District Court New South Wales Medium Neutral Citation: Pyramids Render Stars Pty Ltd v Akkari Group Pty Ltd & Anor [2021] NSWDC 672 Hearing dates: 9 December 2021 Date of orders: 14 December 2021 Decision date: 14 December 2021 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Judgment for the plaintiff against both defendants for $302,861.17. (2) Order the defendants to pay the plaintiff's costs of the proceedings. Catchwords: PROCEDURE – determination of whether, and on what terms, proceedings have been settled – suitable orders to give effect to such determination CONTRACT – counter offer is a rejection of an offer - implied acceptance of an offer by conduct Legislation Cited: Civil Procedure Act 2005 (NSW), s 73 Cases Cited: Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61 Gorczynski v Bendigo and Adelaide Bank Limited (2016) NSWCA 170 Hyde v Wrench (1840) 49 ER 132 Category: Principal judgment Parties: Pyramids Render Stars Pty Ltd (Plaintiff) Akkari Group Pty Ltd (First Defendant) Maroun Akkari (Second Defendant) Representation: Counsel: E Holmes (Plaintiff) M Sciglitano (Defendants) Solicitors: Dentons (Plaintiff) Macquarie Law Group (Defendants) File Number(s): 2021/63333 Judgment Introduction 1. This judgment is the resolution of a dispute about the resolution of a dispute about the resolution of a dispute. 2. In 2019 the plaintiff Pyramids Render Stars Pty Ltd ("Pyramids") was engaged by the first defendant Akkari Group Pty Ltd ("Akkari Group") to undertake external render and paint works on a construction project in Gosford. The second defendant Mr Maroun Akkari was the sole director of Akkari Group. The First Dispute 1. On 1 April 2020 Pyramids gave a tax invoice to Akkari Group for $552,861.17 inclusive of GST. There was a dispute about the quantity of work done and whether Pyramids was entitled to the amount claimed in the tax invoice. The evidence in the case is contained in a Court Book ("CB") which was marked as Exhibit PX1. The tax invoice is at CB 264. Resolution of the First Dispute 1. The dispute concerning the tax invoice was settled between the parties by a Deed of Agreement dated 23 December 2020 ("the Deed"). The Deed is a very lengthy document which commences at CB 60. Pyramids, Akkari Group and Mr Akkari were parties to the Deed. There was a fourth party to the Deed being Montessori Adventure Pty Ltd ("Montessori"). Mr Akkari was the sole director of Montessori. 2. The general scheme of the Deed was that in settlement of the dispute about the invoice, Montessori was to transfer the ownership of an apartment in the Gosford project to Pyramids in satisfaction of its claim. Pyramids was to pay to Akkari Group the "Transfer Difference Amount", being the difference between the value of the unit and the claim made on the invoice. Upon the transfer of the apartment to Pyramids, Pyramids was to release and discharge Akkari Group from all claims which it had against Akkari Group arising out of the invoice. 3. The Recitals to the Deed were as follows: "A. Montessori Adventure is the registered proprietor of the Property (Owner). B. Akkari Group and the Owner have a common sole director, being Akkari. C. Akkari Group was engaged by the Owner to undertake development works of residential units at the Property. D. On 27 November 2019, Pyramids was engaged by Akkari Group to carry out Works at the Property under the Quote. E. On 7 January 2020, the Quote was countersigned by Akkari, being the sole director of Akkari Group. F. On 1 April 2020, Pyramids submitted a payment claim claiming an amount of $552,861.17 (including GST) for Works completed by Pyramids (Invoice). G. On or about 31 August 2020, Akkari Group made payment of an amount of $50,000.00 (including GST) against the Invoice. H. An amount of $502,861.17 (including GST) remains outstanding, and due and payable under the Invoice (Total Debt). I. The parties agreed that Montessori Adventure will transfer the Apartment to Pyramids in accordance with the Contract for Sale subject to clauses 3 and 4 of this document in satisfaction of the Total Debt forming part of the Invoice. J. The parties have agreed to settle the Dispute on the terms set out in this document." 1. Clause 2(a) of the Deed provided that Akkari Group acknowledged and agreed that: 1. Its obligations under the Quote remained in full force and effect until the Total Debt had been satisfied in accordance with the Deed. 2. The Total Debt was a liquidated debt due and payable to Pyramids. 