Alamin v Islam [2026] NSWSC 1188 | Case summary

Alamin v Islam [2026] NSWSC 1188 | Case summary | Zoe

Court

Supreme Court of NSW

Decision date

2026-09-30

Before

Meek J

Catchwords

RECTIFICATION — Unique claim for rectification — The first case in New South Wales (and seemingly in Australia) advanced principally upon the contention that rectification of an instrument is justified on the basis of a common intention derived from a mutually perceived gestalt COMMERCIAL VENTURES — Parties (P1 and D1) of Islamic faith established a business venture (through various corporate entities) for the acquisition, development and sale of land, for mutual profit, for the purpose of making such land available for purchase by members of the community compliant with Shariah Law — Relationship amongst business partners broke down mid-2020 — D1 in earlier proceedings sued P1 alleging various breaches of duty said to arise and oppressive conduct — Parties following settlement discussions in the context of a Court hearing, entered into a Settlement Deed — Settlement Deed required payment by P1 (and associated parties) to D1 of a Settlement Amount of $3.25 million by way of three instalments on specified dates (with time of the essence in respect of each payment) — No payments were made and D1 sought to enforce payments provided for under the Deed — P1 commenced these proceedings alleging Settlement Deed ought to be rectified inter alia to give effect to a gestalt understanding RECTIFICATION — Rectification doctrines generally — Rectification in equity — Nature of the proof of common intention and the rationale for the doctrine — Whether there was common intention contrary to the wording of the Deed — Whether there is evidence of that intention RECTIFICATION — Gestalt claim — Rectification principally advanced on the basis of an alleged mutual gestalt regarding the terms of the Settlement Deed — P1 claims that the instalment amounts and dates in respect of the Settlement Amount were not fixed nor time essential, but rather predicated upon and inextricably tied to completion by the plaintiffs of the purchase of two properties at Leppington (11 & 82 Woolgen) and co-operation by D1 to allow that to occur — P1 contends that the common intention mutual gestalt with D1 is based on their past experience of how projects were progressed and financed (in light of alleged fiduciary duties and implied duties of good faith conduct and cooperation), and extended to D1 being obliged to lift the PPSR charge to allow Mr Alamin to purchase 11 Woolgen — Whether a common intention established from a mutual perceived gestalt — Held no mutual gestalt amounting to a proved common intention established EQUITY — Fiduciary relationships discussion regarding existence of fiduciary relationships — Fiduciary Duties — Scope and content of alleged fiduciary duties discussed — Nature of fiduciary duties whether only proscriptive or also prescriptive — Whether fiduciary duties owed — Whether fiduciary duties breached CONSUMER LAW — Misleading and deceptive conduct — Role of silence and reasonable expectation of disclosure discussed UNILATERAL MISTAKE — Basis for enlivening relief for unilateral mistake discussed — Discussion of proposition as to whether proposition that the existence of a fiduciary relationship more easily enlivens a claim for rectification CONTRACTS — Claim for implication of implied terms — Discussion of duty of co-operation and duty to act in good faith REMEDIES — Winding up — Buyout — Appointment of trustee under s66G Conveyancing Act EVIDENCE — Discussion of rule in Browne v Dunn (1894) 6 R 67 WORDS & PHRASES — ‘gestalt’

Source

Original judgment source is linked above.

Catchwords

RECTIFICATION — Unique claim for rectification — The first case in New South Wales (and seemingly in Australia) advanced principally upon the contention that rectification of an instrument is justified on the basis of a common intention derived from a mutually perceived gestalt COMMERCIAL VENTURES — Parties (P1 and D1) of Islamic faith established a business venture (through various corporate entities) for the acquisition, development and sale of land, for mutual profit, for the purpose of making such land available for purchase by members of the community compliant with Shariah Law — Relationship amongst business partners broke down mid-2020 — D1 in earlier proceedings sued P1 alleging various breaches of duty said to arise and oppressive conduct — Parties following settlement discussions in the context of a Court hearing, entered into a Settlement Deed — Settlement Deed required payment by P1 (and associated parties) to D1 of a Settlement Amount of $3.25 million by way of three instalments on specified dates (with time of the essence in respect of each payment) — No payments were made and D1 sought to enforce payments provided for under the Deed — P1 commenced these proceedings alleging Settlement Deed ought to be rectified inter alia to give effect to a gestalt understanding RECTIFICATION — Rectification doctrines generally — Rectification in equity — Nature of the proof of common intention and the rationale for the doctrine — Whether there was common intention contrary to the wording of the Deed — Whether there is evidence of that intention RECTIFICATION — Gestalt claim — Rectification principally advanced on the basis of an alleged mutual gestalt regarding the terms of the Settlement Deed — P1 claims that the instalment amounts and dates in respect of the Settlement Amount were not fixed nor time essential, but rather predicated upon and inextricably tied to completion by the plaintiffs of the purchase of two properties at Leppington (11 & 82 Woolgen) and co-operation by D1 to allow that to occur — P1 contends that the common intention mutual gestalt with D1 is based on their past experience of how projects were progressed and financed (in light of alleged fiduciary duties and implied duties of good faith conduct and cooperation), and extended to D1 being obliged to lift the PPSR charge to allow Mr Alamin to purchase 11 Woolgen — Whether a common intention established from a mutual perceived gestalt — Held no mutual gestalt amounting to a proved common intention established EQUITY — Fiduciary relationships discussion regarding existence of fiduciary relationships — Fiduciary Duties — Scope and content of alleged fiduciary duties discussed — Nature of fiduciary duties whether only proscriptive or also prescriptive — Whether fiduciary duties owed — Whether fiduciary duties breached CONSUMER LAW — Misleading and deceptive conduct — Role of silence and reasonable expectation of disclosure discussed UNILATERAL MISTAKE — Basis for enlivening relief for unilateral mistake discussed — Discussion of proposition as to whether proposition that the existence of a fiduciary relationship more easily enlivens a claim for rectification CONTRACTS — Claim for implication of implied terms — Discussion of duty of co-operation and duty to act in good faith REMEDIES — Winding up — Buyout — Appointment of trustee under s66G Conveyancing Act EVIDENCE — Discussion of rule in Browne v Dunn (1894) 6 R 67 WORDS & PHRASES — ‘gestalt’

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Alamin v Islam [2026] NSWSC 1188

Hearing dates: 29 September – 3 October 2025

Date of orders: 30 September 2026

Decision date: 30 September 2026

Jurisdiction: Equity

Before: Meek J

Decision: I direct the parties to bring in short minutes of order to give effect to these reasons for judgment.

Catchwords: RECTIFICATION — Unique claim for rectification — The first case in New South Wales (and seemingly in Australia) advanced principally upon the contention that rectification of an instrument is justified on the basis of a common intention derived from a mutually perceived gestalt
COMMERCIAL VENTURES — Parties (P1 and D1) of Islamic faith established a business venture (through various corporate entities) for the acquisition, development and sale of land, for mutual profit, for the purpose of making such land available for purchase by members of the community compliant with Shariah Law — Relationship amongst business partners broke down mid-2020 — D1 in earlier proceedings sued P1 alleging various breaches of duty said to arise and oppressive conduct — Parties following settlement discussions in the context of a Court hearing, entered into a Settlement Deed — Settlement Deed required payment by P1 (and associated parties) to D1 of a Settlement Amount of $3.25 million by way of three instalments on specified dates (with time of the essence in respect of each payment) — No payments were made and D1 sought to enforce payments provided for under the Deed — P1 commenced these proceedings alleging Settlement Deed ought to be rectified inter alia to give effect to a gestalt understanding
RECTIFICATION — Rectification doctrines generally — Rectification in equity — Nature of the proof of common intention and the rationale for the doctrine — Whether there was common intention contrary to the wording of the Deed — Whether there is evidence of that intention
RECTIFICATION — Gestalt claim — Rectification principally advanced on the basis of an alleged mutual gestalt regarding the terms of the Settlement Deed — P1 claims that the instalment amounts and dates in respect of the Settlement Amount were not fixed nor time essential, but rather predicated upon and inextricably tied to completion by the plaintiffs of the purchase of two properties at Leppington (11 & 82 Woolgen) and co-operation by D1 to allow that to occur — P1 contends that the common intention mutual gestalt with D1 is based on their past experience of how projects were progressed and financed (in light of alleged fiduciary duties and implied duties of good faith conduct and cooperation), and extended to D1 being obliged to lift the PPSR charge to allow Mr Alamin to purchase 11 Woolgen — Whether a common intention established from a mutual perceived gestalt — Held no mutual gestalt amounting to a proved common intention established EQUITY — Fiduciary relationships discussion regarding existence of fiduciary relationships — Fiduciary Duties — Scope and content of alleged fiduciary duties discussed — Nature of fiduciary duties whether only proscriptive or also prescriptive — Whether fiduciary duties owed — Whether fiduciary duties breached CONSUMER LAW — Misleading and deceptive conduct — Role of silence and reasonable expectation of disclosure discussed UNILATERAL MISTAKE — Basis for enlivening relief for unilateral mistake discussed — Discussion of proposition as to whether proposition that the existence of a fiduciary relationship more easily enlivens a claim for rectification CONTRACTS — Claim for implication of implied terms — Discussion of duty of co-operation and duty to act in good faith REMEDIES — Winding up — Buyout — Appointment of trustee under s66G Conveyancing Act EVIDENCE — Discussion of rule in Browne v Dunn (1894) 6 R 67 WORDS & PHRASES — ‘gestalt’

Parties

Applicant/Plaintiff:

Alamin

Respondent/Defendant:

Islam

Legislation Cited (8)

Cited:** Civil Procedure Act 2005(NSW)

Competition and Consumer Act 2010(Cth)

Corporations Act 2001(Cth)

Evidence Act 1995(NSW)

Partnership Act 1891(SA)

See Civil Procedure Act 2005(NSW)s 56(1).

Procedure Act 2005

Consumer Act 2010

Cases Cited (134)

[2023] NSWCA 326

[2023] NSWSC 701

Cases Cited: Agip S.p.A. v Navigazione Alta Italia S.p.A. [1984] 1 Lloyds Report 353
Alamin v Islam [2023] NSWCA 326
Alamin v Islam [2023] NSWSC 701
Alcan Australia Ltd v Geraghty (Supreme Court (NSW), Young J, 8 October 1993, BC9302153, unrep)
Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349
Anderson v Canaccord Genuity Financial Ltd (2023) 113 NSWLR 151; [2023] NSWCA 294
Australian Gypsum Ltd v Hume Steel Ltd (1930) 45 CLR 54
Australis Media Holdings Pty Ltd v Telstra Corp Ltd (1998) 43 NSWLR 104
Beach Petroleum NL v Kennedy (1999) 48 NSWLR 1; [1999] NSWCA 408
Bishopsgate Insurance Australia Ltd v Commonwealth Engineering (NSW) Pty Ltd [1981] 1 NSWLR 429
Botanical Water Technologies IP Ltd v Driver [2025] NSWCA 162
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Breen v Williams (1996) 186 CLR 71
Browne v Dunn (1894) 6 R 67
Burger King Corp v Hungry Jack’s Pty Ltd (2001) 69 NSWLR 558; [2001] NSWCA 187
Bush v National Australia Bank Ltd (1992) 35 NSWLR 390
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Care A2 Plus Pty Ltd v Pichardo [2024] NSWCA 35
Carpenter v Morris (2023) 111 NSWLR 603; [2023] NSWCA 154
CGU Workers Compensation (NSW) Ltd v Garcia (2007) 69 NSWLR 680; [2007] NSWCA 193
Chan v Zacharia (1984) 154 CLR 178; [1984] HCA 36
Clayton v Clayton [2023] NSWSC 399
Commissioner of Taxation v PepsiCo Inc [2025] HCA 30; (2025) 424 ALR 294
Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; [2014] HCA 32
Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Personnel Contracting Pty Ltd (2022) 275 CLR 165; [2022] HCA 1
Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd (2019) 101 NSWLR 679; [2019] NSWCA 185
Engadine Medical Imaging Services Pty Ltd atf The Engadine Unit Trust v Mena Ibrahim & Ors [2025] NSWCA 269
Estate Realties Ltd v Wignall [1991] 3 NZLR 482
ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24; (2021) 388 ALR 128
Fairfax Media Publications Pty Ltd v Gayle; The Age Company Pty Ltd v Gayle; The Federal Capital Press of Australia Pty Ltd v Gayle (2019) 100 NSWLR 155; [2019] NSWCA 172
Famestock Pty Ltd v The Body Corporate for No 9 Port Douglas Road [2013] QCA 35
Farrugia v The King [2026] HCA 28
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407
Friend v Brooker (2009) 239 CLR 129; [2009] HCA 21
Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112; [1954] HCA 23
GWE v Commissioner of the Australian Federal Police (2020) 103 NSWLR 509; [2020] NSWCA 247
H Lundbeck A/S v Sandoz Pty Ltd (2022) 276 CLR 170; [2022] HCA 4
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
Howard v Federal Commissioner of Taxation (2013) 253 CLR 83; [2014] HCA 21
IDP 971 Richmond Pty Ltd v Xerri [2026] NSWCA 89
Igloo Homes Pty Ltd v Sammut Constructions Pty Ltd [2005] NSWCA 280
In the matter of Amin Property Group Pty Ltd; In the matter of Amin Homes Hadiqat Woolgen Pty Ltd; In the matter of Amin Homes Murooj Woolgen Pty Ltd [2023] NSWSC 1591
Jenyns v Public Curator (Qld) (1953) 90 CLR 113; [1953] HCA 2
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kronenberg v Macaulay [2025] NSWCA 195
Leibler v Air New Zealand Ltd [No 2] [1999] 1 VR 1
Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336
McKay v Dick (1881) 6 App Cas 251
McNamara v R (2023) 280 CLR 201; [2023] HCA 36
Mills v Dodds [2025] NSWSC 396
Mohammad Alamin v Hamidul Islam [2025] NSWSC 221
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
Muriti v Prendergast [2005] NSWSC 281
Naaman v Jaken Properties Australia Pty Ltd (2025) 281 CLR 635; [2025] HCA 1
Netdeen Pty Ltd t/as GJ Gardner Homes v Lindfield Pty Ltd [2025] NSWCA 196
New South Wales Medical Defence Union Limited v Transport Industries Insurance Company Limited (1986) 6 NSWLR 740
Newey v Westpac Banking Corporation [2014] NSWCA 319
Oneflare Pty Ltd v Chernih [2017] NSWCA 195
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; [1982] HCA 44
Pharmacy Platform Pty Ltd v Millichamp [2025] NSWCA 213
Pilmer v Duke Group Limited (in liq) (2001) 207 CLR 165
Public Trustee v Smith [2008] NSWSC 397
Pukallus v Cameron (1982) 180 CLR 447
R v Neil [2002] 3 SCR 631
Rawack v Spicer [2002] NSWSC 849
Realestate.com.au Pty Ltd v Hardingham (2022) 277 CLR 115; [2022] HCA 39
Redenbach v Norris Bros Pty Ltd [2025] NSWSC 765
Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234
Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104
Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65
Sanmik Food Pvt Ltd v Alfa Laval Australia Pty Ltd [2025] NSWCA 7
Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liquidation) (2019) 99 NSWLR 317; [2019] NSWCA 11
Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47
South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611; [2000] FCA 1541
South Sydney District Rugby League Football Club Ltd v News Ltd (2001) 111 FCR 456; [2001] FCA 862
Southern Real Estate Pty Ltd v Dellow (2003) 87 SASR 1; [2003] SASC 318
Stellar Vision Operations Pty Ltd v Hills Health Solutions Pty Ltd [2023] NSWCA 102
Stirling v Maitland (1864) 5 B & S 840; 122 ER 1043
Stormriders Pty Ltd v Copperart Pty Ltd [2004] NSWSC 809
Taylor v Johnson (1983) 151 CLR 422
The Adoption of Edmund (a pseudonym) [2024] NSWSC 803
The Juliana (1822) 2 Dods 504; 165 ER 1560
Tomanovic v Argyle HQ Pty Ltd [2010] NSWSC 152
United Dominions Corp Ltd v Brian Pty Ltd (1985) 157 CLR 1; [1985] HCA 49
Vodafone Pacific Ltd v MI Ltd [2004] NSWCA 15
WAM Active Limited v Keybridge Capital Limited (No 2) [2024] NSWSC 1496
West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431
Whittorn v Siu [2026] NSWSC 666
Xiao v BCEG International (Australia) Pty Ltd (2023) 111 NSWLR 132; [2023] NSWCA 48

Texts Cited: Austen, Jane, Persuasion (Ed. Gillian Beer) (Penguin Classics 2015)
Austen, Jane, Pride and Prejudice (Ed. James Kinsley) (Oxford Modern Classics 2008)
Austen, Jane, Sense and Sensibility (Ed. Ros Ballaster) (Penguin Classics 2014)
Dames, Nicholas, The Chapter: A Segmented History from Antiquity to the Twenty-First Century (Princeton UP 2024)
Eliot, George, Middlemarch, A Study of Provincial Life (New York: Penguin Books 2015)
Gleeson, Fabian, ‘Proscriptive and prescriptive duties: is the distinction helpful and sustainable, and if so, what are the practical consequences?’, Supreme Court Corporate and Commercial Law Conference, 15 November 2017
Heydon, J D, Cross on Evidence (11th ed, 2017, LexisNexis Butterworths)
Heydon, J D, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis)
Ittelson, W H, ‘Visual Space Perception’ (Springer Publishing Company 1969), LOCCCN 60-15818
Leeming, Mark, ‘The Limits of rectification’ (2023) 17 Journal of Equity 122
Ma, Jiayang, ‘A Study on Perceptual Design of Hierarchical Graphic Information in Interfaces Based on Gestalt Principles’ (2025) Applied Science 15(21), article 11327
Macquarie Dictionary, online ed, 2026
Mather, George, ‘Foundations of Sensation and Perception’ (3rd Ed Psychology Press 2016)
Mather, George, ‘Foundations of Sensation and Perception’ (4th Ed Psychology Press 2023)
Mohamed, Kareem and Adiloglu, Fatos, ‘Analyzing the Role of Gestalt Elements and Design Principles in Logo and Branding’ (2023) International Journal of Communication and Media Science 10(2)
Murphy, Terence Patrick, ‘Gestalt Patterns in the Novel: The Case of the Opening Chapter or Two in Jane Austen’ (2026) 40(8) Textual Practice 1121
Ong, Denis S K, Ong on Equity (2011, Federation Press)
Ong, Denis S K, Trusts Law in Australia (5th ed, 2018, Federation Press)
Oxford English Dictionary, online ed, 2026
Seddon, Nick, and Bigwood, Rick, Cheshire & Fifoot Law of Contract (LexisNexis Australia, online at February 2026)
Smith, Lionel, ‘Prescriptive Fiduciary Duties’ (2018) 37 University of Queensland Law Journal 262
Steingass, Francis Joseph, The Students Arabic-English Dictionary (W.H. Allen 1884)
Stevick, Phillip, ‘The Theory of Literary Chapters’ in Phillip Stevick Ed. ‘The Theory of the Novel’ (New York: The Free Press, 1967)
Story, Joseph, Commentaries on Equity Jurisprudence as Administered in England and America, ed Melville M Bigelow (Little, Brown, and Company, 13th ed, 1886)
Trevis, Walter, The Queen’s Gambit (Random House 1983)
Twain, Mark, The Adventures of Huckleberry Finn (Penguin 2009)
Waller, Robert James, The Bridges of Madison County (Penguin 2021)

