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[2026] NSWCA 23
respondent. Appeal dismissed. The appellant was ordered to pay the first respondent’s costs. [58]
10 cited instruments linked from this judgment.
Boga had to show not only that he transferred money, but that the transfers were loans to 15 Glenburnie and were covered by the written loan agreement. The money went to Anthill Construction, and the evidence did not connect the payments sufficiently to 15 Glenburnie or show that the agreement covered them. The respondents’ account of why the money was paid was not decisive: Boga still had to prove his own claim. The appeal was dismissed.
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2,159 words · generated 08/10/2026
In Boga v 15 Glenburnie Rd Pty Ltd [2026] NSWCA 23, Thomas Boga appealed only part of a judgment in his favour. The primary judge had awarded him $167,000 plus interest against 15 Glenburnie Rd Pty Ltd and Ahmad Sakr. Boga sought to add $700,000 plus interest, representing three transfers he said were further loans under a written loan agreement. The Court of Appeal dismissed the appeal and ordered him to pay 15 Glenburnie’s costs. [3]-[5], [58]
The underlying agreement was made by deed on 28 October 2019. Boga was the lender, 15 Glenburnie the borrower, and Sakr the guarantor. The loan amount was $1.9 million, including $150,000 Boga had previously advanced to Sakr. The term was two months, normal interest was 10 per cent, default interest was 12 per cent, and the loan was secured by a mortgage over the Beveridge property. [17]-[19]
The disputed transfers were all made to Anthill Construction Pty Ltd, a company whose sole director and shareholder was Sakr’s wife. The payments were $450,000 on 27 December 2019, $100,000 on 10 November 2020, and $150,000 on 19 July 2021. The respondents disputed that they were loans to either 15 Glenburnie or Sakr, and argued that they related to building works at development sites. [5]-[7]
At trial, the primary judge was not persuaded that the payments were loans and rejected that part of Boga’s claim. On appeal, Boga accepted that he needed to establish, for each payment, that it was a loan, that the borrower was 15 Glenburnie, and that the loan fell within the written agreement. The Court of Appeal focused on the latter two questions and found them unproved. [8]-[12]
Sakr had become bankrupt and the proceedings against him were stayed under s 60 of the Bankruptcy Act 1966 (NSW). Accordingly, 15 Glenburnie was the only active respondent to the appeal. [10]
The judgment’s central point is the distinction between proving that money was transferred and proving the legal character and recipient of the transfer. Boga’s evidence established payments to Anthill Construction. It did not establish that 15 Glenburnie was the borrower, or that the payments were governed by the agreement with that company. [6], [35]-[37]
For the $450,000 payment, Boga said Sakr telephoned him, said he was “tight for money” and asked for the money. Boga said he felt comfortable transferring it because there was a deed and mortgage. The Court considered that evidence insufficient to link the payment to 15 Glenburnie. Under the deed, 15 Glenburnie was the borrower and Sakr was the guarantor. The fact that Boga felt protected by the deed did not establish that the deed actually covered the transfer. [33]-[35]
The Court also rejected the inference that Sakr’s position as 15 Glenburnie’s alter ego made a payment to him, or at his direction, a payment to the company. The primary judge had found Sakr to be the company’s alter ego, but that finding did not establish that the company obtained a benefit from or was involved in the disputed transfers. The Court contrasted those payments with the money used to purchase the Beveridge property, which was the transaction secured by the mortgage. [19], [36]-[37]
The Court separately rejected the submission that a course of dealings meant all payments requested by Sakr were advances under the deed. It considered whether the evidence supported an estoppel by convention or an implied term. The two advances made before the deed had been incorporated into the $1.9 million transaction recorded in it. But that history did not prove an established convention covering the later disputed payments. [38]-[42]
The subsequent dealings pointed away from a consistent practice. Boga accepted that some cash payments were personal loans to Sakr that were not covered by the deed and that he did not charge interest on them. He also described a separate $400,000 transfer to Anthill Construction as a progress payment for construction work, unrelated to the loan agreement. He had made other payments to Anthill for progress work as well. [43]-[45]
The Court noted further evidentiary gaps: there was no contemporaneous note treating the disputed payments as loans, no relevant messages or repayment demands, no ledger recording balances between the parties, and no claim for the payments in the original statement of claim. The first demand was made in the amended statement of claim, about four and a half years after the first disputed payment. These matters formed part of the evidentiary context, rather than a separate rule that every loan must be documented in those ways. [46]-[47]
Finally, the Court emphasised the burden of proof. Even if the primary judge had been wrong about the respondents’ explanation for the $100,000 payment, that would not establish that it was a loan from Boga to 15 Glenburnie. Likewise, the rejection of the respondents’ explanation and the rejection of the apparent invoices as genuine did not fill the gap in Boga’s proof. [48], [52]
The judgment does not present itself as changing the law. It applies established principles to a dispute about the identity of the borrower, the scope of a written loan agreement, and proof of the pleaded cause of action.