1. Montessori failed to transfer the title to the apartment to Pyramids. In those circumstances cl 4(d) of the Deed provided as follows: "The parties acknowledge and agree that if: (i) Montessori Adventure and Pyramids does not enter into the Apartment Contract by the time specified in clause 4(a); or (ii) transfer of the Property in accordance with clause 2(b)(i) does not occur by the time permitted under clause 4(b)(ii). then: (iii) Akkari Group remains liable for the Total Debt; and (iv) Akkari Group must pay the Total Debt to Pyramids by electronic funds transfer into the account nominated by Pyramids within 1 Business Day of the expiry of the date in clause 4(a) or 4(b)(ii), whichever applies (or a later date as agreed between the parties in writing). (v) upon payment of the Total Debt to Pyramids, Pyramids releases and discharges Akkari Group from all claims which it has or which but for this document could, would or might at any time hereafter have or have had against Akkari Group arising out of the Invoice." 1. By cl 5 of the Deed Mr Akkari personally guaranteed the performance of all obligations and payment of all debts by Akkari Group and Montessori. 2. Montessori failed to transfer the apartment so under the Deed Akkari Group, guaranteed by Mr Akkari, had become liable to pay the Total Debt. Proceedings in this Court to enforce the Deed 1. By a Statement of Claim filed in this court on 5 March 2021 Pyramids sued Akkari Group and Mr Akkari as guarantor for a debt of $502,867.17. The Statement of Claim pleaded the Deed, the failure by Montessori to transfer the apartment, the obligation under cl 4(d) of the Deed for Akkari Group to pay the Total Debt to Pyramids, and that Mr Akkari was personally liable as guarantor for that debt. 2. By a Defence filed on 26 April 2021, and verified on affidavit by Mr Akkari, the defendants denied that they were liable for the outstanding amount of $502,861.17. In par 8 of the Defence the defendants pleaded that the following payments had been made but not taken into account: "The First and Second Defendants admit paragraph 4 of the Statement of Claim in so far as a payment of $50,000.00 was made on behalf of the First Defendant on or about 31 August 2020, but deny the alleged debt for an outstanding amount of $502,861.17: Particulars (a) The payment of $50,000.00 made to the Plaintiff on behalf of the First Defendant on 31 August 2020 was made in cash and handed to the representative of the Plaintiff by the Second Defendant. (b) In additional to the cash payment to the Plaintiff of $50,000.00 the Plaintiff on or about 26 August 2020 was paid $100,000 by way of two cheques for $50,000.00 each handed to the representative of the Plaintiff." 1. In cross-examination Mr Akkari resiled from par 8 of the Defence and said that it contained a mistake inserted by his previous solicitors. Mr Akkari said that he had made the following payments: 1. A cash payment of $50,000 made on 26 August 2020. 2. One cheque of $50,000 paid by Akkari Group to Pyramids on 26 August 2020. Attempts to Resolve the Proceedings 1. By July 2021 the parties were in discussions concerning settlement of the proceedings. Akkari Group and Mr Akkari asserted that the amount in the original invoice was wrong and that Pyramids had failed to give credit for payments totalling $100,000 which had already been made to Pyramids. 2. Pyramids did not accept the material put forward by Akkari Group concerning the alleged past payments and thus did not accept that there should be a credit given for $100,000. 3. Mr Akkari proposed a resolution with the following elements: 1. The amount to be paid was agreed at $380,000. 2. If Mr Akkari could prove that two cheques in favour of Pyramids of $50,000 each had been paid to Pyramids, then the amount owing would become $280,000. 3. Akkari Group was to pay Pyramids $200,000 on 5 July 2021. 4. The balance of either $180,000 or $80,000 would be paid on 16 October 2021. 