HIS HONOUR: Statistically, a connection between a Matryoshka doll and the concept of ‘gestalt’, one might think, is rare. Yet both were linked by the plaintiffs’ counsel in outlining the essence of a dispute in this matter between two gentlemen of the Islamic faith regarding their commercial arrangements. The rarity of their combination is matched by the proceedings having at its core a unique claim, being the first claim for rectification of a case in New South Wales (and seemingly in Australia) advanced principally upon the contention that rectification of an instrument (here a settlement deed) is justified on the basis of a mutually perceived gestalt between the gentlemen derived from their past dealings with one another.
The Matryoshka or nesting doll is said to be one of the most recognizable symbols of Russia, though the concept on one contestable view is said to have been inspired by the Japanese Fukurama doll [1] . The core concept is that a set of wooden dolls of decreasing size are placed one inside another, with the final doll being solid. The etymology matrëška is that of a ‘little matron’, ‘little mother’ [2] or ‘respectable lady’ [3] . Their symbolism is varied and includes manifesting ideas or notions of motherhood, fertility and connection between generations [4] .
Relevantly, the nesting aspect of the doll was deployed by counsel in this case to highlight his objective - distillation of an essence by divesting. He foreshadowed removing distracting outer layers (or vestments) of the case which presented as a complex dispute history within a “labyrinthine bundle”, to get to the central doll or main issue in dispute [5] .
The noun ‘gestalt*’* is a word of German origin with varied contextualised meanings. The core word conveys the meaning of “a ‘shape’, ‘configuration’ or ‘structure’ which as an object of perception forms a specific whole or unity incapable of expression simply in terms of its parts” [6] .
A mutual gestalt in this case is said to have arisen [7] between Mohammad Alamin (Mr Alamin) and Hamidul Islam (Mr Islam) (together the gentlemen). They are the principal individual parties in these proceedings, connected with one another and other corporate entities in dealings, the manner in which I will more particularly describe below.
However, in brief, through such entities they engaged in a number of property projects over the period 2015 to early to mid-2021. Their dealings with one another became fraught and have been the subject of litigation since then - a period of 5 years. In December 2021, Mr Islam commenced proceedings against Mr Alamin and various of the entities claiming relief regarding assets and operations of the projects (variously referred to as the ‘Islam proceedings’ and the ‘2021 proceedings’ - I will use the latter expression). The hearing of that claim commenced before Parker J on 21 November 2022. Following the start of that hearing the matter was adjourned and the parties in the balance of that day and the following day negotiated a resolution of their dispute, embodied in a deed of settlement and release between the gentlemen and various related parties dated 22 November 2022 (Settlement Deed or Deed) [8] . The Settlement Deed required payment by the Alamin Parties (see below) to Mr Islam of a Settlement Amount of $3.25 million by way of three instalments on specified dates (with time of the essence in respect of each payment) and with security, relevantly, a PPSR charge. No payments were made and Mr Islam sought to enforce payments provided for under the Deed.
Relevantly for these proceedings, Mr Alamin seeks rectification of the Settlement Deed and other associated relief. Precisely what mutual gestalt arose was not pleaded by Mr Alamin. The word does not appear in the pleadings and agreed issues, and nor is it used by Mr Alamin in the evidence in the case. I have attempted to capture the gist of the claim by reference to the written and oral submissions of his counsel. Essentially, Mr Alamin claims a common intention mutual gesta**lt with Mr Islam that the instalment amounts and dates in respect of the Settlement Amount were not fixed nor time essential, but rather predicated upon and inextricably tied to completion by the plaintiffs of the purchase of two properties at Leppington (defined below as 11 & 82 Woolgen) and co-operation by Mr Islam to allow that to occur. Mr Alamin contends that the common intention mutual gesta**lt with Mr Islam is based on their past experience of how their projects were progressed and financed and evolved through to the settlement process — to which I will return below (in light of alleged fiduciary duties and implied duties of good faith conduct and cooperation), and extended to Mr Islam being obliged to lift the PPSR charge to allow Mr Alamin to purchase 11 Woolgen (mutual gestalt) [9] .
This case points up important differences in what suffices in different realms of human existence not only to convey meaning between one another regarding how individuals reach consent or agreement to a particular matter or proposition.
Speech and textual expression are the principal means by which people convey their intent to one another. Such means are affected by context and culture. The coupling of speech and text may variously refine, accentuate or in some instances confuse meaning. A hallmark of successful communication is that the receiver understands what the sender intends to convey. Peter Drucker has famously remarked that “the most important thing in communication is to hear what isn’t being said” [10] .
Non-verbal and non-textual communication may include facial expression (e.g. smiles, nods, winks, frowns), proxemics (spacing), haptics (touch), posture, and oculesics (eye movement).
Particular considerations arise when people seek to discern meaning from non-textual communication such as speech, gestures and other cues between family members, business partners, friends or even strangers.
People who are familiar with one another (couples, family members, business partners, friends) often use such expressions or gestures to communicate. Between even strangers, gestures such as pointing or waving will often suffice to communicate and convey meaning. A nod may be enough to convey agreement.
Assent by means of perception of a mutual gestalt invites, nay necessitates, initially brief consideration and understanding of gestalt.

First, g**estalt patterns are seen and analysed in the realm of literature. Novels have the capacity to excite, engage and captivate bookworms and bibliophiles.
For some, reading for pure enjoyment is enough, and deeper analysis or thought is unwelcome or unnecessary. Mark Twain famously prefaced ‘The Adventures of Huckleberry Finn’ with a jesting cautionary note regarding over analysis, suggesting that persons attempting to find a motive, moral, or plot in the narrative would be the subject of repercussions, including prosecution and banishment [18] . Ironically, the cautionary note itself has given rise to considerable analysis and speculation as to its meaning, and the identity of the ‘Chief of Ordnance’ referenced in it.
For other readers, the discovery and descriptive unfolding of a tender moment, an entrancing scene or exquisite vision, evokes a sense of awe or rapture, perfect or ineffably sublime of itself, which would be degraded or debased by analysis.
In ‘The Bridges of Madison County’ Robert Kincaid [19] said “[a]nalysis destroys wholes. Some things, magic things, are meant to stay whole. If you look at their pieces, they go away.” Kincaid recalled a mundane act invoking a sensual moment as a perfect whole and analysis of why it was sensual was unimportant to him.
For some, literary patterns will emerge without any deliberative or contemplative thought, for others their suppositions as to the unfolding plot or analysis about motive or character development deepens and or enriches the immersive literary journey. Further, researchers, scholars and literary buffs seek to understand (for noble purposes) textual strategies employed in creating novelistic worlds [20] .
Chapter division (in and of itself) has been said to be a form of textual segmentation that articulates time [21] . Phillip Stevick suggests chapter division enables readers to draw upon their understanding of minor gestalt patterns and facilitate an understanding of the fiction as a whole which would be infinitely more difficult without division [22] .
Terence Murphy in an insightful article delves into an analysis of gestalt patterns of two female literary luminaries of the 19th century, Jane Austen and George Elliot [23] .
He advances a gestalt pattern of ‘Departure-Request-Hesitation’ which typically occurs following the sketching in of the novelistic opening itself. The opening involves the writer in the establishment of a Lost Time and a Zone of Temporal Acceleration in order to situate the moment of Narrative Now [24] . In relation to Austen he contends [25]

Secondly, in the realm of design gestalt principles are used to explain what our minds do in instinctively organising visual information into patterns, unified wholes and structured forms. Terminology varies regarding the nomenclature used. G**estalt principles inform aspects of design and advertising with creators and professionals supposing that humans tend to: [27]
separate objects from the background – the figure ground principle;
group objects that are close together – the proximity principle;
group objects that look alike - the similarity principle;
follow continuous lines and curves (or perceive items on lines or curves as related) - the continuity principle;
complete or fill-in incomplete shapes - the closure principle;
see symmetrical elements as related - the symmetry principle;
connect items that are seen as grouped - the connectedness principle;
see parallel objects as belonging together - the parallelism principle;
link moving objects in the same direction - the common fate principle;
focus on contrasting elements - the focal point principle; and
simplify ambiguous or complex images – the prägnanz principle*.*
Effective use of gestalt principles may give rise to an ‘aha moment’ [28] . Some exemplars demonstrate the principles. By the figure ground principle we see text on the page of a book. Nearly everyone will focus on the text rather than the white background. The World Wide Fund for Nature (or ‘WWF’) logo of a giant panda’s body [29] is incomplete. By the closure principle many people unconsciously see or perceive the complete animal. The c**ommon fate principle is exemplified by a flock of birds, and the iconic album cover photo for The Beatles’ ‘Abbey Road’ [30] . Matching earrings show the symmetry principle. Food items displayed on a menu may typify the similarity principle. By the connectedness principle people intuitively relate items such as bullet points or drop-down menu items. By the prägnanz principle in the Olympic Games logo humans intuitively perceive overlapping circles instead of random curved lines [31] .
Self-evidently not all people will perceive all objects or data in the same way. Moreover, the percentage of people who tend to group or perceive objects in the same way will vary as between the various principles. The figure ground principle provides a classic example in Rubin*’*s vase (sometimes referred to as “The Two Face, One Vase Illusion”) which depicts the silhouette of a vase in black and the profiles of two inward-looking faces in white. Different people will at first blush focus on one or the other [32] .
In the realm of design and marketing past experience is regarded as an aspect of gestalt. Some designers view past experience as one of the gestalt principles. Match and Smietana suggest a past experience principle that humans interpret visuals based on prior knowledge, learned patterns, cultural backgrounds and past experiences [33] . They give a few examples. One is the shopping cart icon that usually sits in the top-right corner of an eCommerce site. They observe that most internet users will instantly understand its purpose because they have seen it many times before. However, they also highlight the limitations of the past experience principle. They indicate Microsoft Word’s “save” icon, a floppy disk is a symbol which may be unfamiliar to younger users who have never used the original technology [34] .
Others such as Jiayang Ma [35] suggest that past experience and knowledge is not merely an individual gestalt principle but is used to give consumers a perceptual sense of product use. Figma suggests past experience helps us interpret our environment in four key ways: namely through principles of emergence (seeing a whole before noticing its parts), reification (using familiar patterns or mental models to complete an image), multistability (perceiving objects in more than one way shifting between different views) and invariance (identifying similar objects even if their colour, scale, weight or angle differs) [36] .

The above cases of gestalt principles (expressly unrelated to this case) exemplify in a basic way how humans may perceive shapes or patterns from data, and points up the question of how past experience may inform or influence gestalt**s.
For the purposes of rectification the plaintiffs did not lead any expert or specialised evidence to explain or prove the type of gestalt contended for and the impact of past experience upon it. Instead, the notion that a common intention may be reached by parties perceiving a gestalt in a series of events was contended for by the plaintiffs by reference to that concept, as first raised by Campbell JA in Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65 (Ryledar) [37] , though I note Ryledar was not a case of rectification by gesta**lt.
His Honour expressed the view that in discerning a continuing common intention of parties to a negotiation, where intention is relevant to the terms in which they are prepared to contract with one another, it is necessary for each party to know enough of the other’s intentions for it to be said that there is a common intention. The means by which that might occur vary: it might be by direct statement, or through the various other means by which one person’s intention can become known to another person. In this context, his Honour raised the notion that contracting parties might mutually perceive matters in their dealings like an experienced surgeon, or experienced chess player, can sometimes see what another surgeon, or chess player, is seeking to do, in a way that an inexperienced person cannot [38] .
However, notwithstanding that particular individuals may share a common experience, not everyone perceives a gestalt in the same way.
Within law there are differing thresholds for findings of agreement or consent. For example, there is a particular rigour that the law requires in respect of consent in certain matters such as the law of adoption [39] .
Similarly there is a rigour regarding the equitable remedy of rectification. It has been said that “clear and convincing” proof is required to obtain relief [40] . The justification for granting the equitable remedy of rectification is in ‘mistake’ [41] and underpinning the Court’s intervention is the prevention of unconscientiousness [42] . Communication of that common intention need not be by express statement [43] , but it must established to be the parties’ true/actual intention mutually held, as viewed objectively from their words or actions [44] . That the common intention must be in some manner disclosed is consistent with the rationale on which rectification is granted [45] .
The rigour of the requirements for rectification pose an obstacle to a rectification based principally or even exclusively upon a gestalt.
First, the fact that capable and experienced people perceive matters in their fields of operation that others might not, or that people in a given situation with common experiences perceive the same matters, does not mean or compel the conclusion that they agree that a certain course of action must be taken.
The examples provided by Campbell JA point up the issue. Surgeons differ from chess players in a number of material respects. Pertinently [46] , experienced surgeons attending upon operation are not in competition with one another in the same way as chess players are. Thus, if two experienced surgeons are attending upon operation in which they are both working for the good of the patient and not in competition with one another they may both see what the other is doing, in a way that a third inexperienced surgeon viewing the operation or other nurse or assisting staff around the operating table cannot. Those two surgeons may perceive what each other are doing and not only that, but they might also agree that what is being done is beneficial and should occur or continue. However, experienced chess players in competition with one another (let’s say Bobby Fischer and Boris Spassky [47] or, for those who prefer fiction, Beth Harmon and Vasily Borgov [48] ) might perceive possible options for moves in a way that no other onlooker can, but they might not agree on what is beneficial and what should occur.
Secondly, observing an event (a chess game or surgery) on a single occasion and perceiving a gestalt within that event is one thing. Using a historic event or set of events as the basis for a gestalt said to impact a much later event after parties have fallen out with one another is more problematic.
Evident from what is set out below, the history of the involvement of the parties were said to be the outer layers of the Matryoshka dolls leading to the core inner doll being a settlement process resulting in the Settlement Deed [49] .
Essentially, the plaintiffs claim that the mode of operation and financing of property developments between the gentlemen in the few years leading up till early to mid-2021 (a time 22-16 months prior to the Settlement Deed) was said to found a gestalt between the gentlemen because they mutually agreed, and not merely considered, that there was flexibility in the timing for and financing of instalment payments under the Settlement Deed.
However, matters that form part of the context of a gestalt at a much earlier point of time even if then seminal, do not necessarily bear, hold or retain immutably enduring vital significance with the passing of time.
The lapsing of time is but one factor which may weaken the existence of, or reliance on, a gestalt. The eroding of trust between parties, the intervention of a dispute, the commencement of legal proceedings, the process of reducing an agreement into writing, and potentially a myriad of other factors will intervene. In those circumstances, a mutual gestalt may provide a very fragile foundation (or perhaps no foundation) for finding that the parties agreed on some other meaning to be given to the clearly expressed terms of a later instrument (in this case, the Settlement Deed), or that such a gestalt should trump such express terms.

