Bangladesh Islamic Centre of NSW Inc v Elzamtar

Bangladesh Islamic Centre of NSW Inc v Elzamtar - [2021] NSWCA 198 - NSWCA 2021 case summary — Zoe

[4]

Affidavit of Mr Samir Karnib of 19 July 2021

Mr Karnib is a solicitor employed by the appellant's solicitors. He says that he received a call on 24 June 2021 from Dr Rashid Rasheed, a representative of the appellant, who "raised concerns as to the legitimacy" of two invoices from Hanson Construction Materials Pty Ltd ("Hanson") forming part of the respondent's exhibit to his affidavit (the Documents Bundle). Mr Karnib annexes the two contested Documents Bundle invoices (the "DB invoices") and two "original tax invoices" produced by Hanson (the "Hanson invoices").
The first DB invoice he annexes has a delivery number 42558815 which is the same as the document number on the first Hanson invoice (also annexed). The formatting of the two documents is different but there are some similarities between them. The first DB invoice states in handwriting a total price of $2,339.20 for 13.6m³ of concrete whereas the first Hanson invoice states a price of $582.12 for 3.60m³. The delivery dates are the same on each document, as are the names of the customer to whom the invoices are directed ("Triple V Concrete Pty Ltd"). The addresses of that customer are different but that may be because one address may be the customer's office and the other may be the site of work being done by the customer. The words "Concrete Returned" appear on the first DB invoice but not on the first Hanson invoice. That statement appears from the terms of the invoice not to be an assertion that concrete was returned in relation to the subject transaction but a statement that if concrete was returned, disposal fees would apply.
The second Hanson invoice has the same delivery or document number as the second DB invoice. The second DB invoice records in what may be printing an order of 5.4m³ of concrete but in handwriting a figure of 32m³ with a price of $5,280. The second Hanson invoice states a quantity of 5.40 m³ and a price of $870.98.
There are two items in the Expenditure List referring to concrete but, as with all other items in that document, no details of the dates of supply or names of supplier are given.

[5]

Principles concerning further evidence on appeal

This Court's power to receive further evidence on appeal is stated in s 75A of the Supreme Court Act 1970 (NSW) as follows: 75A Appeal … (7) The Court may receive further evidence. (8) Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds. (9) Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing.
For many years regard has been had in considering whether to exercise this power to the statement of Clarke JA (with whom Sheller JA agreed) in Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 as follows: "Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible."
In Searle v Commonwealth of Australia (2019) 100 NSWLR 55; [2019] NSWCA 127 this Court considered Clarke JA's observations and Bell P (with Bathurst CJ and Basten JA agreeing) at [174] made the following further observations about the Court's power to admit further evidence under s 75A(7) and (8): "Nine points should be made about the well-known passage from Akins… with regard to this Court's power to admit further evidence pursuant to s 75A(7) and (8) of the Supreme Court Act: (1) notwithstanding the connotation of the language 'three conditions need be met', Clarke JA was not formulating a 'test' and expressly said so; (2) the formulation is not to be regarded as a gloss on the statutory language: Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 at [6]-[27], [135]-[136] (Phoenix); (3) even working within the language of the Akins formulation, not every one of the conditions needs necessarily to be satisfied for the evidence to be admitted: Tjiong v Tjiong [2012] NSWCA 201 at [168] (Tjiong); (4) the second of the Akins conditions may operate differentially depending on the circumstances: [Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd (2019) 99 NSWLR 447; [2019] NSWCA 73] at [14]; (5) the Akins formulation is not an exhaustive statement and the categories of case which may be thought to generate 'special grounds' are not closed: see, for example, Norris v Routley [2016] NSWCA 367 at [12] and [32]; (6) other considerations in addition to those referred to in Akins that may be germane to a determination of special grounds include: (a) the circumstances in which the relevant issue to which the further evidence relates arose (for example, whether the issue was introduced late into the case or had only been raised obliquely or even by 'ambush'); (b) the constitution of the proceedings (for example it may be relevant if the proceedings were representative in nature and that the claims of others in the class may be affected by whether or not the further evidence is admitted); (c) the extent and clarity of the further evidence; (7) the discretion under s 75A(8) is not, however, unfettered (Phoenix at [11], [136]) and the requirement for 'special grounds' reflects the importance that the law places on the value of finality; (8) to constitute 'special grounds', the circumstances must be "sufficiently out of the ordinary or exceptional": Tjiong at [165]; (9) even if 'special grounds' are made out, the Court retains a residual discretion whether or not to admit the further evidence. Relevant to the exercise of this residual discretion will be the overriding purpose of the Civil Procedure Act: see s 56."