On the written agreement, the Court treated the contractual roles as important: 15 Glenburnie was named as borrower, Sakr as guarantor, and the mortgage secured money advanced to 15 Glenburnie. A lender’s belief that a transfer was protected by the agreement did not establish that the transfer fell within it. [18]-[19], [35]
On course of dealing and estoppel by convention, the Court relied on Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd and referred to Realestate.com.au Pty Ltd v Hardingham and Rose v Manno Kingsway Pty Limited. It stated that a relevant assumption must have been adopted by the parties as the conventional basis of their relationship, and that a custom relied on for an implied term or estoppel must be sufficiently known and acquiesced in. [39]-[40] The Court distinguished Chattis Nominees Pty Ltd v Norman Ross Homeworks Pty Ltd, where regular dealings and unobjected-to invoice conditions had supported the result, because the evidence here did not establish a comparable custom, convention or course of dealing. [41]-[45]
The decision also applies the ordinary allocation of the onus in litigation: a claimant must prove the elements of the claim. A respondent’s case may be rejected without the claimant’s alternative account being established. [48], [52]
For appeals, the Court referred to Coulton v Holcombe and Water Board v Moustakas in addressing the attempt to raise a new statutory argument for the first time on appeal. It noted the risk that evidence might have been led, or the new point explained or qualified, had it been raised below. [53] The judgment therefore illustrates application of those authorities; it does not purport to set out a new general appellate test.
At [35], the Court said Boga’s evidence that Sakr requested the money because he was “tight for money” did not link the transfer to 15 Glenburnie. In plain English, a request by a company director or controller does not automatically prove that the company itself borrowed the money.
At [36], the Court said that even if Sakr was the company’s alter ego, it did not follow that an advance to him was an advance to 15 Glenburnie. This separates a person’s control of a company from proof that a particular transaction was the company’s transaction.
At [37], the Court observed that, at its highest, Boga’s evidence supported a possible loan to Sakr personally rather than to 15 Glenburnie. That mattered because the pleaded case treated Sakr’s liability as arising from his guarantee of the company’s debts, and the proceedings against him were stayed. The finding was about the evidence and pleading in this case, not a general conclusion about all transactions involving a company controller.
At [45], the Court concluded that the evidence did not establish an estoppel by convention or an implied term that the agreement covered payments outside its express terms. The practical significance is that a party relying on a wider shared understanding needs evidence of that understanding or of a sufficiently established course of dealing.
At [48], the Court said that rejection of the respondents’ case, including the apparent invoices, did not assist Boga in discharging his onus. Put simply, a court’s conclusion that the other side has not proved its explanation is not a substitute for proof of the claimant’s own explanation.
At [52], the Court addressed the $100,000 payment. Even if the primary judge had erred in finding that the appellant’s entity owed Anthill Construction money under the Wollert contract, that would not change the outcome because Boga had not proved a loan to 15 Glenburnie. This illustrates why an alleged error on one factual issue may not matter if a separate, necessary element remains unproved.
The reasoning is relevant to disputes where a party claims that transfers made to a third party were loans to a particular company, especially where the alleged request came from an individual who controls or is closely connected with that company. It highlights the need to distinguish the payee, the person making a request, and the alleged borrower. The judgment does not say that payment to a third party can never be a loan to a company; it holds that the evidence in this case did not establish that connection. [34]-[37], [50]-[55]
It is also relevant where a claimant says an existing agreement covers later advances. The case shows that a written agreement identifying borrower, guarantor, repayment terms and security does not automatically govern every later payment between people with a commercial relationship. The Court examined the evidence of prior and subsequent dealings and found it did not show a consistent practice or shared assumption covering these transfers. [17]-[19], [38]-[45]
The decision may be particularly useful where the parties have made different kinds of payments: documented secured advances, personal short-term advances, and construction progress payments. The Court treated those differences as relevant to whether the parties had a convention that all payments were covered by the same loan agreement. [42]-[45]
Finally, it applies where a claimant relies on the other party’s weak or rejected explanation. The judgment makes clear that failure of a defence does not, by itself, establish the claimant’s cause of action. [48], [52]
The judgment supplied here contains no decisions after 10 March 2026 discussing or applying Boga. Its later treatment therefore cannot be determined from this source.