Mr Castle SC, for the plaintiffs, submitted that the Settlement Deed was effective to “wipe the slate clean as at November 2022 in terms of the past history”, with the consequence that there was no need for me to decide any of the past allegations between the parties. Rather, the factual inquiry was said to be focused on the context in which the Deed was entered into and subsequent conduct [50] .
Ordinarily, in a rectification case, one would not ordinarily expect a large degree of material. That is particularly so in a context where, as here, the evidence of negotiations between the parties is entirely documentary with no oral communications between the principals being the subject of evidence (let alone factual contest) and indeed a total absence of evidence from any of the lawyers that were involved in the actual communication of offers of settlement to one another.
One might have thought that consistent with such a scenario, there would be little material for the Court to consider.
However, whatever alluring mirage of simplicity might be conveyed by the above matters vanished under the weight of a mass of documentation and various detailed sets of submissions, particularly on the plaintiffs’ side, including their contentions for numerous factual findings.
The pretext or (to use a neutral word) basis for the mass of documentation was on the plaintiffs’ side said to be justified by contextualising the negotiations and explaining the claimed gestalt understanding.
The result has given rise to a delayed and very lengthy judgment in which I have attempted to grapple with and make sense of the mass of material and the detailed submissions and contentions made by the parties.
Some idea of the volume and complexity is conveyed by the fact that the case commenced in the context in which there were nine volumes of Court Books containing 7,137 pages which, it soon became obvious, was not arranged chronologically [51] . I asked the parties to consider refining that material [52] . A bundle of so-called ‘critical documents’ was prepared (albeit at the end of the hearing). However, even that bundle of critical documents contained 1,427 pages.
Whilst the reduction of the documents said to be critical was a helpful step, there was a degree of messiness in document management through the hearing in which documents were referred to from 4 main sources:
Part 4 of the Court Book - marked as MFI-2;
a bundle of pleadings and affidavits from the 2021 proceedings (prepared by those acting for Mr Islam) - marked as MFI-3 and eventually tendered as exhibit D1;
a cross-examination bundle (of documents to be put to Mr Islam) - marked as MFI-7 and eventually tendered as exhibit P4; and
the bundle of critical documents - marked as exhibit P7.
Exhibit P7 contained the Summons and the pleading documents, the five affidavits of Mr Alamin and the three affidavits of Mr Islam, a chronological ordering of what was said to be the more significant or “critical” documents referred to during the hearing or otherwise relied upon (including “pleading” documents and affidavits from the 2021 proceedings). The numbering of pages in P7 included 6 pages that had been interleaved and distinguished by adding an “A”/“B” after those page numbers [53] . The only particular issue that this caused was that it slightly threw out precise electronic searches on page numbers.
Lastly, in PS5 (received after the in-court hearing), Mr Castle SC sought leave to tender in reply a historical company extract (12 May 2023) for Signature Homes/Amin Co, seemingly on the belief that it was not contained in P7 [54] .
The purpose of the proposed tender appears to have been to establish that [55]

Mr Alamin, the first plaintiff/first cross-defendant, was born in Bangladesh on 22 December 1983 [57] and migrated to Australia in 2004 [58] . He studied at the Holmes Institute and, in or around 2005 and 2006, completed a Diploma of Accounting and a Diploma of Management [59] . Mr Alamin has previous experience in running businesses including: an education consultancy through M.A Education and Aus Student Centre Pty Ltd [60] ; MA Travels and Tours (a travel agency) [61] ; a hair dressing salon [62] ; a cardiac specialist hospital in Bangladesh [63] ; a retail shop named ‘Universal Product Outlet’ [64] ; and a men’s clothing brand named ‘the MA Collection’ [65] .
Mr Islam (also known as Arif to his friends and colleagues) the first defendant/cross-claimant, was born in Bangladesh on 31 December 1976 [66] .
Both Mr Islam and Mr Alamin practice the Islamic faith [67] . They became acquainted in or around 2014 through interactions with each other in the Eastlakes/Mascot area (where they both resided), through their common Bangladeshi heritage, and by their attendance at the same local mosque [68] where they conversed with each other about their lives, families and issues in the Bangladeshi community [69] .
Broadly speaking, the plaintiffs’ claims proceeded on the basis that Mr Alamin and Mr Islam had, consequent upon discussions, established a business venture together for the acquisition, development and sale of land, for their mutual profit, in a manner that was compliant with Shariah Law, [70] and for the purpose of making such land available for purchase by members of the Community (Joint Venture or JV) [71] .
From about 2015, separately and at times together, Mr Alamin and Mr Islam have caused companies to be registered, trusts to be created and otherwise engaged in activities for the purposes of advancing either or both of their own interests and mutual interests including, in particular, as property developers. They are directors and/or shareholders of certain companies and have other positions, connections with or associations with those companies, trusts or other entities.
The names of various of the companies are explicable by reference to a number of matters, but principally the given names of Mr Alamin and Mr Islam, and the street address locations of various of the developments.
From 2021, they have fallen into dispute and engaged in consuming litigation.
For convenience and to simplify these reasons I will identify the various entities principally by reference to the terminology used by the parties themselves in the Settlement Deed and by reference to their position in these proceedings as plaintiff, defendant, cross-claimant or cross-defendant (e.g. P1, D1, XC, XD1 etc). However, the reader should be alive to the fact that varied terminology has been used to describe the same corporate entities both over time (due to factors such as changes of names, and realignment of interests) and in other proceedings. The parties provided a diagram (MFI 1) which attempted to depict the connection between each of Mr Alamin and Mr Islam and the various as at 29 September 2025.
Mr Alamin has a family trust, the MSAA Family Trust (Alamin Trust) of which MSAA Family Pty Ltd is the trustee (MSAA/P2).
Through the Alamin Trust, Mr Alamin holds interests in a number of companies associated purely with himself and other companies in which he is associated with Mr Islam.
The companies of which Mr Alamin is a director are:
Amin Homes Hadiqat Woolgen Pty Ltd (formerly known as MA Signature Homes Pty Ltd) (ACN 648 134 374) (Amin Co post 25 January 2023 or Signature Homes pre 25 January 2023**/D2/XD2**) [72] ;
Amin Homes Murooj Woolgen Pty Ltd (ACN 653 353 867) (Amin Murooj/D3**/**XD3);
Amin Property Group Pty Ltd (ACN 653 888 932) (Amin Property/D9/XD4);
Amin Homes Hadiqat Pty Ltd (ACN 652 057 764) (Amin Hadiqat); and
Amin Homes Mahmiat Logan Pty Ltd (ACN 654 671 431) (Amin Mahmiat),

For the purposes of their dealings, essentially the business model was described by Mr Alamin as follows. A summary by Mr Elliott SC was not materially different [81] .
Entities were set up for the purpose of purchasing and developing land for each development project. The land was then developed, subdivided into lots and sold to third party purchasers. Generally, the customer base for the MH Group and Amin Group were people of the Muslim community, particularly those interested in buying property in a manner which does not necessitate them paying “interest”. Sale Agreements (seemingly or usually in the form of Put and Call Option Deeds) were entered between one of the MH Group Companies, described as a “developer”, intending to become the legal owner of the whole property (Site), and individual purchasers/customers.
Essentially, upon payment of an “Option Fee” by the individual purchaser to the developer, the developer granted to that individual an option to purchase an option lot (being an unregistered lot within the Site) on the terms set out in the deed. One example of such a deed (Example Deed) involved a purchaser paying an option fee of $365,500 in respect of the unregistered lot (11 Woolgen - see below) with an initial deposit being paid in May 2021 ($148,100), a 1st instalment paid over a period of 4 years (comprising 48 monthly payments of $2,050 – totalling $98,400) and a 2nd instalment paid over another year (comprising quarterly payments in the sum of $27,500 – totalling $110,000) [82] .
Exercise of the option involved the purchaser serving on the developer (or its legal representative) an exercise notice, executed Sale Agreement, and the balance of any deposit payable under the Sale Agreement [83] . The Sale Agreement became binding upon the parties upon the valid exercise of the option [84] .
Further, exercise of the option was conditional upon [85] the developer having become the registered proprietor of the Site and registration of the Subdivision Plan.
If for some reason the option lapsed because the developer had not become the registered proprietor of the Site or the subdivision had not been registered, the option fee would be refundable to the purchaser [86] . There were provisions permitting the developer to extend the registration period [87] .
The purchase price under a Sale Agreement is informally divided into two categories of payment. The first category being the ‘land price’ (or ‘land cost’), and the second category being the ‘development price’ (or ‘development cost’) [88] . Once the customer pays instalments which total the ‘land price’, the monthly instalments pause until such time as the development of the land commences. Once the development commences, the purchaser then recommences paying instalments, paying off the balance of the purchase price (being the ‘development price’) until the entire purchase price is paid. This feature seeks to avoid the need for customers to obtain financing from a financial institution and avoids them paying interest on such financing [89] .
The “Option Fee” or part of it (whether the initial deposit or one or more of the estate instalment payments) were colloquially described as “presale payments” [90] and forms part of the deposit payable under the Sale Agreement if the option is exercised.
Once the Option Fee (or any part of it) is paid, it is released to and becomes the property of the developer. On one view the developer is then free to use those funds for other purposes [91] . The Option Fee may ultimately be forfeited to the developer (subject to various compassionate exceptions) if the option is not exercised or the Sale Agreement comes to an end as a result of the purchaser’s default [92] . Pausing here, whilst the above appeared to be how at least one of the deeds worked, Mr Elliott SC did not accept that the above example was generally true of all the contractual arrangements [93] . Nonetheless, broadly speaking, it suffices for the purposes of this judgment.
Mr Castle SC, whilst indicating that the Example Deed precluded assignment or novation of the benefit arising out of or under the Example Deed without the prior written consent of each other party [94] , intimated that in practice there was an “unexpressed understanding” that involves the developer company either refunding an Option Fee or transferring the option to Mr Alamin, who would then be buying the property [95] .

Within five years of the inception of MH Group, Mr Alamin and Mr Islam had purchased and began the development (through companies) of various properties. The first five projects (which proceeded) are [96] :
404 Fourth Avenue, Austral NSW (Fourth Avenue Project) - via MH Affordable;
105-110 Gurner Avenue, Austral NSW (Gurner Avenue Project) - via MH Affordable;
95 Boyd Street, Austral NSW (Boyd Street Project) - via MH Kelly;
4 Harris Street, Angle Vale SA (Harris Street Project) - via MH Angle Vale; and
39 Dickson Road, Leppington NSW (Dickson Road Project) - via MH Dickson [97] .
Importantly, two properties at Woolgen Park Road in Leppington feature prominently in the parties’ dealings.
In the initial litigation between the parties which preceded the Settlement Deed (see below) Mr Islam contended that Mr Alamin, through companies he set up, sought to acquire in particular two blocks of land for himself at 11 Woolgen Park Road (Lot 14 DP 200915) (11 Woolgen) [98] and 82 Woolgen Park Road (Lot 28 DP 205952) (82 Woolgen) [99] (or together 11 & 82 Woolgen). Specifically, Signature Homes (now Amin Co) was the vehicle to acquire 11 Woolgen and Amin Murooj was the vehicle to acquire 82 Woolgen. Subsequently, by request from Mr Alamin, the vendor of 82 Woolgen agreed to a type of novation whereby APGM was incorporated (on 24 November 2023) for the purpose of being the substitute purchaser of 82 Woolgen [100] .
On 6 March 2021, Nadeen Anwar and Rabiya Huma Zagham (11 Woolgen Vendors) entered into a contract to sell 11 Woolgen to Signature Homes for $4.637 million (with a deposit of $463,700 and balance due of $4,173,300). The front page of the contract is in evidence. It provided for a lengthy 365 day completion period [101] (11 Woolgen Contract).
On or about 11 June 2021, Mr Alamin signed a sales agreement between Signature Homes and MH Woolgen in which Signature Homes agreed to transfer 11 Woolgen to MH Woolgen for the amount of $7 million (June Sale Agreement) [102] .
Precisely what occurred with the 11 Woolgen Contract is the subject of some dispute which, counsel agreed, it is not necessary for me to determine. For example, Mr Islam claims that Mr Alamin made him aware of the June Sale Agreement on 11 June 2021, but claims that he was not then informed of Mr Alamin’s involvement with Signature Homes. Mr Islam claims to being informed that it was not Mr Alamin’s company but rather that of a friend, Rajiv Mamu [103] . He further intimates that then (on or about 19 March 2021) only a 5% deposit (in the sum of $231,850) was paid [104] .
Mr Islam contends that a significant issue in the 2021 proceedings was that (after a complex process of tracing) the funds used to purchase 11 & 82 Woolgen had been taken by Mr Alamin from the MH Group [105] . His case was that the $7 million was to be paid by MH Woolgen as follows:

On that basis, Mr Islam said that Signature Homes was to rescind its contract with the vendors for the purposes of enabling a similar contract to be entered into between MH Woolgen and the 11 Woolgen Vendors. Mr Islam contended that Signature Homes stood to make a gain of $2,363,000 from the sale of 11 Woolgen which it did not own, and that this gain was at the expense of the MH Group [106] .
On 2 May 2022, the 11 Woolgen Contract was varied by a Deed of Variation, which provided for the purchase price to be increased to $5,137,000, and for the completion date to be amended to 8 August 2022, with time being of the essence [107] .
On 15 February 2023, there was a proposed settlement of that sale. The Settlement Statement as at that date consistently records the purchase price as $5,137,000 and, after deducting the deposit paid of $463,700, suggested a balance of $4,673,300 was due and less further instalment payments of $820,000, the balance was $3,853,300. Further adjustments suggest that the final balance due to the 11 Woolgen Vendors on settlement was an amount of $4,265,250.41 [108] .
Mr Castle SC handed up a bundle of documents, marked MFI 9 [109] , the tenor of which was to demonstrate the following payments referable to the plaintiffs’ damages claim of $1,283,730 regarding 11 Woolgen, being a deposit of $463,700 and instalment payments of $820,030 [110] . It appears that those amounts were payments forfeited by the 11 Woolgen Vendors, in the following circumstances:
subsequent to the entry into the Settlement Deed Mr Islam sought urgent interlocutory relief to permit the PPSR charge “to be lifted” to allow him to obtain finance for the purchase of 11 Woolgen;
the summons for that relief (dated 12 May 2023) was heard on an urgent basis by Slattery J on 24 May 2023 and his Honour refused relief on that day and made certain orders and notations;
it seems that the refusal of that relief led to the virtually instantaneous termination of the 11 Woolgen Contract because on the following day, 25 May 2023, the 11 Woolgen Vendors entered into a contract to sell 11 Woolgen to Maria Letta for $6 million [111] ;
that sale appears to have been completed on or prior to 23 August 2023, with Ms Letta being registered as proprietor of 11 Woolgen (unencumbered) as at that date [112] ; and
consequently, 11 Woolgen was no longer available to Signature Homes/Amin Co to purchase (from the 11 Woolgen Vendors) as and from 23 August 2023 [113] .
The first 2 documents in MFI 9 were said to establish the amount of $463,700, being (a) $231,850 on 19 March 2021 (paid by Signature Homes) and (b) $231,850 on 11 June 2021 (paid by MH Affordable).
The last 3 documents in MFI 9 were said to establish the amount of $820,030, being: (a) $500,000 (sourced and approved by Mr Alamin) on 13 December 2021; (b) $250,000 (paid by Amin Mahmiat) on 29 August 2022; and (c) $70,030 (paid by Amin Property) on 3 November 2022. It will be readily observed that the last two payments are not by the plaintiffs. However, Mr Castle SC contended that the $820,000 sum was relied upon as a business record paid by Mr Alamin irrespective of where it came from [114] .
Mr Elliott SC had objected to the tender of the material, at least in part, later explaining that there was a very live issue in the 2021 proceedings about Mr Alamin misappropriating monies to pay the deposit for the company [115] . The tenor of Mr Elliott SC’s submission is that the underlying source of the monies or some of them is contestable. In light of the documents being marked as an MFI rather than as an exhibit, it is not evident that I can simply proceed on the basis that each of the above amounts are proved as a loss.
On 12 November 2021, Qi Weng (as vendor) entered into a Put and Call Option Deed (82 Woolgen Option) with Amin Murooj (as purchaser) in which Amin Murooj had an option to purchase 82 Woolgen on terms. The terms included payment of three sums aggregating to $1.5 million over a period of 18 months on and from the date of the agreement (the Call Option Fee) to be exercised between the period commencing eight weeks after the date of the agreement and ending on 25 September 2023 (the Call Option Period), with time being of the essence [116] . On that date, Amin Murooj exercised the 82 Woolgen Option and entered into a contract to purchase 82 Woolgen (82 Woolgen Contract) [117] .
By the time of the hearing:
Ms Letta (consequent upon the purchase in 2023) was still the registered proprietor of 11 Woolgen [118] ; and
APGM was the registered proprietor of 82 Woolgen - the purchase was completed on 21 December 2023 [119] and registered on 22 December 2023 – it being subject to 2 mortgages, the first to The Trust Company (PTAL) Limited and the second to Pacific 8 Pty Ltd (Pacific 8) [120] .

In this Court, Mr Alamin and Mr Islam and many of the Amin Companies and MH Group companies have been engaged in (or been parties to) three sets of proceedings.
First, on 13 December 2021, Mr Islam commenced, by originating process, the 2021 proceedings in this Court (2021/353907) against Mr Alamin, Signature Homes, Amin Hadiqat, Amin Murooj and the five MH Group companies [121] .
The claims in the originating process were articulated in a ‘Points of Claim’ which, after reciting the parties and their connections, essentially alleged that:
Mr Alamin had caused the affairs of the MH Group to be conducted contrary to the interests of its members or in a manner oppressive to, unfairly prejudicial to, or unfairly discriminatory against Mr Islam (oppression claims);
Mr Alamin had acted in breach of his statutory and fiduciary duties to members of the MH Group (breach of duty claims); and
Amin Co held rights under the 11 Woolgen Contract (and defined pre-sale contracts) and that Amin Hadiqat and Amin Murooj held traceable assets on constructive trust for members of the MH Group (or that Mr Alamin, Amin Co, Amin Hadiqat and Amin Murooj were liable to account or pay compensation to the MH Group members).
Mr Islam sought orders in respect of these matters under s 233 or alternatively s 237 of the Corporations Act 2001 (Cth).
The oppression claims were detailed, including contentions that Mr Alamin had [122] used cash resources and business opportunities of the MH Group members for his own benefit and advantage and that of Amin Co, and to the detriment of MH Group members.
Mr Islam’s claims in the 2021 proceedings principally concerned claims regarding 11 Woolgen [123] . He claims that subsequently after bringing those proceedings, he discovered that Mr Alamin had, through Amin Murooj, obtained a right to purchase 82 Woolgen and funds for the purchase deposit had been sourced from presales in respect of 11 Woolgen lots [124] .
The 2021 proceedings were listed for hearing before Parker J commencing on 4 November 2022, with an estimate of four days [125] . The proceedings were finalised consequent upon the Settlement Deed which became disputed and remain disputed.
On 5 December 2022, Mr Islam caused his security interest under the Settlement Deed to be registered with the Personal Property Securities Register (PPSR). Three separate registrations were made in respect of present and all future interest in shares in companies (seemingly in reliance upon cl 7 (b) of the Settlement Deed). The reason for the separate registrations appears to reflect the three means by which Mr Alamin held his interests in companies. Thus the registrations were as follows [126] :
PPSR registration number 202212050019100 (PPSR 1) in respect of Mr Alamin charging his present and all future interest in shares in MH Affordable, Signature Homes and MH Woolgen.
PPSR registration number 202212050018863 (PPSR 2) in respect of the Trustee for the Amin Trust charging its present and all future interest in shares in Amin Property, MH Kelly, MH Dickson and MH Angle Vale.
PPSR registration number 202212050018454 (PPSR 3) in respect of Amin Property charging its present and all future interest in shares in Amin Hadiqat, Amin Homes and Amin Mahmiat.
Secondly, these proceedings which as a consequence of the dispute concerning the PPSR interests were commenced by summons on 12 May 2023 by Mr Alamin and MSAA against Mr Islam and the other parties to the Settlement Deed (being three of the Amin Companies (Amin Co/Signature Homes, Amin Murooj and Amin Property) and the five MH Group companies) (these proceedings, sometimes referred to as the Alamin proceedings).
The summons sought interlocutory relief and final relief. The final relief sought rectification of the Settlement Deed and alternatively a declaration that the Settlement Deed is void ab initio by reason of mistake.
The interlocutory relief sought orders based on an undertaking as to damages that [127] :
the charge over Mr Alamin’s interest in the shares in MH Affordable registered as PPSR 1 be removed; and
Mr Islam (and associated entities) be restrained from registering or causing to be registered on the PPSR, any further charge against the plaintiffs until further order of the Court which would constitute a breach of five specified finance agreements.
That relief on one view presents as a mandatory injunction in respect of removal of the charge and restraining injunction in respect of lodgement of further charges.
In circumstances where Slattery J understood that Mr Alamin wished to borrow money to acquire further development land, his Honour perceived the interlocutory relief as resembling a claim for final relief being a form of request for rectification of the Settlement Deed and request to lift the security [128] .
Detail of the issues will be set out below, but essentially:
Mr Alamin contends that the Settlement Deed should be rectified to reflect the claim that Mr Islam was obliged to cooperate and assist with a refinancing of 11 & 82 Woolgen, to allow these properties to be purchased and developed, in return for which Islam would be entitled to a payment under the Settlement Deed of $3.25 million [129] .
Mr Islam contends that the Amin Parties owed him an unconditional obligation under the Settlement Deed to pay $3.25 million, which was not connected with the purchase and development of 11 & 82 Woolgen [130] .
Mr Alamin sought interlocutory relief to rectify the Settlement Deed and to lift the security. The application was heard by Slattery J, who on 21 June 2023 dismissed the application with costs (Alamin v Islam [2023] NSWSC 701). Leave to appeal from costs orders from the Slattery J judgment was dismissed by the Court of Appeal on 20 December 2023 (Alamin v Islam [2023] NSWCA 326).
Thirdly, consequent upon the issue (on 16 June 2023) of statutory demands by Mr Islam against three of the Amin Companies (Amin Property, Signature Homes/Amin Co and Amin Murooj) [131] , on 7 July 2023, each of the companies commenced separate proceedings seeking orders setting aside the statutory demand on the grounds that there is a genuine dispute about whether the debt is presently due and payable, and that each of the plaintiffs has a genuine offsetting claim. The three applications were heard by Williams J who set aside the demands (statutory demand proceedings) and on 15 December 2023 delivered reasons for judgment [132] .

