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[2026] NSWSC 752
Supreme Court of NSW
2026-06-30
Chen J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Alahmadi v Vakiloroaya [2026] NSWSC 752
Hearing dates: 10 June 2026
30 June 2026
Decision date: 30 June 2026
Jurisdiction: Common Law
Before: Chen J
Decision: (1) Order the amended summons filed 20 March 2026 be dismissed.
(2) Order the plaintiff to pay the defendant’s costs of the proceedings in this Court.
Catchwords: APPEALS – claim for breach of contract heard in the Local Court over four years – whether the Magistrate erred in law by failing to properly apply the onus of proof – where the plaintiff accepts the Magistrate correctly identified the onus to be applied – whether the Magistrate erred in law by failing to properly address a submission “worthy of consideration” – whether the Magistrate was required to address that submission given the question raised by it was subsumed into the ultimate question determined – whether questions of law were raised by the notice of appeal, thereby conferring a right of appeal under s 39 of the Local Court Act 2007 (NSW)
Legislation Cited: Limitation Act 1969 (NSW)
Local Court Act 2007 (NSW)
Cases Cited: Australian Telecommunications Corporation v Lambroglou [1990] FCA 689; 12 AAR 515
Boland v Dillon; Cush v Dillon [2015] NSWCA 183
Burnside v Mulgrew [2007] NSWSC 550
Café Du Liban Pty Ltd v Bespoke Garage Pty Ltd [2017] NSWSC 779
Collector of Customs v AGFA-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36
Davis v NSW Land and Housing Corporation [2016] NSWCA 325; 18 BPR 36,459
Dennis Willcox Pty Ltd v Federal Commissioner of Taxation [1988] FCA 123; 79 ALR 267
Director of Public Prosecutions (Cth) v JM (2013) 250 CLR 135; [2013] HCA 30
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088
Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; 96 ATR 875
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Jaksic v Yim [2011] NSWSC 962
Jeffreys v Sheer [2025] NSWCA 31
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32
Lazicic v Rossi [2024] NSWSC 777
Leduva Pty Ltd v NM Structural Engineering Pty Ltd [2010] NSWSC 1164
Lesley-Swan v Owners SP 32725 [2013] NSWSC 1635
Marathon Group Pty Ltd v Latrobe Valley Building Services Pty Ltd [2018] NSWSC 194
Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209
Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361; [2007] WASCA 97
Plassas v Person [2016] NSWSC 1445
Rose v Tunstall [2018] NSWCA 241
R v JS [2007] NSWCCA 272; 175 A Crim R 108
R v PL [2009] NSWCCA 256; 261 ALR 365
R v XHR [2012] NSWCCA 247
TNT Skypak International (Aust) Pty Ltd v Federal
Commissioner of Taxation [1988] FCA 198; 82 ALR 175
Watson v Foxman (1995) 49 NSWLR 315
Williams v Walker [2013] NSWSC 1013
Category: Principal judgment
Parties: Ali Alahmadi (plaintiff)
Vahid Vakiloroaya (defendant)
Representation: Counsel:
V Brigden SC and P Kucharski (plaintiff)
V Bedrossian SC and A Kaufmann (defendant)
Solicitors:
David Leamey Solicitor and Barrister (plaintiff)
Stanford Lawyers (defendant)
File Number(s): 2025/00485704
Publication restriction: Nil.
These reasons deal with an appeal by an unsuccessful defendant in proceedings where the plaintiff sought to recover $59,000.00 for breach of contract relating to the provision of engineering services for a construction project at Macquarie Park, NSW during 2013.
Although in this Court, the defendant is the plaintiff (and vice versa), it is simplest to continue to refer to the parties as they were in the Court below.
The procedural history of the litigation in the Local Court is, one hopes, extraordinary. The plaintiff commenced his proceedings in that Court by statement of claim in 2020. The hearing commenced on 27 May 2021. It did not complete on that day. Thereafter, the balance of the case was heard over the course of some 20 days spread over four years, culminating in a judgment delivered on 18 November 2025 and subsequent orders entered on 5 February 2026.
The record below is reported to have comprised a court book of around 3,000 pages; around 4,000 pages of exhibits; and over 1,100 pages of transcript.
The decision of the Magistrate (excluding the annexures to it) is 115 pages, and concluded that the plaintiff “[had] proven his case” – thereby entitling him to the sum claimed. (The judgment has no medium neutral citation and the paragraphs within it will be referred to as J1, etc.).
The defendant, being dissatisfied with the outcome, filed a summons in this Court on 15 December 2025 appealing from that decision. That summons contained an astonishing 25 grounds, all of which contained multiple sub-grounds, such that, all up, there were some 94 grounds of appeal. It is unnecessary to unduly dwell upon the terms of that summons because, on 20 March 2026, an amended summons was filed which radically contracted the grounds of appeal. By the amended summons, the defendant sought to appeal the decision of the Magistrate as of right, arguing that three questions of law arise.
During submissions, the grounds were contracted further: the defendant now only presses grounds 1 and 2. Put simply, by ground 1, the defendant argues that the Magistrate failed to apply the onus of proof and, by ground 2, the defendant argues that the Magistrate failed to address a submission “worthy of consideration” relating to the timing of when allegedly fraudulent documents were said to have been created.
Despite the contraction of the grounds, the material filed in support of the appeal remains substantial: the court book extends over seven volumes and is in excess of 3,200 pages. However, given the way the matter was argued, it is only necessary to refer to the reasons of the Magistrate, informed by a limited number of documents in the court book to which reference was made during submissions.
On the appeal, I was assisted by the clear and focused submissions made by Ms Brigden SC and Mr Bedrossian SC.
By statement of claim filed 12 October 2020 (‘SOC’), the plaintiff commenced proceedings in the General Division of the Local Court seeking $59,000.00 in damages, plus interest and costs, against the defendant for breach of contract.
In short, the plaintiff alleged that he had entered into a “partly oral and partly written” contract with the defendant in or about May 2013, pursuant to which he “was to provide Design HVAC Engineering Services for a construction project at Macquarie Park, in the State of New South Wales, to commence on 1 June 2013 and to end on 29 November 2013”, and the defendant was to pay him the sum of $65,000.00 for providing those services (SOC, pars 1-3).
To the extent that the contract was oral, the plaintiff alleged that the relevant discussions between him and the defendant occurred “in or about May 2013”, and, to the extent that it was written, the plaintiff alleged that this was constituted by a letter from the defendant to the plaintiff dated 23 May 2013 (SOC, pars 2(b) and (c)). This letter was commonly described by the Magistrate as “Annexure G”, and it is convenient to adopt that description in these reasons. As noted below, the defendant alleged that this document was fraudulently created by the plaintiff.
Before the plaintiff completed providing the services, he, “[i]n or about the end of July 2013”, requested that the defendant pay him “an amount of money in part payment”. Pursuant to that request, the defendant did so: he paid the plaintiff the sum of $6,000.00 on 2 August 2013 (SOC, pars 5 and 6).
Once the plaintiff had completed providing the services in “about mid to late November 2013”, he requested that the defendant pay the balance owed to him under the contract – namely, $59,000.00 – but the defendant failed to do so at that time, and any time thereafter (SOC, pars 8-17).
