that this was therefore at a time when the Arncliffe Proceedings were on foot and Mr Deiri well knew of Sayour Holdings' concerns. 2. The annual report includes a statement of liabilities which records the borrowings from Deiri Nominees as amounting to $14,164,938 as at 30 June 2016. It is noted that this figure includes accrued interest at 15%. It is noted that the liability to Deiri Nominees as at 30 June 2015 is here rewritten to $7,401,764 (which is the amount including accrued interest cf the amount recorded for that date that had been given in the 2015 financial statements). It is said that this refutes Mr Deiri's assertion that liabilities to interest are not "booked up" until they are paid (see, for example, at T 959; T 1041). It is further noted that Mr Deiri's accountants were not called to support this assertion and it is said that their evidence would not have assisted him. 3. The Sayour Parties note that there is nothing in the 2016 statement of liabilities recording Combined Projects Arncliffe's obligation to pay the site fees or the Development Management Fee. 4. In the statement of current liabilities there is recorded a sum of $140,000 as being owed to The Sayour 2 Family Trust, and $530,000 to "Family Sayour (Estate)". There is also recorded an unused amount under the ANZ facility of $80,041,741 as of 30 June 2016. The Sayour Parties say that it is not clear why Mr Deiri caused Combined Projects Arncliffe to borrow more than $7 million from Deiri Nominees at 15% interest when the ANZ facility was available at a much lower rate (or how this was consistent with his duties as a director). 5. It is noted that there is also there recorded the statement that, "[n]o interest will be due and payable on shareholder loans up to $670,000". It is said that the effect of this is to deny Sayour Holdings any interest on its "contribution", while affording Deiri Nominees 15% interest on the bulk of its "contribution". The Sayour Parties say that it has not been suggested that this arrangement was ever agreed to by, or on behalf of, Sayour Holdings. It is further noted that there is a statement of going concern which says that Deiri Nominees has confirmed to Combined Projects Arncliffe that it "will not call on this loan until the company is in a financial position to do so". 6. The Sayour Parties say that the chronology of the repayment of the loans from Deiri Nominees is as follows: that, on 16 February 2018, Mr Deiri procured Combined Projects Arncliffe to pay out the ANZ loan; that, between 16 February 2018 and 1 March 2018, Mr Deiri procured Combined Projects Arncliffe to pay Deiri Nominees $22,638,622.23 by way of repayment of loans and interest; that, on 28 March 2018, Combined Projects Arncliffe paid $7.92 million to Konstructions; that, on 29 March 2018, Combined Projects Arncliffe paid $7.898 million to Zapphire; that, on 3 April 2018, Combined Projects Arncliffe borrowed $7.868 million from Alceon as a "residual stock loan"; and that, between 11 July 2018 and 31 December 2018, Combined Projects Arncliffe borrowed a further $260,000 to pay various ongoing expenses, such as agent commissions and conveyancing costs. 7. The Sayour Parties submit that this chronology suggests that Deiri Nominees did, in fact, cause itself to be repaid before Combined Projects Arncliffe was in a proper financial position to do so, as evidenced in particular by the drawing of the Alceon loan a few weeks after Deiri Nominees was repaid. 8. Next is the 2017 Annual Report. 2017 Annual Report 1. Combined Projects Arncliffe's 2017 Annual Report is dated 17 October 2017. It is noted that it contains many of the features of the previous annual reports: a statement of liabilities that includes a figure for the Deiri Nominees' loans (including accrued interest), but does not refer to any site fees or development management fees as liabilities; the statement that the ordinary shares share in distributions pro rata; the statement that there is an unused amount under the ANZ facility of $31,393,207; the statement that the joint shareholders are Deiri Nominees and Sayour Holdings, each as trustees for their relevant family trusts; and, the statement that no interest is due on shareholder loans up to $670,000, but that "interest will be due on shareholder loans greater than $670,000 at normal commercial terms and conditions. Combined Projects Arncliffe's 2018 Annual Report 1. It is noted that in the 2018 Annual Report there is, it would seem for the first time, a reference in Combined Projects Arncliffe's financial statements to the site fees and development management fees, as follows: Other development costs of - $21.7m in FY18, which includes the site identification fees and Management fees in accordance with the Development Management Agreement 1. The statement of financial position as at 30 June 2018 records that Combined Projects Arncliffe had net liabilities of $142,078. The Sayour Parties say that this appears to call into question the statement in previous years that Deiri Nominees had undertaken not to call in its loans until Combined Projects Arncliffe was in a position to pay. 2. There is a statement that there was an unused facility amount of $31,293,207 as at 30 June 2017, and $2,912,343 as at 30 June 2018. The Sayour Parties say that this calls into question whether there was ever any need for Combined Projects Arncliffe to borrow $21m in funds from Deiri Nominees at 15% interest. 3. There is also the statement that: Interest was due on shareholder loans greater than $670,000 at normal commercial terms and conditions in the prior year but was foregone in FY18 and replaced by the Development Management Fee. 1. The Sayour Parties maintain that the assertion that interest was foregone in the 2018 financial year on loans from Deiri Nominees in excess of $670,000 was false and they maintain that Mr Deiri paid himself over $1.4 million on account of interest purportedly accrued in the 2018 financial year. Combined Projects Arncliffe's 2019 Annual Report 1. The 2019 Annual Report records that Combined Projects Arncliffe had total equity as of 30 June 2019 (after the Arncliffe Development had been completed) of negative $8,847. It is noted that there is no profit to be distributed to anyone. 2. The Sayour Parties point out that, if the site fees and the Development Management Fee in the sum of $21.7 million had not been paid out in early 2018 pursuant to the alleged agreement struck between Mr Deiri and Jamil on 30 September 2015, there would have been a substantial distribution. 3. As already noted, the Arncliffe Proceedings were commenced in 2017. The Sayour Parties say that the "enduring mystery of this case" is why, if Mr Deiri did in fact strike an agreement with Jamil on 30 September 2015, Mr Deiri never told anyone in the "Sayour camp" of the agreement until late 2018, given that the effect of the alleged agreement was that there would be no proceeds to "fight over" in this litigation. 4. In this connection, reference is made to what was said in Court by Counsel then appearing for Mr Deiri on 28 June 2017 (see at T 8.32-T 9.19) when the matter was before Robb J: … we are right in the middle of a $100 million development. The gross return on the development looks like it could be in the order of $150 million. That money is not going to start coming in until March of next year, and the first order of business will need to be pay back the secured lenders, and then we will sit down and look at what profit might eventuate after all expenses and secured lenders are paid out, and that's only going to happen in March next year. HIS HONOUR: Presumably the ANZ won't let the corporators get their fingers on any of the money until the mortgage is paid out. STOLJAR: Yes, that must go without saying, your Honour, yes, so that's the first point and we are right in the middle of this development, and the idea that my friend can come along and start putting people on the board who don't know anything about building or construction and who are - in fact their qualification seems to be they're the daughter of the principal - I don't say that in any way critically of that person, but has had absolutely no background in this matter, and that that person would be appointed as a director and thereby create a deadlock to stymie the future going. The proceedings of this company is, we respectfully submit, one your Honour would not entertain for a moment. HIS HONOUR: In the unusual circumstance of this case, I will say for whatever it means at the end, I'm not prejudging an actual conclusion but there's zero chance that I will use the Court's powers in a way that takes any risk of jeopardising this venture as a commercial venture, and I say that because if you start from the proposition that there is equal ownership, if the Court stays its hand and does not introduce a jeopardy to the venture, whatever the number is - and Mr Stoljar, you've mentioned a number - but it's self-evidently going to be such a large sum that half of that sum will be enough in due course to enable the parties to litigate to their hearts' content, and if the division ends up less than or different to 50/50, so be it. STOLJAR: Yes, quite so, and can I just add to what your Honour was saying about putting the development in danger, and my friends with the greatest of respect seem to, I don't mean this in any way critically, but have not appreciated the nuances of the commercial realities here. They don't seem to appreciate for example that arguably they've put the borrower into an event of default by making an application for liquidation. 1. The Sayour Parties say that the "nuances of the commercial realities" were that, by instructing Counsel to make these statements, Mr Deiri induced the Court to think that this was a very valuable and viable commercial project, in circumstances where, if he had possession of the information that he now would have the Court believe but failed to mention at the time, then there was never going to be anything in this venture for Sayour Holdings, and every reason for him to disclose that futility. 2. It is submitted that, if Mr Deiri's agreement with Jamil did in fact happen, then he would have told Sayour Holdings (and persons in the Sayour camp and, indeed, the Court) well before September or October 2018. The Sayour Parties say that the fact that Mr Deiri kept secret for years an alleged agreement that would render the proceedings "pointless" (and at a time when Sayour Holdings was actively pursuing s 247A relief) suggests that the site fee agreements, the Development Management Fee agreement and the interest agreement did not in fact occur, and are recent inventions designed to explain away otherwise unjustifiable transactions. 3. I turn next to the submissions for the Deiri Parties as to the purported loan repayments and interest. Deiri Parties' submissions 1. The Deiri Parties note that the Sayour Parties do not challenge the agreement pursuant to which the payment of $5,299,704.23 was made. They here refer to the amended statement of first cross-claim (at [186]-[189]), where it is alleged that the funds paid out to Deiri Nominees were moneys had and received by Deiri Nominees to the use of Combined Projects Arncliffe; and it is then alleged (at [190]-[194]) that those funds are held on resulting or constructive trust by Deiri Nominees for Combined Projects Arncliffe, and that they were paid out in breach of Mr Deiri's officer's duties (at [195]-[203]), with the result that Deiri Nominees is liable to account for the payment (at [204]-[210]). 2. In response to this, and as has been adverted to, the Deiri Parties have admitted the making of the payments but contend that the payments were made in repayment of loans to Deiri Nominees (which is denied by Combined Projects Arncliffe in its reply at [51(b)]). 3. The Deiri Parties say that the Sayour Parties' pleaded case (in response to the Deiri parties' reliance upon there being a loan agreement between Combined Projects Arncliffe and Deiri Nominees entitling it to repayment of the impugned sums) was simply to deny that the payments were made in repayment of loans to Deiri Nominees. Thus, it is said that the Sayour Parties' case in relation to the $5.29 million payment rises and falls on the factual question of whether the payments were made in repayment of loans to Deiri Nominees. 4. It is emphasised that the Sayour Parties have not pleaded that Mr Deiri was in breach of duty in entering into the loan agreement with Combined Projects Arncliffe in the first place; rather, they have simply denied that the repayments were made pursuant to any agreement. It is said that, in order to attack the payment, the Sayour Parties needed to attack the deed or agreement under which the payment was made and they have not done so. The Deiri Parties say that the Sayour Parties are therefore precluded from running a new (and unpleaded case) and that it should be found that the payment of $5.29 million was properly paid because of the "incontrovertible" existence of the signed loan agreement between Combined Projects Arncliffe and Deiri Nominees, dated 24 February 2015. 5. The Deiri Parties say that they have run their case in response to the case pleaded; and that, had the Sayour Parties attacked the entry into the agreement, the Deiri Parties could have run a different case on this point. The Deiri Parties submit that this was made clear in opening. 6. For the same reason, the Deiri Parties say that the Sayour Parties' complaint that "Mr Deiri now wishes the same money to perform the dual function of an interest-bearing debt, as well as a profit bearing equity investment" goes nowhere. It is said to ignore the reality that even the $670,000 contributed by each of Sayour Holdings and Deiri Nominees was in the nature of a loan, of which it is common ground that each shareholder is entitled to repayment (and which has been repaid to Sayour Holdings). 7. The Deiri Parties say that there is no reason at law why the same funds cannot simultaneously be the subject of two agreements, one of which stipulates an amount of interest accruing on the funds as loaned, and another of which treats the funds as contributions for the purpose of determining profit entitlements. It is submitted that there are sensible reasons why both such agreements might be put in place simultaneously (the example given being as a protection to investors against the possibility that profits turn out to be minimal or nil). 8. Similarly, it is submitted that the concept of "double helping" is simply a label to conceal the real complaint the Sayour Parties wish to advance, which is that that they do not consider the loan agreement to have been a fair one. Deiri Nominees does not accept this (saying that the loan was mezzanine finance, which was necessary in the circumstances because the bank would only lend funds up to a point; and says that Deiri Nominees ultimately lent $22 million plus interest, for an extended period of time, and at commercial rates) but, in any event, that this is a challenge to the manner and circumstances in which the loan agreement was entered, made for the first time in submissions; has not been pleaded and cannot now be run. 9. It is said that, if the Sayour Parties were to be permitted to mount a challenge to the making of the loan agreement, then the argument that they seek to run (in effect, that Mr Deiri never sought the consent of the Sayour Parties before making the agreement) is not available because cl 15.1 of the Arncliffe constitution expressly permits contracts in which a director has a personal interest to be entered into, and the benefits of those contracts to be retained by the director, provided that the director discloses the interest to the other directors (in this case, to himself, as Mr Deiri was the sole director). The Deiri Parties say that the clause therefore sets up a ratification procedure for meetings of directors analogous to the Duomatic procedure for meetings of shareholders. 10. Insofar as the Sayour Parties challenge the date of the 24 February 2015 agreement, and suggest that the agreement was not struck on that date but rather was a later production (relying upon the circumstance that Combined Projects Arncliffe's annual financial statement for the year ended 30 June 2015 does not refer to the loan agreement or to the interest liability to which it gave rise), the Deiri Parties say that, for the same reason that cross-examination of Mr Vamvakaris in relation to the Development Management Agreement was objected to (as to which, see above) on the basis of such an omission alone, so too the Sayour Parties cannot now rely on a mere a failure to put a reference to the existence of that document in the accounts as a basis to allege that the date appearing on the face of the loan agreement is a falsehood. 11. It is submitted that the explanation given by Mr Deiri in cross-examination (see at T 957.37) of his understanding that it was only when liabilities came to pass that they were recorded in the accounts should be accepted, namely that "you record interest when it's paid". In this regard, reference is also made to answers given to similar questioning the following day. It is said that, in the face of this clear and consistent explanation, any evidentiary basis for the allegation that the loan agreement between Combined Projects Arncliffe and Deiri Nominees of 24 February 2015 was not in fact entered into on that date falls away. 12. It is noted that the Sayour Parties also challenge the quantum of the interest paid under the loan agreement, relying on the following notation appearing in the notes to Combined Projects Arncliffe's 2018 financial statements that: No interest was due and payable on shareholder loans up to $670,000. Interest was due on shareholder loans greater than $670,000 at normal commercial terms and conditions in the prior year but was foregone in FY18 and replaced by the Development Management Fee. 1. As outlined (see above), the Sayour Parties submit that this notation means that all interest on loans in excess of $670,000 was foregone in FY18. The Deiri Parties say that this is not what the notation says; rather, that it simply says: "Interest … was foregone" and does not quantify how much interest was foregone. The Deiri Parties say that the amount of interest that was foregone was $355,884, referring to Mr Deiri's evidence to that effect. Insofar as the Sayour Parties say that "it is categorically untrue that the amount of interest payable for the 2018 [sic] was about $355,000", the Deiri Parties say that it has never been the Deiri Parties' case that $355,884 was the amount of interest payable in FY18; rather, that that is simply the amount that was foregone. 2. Insofar as the Sayour Parties seek to treat the notation in the 2018 accounts as evidence of an agreement between Deiri Nominees and Combined Projects Arncliffe that all interest accruing in the 2018 financial year was to be foregone, the Deiri Parties say that there is no basis for that submission. They say that the notation in the 2018 accounts was simply an accounting note, and does not evidence a binding agreement or a resolution of the company to forego any interest (let alone all interest for the 2018 financial year). The position of the Deiri Parties is that the accounts disclose that $355,884 was foregone in 2018 financial year, that it was and that the notation in the accounts shows nothing more. 3. Finally, I should here record the Sayour Parties' response to these submissions. Sayour Parties' submissions in reply 1. In response to many of the Deiri Parties' submissions, the Sayour Parties rely on their closing submissions and oral submissions, and make the following additional points. 2. As regards the Deiri Parties' submission that "the Sayour Parties' case in relation to the $5.29 million rises and falls on the factual question of whether the payments were made in repayment of loans to Deiri Nominees", it is noted that the Deiri Parties accept (see at [1258]-[1260]) that Combined Projects Arncliffe pleaded that Mr Deiri caused the supposed "interest" payments to be made in breach of his duty to Combined Projects Arncliffe, and denied his pleading in defence that the payments were made in repayment of loans. 3. It is said that it is for the Deiri Parties to plead and prove a valid basis for the payments and that they have not done so. It is said that the argument seems to be that Mr Deiri, as the sole director of Combined Projects Arncliffe, can authorise Combined Projects Arncliffe's entry into any agreement he chooses so long as he discloses to himself that he will receive a benefit from the agreement. It is said that this does not allow him to evade the profit rule. Determination re repayment of interest on loans to Deiri Nominees 1. As I am not satisfied that there was such an agreement (properly authorised by Sayour Parties), this amount should be repaid. Payment of $1.56 million to Jamil 1. As adverted to, prayer 22 relates to the payment by Combined Projects Arncliffe to Jamil of $1.56 million (hereafter referred to, for convenience, as the $1.56 million Payment). 2. Sayour Holdings contends that: the $1.56 million Payment was not made in satisfaction of any genuine debt or contractual obligation to Jamil; Mr Deiri breached his fiduciary duties to Combined Projects Arncliffe in causing this payment to be made; and Combined Projects Arncliffe suffered a loss on account of the payment, for which Mr Deiri ought to provide compensation. 3. The Sayour Parties say that the evidence establishes that Mr Deiri well knew that Sayour Family Trust money was being "recycled" into the Arncliffe Development (though, as to which, see my disposition of this factual findings above). It is noted that the sum of $1.75 million was drawn from the CBA Partnership Account on 19 November 2014, at the same time that Jamil gave a cheque of that date drawn on Moulikyah's account to Mr Deiri, in favour of Combined Projects Arncliffe. 4. Moulikyah's account did not have funds to cover that cheque until 21 November 2014. It is noted that it took Jamil two days to "cycle" the trust money through accounts and into Moulikyah's account. 5. It was credited to Combined Projects Arncliffe on 21 November 2014 and repaid by Combined Projects Arncliffe by the action of Mr Deiri to Jamil personally on 24 November 2014. It is noted that Mr Deiri admits he did not obtain a receipt for it. 6. The Sayour Parties point out that Mr Deiri originally accounted for this amount in the books of Combined Projects Arncliffe as a repayment to Sayour Holdings but that, in 2017, the accounting for that payment was changed to reallocate that payment to the account of Jamil. 7. The Sayour Parties say that Mr Deiri's affidavit evidence gives an unsatisfactory account of Jamil requesting a short term loan. They say that the truth is that Mr Deiri had not contributed his equalising contribution into Combined Projects Arncliffe from the partnership distribution to Investments at the same time (which was paid instead to CP (Redfern)). It is said that Mr Deiri's contributions hitherto to Combined Projects Arncliffe had been somewhat ahead of Sayour Holdings' contributions. The Sayour Parties say that the difference was retained by Combined Projects Arncliffe to equalise the shareholders' contributions and that $1.56 million was paid to Jamil simply at his request. It is said that this was a plain breach of Mr Deiri's obligations as an officer of Combined Projects Arncliffe and that he is accountable for it. Determination re payment of $1.56 million to Jamil 1. In relation to the $1.56 million Payment, on the evidence, I accept the proposition that this payment was not made in satisfaction of any genuine debt or contractual obligation to Jamil; and, following, that Mr Deiri breached his fiduciary duties in causing this payment to be made, which payment has resulted in Combined Projects Arncliffe suffering loss. 2. Otherwise, to a very large extent, the Deiri Parties' defence to this aspect of the claim turns principally on Jamil's authority, which matters I have relevantly determined adverse to the Deiri Parties' interests. Payment of $753,709 as agency commissions 1. As adverted to, prayers 23 to 25 relate to payments made by Combined Projects Arncliffe to Deicorp Properties, and to Home789, on account of commissions on settlement of lots in the Arncliffe Development (hereafter referred to, for convenience, as the Commission Payments). 2. More specifically, Combined Projects Arncliffe seeks judgment in the amount of $753,709 against Deicorp Properties, being the amount paid to it when it was not due because of the provisions of the Property, Stock and Business Agents Act 2002 (NSW) (the Property, Stock and Business Agents Act) (and now the Property and Stock Agents Act 2002 (NSW)). 3. The amount of $753,709.62 comprises three different components. As particularised at [7] of the defence to the First Arncliffe Cross-claim, it comprises: amounts received by Deicorp Properties as reimbursement of marketing and advertising costs ($168,382.02); costs claimed by Deicorp Properties for managing other real estate agents in the sales process ($92,955.00); and commissions charged by Deicorp Properties for sales achieved ($492,372.10). 4. I here note that Deicorp Properties is a licensed real estate agent and is owned and controlled by Mr Deiri. Sayour Holdings contends that Mr Deiri, in effect, appointed himself as the real estate agent for a significant number of the units in the Arncliffe Development and paid himself through Deicorp Properties the sum claimed, being commissions at the rate of 4.4%. Sayour Parties' submissions 1. Sayour Holdings says that Combined Projects Arncliffe has a "profit rule" objection to this arrangement but that the first "hurdle" for Deicorp Properties is that it did not comply with mandatory provisions of the Property, Stock and Business Agents Act, as a result of which it was not entitled to be paid or recover commissions (see, for example, Investmentsource Corp Pty Ltd v Knox Street Apartments Pty Ltd (2002) 56 NSWLR 27; [2002] NSWSC 710 (Investmentsource v Knox)). 2. In relation to payments to Home789 particularly, the Sayour Parties submit as follows. 3. More particularly, Sayour Holdings says that Combined Projects Arncliffe's objection to the commissions paid to Home789 is that Mr Deiri caused Combined Projects Arncliffe to enter into the agreement with Home789 that, it is said (because it provided for excessive commissions of 4.4%), was uncommercial, and that Mr Deiri breached his duties to Combined Projects Arncliffe in causing it to enter into that agreement. 