The authorities it itself discusses are earlier decisions. Con-Stan is used to state the requirements relevant to estoppel by convention and custom; Realestate.com.au and Rose are cited in connection with the requirements for custom supporting an implied term or estoppel. [39]-[40] Chattis Nominees is used as a contrasting example of regular dealings and an invoice condition accepted without objection. [41]-[45]
For the appellate point, the Court refers to Coulton and Water Board when explaining why the new statutory argument should not be raised for the first time on appeal. [53] Jones v Dunkel is mentioned in the procedural background because the primary judge drew an inference concerning Sakr’s failure to call his wife. The Court of Appeal said that this and the other credibility findings were not challenged and were not relevant to its determination, because Boga’s evidence taken at its highest remained insufficient. [22]-[23]
The judgment resolved the appeal on the evidence before it. It did not decide what evidence would have been sufficient in another case to prove that a transfer to a third party was made at a company’s direction, for the company’s benefit, or as part of a loan to the company. Its reasoning identifies the missing links here but does not prescribe a fixed evidentiary checklist. [34]-[37]
Nor did the Court decide whether any of the disputed transfers was in fact a loan to Sakr personally, a loan to Anthill Construction, or a payment for building works. It held that the evidence did not establish a loan to 15 Glenburnie within the pleaded and contractual framework. [37], [55]
The Court did not need to decide each specific ground of appeal, including the challenges concerning the primary judge’s assessment of the evidence and inferences. It found it unnecessary to do so once the necessary elements concerning borrower and contractual coverage were not proved. [11]-[12], [49]
The Court also did not determine the substantive merits of the appellant’s argument under the Domestic Buildings Contract Act 1995 (Vic). It declined to permit that new point to be raised on appeal and added that it could not affect the proof issue. [53]
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Boga v 15 Glenburnie Rd Pty Ltd [2026] NSWCA 23
Hearing dates: 3 March 2026
Decision date: 10 March 2026
Before: Bell CJ at [1]
Mitchelmore JA at [2]
Adamson JA at [3]
Decision: (1) Dismiss the appeal.
(2) Order the appellant to pay the first respondent’s costs.
Catchwords: CONTRACT — loan agreement — whether payments made by lender to a third party fell within loan agreement — insufficient evidence to establish advances to borrower under loan agreement
COMMERCE — money counts — onus of proof — plaintiff bears onus of proving elements of cause of action — rejection of defendants’ case does not assist in proof of plaintiff’s case
APPEAL — nature of appeal — functions of appeal court — importance of identifying determinative question
Legislation Cited: Bankruptcy Act 1966 (NSW) s 60
Domestic Buildings Contract Act 1995 (Vic)
Supreme Court Act 1970 (NSW) s 75A
Cases Cited: Chattis Nominees Pty Ltd v Norman Ross Homeworks Pty Ltd (Receiver appointed) (in liq) (1992) 28 NSWLR 338
Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226; [1986] HCA 14
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Realestate.com.au Pty Ltd v Hardingham (2022) 277 CLR 115; [2022] HCA 39
Rose v Manno Kingsway Pty Limited as trustee for the Manno Kingsway Unit Trust (2025) 116 NSWLR 598; [2025] NSWCA 23
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12
Category: Principal judgment
Parties: Thomas Boga (Appellant)
15 Glenburnie Rd Pty Ltd (First Respondent)
Ahmad Abdulkader Sakr (Second Respondent)
Representation: Counsel:
G George (Appellant)
I Chatterjee (First Respondent)
Solicitors:
Elie Rahme and Associates Pty Ltd (Appellant)
Davies Moloney (First Respondent)
File Number(s): 2025/377168
Decisions under appeal
[This headnote is not to be read as part of the judgment]
The appellant, Thomas Boga, sought on appeal that the judgment sum awarded in the Supreme Court by Harrison AsJ on 22 September 2025 be increased by $700,000 plus interest to take account of three disputed payments alleged to be loans from him to 15 Glenburnie Rd Pty Ltd which were guaranteed by Mr Sakr and which were alleged to have been made pursuant to a loan agreement dated 28 October 2019 to which each was a party. The respondents denied that the disputed payments constituted loans or fell within the loan agreement.
The appellant accepted on appeal that he had to establish, in respect of each disputed payment, that the payment was a loan; that the loan was to 15 Glenburnie Rd Pty Ltd; and that the loan was covered by the loan agreement.