Mr Islam instructed McCabe’s Lawyers (McCabes) with a number of lawyers including Foezullah Mohammed Dewan (usually referred to as Foez Dewan), a principal of the firm (Mr D****ewan), and William Wade (Mr Wade) having the conduct of the instructions.
These proceedings initially commenced with only Mr Alamin as plaintiff [133] . Between 25 May 2023 and 19 July 2023 MSAA was joined as the second plaintiff (the means by which is unclear). Mr Alamin instructed various lawyers including initially Origin Lawyers (relevantly, Andrew Quash and Christopher Sparks) and Cordoba Legal (Mr Kazem Elkheir). During the negotiations and consummation of the Settlement Deed Mr Alamin was represented by Mr Elkheir and Mr S Philips and Mr N Condylis of Counsel [134] .
On 14 December 2023 and on 3 June 2024, Mr Quash filed Notices of Ceasing to Act for Mr Alamin. It is unclear (but need not be resolved) whether Mr Quash had ceased to act at some point of time and was being re-instructed or were simply formalising an initial cessation of instructions. On 13 December 2024, Professor Dion Accoto filed a Notice of Appointment of Solicitor for Mr Alamin and on 4 June 2025 filed a Notice of Ceasing to Act.
Subsequently, on 30 July 2025, Tarek Kheir (Mr Kheir) of Kheir & Associates was instructed to act for Mr Alamin. However, on 29 August 2025, Mr Kheir filed a Notice of Intention of Ceasing to Act (intimating intention to cease to act after, namely on or about 26 September 2025). On 2 September 2025, (a few days later) Mr Kheir appeared at a pre-trial direction listing. Prior to the expiry of the time limit for ceasing to act, he took steps to comply with court directions. On 22 September 2025, Mr Kheir filed a Notice of Motion (seeking leave to issue a Notice of Ceasing to Act) with a supporting affidavit. The Notice of Motion was listed for hearing before Elkaim AJ on 25 September 2025. On that occasion, Mr Castle SC appeared with Mr Byrne and announced to the Court that the hearing of the matter would be conducted by himself and Mr Byrne, and the Notice of Motion was formally withdrawn. Formalisation of appointment of a solicitor for MSAA is unclear from the Court file. Nonetheless, the case was heard on the basis that Mr Castle SC were instructed by Mr Kheir for both plaintiffs.

Counsel provided written outlines of submissions prior to the hearing, and subsequent submission documents as well as addressing the court orally on the final day of the hearing.
I will refer to the oral submissions by transcript page reference and the various written submission documents as follows:
Opening written submissions of the plaintiffs dated 25 September 2025 (PS1), and of the defendants dated 25 September 2025 (DS1);
Defendants Supplementary Opening Submissions dated 26 September 2025 (DS1);
Plaintiffs’ Outline of Legal Principles except Remedies dated 2 October 2025 and Outline of Further Legal Principles dated 3 October 2025 (PS2);
Plaintiffs’ Factual Submissions - Speaking Notes dated 3 October 2025 (PS3);
Plaintiffs’ Contended Findings of Fact (2 October 2025 marked as MFI-8 to be used as an aide memoire [138] ), and subsequently updated on 3 October 2025 [139] (PS4);
Defendant’s Closing Submissions dated 3 October 2025 – superseding DS1 and DS2 (DS3) [140] ; and
Note of Matters Not Put in Cross-examination - plaintiffs dated 13 October 2025 (PS5) and defendant’s Response dated 14 October 2025 (DS4).
Mr Castle SC’s oral submissions identified two broad topics [141] as being issues concerning (a) the Settlement Deed and (b) the future of the JV and the MH Group Companies. He did this by reference to [142] : (a) relevant principles; (b) facts and (c) remedies.
I have considered Mr Castle SC’s ‘Speaking Notes’ (PS3) but, other than in one respect, I have not separately reproduced them as much of the detail covered in them is addressed otherwise in these reasons.
Mr Elliott SC poured scorn on the plaintiffs’ case. Essentially, he contends that rather than on a promise to pay the Settlement Amount, Mr Alamin has created a construct advancing a series of claims calculated to avoid such payment [143] in light of his wishes and possibly based on what he now has convinced himself to be true, though it is objectively false [144] . I will address below more specifically his submissions which essentially were tailored to address the plaintiffs’ case in the way that it was both pleaded and (with some degree of chagrin) allegedly modified by Mr Castle SC.

Mr Castle SC contended that in about 2015, Mr Alamin and Mr Islam entered into an oral joint venture to: (a) establish companies to acquire undeveloped land; (b) sell sub-divided lots to members of their faith community; (c) use the funds generated by purchasers from pre-sold lots together with Shariah Law compliant financing and to pay the purchase price for the land and build services; and (d) share the profits generated by the sale of the subdivided lots [149] .
The plaintiffs pleaded that there was a joint venture established as between Mr Alamin and Mr Islam in respect of which the relationship between them was intended to be “one of mutual trust and confidence between them within the scope of the Joint Venture”, with various fiduciary duties owed.
Mr Elliott SC did not accept the characterisation of a joint venture relationship. However, the defence asserts [150] in respect of the allegation of a JV that Mr Islam:
conceived the idea of establishing a property development business of the kind subsequently conducted by the MH Group; and
approached Mr Alamin to discuss whether he would be interested in participating in the establishment, ownership and management of a company to be incorporated for the property development business.
Mr Islam admitted that the relationship between them was intended to be one of mutual trust and confidence, in which he says that both of them had duties in respect of the MH Group to: (a) act in good faith and in the best interests of it and for its proper purpose; (b) not put themselves in a position of conflict in relation to its the interests; and (c) not use their respective positions so as to gain an advantage for themselves or for anyone else, or to cause detriment to it. However, Mr Islam denied the relationship was a joint venture and denied that there was a duty to cooperate and contribute to the successful operation of the joint venture including by making agreed financial and non-financial contributions to its success [151] .
Mr Islam pleaded a detailed defence in respect of the alleged JVA and its terms. Broadly speaking, he [152] :
contended that MH Affordable was incorporated to commence the property development business of the MH Group; says that MH Woolgen, MH Dickson, MH Kelly and MH Angle Vale were established to further that property development business at various locations, and that Mr Islam and Mr Alamin were directors and equal shareholders (personally or through trusts) of those companies. Mr Islam otherwise did not admit the balance of ASC [11] (on one view conveying that he did not admit that any other projects were part of the alleged JV).
contended that Mr Islam and Mr Alamin had each contributed to the initial working capital of MH Affordable for the purposes of purchasing the first property project in the MH Group, namely the Fourth Avenue Project; the affairs of the MH Group have operated such that payments generated from presales from one entity were made available when used for the purposes of progressing developments by another entity or for advancing the projects through the MH Group. Mr Islam otherwise did not admit property projects beyond this;
admitted that Mr Alamin was to assume and perform the role of managing director of MH Affordable, but did not otherwise admit that he was managing director of the so-called JV business and of each of the MH Group Companies; and
that Mr Islam and Mr Alamin agreed to share equally in the profits of the companies in the MH Group, but otherwise denied that there was some expectation that most of the profits would be initially retained within the MH Group Companies to further property projects.
Mr Islam also denied that the so-called JVA had terms that there was a duty to: act in good faith, reasonably in for a proper purpose in respect of each other and/or the subject matter of the JV; and to cooperate and to give each other the benefit of the JV [153] .
However, the notion that there was some form of overall joint venture which encompassed all dealings between the parties was disputed by Mr Elliott SC. In particular, he contends that the parties’ rights in respect of 11 & 82 Woolgen claimed in the 2021 proceedings were released through the Settlement Deed and Mr Islam (going forward) became a secured creditor. He says that neither Mr Islam nor the MH Group companies received any shares in the Amin Parties (including those which held rights to purchase the two properties), nor any directorship position, nor for that matter, any position within management of the Amin Parties at all, with the consequence that Mr Islam did not owe the Amin Parties fiduciary duties in his capacity as an alleged joint venture participant in a joint venture for the development of 11 & 82 Woolgen [154] .

In the 2021 proceedings, Mr Alamin sought to defend the claim by reference to what is described as a ‘Wind Down Understanding’ said to have been reached between Mr Alamin and Mr Islam between about November 2020 and early 2021, having characteristics that [155] :
no further properties were going to be acquired by entities within the MH Group, and no new developments would be sourced and undertaken by entities within the MH Group;
the MH Group business would be progressively wound down following the completion of the existing property development projects being undertaken; and
each of Mr Alamin and Mr Islam would be permitted to undertake property development projects and opportunities on their own without the involvement of the other person (and the MH Group) going forward.
The projects identified under the Wind Down Understanding were 5 projects - one in South Australia (Harris Road Project) with the balance in New South Wales, being one at Leppington (Dickson Road Project) and the remaining three at Austral (Fourth Avenue Project, Gurner Avenue Project, and Boyd Street Project) [156] .
The Wind Down Understanding was said by Mr Alamin to have been communicated orally and in writing, and instigated by Mr Alamin for various reasons including assertions that Mr Islam was not undertaking tasks required of him as a co-director of the entities within the MH Group and not devoting his time and attention to the MH Group’s business activities [157] . Further, a final aspect of Mr Alamin’s defence was that there was a so-called change in the Wind Down Understanding in or about April 2021 in that he considered that the understanding needed to be revisited having regard to difficulties encountered by the MH Group with the MH Kelly development and the related legal proceedings. He pleaded that he took steps to bring the Woolgen Park Property opportunity to the MH Group in those circumstances [158] .
The plaintiffs pleaded details of what was said to be the life cycle of a joint venture between Mr Alamin and Mr Islam:
initially by reference to its inception having regard to the business model that I have described above, but otherwise in general terms [159] ;
identifying aspects of the conduct of the joint venture between 2015 and 2020 including the five projects (as identified above) [160] ; and
referencing the Wind Down Understanding and the 2021 proceedings [161] .
Mr Islam, whilst admitting certain acts undertaken by Mr Alamin put a different perspective on it and in any event denied the Wind Down Understanding [162] .

The plaintiffs pleaded that the JVA was varied (Varied JV) by the Settlement Deed such that Alamin and Islam and their respective associated entities (where relevant) agreed to [163] :
terminate the Joint Venture in respect of any future properties that either of them or their associated entities wished to acquire, subdivide and/or sell adopting a business model similar to that used by the Joint Venture or the JV Companies;
continue the Joint Venture in respect of existing JV Properties only; and
treat 11 & 82 Woolgen as if they were JV Properties, subject to the terms of the Settlement Deed, and to only release those properties from the alleged Varied JV upon payment to Islam of an amount described in the Settlement Deed as the ‘Settlement Amount’.
Connectedly, the plaintiffs pleaded that the so-called fiduciary and/or joint venture contractual duties continued until such time as the Settlement Sum was paid. Further or alternatively the plaintiffs contended that Mr Islam owed Mr Alamin and the various companies implied contractual duties under the Settlement Deed including a duty to act in good faith reasonably and for a proper purpose in respect of each other and/or the subject matter of the Settlement Deed and a duty to cooperate and to give Mr Alamin and each of the defendants the benefit of the Settlement Deed [164] .
Mr Islam denied that there was a variation of the so-called JVA, asserting that the material terms of the Settlement Deed were those appearing in clauses 1.1, 2, 3, 4, 5, 7. Expressly, he denied that the effect of the Settlement Deed was to treat 11 & 82 Woolgen as if they were part of the MH Group and/or any joint venture between Mr Alamin and Mr Islam [165] and further denied that the obligation of payment of the Settlement Amount was [166] :
contingent or conditional upon Signature Homes/Amin Co becoming the registered proprietor of 11 Woolgen or Amin Murooj becoming the registered proprietor of 82 Woolgen; and
payable from the property expected to be made by those companies from the acquisition, development and sale of 11 & 82 Woolgen.
Mr Islam denied that the fiduciary duties and/or contractual duties which was said to be continued in respect of the so-called Varied JV [167] .

In my view, when the fundamental requirement for granting rectification is a continuing common intention of the parties, it is of more assistance to concentrate on what is needed before an intention of the parties to a negotiation counts as a common intention. In my view, when that intention relates to the terms upon which they will contract with each other, it is still necessary for them to know enough of each other’s intentions for it to be said that there is a common intention. They might come to know of each other’s intentions in this way through those intentions being directly stated, or they might come to know of them through the various other means by which one person’s intention can become known to another person. Those means can sometimes involve a process of conscious and deliberate inference. Those means can sometimes involve simply perceiving a gestalt in a series of events. Those means can depend to some extent on the people involved sharing a common understanding of how particular bodies of knowledge or markets or social institutions they are operating in work — the experienced surgeon, or the experienced chess player, can sometimes see what another surgeon, or chess player, is seeking to do, in a way that an inexperienced person cannot. What matters for present purposes is that for a negotiating party to perform actions or say words from which the other party can gather his or her intention is itself a form of communication. Negotiation of any contract takes place in a context in which various facts are known or assumed by the negotiating parties. Sometimes, for example, if a contract is negotiated in a context where there are well understood business practices and conventions, and nothing is said about those practices and conventions not applying, it can be legitimate to conclude that both parties to the contract intended to act in accordance with those practices and conventions, even if they did not expressly communicate to each other that they intended to act in accordance with those practices and conventions. This view of what is needed before an intention is a common intention, accords, it seems to me, with the Australian case law since Joscelyne.

The above passage is saturated with exposition of legal principle expressed with practical insight (a hallmark of his Honour’s reasons for judgment generally). The notion of the parties having a common intention invites consideration of means by which the parties might know each other’s intentions. Leaving aside intentions being directly stated, there are various means by which one person’s intention can become known to another person. His Honour observed that those means can sometimes involve or depend upon:
a process of conscious and deliberate inference; or
simply perceiving a gestalt in a series of events; or
sharing a common understanding of how particular bodies of knowledge or markets or social institutions they are operating in work.
Generally speaking, it is impermissible to refer to matters which parties said or did after the contract was made as an aide to its construction. However, the conduct of parties may be admissible for purposes unrelated to construction, including in relation to rectification [189] .
A party seeking to demonstrate common intention (or refute it) is not necessarily limited to adducing evidence of facts prior to execution of the instrument. Evidence may be reduced to facts occurring after execution of the instrument from which inferences can be drawn as to the particular intention of the parties at the time the contract was entered into [190] .
The search for the actual intention is not circumscribed by reference to rules of evidence applicable to the construction of written contracts [191] . Evidence of a party of what he (or she) intended to convey by the written document is admissible [192] . However, assessment of the evidence requires caution because post-contractual conduct may provide no evidence of his intention prior to, and at, the time of execution of the contract but only of a later intention which may have been different [193] . Further, the weight of the evidence needs to be assessed carefully as there is a risk that the party may have convinced him or herself of an intention after the fact, which does not accord with the intention at the time of execution of the instrument.
The failure of a party to call a witness whose evidence is relevant to the issue may, in accordance with ordinary principles, give rise to the inference that the witness’ evidence would not have assisted the case of the party who could be expected to call her or him [194] . For example, the fact that somebody who was present during negotiations, such as a paralegal, is shown to have left at an early stage or was only present momentarily at stages during negotiations may, depending upon the particular facts, negate any such inference.