4. Sayour Holdings contends that a prudent developer in the position of Combined Projects Arncliffe would not have entered into an exclusive agency agreement that provided for commissions of 4.4%; Deicorp Properties never entered into an agency agreement that complied with the requirements of the Property, Stock and Business Agents Act; Mr Deiri procured Combined Projects Arncliffe to pay commissions to Deicorp Properties on the basis that Deicorp Properties was entitled to a commission amount of 4.4% of the contract sale price in respect of purchasers introduced by Deicorp Properties; Deicorp Properties had no contractual entitlement to payment of that commission amount; a 4.4% commission was, in any event, uncommercial in the circumstances; Mr Deiri breached his fiduciary duties (again, as noted, both the profit and conflict rules) to Combined Projects Arncliffe in causing Combined Projects Arncliffe to pay those commissions and Deicorp Properties; Mr Deiri breached the equitable obligation of business prudence and the corresponding obligation under s 180 of the Corporations Act in paying commissions that were not due to Deicorp Properties and in paying commissions at 4.4% to both Deicorp Properties and Home789; and that Combined Projects Arncliffe suffered loss and damage on account of his breaches. 5. Sayour Holdings relies on an expert report dated 11 October 2019 of Mr Yorgo Kaporis, a real estate agent with experience in large commercial developments, in relation to the alleged unreasonableness of the commercial terms of the purported agreement with Home789. Mr Kaporis' view is that it was not uncommon for an agent to negotiate commissions (for a portfolio of properties) at 1.1% to 1.8%. 6. I interpose to note that, in cross-examination, I considered that Mr Kaporis was compelling in his observations (see, for example, at T 1421). 7. Sayour Holdings points out that, in its defence to the First Arncliffe Cross-claim, Deicorp Properties admits (see at [9]) that it did not sign the agency agreement with Combined Projects Arncliffe and says that this amounted to "technical non-compliance" with the Property, Stock and Business Agents Act; and that Deicorp Properties admits (see at [9] and [12]) that it did not comply with s 55 of the Property, Stock and Business Agents Act or reg 8(1)(a) and Schedule 7 of the Property, Stock and Business Agents Regulation 2014 (NSW) (Property, Stock and Business Agents Regulation) (being laws and regulations regarding the requirements for agency agreements of the relevant kind). 8. Insofar as Deicorp Properties says (at [12] of its defence) that it relies on s 55A of the Property, Stock and Business Agents Act in respect of the commissions which it received, Sayour Holdings submits that that is not a proper matter for defence. It is noted that there is no cross-claim from Deicorp Properties and that the defence does not identify or particularise any of the elements required for a cross-claim under s 55A. 9. Furthermore, and in relation to payments to Deicorp Properties particularly, the Sayour Parties submit as follows. 10. The Sayour Parties note that it is common ground that, between about 30 August 2017 and 26 November 2018, Deicorp Properties received payments from Combined Projects Arncliffe totalling $753,709. Deicorp Properties pleads in its defence that these payments were on account of commissions, marketing costs, and fees paid for managing the sales process for the Arncliffe development. 11. The Sayour Parties say that there is no evidence of any agreement (oral or written, express or implied) between Combined Projects Arncliffe and Deicorp Properties, other than the unsigned agency "agreement". 12. It is said that, If Deicorp Properties had any entitlement to receive payment from Combined Projects Arncliffe, it was pursuant to that unsigned agency agreement. The Sayour Parties submit that the unsigned agency "agreement" does not record any agreement at all. They say that, not only is the "agreement" unsigned by both agent and customer, but its operative provisions are almost entirely blank. For example, it is noted that there are no entries for such fundamental matters as commission rate, the promotional activities to be undertaken, and the expenses to which the agent is entitled to reimbursement; and that it is not dated. 13. Again, reference is made to s 55 of the Property, Stock and Business Agents Act which provides that an estate agent is "not entitled to any commission or expenses" except pursuant to performance of an agency agreement signed by or on behalf of the person for whom the services were performed. The Sayour Parties note that the terms of s 55 are to be enforced strictly. 14. In that respect, reference is made to CH Real Estate Pty Ltd v Jainran Pty Ltd [2010] NSWCA 37 (CH Real Estate), where the Court of Appeal considered the entitlement of an agent to a commission in circumstances where there was a factual dispute as to whether or not the relevant agency agreement had been duly signed. It is noted that Beazley JA, as Her Excellency then was, held (at [22]) that the trial judge's finding that the agency agreement had been signed was not justified; and that there was, in any event, no evidence that the contract (if it had in fact been signed) had been served on the customer as required by s 55. Her Honour held (at [23]) that this was "sufficient to determine that the agent is not entitled to any commission on the sale". 15. Similarly, it is noted that Basten JA held (at [145]-[146]) that, even if the primary judge's finding that the agency agreement had been signed by the agent were to be accepted, there was no suggestion that the signed agreement had been served on the customer as required by s 55, and thus it followed that the judgment in favour of the agent on the agency agreement should be set aside. 16. Young JA found (at [325]) that there was no question that the agent had in fact acted as agent, and that there was no dispute as to the terms of the agency agreement. His Honour (at [331]) was not satisfied that the agent signed the agency agreement, but considered that the primary judge's view that it had been signed by the agent was not so glaringly improbable that it should be interfered with. Despite finding that there was in fact an agreement between agent and customer as to the terms of the agency, his Honour held (at [327]) that the onus was on the agent to prove that the customer had signed the agency agreement, and it could not do so. 17. The Sayour Parties say that, significantly, Young JA appeared to contemplate (at [324] to [326]) the possibility that the agent had in fact signed the agreement, and had returned it to the customer, but that the customer had deliberately refrained from signing and returning the agency agreement to the agent so as to avoid incurring an obligation to pay the agreed upon agency fee. His Honour held (at [326]): 326. It may well be unconscientious or even dishonest to use the services of an estate agent not intending to pay for them, but whether that is correct or not, s 55 of the Act must be enforced. 1. The Sayour Parties note that Deicorp Properties admits (at [9]-[12] of its pleading) that it did not sign the agency agreement, that it did not give Combined Projects Arncliffe an agreement specifying its entitlement to remuneration, that it never served Combined Projects Arncliffe with an agency agreement and that it did not comply with s 55 of the Property, Stock and Business Agents Act or reg 8(1) of the Property, Stock and Business Agents Regulation. The Sayour Parties say that it follows that, when Mr Deiri caused $753,709 to be paid to Deicorp Properties, it had no right to that money. 2. Insofar as Deicorp Properties pleads (at [9] of its pleading) that "such technical non-compliance is of no legal consequence", the Sayour Parties say that this is wrong at law, wrong on the facts and, in any event, has not been brought into any claim for an order granting relief under s 55A(1) of the Property, Stock and Business Agents Act. It is said that such a claim would appear to be essential, having regard to the terms of s 55A(1); (4) and s 36 of the Property, Stock and Business Agents Act. Nor, it is said, does the pleading identify the matters relied on to ground relief in accordance with the conditions prescribed by sub-ss 55A(2) and (3) of the Property, Stock and Business Agents Act. 3. As to the facts, it is said that Deicorp Properties' position is wrong on the facts because there was a failure, not only to sign and serve the agency agreement, but also to document or record the fundamental terms of any such agreement. It is noted that Mr Deiri gives evidence (see at [181] of his affidavit sworn on 16 October 2019) that, in around April 2017: Mr Vamvakaris provided Mr Deiri with a draft agency agreement between Combined Projects Arncliffe and Deicorp Properties; Mr Deiri then "reviewed the agreement and formed the view that the details contained in it were all correct"; and Mr Deiri then told Mr Vamvakaris words to the following effect, "[t]he agreement is fine. Deicorp Properties should start work now". 4. The Sayour Parties say that Mr Deiri's evidence would seem to lead to a conclusion that there was a meeting of the minds between agent and customer, and that there was a merely inadvertent failure to sign the settled document. It is submitted that Mr Deiri's evidence cannot be accepted, noting that the agency agreement Mr Deiri refers to in his affidavit is almost entirely blank. It is submitted that Mr Deiri could not possibly have formed any rational view that the details in the document given to him by Mr Vamvakaris were all correct. 5. The Sayour Parties say that: there was no meeting of the minds recorded by the unsigned agreement; the failure to obtain a signature was not mere technical non-compliance or inadvertence; and the so-called agency agreement was, in effect, a blank piece of paper. 6. Further, it is said that the omission to state the details was not any mere technicality. It is noted that obtaining the consent of Combined Projects Arncliffe to a dealing between the agent (in which Mr Deiri was interested) and the principal (in which Sayour Holdings was interested) required Mr Deiri to obtain the informed consent of shareholders because of the profit rule, the conflict rule and cognate statutory duties. It is said that fundamental to any process of informed consent must have been the presentation of a properly prepared and informative proposed agency agreement. 7. It is noted that this requirement was not observed and it is said that the rights of Sayour Holdings as a 50% shareholder in Combined Projects Arncliffe have been disregarded. The Sayour Parties say that it is very much to be doubted whether anything took place in April 2017 concerning this "agreement" but that, if it did, as Mr Deiri alleges, then it was done secretly, and in contempt for the rights of a shareholder which was even then making enquiries as to the management of the company's affairs. 8. It is noted that, by April 2017, Sayour Holdings had made the information request of 23 March 2017 in respect of the affairs of Combined Projects Arncliffe to which Mr Deiri had made no substantive response. 9. It is submitted that, unlike the situation in CH Real Estate (where there was a meeting of the minds as to the terms on which an agency would have effect), in the present case there is no evidence of any such agreement. It is said that the fact that the commissions were much later paid is not such evidence; and that there is no evidence to suggest that either agent or customer turned its mind towards, or agreed, the proper commission rate or other basis for remuneration or compensation for expenses at any time before the commissions were in fact paid. 10. It is also noted that the rate of commission charged (4% plus GST) for acting on the sale of residual stock, is the same as the rate paid to Home789 which Mr Deiri has justified on the basis that that was an appropriate firm to "channel" quick sales off the plan in order to satisfy the company's banker in respect of its requirements for financing the development. The expert witness (Mr Milton) in his oral evidence expressly contrasted that situation with the appropriate rate of commission for an agent appointed to sell residual stock. It is said that, by April 2017 and at all times thereafter, this project was at the stage where Combined Projects Arncliffe had only a residue of stock that was not already under contract of sale. 11. As above, the Sayour Parties submit that Deicorp Properties is wrong at law because "mere technical non-compliance" does not deprive s 55 of the Property, Stock and Business Agents Act of its force. It is noted that Young JA held in CH Real Estate that s 55 must be enforced, even if it is to the detriment of the agent in circumstances where the customer deliberately withheld the signed document so as to dishonestly deprive the agent of a commission (see, for example, at [326]); and, following, it is said that s 55A of the Property, Stock and Business Agents Act is of no assistance to Deicorp Properties, as the Court may only order recovery of commission or expenses in circumstances where the Court is satisfied that the failure to serve a signed copy of the agreement was occasioned by inadvertence "or other cause beyond the control of the licensee", or that the failure to comply with the regulations was "a minor failure". It is submitted that there is no basis here to be so satisfied. 12. The Sayour Parties argue that the conduct of Mr Deiri in causing the payment to be made was a plain breach of the profit rule, the conflict rule and the pleaded statutory officers' duties. It is said that he kept the whole transaction secret from Sayour Holdings until the payment was made; that he did not turn his mind to any appropriate consideration of his obligations or the interest of the company; and that he acted to benefit Deicorp Properties, in which he was interested, at the expense of Combined Projects Arncliffe. 13. Following, it is submitted that the sum of $753,709 paid to Deicorp Properties is moneys had and received by it, and that judgment ought be entered against it in that amount, and that Mr Deiri ought give equitable compensation, or compensation under s1317H of the Corporations Act, to Combined Projects Arncliffe on account of its losses arising from his breach of his fiduciary duties. 14. It is further said that Mr Deiri ought to give equitable compensation, or compensation under s1317H of the Corporations Act, to Combined Projects Arncliffe on account of its losses in respect of the difference between Home789's commission and a commission rate obtainable using reasonable business prudence. 15. It is convenient here next to outline the submissions for Deicorp Properties. Deicorp Properties' submissions 1. As noted above, Deicorp Properties admits that it did not comply with s 55 of the Property, Stock and Business Agents Act but says that this does not give rise to an entitlement on the part of Combined Projects Arncliffe to obtain the restitution of fees already paid to Deicorp Properties. 2. It is further said that it cannot reasonably be in dispute that those payments were in respect of the provision of real estate services. Deicorp Properties here points to Mr Deiri's affidavit evidence as to the engagement of Deicorp Properties and its provision of services in relation to the Arncliffe Development as establishing both the fact that agreement was reached between those two corporate entities for the payments in question and that the ultimate payments made to Deicorp Properties were intentional (and not mistaken). It is noted that there was some brief supplementary oral evidence in chief from Mr Deiri on that topic, which it said was not challenged. It is said that the cross-examination of Mr Deiri on the subject matter of real estate agency agreements was limited to the (admitted) fact that no written agency agreement was properly executed as between Combined Projects Arncliffe and Deicorp Properties. It is noted that there was no suggestion put to him that the payments made to Deicorp Properties were made by mistake or otherwise made in bad faith. 3. Deicorp Properties maintains that the pleaded claim must fail for the following reasons: first, no vitiating factor was pleaded for the claim in restitution; second, no vitiating factor was proved; third, the statutory provisions do not constitute a vitiating factor; fourth, good consideration was supplied; fifth, retention of the moneys is not unjust; and, sixth, there is no evidence that the commission rates were unreasonable. 4. As to the first, that no vitiating factor was pleaded for the claim in restitution, Deicorp Properties notes that the availability of restitution depends upon the existence of a qualifying or vitiating factor such as mistake, duress or illegality; and that the onus is on Combined Projects Arncliffe both to plead and to prove the existence of such a vitiating factor. It is said that Combined Projects Arncliffe does not plead the existence of any factual or legal element, which is said to cause the said moneys to be 'had and received' to the use of Combined Projects Arncliffe; there is no pleading that the moneys were paid to Deicorp Properties by mistake (whether a mistake of fact or of law); nor is there any pleading that their payment was the result of illegality (even if that were a relevant contention in the present circumstances). Consequently, it is said that the claim brought by Sayour Holdings, in the name of Combined Projects Arncliffe, fails "even at the first hurdle". 5. As to the second, that no vitiating factor was proved, it is noted that there is no evidence that any payment made to Deicorp Properties was made by mistake; that it was never put to Mr Deiri that any payment, which was made by Combined Projects Arncliffe to Deicorp Properties, was mistaken in any way; and that there is no suggestion that there was any person, other than Mr Deiri (the sole director of Combined Projects Arncliffe), with whom rested the responsibility for authorising the making of payments to Deicorp Properties. It is said that Combined Projects Arncliffe's claim against Deicorp Properties cannot succeed without any such evidence and without that proposition having been put to Mr Deiri. 6. As to the fourth, that good consideration was supplied, reliance is here again placed on what was said by Leeming JA in Adrenaline v Bathurst Regional Council (at [78]-[87] – and see the cases referred to above), namely that a claim for restitution will always raise the question as to whether the payee's retention of the moneys (or benefit) is an injustice. Deicorp Properties says that, having provided good consideration, both by its promises under the contract and by its delivery of goods and services, there is no basis for Deicorp Properties being ordered to restore the disputed moneys to Combined Projects Arncliffe. 7. As to the Property, Stock and Business Agents Act, Deicorp Properties says that this statute does not, either expressly or by necessary implication, prohibit Deicorp Properties from retaining the benefit of the payments which it received from Combined Projects Arncliffe. It is noted that that legislation, or at least Div 1 of Pt 4 thereof (including ss 55 and 55A), is focussed upon the extent to which an agent, who has not complied with the agency agreement requirements of the legislation and regulations, is entitled to "recover" (as opposed to "retain") payments. 8. Deicorp Properties points to the fact that, at the conclusion of the text of s 55, the legislature inserted a "note" which identifies that s 55A permits a court or tribunal to order that commission and expenses are recoverable in certain circumstances and that s 55A identifies that such an order (that commission or expenses "are wholly or partly recoverable" – see sub-s (1)) can be made in "relevant proceedings". It is noted that the expression "relevant proceedings" is defined in sub-s 55A(4) as being proceedings "taken by a licensee for the recovery of commission or expenses". 9. Deicorp Properties contends that the Property, Stock and Business Agents Act does not operate to prohibit the making of payments to agents who have failed to comply with its requirements (in respect of written agency agreements); nor does it prohibit the retention by agents (such as Deicorp Properties) of the moneys already paid. 10. Insofar as Sayour Holdings relies upon Investmentsource v Knox, Deicorp Properties says that this decision does not assist Sayour Holdings' claim, either in general terms or in the specific factual circumstances of this case. In that regard, it is noted that Investmentsource v Knox was concerned with the provisions of the Property, Stock and Business Agents Act 1941 (NSW), particularly ss 42A and 42AA; and reference is made to the observation of his Honour (at [66]) that those sections did not forbid the making of any contract, nor did they render a contract void. It is noted that his Honour there said that there was no prohibition upon the rendering of agency services where the statutory conditions are not satisfied and nothing to stop a client or principal making voluntary payment for agency services rendered in such circumstances (although, in a s 42AA case, the recipient might encounter severe difficulties under sub-ss(4) and (5) in retaining any such payment). 11. Deicorp Properties points out that on the enactment in 2002 of the Property, Stock and Business Act, s 55(1) essentially reproduced the provisions of s 42AA(1) of the 1941 Act, but that sub-ss 42AA(4) and (5) were not reproduced. It is said that, as is apparent by the terms of s 55 of the Property, Stock and Business Agents Act (which was later also supplemented by s 55A), the "draconian impact" of s 42AA of the 1941 Act was significantly ameliorated. It is submitted that this amelioration can readily be seen to have been a legislative response to, inter alia, judicial criticism of the provisions. In this regard, reference is made, by way of example, to the observations by Young CJ in Eq (as his Honour then was), with whom Meagher JA agreed (at [1]) and Beazley JA (as Her Excellency then was) agreed (at [2]), in Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd; [2003] NSWCA 305; (2004) Aust Contract R 90-181 (see at [16]-[19]). It is noted that the fact that specific legislative provisions (sub-ss 42AA(4) and (5)) were repealed, or were not re-enacted, is relevant to the process of statutory construction (see, for example, to R v Lavender (2005) 222 CLR 67; [2005] HCA 37 at [31] per Gleeson CJ, McHugh, Gummow and Hayne JJ and at [114] per Kirby J; Patsalis v New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 at [37]-[39] per Basten JA (with whom Allsop P, as his Honour then was, and Sackville AJA relevantly agreed). 12. Deicorp Properties submits that there is no express statutory provision, nor even any implicit legislative purpose reflected in the terms of the Property, Stock and Business Agents Act which would operate, in the absence of a judicially-recognised basis for restitution (such as mistake), to compel Deicorp Properties to disgorge fees charged in respect of real estate agency services actually rendered. 13. It is said that even if the Property, Stock and Business Agents Act prohibited entry into agency agreements other than in written form (which Deicorp Properties points out it does not), it would not necessarily follow, even then, that an unwritten agency agreement was illegal and void. 14. As to Div 1 of Pt 4 thereof (including ss 55 and 55A – following from the submissions outlined above), Deicorp Properties says that the Property, Stock and Business Agents Act does not address, either directly or indirectly, the circumstance of an agent who has already received payment and from whom that payment is sought to be recouped; rather, that that falls to the application of general law principles. It is submitted that the lack of a written and signed agency agreement with Combined Projects Arncliffe is, therefore, not a qualifying or vitiating factor capable of giving rise to a claim for restitution. 15. As to the fifth reason why the pleaded claim (it is said) must fail, that retention of the moneys is not unjust, Deicorp Properties says that the onus is upon Combined Projects Arncliffe to establish, as part of its cause of action for restitution, that retention of those moneys by Deicorp Properties would be unjust in all of the circumstances; and that that onus has not been satisfied. Indeed, Deicorp Properties says that an order for restitution would itself work an injustice (rather than operate to cure an existing injustice), pointing to the particulars to [7] of Deicorp Properties' defence and to the invoices issued by Deicorp Properties that it says disclose that the money received by Deicorp Properties was not only on account of its own fees or commissions but included third party payments or disbursements. It is submitted that it would be unjust for Deicorp Properties to be out of pocket on that account. 16. Insofar as the commissions are concerned, Deicorp Properties says that there is no persuasive basis to conclude that Combined Projects Arncliffe did not receive benefit from the services rendered by Deicorp Properties. It says that, while there may be debate between Mr Milton (the expert witness for Deicorp Properties) and Mr Kaporis (the expert witness for Combined Projects Arncliffe) as to what would be the most competitive available rates of commission for real estate agents at the relevant time, there is no evidentiary basis to conclude (even on Mr Kaporis' evidence) that Deicorp Properties' commissions fell so far outside the range of reasonable rates as to render them liable to be reimbursed. It is noted that Mr Kaporis expressly accepted that the reasonable range of agency commissions could be quite a large range and that it could encompass a 4.4% GST inclusive fee. 17. In any event, it is said that there is no evidence that the commission rates were unreasonable and that this is relevant to the allegation that Mr Deiri breached his obligations as a director of Combined Projects Arncliffe in causing these agency commissions to be paid to Deicorp Properties and to Home789. 18. More particularly, it is submitted that there is no evidence that the sales outcomes achieved by any of the real estate agents (whether Deicorp Properties or Home789) were poor or "below par". In this connection, Deicorp Properties notes that Mr Kaporis acknowledged that he had not inspected the Arncliffe Development, neither internally nor even externally; nor had he undertaken any analysis of the sales that had actually occurred in respect of the Arncliffe Development. It is said that, in circumstances where Mr Kaporis essentially acknowledged that the entire issue of saleability is price-dependent and whether or not a particular real estate commission rate yielded benefit or not would depend upon the price at which a property was ultimately sold, it is not possible to conclude that the real estate commissions paid to Deicorp Properties or Home789 were either unreasonable or did not yield financial benefits to Combined Projects Arncliffe. Sayour Parties' submissions in reply 1. As to the submissions made by Deicorp Properties and by Deicorp Constructions in response to Combined Projects Arncliffe's restitutionary claims, the Sayour Parties say as follows. 