The Court held (Adamson JA, Bell CJ and Mitchelmore JA agreeing) dismissing the appeal:
(1) The appellant’s evidence, taken at its highest, was insufficient to prove that any of the disputed payments were made to 15 Glenburnie Rd Pty Ltd or that they were made on the same terms and conditions as the loan agreement: [35]-[37].
(2) The rejection by the Court below of the respondents’ positive defence did not assist the appellant to discharge his onus of proof: [52].
B****ELL CJ: I agree with Adamson JA.
MITCHELMORE JA: I agree with Adamson JA.
ADAMSON JA: Thomas Boga, the appellant, appeals, in part, against the judgment ordered in his favour by Harrison AsJ (the primary judge) against 15 Glenburnie Rd Pty Ltd (15 Glenburnie), the first respondent, and Ahmad Sakr, the second respondent in the sum of $167,000 plus interest, which amounted to a judgment sum of $735,547.21, including interest up to 5 September 2025.
The appellant seeks that the judgment sum be increased by $700,000 plus interest to take account of three payments alleged to be loans from him to 15 Glenburnie which were guaranteed by Mr Sakr and which were alleged to have been made pursuant to a loan agreement dated 28 October 2019 to which each was a party (the loan agreement). The performance of the loan agreement was secured by a mortgage granted by 15 Glenburnie to the applicant over a property known as 15 Glenburnie Road, Beveridge (the Beveridge property) which it purchased with the loan funds. The loan agreement, guarantee and mortgage are referred to more fully at [17]-[19] below.
The three grounds of appeal relate to these three payments (the disputed payments) as follows:
| Appeal ground | Payment date | Amount | M****ode of payment | Respondents’ characterisation of purpose of payment | | 1 | 27 December 2019 | $450,000 | Transfers from the appellant’s St George Bank account to Anthill Construction Pty Ltd. | For building job at a property in Mount Ridley Road, Craigieburn. | | 2 | 10 November 2020 | $100,000 | For building works at a property in Burrows Lane, Wollert. | | 3 | 19 July 2021 | $150,000 |
It was common ground that the appellant made each of the disputed payments to Anthill Construction Pty Ltd (Anthill Construction), a company which was incorporated in 2007 and of which Mr Sakr’s wife, Saly, was the sole director and shareholder. The primary judge found that Mr Sakr was a shadow director of Anthill Construction: J[6].
In the Court below, the respondents denied that the disputed payments constituted loans, either to 15 Glenburnie or to Mr Sakr personally. The respondents’ case in the Court below was that the appellant had made these payments to Anthill Construction for building works at development sites in which Semak Pty Ltd (Semak), a development company of which the appellant and his two sons were directors and equal shareholders, was involved. These two sites were in Mount Ridley Road, Craigieburn (the Craigieburn property) and Burrows Lane, Wollert (the Wollert property). The respondents relied, in part, on three handwritten invoices apparently issued by Anthill Construction, which corresponded with the amounts of the disputed payments and, approximately, with the dates. The invoices, which were not ultimately accepted as genuine, recorded, as follows:
| Invoice number | Date | Description on invoice | | 16 | 17 December 2019 | $300,000 - purchase of property + $150,000 “profit share”. | | 31 | 9 October 2020 | Variations for excavator hire (breaking rocks and soil removal) at Burrows Lane. | | 43 | 19 July 2021 | Variations for Structural steel difference price due to Covid 19 price changes/14 units at Burrow[s] Lane/Supply and fixed all structures. |
The respondents submitted in the Court below and 15 Glenburnie submitted in this Court that, irrespective of whether their positive defence case was accepted, the appellant had failed to establish the following elements of its cause of action in respect of any of the disputed payments:
the payment was a loan;
the loan was to 15 Glenburnie; and
the payment was subject to the loan agreement (with the consequence that the agreed rate of interest applied, Mr Sakr was liable as guarantor and the Beveridge property secured the amount).
The primary judge was not persuaded, on the balance of probabilities, that any of the three payments were loans and therefore rejected the part of the appellant’s claim which related to these payments. In these circumstances, her Honour did not address the other two matters ((2) and (3) above) raised by the respondents as to why they were not liable for the disputed payments.
Mr Sakr ceased to be a director or shareholder of 15 Glenburnie on 10 November 2025 and filed a debtor’s petition on 2 December 2025. As he is now bankrupt, these proceedings are stayed against him: s 60 of the Bankruptcy Act 1966 (NSW). Accordingly, the only active respondent to the appeal is 15 Glenburnie, for whom Mr Chatterjee (who appeared for both respondents in the Court below) appeared.