The plaintiff alleged that he made at least five requests for payment in the period December 2013 until April 2014 (SOC, par 12). The plaintiff further alleged that, although the defendant failed to pay him, he nevertheless assured the plaintiff that “he would pay him in the future” (SOC, par 13). In December 2018 and September 2020, the plaintiff made further requests for payment (SOC, pars 14 and 16). On both occasions, the defendant refused to comply with the request (SOC, pars 15 and 17).
The plaintiff made a further and/or alternative claim against A1 Best Airconditioning Services Pty Ltd (‘A1 Best Airconditioning’), of which the defendant was a director and shareholder, on the basis that the contract for services was entered into with A1 Best Airconditioning, and the defendant was the guarantor of payment (SOC, pars 19-28). The company was deregistered on 9 April 2016 (SOC, par 24; J95).
In his third further amended defence filed 14 August 2022 (‘defence’), the defendant denied that he or A1 Best Airconditioning entered into the alleged contract with the plaintiff, and denied that he acted as guarantor of any payment made by A1 Best Group Pty Ltd (‘A1 Best Group’) or A1 Best Airconditioning (defence, par 39). Further, he contended that the letter dated 23 May 2013 (being Annexure G) and other documents relied on by the plaintiff were fabrications, “dishonesty created” and “forged” by him to support his claim (defence, pars 1-3, 35 and elsewhere), that the plaintiff entered into an oral agreement with A1 Best Group under which he was not entitled to payment for his work (as he was working as an intern) and that the $6,000.00 payment was made on an ex-gratia basis (defence, pars 36-37).
The defendant also raised a limitation defence on the basis that the plaintiff’s claim was time-barred pursuant to s 14(1)(a) of the Limitation Act 1969 (NSW) (defence, par 30).
In his reply filed 3 September 2022, the plaintiff (inter alia): denied the allegations that he or another person fabricated documents to support his claim (reply, pars 1, 6-8); denied that the proceedings were time-barred and, to the extent necessary, alleged that there had been an acknowledgement and confirmation of the debt (reply, par 4); and, further, denied the existence of the alleged oral agreement between himself and A1 Best Group (reply, pars 13-15).
In relation to the plaintiff’s allegation that the defendant had acknowledged and confirmed the debt, it was argued that this occurred when the defendant sent the plaintiff an email on 28 October 2014 – Annexure L. That email, inter alia, stated that the defendant was “not able to pay the amount of 59K AUD in full or part and would like to extend the payment time up to six months from the date of this agreement”. The defendant, as part of his allegation that numerous documents were fraudulently created by the plaintiff, argued that Annexure L was one such document.
The following is a short summary of the project, with a focus on aspects of it that informed the way in which the Magistrate resolved whether the plaintiff had proven what came to be known as the “contract issue” (see [32], below).
Toga Constructions NSW Pty Ltd (‘Toga’) was the construction firm responsible for building two multi-storey buildings (described as “Buildings C & D”) on Herring Road, Macquarie Park, in 2013: J118.
In 2013, A1 Best Group and Toga entered into a subcontract agreement. Although the full subcontract agreement was not in evidence, and the date of the agreement was not contained in the limited parts of the agreement that were tendered, the Magistrate found that A1 Best Group “was to design and construct mechanical services (HVAC and all associated works) for Buildings C & D”: J120-121, 123.
On 21 March 2013, the defendant signed minutes of a subcontractor pre-award meeting with Toga in relation to the Herring Road project: J134. The Magistrate noted that those minutes “include a reference” to the plaintiff: J134. Within the minutes, the plaintiff was nominated by A1 Best Group as one of its “supervisors” – a person who was required by Toga to have “the authority of the company to make proper decisions and commitments on the company’s behalf”: J134.
The tender documents were signed by the defendant on or around 19 April 2013: J138. The subcontract sum was $2,510,780.00 plus GST: J123, J138. The Magistrate also noted the following in relation to the prices allocated for drawings according to the schedule of prices in the tender documentation (J138):
“Its schedule of prices allocated $20,500 for workshop drawings and as-installed drawings and $54,000 for design and drafting. (Exhibits 3634 – 3637). There was no evidence as to how much of the tendered work was to be done by A1Best employees and how much was to be done by contractors, and how much of the total amount was allocated to labour and how much was allocated to materials etc.”
At 3:50pm on 31 May 2013, a representative from Toga emailed the architectural drawings for the Herring Road project to the defendant who, at 5:39pm, forwarded the email to the plaintiff and another person (Mr Soltani – a project manager at A1 Best Group for the first three months of the Herring Road project: J114) “without any further explanation”: J152. That same day, the defendant sent another email to the plaintiff and Mr Soltani, enquiring whether they could “download the documents” and wanting to organise to meet “tomorrow” in order to “go through this”: J153.
On 1 June 2013, emails were sent from Mr Soltani and the plaintiff about the drawings and a prospective site meeting with Toga on the Wednesday: J154-J155.
On 4 June 2013, the defendant sent an email to the plaintiff attaching various documents, including one that was labelled “deed agreement” – which the Magistrate noted was “described in these proceedings as Annexure G. [The defendant] says that it is a forgery”: J156.
Although it will be necessary to return to aspects of the Magistrate’s reasons when addressing the defendant’s grounds of appeal, the following sufficiently summarises, and provides an overview of, the key findings and conclusions. Some detail is, however, necessary: the defendant’s arguments included a complaint about the structure and organisation of the reasons and, in relation to the arguments specifically directed to the grounds of appeal, they require a clear understanding of the issues raised in the litigation, and what was decided by the Magistrate.
Given the length of the Magistrate’s judgment, it is convenient to adopt the sub-headings used by her Honour.
The Magistrate identified two “main issues” for determination (J3):
First, whether there existed a contract between the parties whereby the plaintiff agreed to undertake the design services in exchange for the payment of $65,000.00 from the defendant (described by the Magistrate as the “[c]ontract issue”); and,
Secondly, whether the defendant, before the end of the six-year limitation period concluded at the end of November 2019, confirmed, by acknowledgement in writing, the plaintiff’s cause of action so as to extend the period within which he could bring proceedings (described by the Magistrate as the “[l]imitation issue”).
The Magistrate reminded herself of the correct approach to fact finding in cases such as this where the “main events… occurred a long time ago” and “[m]uch of the evidence relies on recollection”, referring to decisions such as Watson v Foxman (1995) 49 NSWLR 315, 318-319; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31]; and Jeffreys v Sheer [2025] NSWCA 31 [33]-[40]: J17-J22.
In this last respect, the Magistrate noted that she had “preferred evidence that [was] supported by a contemporaneous document” and “exercised care” when assessing evidence that was either “unsupported by, or contrary to[,] a contemporaneous document”.
“Contract claim
31 [The plaintiff] bears the onus of proving on the balance of probabilities that he and [the defendant] entered into a contract, the terms of which are reflected in Annexure G. (A copy of Annexure G is found at the end of this judgment.) The standard of proof is the balance of probabilities.
- [The defendant] says that Annexure G was a forgery. He bears the onus of proving that it was a forgery. He must prove it such that the court must feel an “actual persuasion of its occurrence or existence” (Sheer v Jeffreys [2024] NSWSC 1161 at [46]). Even if [the defendant] does not succeed in proving that Annexure G was a forgery, [the plaintiff] must still prove his case on the balance of probabilities (Burnside v Mulgrew [2007] NSWSC 550 at [28]).