2. First, as to the submission that no vitiating factor has been properly pleaded or proved by Combined Projects Arncliffe, the Sayour Parties say that this proceeds on the basis of an artificially narrow view of how the vitiating factors need to be pleaded and litigated in order for the claim for restitution to be made out. 3. The Sayour Parties refer to the decision of the Court of Appeal in Electric Life Pty Ltd v Unison Finance Group Pty Ltd [2015] NSWCA 394 (to which reference was made in oral submissions – see at T 1718.11-41 – in support of the proposition that that there is a specific need for the pleading of a vitiating factor that gives rise to a restitutionary claim) does not stand for a general rule that some specific form of words referring to recognised vitiating factors must appear in the pleadings for the restitutionary claim to succeed. 4. Further, reference is also made to David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353, [1992] HCA 48 (David Securities), where the High Court (per Mason CJ, Deane, Toohey, Gaudron and McHugh JJ) observed that, "[n]otwithstanding that the pleadings did not throw up the specific issue whether the moneys in question were paid under a mistake, whether of fact or law, it is evident that the case was argued on that basis" (at 367), and that the Full Court of the Federal Court had found that there was "sufficient evidence from which one can infer that the appellants would have made no payment but that which they regarded themselves as legally obliged to make pursuant to their contractual and security arrangements with the bank" (at 368, quoting David Securities Pty Ltd v Commonwealth Bank of Australia (1990) 23 FCR at 33; [1990] FCA 186). It is noted that the fact that mistake was not specifically pleaded was not there fatal to the claim. 5. It is further noted that the vitiating factors justifying a restitutionary claim are not limited to mistake and illegality. Reference is made to Mason and Carter's observations in the 3rd edition of their work (at [239]): [T]he most common bases for claims in restitution are that money is paid by the plaintiff to the defendant as a result of mistake or improper pressure, or that money was paid to the defendant under an ineffective contract. 1. It is also noted that in Equuscorp, French CJ, Crennan J and Kiefel J, as her Honour then was, summarised "at a fairly high level of abstraction" David Securities, explaining that the recognised classes of vitiating factors included factors "such as mistake, duress, illegality or failure of consideration, by reason of which the enrichment of the defendants is treated by the law as unjust…" (at [30]). The Sayour Parties emphasise that (in addition to mistake and illegality) duress and improper pressure, and payment under an ineffective contract, are also recognised as factors properly founding a restitutionary claim. 2. As to mistake, it is similarly submitted that the Deicorp Entities have taken an unnecessarily narrow view of what constitutes a vitiating mistake. It is noted that, in oral submissions, it was argued that Mr Deiri authorised the making of the impugned payments and there was, therefore, no mistake (see at T 1718.35-41), consistent with the Deicorp Entities' written submissions in relation to both the Deicorp Properties and the Deicorp Constructions cases as to the submitted lack of a vitiating factor. 3. Insofar as this amounts to a submission by the Deicorp Entities that because the payments were made at the direction of Mr Deiri (the sole controller of Combined Projects Arncliffe) there could not have been a vitiating mistake, the Sayour Parties say that this submission cannot be sustained, referring to David Securities, where Mason CJ, Deane, Toohey, Gaudron and McHugh JJ said (at 378) that: … the payer will be entitled prima facie to recover moneys paid under a mistake if it appears that the moneys were paid by the payer in the mistaken belief that he or she was under a legal obligation to pay the moneys or that the payee was legally entitled to payment of the money. Such a mistake would be causative of the payment. 1. The Sayour Parties submit that the fact that Mr Deiri authorised the payments to Deicorp Constructions and Deicorp Properties does not go to the question of whether he was operating under a mistaken belief as to Combined Projects Arncliffe's obligations to make the payments which it was not liable to pay. Further, they say that his authorisation of the payments does not negate that Combined Projects Arncliffe made the payments under an ineffective contract (or under duress or undue influence). It is noted that a voluntary payment which was not paid as a gift has always been a recognised category for recovery of moneys had and received (see, for example, Moses v Macferlan (1760) 2 Bur 1005 per Lord Mansfield). 2. The Sayour Parties submit that the vitiating factors of ineffective contract and illegality were properly pleaded and proved in Combined Projects Arncliffe's claim against Deicorp Properties. 3. They say that the basis of Combined Projects Arncliffe's pleaded claim is that there is a statutory vitiating element, namely s 55 of the Property, Stock and Business Agents Act, which provides that a licensee (Deicorp Properties) is not entitled to any commission or expenses from a person unless those services were performed pursuant to an agency agreement that is signed and served in compliance with that Act and the regulations thereunder. 4. As to the ineffectiveness of the contract under which payment was made, Combined Projects Arncliffe pleaded that because of non-compliance with the requirements of that Act: there was no effective contract between it and Deicorp Properties requiring the payment of remuneration or reimbursement of expenses (see amended statement of first cross-claim at [243]-[246]); Mr Deiri breached his duties to Combined Projects Arncliffe, and improperly used his position as an officer, in causing Combined Projects Arncliffe to make those payments (see amended statement of first cross-claim at [251]-[254]); and, in the premises, the moneys paid to Deicorp Properties were moneys had and received by Deicorp Properties to the use of Combined Projects Arncliffe (see amended statement of first cross-claim at [256]). 5. It is submitted that Deicorp Properties' answers to the Arncliffe First Cross-claim show that it well understood that it was pleaded there was no effective contract requiring the making of the payments (again, see the pleading at [9]-[10], where it admits that it did not sign the agency agreement or give to Combined Projects Arncliffe an agency agreement conforming to the requirements of the Act but goes on to say that such "technical non-compliance" is of no legal consequence). 6. It is also noted that Combined Projects Arncliffe pleads that: Deicorp Properties was not legally entitled to receive the moneys paid to it by Combined Projects Arncliffe (see amended statement of first cross-claim at [247]); Mr Deiri acted in breach of his statutory and fiduciary duties owed to Combined Projects Arncliffe in causing it to make those payments; and Mr Deiri acted in breach of duty, and improperly used his position, when he compelled Combined Projects Arncliffe to make the impugned payments. 7. Reference is made to Mason and Carter's observations at [501]: Improper pressure is not a term of art, but a convenient description of compulsion that the law does not countenance if the pressure leads to benefits being conferred on persons not otherwise entitled to receive them. 1. The Sayour Parties say that it is not in issue that Mr Deiri compelled Combined Projects Arncliffe to make the payment. The Sayour Parties say that it is accepted that Mr Deiri was the person who caused the payments to be made. What is disputed is that he was entitled to do so (given the challenge to his claim to be a director and his failure to obtain the informed consent of the general meeting in a case in which he was conflicted and stood to gain). 2. The Sayour Parties say that Deicorp Properties' submission that it was never put to Mr Deiri that the payments were made by mistake or otherwise made in bad faith is unsustainable, noting that breach of duty was squarely pleaded, and that Mr Deiri was challenged in cross-examination regarding his assertion that he had "reviewed the agreement and formed the view that the details contained were all correct" (again, see at T 1082.40-T 1083.22). 3. It is noted that, although the word "mistake" does not appear in the First Arncliffe Cross-claim, Mr Deiri has responded to the claim by giving evidence that, in essence, amounts to a claim by him that he caused Combined Projects Arncliffe to make the payments to Deicorp Properties under a mistaken belief that there was an effective and legally enforceable agreement on foot. 4. It is noted that Mr Deiri (see at [181]-[182] of Mr Deiri's affidavit sworn on 16 October 2019) gives an account as to how the ineffective agency agreement came to be drafted and asserts that, although the agreement was never signed, he continued to be updated "as to how many sales Deicorp Properties was achieving under the agreement": "…I reviewed the agreement and formed the view that the details contained in it were all correct… I said to John words to the following effect 'The agreement is fine. Deicorp Properties should start work now'", and "[a]t that point, I determined I would sign on behalf of both entities later on, because John and I had some urgent matters to discuss. I cannot remember what then happened to the document…". 5. It is also noted that, in cross-examination, Mr Deiri was taken to various parts of the unsigned agreement that were left entirely blank, including the sections specifying the agency remuneration fee, the agency period, the promotional activities to be undertaken and the expenses to be reimbursed. 6. As to the submission in relation to consideration, it is said that Deicorp Properties' reliance (see above) on Adrenaline v Bathurst Regional Council is misplaced. It is noted that, in that case, the parties entered into an arms' length contract under which the appellant agreed to pay fees to the respondent council for the use of a motor racing track; and the appellant claimed that the Council had failed to comply with its statutory obligations in setting the fee. The Court of Appeal held that the Council had not complied with its obligations, but that the appeal must nonetheless fail (see at [84] per Leeming JA, with whom Macfarlan JA agreed at [1] and I agreed at [2]): 84. … Trackcorp received precisely what it bargained for. True it is that at trial Trackcorp contended that Council was in breach and that it had been misled, but these claims have fallen away. Indeed, Trackcorp prepared a budget which projected a profit despite the $250,000 fee it paid. It would create unjust enrichment were Trackcorp having enjoyed the benefit of the Mount Panorama circuit over five years to recover the fees it agreed to pay and did pay in order to secure that benefit. 1. The Sayour Parties say that, in the present case, there was no bargain made and there was no agreement. It is said that the purported agency agreement was not just unsigned: it was almost entirely blank. It is again noted that the section entitled "Agent's Remuneration" was empty; the agency period was unspecified; and the fees to be paid were not stated. The Sayour Parties say that this "destroys" any right to remuneration or expenses. 2. It is said that Mr Deiri's evidence that he formed the view that, "[t]he agreement is fine" should be rejected, since he said he formed that view after having "reviewed the agreement and formed the view that the details contained in it were all correct", but he could not possibly have done so, since all of the relevant details (such as fees to be paid) were omitted. It is submitted that Mr Deiri could not have formed any rational view that the agreement was "fine". Thus, it is said that (unlike the situation in Adrenaline v Bathurst Regional Council) Combined Projects Arncliffe did not receive what it bargained for. It is said that there was no bargain and there was no consideration (or, if there was, it was not lawful consideration). It is accepted that Combined Projects Arncliffe may well have received some services from Deicorp Properties, but it is said that the fees paid for those services were not agreed, let alone as part of an arms' length bargain. 3. The Sayour Parties say that the fees were imposed on Combined Projects Arncliffe by Mr Deiri, and paid out to his benefit as the owner and controller of Deicorp Properties (and, again, not as a result of a properly negotiated arms' length bargain). 4. The Sayour Parties also reiterate that there has been "double-counting" by Deicorp Properties. They again note that Deicorp Properties admits (at [14](a) of its defence) that it received payment of $492,372.10, "representing commissions … calculated on the basis of a commission amount of 4.4% (GST Inclusive)"; that Deicorp Properties says (at [16](a)) that, "commission rates of between 2.2% and 4.4% are all considered reasonable in the market at the time the apartments in the Arncliffe Development were being sold with rates in the vicinity of 2.2% being exclusive of advertising and marketing costs, while rates in the vicinity of 4.4% were inclusive of such advertising and marketing costs"; and that Deicorp Properties says (at [16](b)) that, "the payments made to Deicorp Properties were entirely reasonable and appropriate in relation to the benefits conferred upon the Plaintiff by Deicorp Properties". 5. The Sayour Parties also point to Deicorp Properties' admissions in submission that, in addition to the $492,372.10 it received as a 4.4% commission on sales achieved, it also received $168,382.02 as reimbursement of marketing and advertising costs. The Sayour Parties say that this does not "add up". They say that Deicorp received a 4.4% commission on sales achieved plus full reimbursement of marketing and advertising costs; that, under the Act, Deicorp Properties was not entitled to any such payments; that payment of a 4.4% commission plus reimbursement of marketing costs was not bargained for, and that (on the defendant's own account) it does not amount to a reasonable and appropriate payment amount. 6. The Sayour Parties say that, because the payments from Combined Projects Arncliffe to Deicorp Properties were neither bargained for nor reasonable, to allow Deicorp Properties to retain the payments would amount to unjust enrichment. 7. The Sayour Parties also say that s 55A of the Property, Stock and Business Agents Act does not assist Deicorp Properties because (it is said) that these proceedings are not "relevant proceedings" as defined in s 55A(4), as they are not proceedings taken by Deicorp Properties for the recovery of commission or expenses. It is noted that there is no cross-claim seeking recovery under s 55A; nor has any of the necessary elements of such a cross-claim been alleged, proved, or addressed in submissions. 8. In conclusion, in respect of Combined Projects Arncliffe's claim against Deicorp Properties, it is submitted that: vitiating factors enlivening an order for restitution were properly pleaded; there is no evidence that good and lawful consideration was given by Deicorp Properties justifying retention of the amount paid; there could be no such evidence because, as a matter of law, there was no entitlement to be paid; because the moneys were paid pursuant to an ineffective or non-existent contract, and there was no bargain reached as to the services to be provided, and alternatively the commission rates charged were (by Deicorp Properties' own account) not within a reasonable range, an injustice would result if Deicorp Properties were allowed to retain the moneys paid to it and to which it is not entitled; and no relevant proceedings have been brought by Deicorp Properties for the purposes of s 55A of the Property, Stock and Business Agents Act. Determination re payment of $753,709 as agency commissions 1. I accept that Deicorp Properties have an entitlement to retain this amount, in short, on the basis of free acceptance for real estate works and services the value of which has been assessed as proper, fair and reasonable on the expert evidence that I here accept. 2. I accept that the affidavit evidence of Mr Deiri, which again I accept, as to the engagement of Deicorp Properties and its provision of services in relation to the Arncliffe Development. Indeed, I see that this evidence does establish both the fact that agreement was reached in relation to the provision of services and that the ultimate payments made to Deicorp Properties were intended to fulfil an antecedent obligation in relation to that agreement, and not induced by some mistake. I accept that, to the extent that any challenge was made to Mr Deiri's evidence in this regard, this was limited to the absence of a written agency agreement having been properly executed. 3. In this connection, I do see that there is some difficulty in that no vitiating factor was pleaded and, furthermore, to the extent that one was or that it was unnecessary to so plead one, I find that no such vitiating factor has relevantly been proven for the purposes of a restitutionary claim. Furthermore, as I have just adverted to, I accept that it has been proven that good consideration was supplied for the payments. The payments have not been shown to be unjust or unreasonable (as to which, again, see Leeming JA in Adrenaline v Bathurst Regional Council at [78]-[87]). 4. Finally, I do not accept that non-compliance with the provisions of the Property, Stock and Business Agents Act, to the extent those provisions are here engaged (which, I am of the view, that they are not), is here a basis for the restitution that is sought. Payments under construction contract and "extra over amounts" (PC 24) 1. Finally then, prayers 26 to 28 of the relief claimed under the First Arncliffe Cross-claim relate to payments made by Combined Projects Arncliffe to Deicorp Constructions on account of purported variations under the Arncliffe Construction Contract ((hereafter referred to, for convenience, as the Construction Payments). 2. More specifically, Sayour Holdings (again, in the name of Combined Projects Arncliffe) pleads (at [257]-[265] of the First Arncliffe Cross-claim) that the Arncliffe Construction Contract set out certain terms and conditions that had to be complied with as a pre-condition to Combined Projects Arncliffe's payment obligation to Deicorp Constructions. 3. It is noted that these terms are admitted by Deicorp Constructions in its defence. 4. In particular, paragraphs [273]-[293] of the First Arncliffe Cross-claim identify the complaints raised by Combined Projects Arncliffe in respect of PC 24 and the complaints concerning the amount received by Deicorp Constructions following the issuing of PC 24 by Momentum. 5. As pleaded at [273] of the First Arncliffe Cross-claim, PC 24 was delivered to the Superintendent on or about 8 February 2018 (and, paragraph [283] of the First Arncliffe Cross-claim pleads that Momentum issued PC 24 on or about 9 February 2018). As identified in the evidence of Mr Kyrikos, it seems that the actual date of issue of PC 24 was 12 February 2018 (see below). 6. On 8 February 2018, Mr Deiri sent an email to Peter Hammond, of Napier & Blakeley (as will be recalled, the quantity surveyor appointed by ANZ), and Mr Kyrikos (the Contract Superintendent under the Arncliffe Construction Contract) with, inter alia, a copy of PC 24, with schedules which provided a detailed break-up of the claim. 7. Although PC 24 sought payment of an amount of $4,497,867.00 (including GST), the claim brought by the First Arncliffe Cross-claim is limited to that component comprising amounts claimed by (and subsequently paid to) Deicorp Constructions in the total amount of $3,617,298.76 (see at [292]). 8. It is said that it is not in dispute that the entirety of the provisional sum items claimed in PC 24 were amounts paid to third parties (i.e., sub-contractors or suppliers, and the like). 9. More specifically, that total amount claimed is comprised of: amounts claimed in respect of provisional sums in ($2,859,821.19); plus a builder's profit margin of 15% (bringing the sum to $3,288,794.37). 10. It should be noted that this figure is slightly different from that pleaded at [277] of the First Arncliffe Cross-claim (being $3,288,453.42 plus GST). It is said that this is because Mr Kyrikos, in assessing and certifying the progress claim, granted a certificate that permitted an amount of $3,288,453.42 and then, applying the GST rate to the above figure, this results in the final amount of $3,617,298.76. 11. Then, at [280]-[281] of the First Arncliffe Cross-claim, it is alleged that there was no contractual basis for a 15% margin to be applied to these provisional sums. The Deicorp Entities contest this (as to which, see further below), pointing to cl 11(b) of the Arncliffe Construction Contract, which includes the words "plus an amount for profit and attendance calculated by using the percentage thereon stated in Annexure Part A", and Item 25 in Annexure Part A, which specifies a rate of 15%. 12. With that background, I now turn to consider the submissions for the Sayour Parties. Sayour Parties' submissions 1. The Sayour Parties say (as I have noted above) that it is common ground that: on or about 8 February 2018, Deicorp Constructions issued PC 24 to Mr Kyrikos of Momentum, as Contract Superintendent; under PC 24, Deicorp Constructions claimed from Combined Projects Arncliffe, as principal, an amount of $4,088,970 plus GST, which included an amount claimed on account of "Extra Over on Provisional Sums" of $3,288,453.42 plus GST; on about 9 February 2018, Mr Kyrikos of Momentum issued to Deicorp Constructions a report marked as "Progress Certificate No. 24" which certified the value of works claimed under PC 24 as $4,088,970 plus GST, which represented the full "Extra Over" amount; and, on about 16 February 2018, Mr Deiri caused Combined Projects Arncliffe to pay to Deicorp Constructions the sum of $3,617,298.76, representing the "Extra Over" amount plus 10% GST. 2. The Sayour Parties next observe that Deicorp Constructions pleads (among other things) the following in its defence (it being convenient here to excerpt the pleading): 20. In answer to paragraph 272 of the First Cross-Claim, Deicorp: a. denies the paragraph; b. further says that throughout the entire project, two layers of independent assessment of each of the progress claims issued by Deicorp were carried out, including progress claim 24, where the following process was adopted: i. after the issuing of a progress claim by Deicorp, representatives from Deicorp, Momentum Project Group Pty Ltd (Superintendent), the financier ANZ Banking Group Ltd (Financier), along with the Financiers quantity surveyor, Peter Hammond from Napier & Blakeley Pty Ltd (QS) would attend a project control group meeting on site to inspect the works and discuss each payment claim; ii. the QS and Superintendent would agree to the sum claimed in the payment claim, or make recommendations to Deicorp to adjust the payment claim, if necessary; iii. the Superintendent would issue a payment certificate to Deicorp and the QS: and iv. [t]he QS would issue the bank, Superintendent and Deicorp with its assessment of each payment claim, together with certification, specifying the amount which it recommended the Financier pay Deicorp for that payment claim. c. for the above reasons, the Superintendent took all necessary steps to assess and value the works under the Contract when issuing its assessments, including monthly site inspection of the works the subject of each claim for payment. 1. Following, the Sayour Parties submit that this is not an accurate representation of the process of certification and payment that was followed in respect of PC 24. 2. More particularly, they note that Mr Deiri has deposed (in his affidavit sworn on 16 October 2016 at [116]-[122]) to the process allegedly followed for PC 24. In summary, he says that: on about 8 February 2018, he emailed PC 24 to Mr Hammond, ANZ's appointed quantity surveyor, copying Mr Kyrikos, the Superintendent; he sent the claim to Mr Hammond (despite the fact that the ANZ finance facility had concluded) "for the sake of continuity and the completeness of our records"; on about 12 February 2018, he received Mr Kyrikos' superintendent's certificate for PC 24; and, on about 16 February 2018, Mr Hammond emailed Napier & Blakeley's progress claim report in relation to PC 24 to him. 3. The Sayour Parties note that Mr Deiri does not explain why the "Extra Over" amount in PC 24 was incurred, or why the expenditures on work comprised by that amount were considered reasonable or necessary by him or any other person. It is said that there is no justification or explanation for the "Extra Over" amount to be found anywhere in Mr Deiri's affidavits. 4. Relevantly here, in cross-examination (see at T 1078-T 1081), Mr Deiri said (at T 1081.21) that there, "would have been backup and discussions around these claims", but the Sayour Parties note that there is no documentary evidence to support this, nor any evidence as to the scope or substance of those discussions, or any material by which the reasonableness or desirability of undertaking the work that was the subject of the claim could be evaluated. 5. The Sayour Parties compare Mr Deiri's explanation of the process behind PC 24 in the Arncliffe project with his explanation of the variation approval process that he says was followed in the Broadway Development (see [200] of his affidavit sworn on 22 August 2019, in which Mr Deiri deposes that he "generally" followed a procedure whereby he reviewed any variation request documents from Deicorp Constructions, and the supporting materials, to ensure that the amounts claimed appeared reasonable). It is noted that Mr Deiri does not say that he followed any such process in respect of PC 24 in the Arncliffe Development. 6. Furthermore, reference is made to the affidavit of Mr Kyrikos affirmed on 8 October 2019 in which he gives evidence as to having prepared, finalised and issued a progress certificate for PC 24 on 12 February 2018, following a walk around the Arncliffe Site. The Sayour Parties say that, while Mr Kyrikos attached to his affidavit his progress certificate in respect of PC 24, he has not produced any documentation explaining why the "Extra Over" amounts under PC 24 were incurred, or any notes of his inspection of the site or any working indicating how he assessed Deicorp Constructions' claim for payment or concluded at the time that the calculations contained therein were correct. It is submitted that Mr Kyrikos' failure in that respect was "replicated in the equally perfunctory report of Mr Hammond". 7. In this connection, it is noted that, in cross-examination, Mr Kyrikos conceded: that he inspected the Arncliffe Site and produced his certificate in respect of PC 24 in one day (see at T 1229.9-11); that he did not disallow anything from the claim but rather allowed it in full (see at T 1229.13-18); and that he could not recall a single instance of his having given a written direction to the builder to carry out any of the work, including those comprised by PC 24 (see at T 1231.19-29). 