1. The email by which that offer was made is at CB 41-42. It says: "HI AMIR I CAN CONFIRM THAT'S IM READY TO MOVE ON WITH THE AGREEMENT TOMORROW BASED ON THE FOLOWING CONDITIONS AS AGREED FINAL INVOICE TO BE PAID AS AGREED $380.000 BUT IF WE CAN PROOF THE 2 CHEQUES MADE TO PYRAMlD OF $50.000 EACH CHEQUE A TOTAL OF $100.000 IF WE CAN PROOF THAT'S ST GEORGE BANK PAID THESE CHEQUES TO PYRAMID THAN THE FINAL INVOICE WILL BE $280.000 I WILL PAY PYRAMID $200.000 ON 05-07-2021 AND THE BALANCE WHICH IS $180.000 OR $80.000 DEPAND ON ST GEORGE CONFIRMATION WILL BE PAID ON 16-10-2021 NO SECURITIES TO BE PROVIDED OR NO CAVEAT TO BE LODGE AGAINST ANY SECURITY UNLESS I DEFAULT TO PAY THE BALANCE OF THE FUND ON THE 16-10-2021 AT THAT TlME PYRAMID CAN LODGE A CAVEAT OR TAKE ACTION ON ANY SECURlTY AVAILABLE AT THAT TIME BUT FROM NOW UNTIL THE 16 OCTOBER 2021 NO SECURITY IS TO BE PROVIDED AND NO CAVEAT IS TO BE PLACED ON ANY ASSET IF YOU AGREED TO THIS EMAlL AND WHAT IT CONTAINS PLEASE REPLY TO THIS EMAIL OR YOU CAN PRINT AND SIGN AND EMAIL BACK BUT I EXCEPT YOUR REPLY BY REPLY EMAIL PLEASE CONFIRM ASAP REGARDS MAROUN AKKARl" 1. That offer was not accepted by Pyramids. Instead, Pyramids made a counter offer by an email dated 5 July 2021 (CB 43). An offer once rejected is terminated. It cannot be subsequently accepted. A counter offer is an implied rejection of an offer: Hyde v Wrench (1840) 49 ER 132. 2. The Pyramids email said: "Hi Maroon I am responding to your email of 4 July 2021 at 8.55pm. I agree to the following: 1. Subject to paragraph 2 and 3 below, Akkari pay $380,000 in full settlement of Pyramids' outstanding invoices for the works at 36 – 38 Showground Road, Gosford by two instalments to BSB 062-191 and account number 10846564: (a) $200,000 on 5 July 2021; (b) $180,000 on 16 December 2021; 2. if within five weeks from today, Akkari provides evidence, subject to Pyramid's satisfaction, that it has previously paid a further $100,000 towards the outstanding invoices for the works, the $180,000 will be reduced to $80,000 and will remain payable on 16 October 2021; 3. the above agreement though is subject to the following terms: (a) if Akkari pays $200,000 today (and Pyramids receives it in cleared funds this week) and Akkari pays the $180,000 or $80,000 (whichever is due) on 16 October 2021 (and Pyramids receives it in cleared funds shortly following that date) then Pyramids will not take any further steps against Akkari, Montessori or you in respect of the dispute or the invoices; (b) if Akkari doesn't pay $200,000 today (or Pyramids does not receive it in cleared funds this week) then it is 'all bets off' and Pyramids will continue to take all steps regarding the dispute including making claims and seeking to enforce the terms of the original deed signed by us (including for example, by continuing and seeking to enforce the terms of the original deed signed by us (including for example, by continuing the proceedings) against Akkari, you and Montessori. (c) if Akkari pays the $200,000 today but doesn't pay the $180,000 (whichever is due) on 16 October 2021, then it is 'all bets off' and Pyramids will take all steps regarding the dispute including making claims and seeking to enforce the terms of the original deed signed by us (less any payments made to reduce the amount owing) against Akkari, you and Montessori." 1. While there was no formal acceptance of that offer, Akkari Group paid $200,000 later on 5 July 2021. It then set about attempting to prove to Pyramids that it had previously paid $100,000 for which it had not been given credit, and thus the amount still owing was only $80,000. This was an implied acceptance of the counter offer made by Pyramids in its email dated 5 July 2021. 2. Inferences can be drawn from the conduct and words, or the absence of conduct or words, so that it is not always necessary to show that the defendant accepted an offer if the defendant's conduct was such that the plaintiff was reasonably entitled to believe that the defendant was assenting to its position: Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61 at [85]. 3. To be an implied acceptance of an offer, conduct must be of such a character as necessary to lead to the inference that the agreement had been accepted: Brambles at [162]. 4. Post‐contractual conduct is admissible on the question of whether a contract was formed: Brambles at [25]. 5. I find that by their conduct, after receipt of the email dated 5 July 2021, in paying the $200,000 and then setting about proving that there had been previous payments of an additional $100,000, there was an implied acceptance by Akkari Group and Mr Akkari of the offer put by Pyramids in the email dated 5 July 2021. Plaintiff's Notice of Motion 1. Pyramids filed a Notice of Motion on 15 November 2021 to obtain a resolution (by this court) of the dispute (as set out in the affidavit of Mr Akkari) about the resolution (in July 2021) of the dispute (in these proceedings) about the resolution (by the Deed) of the first dispute (concerning the invoice). 