Limitation Act
33 [The plaintiff] bears the onus of proving on the balance of probabilities that before the end of the six year limitation period at the end of November 2019, [the defendant] acknowledged or confirmed in writing, [the plaintiff’s] right or title to sue him for the amount claimed so as to extend the period within which he can bring proceedings to recover what he says he is owed.
34 As with the contract claim, [the defendant] bears the onus of proving that a document he asserts to be fraudulent is fraudulent such that the court must feel an “actual persuasion of its occurrence or existence”. Even if [the defendant] does not succeed in proving that a document was a forgery, [the plaintiff] must still prove his case on the balance of probabilities.”
Between J37 and J126, the Magistrate set out the “key persons and entities” involved in the proceedings.
It is unnecessary to summarise this part of the Magistrate’s reasons, albeit that some of the findings are referred to later – particularly in the Magistrate’s resolution of the contract issue.
Between J127 and J281, the Magistrate set out the “[c]hronology”, where the evidence was referred to and, on occasions, some factual findings were made.
It is presently sufficient to note the following findings:
The Magistrate found that the plaintiff “did design work on the project”, and this extended to “the work on the 300 pages of HVAC drawings that were annexed to his affidavit”: J183, 188. In this respect, the Magistrate rejected any suggestion – which appeared to be put to the plaintiff for the first time during his cross-examination – that those drawings were prepared by another person (Mr Madjidi – who commenced working for A1 Best Group “in January 2013” and who the plaintiff thought was a mechanical engineer of some type: J109, 111). Mr Madjidi was not called by the defendant to give evidence, and the Magistrate considered that, amongst other individuals not called by the defendant, a “Jones v Dunkel inference [was] available”: J186.
According to the minutes of the site meetings held for the Herring Road project between 5 June 2013 (meeting #2) and 14 September 2013 (meeting #14), the plaintiff attended those meetings and, on occasions, was identified, along with Mr Soltani, “as being responsible for the action items”: J194.
On 2 August 2013, the defendant transferred $6,000.00 from A1 Best Group’s bank account to the plaintiff’s bank account, and the plaintiff annexed to his statement an extract from his (and his ex-wife’s) bank statement showing the receipt of that money: J166.
Having set out the defendant’s submissions, which included the ultimate submission that the plaintiff’s claim was “highly improbable” and “[could not] succeed as the evidence on which he [relied] is a fabrication” (J286, J287(j)), the Magistrate then made “general findings”, which were essentially grouped into two parts: first, findings about the plaintiff – “addressing issues raised in [the defendant’s] submissions”: J288-J328; and, secondly, findings about the defendant: J329-J332.
The key, and presently relevant, findings include the following:
The plaintiff’s “position [was largely] supported by contemporaneous records. Where there [were] holes in the records, this [could] be explained by the fact that he no longer works for A1Best and could not access their records”: J288.
The Magistrate rejected the defendant’s submission that the plaintiff had “lied on numerous occasions” and “acted out of spite”. Rather, her Honour characterised the plaintiff’s behaviour as being “consistent with the behaviour of a person who believes he has been wronged and will go to enormous lengths to prove the correctness of his position and be paid what he believes is owed to him”: J289.
In rejecting the defendant’s submission about the plaintiff’s “inexperience and qualifications”, the Magistrate found that the plaintiff “had overseas tertiary qualifications and work experience and already had his qualifications and experience accepted by Engineers Australia in 2007. He came into Australia on a skilled – independent visa”: J290. Earlier, the Magistrate had set out the plaintiff’s academic qualifications and found: that “[o]n 29 August 2007, Engineers Australia advised him that they had assessed his engineering qualifications and his competency demonstration report, and indicated that he met the [then] current academic requirement for standing as a Professional Engineer in Australia”: J42; that the plaintiff “became a member of the Institution of Engineers Australia (Mechanical College) on 6 June 2012”: J42; and that he “commenced his PhD studies in May 2010 and finished his studies around the second half of 2013. He was awarded the PhD in 2015. He was awarded a scholarship in January 2011... He worked as a research assistant for his supervisor at UTS”: J43.
The Magistrate accepted that the consideration of the above matters was also relevant to her Honour’s assessment of the defendant’s claim that the plaintiff’s “role in the Herring Road project was as an intern”: J294.
The contemporaneous records showed that it was the plaintiff “who was undertaking the engineering work”, and that he was liaising with a number of others (including the defendant) in doing so: J295. The Magistrate also found that, before the tender document was signed (see J134), the defendant “had nominated [the plaintiff] to be involved in the subcontractor meetings”, a fact that further undercut the defendant’s evidence that he “doubted [the plaintiff’s] knowledge and capacity to work on a large Australian project”: J296.
There were “no contemporaneous records to support [the defendant’s] assertions that other employees were carrying out the engineering work on the Herring Road project”: J298. Further, in this respect, the Magistrate was “satisfied that [the plaintiff] did prepare the plans that bore his initials”: J299. The “plans” referred to were the approximately 300 pages of HVAC drawings that the Magistrate found were prepared by the plaintiff and then “submitted to Toga before he left the project”: J183-J185; J188.
In the way the matter was presented by the parties, there was “no half way position between” them: the plaintiff “said he did the work and [was] entitled to be paid. [The defendant] said that others did the work and there was no agreement to pay [the plaintiff] – he did not say that [the plaintiff] did part of the work so [he was] only entitled to part of the payment”: J303.
There was evidence that Mr Soltani “was relying on [the plaintiff] to do work and liaise with the developer” – which the Magistrate considered “must have been worth many millions of dollars given that the HVAC component alone was worth approximately $2.5M. It is a nonsense to suggest that an intern would be taking on such responsibility. I find that [the plaintiff] was not an intern”: J304.
The Magistrate found, “consistent with the position of both parties”, that the plaintiff was not an employee of A1 Best Group: J305.
The Magistrate did not accept the defendant’s submission that the work performed by the plaintiff was done in the context of them “being business collaborators” which, as the Magistrate pointed out, was a submission that was unsupported by “the contemporary documents” and “at odds with what [the defendant] asserted from the start, namely that [the plaintiff] was an intern. It is implausible that [the defendant] would collaborate with an intern on the project”: J306-307.
The Magistrate considered that “the most probable position [was] that [the plaintiff] was engaged as a contractor to carry out the HVAC design work”: J308.
The Magistrate then proceeded to test this proposition against other facts, as follows:
The tender documents revealed that $74,500.00 was allowed “for the design and drafting work” and, even allowing for the quote of $12,000.00 by the drafting sub-contractor (Enravel Pty Ltd: J125), the Magistrate found that this “left a lot of money available to pay for a contractor to do the design work”, and that it was open to infer “that [the defendant] was overseeing who would do what work and he decided to outsource it to [the plaintiff]”: J309.
The plaintiff was nearing the end of his PhD and “clearly had some spare time and presumably was looking to the future and getting a full time position” and it was “plausible that he would have discussed this with [the defendant]”: J310.
The defendant had an external motivation to involve the plaintiff in the engineering design work for the project – namely, “he was organising to be part of the commercialisation of [the plaintiff’s] innovative idea” – being, “software”: J311, J339.