8. The Sayour Parties note that (and they say that this is as "an apparent justification" of the amounts claimed under PC 24) My Kyrikos gives evidence, in his affidavit affirmed on 8 October 2019 (see at [26]-[29]), to discussions in early 2017 amongst himself, Mr Deiri, Mr Vamvakaris and Mr Gregoire (Deicorp Constructions' project manager for the Arncliffe Development), in relation to "upgrades to certain provisional sum items of work in relation to the Arncliffe Project". The Sayour Parties complain that Mr Kyrikos does not explain why, as of early 2017, he (or any other person) considered any such upgrades to be necessary or desirable to undertake. 9. It is also noted that (at [29] of his affidavit) Mr Kyrikos refers to an email he sent on 17 May 2017 to Mr Hammond and Mr Murray of Napier & Blakeley in relation to upgrades of certain provisional sum items. It is noted that that email refers, in its subject line, to "Arncliffe Progress Claim No. 15 (PC 15)". In that email, Mr Kyrikos says that "pending provisional sum adjustments are a result of the upgrade in finishes to the building both internally and externally" and that those "pending provisional sum adjustments are still forecast figures and some of these may still move up and down". 10. It is noted that there is a reference to these changes "position[ing] the Endeavour project [at] the higher end of quality in comparison to the competing projects, will assist in moving the final balance of product and will underpin the projects success". The Sayour Parties complain that "this offhand observation in May 2017 is as close as it gets to any evidence from any of the witnesses for the Deiri parties, or Deicorp Constructions, as to the basis for and justification of the "Extra Over" amounts in progress claims generally, let alone PC 24 specifically". 11. It is noted that Napier & Blakeley's recommendation for a progress certificate in relation to PC discloses that, as of that: the forecast variations introduced amounted to $2,791,013.20 for provisional sums relating to specification increases (see at section 2.4); and, if all of the variations forecast as of that date became payable by Combined Projects Arncliffe, "the increased Contingency of $4,622,536.00 will have a balance remaining of $519,707.67" (see at section 2.6). 12. It is said that, by contrast to the position at the time of PC 15, Napier & Blakeley's progress certificate for PC 24 makes clear that, as a consequence of the variations to provisional sums contemplated by PC 24, the original contingency was fully utilised and there was a shortfall of at least $3,069,769.85. The Sayour Parties say that, in other words, whatever expenses or variations or adjustments to provisional sum items were in contemplation as of 17 May 2017 in respect of PC 15, those adjustments were not the adjustments certified and paid for in respect of PC 24. 13. It is noted that the adjustments sought by PC 15 still provided for a balance of provisional sum contingencies of at least $500,000; and it is said that PC 24 "blew past that contingency" by at least $3 million. 14. Following, complaint is made that there is nothing in evidence from any of the Deiri Parties to explain the decision-making process that led to a greater than $500,000 contingency being "wiped out" and replaced with a greater than $3 million shortfall. 15. It is said that the decision (presumably taken sometime between 17 May 2017 and February 2018, when PC 24 was issued) to undertake millions of dollars in variations or additional or different work or work and materials to different specifications is "made even more mysterious" by the fact that, as of 17 May 2017, at least around 176 of the 234 units in the Arncliffe project had already been sold. 16. Further, it is noted that, as Mr Kyrikos conceded in cross-examination, the improved finishes referred to in his discussions in May 2017 were applied to all of the Arncliffe units (not only to ones unsold at that time). 17. Again, complaint is made as to the lack of explanation for a decision to exceed the contract contingency for provisional sums to upgrade already sold apartments, and at a time when only a relatively small minority of lots then remained unsold. 18. As to Mr Hammond and Mr Deiri's evidence that, while PC 24 did not need to be assessed by the quantity surveyor because the bank lending was finalised (but nevertheless requested the reports to be completed "for the sake of continuity and completeness of our records"), reference is made to what Mr Deiri said in cross-examination, namely that the bank's quantity surveyor acted as "their watchdog that oversees and monitors these projects" (see at T 888.29-30) and that Napier & Blakeley were "the bank-appointed quantity surveyor. We call them the bank's watchdog that oversees the project" (see at T 785.37-8). Further to this, reference is also made to the evidence in cross-examination of Mr Hammond that "we're working in a, a group setting where we are the policeman or the watchdog for both the developer and the builder for the banks, whilst also being mindful that the developer is also the bank's client" (see at T 1247.11-13). 19. The Sayour Parties note that Mr Hammond deposes in his affidavit that his typical process for assessing Deicorp Constructions' progress claims in the Arncliffe Development included: attendance at the Site for a project control group meeting, where there would be a discussion of the works that were the subject of the relevant progress claim; an inspection to assess the payment claim; and taking notes and photographic records at the Site. Mr Hammond says he "would then work through Deicorp Constructions' progress claim and cross check the works as claimed against the percentage claimed against the percentage completed for that line item" and that provisional sums in a progress claim are broken down into specific items of works, contained in a separate provisional sum list which forms part of Deicorp Constructions' progress claim, and that during his assessment of the claim he would refer to a percentage allocated against a provisional line item and would then compare the completed cost against the cost claimed by the builder, and he would also assess the element of reasonableness if there were a change to the provisional sum, based on his experience in the industry. It is noted that Mr Hammond says that he would then review a draft report, and would then (after making any necessary adjustments or amendments) sign it if it was suitable to do so. 20. The Sayour Parties emphasise that Mr Hammond (in his affidavit sworn on 12 September 2019 – see at [23]) makes clear that he did not assess PC 24 on behalf of ANZ Bank, pointing to his statements that "I understood, based on a discussion with [Mr Deiri] on or about this date, that this final recommendation report was to be prepared for Deicorp's internal purposes so that there was a report for each progress claim issued by Deicorp" and that "[o]n or about 8 February 2018 and during the same conversation with [Mr Deiri] referenced above, [Mr Deiri] advised me that ANZ did not require a payment report for Claim 24 because the funding had finalised and therefore Combined was no longer subject to finance requirements" (at [24]). 21. In cross-examination (see at T 1253-T 1254), Mr Hammond was taken to Napier & Blakeley's recommendation respect of PC 24, and to the line item for "Variation No 10" (as will be recalled, "Extra Over on Provisional Sums") in the amount of $3,288,453.42. 22. It is noted that Mr Hammond agreed (see at T 1253.4-8) that he simply accepted the figure that he was asked to accept in this instance, without examining its component elements; and that he explained that he did so because, "it had been signed off by the developer and the builder". It is submitted that it is obvious from the documentary record that Mr Hammond could not have followed his usual processes with respect to PC 24 (including the process of working through the progress claim and cross-checking the works as claimed). 23. Meanwhile, Mr Kyrikos' "Progress Certificate No 24" sets out at Appendix B the provisional sum adjustments that were applied under PC 24. It is said (and see Mr Kyrikos's affidavit affirmed on 8 October 2019 at [36]) that most of the line items in Appendix B of his certificate for PC 24 are copied over by a cut and paste exercise from Appendix B to his previous certificate (in respect of Progress Claim No 23) and most of the items in the "Previous Assessment" column have been copied over in the same way from the "Contractor Claim" column. 24. It is relevant to note here also that Sayour Holdings observes that Mr Deiri appointed Mr Kyrikos as the contract superintendent for the Arncliffe Development on terms that provided for Mr Kyrikos to be paid by two instalments (one at the conclusion of the development and, at his election, setting off both against the price of a unit at the end) but that he was in fact not paid or compensated until the end. 25. Sayour Holdings says that Mr Kyrikos, in assessing Deicorp's progress claims for the Arncliffe Development, signed each progress certificate on the same day, or the day after, the claim was submitted, and without requiring all of the evidence required to support the claim as required by the Arncliffe Construction Contract; and that, in those circumstances, he could not have undertaken a proper evaluation and performance of his functions (as well as, by the terms of his remuneration, having an interest in the outcome). 26. Sayour Holdings says that PC 24 was not submitted in accordance with the Arncliffe Construction Contract, including because it was not accompanied by evidence supporting the amounts claimed and notes that PC 24 included a claim for a purported variation to the Arncliffe Construction Contract in the amount $3,288,453.42 on account of "Extra Over on Provisional Sums", together with the margin of 15%. 27. Sayour Holdings also contends that, because of non-compliance with the terms of the Arncliffe Construction Contract in relation to the preparation, submission and evaluation of PC 24, Deicorp Constructions had no contractual or other entitlement to payment of that sum; that Mr Deiri caused Combined Projects Arncliffe to pay that sum to Deicorp Constructions; and that, in so doing, breached his fiduciary and statutory duties owed as an officer of the company to Combined Projects Arncliffe. 28. Sayour Holdings relies on the expert report dated 1 November 2019 of Mr Michael Sanig, a quantity surveyor. Mr Sanig expressed the opinion that the requisite procedures under the Arncliffe Construction Contract were not followed by Deicorp Constructions or Mr Kyrikos with respect to, inter alia: record keeping and documentation; the submission and approval of progress claims; and the treatment of "Variations" and "Provisional Sums" under the contract. 29. Mr Sanig is also of the opinion that any such work claimed under PC 23 was not properly to be treated as a variation under the contract; that there is no evidence that Mr Kyrikos, as contract superintendent, gave directions as to the variations that were supposedly the subject of PC 24; and he says that Mr Kyrikos does not appear to have made any enquiries as to the reasonableness of the sums claimed under PC 24, but rather appears to have relied upon, and assumed without verification the correctness of, figures provided to him by Deicorp Constructions. 30. I now turn to the submissions for Deicorp Constructions. Deicorp Entities' submissions 1. The Deicorp Entities say that it is not in dispute that the relevant express terms of the Arncliffe Construction Contract are in the terms as pleaded, but there is an issue concerning the extent to which the Arncliffe Construction Contract contains certain implied terms (being those which are pleaded at [266] and [269] of the First Arncliffe Cross-claim). However, the Deicorp Entities say that it is not apparent that a determination of the substantive issues on the First Arncliffe Cross-claim will turn upon the existence of any implied terms. They say that the essential issue raised in this portion of the First Arncliffe Cross-claim relates to the process under the Arncliffe Construction Contract for the making of payment claims and the approval of payment claims by the Contract Superintendent. 2. In relation to the Arncliffe Development and the Arncliffe Construction Contract, as already noted, the Superintendent was Momentum, the principal of which was Mr Kyrikos. The Deicorp Entities emphasise that Momentum is an entity unrelated to the Deicorp Group and was providing the services of contract superintendent as a third party. Consequently, they maintain that a distinction is to be drawn between: on the one hand, an allegation that a portion of the moneys, which were included in a payment claim or which were paid pursuant to a progress certificate, were not amounts for which Combined Projects Arncliffe could ever have been liable to Deicorp Constructions (because, irrespective of the processes or procedures followed under the Arncliffe Construction Contract, no such moneys would ever have been due); and, on the other hand, an allegation that the processes or procedures followed by Momentum were not strictly in accordance with the Arncliffe Construction Contract, such that there is a complaint regarding the steps taken to achieve the end result (but, they say, without a pleaded claim as to the underlying merit of the payment claim or the payment). 3. The Deicorp Entities say that, in the former case, the complaint could be classified as a substantive one; whereas, in the latter case, the complaint is "procedural only". They say that the evidence of Sayour Holdings (as noted, the expert report dated 1 November 2019 by Mr Sanig) discloses that its complaints are essentially procedural only. It is said that Mr Sanig gives no opinion on the value of the works undertaken under the Arncliffe Construction Contract; rather, he was asked simply to review the methodologies used to process variations, provisional sums and progress claim No 24. 4. Following, it is submitted that procedural non-compliance with the provisions of the Arncliffe Construction Contract does not entitle Combined Projects Arncliffe to recover the payments made to Deicorp Constructions; and that, at the very least, it would be necessary for Combined Projects Arncliffe to establish that it would be unjust or inequitable for Deicorp Constructions to retain those payments, even assuming that any claim were available. It is said that, more likely, the only claim that Combined Projects Arncliffe might be entitled to bring in that case would be a claim against Momentum (which it has not brought), but that even that would require evidence of some loss or damage (of which there is none). 5. Indeed, the only potential aspect of Combined Projects Arncliffe's claims, which the Deicorp Entities say might be substantive in nature, is the allegation at [281] that a margin of 15% was not authorised by the contract to be included in the progress claim. It is said that this is a matter of contractual interpretation, rather than an issue requiring any expert evidence. 6. The Deicorp Entities point to the following affidavit and oral evidence as to PC 24: Mr Deiri's affidavit evidence (see particularly at [116]-[122] of his affidavit sworn on 16 October 2019); Mr Gregoire's affidavit evidence concerning the preparation of PC 24 and the basis for each of the components within that progress claim (see his affidavit sworn on 24 September 2019 and supplementary affidavit sworn on 25 October 2019), noting that Mr Gregoire was not required for cross-examination; Mr Kyrikos' affidavit evidence in respect of his assessment of PC 24 and the issuing of the progress certificate (see at [30]-[37] of his affidavit affirmed on 8 October 2019) and his cross-examination (see at T 1218-T 1234); and Mr Hammond's affidavit and oral evidence as to his verification that upgrades included within the provisional sum amounts were actually undertaken. 7. Further, reliance is placed on Mr Portelli's expert report dated 30 September 2019 as to the reasonableness of the sums claimed in PC 24. Specifically, Mr Portelli concluded (see at [8.1]) that the sums claimed by Deicorp Constructions were fair and reasonable. It is noted that the quantity surveyor, who was engaged by Sayour Holdings as an expert witness (as will be recalled, Mr Sanig), expressed no view in relation to the reasonableness of any of the construction costs or charges (in relation to either the Arncliffe Development or the Broadway Development), notwithstanding that he had been provided with copies of Mr Portelli's expert reports. Deicorp Constructions says that it must be inferred that Mr Sanig's review and critique of Mr Portelli's opinions would not have assisted Sayour Holdings. 8. Deicorp Constructions also relies on the documentary material (Ex E) in support of its contention that the moneys claimed under PC 24 were legitimately due to it. 9. The Deicorp Entities also note that there is no complaint by Combined Projects Arncliffe concerning the timing of steps taken under the Construction Contract (drawing again a distinction between procedural complaints and substantive complaints in respect of the progress certificate for PC 24). 10. In relation to the evidence of Mr Kyrikos, it is submitted that this identifies the steps taken by him following his receipt of PC 24. The Deicorp Entities say that that evidence supports the conclusion that there was a proper, bona fide and honest assessment of PC 24 and that the progress certificate was issued in good faith. 11. It is noted that Mr Kyrikos also identifies the contractual basis upon which he assessed a 15% profit margin for the extra overs relating to PC 24. Those adjustments were assessed under cl 11 of the Arncliffe Construction Contract. The Deicorp Entities say that, when combined with Item 25 of Part A of the contract, those contract terms allow an amount of 15% for profit and overheads (as to which, see the Sayour Parties' submissions above). 12. As adverted to, Deicorp Constructions relies upon the expert evidence of Mr Portelli to demonstrate that the payment made to it in respect of PC 24 was justified and reasonable. In particular, in his report dated 30 September 2019, Mr Portelli assessed whether the extra overs in respect of the Arncliffe Development were reasonable. Mr Portelli concluded that the overall amount charged by Deicorp for the provisional items was less than the amount that Mr Portelli assessed to be independently reasonable for those same items. 13. (To the extent that it is necessary to do so, Deicorp Constructions also relies upon its second cross-claim in defence of the allegations raised against Deicorp Constructions in the First Arncliffe Cross-claim. As has been outlined above, the Second Arncliffe Cross-claim seeks to recover payment, assessed on a quantum meruit or quantum valebat basis, for goods and services delivered by Deicorp Constructions in respect of the Arncliffe Development.) 14. Recalling the Sayour Parties submissions and also the submissions made in relation to the payment of agency commissions, the Deicorp Entities maintain that the pleaded claim in restitution must fail on the basis that: first, no vitiating factor is pleaded or proved; second, non-compliance with the contract is not a vitiating factor; third, good consideration was supplied; fourth, there is no evidence of injustice if the money is retained; fifth, and relatedly, there is no evidence that building costs were unreasonable. 15. As to the first, that no vitiating factor is pleaded or proved, again it is noted that the availability of restitution "depends upon the existence of a qualifying or vitiating factor such as mistake, duress or illegality"; that the onus is upon Combined Projects Arncliffe both to plead and to prove the existence of such a vitiating factor; and that Combined Projects Arncliffe does not plead the existence of any factual or legal element, which is said to cause the said moneys to be had and received to the use of Combined Projects Arncliffe. For example, and as has been adverted to, it is noted that there is no pleading that the moneys the subject of PC 24 were paid to Deicorp Constructions by mistake (whether a mistake of fact or of law). Consequently, it is said that the claim brought by Sayour Holdings, in the name of Combined Projects Arncliffe, is unable to succeed. 16. As to the second, that non-compliance with the contract is not a vitiating factor, it is noted that there is no evidence that any payment made to Deicorp Constructions was made by mistake; that it was never put to Mr Deiri that any payment, which was made by Combined Projects Arncliffe to Deicorp Constructions, was mistaken in any way; nor was there any suggestion that there was any person, other than Mr Deiri (the sole director of Combined Projects Arncliffe), who had responsibility for authorising the making of payments to Deicorp Constructions. It is submitted that Combined Projects Arncliffe's claim against Deicorp Constructions cannot succeed without any such evidence and without that proposition having been put to Mr Deiri. 17. As to the third, that good consideration was supplied, it is said that even if it were to be established that the goods and services supplied in respect of the Arncliffe Development (and the payment for which was the subject of PC 24) were not requested or authorised strictly in accordance with the terms of the Arncliffe Construction Contract, this would not constitute a relevant vitiating factor for the purposes of a claim in restitution (but they say that in any event Sayour Holdings has not even established that "preliminary step"). 18. Furthermore here, it is noted that Mr Kyrikos (the contract superintendent for the purposes of the Arncliffe Construction Contract) was cross-examined as to whether or not he had given directions for the work to be undertaken, which work was the subject of PC 24. Mr Kyrikos accepted that there were no written directions for work to be undertaken (see at T 1231.19-21), but identified that verbal directions were given (see at T 1231.23-24). 19. In this connection, reference is made to the "General conditions of contract for design and construct" (being standard contract AS 4300-1995) for the Arncliffe Construction Contract, and it is noted that these are in the same terms as the contracts for each of Stage 1 and Stage 2 of the Broadway Development. The Deicorp Entities repeat their submissions as to the various provisions of the building contract. As to the issue of verbal or oral (as opposed to written) directions from the contract superintendent, the Deicorp Entities point to the following: first, the definition of "direction" includes "agreement, approval, authorisation, certificate, decision, demand, determination, explanation, instruction, notice, order, permission, rejection, request or requirement" and there is no identification in that definition that a "direction" must be in writing in order to have effect; second, insofar as cl 11 of the contract is concerned, the contractual provision speaks of work being performed or items supplied "at the direction of the Superintendent", but does not specify that any such direction must be in writing; and, third, cl 23 (entitled "Superintendent") expressly provides that, "[e]xcept where the Contract otherwise provides, a direction may be given orally but the Superintendent shall as soon as practicable confirm it in writing". 20. Following this, the Deicorp Entities say that the provision of oral directions is therefore expressly contemplated and authorised by the terms of the contract. It is said that, if there has been no breach of a contract term, there cannot be a basis for restitution, but that even if there was non-compliance with contractual terms this would still not constitute a recognised basis for restitution. 21. It is submitted that Deicorp Constructions provided good consideration for its receipt of the moneys the subject of PC 24, comprising inter alia: the promises made by Deicorp Constructions under the Arncliffe Construction Contract; and the goods and services supplied in respect of the payment claims made in PC 24 (including the fact that Deicorp Constructions incurred liability to sub-contractors and suppliers in respect of those works and those goods or supplies). 22. It is submitted that, having provided good consideration, both by its promises under the contract and by its delivery of goods and services, there is no basis for Deicorp Constructions to be ordered to restore the disputed moneys to Combined Projects Arncliffe. Again, reliance is placed on what was said by Leeming JA in Adrenaline v Bathurst Regional Council (again see at [78]-[87]) (and see the authorities referred to above). 23. As to the fourth, that there is no evidence of injustice if the money is retained, the Deicorp Entities note again that the onus is upon Combined Projects Arncliffe to establish as part of its cause of action for restitution that retention of those moneys by Deicorp Constructions would be unjust in all of the circumstances. They say that that onus has not been satisfied. 24. In particular, the Deicorp Entities point to a number of evidentiary matters that are said to establish, contrary to Combined Projects Arncliffe's contentions, that an order for restitution would itself work an injustice (rather than operate to cure an existing injustice). 25. First, noting that the moneys received by Deicorp Constructions were largely on account of third party payments (that is, payments made to sub-contractors and suppliers) (the only exception being the 15% margin permitted by cl 11(b) and Item 25 of Annexure Part A to the Arncliffe Construction Contract), it is submitted that it would be unjust for Deicorp Constructions to be out of pocket on account of the moneys paid to sub-contracts and suppliers. 26. Second, insofar as the building costs themselves are concerned, it is said that there is no evidentiary basis for it to be concluded that Combined Projects Arncliffe did not receive benefit from the items included in PC 24. In this regard, it is noted again that Mr Portelli's expert report dated 30 September 2019 was not countered by any relevant evidence from Mr Sanig. 27. Third, it is noted that the evidence of Mr Kyrikos identifies the steps taken by him following his receipt of PC 24. It is again said that that evidence supports the conclusion that there was a proper, bona fide and honest assessment of PC 24, together with the issuing in good faith of the progress certificate. 28. The Deicorp Entities also point once more to the expert evidence of Mr Portelli as demonstrating (it is said) that the payment made to it in respect of PC 24 was justified and reasonable (Mr Portelli concluding that the overall amount charged by Deicorp Constructions for the provisional items was less than the amount that Mr Portelli assessed to be independently reasonable for those same items). 