Mr George, who appeared on behalf of the appellant in the Court below and in this Court, accepted that unless he could persuade this Court of each of (1), (2) and (3) set out above, the appeal ought be dismissed and, in this event, that it was not necessary for the Court to address the grounds of appeal specifically. He also accepted that, although the primary judge had not made specific findings as to (2) and (3) above, it was open to this Court to decide for itself whether these matters had been established before addressing the grounds of appeal: see s 75A of the Supreme Court Act 1970 (NSW).
For the reasons which follow, I am not satisfied that the appellant has established either (2) or (3). Accordingly, the appeal ought be dismissed. In these circumstances, it is not necessary to address each of the specific challenges made in the grounds of appeal.
The commercial relationship between the appellant and Mr Sakr involved a number of transactions only some of which are presently relevant. The appellant had formerly operated a chain of restaurants comprising 31 stores over four cities and had subsequently become involved in property development. He met Mr Sakr in 2002 through a mutual friend, Tarik Solak.
In August 2015, Mr Sakr, who represented land owners in Victoria in sales transactions, introduced the appellant to the Wollert property. In September 2016 Semak purchased the Wollert property. In 2020, Semak obtained the relevant development approval and building permit for the construction of 12 two-bedroom and two three-bedroom apartments on the Wollert property: J[11]-[12]. Semak engaged Anthill Construction to perform the building work. The issue in the Court below about which version of the building contract had been signed by both parties need not be determined for the purposes of the appeal.
In November 2017, Mr Sakr contracted to purchase the Craigieburn property: J[13]. The appellant and Mr Sakr agreed to purchase it in partnership: J[14]. As Mr Sakr did not have sufficient funds to complete the purchase, Mount Ridley Developments Pty Ltd, a company in which Mr Sakr and the appellant’s son, Seyhan, held equal shares, completed the purchase on 9 November 2018 and became the proprietor: J[18]. In February 2019, Mr Sakr transferred his shares in Mount Ridley Developments Pty Ltd to a company associated with Mr Solak: J[19].
On 6 May 2019, Mr Sakr arranged for 15 Glenburnie to be incorporated, apparently for the purpose of purchasing the Beveridge property. The primary judge found that Mr Sakr was the director and alter ego of 15 Glenburnie: J[2].
On 30 May 2019, the appellant advanced $100,000 to Mr Sakr. On 5 June 2019, the appellant advanced a further $50,000 to Mr Sakr. On 28 October 2019, the appellant (as lender), 15 Glenburnie (as borrower) and Mr Sakr (as guarantor) entered into the loan agreement by deed: J[23]. The recitals to the loan agreement said:
A The Lender agrees to advance to the Borrower (or at the Borrower’s direction) by way of loan the sum referred to in the Fifth Part of the Schedule (“the Loan Moneys”).
B The Lender may from time to time, at the discretion of the Lender, advance further moneys to the Borrower (or at the Borrower’s direction).
C The Parties are entering into this Deed for the purpose of recording the terms on which all moneys have been, and will continue to be, advanced by the Lender to the Borrower and to provide security to the Lender for the moneys advanced.
The amount of the loan was $1.9 million and the term of the loan was two months. The “normal” interest rate was 10%, the default interest rate was 12% and interest was to be calculated daily. The loan was required to be repaid on or before 27 December 2019: J[23]-[26]. The sum of $1.9 million included the $150,000 which the appellant had already advanced to Mr Sakr.
15 Glenburnie’s purchase of the Beveridge property settled on 29 October 2019 upon the payment of $1,782,619.44, following a direction to pay given by 15 Glenburnie to the appellant in accordance with the loan agreement. The advance was secured by a mortgage over the Beveridge property granted by 15 Glenburnie to the appellant: J[32]. The evidence did not establish that 15 Glenburnie’s role was other than as a special purpose vehicle to own, and potentially develop, the Beveridge property.
The primary judge described the ambit of the present dispute as being “whether [the appellant] was lending the money to [either Mr Sakr or 15 Glenburnie] or paying his share of building costs to Anthill Construction”: J[47].
On 16 March 2023, Anthill Construction was wound up in insolvency and a liquidator appointed.
Both the appellant and Mr Sakr gave evidence in the Court below and were cross-examined. The primary judge made adverse credit findings against the appellant (J[319]) and Mr Sakr (J[322] and [326]) and drew a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference against Mr Sakr for his failure to call his wife, Saly: J[337].