The Magistrate did not accept the defendant’s submission that the payment of that amount was improbable when “compared to other employees’ wages”: her Honour considered that the submission was “not useful”, given “[t]he design work was a discrete body of work”: J312.
It is appropriate to pause momentarily in the overview and summary to emphasise the following: this part of the Magistrate’s reasons, relating to the contract issue, conforms with proper application of the plaintiff’s onus of proof on the contract issue and otherwise involves orthodox fact-finding.
In relation to the $6,000.00 payment made by the defendant to the plaintiff, the Magistrate found that he transferred that amount into the plaintiff’s bank account on 2 August 2013: J166.
The defendant’s evidence was that this amount was paid into the plaintiff’s account as “a gift” because the plaintiff was “struggling financially”: J166; J313. This explanation for the payment was, to a not insignificant degree, based upon the defendant’s evidence.
The plaintiff’s evidence was “that this was a part payment for his work on the Herring Road project”: J166. He denied that he and his former wife “were struggling financially at that time and said they had the financial resources to support themselves”, and each of them gave evidence about what those resources were: J314.
The Magistrate considered the evidence from the plaintiff and his former wife, as well as “the bank statement” that was annexed to his statement (J314-J315), and concluded that “[t]he contemporaneous documents and [the plaintiff’s] and [his ex-wife’s] evidence [were] not consistent with [the defendant’s] and [the defendant’s wife’s] assertion that they were struggling financially”: J316.
The Magistrate then addressed a number of arguments, and made some findings, about Annexure G – including that her Honour did not accept the defendant’s submission “that Annexure G is on its face a highly suspicious document”: J317-J328.
The Magistrate then addressed the defendant and his evidence – which involved findings that were adverse (J329-J332):
“329 Having spent numerous days hearing the case and assessing the evidence, I have reached the position where I have grave doubts about the truthfulness of significant portions of [the defendant’s] evidence.
330 I have included numerous references to contemporaneous records in this judgement [sic]. These demonstrate very significant inconsistencies between [the defendant’s] account and the contemporaneous records. I am satisfied that in most instances this is not as a result of his memory failing him, rather, it is because it does not accord with the self-serving position he has taken to deny liability for the claimed amount. No in-between position is available on the evidence.
331 [The defendant’s] version about [the plaintiff’s] role on the Herring Road project is simply implausible and must be rejected. He cannot reasonably say that [the plaintiff] was not doing work given the contemporaneous records.
332 The Herring Road project was a very significant construction project and A1Best had contracted to do $2.5M worth of work and according to the tender, would have to provide an additional seven (7) year warranty for mechanical plant. The Toga documents support an inference that they were very detail orientated. They were carefully project managing the work. It is inconceivable that [the defendant] as managing director of A1Best would not ensure that a very skilled person did the engineering design work. The reputational damage from doing a substandard job would be significant, and would no doubt affect its ability to secure new work. It defies logic that he would allow an intern who needed to familiarise himself with Australian requirements to take on the responsibility [the plaintiff] clearly did. Moreover, there is no evidence from [the defendant] that he put the intern arrangements in writing.”
“333 The contemporaneous records strongly support [the plaintiff’s] position and are inconsistent with [the defendant’s] position. Indeed, [the defendant’s] position can be described as implausible. There is nothing apart from his own account to support the proposition that [the plaintiff] was involved in the project as an intern.
334 [The plaintiff] was clearly doing the engineering work and this was reflected in the documentation, and his interactions with others who were involved in the project.
335 The evidence suggests that he was positioning himself for the future when he applied for grants and for full time work. He was also finishing his PhD. It is implausible that he would give up time in his week to do unpaid engineering design work for a very large project.
336 I am satisfied that there was an agreement that [the plaintiff] was to be paid for his work.
337 In terms of how this was to occur, I am satisfied that the arrangements were to be as set out in Annexure G.
338 Annexure G is very similar in style and layout to the reference dated 20 May 2013. I am satisfied that the 20 May 2013 reference and the corresponding email were not forgeries having considered what was happening at the time, earlier emails and the expert report.
339 As is apparent from the chronology, Annexure G and the 20 May 2013 reference bore dates that were consistent with the time when [the plaintiff] and [the defendant] were starting to collaborate on the monetisation of [the plaintiff’s] software. The business plan was drafted in house by Mr Soltani. It would not be surprising if [the defendant] drafted the deed agreement himself.
340 [The defendant] was the contact person for the Herring Road project. He would have been aware of how much was available in the budget to pay for the design work. He had identified [the plaintiff’s] value to the project even before he signed the sub-contract with Toga. In fact, just over a week after he met [the plaintiff], he included [the plaintiff’s] name in the pre-contractual minutes as a contact person for subcontractor meetings with Toga.
341 An inference is available that [the defendant] needed to offer [the plaintiff] something worthwhile to take him away from his university studies to work on the project. [The plaintiff’s] different working hours are easily explained by his competing university requirements.
342 I am satisfied that the contents of Annexure G and the surrounding evidence strongly support [the plaintiff’s] position. The expert evidence (which I will discuss below) does not cause me any doubt about these findings.
343 In summary, I am satisfied on the balance of probabilities that the men did agree to the arrangement outlined by [the plaintiff] which was recorded in the deed agreement identified as Annexure G.”
In relation to the limitation issue, the Magistrate accepted that Annexure L was “the critical document”: J351.
That document was an email ostensibly sent by the defendant to the plaintiff on 28 October 2014 from what the Magistrate described as the defendant’s “Oracleac email address”. As to whether the defendant was the source of this email, the Magistrate found (J346):
“On their face, the emails were sent/received before [the defendant] ceased to be the registrant of the domain name in 2015. This means that it was possible for them to have been sent/received through the Oracleac domain. The contemporaneous records show that both [the plaintiff] and [the defendant] were using their Oracleac email addresses.”
“Hi Vahid,
I refer to our deed agreement dated 23 May 2013 where I made personal guarantee to pay your wage for building C and D HVAC design and calculation.
As you are aware, 6K AUD has been paid to you on 2nd Aug 2013 and the amount of 59K AUD is outstanding.
I would like to let you know that for some reasons, A1 Best Air Conditioning Pty Limited has gone into liquidation earlier this year.
While you have several times requested the outstanding amount, due to current financial circumstances, I am not able to pay the amount of 59K AUD in full or part and would like to extend the payment time up to six months from the date of this agreement.
Sincerely yours,
Ali Ahmadi”
“Unlike Annexure K, there was no earlier email in the chain. However that does not mean that [the plaintiff] had not asked [the defendant] for payment. They could have spoken about it as indicated in the email. An inference is available that they had not fallen out as the email was sent before their families holidayed in the Hunter Valley. A1Best had gone into liquidation that year, as indicated in the email. The date of the $6,000 payment was correct.”
Her Honour then made the following further finding that, subject to her findings “about whether the documents were fraudulent”, the “email was effective to allow the limitation period to run from 28 October 2014. It would give [the plaintiff] until 28 October 2020 to commence proceedings against [the defendant] and the proceedings were commenced within that time”: J353. However, her Honour accepted that, “[i]f [the defendant] could prove on the balance of probabilities that it was a forgery”, then the proceedings would be statute barred: J354.