29. Before disposing of this aspect of the Arncliffe First Cross-claim, it is convenient briefly to adumbrate the Sayour Parties' submissions in reply. Sayour Parties' submissions in reply 1. It is noted that Combined Projects Arncliffe pleaded that, although PC 24 was purported to be a claim for payment under the Arncliffe Construction Contract (see amended statement of first cross-claim at [273]), the "Extra Over Amount" under PC 24 of $3,288,453.42 plus GST was not an amount that the Contract Superintendent was authorised to certify, and was not an amount that Deicorp Constructions was entitled to be paid (see amended statement of first cross-claim at [286]). It was also pleaded (see amended statement of first cross-claim at [294]-[298]) that Mr Deiri acted in breach of his duties to Combined Projects Arncliffe in causing that payment to be made. 2. As has been outlined, in its closing submissions, Combined Projects Arncliffe sets out a detailed explanation as to why the payments made to Deicorp Constructions pursuant to a superintendent's payment certificate that was not properly supported by evidence and information were not payments authorised by the Arncliffe Construction Contract (and concludes that any such payment can only be justified, if at all, on an extra-contractual basis, but that no such basis is available); and that Combined Projects Arncliffe also sets out why the process followed in respect of PC 24 did not accord with the construction contract, and says that PC 24 was approved in a perfunctory and irregular manner, without any proper explanation provided for the vast increase in the provisional sums. 3. Following, it is submitted that this amounts to sufficient pleading and proof of the ineffectiveness of the Arncliffe Construction Contract to justify the payment of this amount to Deicorp Constructions. 4. As to the question of consideration, the Sayour Parties say that in the case of Deicorp Constructions there is again no evidence that the services provided to Combined Projects Arncliffe were bargained for. It is said that Combined Projects Arncliffe's complaint against Deicorp Constructions is that there is no explanation or justification for the services that were supposedly provided to Combined Projects Arncliffe and that resulted in a multi-million dollar overrun in the provisional sums of the contract price. It is said that the parties had a contract to regulate what was to be paid; that this money was not due and payable under the contract; and that "is the end of it". 5. In any event, were it permissible to go further, Combined Projects Arncliffe submits that there is no evidence that the services performed by Deicorp Constructions added any value to the Arncliffe Development. It is said that there is no pleading or evidence that the lots in the Arncliffe Development would not have been fully sold, or would have only sold for lower prices, but for the provision of those goods and services, or even anything to suggest that there was any reasoned decision process undertaken to ensure that the goods and services represented good value for money (or any value at all) before Deicorp Constructions provided them. Pausing here, I here note also the submissions made as to when these extra works were purportedly undertaken, being at a time when many of the residential units had been sold (see above). 6. The Sayour Parties say that Deicorp Constructions' second cross-claim does not address this; rather, its case is in effect, simply that the services were provided to Combined Projects Arncliffe, and thus Deicorp Constructions is ipso facto entitled to full payment for those services regardless of the contract, even if Combined Projects Arncliffe did not bargain for them and even if there is no justification for the provision of the services under the construction contract (and, indeed, even if there is no evidence that the services added any value to Combined Projects Arncliffe or the Arncliffe Development). 7. The Sayour Parties say that Mr Portelli's evidence does not address this point; and, rather, even if one assumes that Mr Portelli has established that the amount paid by Combined Projects Arncliffe to Deicorp Constructions represented a fair price for the goods and services provided if they were needed and contracted for, there is no evidence in Deicorp Constructions' defence, or in its second cross-claim, that justifies (or "even tries to justify") the desirability or necessity of the provision of those services. 8. It is submitted that Deicorp Constructions, a sophisticated developer, provided unnecessary and unjustified "gold plated" services to Combined Projects Arncliffe, and demanded full payment for those services even though it had no contractual entitlement to payment. It is said that Mr Deiri, wearing his Combined Projects Arncliffe "hat" as well as his Deicorp Constructions "hat", authorised those payments without satisfying himself that the payments were authorised or required to be made under the contract between his two entities, and without there being any evidence to justify the reasonableness or necessity of the services; and that he knew when he did this that he was facing a shareholder claim, contesting his right to control the company. It is said that his conduct in the face of that action must be regarded as deliberately self-serving. 9. The Sayour Parties say that, in proceeding in this manner, Deicorp Constructions exposed itself to the risk that the ineffectiveness of the contract to justify the payments would later be exposed. They say that there is no injustice in requiring it to return the amount of the "Extra Over" payment under PC 24 to Combined Projects Arncliffe, which it took without any right to do so. 10. The Sayour Parties again note that, under the construction contract between Combined Projects Arncliffe and Deicorp Constructions, the formal instrument of agreement to the contract dated 27 April 2015 provides that the contract sum is $71.6 million plus GST; and it is noted that Item 11 of Part A of the contract provides that the project requirements are set out in the tender submission dated 20 April 2015 that is affixed to the contract and that, by that tender submission, Deicorp Constructions offered to carry out the complete design and construct works for the Arncliffe Site. 11. The Sayour Parties note, as to the functions and duties of a "principal's representative" charged with acting as a certifier by issuing payment certificates in respect of payment claims made by the contractor under the contract, that in Baulderstone Hornibrook Pty Ltd v Queensland Investment Corp [2006] NSWSC 522 (Baulderstone Hornibrook), Einstein J was found that the representative was required to act "reasonably and independently" (see at [25]-[33]) when acting as a certifier (whereas, under the Arncliffe Construction Contract, Mr Kyrikos' obligation was to act "honestly and fairly"). The Sayour Parties say there is no relevant distinction between the two obligations for present purposes. 12. Relevantly, in Baulderstone Hornibrook, Einstein J (at [30]-[31]) cited Hodgson JA, as his Honour then was, in Peninsula Balmain Pty Ltd v Abigroup Contractors Pty Ltd [2002] NSWCA 211 in support of the following propositions: … in circumstances where the Superintendent is empowered to grant an extension of time even when the contractor has not applied for it, must the Superintendent exercise this right fairly? … the answer to this question under AS 2124 is an explicit yes. The Principal shall ensure that at all times … the Superintendent … acts honestly and fairly. It may be arguable, then, that the Principal will be in breach of Contract to the contractor if the Superintendent does not exercise its right to unilaterally extend time in the contractor's favour. […] the authorities … are not altogether clear as to whether a person in the position of a superintendent of a building contract is the owner's agent in exercising all of the functions of the superintendent. However, in my opinion the better view (supported by Perini, Dixon, Egan and London Borough of Merton, and not refuted by Sutcliffe) is that the superintendent is the owner's agent in all matters only in a very loose sense, and that, when exercising certifying functions in respect of which the superintendent must act honestly and impartially, the superintendent is not acting as the owner's agent, in the strict legal sense. In my opinion, this is confirmed by the consideration that the issue of a certificate by the superintendent does not bind the owner to an extent beyond what is prescribed in the building contract itself, so that the owner can challenge such certificates. If the superintendent was acting as the owner's agent in the strict sense, the issue of the certificate would be an act done by the owner through its agent, which the owner could not then challenge". 1. The conclusion in Baulderstone Hornibrook (see at [32]-[33]) was that: 32. In the result is plain enough that [the Principal] is required under the Contract: i. to ensure that there is a Principal's Representative properly appointed; ii. to endeavour to ensure that the Principal's Representative acts honestly, reasonably and independently in relation to the exercise of the functions prescribed by the Contract to be carried out by such representative's activities [such as certification of payments due or sought under the Contract]. 33. Equally duties which, to use the words of Mason P in Beckhaus (above), "could be termed fiduciary duties" are owed by the Principal's Representative in relation to the exercise of the functions prescribed by the Contract to be carried out by such representative's activities. 1. It is also noted that, in Sutcliffe v Thackrah [1974] AC 727, the House of Lords held that the employer and the contractor make their contract on the understanding that, in all matters where the architect or administrator has to apply his professional skill, he will act in a fair and unbiased manner in applying the terms of the contract, and the administrator has to exercise his professional skill in a fair and unbiased manner when, for example, issuing payment certificates or deciding upon and granting extensions of time; and that, if the principal exerts pressure on the administrator when performing these functions with the result that the administrator allows his judgment to be influenced, his decision may be held invalid and set aside. 2. Finally, it is noted that in Perini Corporation v Commonwealth of Australia (Redfern Mail Exchange Case) [1969] 2 NSWR 530, the Court held that there was not only a duty on the employer, in the negative sense, not to interfere with the proper performance of the certifier's duties when considering extensions of time, but also, in the positive sense, a duty to ensure that the certifier was properly exercising his duty if it became aware that he was proposing to act improperly: the principal has an obligation to require the certifier to act in accordance with his mandate if it is aware that he is proposing to act beyond it. 3. It is submitted by the Sayour Parties that a payment made by Combined Projects Arncliffe, as principal, to Deicorp Construction, as contractor, following the issue of the payment certificate that (it is said) was not supported by evidence and information and that was not the product of the Contract Superintendent's reasonable measure or value of the relevant work, is not a payment that is authorised by the Arncliffe Construction Contract (and, therefore, not a payment of an amount due under the contract). 4. Following, and as has been adverted to, It is submitted that such a payment can only be justified (if at all) on an extra-contractual basis (and that there are considerable difficulties of principle and authority in the way of any such attempt). 5. In this regard, the Sayour Parties refer to Brewarrina Shire Council v Beckhaus Civil Pty Ltd (2003) 56 NSWLR 576; [2003] NSWCA 4 (Beckhaus), where the Court of Appeal (Mason P, Ipp JA and Young CJ in Eq, as his Honour then was) considered an appeal from an order for summary judgment against the principal under a building contract and in favour of the plaintiff contractor. The judgment sum was in the amount of a payment claim submitted by the plaintiff contractor to the superintendent appointed under the building contract (see at [2]). The construction contract under consideration in Beckhaus had a cl 42.1, which appears to have been relevantly identical in relevant parts to cl 42.1 of the Arncliffe Construction Contract (see [35]). The superintendent did not issue a payment certificate within the time specified in the contract, and the contractor sought summary judgment for the full amount of the claim. 6. In upholding the principal's appeal, Ipp JA (with whom Mason P agreed at [1], Young CJ in Eq dissenting) held that the requirement to supply evidence and information to the contract superintendent in support of a claim for payment was a condition precedent to the superintendent's obligation to issue a payment certificate (see at [30]-[36]): 30. [Counsel for the respondent contractor] submitted that the words [in clause 42.1] requiring the contractor to supply evidence and information in support of claims for payment are merely facilitative and do not impose any obligation on the contractor. For my part, however, I can see no point in the clause incorporating the words in question without those words having some contractual effect. There is a strong presumption against words being otiose. 31. One does not have to go far to find an important contractual and practical purpose for the requirement that the contractor provide evidence of the amount due and information reasonably required by the contractor. I have referred to the real possibility that a superintendent might need evidence and information before being able to issue a reasonably accurate payment certificate. By cl 23 of the contract the principal is required to ensure that the superintendent "arrives at a reasonable measure or value of work, quantities or time". Without a contractor providing evidence of the amount claimed by it and information that the superintendent might reasonably require, the superintendent might well not be able to make a reasonable measurement or valuation of the work, quantities or time. It follows that superintendent's ability to issue a certificate in accordance with cl 23 might well depend on the contractor supporting its claim for payment by evidence and by providing information to the superintendent that he or she may reasonably require. 32. Moreover, the second paragraph of cl 42.1 requires the superintendent, in a payment certificate, to set out his or her calculations and the reasons for any difference between the amount certified and the amount claimed. The superintendent's ability to comply with this requirement, also, may well rest on whether the requisite evidence and information is provided. 33. The fact that the ability of the superintendent to comply with cl 23 and the second paragraph of cl 42.1 may depend on whether the contractor complies with the requirements set out in the first sentence of the first paragraph of cl 42.1 is a powerful indication that the latter requirements are intended to have contractual force. For present purposes, it is not to the point whether that force results in a contractual obligation to perform or a non-promissory condition. What is to the point, in my view, is that on either basis, the superintendent does not have to issue a payment certificate until the evidence and information is provided. 34. In this sense, the requirement that the contractor provide the necessary evidence and information is comparable to the purchaser's obligation to serve a notice to complete. This notice has to be served before the vendor can be required to complete the sale: Michael Realty Pty Limited v Carr [1977] 1 NSWLR 553 at 571. In the same way, the evidence and information have to be provided before the superintendent can be required to issue a payment certificate. They are both conditions precedent to performance. 35. The form of cl 42.1 supports this inference. For the sake of convenience, I shall repeat the relevant parts of the clause. They are: "At the times for payment claims stated in the Annexure …., the Contractor shall deliver to the Superintendent claims for payment supported by evidence of the amount due to the Contractor and such information as the Superintendent may reasonably require. … Within fourteen days after receipt of the claim for payment, the Superintendent shall issue to the principal and to the Contractor a payment certificate stating the amount of the payment which, in the opinion of the Superintendent, is to be made by the principal to the Contractor or by the Contractor to the principal. The Superintendent shall set out in the certificate the calculations employed to arrive at the amount and, if the amount is more or less than the amount claimed by the Contractor, the reasons for the difference". 36. The requirement that payment claims be supported by evidence and information is closely followed by the provision that, within 14 days after receipt of a claim for payment, the superintendent shall issue a payment certificate. The juxtaposition between the requirement to supply evidence and information, on the one hand, and the obligation of the superintendent to issue a payment certificate, on the other suggests that there is a relationship and connection between the provision of evidence and information and the issue of a payment certificate. In my opinion, the relationship and connection is as stated above. 1. It is noted that in Isis v Clarence [2004] NSWSC 73, the Court considered (at [27]-[40]) whether the principles articulated in Beckhaus (that the obligation of the superintendent to issue a payment certificate in regard to a progress claim is subject to the condition precedent that the contractor support that claim with evidence of the amount due to it) applied in the case of a construction contract, the terms of which differed from those in Beckhaus insofar as the words "subject to the provisions of the contract" did appear in the clause setting out the principal's payment obligation following the issue of the superintendent's payment certificate. The Court held (at [33]) that the issue of a certificate was still required as a precondition to payment, and that, "tend[ed] to suggest that the principal's liability to pay is thus also conditioned upon the issue of a certificate". 2. The Sayour Parties note that the Court of Appeal (McColl JA, Handley AJA and Sackville AJA agreeing) also considered notice requirements under a construction contract in Al-Atabi v Zaidi [2009] NSWCA 433 (Al-Atabi). There, the contract required the contractor to give notice in writing of any variation to the owner, and for that notice to be signed and dated by both parties to constitute acceptance (see at [15]). The Court of Appeal noted (at [16]-[17]) that the primary judge found that the notice procedures had not been complied with, and no written notices of variations were ever given to the owner, and held (see at [61]) that the appellant contractor had thus not demonstrated that the primary judge had erred in concluding that the work described as a variation was not a variation, but rather was covered by the lump sum contract price. 3. Following, it is submitted by the Sayour Parties that, in the present case, there is no suitable basis on which it can be concluded that any notice of the variations or work the subject of PC 24 was given in accordance with the contract, nor that there were proper variations thereof at all, nor that the work had been directed by the Superintendent under cl 11 before it was done. It is submitted that the unexplained absence of any direction to undertake the variations or work, or any evidence as to why the purported variations or work were considered necessary or desirable to undertake, is of significance in this regard. 4. It is noted that the Court of Appeal in Al-Atabi also held (see at [65]-[66]) that the principle enunciated by the High Court in Liebe v Molloy (1906) 4 CLR 347; [1906] HCA 67 (Liebe) did not apply (i.e., the principle that a contracting party may be entitled to relief where, notwithstanding failure to comply with a notice stipulation under the contract, there was an implied or express request that the work which should have been the subject of the stipulation be done). The Court of Appeal held that it was clear from Liebe and subsequent cases that, if the work claimed for was work the contract required to be done, the contractor could not recover for it by quantum meruit (and, see also my discussion of related issues vis-à-vis Mann – see above). 5. The Sayour Parties say that, in the present case, it would be artificial to posit a request from Mr Deiri (as controller of Combined Projects Arncliffe) to request himself (as controller of Deicorp) to undertake the work subsequently claimed in PC 24, including an amount of 15% on account of profit and attendance (they say that one does not have a meeting with oneself and there cannot have a meeting of one but in any event, there is no evidence of this). In the alternative, it is submitted that this could not enliven the Liebe principle, given Mr Deiri's duties (as controller of Combined Projects Arncliffe) to his fellow shareholder Sayour Holdings and, in particular, his obligations under the profit rule. 6. It is noted that Lord Sumption, with whom Lady Hale, Lord Wilson and Lord Lloyd-Jones agreed, in Rock Advertising Ltd v MWB Business Exchange Centres Ltd [2019] AC 119; [2018] UKSC 24 identified (see at [12]) three reasons were given for the requirement that a contractor obtain an order in writing or a superintendent's certificate as a prerequisite to its right to recover payment, namely: one, to prevent attempts to undermine written agreements by informal means; two, to avoid misunderstandings; and, three, because a measure of formality in recording variations makes it easier for companies to ensure compliance with internal rules restricting the authority to agree such variations. 7. The Sayour Parties note that Mr Gregoire, Deicorp Constructions' project manager for the Arncliffe Development, gives evidence that he "recall[s] to the best of [his] knowledge" that, prior to the issue of variation request document No 10 (which gave rise to the "Extra Over" sums claimed under PC 24), he participated in a procedure involving the request for tenders, a tender analysis and the application of tender selection criteria before the work was undertaken. Here, complaint is made that Mr Gregoire does not explain why any of the work that was the subject of this variation was considered necessary or desirable to undertake. 8. It is noted that (at [35]-[180] of his affidavit sworn on 24 September 2019), Mr Gregoire provides detail about the costs associated with those works. The Sayour Parties do not dispute that those works were in fact undertaken, but it is submitted that the fact that the works were in fact undertaken is not relevant to the assessment of: whether they were undertaken in accordance with the terms of the Arncliffe Construction Contract; whether they were necessary; whether they were directed by the Contract Superintendent; and, if so, whether such direction was given in accordance with the contract; nor as to whether Deicorp Constructions was entitled to be paid by Combined Projects Arncliffe for those works, including the 15% amount for profit and attendance on top of the tender price for those works with which Combined Projects Arncliffe was fixed. 9. As to Mr Portelli's evidence (and, see above as to the emphasis that the Deicorp Entities here place on this), the Sayour Parties submit that Mr Portelli's opinion as to the fairness and reasonableness of those sums claimed is not relevant to any fact in issue in the proceedings, as the question is whether those sums were properly incurred in relation to expenses authorised under the construction contract, and not whether they were "fair and reasonable" according to some measure standing outside the contract (particularly as this does not involve any evaluation of whether the works were necessary notwithstanding the original contract figures for provisional sums). In any event, they say that the basis for Mr Portelli's reasoning is insufficiently explained in his report such that only place little weight, if any, could be placed on his opinions. By way of example, it is noted that Mr Portelli does not explain what he means by "a competitive outcome". 10. In this connection, the Sayour Parties repeat their submissions in relation to the expert evidence from Mr Sanig (see above), a quantity surveyor, in the form of a report on behalf of Combined Projects Arncliffe. It is noted that, in relation to PC 24, Mr Sanig said the following: that there is no evidence that the Superintendent gave any direction as to the variations or adjustments to provisional sums that were the subject of PC 24 (see at [1.18]); that variations and provisional sums had been impermissibly "mixed up" in PC 24 (see at [1.19]); that a competent superintendent would have ensured that reasons were provided as to why each claim for a variation led him or her to conclude that the claim was in fact a variation (see at [1.20]); that a competent superintendent should demonstrate that the process adopted to deal with variation claims is in accordance with the contract and that variations are not approved with any formal process of examination (and that this has clearly not happened in this instance) (see at [1.21]); that the superintendent has not commented on the large increases in provisional sums claimed under PC 24, and that a competent superintendent would have sought justification for such large increases (at [1.23]-[1.24]); and that he could not see, based on the material before him, how a competent superintendent could have assessed these costs without a substantial amount of backup material, and that there is no evidence of a transparent process having taken place, or of any superintendent's directions initiating the work (see at [5.16]). 11. The Sayour Parties submit that, in the circumstances, PC 24 was approved in perfunctory manner and not in accordance with the contract; that it related to work and materials that it has not been shown were directed in accordance with the contract; and that there is a lack of any proper explanation for the vast increase of the contract provisional sums. They note that this payment occurred at approximately the same time as other large payments that are complained of and that left Combined Projects Arncliffe without any, or any substantial, funds for its shareholders. 