[7]

Whether the evidence could have been obtained with reasonable diligence for use at the trial

Nothing in the three affidavits sought to be read suggests that the evidence in them would not have been obtainable by the appellant through the exercise of reasonable diligence prior to the hearing before Parker J in June 2020. The affidavits refer to and annex documents dating back twelve years or more in time, without suggesting that either the documents or the evidence about them was not available many years prior to 2020.
The appellant raises two matters in an attempt to persuade the Court that Clarke JA's first criterion should nevertheless be regarded as satisfied or should be disregarded.
First, the appellant contends that it was taken by surprise by the primary judge's grant of leave for the respondent to file the Reply in which the respondent relied upon the Expenditure List as a confirmation for the purposes of the Limitation Act. It says that "the amended claim by the plaintiff outflanked the defence without allowing the defence to reconsider what evidence it would call upon to respond to the new limb of attack".
The first answer to this is to point out, as the primary judge did when considering the application for leave to file the Reply, that such factual issues as the Reply might give rise to were already present in the proceedings. This was so because by the ASOC (and the FASOC) the respondent alleged that he incurred expenses of a type that entitled him to require the appellant to reimburse him and by its Defence the appellant did not admit that the respondent incurred those expenses (totalling $232,219.65) and put the plaintiff to "a strict proof" of them.
When the respondent's affidavit was read, and he gave oral evidence, there was thus a subsisting factual issue as to whether the respondent had incurred the alleged expenses. By his affidavit the respondent proffered evidence on that issue, in particular some testimonial evidence, the Document Bundle and the Expenditure List. Counsel for the appellant cross-examined the respondent, including about some of the invoices in the Documents Bundle.
The primary judge did not find most of the respondent's testimonial evidence or the Documents Bundle persuasive but did find that the Expenditure List and the evidence concerning it proved the respondent's claim to the extent of the amount of $216,090 shown in the list. There is no reason to think that as a result of the filing of the Reply the hearing took any different course in relation to factual questions than it would otherwise have taken. The appellant was not prejudiced by its filing as it did not give rise to any factual issue that was not already present in the proceedings. Its filing therefore does not provide an excuse for the appellant not to have sought prior to the hearing to obtain evidence, such as the three affidavits it now seeks to rely on, to undermine the respondent's claim for reimbursement.
The second answer to the appellant's argument is that it cannot now complain that the filing of the Reply in the course of the hearing deprived it of an opportunity to seek to obtain evidence to defeat the respondent's claim when it was open to the appellant to raise prejudice of this type with the primary judge in opposition to a grant of leave to file the Reply, but it did not do so. Moreover, the appellant did not seek the opportunity to do so or, apparently, make any enquiries to obtain evidence to defeat the respondent's expenditure claim in the two months that ensued before the primary judgment was delivered. Discovery of weighty material in that period would have provided a firm basis for an application to reopen and to vary a pre-hearing order precluding the appellant filing further evidence.
The second matter relied on by the appellant in this context is the contention that the three affidavits which it seeks to read demonstrate that the respondent conducted a "false case" at first instance. Presumably the relevance of this to Clarke JA's first criterion is that the appellant asserts that its new evidence is of such strength and seriousness that the first criterion should be put to one side in the circumstances of this case. For reasons that I give below in connection with Clarke JA's second criterion the proposed new evidence is not of that strength and is not therefore a justification for disregarding Clarke JA's first criterion in the circumstances of this case.