The rationale for granting rectification of a written contract in equity is grounded in unconscionability. The focus is on whether it is unconscientious for a party to a contract to seek to apply the contract inconsistently with what he or she knows to be the common intention of the parties at the time that the written contract was entered [203] .
Consistent with a basis on which equity acts, Mark Leeming observes that a document should not ordinarily be rectified in equity unless it is shown that there is an inadequate remedy at law [204] . This is not to gainsay that exceptionally, rectification may be granted in equity even where an error can be rectified as a matter of construction, out of an abundance of caution lest there be confusion [205] . In a sense, it is ordinarily the case that the court will construe a document before rectifying a document [206] . That is a question of proper approach. However, procedurally for decades in New South Wales (in appropriate cases), it has been permissible and consistent with the Court’s power to regulate its processes to ensure a just, quick and cheap disposition of the real issues in proceedings, [207] for rectification relief in equity to be claimed in the same proceedings as a claim for rectification by construction [208] .
Equitable rectification is historically and accordingly properly understood as being a remedy in respect of instruments generally rather than merely or only in respect of the sub-class of instruments represented by contracts or agreements [209] . That observation is relevant to our understanding of what is required – and in particular, what constitutes a sufficient common intention – to establish an entitlement in equity to rectification of an instrument*.*
For relief by rectification in equity, it must be demonstrated that, at the time of the execution of the written instrument sought to be rectified: [210]
there was an “agreement” between the parties in the sense that the parties had a “common intention”;
the written instrument was to conform to that “agreement”; and
the written instrument does not reflect the “agreement” because of a common mistake.
It is not necessary for communication of that common intention by express statement [211] , but it must be established that it is the parties’ true/actual intention, mutually held, as viewed objectively from their words or actions [212] . The ‘true/actual’ [213] common intention has often been referred to by intermediate appellate courts as the subjective intention [214] . That terminology is perhaps apt to create confusion with the fact that the court discerns intention objectively. Likely for that reason, the High Court in Simic preferred terminology of the ‘true/actual’ [215] common intention of the parties.
The requirement for an ‘outward expression of accord’ was not per se adopted by the majority of the High Court in Simic. Kiefel J addressed the question noting that Wilson J in Pukallus v Cameron appeared to prefer the view that such a ‘outward expression of accord’ was not itself a requirement for rectification but its absence may be evidentiary in the sense of bearing upon the question of whether the burden of proof can be discharged [216] .
The ‘true/actual’ common intention may be inferred from words and conduct. However, Kiefel J noted that a court does not merely accept what a party says was in his or her mind, but instead considers and weighs admissible evidence probative of intention. Further, such intention would be insufficiently proved by reference to a party’s state of mind which remained undisclosed in the course of negotiations [217] .
It should not pass without observation that in Simic the joint judgment referenced Mason J’s reasons in Maralinga v Major Enterprises at 350-351 and Campbell JA’s reasons in Ryledar at [182] and [185].
The parties’ intentions might have not been formed (or if formed might have varied over a period of time) prior to the final contract. A common intention might be formed either well in advance or any just before the time of contract. However, it is the final true/actual common intention i.e. the one present at the time of the execution of the written instrument sought to be rectified, which is critical [218] .
Campbell JA has observed that “equity does not enforce every passing intention that a person has [rather] it enforces intentions concerning certain subject matters, formed in certain circumstances, that come to be enforced in certain other circumstances” [219] .

Mr Castle SC also submitted that fiduciary duties may be owed by parties in a fiduciary relationship even though they had or have agreed to terminate their relationship.
An important case in this respect is the decision of the High Court in Chan v Zacharia [267] . In that case it was held that, in respect of a dissolved medical practice, Dr Chan, as a former partner of Dr Zacharia, owed him a fiduciary duty in respect of the partnership property [268] .
The basic facts were as follows [269] . From August 1979 the partners conducted a medical practice from premises in South Australia leased by Dr Zacharia. In November 1979 the owner granted a lease of premises to the doctors for three years (preoperative from 1 January 1979) with the lease containing an option for a further period of two years exercisable on or before 30 September 1981. In May 1981, Dr Chan gave notice dissolving the partnership and declined to join with Dr Zacharia in exercising the option. On 30 November 1981, before the affairs of the partnership had been wound up, the owner granted the lease of the premises to Dr Chan. In proceedings in the South Australian Supreme Court, Mitchell J declared that any interest acquired by Dr Chan in the new lease of the premises was an asset of the former partnership and held by him on constructive trust for the partnership. Her Honour’s decision was affirmed on appeal. The High Court rejected Dr Chan’s appeal.
The doctors’ partnership was regulated by a partnership agreement [270] and the provisions of the Partnership Act 1891 (SA). Gibbs CJ held the obligation of “perfect fairness and good faith” owed by the partners to one another continued after dissolution, so far as was necessary to wind up the affairs of the partnership [271] . In the result, his Honour held that Dr Chan was constructive trustee of any interest he obtained under the agreement for a new lease [272] .
Murphy J dissented, stating that it was not equitable to impose on Dr Chan a duty to join in the exercise of the option for a further term with a person to whom he was antagonistic and who was his adversary in litigation [273] .
Deane J analysed the matter by reference to the doctors each occupying two related and overlapping roles as regards the legal rights (including the option) under the lease. The first role was as a trustee of those legal rights, the second was as a member of the former partnership of which the beneficial interest in those rights was an asset [274] . His Honour regarded the first role of trustees plainly fiduciary involving fiduciary obligations in relation to the trust property [275] . In relation to the partnership relationship, his Honour considered, and rejected, the submission that Dr Chan’s role as a former partner was not a fiduciary one involving fiduciary obligations in respect of the property of the dissolved partnership [276] . His Honour acknowledged that whilst the relationship between the parties was curtailed and altered by the dissolution of the partnership, it did not cease but continued at least in respect of partnership property for the purposes of winding up the affairs of the partnership, noting that his partner remained under a fiduciary obligation to cooperate in and act consistently with the agreed procedure for the realisation, application and distribution of the partnership property [277] .
Brennan J agreed with Deane J that Dr Chan held the fruits of his conduct upon a constructive trust for those entitled to the property of the dissolved partnership [278] . His Honour reserved the question of whether concurrent fiduciary duties (as trustee of partnership property on the one hand and as a former partner on the other) were owed - it being unnecessary to decide the issue of whether certain presumptions arose, on the facts of the case [279] .
Dawson J, reinforced the notion that a fiduciary relationship continues for the purposes of realisation application and distribution of partnership property, stating as follows [280]

The extent to which every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement is debatable. The notion of such a universal term was in NSW expressly raised by Priestley JA in Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 at 268F-G. The authors of Cheshire & Fifoot cite Court of Appeal authority in which the court has been more circumspect in confirming such universal term [305] , instead regarding it as appeared to regard good faith as a generic term, implied in particular classes of contracts or perhaps even by criteria of ad hoc implication in specific contracts [306] .
For a term to be implied at law in a new category of case, it must be both reasonable and necessary [307] . In any event, as Giles JA observed, the inquiry, cannot be made in the abstract, because there may be exclusion by express provision or inconsistency with the terms of the contract on their proper construction and consideration of surrounding circumstances in the construction of the contract [308] .
Further, there is a question regarding the precise content of any obligation of good faith and reasonableness [309] . That is a disputable matter over which it is been said that there is a spectrum of opinion ranging from a view that good faith has no homogeneous meaning of general application to the view that it has an identifiable core meaning. However, there does not appear to be agreement regarding the so-called identifiable core meaning with one view and being a type of loyalty to the contract and another restraint on self-interest [310] . Even in this latter respect, whilst authors of Cheshire & Fifoot acknowledge that a duty of good faith has been implied in a significant number of cases that observed that more often than not, no breach of it has been found to have occurred, the reason being that such a duty would not constrain decisions and actions, reasonably taken as designed to promote the legitimate interests of the party [311] .
The distinction between a contractual duty of good faith from the duty imposed on fiduciaries is important. The authors of Cheshire & Fifoot state [312]

Mr Castle SC submitted there were an extensive number of allegations and submissions made on behalf Mr Islam that were not put in cross-examination to Mr Alamin, and produced a table outlining the “most significant statements”. This was done by reference to 14 italicised themes as follows (which I will nominate as theme contentions (TC) (i.e. TC1 … TC14)) [341] :
“Improper motives of Mr Alamin for bringing these proceedings, with the implication that his motives were improper and/or the claims made have no justification” (TC1).
“Repetition of the allegations made by Islam in the 2021 proceedings about deception and misconduct to suggest they had a proper basis to impugn Alamin and his credit” (TC2).
“Aspects of the first offer of 17.11.28 [sic] [342] (CB 4/5078) – it did not include 82 Woolgen, included a first payment of $250,000 and the balance was not subject to the settlement of the properties” (TC3).
“After the rejection of the 17 November offer, Alamin never sought to connect the payment of the Settlement Amount to settlement of the properties” (TC4).
“Alleged motive for settlement included seeking to avoid a lengthy cross-examination about alleged dishonesty” (TC5).
“Alleged wrongful motivation and alleged breach of the Settlement Deed in having APGM Ltd as the purchaser of 82 Woolgen, where the Put and Call Option was executed by Murooj. These allegations are collected under the heading “Breaches of the deed” in the DS” (TC6).
“Alamin’s failure to call his lawyers, and the probabilities of what they would have advised him, are contrary to his case about his understanding that payment was connected to the purchase of 11 & 82 Woolgen” (TC7).
“Alamin’s acceptance in cross-examination that he only considered the amount of pre-sales for the first instalment means that the settlement payments were not tethered to the purchase of 11 & 82 Woolgen” (TC8).
“Alamin told Islam that he had a variety of sources of funds, which Islam had recounted in evidence on multiple occasions” (TC9).
“The rectification sought by Alamin allowed him to avoid making a payment, by deciding not to proceed with the purchase of the properties” (TC10).
“Alamin not only failed to pay the amounts under the Settlement Deed sum, but did not demonstrate his capacity to pay at the time of seeking the lifting of the charge, to allow the 11 Woolgen financing to proceed in April 2023, and unreasonably failed to pay Islam money available from the Angle Vale project” (TC11).
“Alamin should be disbelieved generally because of the answers which he gave in relation to the questions asked about him in relation to whether or not he wanted the order for winding up” (TC12).
“Alamin has not attempted to demonstrate any loss and damage” (TC13).
“Alamin failed to give crucially important evidence about his ability to work with Islam in completing the work of the joint venture” (TC14).
The submission, which referenced GWE v Commissioner of the Australian Federal Police (2020) 103 NSWLR 509; [2020] NSWCA 247 at [83]-[86] essentially involved an alleged failure to comply with Browne v Dunn [343] .
The consequence for which Mr Castle SC contended is that the alleged ‘offending’ parts of DS3 and the transcript ought be ‘struck through’, and put aside from consideration by the Court of the competing submissions of the parties on the substantive issues in the proceedings [344] .

Mr Elliott SC says that the above is really the end of the matter and the TC2 complaint is an attempt to make further submissions on substantive matters.
During the hearing at least, both counsel appeared to be in “furious agreement” that there was no need for me to make findings regarding the allegations in respect of the earlier proceedings. It does not seem to me that I need to stray beyond that agreed basis. Mr Elliott SC did not ask me to make any positive findings of misconduct by Mr Alamin, and in light of the issues in the proceedings, there is no need for me to do so.
TC3: Mr Elliott SC submitted that a witness does not need “to have put to him what his own lawyer’s letters said in correspondence” [357] . There is no need for me to address whether that is universally true. Relevantly, in this case, I do not think that there is any relevant failure to cross examine on the terms of the 17 November 2022 offer.
TC4: Mr Castle SC submitted that Mr Alamin’s case is that the payment of the Settlement Amount was linked to the settlement of 11 & 82 Woolgen – not because this was discussed between the parties but because “this was the understanding on which the Settlement Deed was framed”. He says that it was open to Mr Elliott SC to cross-examine Mr Alamin on this understanding and “[h]aving failed to do so, Islam cannot seek any inference adverse to Alamin’s understanding, including the suggestion that Islam had refused to link the payments to settlement of the properties”. Mr Elliott SC says it was unnecessary to do so and, in any event, Mr Alamin was cross-examined quite directly about his understanding concerning how payment of the Settlement Deed amounts would be funded.
It seems to me that TC4 on any view does not assist Mr Alamin’s case. He has the onus of establishing, by clear and convincing proof, the case for rectification. Mr Elliott SC did not need to establish by inference or otherwise that Mr Alamin never sought to make the connection. It was enough for him to submit that no common intention had been established.
TC5: Mr Castle SC says that Mr Alamin was not cross-examined to the effect that he wished to avoid the spectre of a lengthy cross-examination about his alleged dishonest conduct. Mr Elliott SC says that there is no factual controversy, and that his submission cites “uncontroversial factual reality”. I do not agree with that. However, it seems to me it matters little. Mr Elliott SC did not need to establish that Mr Alamin’s motive the settlement with Mr Islam was to avoid cross examination (or some other reason). He did not ask me to make any finding to that effect. I do not propose to make any such finding. In light of that, TC5 does not assist either side.
TC6: Mr Castle SC objected to aspects of Mr Elliott SC submissions referencing conduct of Mr Alamin that involve misrepresentation or wrongdoing. Mr Elliott SC did not ask me to make any positive findings of misconduct by Mr Alamin, and in light of the issues in the proceedings, there is no need for me to do so.
TC7: Mr Castle SC’s complaint about Mr Elliott SC’s submissions in respect of failure to call his lawyers and the probabilities of what they would have advised him in a sense is beside the point. Mr Elliott SC did not submit that there was ‘Jones v Dunkel’ [358] issue. I do not propose to speculate about what the lawyers might have said nor regarding the probabilities of what they might have advised Mr Alamin. The point of note of Mr Elliott SC is that there was no evidence of oral communications of the parties’ lawyers and authorised agents regarding the negotiations, thus leaving an absence of direct evidence of outward expression of intention [359] .
TC8: Mr Castle SC took issue with the extent to which Mr Elliott SC pointed to answers given by Mr Alamin in cross-examination regarding what he considered would be the sources of funding for the Settlement Amount instalments. He submitted that

Mr Elliott SC submitted that this was yet another attempt by Mr Castle SC to make submissions on substantive matters and should be ignored.
Mr Elliott SC’s initial submission at DS3 [53(a)] regarding presales was in respect of the first instalment payment. I considered Mr Alamin’s evidence on that issue (monies for the first payment) to be clear, as submitted by Mr Elliott SC. I do not accept that the evidence bears out Mr Castle SC’s contention that Mr Alamin would not have agreed to make the first instalment payment unless it was certain that settlement would occur. In any event, even assuming the Mr Castle SC’s submission was correct, it falls a long way short of demonstrating that Mr Islam perceived that “fact” or understanding as part of a gestalt and further agreed that the Settlement Deed and its terms should be consummated on that basis.
TC9: Concerning sources of funding, Mr Castle SC referenced the submissions of Mr Elliott SC, namely as to what Mr Islam says that Mr Alamin told him about sources of funding (DS3 [59]) and whether it was true or not (DS3 [60]). I accept, as Mr Elliott SC submitted, that it is not necessary for him to have put to Mr Alamin a matter about evidence Mr Islam gave (particular in circumstances where he was cross examined after Mr Alamin). It was not necessary for Mr Elliott SC to establish or prove whether Mr Alamin was correct or not in what Mr Islam says he was told by Mr Alamin, at least on this issue. I accept Mr Islam’s evidence that he was either told by Mr Alamin or believed that Mr Alamin had a variety of sources of funds.
TC10: On this particular theme, counsel were at odds even as to whether Mr Elliott SC had even made such submission.
Mr Castle SC’s referenced a submission that “Mr Alamin simply decides to cause his companies not to proceed with the acquisitions and to pursue other opportunities instead.” That was purportedly an extract out of DS3 [60]. Mr Elliott SC rightly responded that he had made no such submission in DS3 [60]. Indeed no such precise submission appears in Mr Elliott SC’s oral submissions.
Nonetheless, Mr Elliott SC did in addressing the utility of the proposed rectification make the observation that the effect of the rectification would leave the payment date for the Settlement Amount instalments uncertain and unspecified [361] . Further, he made the point that the purported rectified term would be confusing and convoluted “if one company acquires land and the other does not, or what is to happen if Mr Alamin simply decides to cause his companies not to proceed with the acquisitions and to pursue other opportunities instead” [362] . In oral submissions he noted that “Mr Alamin could simply avoid the payment by saying, “Well, I just won’t proceed”” [363] .
Mr Castle SC surmised that Mr Alamin could have responded to the matter in a particular way

I accept that Mr Castle SC did seek to lead evidence as to loss and damage. That, I assume obviates a need to consider tender of MFI-9. However, to the extent necessary, I formally decline any tender of MFI-9. In any event, finding that some evidence has been led which may bear upon loss and damage of course does not mean that such evidence as he did lead justifies prior findings that there is some legal obligation in Mr Islam to pay or compensate the plaintiffs for loss and damage nor does it mean that some particular finding regarding loss and damage must be made.
TC14: The final contended theme focused upon DS [125(e)(iii)]. Mr Castle SC contends that Mr Elliott SC was careful (at T137.11-138.45) to ask questions only about past cooperation and Mr Alamin was never asked whether Islam would be a help or a hinderance in the future in terms of completing the projects.
Mr Elliott SC noted that it was put to Mr Alamin as a matter of general proposition, that when it comes to the MH Affordable business and providing the service to the community, he has been able to put aside his differences with Mr Islam (T 137.12-.22). He submitted that the evidence did not demonstrate that Mr Alamin would take a different position going forward, and as such, no further questioning was required. That submission appeared to accept that Mr Alamin would, if necessary, cooperate to do certain things for the purposes of completing projects. I am not quite sure whether Mr Castle SC disputes that.
What is not so straightforward is exactly how it might work. Mr Castle SC cross-examined Mr Islam regarding completion of remaining works in respect of 3 outstanding projects [365] . Part of that cross-examination was seemingly premised on the basis that it would be better for Mr Alamin to do all the work and be in full control rather than have a liquidator appointed. Mr Islam did not agree with that proposition [366] .
He then later returned to the topic and the evidence included [367]

On 2 September 2015, MH Affordable was incorporated, with both parties as directors with 51% of the shares held by Mr Alamin and 49% by Mr Islam [368] .
Mr Alamin and Mr Islam then conducted business in accordance with the Islamic Shariah Law, which prohibits the charging of interest [369] .
Subsequently, Mr Islam and Mr Amin incorporated a number of companies of which they were directors to develop various projects [370] .
In the context of the first project (Fourth Avenue Project) Mr Islam accepted that he considered Mr Alamin to be his partner in the project [371] .
Initially Mr Islam resisted the notion that Mr Alamin was responsible for legal matters for the MH Group. He indicated that they both discussed matters though Mr Alamin “was the communicator by email” [372] . Later, Mr Islam accepted that, so far as the division of responsibility occurred between them, he had a primary focus on sales and marketing, and Mr Alamin had a primary focus on legal matters [373] . I did not understand “primary focus” to mean that there was necessarily a total exclusion from the other roles (e.g. Mr Islam attended as a director to signing documents). Mr Castle SC contended that Mr Islam’s role in the business was essentially sales and marketing and that Mr Alamin “was really the person managing it day-to-day and on top of all aspects” [374] .
It appeared that both gentlemen liaised with Mr Dewan (McCabes) in relation to legal matters for the joint-venture prior to July 2021 [375] .
Mr Castle SC contended that Mr Islam engaged in Forex trading on behalf of himself and others whilst doing activities in relation to the MH Group business, which resulted in a loss [376] . Mr Islam’s affidavit indicated he invested his own funds, and some of his relatives and friends have invested their funds, on his recommendation, into a foreign exchange trading platform. He said he did not recall any issues ever being raised by Mr Alamin as to his involvement in this until around mid-2021 [377] . He (personally) made a loss [378] . I do not accept Mr Castle SC’s contention, if he intended by it, that Mr Islam was engaging a significant amount of time that ought to have been devoted to the business. Mr Islam’s evidence was that the investing did not take a long time and there was really no precision about when he was doing it.
Typically, the business is described as one which purchases blocks of acreages of land which are mostly sold prior to the commencement of the subdivision of the land, with the proceeds being used to fund the development and to purchase other such properties [379] . This model is used to provide a purchase option to members of the Islamic community in accordance with Islamic Shariah Law [380] . The agreements with the customers are typically “Ijarah Lease” agreements where the customer first pays a deposit, then monthly instalments towards the land price once the development of the property commences, until the balance is paid [381] .