12. It is submitted that Mr Deiri's evidence does not suggest that he gave any reasonable consideration to the basis for the payment of millions of dollars of Combined Projects Arncliffe's funds under PC 24, in circumstances where his company was benefiting therefrom. The Sayour Parties say that he failed to comply with the profit rule, the conflict rule and the statutory duties complained of in failing to do that which, in the circumstances, he ought to have been assiduous to do, particularly as there was an ongoing shareholder dispute at this time and that he must have appreciated that the claim would come under scrutiny. It is said that he has failed to provide any adequate explanation. Determination re payments under construction contract and "extra over amounts" (PC 24) 1. Generally for the same reasons as the payment of $753,709 agency commissions, I accept that there is an entitlement on the part of Deicorp Constructions to retain these amounts. 2. As an initial matter, I accept that a distinction must be made between an allegation that a sum, included in a payment claim or which was paid pursuant to a progress certificate, was not an amount for which Combined Projects Arncliffe could ever have been liable to pay Deicorp Constructions (because, for example, irrespective of the processes followed, no such sum would ever have been due); and an allegation that the some procedures followed by Momentum were not in accordance with the terms of the Arncliffe Construction Contract. Following from this, I accept the characterisation here offered by the Deicorp Entities that, in the former, one might classify the complaint as a substantive one; whereas, in the latter case, the complaint is more procedural (though, I would add, that acceptance of this proposition does not, of itself, mean that a payment in the latter category is not recoverable). 3. With this in mind, I see force to the submission that the expert evidence, which again I here accept, reveals that the complaints made at this juncture, and in support of the claim, are essentially procedural only, noting that, to a large extent, Mr Sanig was asked only to review the methodologies used to process variations, provisional sums and PC 24. 4. Again, it is here necessary for the Sayour Parties to show that it would be unjust or inequitable for Deicorp Constructions to retain the impugned sum. 5. In this connection, I note the lay evidence and documentary material referred to by the Deicorp Entities and, perhaps more importantly, the expert evidence of Mr Portelli as to the justification for, and reasonableness of, the sums claimed in PC 24. 6. To the extent that any issue here arises in relation to Jamil's authority, I note my determination concerning ratification of those actions. 7. Again, I note what I have already said in relation to the payment of $753,703 in agency commissions. The preceding is sufficient to dispose of this aspect of the First Arncliffe Cross-claim. 8. Finally then, I turn to the other extant issues raised by the First Arncliffe Cross-claim. Extant claims and issues: challenge to initial appointments etc 1. The remaining claims for relief in the principal claim in the Arncliffe Proceedings fall into the following categories: declarations relating to the constitution and directors of Combined Projects Arncliffe (see prayers 1A to 1E, 2 and 3); injunctions concerning the payment of dividends or distributions out of Combined Projects Arncliffe (prayers 6, 6A, 7A and 7B); and injunctions concerning other payments out of Combined Projects Arncliffe (prayer 7). Challenges to initial appointments and resolutions 1. As to the challenges raised by Sayour Holdings to the initial appointments and resolutions of Combined Projects Arncliffe, the Deiri Parties note that, although Sayour Holdings originally claimed that the resolution of Combined Projects Arncliffe on 29 January 2014 to appoint Ms Marea Howe as its managing director was invalid (because it was not a resolution of directors and Mr Maurice Howe, who was a director, did not sign it), Sayour Holdings now accepts that Combined Projects Arncliffe's interim constitution makes that contention untenable (see cl 4). 2. At the time of Ms Howe's appointment as managing director of Combined Projects Arncliffe, the sole shareholder of Combined Projects Arncliffe was Subscriber 1 Pty Ltd. In her capacity as a director "of the member company", Ms Howe attended a meeting of Combined Projects Arncliffe, in which it was resolved that she be appointed as Managing Director of the company, "pursuant to the provisions of the Constitution, with the authority to exercise all of the powers of the Directors whilst acting alone and without conferring or meeting with the other directors of the company". Thus it is submitted that Ms Howe's appointment as managing director was valid. 3. Insofar as Sayour Holdings challenges the validity of the resolution in which Ms Howe appointed Mr Deiri as director (on the basis that the repeal of the interim constitution "destroyed the appointment and powers of Marea Howe as managing director to act as exercising all the powers of directors without meeting or consulting with them"), the Deiri Parties say that this argument fails for the following reasons. 4. First, they say that the argument assume that it was only the interim constitution that made provision for the existence of a managing director, so that, upon repeal of the interim constitution, the office of managing director would necessarily cease to exist but that the constitution that replaced the interim constitution did make provision for the continuing existence of the office of managing director, in terms that corresponded to the provision for a managing director made in the interim constitution (referring to rule 13 and Schedule 3 of the constitution). The Deiri Parties argue that the interim constitution and the subsequent constitution each make provision in corresponding terms for the continued existence of an office of managing director. It is said that at all times, the office that Ms Howe held was sustained and continued in force by one or other of the two constitutions. 5. Second, the Deiri Parties say that the resolution appointing Ms Howe as managing director itself specified the time at which that appointment was to expire; providing that her appointment was "to expire at the conclusion of the meeting of the Directors at which the REGISTRATION share is redeemed". It is noted that the meeting at which Subscriber 1 Pty Ltd's registration share was redeemed was the very same meeting at which Mr Deiri was appointed a director, with the result that Ms Howe's appointment as managing director lasted until at the end of that meeting (by which point, it is said, Mr Deiri had been validly appointed as a director of Combined Projects Arncliffe). 6. Third, they say that the resolution appointing Ms Howe as managing director made clear that its purpose was to ensure that Ms Howe's appointment would last long enough to enable her in turn to appoint new directors and to issue shares to new shareholders (referring to the terms of the resolution in that regard). 7. Fourth, the Deiri Parties say that Ms Howe's office as managing director continued in existence notwithstanding the adoption of a new constitution by virtue of s 198C of the Corporations Act, which provides that the directors of a company may confer on a managing director any of the powers that the director can exercise, and that the directors may revoke or vary such a conferral of powers. The Deiri Parties say that, as such, even in the "sliver of time" between the repeal of the interim constitution and the adoption of the new constitution, Ms Howe's office was at all times a statutory office as well as a constitutional office. It is noted that s 198C is a replaceable rule; and that cl 3 of the interim constitution expressly adopts all such rules. While the new constitution contains no reference to the replaceable rules, it is said that that does not mean that they are thereby abrogated (reference being made to s 135(2) of the Corporations Act in this regard). The Deiri Parties say that, rather than modifying or destroying the office of managing director, the new constitution re-affirmed it, in terms that corresponded to those contained in the interim constitution. As such, it is submitted that at all times from her appointment as managing director until the redemption of Subscriber 1 Pty Ltd's registration shares, Ms Howe's appointment as managing director had a single statutory basis, and a composite constitutional basis derived originally from the interim constitution and then from the new constitution. 8. Fifth, it is said that, in any event, all of the relevant resolutions of Combined Projects Arncliffe are dated 29 January 2014, and do not contain a time. It is said that, in order to discharge its onus of showing that Mr Deiri was invalidly appointed as a director, Sayour Holdings needs to prove that the resolution adopting the new constitution preceded the resolution appointing Mr Deiri as a director; and that there is no indication on the face of the documents that they were done in this order. 9. Sixth, the Deiri Parties say that even if Sayour Holdings could prove that the constitution resolution preceded the director resolution, the Corporations Act has the effect that the director resolution occurred first in event. It is noted that s 137(a) of the Corporations Act relevantly provides that if a new constitution is adopted by way of special resolution, it takes effect "on the date on which the resolution is passed" (that is, 29 January 2014). It is said that the same is true of a modification or repeal of an existing constitution. It is noted that s 36(1), item 5, of the Acts Interpretation Act 1901 (Cth) provides that if a period of time is expressed to begin from a specified day, then the period of time does not include that day. Reference is made to the fifth of the examples there given. It is said that, on the application of these provisions alone, the adoption of Combined Projects Arncliffe's new constitution, and the repeal of its interim one, did not take effect in any event until 30 January 2014, at which point in time Mr Deiri had already been appointed. 10. Finally, if the appointment of Mr Deiri as a director and secretary of Combined Projects Arncliffe contravened or did not comply with the Corporations Act or the constitution of Combined Projects Arncliffe, then Deiri Nominees seeks an order pursuant to s 1322(4)(b) of the Corporations Act declaring that Mr Deiri's appointment as director and secretary of Combined Projects Arncliffe on 29 January 2014 was not invalid by reason of those contraventions or non-compliances. Determination re challenges to initial appointments and resolutions 1. To the extent that the challenge to the validity of the appointments and resolutions is maintained, I am not persuaded that it succeeds (see my disposition of the Third Arncliffe Cross-claim below). Extent of relief and oppression 1. As to the submission by the Sayour Parties as to the appropriate relief, the Deiri Parties say, first, that to the extent that there are any funds that were paid out to Deiri Nominees in breach of duty, rather than ordering Deiri Nominees to pay those funds to Combined Projects Arncliffe (so that it can in turn pay those funds in accordance with the shareholders' profit entitlements), there should simply be an order that Deiri Nominees make payment of that share of the judgment proceeds to Sayour Holdings directly. It is submitted that there is power to craft the relief appropriate to resolve the dispute finally and that orders should be made simply to direct the payment of funds in accordance with where they are ultimately destined and that the relief as sought by the Sayour Parties (for judgment in favour of Combined Projects Arncliffe for those amounts) is only likely to prolong the dispute between the parties. 2. Second, insofar as relief is sought in the nature of an oppression remedy appointing Yesmine and an independent person as directors of Combined Projects Arncliffe, the Deiri Parties say that, to the extent that there ever was a basis for such relief, it ceased through the provision of information to Sayour Holdings through the course of the Arncliffe Proceedings. It is said that, insofar as the distribution of company proceeds is concerned, again there would simply be an order that the proceeds be paid directly to members. The Deiri Parties submit that the appointment of an independent board to Combined Projects Arncliffe is not an appropriate remedy and that, even if there be a finding of continuing oppression, Combined Projects Arncliffe ought to be wound up and a liquidator appointed. 3. In this respect, it is said that an appropriate liquidator would be Mr Lord, the receiver in the Broadway Proceedings and who has consented to being the liquidator of Matthews Street Co. It is submitted that there no utility in appointing new directors to Combined Projects Arncliffe, given the dispute between the parties, and that the company has no further purpose. 4. Meanwhile, the Sayour Parties submit that Mr Deiri's conduct of the affairs of Combined Projects Arncliffe is not to be hidden behind the curtain of an unfunded liquidation. It is said that there is utility in appointing an independent board to oversee the disbursal of any funds, and to investigate the affairs and transactions of Combined Projects Arncliffe before any further decisions are made as to its future. Determination re extent of relief and oppression 1. Again, to the extent that the parties remain at issue in relation to this, I refer to my disposition of the Third Arncliffe Cross-claim. 2. I now turn to the Second Arncliffe Cross-claim. Second Arncliffe Cross-claim 1. Deicorp Constructions has filed a second cross-claim in the Arncliffe proceedings bringing what is said to be essentially a defensive cross-claim against Combined Projects Arncliffe. Insofar as Sayour Holdings challenges payments made to Deicorp Constructions in relation to the construction of the Arncliffe development (for non-compliance with contractual provisions permitting payment), Deicorp Constructions pleads a quantum meruit and quantum valebat claim. 2. Deicorp Constructions seeks judgment against Combined Projects Arncliffe in the sum of $3,617,298.76, or such amounts as might be determined, upon a quantum meruit and/or quantum valebat basis, in relation to the goods and services provided by Deicorp Constructions to Combined Projects Arncliffe the subject of the provisional sum adjustment contained in PC 24; combined with an order for set-off or a declaration that Deicorp Constructions is entitled to retain that amount. 3. Mr Kyrikos (the Contract Superintendent) and Mr George Gregoire (Deicorp Constructions' senior project manager) have filed and served affidavits in support of Deicorp Constructions' defence to the first cross-claim and the second cross-claim. Deicorp Constructions also relies on an expert report of Mr Portelli. 4. Sayour Holdings challenges the issue as to whether Deicorp Constructions provided those goods and services to Combined Projects Arncliffe as claimed in the second cross-claim, or if it did so, the assertion that those goods and services had the value attributed to them. 5. Deicorp Constructions pleads the second cross-claim (at [6]) on the basis that "even if there was no valid and effective contractual arrangements in place between [Combined Projects Arncliffe], on the one hand, and Deicorp [Constructions], on the other hand, it remains the case that Deicorp [Constructions] would be entitled to make a claim for payment or compensation, upon a quantum meruit and/or quantum valebat basis" in respect of the goods and services the subject of PC 24. 6. By way of summary, Deicorp Constructions claims that: it caused the supply of goods and services under the Construction Contract, or purportedly under the Construction Contract, including the works the subject of PC 24 and the "extra overs" relating to that claim about which Combined Projects Arncliffe complains; it provided sufficient goods and services such that Combined Projects Arncliffe received the full benefit of the works the subject of PC 24 and the "extra overs"; and, in all of the circumstances, even if there was no valid and effective contractual arrangement in place between Combined Projects Arncliffe and Deicorp Constructions, Deicorp Constructions is entitled to payment or compensation on a quantum meruit or quantum valebat basis for the goods and services it provided in respect of PC 24 and the provisional sum adjustments. 7. Deicorp Construction relies on the same evidence as that relied on in answer to the Arncliffe first cross-claim in support of this claim (particularly the evidence of Mr Portelli), including: the affidavit of Mr Kyrikos as to the process he adopted in assessing progress claims, including PC 24; the affidavit of Mr Hammond sworn on 12 September 2019 as to the process he adopted in assessing the works on that project, including in respect of PC 24, and his recommendation for Progress Certification No. 24; and the expert report dated 30 September 2019 of Mr Portelli (who has concluded that a reasonable amount to be charged for the provisional sums under PC 24 was $7,524,020.41, which is marginally higher than the amount charged by Deicorp Constructions for those provisional sums (i.e., $7,487,594) and, therefore, that the amount that Deicorp Constructions charged for those items (which include the extra overs) was reasonable. It is noted that Mr Portelli also concludes that a profit margin of 15% was fair and reasonable for the provisional sums under PC 24. The Deicorp Entities again refer to Appendix A to their submissions containing evidentiary references in respect of the items comprising PC 24. 8. Deicorp Constructions contends that its entitlement to remuneration on a quantum meruit or quantum valebat undermines Combined Projects Arncliffe's claim for restitution, referring again to the authorities as to claims for restitution referred to above (and see, particularly Adrenaline v Bathurst Regional Council and the authorities referred to therein). It is said that Combined Projects Arncliffe accepted the benefit of the supplies and the works the subject of PC 24 and that in the event that Combined Projects Arncliffe is found to be entitled to be reimbursed what it paid for those works, then it will be unjustly enriched. It is submitted that the purpose of a claim for quantum meruit and quantum valebat is to rectify precisely that type of unjust enrichment, where there is no applicable genuine agreement, or where such agreement is frustrated, avoided or unenforceable. 9. The Deicorp Entities therefore submit say that in the event that the Court is satisfied that Deicorp Constructions has performed work on the Arncliffe project which provided Combined Projects Arncliffe with substantially the value for which it purportedly contracted under the Construction Contract, there would not be an order for restitution of the Extra Over Payment to Combined Projects Arncliffe. 10. As may be observed, this aspect of the Arncliffe Proceedings raises similar, if not the same, issues as those raised by the Sixth Broadway Cross-claim (see above). Accordingly, it is unnecessary here to adumbrate many of the submissions made in relation to this aspect of the proceedings. 11. Rather, it is sufficient here to note that it is submitted that Mr Kyrikos' certificate clearly did not properly set out the calculations he employed; and that Mr Hammond simply accepted the figure that was put before him by Mr Kyrikos, without examining its elements, because it had been signed off by Combined Projects Arncliffe (represented by Mr Deiri) and by Deicorp Constructions (also represented by Mr Deiri). Again, as above, complaint is made that there is no or no sufficient evidence explaining why the work the subject of PC 24 was carried out at all. 12. The Sayour Parties say that there was thus no honest and fair assessment of the work that was the subject of PC 24, or of the constituent elements of the claim itself, and they submit therefore that the payment to Deicorp Properties following the issue of the progress certificate was not a payment made or calculated in accordance with the contract. It is said that this was an extra-contractual payment, which Deicorp Properties was only able to receive "because the persons charged with scrutinising the propriety, and the contractual adherence of the payment, acted in reliance on an assumption that no person other than Mr Deiri had any interest in the correctness of the payment or the calculation of the relevant amount". 13. They say that Sayour Holdings (as a shareholder in Combined Projects Arncliffe) had an interest in moneys not being improperly transferred from Combined Projects Arncliffe to Deicorp Properties. 14. The Sayour Parties say that it follows from Mann that Deicorp Properties is only entitled to amounts calculated in accordance with the contract, and cannot achieve in quantum meruit what it did not achieve under the contract. Furthermore, it is said that it would be inconsistent with the principle that restitutionary claims are confined by contractual measures merely to set the total contractual limit as a cap and to fail to give to the owner credit for savings (as it is said there were in this case). 15. The Sayour Parties also note that, in relation to the Arncliffe Development, the date of practical completion was certified by Momentum (Mr Kyrikos) as 8 February 2018 and that the 56 week limitation period expired before the Second Arncliffe Cross-claim was filed on 23 August 2019. The Sayour Parties here again note that, in Mann, the High Court dealt with statutory provisions setting out the requirement that a written notice of proposed variations be given and held that these reflected "a legislative intent to cover the field of the remuneration payable to builders for work and labour done in response to requested variations under major domestic building contracts" (per Nettle, Gordon and Edelman JJ at [158]) (and consequently that to permit any alternative form of recovery for work under a variation not notified in accordance with the statute, whether contractual or restitutionary and including pursuant to general remedial provisions of the legislation, would have the effect of frustrating or defeating, or at least operating inconsistently with, the legislative intent expressed in the legislation that written notification of proposed variations operates as an essential protective mechanism). As in respect of the claim in the Sixth Broadway Cross-claim (see above), the Sayour Parties say that this reasoning (although developed in respect of a statutory regime) was developed essentially as a matter of construction; and there is no reason why it would not be equally applicable to a contractual regime for the limitation of liability (such as that which appears in the present contract): the contract clearly contains an express statement of intention to bar claims that are out of time and, in those circumstances, it would defeat the contractual purpose if that bar could be outflanked by the expedient of a restitutionary claim; and, therefore, they maintain that the claim is not available. Determination re Second Arncliffe Cross-claim 1. In disposing of this aspect of the Arncliffe Proceedings, I here have in mind what I have said in relation to the quantum meruit and quantum valebat claims in the Broadway Proceeding (see above). 2. At this stage, it is sufficient again to note those matters and my disposition in relation to the PC 24 claims and related claims under the First Arncliffe Cross-claim, on which Deicorp Constructions has succeeded. 3. Finally, I turn to the Third Arncliffe Cross-claim. Third Arncliffe Cross-claim 1. As adverted to, by the Third Arncliffe Cross-claim, Mr Deiri and Deiri Nominees (in this context, those two only being the Deiri Parties) seek declarations and orders in relation to the ownership and direction of Sayour Holdings and Combined Projects Arncliffe (as set out above), including for the rectification of the registers of those companies. Combined Projects Arncliffe is named as the fourth cross-defendant as a necessary party. None of the Deicorp Entities otherwise has any involvement in the Third Arncliffe Cross-claim. 2. It is relevant to note that a considerable extent of this cross-claim is premised on there being various factual findings inconsistent with those sought by the Deiri Parties (see above). In particular, the fact that, from around 16 December 2013 onwards, Moustafa consented to becoming a director and shareholder of Sayour Holdings is sufficient to dispose of prayers for relief 1 through 9 of the Third Arncliffe Cross claim (which concern the membership and directorship of Sayour Holdings). 3. Having said this, it is convenient here to outline various other aspects of the relief sought by the Third Arncliffe Cross-claim. Outline of various aspects of relief sought 1. In short, the Deiri Parties contend as follows. 2. First, that Moustafa did not know until at least 8 December 2015 that he was a director or member of Combined Projects Arncliffe (at [6(j)] and [113] of the defence cf [7] and [25] of the further amended statement of cross-claim); and that Moustafa represented to Mr Deiri in December 2015 that he did not want anything to do with Combined Projects Arncliffe, which (it is said) amounted to an abandonment by Sayour Holdings of any interest in Combined Projects Arncliffe (see at [6(k)-6(l)] of the defence cf [26]-[27] of the further amended statement of cross-claim). 3. It is contended that Moustafa: did not consent in writing or at all to be a member or director of Sayour Holdings prior to, or at the time of, its registration; was never issued with shares in Sayour Holdings; and was never a member or director of Sayour Holdings (at [114] and [115] of the defence cf [8] and [10] of the further amended statement of cross-claim). 4. Similarly, and as has been adverted to, the Deiri Parties allege that on 21 August 2014 Jamil lodged an ASIC form appointing Jamil as director that was falsely represented to have been signed by Moustafa (at [118] of the defence cf [15] of the further amended statement of cross-claim); and that Jamil was never a director of Sayour Holdings and never had the power to appoint himself as director (at [120]-[122] of the defence cf [16]-[18] of the further amended statement of cross-claim). 5. Next, it is contended that on 26 March 2018 Moustafa purported to appoint Yesmine as a director of Sayour Holdings but that the appointment was invalid because Moustafa had no power to do so as he was not a director (at [116]-[117] of the defence cf [12]-[13] of the further amended statement of cross-claim). 6. It is then contended that, because none of Moustafa, Jasmine or Jamil was ever a director, Sayour Holdings has had no directors (at [123] of the defence cf [20] of the further amended statement of cross-claim). It is said that Sayour Holdings has never been able to appoint any directors because Moustafa was never a director, and thus it has at all times been unable to act, and thus all of the pleadings in the Arncliffe proceedings were filed without authority (at [124] of the defence cf [21] of the further amended statement of cross-claim). 