Amongst a raft of issues raised by the defendant as demonstrating the fraud he alleged was perpetrated by the plaintiff, he raised an issue about the re-registration of the Oracleac domain name: his argument was that, after its de-registration in 2015, it was re-registered by the plaintiff on Wednesday, 10 March 2021 – five days prior to the date of the plaintiff’s first evidentiary statement. Despite being invited by the defendant to draw various inferences (adverse to the plaintiff) from the proximity between these two dates, her Honour declined to do so.
Given the issue about the re-registration of the Oracleac domain name was argued by the defendant, during submissions in this Court, to illustrate the error covered by ground 1, the key findings made by the Magistrate when declining to draw the inferences sought should be noted:
The Magistrate had “concerns about some of Mr Courtis’ evidence on this point” – Mr Courtis being the defendant’s “expert”: J358.
The Magistrate had “more fundamental concerns about drawing nefarious inferences about the proximity of… when the Oracleac domain was re-registered… to… when [the plaintiff] signed his first statement” – giving four broad reasons for holding those concerns (J359):
(a) First, the plaintiff’s first statement was lengthy, did not contain “the spelling and grammatical errors” which appeared in other documents, appeared to “have taken some time to draft and settle” and the references to the disputed documents (which included Annexure L) “fitted in with the narrative” of that statement: J360. In short, her Honour appeared reluctant to draw the inference sought because the circumstances referred to tended to favour that Annexure L and the account in the statement had been the subject of instructions before the re-registration of the domain name: J360. (b) Secondly, “[i]f the purpose of re-registering the domain was to get access to the old emails then it was futile given the experts’ evidence”: J361. The Magistrate had earlier observed that “once a domain name lapses, it is not possible to retrieve emails that were sent/received while it was in use, even if the domain name is later re-registered”: J220. (c) Thirdly, “[i]f [the plaintiff] had wanted to create new documents then he was cutting it very fine”. Her Honour had “observed the parties over several years and leaving things to the last minute was not how [her Honour perceived the plaintiff’s] approach to case preparation”: J362. (d) Fourthly, even if the plaintiff had arranged for the domain name to be “re-established, there [was] no evidence that he did anything with it after it was re-established. Proximity in time might raise suspicion but suspicion does not equate to proof of fraud”: J363.
Section 39(1) of the Local Court Act 2007 (NSW) (‘the LCA’) permits a party to proceedings before the Local Court “who is dissatisfied with a judgment or order of the Court” to appeal to the Supreme Court, “but only on a question of law”.
For completeness, it may be noted that s 40(1) of the LCA permits a party to proceedings before the Local Court “who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact” to appeal to the Supreme Court, “but only by leave of the Supreme Court”.
The Supreme Court can determine an appeal under ss 39(1) or 40(1) in one of four ways. Section 41(1) of the LCA provides:
“41 Determination of appeals
(1) The Supreme Court may determine an appeal made under section 39 (1) or 40—
(a) by varying the terms of the judgment or order, or
(b) by setting aside the judgment or order, or
(c) by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court’s directions, or
(d) by dismissing the appeal.
…”
Although the amended summons identified three grounds of appeal, the defendant abandoned ground 3 (which argued that the reasons given by the Magistrate were legally inadequate) and, in relation to the remaining two grounds, argued that they involved questions of law – thereby engaging the unqualified right of appeal to this Court conferred by s 39(1) of the LCA.
The grounds of appeal are:
“1. Having found that it was not persuaded that the documents described as Annexures G and L were fraudulently created, the Court erred in law in failing to apply the principles set out at paragraphs 32 to 34 of the judgment, namely that the defendant must prove his case on the balance of probabilities, even if the plaintiff failed to establish that the documents were forgeries.
2. The Court erred in law by finding that the plaintiff had failed to establish that the documents described as Annexures G and L were dishonestly created without considering the plaintiff’s submission that these documents were dishonestly created prior to the defendant’s provision of the USB containing those documents to the defendant’s then solicitor.”
“1. whether the Court failed to apply correct legal principles as to the [plaintiff’s] burden to prove his case;
2. whether the Court failed to address a submission worthy of serious consideration…”
By this ground of appeal, the defendant argues that the Magistrate failed to apply correct legal principles relating to the plaintiff’s onus of proving his case. The defendant accepts that the Magistrate “correctly identified the applicable principles in relation to [the] onus of proof” but submits that her Honour “nonetheless did not properly apply them and thereby erred in law” (defendant’s submissions at [34]). The defendant argued that this amounted to an error “on a question of law” – providing him with a right to appeal pursuant to s 39(1) of the LCA.
Although the ground of appeal was expressed to cover multiple legal principles, the argument was confined to one principle – as I next explain.
The nub of the defendant’s submission was that, having determined that the defendant “had not discharged the onus assumed by him to prove fraud”, her Honour thereafter failed to “sufficiently consider the separate question of whether [the plaintiff] had discharged his distinct onus to establish the [existence and terms of the contract alleged] and [that any cause of action had been confirmed and acknowledged]” (defendant’s submissions at [19], [49]). Despite the submission focusing on the sufficiency of the Magistrate’s consideration of the plaintiff’s onus, the argument, ultimately put, was that the plaintiff’s onus was simply not applied, and that the Magistrate had, in effect, by resolving the fraud issue adversely to the defendant, determined that the plaintiff had thereby proven his case in contract.
The plaintiff submitted that this ground involved no question of law – rather, in substance and effect, it was simply a complaint that the plaintiff had established, on the balance of probabilities, that the defendant had a contractual obligation to pay monies to him and, further, that the defendant had confirmed the existence of that debt, such that the relevant statutory limitation period was extended. Based upon that characterisation, the plaintiff submitted that the defendant’s complaint was either factual or involved a mixed question of law and fact: the plaintiff argued that, on either footing, the appeal should be dismissed because there is no right of appeal on a question of fact, and any appeal involving a mixed question of law and fact requires a grant of leave, which the defendant has not sought (plaintiff’s submissions at [11]).
Given the arguments of the parties, there are, broadly, two issues to consider: first, whether the ground of appeal raises a question of law and is thus within s 39(1) of the LCA; and, secondly, if it does, whether the argued error has been demonstrated so as to entitle the defendant to the relief he seeks.
Although the question of law is the subject matter of the appeal (see TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 198; 82 ALR 175, 178; Davis v NSW Land and Housing Corporation [2016] NSWCA 325; 18 BPR 36,459 at [77]), it is simplest to first deal with the substance of the ground and, thereafter, consider whether a question of law is raised by it.
The defendant advanced two arguments under this ground: a narrow argument, and a substantive one.
The narrow argument was directed to the Magistrate’s ultimate conclusion under the heading “[s]ummary” at J380 – that her Honour was “actually persuaded”, and “[found] on the balance of probabilities[,] that [the plaintiff had] proven his case”. The submission was that, “[o]n one reading”, these remarks relate “to the immediately preceding paragraphs”, which only dealt with the defendant’s onus in relation to whether the documents were fraudulent (J376-379). It followed, on this argument, that there was a misapplication of the onus of proof because, in effect, the Magistrate went from rejecting the defendant’s case on fraud to finding the plaintiff’s case on the contract issue proven.