On or about 5 June 2017, MH Kelly entered into a contract to purchase a property at the Boyd Street property for the sum of $12,500,000. It paid $3.875 million, including a deposit of $1.25 million, to the vendors of the property. In late December 2018, the vendors terminated the contract for the Boyd Street property due to the delay in payment of an instalment of the purchase price and forfeited the entire sum of $3.875 million already paid by MH Kelly. Following the termination, MH Kelly commenced proceedings in this Court against the vendors, seeking relief against forfeiture of the sum of $3.875 million less 10% deposit (MH Kelly Proceedings). Simultaneous with the proceedings, MH Kelly sought to negotiate to re-purchase the Boyd Street property from the vendors. During the period between entry into the contract in June 2017 and its termination in December 2018, MH Kelly presold approximately 30 proposed subdivision lots in respect of the Boyd Street property and received payments in excess of $7 million on account of deposits and instalment payments for the presold lots [382] .
Mr Alamin sent to Mr Islam a number of text messages expressing his concerns about Mr Islam’s lack of input in comparison to that of Mr Alamin. Such messages are dated 8 February 2019; 7 May 2019; 8 August 2020; 21 September 2020; and 15 November 2020 [383] .
Mr Alamin’s pleading in these proceedings asserted (and Mr Castle SC contended [384] ) that at least since mid-2020 the relationship between the gentlemen had broken down and that the mutual trust and confidence essentially since then had not existed. Mr Islam’s defence admitted that Mr Alamin had acted in a way inconsistent with the existence of any relationship of trust and confidence but denied the fact of breakdown [385] .
Mr Alamin’s evidence raised complaints regarding Mr Islam undertaking tasks from mid-2020 to June 2021 [386] . The cross examination of Mr Islam by Mr Castle SC regarding a fractured relationship actually focused upon emails in 2023 [387] . Certainly in July 2021 when Mr Alamin acted to remove Mr Islam as a director of MH Affordable, I accept that there was some breakdown which was significant no later than July 2021 and that it likely emerged or developed from about mid-2020.
On 5 March 2021, Mr Islam messaged Mr Alamin as to strategy in respect of the Boyd Street property. On 6 March 2021, Mr Alamin asked him about his thoughts and shortly thereafter Mr Islam messaged him suggesting they start another project of three to five acres to minimise their loss for MH Kelly [388] .

On 6 March 2021, Mr Alamin caused Signature Homes to enter into the 11 Woolgen Contract, with a completion date of within 365 days of the contract date and a deposit amount of $463,700 [389] .
On or about 19 March 2021, a 5% deposit (in the sum of $231,850) was paid [390] .
On or about 19 April 2021, Mr Islam had a conversation with Mr Alamin and was told about the possibility of purchasing 11 Woolgen from Rajiv Mamu as a solution to their loss of the Boyd Street property [391] .
On 26 April 2021, the MH Group launched a marketing campaign for the sale of the 11 Woolgen lots [392] . Mr Castle SC contends that Mr Islam was involved in the marketing of 11 Woolgen and knew that there had been a very significant number of presales and that substantial instalment amounts were available in respect of it [393] . I accept that Mr Islam was aware that the MH Group was involved. However, Mr Islam’s response in cross-examination regarding knowledge of presales was to the effect that as at December 2021 he assumed there was a very significant number of presales and the very substantial instalment amounts were available in respect of it [394] . However, he denied that it was on that assumption that he was prepared to give Mr Alamin time to pay $3.5 million in the 19 November 2022 offer [395] .
From 19 May 2021, MH Woolgen started to receive deposits for the purchase of lots at 11 Woolgen [396] .
One of the issues in the 2021 proceedings was that Mr Islam believed that Mr Alamin had been hiding information from him about 11 Woolgen. Mr Islam says initially, he was not aware that MA Signature had purchased 11 Woolgen and that Mr Alamin was involved in the company, but found this out later after searching the records of MH Group [397] . Mr Islam says he was perplexed about why Mr Alamin was trying to sell the property to MH Group for over $7 million when it was purchased for $4.6 million [398] . However, Mr Alamin believed that this was a fair ‘market price’ for the property [399] .
On 11 June 2021, Mr Islam claims that he had a conversation with Mr Alamin, who did not tell him the truth about having an interest in Signature Homes [400] . On this day, both Mr Islam and Mr Alamin signed the contract of sale to purchase 11 Woolgen for $7 million on behalf of MH Woolgen, in circumstances where Mr Islam was informed that it was the last day to pay the 5% deposit, and where he claims that he feared for the state of the MH Group [401] . Further, the balance of the 5% deposit of $231,850 on the 11 Woolgen Contract was paid [402] .
Under the June Sale Agreement, the ‘Purchase Price’ was $7 million (comprising a ‘Deposit’ ($700,000), “1st Instalment” ($4,173,300) and a ‘2nd Instalment’ ($2,126,700)) [403] .
Mr Castle SC contended that the June Sale Agreement would have the effect of transferring the 11 Woolgen Property to MH Woolgen in 18 months’ time [404] .
Mr Castle SC contended that Signature Homes would engage in development activities known as the “Land Costs” including, if possible, obtaining a development consent for the 11 Woolgen Property, and would, in effect earn $2-3 million in revenue for the “first part of the profit” and thereafter, MH Woolgen would be responsible for and earn profit from the second stage of profit known as “Development Costs” by doing the construction and outworks required for the 11 Woolgen Property [405] . The reference does not make that out. Mr Elliott SC objected that it is no part of this case for Mr Alamin to seek to be defending the validity or otherwise of this previously impugned transaction [406] .
By reason of use of the initials “MA” (for Mohammad Alamin), Mr Castle SC contended that Mr Islam knew or ought to have known that “MA Signature Homes” was affiliated with Mr Alamin [407] . He says he was not aware at the time. I accept that he was not actually aware.
On 25 June 2021, Mr Alamin sent a message to Mr Islam complaining about his lack of contribution to the business, and proposed that he wanted to work on partnership 65% in his favour and 35% in Mr Islam’s favour [408] , with the consequence of not doing so resulting in him charging $1,000/hour + GST for every hour worked over the hours performed by Mr Islam. Mr Islam did not respond [409] . Mr Islam received another message along the same premise, stating that Mr Islam would no longer receive a salary. Mr Islam again did not respond [410] .
Mr Castle SC submitted that by 30 June 2021, the closing balance for the MH Woolgen Westpac account was $674,341.63 [411] .
Further, he contended that the total amount of instalments expected for the presale was and would be substantial, and that Mr Islam knew that there were significant sums of money that would flow through once the 11 Woolgen transaction was settled [412] . I accept that as at December 2021 Mr Islam had looked at the prepayment amounts. However, he says that he believes that from about July 2021 clients were directed by Mr Alamin to make payments to Mr Alamin’s companies instead of to the MH Group [413] . I accept that was his belief.
In cross-examination, Mr Islam accepted that if 11 Woolgen was not settled, the presale monies would have to be returned to investors [414] .
After issues with financing for the Boyd Street property held by MH Kelly, the property settled on 14 July 2021, with the shortfall financed by Pacific 8 [415] .
Mr Castle SC contended that the June Sale Agreement did not ultimately proceed because Mr Islam changed his mind on the $7 million purchase price and the 10% deposit of $700,000 was not paid by MH Woolgen [416] . The second reference cited for this proposition is a text from Mr Alamin to Mr Islam on 15 July 2021.
On 15 July 2021, Mr Alamin messaged Mr Islam [417]

By early evening, a draft “Heads of Agreement” [462] (handwritten on McCabes file note paper) had been prepared and contained 17 points, 16 of which appear to have been in the handwriting of one of the legal representatives (unidentified) with the final 17th point mostly in other handwriting but with the concluding few lines seemingly in the same handwriting as the 16 other points.
Mr Islam states that that document was taken by Mr Alamin’s legal representatives and later, at 6.43pm, Cordoba Legal emailed it to McCabes [463] .
Mr Castle SC contended that the Heads of Agreement do not include an exception for financing, had a settlement sum of $3.25 million, had payment in arrangements by way of instalments, included a provision that each party would bear their own costs in relation to the 2021 proceedings, and did not include the ability to obtain finance to complete the purchase of 11 Woolgen [464] . That much can be accepted.
Further, he contended that:
the Heads of Agreement instalments were less in amount than the 19 November 2021 Offer and provided a longer payment period, as they took into consideration the need to settle 11 Woolgen to enable access to pre-sale monies from the sale of lots in the 11 Woolgen [465] ; and
calculation of the Heads of Agreement instalments were made on the basis of how much money could be made available from 11 Woolgen, having regard to purchasing the property and accessing the pre-sale money [466] ; and
the proceeds for the Settlement Amount of $3.25 million could only have come from 11 Woolgen [467] .
Certainly, the first two instalment amounts were less than the 19 November 2022 offer and all three payment dates were broadly speaking more distant than the 19 November 2022 Offer. However, the proposition that “they took into consideration the need to settle 11 Woolgen to enable access to pre-sale monies from the sale of lots in 11 Woolgen” was not agreed to by Mr Islam. His evidence is as follows [468]

The footers of the Settlement Deed each had a number followed by an indication of the version. The Settlement Deed at 9.22am had “v1”; at 12.47pm also “v1”; at 1.38pm “v3”; and at 2.54pm “v4” [495] . The draft which is “v2” of the Settlement Deed is not in evidence.
Mr Castle SC spent time focusing on the omission/removal of cl 7(b) from the draft of the Settlement Deed at 1.38pm from the earlier draft at 12.47pm and made various submissions regarding this.
He contended that in the process of rapid exchange of “multiple drafts”, cl 7(b) was omitted unintentionally. He says that I should reject Mr Islam’s evidence that there was (at 1.38pm) intentional non-acceptance of Mr Amin’s proposed cl 7(b) in the 12.47pm draft and that I should find that there was a mistake in its omission [496] . Further, he submitted that the omission of “v2” of the draft of the Settlement Deed from evidence compelled an inference that the omission was mistaken [497] .
Mr Elliott SC’s submissions addressed Mr Amin’s proposed cl 7(b). Essentially, he submitted that the omission was not a mistake. Rather, the proposal by Mr Alamin’s lawyers (which Mr Castle SC accepted [498] ) had been intentionally rejected by Mr Islam who did not wish to weaken his security position [499] .
One possibility which I raised during submissions is that “v2” was the tracked version of the draft at 1.38pm and “v3” was the version in which the track changes had been accepted. However, Mr Elliott SC noted that some changes had been accepted and others not [500] . In final submissions Mr Castle SC sought to take some comfort from my raising of a possibility that perhaps a marked up version was “v2” and a clean version was “v3” [501] .
In any event, I reject the notion that the absence of “v2” of the draft Settlement Deed compels a finding that the omission of Mr Amin’s proposed cl 7(b) was a mistake. It was available to either party to either adduce “v2” or explain its absence from the evidence. Neither party did so.
As to whether the omission from the ultimate form of the Settlement Deed was otherwise a mistake, it was proposed by Mr Alamin’s representatives and omitted in the next draft by McCabes. In light of Mr Islam’s evidence, which I accept on this issue, his assertion in this regard is not inherently unbelievable. I see no reason why I am compelled to find its absence was a mistake.

Mr Castle SC contends that by December 2021, Mr Islam knew that the majority of the lots in 11 Woolgen had been exchanged or were likely to exchange in the next few months [511] . Initially, Mr Islam appeared to accept that that was a reasonable assumption [512] . When Mr Castle SC later returned to the topic, Mr Islam’s responses regarding available monies were qualified in terms of the various different projects.
There is evidence that as at December 2022, Mr Alamin was looking into options to finance the 11 Woolgen project. For example, on 9 December 2022 at 10.46am, Mr Alamin sent to Andrew Kingston of Pacific 8 (a financier), an email attaching documents for 11 Woolgen and seeking a loan of $4.3 million. [513]
On 5 December 2022, Mr Islam registered several PPSR charges over Mr Alamin and his interests in associated companies. The charge was second ranking after Centuria Bass [514] .
It will be recalled that Mr Alamin’s evidence is that his proposed offers were on the basis of 11 Woolgen settling on 15 December 2022 [515] . No such settlement occurred on that day [516] .
On 22 December 2022, Mr Islam’s solicitors sent a letter to those of Mr Alamin, reminding them of their client’s obligations under the Settlement Deed to pay the first instalment amount of $350,000 by 31 December 2022 [517] . In response to this letter, on 23 December 2022, Mr Alamin’s solicitors stated that the payment term in the Settlement Deed was predicated on the completion of the contract of sale for 11 Woolgen, and that due to difficulties in obtaining the required short fall of funds, completion would not be likely to occur before February 2023. Accordingly, they requested for an extension of the payment of the first instalment until 15 February 2023 [518] .
The 15 February 2023 settlement statement for 11 Woolgen, shows the balance amount payable as $3,853,300. Mr Castle SC contends that the settlement statement demonstrates payments to the 11 Woolgen Vendors totalling $1,283,700 (Payments to 11 Woolgen Vendor****s) [519] . I accept that the difference between the total purchase price of $5,137,000 and the deposits and instalment payments made of $3,853,300 = $1,283,700 (though see MFI 9 where the figures total $1,283,730).
On 22 February 2023, Mr Alamin caused Signature Homes/Amin Co to obtain financing with Centuria Bass for $4,014,000 to finance the purchase of 11 Woolgen. The finance was to be secured by a first ranking mortgage over 11 Woolgen [520] . Mr Castle SC asserts that it was Shariah Law compliant [521] .
On 3 March 2023 at 12.12am, HWL Ebsworth Lawyers (HWLE) sent an email to Mr Alamin and other parties indicating that the PPSR registration in favour of the Islam Trust must be discharged so that Centuria Bass’s security registration on settlement is first ranking [522] .
On 9 March 2023, Cordoba Legal advised Mr Alamin that they ceased to act for him as of 22 December 2023 [sic] [523] .
On 4 April 2023 at 1.56pm, HWLE sent another email to multiple parties saying that with regard to the PPSR registration, it would be helpful for a partial release to be signed [524] .
On 21 April 2023, Origin Lawyers (Mr Alamin’s then solicitors) sent to McCabes (acting for Mr Islam) a without prejudice email, seeking execution of the Settlement Deed with regard to a removal of the PPSR charge, and noting that Mr Alamin may have to commence proceedings if the PPSR charge is not removed [525] .
Mr Castle SC contended that on 8 May 2023, Mr Khan, accountant for the MH Group, advised Mr Alamin and Mr Islam that, amongst other things, resolutions would be required to be prepared for distribution of the profit from MH Angle Vale to them [526] .
On 12 May 2023, these proceedings were commenced and there was a listing before Slattery J on 24 May 2023 [527] .
Mr Castle SC contended that a suggestion was made by Slattery J that Mr Islam temporarily uplift the PPSR charge (the Withdrawal Suggestion) which was rejected on the basis that Islam wanted payment in full [528] . The relevant part of the Slattery J hearing transcript appears to be at P7 [1274]. Mr Castle SC contended that [529]

On 23 August 2023 (as noted above) the resale of 11 Woolgen to Ms Letta was completed. Mr Castle SC contended that the $1,283,700 had been forfeited [532] . Certainly, that figure appears to have been claimed as a loss [533] . However, Mr Castle SC during the hearing indicated to me that there was a separate legal case in which there was an attempt to recover those payments [534] . I do not know what has happened in relation to that case and whether any part of that sum has been able to be recovered.
On 25 September 2023, the Put and Call Option Deed for 82 Woolgen was exercised by Mr Alamin on behalf of Amin Murooj and the contracts were exchanged, with the completion date being 6 November 2023 [535] .
On 24 November 2023, APGM was registered by Mr Alamin to purchase 82 Woolgen, Mr Alamin negotiated with the vendor, on or around 1 December 2023, a contract was entered into between APGM and the vendors to purchase 82 Woolgen, which was completed on 21 December 2023 [536] . Mr Alamin seemingly accepted that APGM, should, in effect, take the place of Amin Murooj in the Deed though stating “is not liable to pay the Settlement Amount in the Deed as the 11 Woolgen property was not purchased and therefore profits are not able to be generated from that development” [537] .
Mr Castle SC addressed various of the projects noted in Mr Islam’s affidavit [538] . He contended that the:
Fourth Avenue Project has 3 unsold lots and is awaiting sewer connection [539] .
Gurner Avenue Project has 13 lots remaining to be sold [540] . I note that Mr Islam’s evidence suggested that there were (or may be) more than 13 unsold lots [541] .
Boyd Street Project has been sold and an amount of funds generated from presale of lots remain in the Court’s trust account [542] .
Harris Street Project is complete and awaiting final distribution of profit [543] .
Dickson Road Project has 2 to 3 lots remaining to sold and is awaiting council rezoning so that a development application can be submitted [544] .