None of these credibility findings was the subject of challenge in this Court. Nor are they relevant to the determination of the appeal since, for the reasons which follow, the appellant’s evidence, taken at its highest, was insufficient to discharge his onus of proof in respect of any of the disputed payments.
In the original statement of claim, which was filed on 14 November 2023, the appellant sued on the loan agreement and alleged that Mr Sakr guaranteed the due and punctual performance of repayment of the loan by 15 Glenburnie. The appellant’s pleaded case was, accordingly, that 15 Glenburnie was liable to the appellant as a borrower and that Mr Sakr’s liability arose as a result of his having guaranteed 15 Glenburnie’s obligations under the loan agreement.
The original statement of claim made no reference to any of the disputed payments. In the defence, the respondents admitted the loan agreement, that 15 Glenburnie was the borrower and that Mr Sakr was the guarantor of 15 Glenburnie’s liability.
An amended statement of claim filed on 9 May 2024 inserted the following allegations, with respect to the first disputed payment:
9B. On 27 December 2019, a further advance of $450,000 was made.
9C It was an express or implied term that the further advance referred to in the preceding paragraph was made on the terms and conditions set out in the [loan agreement].
11 They deny the allegation in paragraph 9B. While they acknowledge that the sum of $450,000.00 was paid by the Plaintiff to Anthill Construction Pty Ltd in relation to a building job at 505 Mount Ridley Road, Craigieburn they say that such payment was not a loan, nor was it part of monies advanced on the [loan] agreement.
12 They deny the allegations in paragraph 9C thereof.
13A After the Repayment Date. further advances were made.
Particulars
A. $45,000 on 23 February 2020.
B. $100,000 on 10 November 2020 [the second disputed payment].
C. $65,000 on 29 November 2020.
D. $20,000 on 31 March 2021.
E. $150,000 on 19 July 2021 [the third disputed payment].
13B It was an express or implied term that the further advances referred to in the preceding paragraph were .made on the terms and conditions set out in the [loan agreement].
The respondents denied the advances alleged in A, C and D of the particulars to paragraph 13A and said that the sums particularised in B and E were paid pursuant to an agreement with Anthill Construction in relation to building works on the Wollert property.
The appellant gave evidence in cross-examination that the alleged further advances particularised in A, C and D were cash amounts which he advanced to Mr Sakr personally for a short period only, on which he did not expect interest to be paid and which were not covered by the deed. The appellant did not challenge the primary judge’s rejection of his claims for these amounts. As indicated by the words in square brackets in the extract above, the amounts referred to in particulars B and E to paragraph 13A relate to the second and third disputed payments.
The primary judge was in error when her Honour concluded at Primary Judgment (PJ) [348] that on or around 27 December 2019, $450,000 was not advanced to the first respondent as a loan, given:
(a) the totality of the evidence;
(b) Jones v Dunkel inferences her Honour made;
(c) credibility findings her Honour made about the second respondent;
(d) her Honour’s reasoning process was flawed; and
(e) the burden and onus of proof.
[O]n 27 December 2019, Mr Sakr telephoned me and said he was tight for money and asked for another $450,000 which I felt comfortable transferring him because we had a deed and mortgage over his property.
Mr George could not point to any direct evidence to support the proposition alleged in paragraph 13B of the amended statement of claim (extracted above) that the “advance” was made to 15 Glenburnie or that it was made on the same terms and conditions as the loan agreement. However, he submitted that inferences ought be drawn that:
the transfer of $450,000 by the appellant to Anthill Construction was an advance made at the direction of Mr Sakr and that, as Mr Sakr was the alter ego of 15 Glenburnie, the monies were advanced at the direction of 15 Glenburnie, who therefore became the borrower; and
the loan agreement covered the transfer because of the parties’ course of dealing.
I reject each of these submissions. First, the appellant’s evidence that Mr Sakr had made the request as he was “tight for money” did not link the transfer of $450,000 to 15 Glenburnie. The appellant said he felt comfortable “transferring [the money to] him” because of the deed and mortgage. Under the loan agreement, 15 Glenburnie was the borrower and Mr Sakr was the guarantor. The mortgage secured only monies advanced by the appellant to 15 Glenburnie. That the appellant “felt comfortable” about transferring the money to Mr Sakr does not mean that the deed actually covered the transfer or that the mortgage over 15 Glenburnie would secure its repayment, even if it were a loan. The appellant’s subjective belief has no probative value in this respect.