[8]

Whether there is a high degree of probability that the result below would have been different

For a number of reasons, even if the Court concluded that the additional evidence indicated that as a matter of probability some of the invoices in the Documents Bundle did not evidence expenses that the respondent incurred, it cannot be further concluded that there is any significant prospect that the outcome at first instance would have been different if that evidence had been led at the hearing.
First, the five invoices the subject of the three affidavits represent only a small proportion of the amount claimed in the FASOC ($32,419.20 out of $232,219.65 in the ASOC Schedule). Moreover, the primary judge ordered reimbursement of only a part of that claim ($172,652 against $232,219.65). As well, the evidence does not reveal whether the amounts of the five invoices formed part of the former sum or were simply in that part of the larger sum that was not awarded.
Secondly, the basis upon which the primary judge made his decision must be kept in mind. His Honour did not take the ASOC Schedule and determine whether or not expenses listed in it were proved by documents in the Documents Bundle. He concluded the respondent's case could not be made out in that way. Instead he concluded that because it was signed on behalf of the appellant the Expenditure List constituted an admission that the expenditures listed in it were incurred and were liable to be reimbursed. As earlier noted, the Expenditure List did not contain a detailed list of expenditures by date and supplier but gave figures in respect of categories. Whether the five invoices the subject of the appellant's affidavits fell within any of those categories is not answered by the evidence. This is emphasised by the primary judge's conclusion that the agreement reflected in the Expenditure List arose out of "some sort of review process which resulted in some items being accepted and others rejected" (see [26] above). In these circumstances, the impact of the further evidence, which the appellant contends effectively falsified the five invoices, is purely speculative.
Thirdly, the prospect of the three affidavits having had any impact on the outcome at first instance if relied on there is further diminished when the content of the affidavits is considered. First, Mr Hadid's affidavit raises a question as to the accuracy and reliability of the invoice for the "All new Microphone and speaker system" in the Documents Bundle but the position it presents is by no means clear because his evidence is given by reference to an annexed invoice dated 24 August 2008 which is not the date of that in the Documents Bundle (that being dated 11 August 2007) and in any event Mr Hadid refers in the body of his affidavit to an invoice of yet another date, 11 August 2008.
More fundamentally, it is difficult to regard this evidence as impugning the reference in the Expenditure List to a new microphone and speakers system costing $14,000. It is unlikely that the appellant's project manager and president, both of whom signed the Expenditure List, would not have been aware that (i) no new speaker system had been installed, or that (ii) a new speaker system had been donated, if either had been the case. Certainly neither of these people, nor anyone else, was called by the appellant to say that either was the position.
Mr Chebab's affidavit raises a question concerning the invoice and delivery docket issued by Australian Timbers in the Documents Bundle but that would only be the starting place of an inquiry about what the actual deliveries and costs were.
Mr Karnib's affidavit does not provide any direct evidence concerning what occurred as to the supply of concrete for the purposes of the mosque renovation and again is at best only the starting point for an inquiry about what happened on that topic.
In these circumstances, far from demonstrating that there is a "high degree of probability" that, if the three affidavits were available at first instance, the outcome there would have been different, the possibility of a different result remains in the realm of conjecture, with the strong probability being that the affidavits themselves would not have made any difference. It follows that the appellant's contention that the three affidavits demonstrate that the respondent conducted a "false case" at first instance must be rejected. The evidence did no more than raise questions about five items of expenditure which may or may not have been embraced within the amount that the primary judge found was to be reimbursed. The evidence fell far short of establishing the proposition the appellant proffered by reference to McCann v Parsons (1954) 93 CLR 418; [1954] HCA 70 at 426 that the respondent "put forward a false case and knew it". If that proposition had been made good, the appellant's absence of due diligence to discover the fraud may have been of little, if any, significance (see generally Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165; [2018] HCA 12 at [2]).