Mr Elliott SC made a number of preliminary points regarding the claim for rectification. He noted the shifting and confusing way in which the claimed “common intention” qualification on the payment of the instalment amounts was put. He emphasised that differing qualifications had been advanced by Mr Castle SC, which were different from the claim for relief in the ASC, predicated on Signature Homes/Amin Co and Amin Murooj respectively becoming registered as proprietor of 11 & 82 Woolgen [575] . This included the notion that payment should be precluded by injunctive relief “other than from profits earned by those companies from the acquisition and development of the properties” [576] and the payments were connected to the “completion of the development” of the properties [577] .
More specifically, Mr Elliott SC advanced 8 reasons as to why the rectification claim ought to fail.
First, cl 4(b) is unconditional [578] .
Secondly, the payment of the instalments was strict, with time being of the essence [579] , and further, default in the first instalment triggered payment of the full amount [580] .
Thirdly, Mr Alamin failed to lead any evidence as to the actual communications between the parties’ lawyers and authorised agents present during the negotiations, leaving an absence of direct evidence of outward expression of intention [581] .
Further, to the extent that Mr Castle SC (or Mr Alamin) contended that there need not be any communication of intention, and that it will be sufficient merely to prove that each party held an intention, uncommunicated to the other, with the intention arising from a gestalt, Mr Elliott SC submitted that this involves a misreading of Ryledar and was contrary to the High Court decision in Simic [582] . He submitted that this is not a gestalt case [583] .
Fourthly, there is no corroborating witness to Mr Alamin’s evidence as to what he claims to have been raised and discussed internally by him within his own negotiating camp [584] and regarding his assertions as to how the clauses operated [585] .
Fifthly, Mr Alamin’s uncorroborated evidence was found wanting when tested through cross-examination, with his answers in the witness box demonstrating that he probably did not hold the intention he had asserted in his affidavit. The evidence of past dealings showed a typical approach whereby presale monies were received and spent well before settlement of the underlying contract to purchase land with an inherent risk being taken by spending that pre-sale money away without having secured actual ownership of the property, in the hope or expectation that settlement would later eventuate. This risky business, but one the parties pursued time and again, which is contrary to the gestalt case. Elaborating on this, Mr Elliott SC stated that [586] :
Mr Alamin admitted that all he considered at the time of entering into the Settlement Deed was the amount of money he would make from 11 Woolgen presale payments, not only in respect of the first instalment [587] (see above) but in respect of all instalments [588] , in a context where: (a) receipt and spending of presale payments was quite temporally disconnected from the completion of purchase of the land and he was not even thinking of those moneys as being his only source of funds to pay Mr Islam [589] ; (b) he had funds available to him through MH Affordable and its other projects, his other business interests and family and friends [590] ; (c) the prospect of not purchasing 11 Woolgen had not even occurred to him as a possibility [591] ; and (d) if 11 Woolgen was not being purchased in March 2023, he “would have to take out a loan to pay” the settlement amount to Mr Islam, but never did [592] ;
his attempt to explain his understanding of the payment obligation in cl 4 of the Settlement Deed being conditional in the way he alleges in the proceedings, by reference to clause 8 (the caveat clause) was unconvincing, and unlikely to reflect what he actually thought at the time [593] , he ultimately conceding that the caveat provision was only concerned with a caveat that would exist after settlement of the purchase of the property had occurred [594] ; and
Mr Alamin’s agreed to settle on the best terms he could, backing himself to be able to come up with the money needed within the stipulated time frames and was motivated by avoiding the risk of liquidation of the MH Group companies and associated community shame [595] .
Sixthly, the contended rectification is contrary to the objective evidence both by reference to prehearing proposals (in circumstances where Mr Islam had squarely rejected a proposal which sought to link payment to the future events concerning these two properties), he (Mr Islam) having no ability to control what would or would not happen in relation to the purchase of those properties going forward, the initial handwritten document, subsequent draft deeds and the executed Deed itself [596] .
Seventhly, Mr Islam’s evidence was that he did not hold the alleged intention and he was simply concerned to be paid. Mr Alamin had spoken to Mr Islam over time in terms which indicated that Mr Alamin had a variety of sources of funds. However, Mr Islam was indifferent to where Mr Alamin would source the funds for payment of the instalments and in any event was in no position to control what would occur in respect of 11 Woolgen [597] .
Eighthly, the alleged conditionality of the payment obligations are unclear, confusing and convoluted such that rectification would not be ordered. The uncertainty including what were to happen if: (a) one or other of 11 & 82 Woolgen was acquired by the relevant company and the other does not; or (b) Mr Alamin simply decided to cause his companies not to proceed with the acquisitions and to pursue other opportunities instead. Mr Elliott SC submitted that it was unlikely Mr Islam would have given up his rights to clear and timely payment by reference to the above and unknown risks potentially postponing payment forever [598] .

Mr Elliott SC made various submissions to refute Mr Alamin’s claims that Mr Islam is obliged to postpone his charge. In summary, Mr Elliott SC contended that:
the claims were misconceived or constructed, and not due to any legal rights but rather other factors such as Mr Alamin’s own convenience [599] .
Mr Alamin delayed in making such claims with the first communication seeking removal of the charge occurred in March 2023, being well over three months after the execution of the Settlement Deed [600] and in a context in which the Amin Parties were in breach of the Settlement Deed, including transferring his shares in Signature Homes/Amin Co to MSAA Family on 15 February 2023 [601] .
Mr Alamin indicated that he could borrow to pay the Settlement Amount [602] , he had not provided any details about presale amounts or his own resources so as to give any credible clarity about what precise sum was needed to complete the purchase of 11 Woolgen [603] , and he had rejected alternatives such as monies from the MH Angle Vale project [604] .
Mr Elliott SC says that in the above circumstances, and additionally where Mr Alamin had not paid any money (not even “one cent” [605] ) Mr Islam was not only entitled to refuse to withdraw his charge but actually to enforce it [606] .
Separately from the points which I have addressed above, namely whether Mr Amin’s proposed cl 7(b) was omitted by mistake or intentionally rejected by Mr Islam, Mr Elliott SC spent some time emphasising the distinction between the work done by cl 8 and cl 7. He contended that Mr Amin’s proposed cl 7(b) is directed to a different issue to cl 8 (as Mr Alamin conceded in cross-examination), namely the confirmation as to the status of the charge granted in cl 7 and how that charge would be recognised on title following any successful acquisition of the properties yet to be acquired and a limited exception to the ongoing maintenance of the caveat following any such acquisition [607] .
Mr Elliott SC otherwise relied upon his earlier submissions (appropriately adapted) addressing the rectification claim regarding cl 4 [608] .

Mr Elliott SC indicated that it was important to understand the nature of the 2021 proceedings in order to properly appreciate the context for the Settlement Deed [609] .
First, he described those proceedings as: complaints by Mr Islam regarding misconduct of Mr Alamin in respect of the conduct of the affairs of the MH Group having various effects; his purported removal as a director; the misallocation of shares so as to favour Mr Alamin over Mr Islam; and the secret taking by Mr Alamin of MH Group assets and opportunities, in particular bearing upon 11 & 82 Woolgen [610] . Expressly, he did not invite me to make findings regarding or proceeding upon the basis of the correctness of the allegations [611] .
Secondly, regarding 11 Woolgen, he contended that:
Mr Islam’s understanding as at the time of the 2021 proceedings regarding presales from 11 Woolgen was based on his information as at June 2021 [612] ;
Mr Islam investigated his suspicions regarding Mr Alamin’s conduct with the result that in July 2021: Mr Alamin put the purchase of 11 Woolgen on hold; he purported to remove Mr Islam as a director of MH Affordable and other companies; and he withdrew his company from the June Sale Agreement [613] ;
the cross-examination of Mr Islam regarding his knowledge of presale monies in respect of 11 Woolgen was, in the above context, ill-founded because he did not know what had happened after June 2021, having been excluded from involvement [614] ; and
From June 2021, Mr Alamin dealt with 11 Woolgen as if it was his own property and used his own companies to seek to proceed with it [615] .
Thirdly, he contended that Mr Islam’s discovery after bringing the 2021 proceedings that Mr Alamin had used Amin Murooj to purchase 82 Woolgen and presale amounts from 11 Woolgen, and Mr Alamin’s claims as to why he acted the way he did (set out in evidence in the 2021 proceedings and in these proceedings) formed important context for the negotiations in respect of the Settlement Deed [616] .
Fourthly, he referred to and highlighted various aspects of the various offers that had been made prior to the commencement of the 2021 Proceedings [617] . He emphasised that: (a) the notion of 11 Woolgen being held on trust or connecting payment of some amount with settlement of any property was rejected and never raised again; (b) at no stage had Mr Alamin offered to bring 82 Woolgen into the MH Group; and (c) payment of the initial instalment amount was in any event imminent and not subject to settlement of the property purchases [618] .
Further, he stressed that Mr Alamin did not wish for a winding up to occur [619] .
Fifthly, he stressed that at no point during the negotiations did Mr Alamin seek to reintroduce any condition that linked payment of the Settlement Amount to settlement of any land purchase [620] and Mr Alamin’s attempt to introduce the new cl 7(b) had been rejected [621] .
Sixthly, he referenced various breaches of the Settlement Deed by Mr Alamin including the incorporation of APGM [622] .

Otherwise in reply, Mr Castle SC:
contended in part by reference to P4 (Tab 2 [223]-[227]) that Mr Islam knew that contracts for the majority of the lots had already been exchanged or were likely to be exchanged, knew details of the clients who had booked or made payments in what was in the bank accounts [628] .
took exception to what he contended were serious attacks against Mr Alamin regarding wrongful division of funds and breach and not paying monies to him without being put to Mr Alamin. He emphasised the seriousness of findings regarding dishonesty [629] .
disputed that the extension of time regime was problematic, asserting that Mr Alamin was subject to fiduciary and contractual duties, had a very clear incentive to complete as quickly as he could, was subject to the security provisions under the Settlement Deed, and felt an obligation towards the purchasers/customers in a context in which the parties relationship was not ending but one of working together [630] .
accepted that cl 8(a) addresses the point of time after the Amin Parties become registered as proprietor of 11 and/or 82 Woolgen, and accordingly cl 8(b) does likewise. However, he says that it is a mistake to assume that Mr Amin’s proposed cl 7(b) charge would be recognised on title following any successful acquisition of the properties, because cl 7 creates an immediate charge and operates immediately and so extends to purposes under c 6(ii) not only to refinance but also to finance and encumbrance [631] .
submitted that, in cross-examination, Mr Alamin suggested that the instalment payment obligations in cl 4 were in some way tied to the caveat provisions of cl 8 [632] . Mr Elliott SC directed Mr Alamin’s attention to the provisions of cl 8, inviting him to accede to the proposition that he understood that Mr Islam could only lodge and maintain a caveat over the two properties after Mr Alamin’s companies had become registered proprietors cl 8 had nothing to do with the Amin parties obtaining funds to complete the purchase of either property [633] . Mr Alamin gave conflicting answers. Initially, he indicated a caveat could be lodged before his companies became registered proprietors [634] , a little later he accepted it could only happen after his companies had become registered proprietors [635] , then he reverted to his earlier position (namely a caveat could be put on prior to the Amin parties becoming registered as proprietor of the properties) [636] , then he accepted that a caveat could be lodged only once his companies became registered proprietors of the properties [637] , before finally reverting to the position that under cl 8, a caveat could be lodged at any time [638] . Contemporaneous with that vacillation, at several points he asserted (non-responsively) that cl 8 was put in to give him an opportunity to get finance [639] .
referenced Mr Alamin’s evidence that “I would not have entered into the Deed without this clause as it would have been impossible for me to obtain finance which was the only way I could complete the purchase of 11 & 82 Woolgen and so obtain the funds needed to make the settlement payment” [640] .
addressed for more abundant caution, Mr Elliott SC’s submission above that Mr Alamin failed to lead any evidence as to actual communications of the parties’ lawyers and authorised agents regarding the negotiations. He sought to explain why there was no evidence called by Mr Alamin’s former solicitors (alluding to the fact that they were asserting a lien over his file) [641] .

Rectification requires discerning the parties’ actual intention mutually held, as viewed objectively from their words or actions [642] .
I observed at the outset that the word ‘gestalt’ does not appear in the pleadings and agreed issues nor is it used by Mr Alamin in the evidence in the case. Nonetheless, it was expressly advanced by Mr Castle SC in pre-hearing, opening and later submissions. There are a number of obstacles to accepting Mr Castle SC’s rectification submissions, which lead me to rejecting the claim for rectification based on gestalt (and otherwise).
First, the evidentiary landscape for considering the gestalt was limited in the sense that the actual negotiations that occurred between the parties were conducted by the legal representatives, none of whom were called and gave evidence in these proceedings. There were some occasions on which the legal representatives spoke to one another at court both on 21 and 22 November 2022. However, there is no evidence of what was said by one of the legal representatives to another. Thus, in considering the claim for rectification, there is an absence of evidence regarding disclosure in the form of spoken words by one party or their legal representative to the other party or representative. Consideration of the rectification claim is in that sense limited to conduct in the form of written communications by email, or more particularly documents (drafts and final) sent by email by the legal representatives to one another [643] , and whatever might be legitimately identified as a gestalt perceived by each of Mr Alamin and Mr Islam. I accept Mr Elliott SC’s submission that the evidence regarding past dealings, including any presale monies received being spent well before settlement, is contrary (or very arguably contrary) to the gestalt case. In any event, it seems to me that there is considerable force in Mr Elliott SC’s submission that gestalt in the context of rectification will only have a role to play once there is actual communication or disclosure by words or action. It is not a substitute for communication.
Whatever was in the mind of Mr Alamin and Mr Islam and the subject of evidence of their intentions, was not said to have been actually communicated by spoken statements to each other or by their legal representatives in the form of any admissible evidence. The plaintiffs are unable to point to any commonly held intention by prior written communication (or otherwise) whereby Mr Islam accepted their contended rectifications such that a mutual intention existed.
Secondly, the notion that the mutual gestalt arising out of how prior/existing projects were progressed and financed, even if, as Mr Castle SC says, it included the context in which the Settlement Deed was entered, seems to me to ignore or seriously underplay the fact that the parties were in dispute and the reasons for that. The 2021 proceedings were premised (and indeed amended) on claims by Mr Islam that Mr Alamin had taken steps to purchase of 11 & 82 Woolgen outside the existing mode of which the gentlemen had operated. Trust between the gentlemen had been eroded. Even if conceptually Mr Islam could perceive how it might be beneficial for Mr Alamin to purchase 11 & 82 Woolgen in accordance with prior systems in which they had operated, there is nothing which satisfies me on the balance of probabilities that Mr Islam agreed to the proposed rectifications. Thus, the so-called mutual gestalt about flexibility in instalment payments could not to my mind, trump what was actually disclosed by text between the parties in November 2022, in light of the disputed context in which the parties found themselves in at that time including the eroded trust.
Thirdly, the claim that the payment of the cl 4(b) instalments should be qualified and payment deferred until registration of purchase of 11 & 82 Woolgen is inconsistent with claims that it should be deferred until “development*”* of the properties, and “completion of the development*”* of the properties [644] , and in any event inconsistent with the claimed relief regarding rectification, which does not claim that the initial $350,000 sum due by 31 December 2022 was so deferred [645] .
Fourthly, the above scenario does not find expression as a topic of discussion at the time of negotiation of the Settlement Deed let alone being a term of the Settlement Deed.
Fifthly, I did not understand Mr Islam’s evidence as intimating that he had an undocumented obligation to Mr Alamin to give him an opportunity to purchase 11 Woolgen for his benefit and that of the Islamic community. Nor did I understand his evidence to be that he accepted unequivocally that there was a “common intention” arising out of more to the parties’ broader understanding of how the property development business worked that payment under the Settlement Deed was expressly premised on Mr Alamin being able to complete the purchase of 11 Woolgen [646] . Mr Castle SC appeared to accept that Mr Islam had not conceded as such. Nonetheless, he contended that in discerning gestalt one looks objectively at the matter to assess, on the balance of probabilities, what was the intention of the parties based upon the way they were doing business together, rather than being bound by parties’ oral evidence particularly where it reflects their “position in litigation” [647] .
Sixthly, appeals to commercial imperatives or notions of how the parties had conducted themselves up to the time of the signing of the Settlement Deed have limitations. Assuming for the moment that Mr Islam understood that Mr Alamin would be commercially benefited by allowing 11 Woolgen to be completed and that this might (to some degree) facilitate him in being able to pay Mr Islam the Settlement Amount, it does not logically follow nor more importantly does it mean that it is actually the case that Mr Islam was prepared to postpone receipt of payment of the Settlement Amount until purchase of 11 Woolgen was completed.
Seventhly, the alleged gestalt and commercial benefit argument is undermined by the fact that by the point of time of the court hearing, negotiations and vitally, execution of the Settlement Deed, Mr Islam had ceased to trust Mr Alamin. The lack of trust was borne out of Mr Islam’s beliefs and view as to how Mr Alamin dealt with money and property, and Mr Islam was not obviously minded to subordinate his own interest in payment of specific sums by specified dates to Mr Alamin’s interest in sourcing payment from completion of the purchase of 11 Woolgen. Nor is it obvious that Mr Islam was minded to give Mr Alamin further indeterminate time to complete that purchase. Mr Castle SC sought to meet the lack of trust point by contending that the parties “weren’t trying to cheat each other” [648] . Elaborating, he contended that the payment of the Settlement Amount was not a payment to end the JV but the payment to end the dispute of a claim of a constructive trust over the properties and at no stage did Mr Islam expressly say that the instalment payments must be made irrespective of whether the purchase of 11 Woolgen proceeded [649] . Yet again the argument was premised on the notion that Mr Islam was settling on a basis that would not put at risk the ability of Mr Alamin to get the properties (11 & 82 Woolgen) [650] . Clearly from Mr Alamin’s perspective, a requirement for Mr Islam to postpone ranking of his security is understandable. However, commercial logic per se does not mean that Mr Islam intended (let alone agreed) that he would postpone his security to Centuria Bass to allow Mr Alamin financing to complete the purchase of 11 Woolgen.
Eighthly, I do not accept that the proposed rectification to cl 7 was part of a gestalt. Mr Amin’s proposed cl 7(b) was, on the correspondence, simply rejected. I have earlier addressed the issue regarding mistake.
Ninthly, as submitted by Mr Elliott SC, Mr Amin’s proposed cl 7(b) is directed to a different issue to cl 8 (as Mr Alamin conceded in cross-examination), namely the confirmation as to the status of the charge granted in cl 7 and how that charge would be recognised on title following any successful acquisition of the properties yet to be acquired, and a limited exception to the ongoing maintenance of the caveat following any such acquisition [651] .
Tenthly, the first instalment payment was due by 31 December 2022. Mr Castle SC initially accepted that Mr Alamin could not use presale payments to pay that instalment [652] . Later, Mr Castle SC contended that I should proceed on the basis that there was no impediment to Mr Alamin using either existing presale funds or new presale funds to pay the instalments of the Settlement Amount [653] . He intimated that this is consistent with the cross-examination of Mr Alamin [654] .
Eleventhly, despite Mr Castle SC’s submissions about available sources of funding, relevantly for whether a gestalt was mutually perceived, no evidence was adduced that Mr Islam was told prior to execution of the Settlement Deed, precisely how Mr Alamin proposed to make the first instalment payment (or indeed the other payments).
Twelfthly, the notion (as contended by Mr Castle SC) that Mr Islam was prepared to accept a settlement in November 2022 linked to payment of the Settlement Amount from “expected future profits” of 11 & 82 Woolgen rather than live with the liquidation of the MH Group [655] , is a type of false dichotomy (a matter which I observed during the hearing [656] ). It might have been convenient for Mr Alamin to seek to pay the instalment sums from such “future profits”. However, there is no clear evidence that Mr Alamin was unable to source funds from other than expected future profits of 11 & 82 Woolgen. Further, it is not clear that Mr Islam was prepared to wait for payment until that occurred.
Thirteenthly, as submitted by Mr Elliott SC, a sub-conscious or underlying confidence or assumption about what will happen in the future does not mean that actual thought at all was being given to the actual creation and imposition of a contractual term in a specific contract [657] .
Fourteenthly, whatever the consequence of lost presales payments (one might think) would be the subject of the contractual arrangements between MH Woolgen and the individual community members. Mr Castle SC appeared to accept that whatever arrangements there were, there was no provision for such a “novation” as referenced [658] .
In all of the above circumstances it is not necessary for me to make any particular finding regarding alleged dishonesty by Mr Alamin. On any view of the matter, irrespective of dishonesty, Mr Alamin simply did not make any payment of the Settlement Amount and has still not done so.
For the purposes of completeness, I briefly address the various other submissions made by Mr Castle SC.
First, I do not accept that Mr Islam had a sufficient level of knowledge about what monies were likely to flow from the 11 Woolgen project as at November 2022. The affidavit that Mr Castle SC cross-examined him on was dated December 2021. His questioning regarding these details was by reference to payments made as at June 2021 and the position as at December 2021 [659] . Mr Islam did not accept that as at 13 December 2021, when his affidavit was affirmed, he had enough information available to him to identify the income flow that would arise from prepayments [660] . In any event, the affidavit was sworn 11 months prior to the Settlement Deed. Mr Islam’s knowledge 11 months prior is significantly dated and not a strong basis for inferring his knowledge as at November 2022.
Secondly, I did not and do not understand Mr Elliott SC’s argument to be anything other than that cl 8 addressed an entitlement to lodge a caveat after registration. His use of terminology that clause 8 was directed to “confirmation” as to the status of the charge granted in clause 7 “following any successful acquisition of the properties…” make that clear. Rather Mr Elliott SC, in likening Mr Amin’s proposed cl 7(b) to cl 8, was principally referencing the actual wording of those clauses as distinct from their operation. Even if I be wrong on that and Mr Elliott SC was taken to be contending that the operation of the clauses was the same, as distinct from cl 8 operating post registration of title and cl 7 operating immediately, it does not seem to me that this avails Mr Alamin. If, as is the natural reading of cl 8, it did not provide any right to caveat until 11 and/or 82 Woolgen were purchased, cl 7 was the only clause providing any immediate form of security for Mr Islam. It hardly seems likely that Mr Islam (in the absence of the right to caveat the properties prior to completion of purchase and registration on title) would have been willing to agree to Mr Amin’s proposed cl 7(b), thereby postponing his only security for payment in the terms of the rectification suggested by Mr Alamin.
Thirdly, in respect of Mr Castle SC’s submissions regarding Mr Alamin’s evidence about requiring finance to make the settlement payments, there are some answers to this. One is that Mr Elliott SC is correct [661] in that he did cross-examine Mr Alamin regarding his evidence affidavit evidence that “[i]t did not cross my mind at the time the deed was entered that the purchase of this property may not occur” [662] , which he confirmed in cross-examination [663] . Next, even if his asserted thought was true at the time, there is no evidence that it was ever disclosed to Mr Islam or that by words or actions Mr Islam had any common intention understanding about that.
Fourthly, the alleged Jones v Dunkel issue can be shortly addressed. Mr Elliott SC was not putting a Jones v Dunkel submission. The absence of any evidence of the legal representatives regarding what was said or discussed in the negotiations for the Settlement Deed is not necessarily fatal to establishing the requirements for rectification. However, as I understood Mr Elliott SC’s point, it essentially inhibited the means by which any clear and convincing case of rectification could be proved.