Further, there was no evidence that 15 Glenburnie obtained any benefit from, or was otherwise involved in, the first disputed payment. Its role was limited to its ownership of the Beveridge property and it was not suggested that any of the disputed payments related to that property. This is to be contrasted with the monies advanced under the loan agreement which were used to purchase the Beveridge property, which, in turn, secured the repayment of the loan by 15 Glenburnie. Even accepting, as the primary judge did, that Mr Sakr was the alter ego of 15 Glenburnie, it did not follow that any advance to him was an advance to 15 Glenburnie.
Thus, the appellant’s evidence at its highest does not support the appellant’s case that the transfer of $450,000 was a loan to 15 Glenburnie, rather than a loan to Mr Sakr personally. If it was a loan to Mr Sakr, then it falls outside the pleaded case (since Mr Sakr’s liability to the appellant arises, on the pleading, only as a guarantor of 15 Glenburnie’s debts) and any claim against Mr Sakr is stayed in any event.
Nor do I accept Mr George’s submission (based on paragraphs 9C and 13B of the amended statement of claim) that the course of the parties’ dealings created, in effect, an estoppel by convention that any monies paid by the appellant at the request of Mr Sakr were treated as advances under the loan agreement which attracted the agreed interest rates and were secured by the Beveridge property.
Estoppel by convention is a form of estoppel founded … on the conduct of relations between the parties on the basis of an agreed or assumed state of facts, which both will be estopped from denying. … there is no estoppel unless it can be shown that the alleged assumption has in fact been adopted by the parties as the conventional basis of their relationship. … In the absence of proof of custom, there is no evidence that the parties adopted the alleged assumption.
(Citations omitted.)
Before custom can form the basis of an implied term or an estoppel by convention, “[t]here must be evidence that the custom relied on is so well known and acquiesced in that everyone making a contract in that situation can reasonably be presumed to have imported that term into the contract”: Con-Stan at 236; see also Realestate.com.au Pty Ltd v Hardingham (2022) 277 CLR 115; [2022] HCA 39 at [77] and [126] and Rose v Manno Kingsway Pty Limited as trustee for the Manno Kingsway Unit Trust (2025) 116 NSWLR 598; [2025] NSWCA 23 at [67]-[76] (Bell CJ, Mitchelmore JA and I agreeing).
Chattis Nominees Pty Ltd v Norman Ross Homeworks Pty Ltd (Receiver appointed) (in liq*)* (1992) 28 NSWLR 338 (Chattis) illustrates the application of the principle. Cohen J, at 343, held that because of a history of regular dealings between parties to a supply agreement, a contractual condition contained in the supplier’s invoice and not objected to by the purchaser became part of each individual contract of supply between those parties.
Unlike in Chattis, the evidence in the Court below did not reveal any relevant custom, convention or course of dealing. Relevantly, the only two amounts which the appellant advanced to Mr Sakr prior to 28 October 2019 totalled $150,000. The appellant’s evidence, which was not disputed, was that this loan “was not repaid and became part of the larger loan advanced in October 2019”. Therefore, the two antecedent loans became part of the single transaction which comprised the loan agreement. This was the extent of the “history” which pre-dated the first disputed payment of $450,000.
Further, even looking prospectively, the evidence did not establish any consistency in the dealings between the parties. For example, the appellant accepted in cross-examination that the cash payments particularised in A, C and D to paragraph 13A of the amended statement of claim (extracted above) were loans to Mr Sakr personally on 23 February 2020 ($45,000), 29 November 2020 ($65,000) and 31 March 2021 ($20,000) and were not covered by the loan agreement. The appellant’s evidence was that he did not charge Mr Sakr any interest on these amounts because they were only for a short period.
Further, the appellant deposed that he transferred $400,000 to Anthill Construction on 26 June 2020 as a progress payment for construction work which it had completed at the Wollert property and that this amount “did not relate to the loan agreement”. The applicant also deposed that he made other payments to Anthill Construction, which were not loans:
Apart from the transactions relating to the Loan Agreement, we also sent money to Anthill for progress payments of the construction of the Wollert Property.
Accordingly, the appellant has failed to establish that there was any estoppel by convention or term implied from a course of dealings that would warrant the loan agreement being treated as covering payments to which its express terms did not apply.