The defendant submitted that these remarks were demonstrative of the Magistrate proceeding “on an erroneous basis that [the defendant’s] failure to prove fraud automatically meant that [the plaintiff] must succeed, contrary to the principles identified earlier in the Judgment” (defendant’s submissions at [51]).
I do not accept this argument. There is no textual or other indication in the reasons that warrants or supports reading the Magistrate’s ultimate conclusion in the narrow way suggested, particularly given her Honour had earlier dealt with the “contract issue”. Indeed, as the defendant’s written submissions acknowledged, and as Ms Brigden SC confirmed during oral submissions, “[a]n alternative reading” is that the challenged phrase in J380 refers “to the whole of the [Magistrate’s] findings and analysis…” (defendant’s submissions at [52]). That alternative reading (and the submission on it) is plainly correct: reading the reasons fairly and as a whole, the conclusion at J380 deals with the ultimate disposition of the two “main issues” identified by the Magistrate.
The defendant nevertheless argued that, even adopting the “alternative reading”, the “misapplication of the onus of proof” error remained. This was the defendant’s substantive argument. It is to this argument that I now turn.
The argument was expressed in slightly different ways during submissions, but the complaint can be reduced to this: the Magistrate misapplied the onus of proof because, so it was argued, the contract issue was determined by her Honour on the footing that, once the defendant’s case on fraud had been rejected, it necessarily followed that the plaintiff had established his case.
In aid of this submission, the defendant relied upon the decision in Burnside v Mulgrew [2007] NSWSC 550 (‘Burnside’), where it was said (at [26]):
“… it does not follow that the absence of sufficient evidence to make a finding, to the ‘comfortable satisfaction’ standard referred to in Briginshaw v Briginshaw, that there has been fraud or forgery or other serious misconduct, has as its necessary corollary that the opposing case must succeed.”
The defendant submitted, citing Burnside at [28], that the fact he failed to prove fraud did not mean that the plaintiff’s contract case must succeed; rather, it only meant that the defendant did not satisfy the Court that the plaintiff had engaged in fraud. The plaintiff (unsurprisingly) accepted the principle, but emphasised that it was well understood by the Magistrate, given her Honour expressly acknowledged it (and the decision in Burnside) and directed herself accordingly at J31-32 (see [36], above).
The defendant, whilst accepting that the Magistrate correctly identified the onus of proof to be applied, nevertheless submitted that, in substance, her Honour failed to apply it. The defendant’s argument was initially expressed to be that, having determined the documents were not fraudulent (or fraudulently created by the plaintiff), the proper resolution of whether the plaintiff had discharged his onus of proof required the Magistrate to determine the “authenticity” of the various documents relied upon. Put a little differently, but to the same end, the defendant argued that addressing the “authenticity” of the various documents was a necessary step in the determination of whether the plaintiff had discharged his onus of proof on the contract issue and, as the Magistrate omitted that step, it followed that her Honour failed to apply the onus of proof when determining that part of the case.
When invited to clarify what was meant by the requirement to address whether the documents were “authentic”, the defendant confirmed that the expression was case specific. The argument was that the Magistrate’s reasons on the fraud issue themselves raised several questions about various documents (described by the defendant as “suspicious circumstances”) and, given they did, it was necessary for, and incumbent upon, the Magistrate to consider those matters when determining whether the plaintiff’s onus on the contract issue was discharged (Tcpt, 10 June 2026, pp 31(37)-32(10)). In those circumstances, the defendant argued that the failure of the Magistrate to separately consider these “suspicious circumstances” when resolving the contract issue demonstrated a misapplication of the onus of proof.
Although the defendant’s written submissions included multiple illustrations of where this suggested error was apparent, during oral submissions, Ms Brigden SC confined her argument to the way in which the Magistrate dealt with Annexure L when considering the re-registration of the Oracleac domain name (see [56], above). In doing so, Ms Brigden SC not only accepted that the arguments on Annexure L were representative of the other “suspicious circumstances” errors the defendant relied upon, but also that ground 1 could be determined solely by reference to the argument relating to that document.
The defendant’s argument, in relation to Annexure L, was that the Magistrate found that the circumstances surrounding the creation of that document constituted a “suspicious matter”, and were correctly characterised as such by reason of the following: although the Magistrate found that Annexure L was sent at a time when the defendant was in control of the domain name and before he ceased to be the registrant of it in 2015, the Magistrate also found that the plaintiff applied to have that domain name re-registered on 10 March 2021 – which was five days before the date of the plaintiff’s first evidentiary statement (that is, 15 March 2021). The defendant submitted that the Magistrate fell into error in the way argued by failing to consider this “suspicious matter” – being the proximity between these two events – when resolving the contract issue.
I do not accept the defendant’s argument for the following reasons.
First, contrary to what was argued, I do not accept that the Magistrate found the circumstances relating to the re-registration of the Oracleac domain name to be a “suspicious matter” or “suspicious”. Rather, her Honour dealt with the defendant’s submission that the circumstances were of that character. That, I consider, is evident from her Honour’s reasons – in particular, her Honour having “more fundamental concerns about drawing nefarious inferences about the proximity” between the re-registration of the domain name and the date of the plaintiff’s first evidentiary statement: J359.
Secondly, even if the plaintiff’s re-registration of the domain name and its proximity to the date of his first evidentiary statement were circumstances that, prima facie, raised a “curiosity” or “suspicion” as the defendant argued, the Magistrate – immediately after expressing “fundamental concerns” about drawing the “nefarious inferences” sought by the defendant – addressed why she did not accept that they were suspicious.
In short, the reasons for this conclusion were (as mentioned at [62(2)], above): first, given the statement’s detail and when it was signed, “[i]t must have taken some time to draft and settle” (J360); secondly, “[i]f the purpose of re-registering the domain was to get access to the old emails then it was futile given the experts’ evidence” (J361); thirdly, if the plaintiff “had wanted to create new documents then he was cutting it very fine”, and this was at odds with her Honour’s assessment of the plaintiff’s “approach to case preparation”, which had been informed by her observation of “the parties over several years” (J362); and, fourthly, even if the plaintiff had arranged for the re-registration of the domain name, “there [was] no evidence that he did anything with it after it was re-established” (J363). Separately, and contrary to what was argued, the plaintiff did advance submissions or evidence that “explain[ed] these matters” (defendant’s submissions at [48]).
Insofar as the defendant’s submissions sought to call in aid the Magistrate’s statement that “[p]roximity in time might raise suspicion but suspicion does not equate to proof of fraud” (J363), I do not consider those remarks to assist the defendant. They merely reflect an acceptance that the timing might raise suspicion, not that it did. In any event, they must be understood as subject to the clear findings made by the Magistrate when explaining why she was unpersuaded about any “suspicion” in the timing.
Thirdly, to the extent that the defendant argued there is “no paragraph in the judgment which indicates” that the Magistrate considered this “suspicious” matter “in the context of addressing the onus borne by [the plaintiff]”, I do not accept the thrust of this submission. That is because the Magistrate did not, as I have earlier noted, find the proximity between the re-registration of the domain name and the date of the plaintiff’s first evidentiary statement to be a “suspicious matter”; on the contrary, her Honour was unprepared to draw any “nefarious inferences” from those circumstances. Given the Magistrate was unprepared to draw such inferences, I do not accept that it was necessary for her Honour to, as it were, revisit (and repeat) that negative finding in the context of the plaintiff’s onus of proof in connection with the contract issue.