Parties

Applicant/Plaintiff:

Bangladesh Islamic Centre of NSW Inc

Respondent/Defendant:

Elzamtar

Legislation Cited (2)

Supreme Court Act 1970(NSW)

Limitation Act 1969(NSW)

Cases Cited (14)

Solicitors: Macquarie Law Group (Appellant) Hanna Legal (Respondent) File Number(s): 2020/276480 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2020] NSWSC 1161 Date of Decision: 31 August 2020 Before: Parker J File Number(s): 2014/219737

HEADNOTE [This headnote is not to be read as part of the judgment] The respondent, Mr Elzamtar, is a builder by trade. He alleged that in approximately 2003 the appellant, Bangladesh Islamic Centre, retained him to coordinate renovations to its mosque and to incur the costs of those works on behalf of the appellant (which would ultimately be reimbursed). The respondent sued for the repayment of certain loans that he had allegedly made to the appellant and for reimbursement of the renovation costs that he claimed he had incurred at the request of the appellant. The appellant admitted that there had been an arrangement between itself and the respondent however it disputed the quantum of expenses allegedly incurred. It also contended that the respondent's claim was statute-barred as the expenses had been incurred, if at all, more than six years prior to the commencement of proceedings. The respondent adduced a list of expenses that he had allegedly incurred (the Expenditure List) which was signed by representatives of the appellant. In opening submissions below, counsel for the respondent sought to file a Reply, relying on the Expenditure List as a confirmation for the purpose of s 54 of the Limitation Act 1969 (NSW). The primary judge permitted the Reply to be filed as it did not give rise to any factual issues not already present in the proceedings. His Honour found that the Expenditure List acted as a confirmation, resulting in the respondent's claim in the main not being statute-barred. It was further found that the Expenditure List constituted an admission on the part of the appellant that the expenditures listed in it were incurred and liable to be reimbursed to the respondent. His Honour directed the entry of judgment in favour of the respondent in the sum of $314,055, reflecting the respondent's partial success on the loans claim and the reimbursement claim. The appellant challenges that part of his Honour's judgment concerned with the reimbursement claim. It argues that there is further evidence additional to the evidence before the primary judge which justifies the setting aside of his Honour's judgment, constituting "special grounds" under s 75A of the Supreme Court Act 1970 (NSW). The further evidence comprises three affidavits which seek to impugn various expenditure items which formed part of the respondent's reimbursement claim. The primary issues on appeal were: (1) Whether the further evidence could have been obtained with reasonable diligence for use at the trial; (2) Whether there was a high degree of probability that the result below would have been different; (3) Whether the further evidence is credible. The Court dismissed the appeal: (Per Macfarlan JA at [59], Basten JA and Payne JA agreeing at [1] and [60] and adding further observations). Whilst acknowledging the possible breadth of circumstances in which further evidence on appeal may be adduced, as explained by Bell P in Searle, it is nevertheless convenient to consider the appellant's application by reference to Clarke JA's criteria in Akins: [41], [60]. Akins v National Australia Bank (1994) 34 NSWLR 155, applied. Searle v Commonwealth of Australia (2019) 100 NSWLR 55; [2019] NSWCA 127, referred to. In relation to Issue 1: Nothing in the three affidavits suggests that the further evidence would not have been obtainable by the appellant through the exercise of reasonable diligence prior to the hearing before the primary judge: [42]. The Reply did not give rise to factual issues not already present in the proceedings and thus its filing did not provide an excuse for the appellant not to have sought further evidence prior to the hearing to undermine the respondent's claim for reimbursement: [45], [47]. It was open to the appellant to raise any prejudice suffered from the filing of the Reply with the primary judge, but it did not do so: [48]. In relation to Issue 2: Whether the invoices sought to be impugned fell within any of the categories of expenditure listed in the Expenditure List is not answered by the further evidence: [52]. The content and nature of the further evidence leads to the strong probability that it would not have made any difference to the result at first instance; the possibility of a different result remains in the realm of conjecture. It further follows that the evidence does not establish that the respondent put forward a false case and knew it: [57]. McCann v Parsons (1954) 93 CLR 418; [1954] HCA 70, referred to. In relation to Issue 3: There is no basis for a positive conclusion that the evidence in the affidavits is credible and should be accepted: [58].

(1994) 34 NSWLR 155

(1954) 93 CLR 418

(2019) 100 NSWLR 55

(1935) 54 CLR 134

(2019) 99 NSWLR 447

(2018) 264 CLR 165