2. The Notice of Motion sought orders pursuant to s 73 of the Civil Procedure Act 2005 (NSW). The primary relief sought was judgment in favour of the plaintiff against the defendants for $302,861.17 and an order that the defendants pay the plaintiff's costs. This order was sought on the basis that cl 3(c) of the agreement set out in the email dated 5 July 2021 applied, and since the defendants had not paid anything apart from the $200,000, Akkari Group and Mr Akkari remained liable for the Total Debt agreed in the Deed of $502,861.17, minus a credit for the $200,000 paid on 5 July 2021. 3. The submission of Pyramids was that there was no appropriate proof that $100,000 had been paid in the past towards the debt and that in any event, even on the case for the defendants, there was still an amount of $80,000 which remained unpaid. This last amount, or that amount plus the $100,000 still owing, triggered cl 3(c) of the agreement in the 5 July 2021 email, and thus made the defendants liable for the Total Debt, reduced by the payment of $200,000 which had been made. Section 73 of the Civil Procedure Act 2005 (NSW) 1. Until the enactment of this section there was a continuing debate as to whether, if proceedings were settled or compromised, the enforcement of such settlement would have to be pursued in separate proceedings, or could be pursued by a motion in the original proceedings. Section 73 now makes it plain that the court has jurisdiction to determine issues arising from the settlement of proceedings in those proceedings themselves, rather than in separate proceedings. 2. Section 73 provides as follows: "(1) In any proceedings, the court— (a) has and may exercise jurisdiction to determine any question in dispute between the parties to the proceedings as to whether, and on what terms, the proceedings have been compromised or settled between them, and (b) may make such orders as it considers appropriate to give effect to any such determination. (2) This section does not limit the jurisdiction that the court may otherwise have in relation to the determination of any such question." 1. The meaning and scope of s 73 was considered by the Court of Appeal in Gorczynski v Bendigo and Adelaide Bank Limited (2016) NSWCA 170. 2. At pars [6]-[7] Justice Basten said: "6 Section 73 (and its analogues in other jurisdictions) has been understood to confer power on the court to deal with settlements in the proceedings to which they relate, rather than leaving the parties to commence separate proceedings to enforce a settlement. Accepting that to be the primary purpose of the provision, it is nevertheless expressed in broad terms as to the scope of the power conferred, terms which should not be read down by implied constraints. Rather, the breadth of the power as it operates in the Supreme Court is confirmed when it is read in the context of other powers conferred on the Court. Thus, s 56 of the Civil Procedure Act, to which the primary judge referred, states that the court must give effect to the overriding purpose of facilitating 'the just, quick and cheap resolution of the real issues in the proceedings.' In order to undertake that function, the court must have the necessary powers to assist it to identify what are the 'real issues' in the proceedings. In order to determine what are the real issues in the proceedings it is necessary for the court to seek to ascertain the extent to which the parties can or have narrowed their dispute, so as to limit the proceedings to that part, if any, which remains unresolved. That was the course which the primary judge undertook. If any express power were required for the judge to act on her own initiative, the court had power to act 'of its own motion' pursuant to s 86(3) of the Civil Procedure Act, subject always to according procedural fairness to each party. 