Fourthly, when dealing with the contract issue, the Magistrate expressly recognised that Annexure L was, at least potentially, relevant to her Honour’s determination. That is readily apparent from that part of her Honour’s reasons titled “General Findings” – where her Honour addressed, and made findings about, the parties and their competing arguments and claims. When doing so, her Honour indicated that “the issues about [the] Oracleac website and the digital forensic analysis” would be dealt with separately: J328. In my view, reading the reasons fairly and as a whole, and understanding their structure, it is clear that her Honour recognised that the issue about the re-registration of the domain name could potentially bear upon the resolution of the contract issue, but simply addressed it elsewhere in the reasons – making the findings that she did.
There is a further matter. Although the ground of appeal relating to the suggested inadequacy of the Magistrate’s reasons was abandoned, the defendant was somewhat critical of the organisation and structure (or suggested lack thereof) in the Magistrate’s reasons: it was submitted that the reasons were “difficult to follow” – particularly given they dealt with the contract claim and, thereafter, the limitation and “fraud” issues. I do not accept this submission. Reasons for judgment can often be improved with time; but the time for doing so is necessarily finite. Relevantly here, the structure of the Magistrate’s reasons made it clear that she was cognisant of the potentiality of arguments about the re-registration of the domain name being relevant to her resolution of the contract issue. Given the findings that her Honour made, including declining to draw any “nefarious inferences”, nothing turns on the way in which the reasons were structured. More generally, there is nothing inherently wrong with the Magistrate’s approach – which was to determine whether the contract claim was proven and, thereafter, to deal with whether the limitation issue provided a defence and, as part of that, the fraud issues.
These reasons thus address the ground of appeal, and the arguments advanced to support it during submissions. Given I have not accepted the defendant’s arguments, the ground of appeal should be dismissed. I add the following.
As I have earlier observed, it is important to read the Magistrate’s reasons fairly and as a whole. In doing so, the following four matters warrant emphasis. First, the Magistrate correctly and explicitly directed herself on the onus of proof. Of course, in and of itself, that is not determinative of whether her Honour applied it, but, necessarily, it is the starting point in assessing whether an error of this (fundamental) kind occurred. Secondly, as the defendant accepted, there is no express statement revealing the suggested error: the defendant’s argument is solely built upon inferring that the error occurred from an examination of limited aspects of what the Magistrate did or failed to do. Thirdly, the analysis undertaken by the Magistrate when dealing with the “contract issue” is replete with findings that correctly reflect the onus of proof cast upon the plaintiff to prove his case: see [44]-[46] and [54], above and the short summary of some of those findings at [117], below. Those findings, and the way in which the Magistrate approached the making of them, were orthodox and in line with the authorities to which she referred earlier in her judgment – including those relating to the onus of proof. The defendant’s argument did not squarely confront these matters. And, fourthly, the dispositive conclusion contained in the Magistrate “[s]ummary”, again, correctly expresses the onus of proof placed upon the plaintiff.
These matters lend considerable support to the plaintiff’s submission, which I accept, that there is no basis to infer and conclude that the Magistrate bypassed the onus of proof in the way argued.
I would, for these reasons, dismiss this ground of appeal.
The defendant submitted that the question of law raised was whether the Magistrate “failed to apply correct legal principles as to the [plaintiff’s] burden to prove his case”. The defendant argued, whilst acknowledging that there was no decision directly on this point (Tcpt, 10 June 2026, p 7(33)), that a misapplication of the onus of proof is not only an error of law – it necessarily involves a question of law, relying on the decisions in Boland v Dillon; Cush v Dillon [2015] NSWCA 183 and Jaksic v Yim [2011] NSWSC 962.
The defendant also argued that a question of law was raised because the legal error argued to have arisen is sufficiently like a “no evidence” ground (citing Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32), or where the decision-maker has failed to provide adequate reasons (citing Marathon Group Pty Ltd v Latrobe Valley Building Services Pty Ltd [2018] NSWSC 194) – each of which was argued to give rise to a question of law. The defendant submitted that, consistent with these authorities, the fact that the appeal court is required to undertake an assessment or evaluation of the reasons to determine whether the alleged error (and question) of law occurred does not deny the characterisation as involving a question of law, nor did it mean that errors of that kind (and, by extension, the one argued to arise here) involve any question of fact or the application of fact to law.
The plaintiff argued to the contrary, submitting that the complaint was either entirely factual or “a mixed question of fact and law”, and, further, that the defendant’s ground of appeal involved the use of “formulary” (or “linguistic gymnastics in the formulation of the [ground]”: Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361; [2007] WASCA 97 at [53]; Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515, 527) in an attempt to transform something into an error of law (and, by extension, a question of law) when the substance demonstrated that the opposite was so (plaintiff’s submissions at [4], [11]).
During the course of submissions, I drew the parties’ attention to the decisions in R v PL [2009] NSWCCA 256; 261 ALR 365 (‘PL’) and Plassas v Person [2016] NSWSC 1445 (‘Plassas’).
Whilst recognising that these decisions were made in different statutory contexts (where the appeal rights conferred were confined to “a question of law alone”), the plaintiff argued that they correctly characterise the substance of the defendant’s complaint as involving a mixed question of law and fact – not a question of law: PL at [17] and [26]; Plassas at [18]-[19].
At the completion of the hearing, the parties sought, and were granted, leave to make further confined submissions about whether grounds 1 and 2 raise questions of law. The defendant provided further submissions and authorities in support of the argument that each ground raises a question of law. The plaintiff helpfully drew my attention to a number of authorities, but did not make any further submissions.
In my view, a question of law is raised by this ground of appeal. My conclusion that it does is informed by the following. First, as the defendant essentially submitted, although s 39(1) of the LCA confines an appeal – as of right – to this Court “on a question of law”, there is no clear, universal test available to define a question of law: Collector of Customs v AGFA-Gevaert Ltd (1996) 186 CLR 389, 394; [1996] HCA 36; Director of Public Prosecutions (Cth) v JM (2013) 250 CLR 135; [2013] HCA 30 at [39]; Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; 96 ATR 875 at [4]. Secondly, the fact that it may become necessary to examine unchallenged findings of fact to resolve whether there is a question of law does not mandate the question being one of mixed law and fact. Thirdly, the statutory context is important – particularly here since it has been recognised that “the formulation ‘a question of law alone’ is more restrictive than the formulation ‘a question of law’”: R v JS [2007] NSWCCA 272; 175 A Crim R 108 at [74]; R v XHR [2012] NSWCCA 247 at [21]. It follows that caution is required before transposing authorities directed to other statutory criteria to any determination of whether a question of law is raised in the present context. And, fourthly, the precise characterisation of the (argued) error of law (and the question of law) raised is important: in this case, it does not relate, strictly, to applying the facts to the correctly-stated legal principle, but to the suggested failure to apply the principle altogether.
However, for the reasons earlier given, the argued error underlying this ground of appeal has not been established, and the ground should be dismissed.