For something that was, on the Plaintiffs side, said to be so fundamental, the Settlement Deed is surprisingly silent on the relationship between the parties in respect of alleged JVA, JV terms and Varied JV.
The Settlement Deed does not use terminology of ‘joint venture’. The recitals do not refer to any such joint venture.
The initial recitals broadly speaking reference parties or entities, shareholding, and capacity for entering the Deed (recitals A-E).
The next set of recitals reference 11 Woolgen noting: its acquisition by Signature Homes (recital F); Mr Islam’s allegation that funds for the deposit had been sourced from the MH Group (recital G); and an acknowledgement that MH Woolgen received approximately $950,000 on account of presales of the subdivision lots (recital H).
The next set of recitals reference 82 Woolgen, noting: the 82 Woolgen Option (recital I), that some of the funds for the deposit for 82 Woolgen were sourced from Signature Homes on account of 11 Woolgen presales and that Mr Alamin alleged that those had since been repaid to Signature Homes (recital J).
The final recitals reference the proceedings and the fact that the parties had agreed to settle all matters in dispute between them on the terms of the Settlement Deed on a without prejudice and without admission basis (recitals K, L).
The operative terms of the Deed do not give any clear indication regarding what the parties had agreed or were going to do in respect of the alleged JVA, JV terms and Varied JV.
The following may be noted:
cl 2 and 3 envisaged that Mr Islam would be reappointed as a director of MH Affordable and issued two ordinary shares in it (cl 2, 3 - such that their shareholding in MH Affordable would be equal), and that Mr Islam was not to be appointed a director or given any shareholding in respect of Signature Homes/Amin Co regarding 11 Woolgen or Amin Murooj regarding of 82 Woolgen;
cl 12 provided a mechanism for Mr Islam to request information from the Amin Parties about progress and proposed future action in relation to “conveyance” and financing or attempt to secure financing of 11 & 82 Woolgen;
cl 13, which addressed pursuit of business opportunities, was phrased in terms which essentially permitted them to go their own way either solely or in partnership with other people but did not expressly address anything about the existing alleged JVA;
cl 14 addressed deadlock in respect of MH Affordable (but not in respect of any of the other companies);
cl 15 provided for releases between all the relevant entities and parties including in respect of payments made or received by loan or in respect of the sale of all or any part of 11 & 82 Woolgen (excepting out any loans internal to the MH Group, as between any member of that group and Mr Islam or Mr Alamin, or internal to the Amin Group); and
cl 16 involved dismissal of the 2021 proceedings.
In light of the above, it is certainly not self-evident from the express terms of the Settlement Deed that the purpose or the effect of it was to:
terminate the Joint Venture in respect of any future properties;
continue the Joint Venture in respect of existing JV Properties only; and
treat 11 & 82 Woolgen as if they were JV Properties.
Possibly, one might infer, having regard to cl 13, that the parties were to go their separate ways in respect of any further joint property developments, but there is no express terms setting out how existing property projects would be finalised.
More particularly, it is to my mind certainly not self-evident that the Settlement Deed either created a form of Varied JV or provided that 11 & 82 Woolgen were to be treated as if they were JV Properties.
It is not clear to me that Mr Castle SC actually asked me to make a finding that the JV had been varied as alleged. One of the difficulties with that is that whilst the general business model or methodology of property development was explained, there was no attempt to set up what the precise terms of the joint venture were. However, even assuming it is right to describe the legal relationship is between Mr Alamin and Mr Islam as a joint venture, and I am prepared to accept that such a joint venture was impacted by the Settlement Deed, and that it seems unlikely that Mr Alamin and Mr Islam would continue to develop properties through the MH Group, it is not clearly established on the balance of probabilities that the Settlement Deed terminated the alleged JV in respect of any future properties and continues the Joint Venture in respect of existing JV Properties only. If I am wrong in that in the Settlement Deed did terminate the JV the lack of clarity of the exact terms on which the termination was to occur makes a finding about so-called termination somewhat inutile.
Leaving aside for the moment precision about the content of particular fiduciary obligations, I accept a type of joint venture existed between Mr Alamin and Mr Islam and related entities but only in respect of certain projects through the MH Group (the first five projects that proceeded) and that it did not include 11 & 82 Woolgen.
In any event, I am not satisfied that there was an agreement (whether a varied JVA or JV term or otherwise) to treat 11 & 82 Woolgen as if they were JV Properties.

As outlined earlier Mr Islam admitted in like language that both gentlemen had the first, second and fourth set of duties (good faith, non-profit, non-conflict and non-detriment) in respect of the MH Group [679] . Mr Islam denied a duty to cooperate and contribute including by making agreed financial and non-financial contributions to its success [680] .
This is not the occasion to delve deeply into the proscriptive/prescriptive dichotomy, at least because Mr Castle SC did not go there in his submissions and (understandably) nor did Mr Elliott SC in replying to Mr Castle SC’s submissions.
Joint venturers may agree as between themselves to cooperate and contribute financially and non-financially in certain ways to a project. Their ‘duty’ in that regard arises from contract. However, apart from agreement or contract, the notion that fiduciaries have an active duty to cooperate and contribute was not underpinned by Mr Castle SC by reference to particular case law.
It is to my mind insufficient for the plaintiffs simply to assert generalised forms of duties as has been pleaded and outlined above, without tying the content and scope of the duties closely to the facts of the case.
Caselaw (as outlined above) shows that, conceptually, fiduciary relationships and separately fiduciary duties, can arise in relation to prospective projects. The cases which admit of those propositions are generally cases where the projects involved have been the subject of discussion or express contemplation as between the fiduciary parties.
Mr Castle SC’s reference to Chan v Zacharia provides only a very basic starting point for contemplating how a duty might arise as between Mr Alamin and Mr Islam in the context of the Settlement Deed.
However, if it be supposed that the dealings between Mr Alamin and Mr Islam in relation to the 5 projects where those contended for by Mr Castle SC, it does not follow that those duties had necessarily application in the context of the negotiation of the Settlement Deed.
Conceptually, it might be that there are circumstances in which joint venturers or one or more of them may be bound by obligations in relation to properties that have not been discussed or contemplated between them. Clearly, it is arguable that one joint venturer (A) who used property from one project to fund another project which had not been the subject of any particular discussion with the other joint venturer (B), has breached an obligation to not gain an advantage for himself. However, it is far from clear to me that if the other joint venturer (B) is initially unaware of the acquisition of the particular property by A, outside any scope of an agreed project, that B is somehow obliged to cooperate and contribute to A securing that project for himself.
It seems to me that Mr Elliott SC’s submissions are correct. In particular, there was no agreed JV for the development of 11 & 82 Woolgen and the contentions regarding those developments were addressed in the Settlement Deed by creation of a debt obligation in favour of Mr Islam with the constructive trust contention being released.
Specifically, on the facts of this case, I am unsatisfied, in the context of the 2021 proceedings and the dispute over the acquisition of 11 & 82 Woolgen, that Mr Islam had was a duty to cooperate and contribute to the successful acquisition by Mr Alamin or the Alamin parties of 11 & 82 Woolgen by the means pleaded in the claims for rectification of the Settlement Deed, specifically by: (a) suppressing his interests and not insisting upon timely payment of instalments until Mr Alamin had acquired 11 & 82 Woolgen; and (b) being obliged to postpone his charge to allow Mr Alamin to obtain financing.
Further, to the extent that it is asserted that there were some duty on the part of Mr Islam to act in the best interests of Mr Alamin to enable him to obtain the benefit of the acquisition of 11 & 82 Woolgen, I reject that notion. It would be a different matter if the acquisition of those properties were an agreed project as between them, or even if the acquisition of those properties was the matter of particular discussion with them even if they had not worked out a specific arrangement between them regarding those properties. However, on any view of this case, Mr Islam had not in any way, shape or form embarked upon mutual discussions with Mr Alamin as to the acquisition of 11 & 82 Woolgen, let alone agreed for those properties to be JV Properties as between them.
Lastly, whilst Mr Alamin had pleaded that Mr Islam was under a fiduciary duty not to obtain or use an improper advantage or profit or to act in a position of conflict in relation to the JV between them, I cannot see how on any view of the matter such a duty extended to 11 & 82 Woolgen.

Practically speaking one may well doubt whether any of the parties, but in this case more particularly Mr Alamin, wishes to have a winding up order made.
It was certainly not the case when the 2021 proceedings came to trial. Indeed, the comments made by Parker J concerning the prospect of a winding up seem to have been the catalyst for the parties engaging in settlement discussions which led to the execution of the Settlement Deed.
The issue has been raised and it is necessary for me to deal with it.
For his part, Mr Alamin acknowledged in cross-examination that the Fourth Avenue Project had progressed to a point where it was nearly complete [704] , the Angle Vale project has proceeded to a point where it is completed such that all that is required is to calculate the profit and make distributions accordingly [705] .
Mr Castle SC addressed the state of completion of the five projects which proceeded. I have outlined this above. In summary he contended that the:
Fourth Avenue Project has three unsold lots and is awaiting sewer connection;
Gurner Avenue Project has 13 lots (or perhaps more) remaining to be sold;
Boyd Street Project has been sold and an amount of funds generated from presale of lots remains in the court’s trust account;
Harris Street Project is complete and awaiting final distribution of profit; and
Dickson Road Project has two to three lots remaining to sold and is awaiting council rezoning so that a development application can be submitted.
Mr Elliott SC’s summary of the position was not materially different. He contended that only the Gurner Avenue Project the Dickson Road Project were ongoing.
Mr Elliott SC cross-examined Mr Islam regarding the development of the Gurner Avenue Project. An offer had been made for the provision of finance by La Trobe Finance on terms that will involve each of Mr Alamin and Mr Islam being guarantors [706] . There was no suggestion that whatever lack of trust there might be between the parties that they could not cooperate to ensure that project was completed, particularly with the assistance of an accounts manager, Mr Mirag, who seemingly acts as a go-between for Mr Alamin and Mr Islam [707] . Mr Castle SC’s cross examination of Mr Islam regarding this property did not suggest that there is any significant impediment to the parties completing this project.
In response to questioning, Mr Islam confirmed that the sale of the rest of the Gurner Avenue lots would generate significant revenue and, after taking off expenses at the end of the project, the profit would be worked out and split between him and Mr Alamin [708] .
There was little cross-examination by Mr Castle SC of Mr Islam regarding the work needed to be completed in relation to the Dickson Road Project [709] .
Clearly Mr Islam had issues regarding trusting Mr Alamin. Mr Islam had rejected the notion that Mr Alamin could be left to his own devices to complete the work required in relation to those properties [710] . However, on one view of his then evidence [711] and later evidence he intimated that he could work together with Mr Alamin to finish the uncompleted existing projects [712] .
Mr Elliott SC submitted that in relation to the Gurner Avenue Project (MH Affordable) and the Dickson Road Project (MH Dickson) the plaintiffs had not demonstrated that there was deadlock between the directors and owners even on a single decision to be made let alone on an issue of such consequences to materially frustrates the commercial viability and operations of the companies [713] . I accept this submission.
I remain unpersuaded that any winding up order is justified. Even if it were the case that technically the basis for a winding up order was enlivened, I would not, as matters currently stand, as a matter of discretion order a winding up. Mr Castle SC emphasised the inconvenience and impact to the Islamic community particularly regarding members who have acquired interests in lots under the ‘off the plan’ instalment arrangements entered into with the JV companies [714] .
Further, I am not satisfied that it is appropriate to order any form of buyout remedy. Mr Castle SC relied upon the alpine of principles of Nixon J in WAM Active*.* Nixon J referenced a decision of Austin J in Tomanovic, where at [43] Austin J noted that the Court has an extremely broad discretion with respect to relief. Nixon J further extracted [715] part of Austin J’s judgment (at [44]-[46]) touching upon the buyout remedy [716]

Alamin v Islam

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

Parties

Legislation Cited (8)

Cases Cited (134)

table of contents

JUDGMENT

Introduction

Dolls and gestalts

What is gestalt?

Literature gestalt

Design gestalt

Gestalt as a means of seeking rectification

Overview of issues

Outcome

Factual and documentary concision

Parties and various proceedings

Parties

Business model

Projects and properties

Various proceedings

Representation

Settlement Deed

Hearing & procedural aspects

Appearances

Submissions

Claims and pleadings

Claims of a JV, Wind Down Understanding and Varied JV

JV (alleged)

Wind Down Understanding (alleged)

Varied JV (alleged)

Issues

Background

The “revised list”

Agreed issues

Issues as litigated

Construction of Settlement Deed

Rectification principles

The various rectification doctrines have different aspects and application

Rectification in equity

Nature of the proof of common intention and rationales for it

Joint ventures and fiduciary duties

Fiduciary relationships – existence

Fiduciary obligations – scope

Fiduciary obligations – character

Joint venturers

Termination

Misleading and deceptive conduct liability

Unilateral mistake

Implied terms

Duty of cooperation

Duty to act in good faith

Buyout and winding up

Evidence

Use of admissible evidence for equitable rectification

Surrounding circumstances

Standard of proof

Affidavits and rulings

Weighing of evidence

Credit and reliability of witnesses

Mr Alamin

Mr Islam

Browne v Dunn – alleged non-compliance

Mr Castle SC’s submissions

Mr Elliott SC’s response

The rule in Browne v Dunn

Determination

Further factual background

Loss of Boyd Street

11 Woolgen

2021 proceedings

Pre-hearing offers

Deed negotiations – 21 November 2022