7 The Court also has power to grant any remedy to which the party appears to be entitled, so that, as far as possible, all matters in controversy may be completely and finally determined, pursuant to s 63 of the Supreme Court Act 1970 (NSW). That may include relief which has not been sought in express terms. To similar effect, s 90 of the Civil Procedure Act provides that the Court is 'at or after a trial, or otherwise, … to give such judgment or make such order as the nature of the case requires'. The breadth of these powers is consistent with the general jurisdiction of the Supreme Court, being that which may be necessary for the administration of justice." Evidence on the Motion 1. While the entire Court Book was marked as PX1 as a matter of convenience, the evidence on the Motion was as follows: 1. Affidavit of Amir Abdelbadie dated 20 August 2021 (CB 26-53). 2. Affidavit of Amir Abdelbadie dated 1 September 2021 (CB 54-216). 3. Affidavit of Maroun Akkari dated 28 September 2021 (CB 225-306). 1. Both Mr Abdelbadie and Mr Akkari were cross-examined. 2. In his first affidavit Mr Abdelbadie simply annexed the emails of 4 July 2021 and 5 July 2021 referred to above, together with some subsequent communications between the solicitors. 3. In his second affidavit Mr Abdelbadie said that he did receive a payment by cheque on 26 August 2020 from Akkari Group. He said that he went to the house of Mr Akkari and collected a cheque in the amount of $50,000. He took the cheque and banked it into the plaintiff's CBA account at the Bankstown branch. The cheque cleared and thus Pyramids received payment for it on 31 August 2021. 4. In his second affidavit Mr Abdelbadie referred to an email sent to him by Mr Akkari on 26 August 2021 (CB 254-255). This email said: "HI AMIR PLEASE FIND ATTACHED PROOF OF THE 2 CHEQUES WHICH WE PAID YOU FROM ST GEORGE ACCOUNT THE FIRST CHEQUE OF $50.000 WENT INTO YOUR COMMONWEALTH BANK ON THE 26-08-2020 WHICH I DEPOSITED AND THE PROOF ATTACHED THE SECOND CHEQUE AS PER YOUR INSTRUCTION YOU NEED CASH URGENTLY SO I WENT TO G M CABS TO CASH IT IN AND I PAID $1500 SERVICE FEE WHICH YOU AGREED TO PAY YOU PICK IT UP THE CASH IN FRONT OF MY PLACE AND ANTONIO FRANCIS WAS PRESENT AT THAT TIME AS NOW WE CAN CONFIRM YOU DID RECEIVE THE $100.000 WHICH EQUAL THE 2 CHEQUES NOW THE OUTSTANDING BALANCE AS PER THE AGREEMENT DATED 04 JULY 2021 $80.000 AS PROVIDED YOU WITH EVIDENCE THAT YOU DID RECEIVE THE 2 CHEQUES OF $50.000 EACH PLEASE NOTE THAT'S THE OUTSTANDING AMOUNT OF $80.000 WILL BE PAID INTO YOUR ACCOUNT ON OR BEFORE 16 OCTOBER 2021 AS PER OUR LATEST AGREEMENT DATED 04 JULY 21 NOW IM PLEASED THAT'S WE ALMOST THERE AND WE ARE LOOKING FORWARD TO WORK WITH YOU IN THE UPCOMING PROJECT AND MAINTAIN THE RELATIONSHIP WITH OUR BUSINESS KIND REGARDS MAROUN" 1. The email referred to "ATTACHED PROOF OF THE 2 CHEQUES". The document purporting to be proof of the two cheques is at CB 256. It is an email from Mr Steward of St George Bank to Mr Akkari on the subject of "Cheque Traces". Mr Steward says that one of the cheques (no. 213) was paid to Pyramids Render Stars Pty Ltd and was deposited to their account on 26 August 2020. The other cheque (no. 214) was deposited into the account of G M Cabs Pty Ltd on 27 August 2020. 2. In his second affidavit Mr Abdelbadie denied collecting $50,000 in cash from Mr Akkari at any time, denied ever meeting a person who identified himself as Antonio Francis, and said that he never had any dealings with G M Cabs Pty Ltd ("G M Cabs"). 3. I observed Mr Abdelbadie in cross-examination. His answers were presented in a straightforward and frank fashion. I formed a favourable impression of his credibility from the way in which he answered questions, and from the concessions which he was willing to make concerning receipt of payments from time to time. Mr Abdelbadie denied that in August 2021 he had any contact from Mr Akkari during which Mr Akkari requested details of his bank account so that he could pay the $80,000 still owing. 4. It was suggested to Mr Abdelbadie that Mr Akkari had taken the $50,000 cheque to the Bankstown branch of CBA and deposited it into the account of Pyramids. Mr Abdelbadie denied this. He said that he took the cheque to his own bank and deposited it. 5. In his affidavit Mr Akkari said that he was contacted in late August 2020 by Mr Abdelbadie who requested payment for outstanding invoices. Mr Akkari said that on 25 August 2020 he contacted Mr Abdelbadie and told him that he was able to pay $100,000 as St George was willing to release those funds directly to contractors. Mr Akkari said that Mr Abdelbadie advised him that he needed funds urgently and asked him for half the money in cash. Mr Akkari said that he knew of a company G M Cabs which would cash cheques. Mr Akkari said that he wrote out two cheques in favour of Pyramids, each for $50,000. He took one of these cheques to G M Cabs and exchanged it for $48,500 in cash. The difference between the $50,000 written on the cheque and the cash received was a fee of $1,500 charged by G M Cabs for cashing the cheque. 