By this ground of appeal, the defendant argues that the Magistrate “erred in law” by finding that he had failed to establish that the documents described as Annexures G and L “were dishonestly created without considering [his] submission that [they] were dishonestly created prior to [the plaintiff’s] provision of the USB containing those documents to [the defendant’s] then solicitor” (defendant’s submissions at [88]). The defendant submitted that this argument was “material and worthy of serious consideration, going to the heart of [the defendant’s] case”, and that the failure to consider this submission “brought about a miscarriage of justice” (defendant’s submissions at [90]-[91]).
The defendant submitted that a question of law was raised by this ground of appeal, arguing that it is “an exemplification of the judicial duty of a court to give reasons, breach of which is almost invariably understood to be an error of law” (defendant’s submissions at [14]).
The plaintiff disputed that a question of law was raised by the ground of appeal and, as to its substance, essentially submitted that the defendant’s argument amounted to no more than “a challenge to the factual finding that [his] allegation of fraud was not established”, and was otherwise “entirely illusory” (plaintiff’s submissions at [32] and [36]). This last submission was principally directed to the lack of materiality in the ground of appeal, given it failed to recognise the Magistrate’s finding that the defendant had “failed to establish that… Annexures G and L were dishonestly created…” and the finding that these documents were genuine (plaintiff’s submissions at [21] and [26]).
Before the Magistrate, the defendant argued that the electronic versions of the various documents relied upon – including Annexures G and L – had been “manipulated” by the plaintiff prior to them being placed on a USB and provided to his solicitor who, in turn, provided them to the defendant’s then-solicitor. In this Court, the defendant emphasised that the Magistrate acknowledged his argument that the plaintiff had “manipulated data on the USB that was analysed by the experts”, and his argument that “time stomping” was “done by [the plaintiff]” – that is, the plaintiff had engaged in the process of changing dates and the metadata of documents to make it look like they were dated at a different point in time than they were: J286(g); J287(i).
The defendant next submitted that, despite advancing the argument that the particular documents “were dishonestly created prior to [the plaintiff’s] provision of the USB containing those documents to [the defendant’s] then solicitor”, the Magistrate confined her consideration to what might have occurred to the USB after it was provided to the defendant’s former solicitor: “[n]owhere” in the Magistrate’s reasons, the defendant argued, “is there an analysis of [his] argument that the documents were created prior to the provision of the USB drive to” the defendant’s former solicitor (defendant’s submissions at [115]).
It may be accepted – which the plaintiff did – that the defendant, as part of the inventory of arguments he raised to support his contention that the plaintiff fraudulently created the documents, advanced this one: that the manipulation of the documents by the plaintiff occurred before he placed them onto the USB. However, I do not accept that the Magistrate committed the alleged error in overlooking (or, as the ground of appeal specifically alleged, failing to “properly address”) the point: it simply did not arise in the way in which the Magistrate determined the matter.
The forensic context is important and is the starting point. As to that context, Mr Bedrossian SC emphasised two matters: first, there was no dispute about the sequence of events relating to the USB (including why, and when, that came about: J229; J255-256); and, secondly, there was no dispute that the defendant’s allegation of fraud included an allegation that the fraudulent document creation occurred before the plaintiff provided the USB to his solicitor. Mr Bedrossian SC further submitted that, given these matters of common ground, the critical question for the Magistrate’s determination was whether, as the defendant submitted, those documents were fraudulently created by the plaintiff – or, as was put by Mr Bedrossian SC during submissions in this Court: “was there, back in 2013 or 2014, a communication between the parties in those terms?” (Tcpt, 10 June 2026, p 45(21)-(22)).
As the plaintiff essentially submitted, once the forensic context is understood, the substance of the defendant’s complaint falls away, given the findings of the Magistrate. The point can be illustrated by reference to Annexure G. In relation to this document, the findings included:
that, contrary to what the defendant argued, Annexure G was not “on its face a highly suspicious document” (J317);
that “[t]he contemporaneous records strongly support [the plaintiff’s] position and are inconsistent with [the defendant’s] position” (J333);
that there was an agreement that the plaintiff “was to be paid for his work” and that, “[i]n terms of how this was to occur, [the Magistrate was] satisfied that the arrangements were to be as set out in Annexure G” (J336-337);
that the Magistrate was “satisfied that the contents of Annexure G and the surrounding evidence strongly support [the plaintiff’s] position” (J342);
that, “[i]n summary”, the Magistrate was “satisfied on the balance of probabilities that the men did agree to the arrangement outlined by [the plaintiff] which was recorded in the deed agreement identified as Annexure G” (J343); and,
that there was “other contemporaneous evidence to support a finding that Annexure G was a genuine document” (J374).
Once it is accepted, as it must be, that her Honour determined the “fraud issue” adversely to the defendant, and found that the document was “genuine”, then the defendant’s complaint, and any argument about what was put on the USB drive, is of no moment. Indeed, during submissions, it was accepted that, if the finding is that the documents are genuine, “then what happened to them on the USB is neither here nor there” (Tcpt, 10 June 2026, p 39(10)-(11)).
Here, contrary to what the defendant argued, the submission made was not overlooked, but was simply subsumed within the central question raised in the proceedings about whether the documents were fraudulently created. And, as the plaintiff submitted, given that question was resolved adversely to the defendant, no subsidiary question of the kind raised by the defendant remained which needed to be addressed by the Magistrate.
I would, for these reasons, dismiss this ground of appeal. These reasons also explain why I do not accept that any question of law arises.
As to that last matter, the defendant submitted that his ground of appeal raised a question of law: his argument was that an error of law – and, critically here, a question of law – arises whenever a decision-maker overlooks a submission that is “worthy of serious consideration”, citing the decisions in Leduva Pty Ltd v NM Structural Engineering Pty Ltd [2010] NSWSC 1164 and Williams v Walker [2013] NSWSC 1013. Each of these decisions was submitted to have accepted that a ground of appeal framed in those terms, consistent with the decision in Dennis Willcox Pty Ltd v Federal Commissioner of Taxation [1988] FCA 123; 79 ALR 267 at 276-277, would confer a right of appeal under s 39(1) of the LCA.
Given the conclusion that I have reached, whether a question of law arises falls away: no question of law arises here. To that conclusion, I would simply add the following.
In cases where a decision-maker fails “to respond to a substantial, clearly articulated argument relying upon established facts”, there is both a constructive failure to exercise jurisdiction and a failure to accord natural justice: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [23]-[25], [95]; Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 at [12]-[18]. A ground of appeal of that kind is within s 39(1) of the LCA: Lazicic v Rossi [2024] NSWSC 777 at [7], [56]-[57]. But that is not the question of law argued to arise here.
There is, to my mind, a live question about the legitimacy of the defendant’s ground of appeal in light of these authorities and, given they were not addressed during submissions, nothing in these reasons should be taken as endorsing what was argued as necessarily raising a question of law.
For the above reasons, I make the following orders:
Order the amended summons filed 20 March 2026 be dismissed.
Order the plaintiff to pay the defendant’s costs of the proceedings in this Court.
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Alahmadi
Vakiloroaya
[1990] FCA 689
[2003] HCA 22
[2007] WASCA 97
(1996) 186 CLR 389
(2013) 250 CLR 135
(2003) 214 CLR 118
(2010) 241 CLR 390
(2022) 109 NSWLR 604
(2007) 33 WAR 361
(1995) 49 NSWLR 315