7. Finally, it is contended that because Sayour Holdings has had no directors since its incorporation, Sayour Holdings did not consent to be, and is not, a shareholder in Combined Projects Arncliffe (at [6(i)] of the defence cf [24] of the further amended statement of cross-claim). 8. As an alternative case, the Deiri Parties seek (by prayers 16 and 17 of the Third Arncliffe Cross-claim) declarations to the effect that Sayour Holdings is bound by the "Arncliffe Agreement", being the agreement allegedly entered into between Combined Projects Arncliffe, Deiri Nominees and Sayour Holdings on about 29 January 2014 and then varied on 8 January 2015 (at the meeting the subject of the Tripoli Minute) and then again in late September or early October 2015. 9. It is noted that the Deiri Parties bear the onus of proving the existence of the Arncliffe Agreement and its supposed variations. 10. With that outline, I turn now to submissions for Sayour Holdings (and Combined Projects Arncliffe). Sayour Holdings' submissions 1. The cross-defendants (again, as noted, Sayour Holdings and Combined Projects Arncliffe) submit that, if it is found that Moustafa properly assented to become a member and director of Sayour Holdings or ratified by his conduct the issue to him of shares in Sayour Holdings, then the Deiri Parties' prayers for rectification of the registers of Sayour Holdings, and Combined Projects Arncliffe, must fail. 2. It is further said that validity of the appointment of Moustafa as a director is not to the point, given that he was and is the sole shareholder and is entitled to control the company under the Duomatic principle. As has been detailed or otherwise referred to above, Moustafa gives evidence (see at [10]-[13] of his affidavit sworn on 8 November 2019) that, in August 2014, Mr Gramelis attended Moustafa's office with a number of corporate documents for signature. 3. Moustafa (see at [26]-[30] of his affidavit sworn on 8 November 2019) confirms that the signature on various documents is his signature and that he believes that these documents were among the documents that Mr Gramelis brought to him for his signature in August 2014. 4. Following, it is submitted that: Moustafa consented in writing on to be a member and director of Sayour Holdings no later than August 2014; Sayour Holdings' share register records him as the holder of its 100 shares; and the Deiri Parties' assertion that Moustafa was never issued shares in Sayour Holdings and never consented to be a director or member are not made out. In any event it is said that Moustafa is now and was at all times during these proceedings the sole shareholder in Sayour Holdings and was thus able to hold office as a director and to appoint Yesmine as a director of that company. 5. At this juncture, again, I note my disposition of the relevant factual findings above. 6. It is noted that s 231 of the Corporations Act provides that a person becomes a member of a company if: the person is a member of the company on its registration; or agrees to become a member after its registration and his name is entered on the register of members. 7. Further, reference is made to Re Hunter Resources Ltd (1992) 34 FCR 418, where Lockhart J discussed the operation of s 184 under the old Corporations Law, which provided (as does s 231) that, for a person to become a member of a company, he, she or it must agree to do so; and his Honour there held that the section used the word "agrees" in the sense of assent. 8. It is submitted that Moustafa assented by no later than August 2014 to become a member of Sayour Holdings by fixing his signature to a consent to be a member and to accept the issue of shares to him, and that his name was entered on the share register no later than that date, and that he has therefore been a member of Sayour Holdings since at least that date. It is submitted, in the alternative, that Moustafa subsequently ratified that assent by performing and discharging the duties of a director of Sayour Holdings, including by causing the Arncliffe Proceedings to be commenced in the name of Sayour Holdings. 9. It is submitted that there has been no abandonment or relinquishment of Sayour Holdings' interest in Combined Projects Arncliffe. Insofar as the Deiri parties' plead that Moustafa abandoned his interest in Combined Projects Arncliffe in a telephone conversation in about December 2015 (which is understood to be a reference to an alleged conversation recounted at [104] of Mr Deiri's affidavit sworn on 16 October 2019), it is said that this allegation has no foundation. 10. It is said that this "abandonment" allegation cannot encompass a release (as a release must be effected by deed or for consideration) and cannot be an election (as that would require full knowledge of every material fact, and noting that this was a situation where Moustafa was confronted with an immediate need to decide between two mutually inconsistent courses of conduct in the sense that he could not take one course and retain the other rights). It is also said that Mr Deiri had no legal interest in the matter and Moustafa was not obliged to make any commitment to him. 11. Furthermore, Moustafa responds to this abandonment allegation (see, for example, at [67]-[68] of his affidavit sworn on 8 November 2019). Specifically, he denies that he ever told Mr Deiri that he did not want to have anything to do with the Arncliffe Development, and says that he was confused as to why Mr Deiri had sent him proposed deeds of settlement on 8 December 2015 that contained a relinquishment of any rights in relation to the Arncliffe Development because he did not realise that he had an interest in it. Moustafa attests that he sought clarification from Mr Deiri. 12. It is submitted that, far from abandoning or relinquishing any interest in the Arncliffe Development, Moustafa rejected Mr Deiri's efforts to have him relinquish that interest (as evidenced by his refusal to execute the draft deeds of settlement prepared by Mr Deiri). It is similarly submitted that the Deiri Parties have misrepresented the import of [42]-[43] of Moustafa's affidavit sworn on 27 October 2016 (as referred to in, for example, [26] of the Third Arncliffe Cross-claim). It is said that (contrary to the Deiri Parties' pleadings), it is not true that "Moustafa … had no intention that any entity of which he was a member was to be a member of [Combined Projects] Arncliffe"; rather, the true position is that Moustafa had been "kept in the dark" by Mr Deiri, and (see [66] of his affidavit sworn on 8 November 2019) was confused as to why Mr Deiri had sent him draft deeds that would have had him relinquish an interest in the Arncliffe Development. 13. As to other, specific aspects of the relief sought, the following submissions are made. No jurisdiction to make a s 175 order 1. Sayour Holdings notes that s 175(1) of the Corporations Act provides that a "company or registered scheme or a person aggrieved may apply to the Court to have a register kept by the company or scheme under this Part corrected". 2. It is accepted by Sayour Holdings that there is jurisdiction to order corrections to a register kept by a company. It is noted that s 175 operates in parallel to (and arguably assumes) the existence of the Court's equitable jurisdiction (see, for example, In the matter of Indoor Climate Technologies Pty Ltd [2019] NSWSC 356 (Indoor Climate Technologies) at [3] per Black J, citing the authority of Grant v John Grant & Sons Pty Ltd (1950) 82 CLR 1; [1950] HCA 54 (Grant v John Grant & Sons) and Peninsula Gold Pty Ltd v Sunbeam Victa Holdings Ltd (1996) 20 ACSR 553 at 558-559 per Bryson J, as his Honour then was). 3. Sayour Holdings, however, says that the Deiri Parties only have standing to apply for rectification of the share register kept by Sayour Holdings (whether under s 175 or the Court's inherent jurisdiction) if they can establish that they are "persons aggrieved" by the matters recorded in the register. It is noted that, to show that it is a "person aggrieved", an applicant for s 175 rectification must show that it has a personal equity that the Court will protect; and that, even if such an equity is shown, there remains a discretion as to whether or not to order rectification (citing Indoor Climate Technologies at [3]). 4. More particularly, it is noted that in Grant v John Grant and Sons, Fullagar J said (at 51-52): … The person claiming rectification must show that he has some equity which the court will protect. If he is a shareholder, then prima facie he shows such an equity if he establishes that a name is wrongly included in or omitted from the register of his company… But the power of a court of equity to order rectification is no more and no less than a part of its general jurisdiction to "act in personam" in aid of a legal right, and it must be subject to the same principles which apply generally to equitable remedies …What Lord Cairns actually said [in Sichell's Case (1867) LR 3 Ch App 119] was that the court must have "regard to who is the applicant and to all the circumstances of the case". Otherwise, he asked, "how could the Court be 'satisfied of the justice of the case?'". But the position cannot be different if it is the general equitable jurisdiction of the court that is invoked. Equitable remedies are not, generally speaking, granted unless the court is "satisfied of the justice of the case". 1. Sayour Holdings submits that the Deiri Parties do not have any personal equity in the Sayour Holdings' share register "that the Court will protect". It is noted that Mr Deiri admits that, under his direction, Combined Projects Arncliffe accepted money from Sayour Holdings. It is said that he did so, well knowing that Sayour Holdings advanced that money in its capacity as trustee of the Sayour 2 Family Trust. 2. In this regard, it is noted that Mr Deiri gives evidence (see at [17] of his affidavit sworn on 16 October 2019) that Sayour Holdings took its shareholding in Combined Projects Arncliffe "atf Sayour 2 Family Trust", and (see at [53]) that, "Jamil provided loans to CP Arncliffe". It is noted that these moneys advanced to Combined Projects Arncliffe were recorded in the books of Combined Projects Arncliffe as being loans from "Sayour 2 Family Trust". Mr Deiri also gives evidence (at [45]) that he caused Combined Projects Arncliffe to treat these loans from Sayour 2 Family Trust as interest free loans. 3. It is said by Sayour Holdings that the Sayour 2 Family Trust has an interest in inquiring into, inter alia, how Combined Projects Arncliffe dealt with the funds of Sayour 2 Family Trust that were advanced to it; and that it is that interest (as well as others) that Sayour Holdings, as the trustee of that trust, seeks to protect and enforce by these proceedings. 4. However, on the other hand, they maintain that the Deiri Parties, in praying for rectification of Sayour Holdings' share register, are not seeking to enforce or protect any interest or equity; rather, they are acting with the collateral purpose of seeking to defeat the rights of Sayour Holdings as trustee of the Sayour 2 Family Trust (and as constructive trustee of the Sayour Family Trust, to the extent that the funds of Sayour Holdings advanced to Combined Projects Arncliffe were or might in fact be property of the Sayour Family Trust). 5. It is said that the Deiri Parties' complaint seems to be that Moustafa and Yesmine, as the controllers of Sayour Holdings, have commenced proceedings seeking to enforce the rights of Sayour Holdings (and those of the trusts of which it is trustee or constructive trustee) in respect of Sayour Holdings' shareholding in Combined Projects Arncliffe. It is said that the Deiri Parties do not allege any breach of duty or default by either of Moustafa or Yesmine in respect of their directorships of Sayour Holdings, and nor do they allege that the Arncliffe Proceedings are frivolous, vexatious or otherwise oppressive or improperly brought. 6. Sayour Holdings says that the Deiri Parties' grievance seems to arise entirely from the fact that Moustafa and Yesmine are discharging their duties to act in the best interests of Sayour Holdings by prosecuting the Arncliffe Proceedings against Mr Deiri and Deiri Nominees. Sayour Holdings says that the Deiri Parties' purpose in seeking correction of the register is not to protect an interest of either of them in being recorded as a shareholder of Sayour Holdings, but rather to bring about the dismissal of the Arncliffe Proceedings and any legal action against them by Sayour Holdings notwithstanding any entitlement that Sayour Holdings has to succeed and that this is clear because the third cross-claim proceeds on the basis that this should be the outcome, regardless of the merits of the underlying claims and regardless of the interest of the beneficiaries of the trust money, for whom Sayour Holdings is the trustee. 7. It is said that the only consequence of this "unmeritorious" claim is that, if Sayour Holdings were powerless or incapable of acting because of internal paralysis, a new trustee would need to be appointed to succeed to its rights and property, and be substituted for Sayour Holdings as a party to these proceedings. It is said that this part of the Third Arncliffe Cross-claim is contrary to s 56 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act). 8. Sayour Holdings thus submits that neither Mr Deiri nor Deiri Nominees is a "person aggrieved" for the purposes of s 175 and thus this Court has no jurisdiction to order correction of the share register kept by Sayour Holdings. 9. It is further submitted that, even if either one of them did have standing under s 175 (or otherwise there was jurisdiction to hear the application), consideration of the justice of the case would require refusal of their application for correction of the register as sought by them as that "correction", if taken to its logical conclusion, would entail dismissal of proceedings that are otherwise meritorious "with presumably fatal consequences for Sayour Holdings and irreparable harm to the trust or trusts of which it is trustee or constructive trustee". No jurisdiction to make a s 1322(4)(b) order 1. Section 1322(4)(b) of the Corporations Act provides that the Court may, on application by any "interested person", make an order directing the rectification of any register kept by ASIC. 2. It is submitted, first, that the direction and control of Sayour Holdings is a matter for the internal management of the company, and the Deiri Parties have no interest in that internal management or standing to interfere in it and thus are not "interested persons" for the purposes of s 1322(4)(b). 3. Second, it is said that ASIC's records do not determine the shareholding or directorships of the company; it is asserted that they not infrequently are inaccurate. However, it is said that there could be no proper basis for directing an alteration of the ASIC records to bring them into disconformity with the correct position in respect of the shareholding and directorships of the Company. Thus, it is submitted that the s 1322(4)(b) claim adds nothing to the s 175 claim (as to which, see the preceding outline). 4. It is noted that, in Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119, Gummow J (his Honour then a Justice of the Federal Court of Australia) considered the operation of s 68A of the old Companies Code. Relevantly, s 68A provided that a person is entitled to assume in relation to dealings with a company that a document has been duly sealed by the company if certain formalities are attended to; and his Honour observed (at 157) that it had been suggested that s 68A effected a codification as well as a clarification of the "indoor management rule" as expressed by Lord Jervis CJ in Royal British Bank v Turquand (1856) 5 El & Bl 327; 199 ER 886 (Turquand's Case): where persons are conducting the affairs of a company in a manner which appears to be consistent with its Articles of Association, then those dealing with them are entitled to assume that all has been done regularly, and those persons are not affected by any internal irregularity. 5. Gummow J held (see at 157-158) that, in a case where the question propounded by the applicant is whether a legislative requirement had been satisfied as at a particular date by what was put forward as the act of a company and where that point is taken against the company and the party dealing with the company by a third party in proceedings to which all of them are joined, the company and the party dealing with it may, in those proceedings, claim the benefit of the rule in Turquand's Case (i.e. the indoor management rule) to support their case that what took place did comply with the relevant legislative requirement, irrespective of what consequences might flow from a subsequent purported ratification by the company. 6. It is submitted that, in the present case, Sayour 2 Family Trust is entitled to the benefit of the indoor management rule as regards Sayour Holdings' case against Mr Deiri and Deiri Nominees. In that respect, it is said that Moustafa and Yesmine, who are cross defendants to the Third Arncliffe Cross-claim, are persons interested and entitled to take the benefit of the rule; and that Sayour Holdings as trustee is itself bound to invoke it for the protection of the trust property, on behalf of those interested in it. ASIC not notified of the s 1322(4)(b) application 1. It is also noted that ASIC is an interested party as regards the applications for s 1322(4)(b) orders (prayers 7, 12 and 15) as those orders would require amendments to registers kept by ASIC (and hence that ASIC would be directly affected by the making of the orders); yet ASIC has not been joined as a defendant to the proceedings, or even apparently notified of the Deiri Parties' application for orders affecting it. It is noted that there is no evidence as to whether or not ASIC would oppose or consent to the application. 2. It is said that the failure to join ASIC to the proceedings, or even to notify it of the application, is contrary to the usual practice (referring to In the matter of Macquarie Americas Holdings Pty Ltd [2015] NSWSC 2073, where Brereton J, as his Honour then was, noted (see at [11]) that ASIC was joined as a defendant to the s 1322(4)(b) application). The making of a s 1322(4)(b) order would cause substantial injustice to Sayour Holdings as trustee for the Sayour 2 Family Trust and as constructive trustee for the Sayour Family Trust 1. As adverted to in the preceding, it is also submitted that s 1322(6)(c) provides that an order must not be made under s 1322 unless the Court is satisfied that no substantial justice has been or is likely to be cause to any person. It is submitted that the removal of Moustafa as a director and shareholder of Sayour Holdings, and of Yesmine as a director, would cause substantial injustice to Sayour Holdings as the likely inevitable result of such removal would be the dismissal of the Arncliffe Proceedings contrary to the merits and presumably also to prejudice rights of appeal. Any irregularity in the appointment of Moustafa was procedural and has not cause substantial injustice to any person 1. Section 1322(2) provides that a proceeding under the Corporations Act is not invalidated because of any procedural irregularity unless the Court is of the opinion that the irregularity has caused, or may cause, substantial injustice that cannot be remedied by any order of the Court. 2. It is submitted by Sayour Holdings that: any irregularity in the appointment of Moustafa as a director, and the issue to him of shares, was a procedural irregularity given his subsequent assent to be a director and member of Sayour Holdings and the entry of his name into Sayour Holdings' share register; no substantial injustice has been alleged to have been caused to any person as a result of this irregularity; and, in any event, the procedural irregularity in his appointment (if there was one) can be remedied by curative declaration of the Court that he has been a director of Sayour Holding since its incorporation, or at least since 21 August 2014. 3. Accordingly, it is submitted that such irregularity is automatically cured by s 1322(2). Estoppel 1. It is further submitted that the Deiri Parties are estopped from contesting the appointment of Moustafa and Yesmine as directors of Sayour Holdings and/or Sayour Holdings' membership in Combined Projects Arncliffe. 2. Sayour Holdings here relies on the principles of conventional estoppel, namely that such an estoppel may be established where the party asserting that estoppel has adopted an assumption as to the terms of its legal relationship with the party to be estopped; that other party has adopted the same assumption; the parties have conducted their relationship on the basis of the mutual assumption; each party knew or intended the other to act on that basis; and the departure from that assumption will occasion detriment to the party asserting the estoppel (see, for example, Waterman v Gerling Australia Insurance Company Pty Ltd (2005) 65 NSWLR 300; [2005] NSWSC 1066 at [83] per Brereton J, as his Honour then was). It is noted that in Commonwealth v Verwayen (1990) 170 CLR 394 at 444; [1990] HCA 39, Deane J observed (at 444) that the law does not permit an unconscientious "departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party's detriment if the assumption be not adhered to for the purposes of the litigation". 3. Here, Sayour Holdings points out that the Arncliffe Proceedings have gone forward for well over two years on the mutually agreed basis that Sayour Holdings was a 50% shareholder in Combined Projects Arncliffe; that, by their respective defences to Sayour Holdings' second further amended statement of claim, each of the Deiri Parties has admitted that Sayour Holdings has been an equal shareholder in Combined Projects Arncliffe since the date of its incorporation; and that Mr Deiri admits in his affidavit sworn on 16 October 2019 that the arrangement from the outset was that Sayour Holdings atf Sayour 2 Family Trust would be an equal shareholder in the corporate entity set up to conduct the Arncliffe Development. 4. It is noted that Mr Deiri also gives evidence (again, see at [53] of his affidavit sworn on 16 October 2019) that Jamil provided loans to Combined Projects Arncliffe totalling $670,000. These were recorded in Combined Projects Arncliffe's financial records as loans from Sayour Holdings as trustee for Sayour 2 Family Trust. 5. It is said that, having retained the benefit of Sayour Holdings' money within Combined Projects Arncliffe for a long period, interest free, on the basis that Sayour Holdings was a shareholder and that it had made shareholder loans, it is not open to Deiri Nominees now to approbate and reprobate. It is noted that Mr Deiri gives evidence (at [134] to [135] of his affidavit sworn on 16 October 2019) that he caused Combined Projects Arncliffe to repay these loans from Sayour Holdings between May and June 2018. 6. Furthermore, complaint is made that the Deiri Parties did not give any notice that they contested the appointment of the directors of Sayour Holdings, or the issue to Sayour Holdings of shares in Combined Projects Arncliffe, until the proposed third cross-claim was served in July 2019. 7. It is submitted by Sayour Holdings that: all of the relevant parties had adopted an assumption that the relationship between Sayour Holdings and Combined Projects Arncliffe was that of an equal shareholder; the relationship between the parties, including in respect of the conduct of the Arncliffe Proceedings, had proceeded on the basis of that assumption; the Deiri Parties knew and intended that Sayour Holdings and each of Moustafa and Yesmine would and did act on the basis of that assumption; departure from that assumption would cause detriment to Sayour Holdings; and Mr Deiri and Deiri Nominees are estopped from departing from that assumption. Deiri Parties' submissions 1. The Deiri Parties say that, ultimately, Mr Deiri contributed approximately $21.7 million or 97% of total shareholder loans to Combined Projects Arncliffe; he obtained bank funding, put up guarantees, obtained development approval, organised the marketing and generally advanced the development; that Jamil contributed $670,000 or 3% of total shareholder loans (and that Jamil did not put up any security nor did he have any substantive role in the Arncliffe Development). 2. It is noted that, prior to Jamil's death, Moustafa knew nothing about Sayour Holdings or Combined Projects Arncliffe and it is said that "[n]ow finding himself notionally registered as shareholder and director of Sayour Holdings, Moustafa seeks to take the benefit of the Arncliffe [D]evelopment". 3. In summary, the Deiri Parties' position is as follows. 4. First, that Moustafa was never validly appointed a director or member of Sayour Holdings. It is said that, when Sayour Holdings was incorporated in December 2013, Moustafa did not sign any consents to be a director or member, as required by s 120 of the Corporations Act; that Moustafa says he was only presented with (and signed) such consents in August 2014; yet, in August 2014, there was no officer of Sayour Holdings that could authorise that appointment and issue of shares (because Jamil was not registered as a director or member at the time). For this reason, it is said that Jamil and Moustafa were never directors of Sayour Holdings. As a consequence it is said that Sayour Holdings never was a valid shareholder in Combined Projects Arncliffe, because when Combined Projects Arncliffe was incorporated in January 2014, there was no-one authorised on behalf of Sayour Holdings to consent to the receipt of shares in Combined Projects Arncliffe. 5. Second, that, even if Moustafa became a validly registered director and member of Sayour Holdings in August 2014, there was still no person authorised by Sayour Holdings to consent to become a member of Combined Projects Arncliffe upon its incorporation in January 2014; that the only person who could have purported to consent was Jamil, but he was not a director of Sayour Holdings at the time; and, as such, Sayour Holdings was never validly made a member of Combined Projects Arncliffe. It is said that it is well established that a person cannot become a shareholder in a company without consenting to do so. 6. Third, and in the alternative, that: if Jamil was validly appointed a director of Sayour Holdings, then he was authorised to bind Sayour Holdings to the agreement formed in January 2014 with Deiri Nominees, including that any profits would be paid to shareholders proportionate to financial contributions; and the subsequent agreements Jamil made on Sayour Holdings' behalf with Deiri Nominees; and that if Moustafa was validly appointed as a director of Sayour Holdings when he executed a consent to the appointment in August 2014, then Moustafa could conceivably cause Sayour Holdings to ratify Jamil's conduct in purporting to consent to Sayour Holdings becoming a member of Combined Projects Arncliffe and taking up its shares, but that Moustafa "cannot pick and choose" which parts of an integrated transaction to ratify. It is said that, if Sayour Holdings ratifies Jamil's consent of Sayour Holdings to be a member of Combined Projects Arncliffe, it must also ratify the agreement which formed the foundation for the incorporation of Combined Projects Arncliffe with an equal shareholding, as well as Jamil's consents and agreements on behalf of Sayour Holdings with Deiri Nominees throughout the venture. 