6. Mr Akkari said that on 26 August 2020 Mr Abdelbadie came to his house to collect the cash. At the time Mr Akkari was on his balcony speaking to his worker Mr Antonio Francis. Mr Abdelbadie collected cash of $48,500 from him and left the house. 7. Mr Akkari said that he banked the other $50,000 cheque by taking it to the CBA Bankstown branch and deposited it into Pyramids nominated bank account. He said that Mr Abdelbadie never picked up this cheque from him, as he had put it directly into the Pyramids account. 8. Mr Akkari referred to discussions in July 2021 which led to the exchange of emails referred to above. He said that as a result of an agreement reached in early July 2021 he paid two amounts of $100,000 into the Pyramids account. These payments are not in dispute. 9. In his affidavit Mr Akkari referred to sending the information received from St George Bank. This is the document referred to above which shows that one $50,000 cheque was deposited to the Pyramids account and the other was deposited to the G M Cabs account. Mr Akkari said that Mr Abdelbadie said: "Yes we admit we received one of those cheques which I can see from your email, but we have not received the cheque that was deposited into G M Cabs account." 1. Mr Akkari said that he replied as follows: "Why are you doing this? You asked me to cash the cheque this way for you, and now you are saying you never received the funds because you know that you have already collected the cash that was deposited into G M Cabs account, and you know that I can't prove that you have received the cash from that account." 1. Mr Akkari gave additional evidence-in-chief by leave, because of rulings made regarding the admissibility of some paragraphs of this affidavit. He reiterated that Antonio Francis was with him at his home when he handed over a white envelope containing the cash. Mr Francis was not called as a witness in the proceedings. 2. In his examination-in-chief, Mr Akkari twice said the two cheques went into the account of Pyramids. He also said that St George Bank came back and proved that the two cheques went into the Pyramids account. 3. This was clearly at odds with the evidence in his affidavit, which was that one cheque went into the Pyramids account and the other one went to G M Cabs and was converted into cash. I accept the submission of counsel for the defendants that Mr Akkari, whose first language is not English, was expressing himself badly when he said that both cheques went into the account. It has always been his case that only one cheque went into the account and the other was turned into cash which was handed to Mr Abdelbadie. 4. In cross-examination Mr Akkari proved to be a voluble witness, who was as much an advocate in his own case as a person trying to focus upon questions and answer them. I do not accept his account of events concerning the payments allegedly made, but that is because his account does not accord with the documentation and the probabilities, rather than because of any impression I formed of him of a witness. Consideration: Did the Defendants pay $100,000 to the Plaintiff? The $50,000 cheque banked by Pyramids 1. There is no dispute that on 26 August 2020 Montessori drew a cheque for $50,000 on its St George account. It was cheque no. 213 and was payable to Pyramids (CB 238). There is no dispute that the cheque was banked into the Pyramids account, although there is a dispute as to whether it was physically presented at the counter by Mr Abdelbadie or Mr Akkari. It does not matter who took it to the bank, except as a matter of credit. Because of findings set out below in relation to the credit of Mr Akkari, I accept that Mr Abdelbadie was the one who took it to his own bank and deposited it to the Pyramids account. 