7. As such, in the alternative that Sayour Holdings is a member of Combined Projects Arncliffe, it is said that it is bound by the agreement between shareholders at the start of the venture, and it can only receive a profit proportionate to the total shareholder loan contributions it made (namely, 3%). 8. Insofar as, by its derivative action in the name of Combined Projects Arncliffe, Sayour Holdings further claims that Mr Deiri breached his director's duties by causing Combined Projects Arncliffe to make payments to Deiri Nominees and third parties, the Deiri Parties say that that claim suffers from the same problem as Moustafa's assertion that Sayour Holdings is entitled an equal share of Combined Projects Arncliffe's profits: it ignores the arrangements reached between Combined Projects Arncliffe's shareholders. 9. It is said that Jamil in fact agreed that those fees were to be paid. Again, and in the alternative that Sayour Holdings is a member of Combined Projects Arncliffe, it is said that Jamil was authorised to bind Sayour Holdings by that agreement and consent; and therefore that all shareholders in Combined Projects Arncliffe consented the impugned transactions. In those circumstances, it is said that there can be no breach of director's duties, and the derivative action fails. 10. As to particular aspects of the relief sought by the Third Arncliffe Cross-claim, the Deiri Parties submit as follows. Membership and directorship of Sayour Holdings 1. It is said that, at the time of registration, Moustafa had not consented to be a director, company secretary and shareholder, of Sayour Holdings. Indeed, Moustafa's evidence is that the first time he found out about it was after Jamil's death. 2. Following this (and as adverted to above), it is noted that a person cannot be a member of a company unless the person consents to do so (see, for example, Maddocks v DJE Constructions Pty Ltd (1982) 148 CLR 104 at 117; [1982] HCA 17 per Stephen, Mason, Murphy, Aickin and Brennan JJ; Re National Safety Council of Australia (in liq); Elders Finance Group Ltd v Perrins (1992) 10 ACSR 101 at 118 per Phillips J; Re Meyer Douglas Pty Ltd [1965] VR 638 at 651 per Gowans J). Similarly, the Deiri Parties note that a person cannot be a director or secretary unless he or she consents to the appointment (see, for example, In the matter of Whitsunday Clean Sands Pty Ltd [2017] NSWSC 1199 at [15]-[16] per Black J). They say that s 201M of the Corporations Act does not apply; that section being concerned with purported acts of an invalidly appointed director, purporting to act as such (not operating to validate the appointment itself). 3. The Deiri Parties say that as here Moustafa did not consent on registration, it follows that on registration he did not become a director and secretary of Sayour Holdings, nor did he receive any shares in Sayour Holdings. 4. As to the events of 21 August 2014, it is noted that there was a further form submitted to ASIC notifying of a change in company details to Sayour Holdings (again, that form purported to have been signed by Moustafa and stated that he certified that the form was true and complete, but there was no signature on the document). As will be recalled, that form notified ASIC that Jamil had been appointed a director of Sayour Holdings effective that day. A similar form was also lodged that day, notifying ASIC that Moustafa had transferred 50% of the shares in Sayour Holdings to Jamil, also effective that day. The Deiri Parties say that Moustafa could not appoint Jamil as a director and could not issue shares to him in Sayour Holdings, because Moustafa himself was not a director for the reasons already outlined. Accordingly, they say that Jamil, too, was never a director or member of Sayour Holdings. 5. It is noted that, according to Moustafa, the only consent he ever signed to be a director, company secretary and member of Sayour Holdings was executed by him on 21 August 2014. However, it is said that, even if this is so, there are two problems with that purported consent. First, that he does not have any memory of signing it; and his evidence was that he first became aware that he was a director after Jamil passed away. Thus, it is said that Moustafa therefore provided no real consent at all. Second, that there was no person at the time in August 2014 who had the authority of Sayour Holdings to appoint Moustafa as a director, secretary and member. Jamil was not himself a director or member, and could not do so. 6. Accordingly, it is submitted that both Moustafa and Jamil were never a director, secretary or member of Sayour Holdings; and that it follows that Moustafa's purported appointment of Yesmine as a director on 26 March 2018 was also ineffective. 7. This is said to have two further consequences. First, that leave to bring the First Arncliffe Cross-claim should be revoked nunc pro tunc, because it was commenced without the authority of Sayour Holdings. Second, that Sayour Holdings was never a valid shareholder in Combined Projects Arncliffe because, when Combined Projects Arncliffe was incorporated in January 2014, Jamil was not authorised on behalf of Sayour Holdings to consent to the receipt of shares in Combined Projects Arncliffe. Since then, it is said that there has been no validly appointed director of Sayour Holdings which could consent to it receiving shares in Combined Projects Arncliffe (noting that consent to membership is a precondition to becoming a member). Sayour Holdings bound by Arncliffe Agreement 1. In the alternative that Jamil was a director of Sayour Holdings, and he had authority to act on its behalf to consent to becoming a member of Combined Projects Arncliffe, then it is said that Jamil also had authority to bind Sayour Holdings to the Arncliffe Agreement. 2. Further, in the alternative that Jamil did not have authority to act on behalf of Sayour Holdings at the time Combined Projects Arncliffe was incorporated, and Moustafa later became a director of Sayour Holdings on 21 August 2014 when he signed the consent to become a director and company secretary, the only way for Sayour Holdings to have validly received shares in Combined Projects Arncliffe is if it also ratified the conduct of Jamil in purporting to consent to the issue of those shares. 3. It is said that, in that scenario, Sayour Holdings "cannot simply pick and choose" among Jamil's actions: it must accept his purported acts on behalf of Sayour Holdings as a whole (the Deiri Parties here citing Smith v Henniker-Major & Co (a firm) [2003] Ch 182; [2002] EWCA Civ 762 at [56] per Robert Walker LJ, as his Lordship then was, with whom Carnwath LJ, as his Lordship then was, and Schiemann LJ agreed). Similarly, reference is made to Brockway v Pando [2000] WASCA 192, where Murray CJ (with whom Kennedy and Murray JJ agreed) said (at [118]) that ratification of one act in a series of acts in a transaction may, depending on the circumstances, be ratification of the whole transaction (citing Walter v James (1871) LR 6 Ex 124). 4. In this case, the Deiri Parties say that the Arncliffe Agreement is plainly an integral part of the issue of shares to Sayour Holdings; and it was that agreement (including the agreement that profits would depend on what each shareholder put in by way of financial contributions) that formed the foundation for the equal shareholding and the entire venture. It is said that Sayour Holdings cannot now ratify the equal shareholding component of the transaction by ratifying the consent to take up shares in Combined Projects Arncliffe, while at the same time refusing to accept the concomitant burden of the transaction, that it would only receive proceeds proportionate to what it put in. 5. It is submitted that any other outcome would be grossly unfair to Deiri Nominees. It is said that the unfairness that would be occasioned in this case by partial ratification illustrates the rationale for the principle that parties are not permitted to ratify only some acts forming part of an overall integrated series of acts or transactions where it would be unjust to do so. 6. Thus, it is said that Sayour Holdings must accept that it can only receive a profit proportionate to the loan contributions it made as a percentage of total shareholder contributions. As noted, it is said that Mr Deiri contributed approximately $21.7 million or 97% of total shareholder loans and Jamil contributed $670,000 or 3% of total shareholder loans. 7. Accordingly, it is submitted that even if Sayour Holdings is a member of Combined Projects Arncliffe, the Arncliffe Agreement is binding upon it; and by reason of that agreement, Sayour Holdings is entitled to no more than 3% of any profits of the company. Site identification Fees and Development Management Fee 1. Furthermore, the Deiri Parties say that on this alternative (that Sayour Holdings is a member of Combined Projects Arncliffe) the claim against Mr Deiri in relation to the Site Identification Fees and Development Management Fee should not be accepted. It is said that the payment of the Site Identification Fee(s) by Combined Projects Arncliffe was agreed to ("indeed implored") by Jamil, shortly before he died. Accordingly, it is said that there being shareholder agreement and consent to the payment of the Site Identification Fee(s), Mr Deiri cannot be in breach of his duties as a director. 2. The Deiri Parties accept that, on this scenario, it must be established that Jamil had authority to agree and consent to the payment of the Site Identification Fee(s) on behalf of Sayour Holdings. They say that there are said to be a number of ways that authority may arise, including because, if Moustafa's consent and appointment as a director of Sayour Holdings was effective, he left Jamil in control to continue to run Sayour Holdings, thereby authorising or alternatively holding him out as having authority to act. 3. The same is said to be true of the Development Management Fee. In particular, it is said that that fee was paid pursuant to the Development Management Agreement which Mr Deiri had the consent and agreement of Jamil to execute. 4. Furthermore, it is said that Jamil, Mr Deiri, Sayour Holdings and Deiri Nominees adopted a convention or mutual assumption that Combined Projects Arncliffe would pay the site identification fee(s) and the Development Management Fee that Jamil had agreed. The payment of those fees is said to have been in accordance with that convention or mutual assumption, with the result that Sayour Holdings is estopped from now resiling from that assumption and claiming that the fees were unauthorised. Determination re Third Arncliffe Cross-claim 1. As I have noted, to a large extent, the issues raised by the Third Arncliffe Cross-claim do not arise, and the claim must be dismissed, in light of my factual findings concerning Moustafa's consents in relation to Jamil's authority, Sayour Holdings and Combined Projects Arncliffe (again, see above). In particular, and for completeness, I record the following. 2. In relation to the prayers for rectification of the registers of Sayour Holdings and Combined Projects Arncliffe, to my mind, this must fail in light of my factual determinations. This includes in relation to Yesmine. 3. Furthermore, I see force to the Sayour Parties' submissions in relation to the asserted abandonment or relinquishment of Sayour Holdings' interest in Combined Projects Arncliffe. As to the pleaded telephone conversation in about December 2015 (again, for example, see at [104] of Mr Deiri's affidavit sworn on 16 October 2019 cf [64]-[67] of Moustafa's affidavit sworn on 8 November 2019 and the apparent refusal to sign proposed draft deeds of settlement), there simply is insufficient evidence, on the totality of the evidence and in the events that have happened, here to make any factual findings that could justify the conclusion that Moustafa abandoned his claims. 4. In this connection, I also accept the Sayour Parties submissions as to the need to show sufficient full knowledge of the material facts, and the circumstance in which Moustafa found himself at the time of the purported release. 5. As to s 175, I have some difficulty here seeing that the Deiri Parties are relevantly persons aggrieved for the purposes of seeking orders (though, I here reach no concluded view on that matter). However, I have less difficulty accepting the submission, and noting the residual discretion in this regard (see, for example, Indoor Climate Technologies at [3]), that any such order should here be made having in mind the circumstances and justice of the case and that such an order, or orders, would have the ultimate practical effect of entailing the dismissal of proceedings that are otherwise meritorious. 6. As to s 1322, even putting aside questions as to whether the Deiri Parties are relevantly interested persons and whether ASIC ought to have been joined, again, I see that the making of any such order would, or likely could, cause substantial injustice to Sayour Holdings and, thereby, such an order could not here be made (see s 1322(6)(c) of the Corporations Act). 7. Finally, I here record that I see some force, though it is again not necessary to reach a concluded view, to the Sayour Parties' submission in relation to an estoppel by convention, noting particularly that the Arncliffe Proceedings have gone on for well over two years on the (it would seem) mutually understood basis that Sayour Holdings was a 50% shareholder (or at least a shareholder) in Combined Projects Arncliffe (and noting also those other matters referred to in the Sayour Parties' submissions – see above). 8. The preceding disposes of prayers for relief 1 through 13. 9. As to the submissions here made, and relief sought, in relation to the alleged Arncliffe Agreement, my findings in relation to the alleged Arncliffe Agreement (see particularly preliminary factual finding F) substantially disposes of this issue and the relief here sought by prayers 16 through 18. 10. As to the submissions here made in relation to payments of the Site Identification Fee(s) and Development Management Fees, my disposition of those issues has been recorded, and those findings apply equally here, in relation to the First Arncliffe Cross-claim. 11. This leaves prayers for relief 19 through 21 (along with prayer for relief 22, which concerns costs, and prayer 23, which is an incidental prayer for any other order that the Court thinks fit – as to which, see below). Prayers 19 and 20 relate to the appointment of Ms Howe as Managing Director of Combined Projects Arncliffe. Prayer 21 relates to the appointment of Mr Deiri as a director and secretary of Combined Projects Arncliffe. Insofar as this relief is pressed, I will hear the parties as to the appropriate relief. Summary of conclusions 1. I now summarise my preceding conclusions. It is convenient to do so by cross-claim. First Broadway Cross-claim 1. In relation to Jamil's authority, again, I have found that the various Powers of Attorney did not confer actual authority on Jamil to draw cheques or to receive funds in relation to trust property, or sign or otherwise acquiesce in the execution of accommodation notices and other such matters; however, Jamil did have implied actual authority for the day-to-day management of the project, including, inter alia, to direct payments and the like (noting again however, for example, not to direct payments into his personal bank accounts) and as to the issue of accommodation notices. However, this did not extend to the drawing of cheques and did not extend to making decisions to commit Plaza to the construction contracts. 2. Furthermore, I have found that Plaza was not bound (by operation of the Partnerships Act) as a partner of cheques that were not countersigned by Moustafa. 3. And, finally, in relation to ostensible authority, I do not accept that Jamil was held out as having ostensible authority to do anything other than those acts for which he had implied actual authority. 4. As to the defences to the First Broadway Cross-claim based on acquiescence and estoppel, a defence based on acquiescence is made good at the time of the two cheques in 2014 and thereafter. As to the accommodation notices, Moustafa's signing of the pro forma accommodation notice and his leaving it with Jamil to manage the day-to-day running of the project means that this is sufficient to establish acquiescence in the issuance of the accommodation notices. Meanwhile, no estoppel by convention succeeds. 5. As to the no loss or "Liggett defence", this defence partially succeeds, specifically as follows. First, the defence succeeds in relation to payments that are accepted as having discharged, or should be taken to have discharged, incontrovertible expenses and liabilities of the Broadway Partnership (including for land tax, real estate fees and other such payments). Second, the defence fails in relation to payments relating to the acquisition and maintenance of the Matthew Street Property. Third, the defence fails in relation to partnership distributions. Fourth, in relation to claims predicated on supposed ratification (including, particularly, the increase in construction costs after construction was underway), the defence succeeds (noting also the anterior question as to Jamil's authority to manage the day-to-day conduct of the project, which would include such increases in costs once the project was underway). Second Broadway Cross-claim 1. In relation to the Second Broadway Cross-claim, I have found that Plaza has not proved the contract upon which it sues and that conclusion is fatal to the principal way in which the interest claim is put under the Second Broadway Cross-claim. 2. On the alternative way in which the claim is put, I consider that no breach of special condition 43.3 of the contract of sale has been established. 3. Otherwise, I have recorded above my determinations of the other issues that would arise on the Second Broadway Cross-claim, if I were in error in relation to the preceding determinations. Third Broadway Cross-claim 1. In light of the determinations summarised above, the issues on the Third Broadway Cross-claim do not arise. If they had, I would have found that the interest rate of 9% per month was void as a penalty. Fourth Broadway Cross-claim 1. Again, in light of the determinations summarised above, the issues on the Fourth Broadway Cross-claim do not arise. If they had, I would have found that HWLE breached its duty of care, though I here record again that I have doubts as to whether this would have amounted to breach of the statutory duties here claimed. However, I would have found that the loss was sustained when the contract was entered into and hence the claim is now statute barred. Fifth Broadway Cross-claim 1. Next, is the Fifth Broadway Cross-claim. My dispositions in relation to this cross-claim are, in summary, as follows: first, the payments were not bribes; the claims concerning delay liabilities under the Stage 1 Construction Contract fail; the claims concerning the Stage 1 variations fail; the claims concerning Variation No 8 fail; the claims concerning variations after practical completion fail; the claims concerning Stage 1 provisional sums fail; the claims concerning variations after practical completion fail; the claims concerning delay liabilities under the Stage 2 Construction Contract fail; the claims concerning Stage 2 variations fail; the claims concerning Variation No 1 fail; the claims concerning Variation No 2 fail; the claims concerning Variation No 3 fail (and fall to be assessed on the basis of a quantum meruit); and, similarly, the claims concerning variations after practical completion fail. 2. In relation to the claims against the builder for profits, each of prayers 57 to 59 fail. 3. In relation to the claims concerning profits, constructive trust and other such claims in respect of profits, prayers 60 to 72 fail. 4. In relation to the claims for moneys had and received by CP Holdings and Deicorp Constructions, prayers 73 to 76 fail. 5. In relation to the claims concerning the Matthews Street Property, I have dealt with the relevant factual findings in relation to this matter. In circumstances where there appears to be an intractable dispute between the shareholders, I see force to the proposition that the appropriate order is for the winding up of the company. Sixth Broadway Cross-claim 1. In light of the determination of the Fifth Broadway Cross-claim, the issues on the Sixth Broadway Cross-claim do not arise, other than to the extent that findings made relate to my determinations in relation to various claims made on the Fifth Broadway Cross-claim. Seventh Broadway Cross-claim 1. In relation to the Seventh Broadway Cross-claim, this cross-claim arises to the extent that Plaza has succeeded on the First Broadway Cross-claim against CBA. In light of that, I have found as follows: first, again, the "bribes" allegations have not been made good and, accordingly, those aspects of this cross-claim predicated on a count of conspiracy do not arise; second, as to the misleading and deceptive conduct claim in respect of debits made to the CBA Partnership Account and which Plaza has claimed were unauthorised, I have found that Investments and Mr Deiri represented to CBA that CBA had authority to, and should debit, the account with fees, charges, interest and repayments in respect of Stage 1 Loan and Stage 2 Loan, and to the extent Plaza has established that those debits were not authorised, CBA has suffered loss in reliance upon and by reason of each such representation; as to the drawdowns on the Stage 1 Loan and Stage 2 Loan, I have found that all drawdowns followed CBA's receipt of an accommodation notice, that each notice was executed by Investments (through Mr Deiri) and that each thereby amounted to a representation by Investments and/or Mr Deiri that the drawdown was authorised by, and should be paid for the purposes of, the Broadway Partnership (and, again, to the extent Plaza has established that those drawdowns were not authorised, CBA has paid away moneys in reliance upon the representations of Investments and/or Mr Deiri); and, as to the cheques, I accept that each time a cheque was paid by CBA, it was paid based on a representation that the cheque was duly authorised. 2. Following, as between CBA and the Deiri interests, I have concluded that any loss resulting from cheque payments made based only on Mr Deiri's signature prior to the Cheque Authorisation Alteration Instruction should be borne by the Mr Deiri and the Deiri interests since they have obtained the benefit of the payments out by CBA and the payments were made at Mr Deiri's direction; and, for the avoidance of doubt, CBA could thereafter rely on the Cheque Authorisation Alteration Instruction. 3. As adverted to at the outset, the change of position defence foreshadowed by Deicorp to the claims brought by CBA on the Seventh Broadway Cross-claim, has not yet been determined because it was to await the outcome of the claim by Plaza and the Sayour Interests against CBA. Accordingly, directions will need to be made for those issues, if they remain still to be pursued. Eighth Broadway Cross-claim 1. In relation to the Eighth Broadway Cross-claim, the claim against Plaza fails and the claim against CBA fails. Ninth Broadway Cross-claim 1. In relation to the Ninth Broadway Cross-claim, in accordance with these reasons and the below orders, the parties are to bring in short minutes in relation to an orderly separation of their affairs, along with any other extant issues to be determined. First Arncliffe Cross-claim 1. In relation to the First Arncliffe Cross-claim, I have found as follows. 2. As to the Development Management Fee, this sum is recoverable from Deiri Nominees. 3. As to the Konstructions Fee, this sum is also recoverable. Accordingly, there should be judgment against Konstructions and an order that Mr Deiri is jointly and severally liable for that amount 4. As to the Zapphire Fee, again, this sum is recoverable. Accordingly, there should be judgment against Zapphire and an order that Mr Deiri is jointly and severally liable for that amount. 5. In those circumstances, I do not see the need for a further enquiry or accounting process, but will hear submissions as to this if the Sayour Parties press it. 6. As to repayment of interest on loans, this amount is recoverable; and, as to recovery of the $1.56 million payment to Jamil, this too is recoverable. 7. As to the agency commissions, I have found that Deicorp Properties have an entitlement to retain this amount; and, as to PC 21, again, I have found that there is an entitlement to retain those amounts. Second Arncliffe Cross-claim 1. In relation to the Second Arncliffe Cross-claim, I have found that Deicorp Constructions' claims succeed to the extent adumbrated above. Third Arncliffe Cross-claim 1. In relation to the Third Arncliffe Cross-claim, I refer above to my disposition of those issues, and otherwise note that I will hear the parties as to the appropriate relief concerning the ongoing control of the entities and any other extant issues. Conclusion and Orders 1. Not least given the complexity of the issues raised across the two proceedings, I consider that it is appropriate, and indeed in the interests of the just, quick and cheap resolution of the real issues in dispute (see s 56 of the Civil Procedure Act), that the parties bring in agreed short minutes to give effect to these reasons. 2. This will also give the parties an opportunity to identify any issues that I may have omitted to deal with in the myriad of issues considered above. I will allow ample time for consideration of these reasons, so as to avoid the parties needing to do this in the Court vacation. 3. For the preceding reasons, I simply order that: 1. Order that the parties, by 29 February 2021, bring in short minutes of order to give effect to these reasons, including as to costs, and any brief written submissions dealing with those orders, with a view to those orders being made in chambers, if possible. 2. Order that the parties, if they consider that it is necessary, address in those submissions why it is necessary for the Court to hear oral submissions in relation to the orders referred to in Order 1. ********** Amendments 17 December 2020 - Counsel details in coversheet amended 05 November 2021 - Amendments to Parties and Counsel and Solicitor representation on cover sheet Typographical errors at [12], [257], [283], [411], [417], [517], [755], [770], [891], [1085], [1375], [1527], [1716], [1727], [1728], [1883], [2020], [2141], [2323], [2349], [2400], [2553], [2561], [2678], [2974], [3002], [3288], [3494], [3571], [3919], [3992], [4101], [4357], [4431], [4445], [4460] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 November 2021