2. There is an issue to be determined as to whether or not the cheque dated 26 August 2020 is the same cheque as that described in Recital G to the Deed, or whether it is a payment of $50,000 additional to the payment of $50,000 acknowledged in Recital G. 3. The Deed is a formal and complex document drafted by the lawyers for the parties. It was entered into on 23 December 2020. The submission of the defendants that they are entitled to a credit of $50,000 for a payment made on 31 August 2020 (as set out in Recital G) and also to a credit of $50,000 for the cheque dated 26 August 2020 is rejected. It is improbable in the extreme that when the Deed came to be drafted in December 2020, Mr Akkari would not have drawn the attention of his lawyers to two $50,000 cheque payments made in late August 2020 in reduction of the invoice. 4. I find, as submitted for the plaintiff, that the payment of $50,000 referred to in Recital G is the cheque dated 26 August 2020 banked into the Pyramids account. Mr Abdelbadie said that this cheque cleared on 31 August 2020 and he was not challenged on that statement. As a result, even though there is proof that a payment was made by cheque of $50,000 in late August 2020, this would not operate to reduce the amount owing under the Deed, as credit has already been given for that payment in Recital G. In other words, the Recital G payment and the cheque dated 26 August 2020 are one and the same. Alleged Cash Payment of $48,500 1. I find it totally improbable that Mr Akkari in December 2020 would not have drawn to the attention of his lawyers when the Deed was being drafted, that he had made a cash payment of $48,500 in late August 2020, which further reduced the amount due on the invoice. There was no reason for him to hide this from the lawyers, as Mr Akkari said in his oral evidence that he had used G M Cabs for many years to cash third party cheques. On Mr Akkari's account, he was simply obtaining cash as requested by Mr Abdelbadie, not to somehow evade tax or engage in some black economy activity himself. 2. Another reason why I reject the allegation that there was a cash payment of $48,500 arises from the failure to call Mr Francis to corroborate the handover of an envelope containing cash. There was no explanation was to why he was not called in the defendants' case. According to Mr Akkari, Mr Francis (who was an employee of Akkari Group) was a witness to Mr Akkari handing an envelope containing $48,500 in cash to Mr Abdelbadie. Mr Abdelbadie denied that the money was handed over and denied that he had ever met Mr Francis. 3. Mr Francis may not have known what was in the envelope, but at least he could have been asked whether he recalled the handing over of an envelope per se. It would not have been a small envelope. If the cash provided by G M Cabs was in $100 notes, there would be 485 bank notes to make up $48,500. The envelope would have had to be a large envelope. If the cash was in $50 notes, there would have been 970 bank notes. The envelope would have been even larger. 4. Given that there was a real contest about whether cash was ever handed over, one would have expected the defendants to call Mr Francis in their case or at least provide an explanation as to why he was not called. I draw the usual inference that the evidence of Mr Francis would not have assisted the case of the defendants. 5. I accept the evidence of Mr Abdelbadie that he was never paid $48,500 in cash by Mr Akkari. 6. I reject the evidence of Mr Akkari that he paid the money in cash for the reasons set out above. There is no credit to be given to Akkari Group for an alleged payment made on 26 August 2020 of $48,500 in cash. 7. The result of these findings is that there were no payments totalling $100,000 as alleged by the defendants. Findings and Orders 1. For the reasons set out above I make the following findings as required by s 73 of the Civil Procedure Act 2005 (NSW): 1. These proceedings have been settled between the parties. 2. The terms upon which they have been settled are set out in the email dated 5 July 2021 from Pyramids to Akkari Group and Mr Akkari. 3. To give effect to such determinations the appropriate order is to give judgment in accordance with the relief sought in the Notice of Motion. 1. My orders are: 1. Judgment for the plaintiff against both defendants for $302,861.17. 2. Order the defendants to pay the plaintiff's costs of the proceedings. ********** Amendments 03 January 2022 - Par 14 - the word "concerning" was added. 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: 03 January 2022