The following further matters are inconsistent with the disputed payments being loans to 15 Glenburnie (or, indeed to Mr Sakr):
the appellant accepted that, apart from the business records of the transfers of the disputed payments from him to Anthill Construction, there was no note, whether contemporaneous or otherwise which supported the proposition that these amounts were loans;
although the appellant and Mr Sakr had regular and often daily contact from about 2019 up until the appellant went overseas for eight months in 2022, there was no record of any message between them which referred, or which related, to any of the three disputed payments or which constituted a demand for their repayment;
no demand was made for the disputed payments in October 2023 when other text messages between the appellant and Mr Sakr indicated that the relationship between them had broken down, at least in part because the appellant refused to discharge the mortgage over the Beveridge property (which 15 Glenburnie had already contracted to sell);
it was common ground that there was no ledger which recorded the balance of payments between the appellant and Mr Sakr or 15 Glenburnie;
none of the three disputed payments was claimed in the original statement of claim filed on 14 November 2023; and
the first demand ever made by the appellant for any of the three disputed payments was made in the amended statement of claim filed on 9 May 2024, some four and a half years after the first disputed payment was made.
For these reasons, the appellant did not establish that, even if the first disputed payment of $450,000 were a loan, it was either a loan to 15 Glenburnie or covered by the loan agreement.
In these circumstances, it does not assist the appellant to discharge his onus of proof that the primary judge did not accept the respondents’ case on the first disputed payment or that the “invoices” apparently issued by Anthill Construction in the amounts of the disputed payments, which were tendered by the respondents in the Court below, were not regarded as genuine.
For these reasons, the appellant’s claim for the first disputed payment of $450,000 must be rejected because the appellant failed to discharge his onus of proving that, if a loan, it was a loan to 15 Glenburnie and that it was covered by the loan agreement. Accordingly, the appellant’s appeal in respect of the first disputed payment must fail. In these circumstances, as Mr George accepted, it is not necessary to address ground 1.
In early November 2020 Mr Sakr called me asking for another loan of $100,000 which I sent him on the 10 November 2020 by way of bank transfer. Exhibited hereto and marked “TB-14” is a copy of a telegraphic transfer I made to Anthill Constructions Pty Ltd on 10 November 2020. The same page includes the $400,000.00 transfer I made to Anthill on 26 June 2020 as set out in paragraph 63 above.
For the reasons given above with respect to the first disputed payment, this evidence, together with the other evidence adduced by the appellant, is insufficient to prove that the $100,000 was a loan to 15 Glenburnie or that it was covered by the loan agreement.
It is evident from the primary judge’s reasons at J[361], that her Honour considered that the second disputed payment was for an amount that the appellant’s entity owed to Anthill Construction under the Wollert contract. However, for the reasons given above, her Honour did not need to be positively satisfied of the respondents’ case in order to reject the appellant’s case that the second disputed payment was a loan from the appellant to 15 Glenburnie. The onus of proof was on the appellant. If there was any error in the primary judge’s finding as to the purpose of the second disputed payment, it does not, in my view, affect the result since the appellant did not prove on the balance of probabilities that the amount constituted a loan from him to 15 Glenburnie.
I note for completeness that the appellant sought, on appeal, to raise a further basis for rejecting the hypothesis advanced by the respondents in the Court below: that the amount claimed in the invoice rendered by Anthill Construction did not comply with the contract because it was in breach of the Domestic Buildings Contract Act 1995 (Vic) as it purported to charge for breaking rocks and soil removal. As this matter was not raised by the appellant in the Court below, the appellant ought not be permitted to raise such a point for the first time on appeal since further evidence might have been led or it might have been capable of explanation or qualification: see Coulton v Holcombe (1986) 162 CLR 1 at 6-8; [1986] HCA 33 and Water Board v Moustakas (1988) 180 CLR 491 at 197; [1988] HCA 12. In any event, this matter was not capable of affecting the question whether the appellant discharged his onus of proof with respect to the second disputed payment.
In mid-July 2021 Mr Sakr called me and asked for another loan of $150,000 which I transferred by way of bank transfer on the 19 July 2021. The balance owing increased to $1,239,000.00. Exhibited hereto and marked “TB-19” is a copy of the Telegraphic transfer I made to Anthill Construction as Mr Sakr’s direction on 19 July 2021.
For the reasons given above with respect to the first and second disputed payments, the appellant’s evidence of the third disputed payment is insufficient to prove that there was a loan of $150,000 to 15 Glenburnie (as opposed to other available hypotheses, such as that the payment constituted a loan to Anthill Construction, a progress payment to Anthill Construction or funds to permit Anthill Construction to construct the development on the Wollert property).
For these reasons, the primary judge was correct to reject the appellant’s claim for the third disputed payment.
For the reasons given above, I propose the following orders:
Dismiss the appeal.
Order the appellant to pay the first respondent’s costs.
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Boga
15 Glenburnie Rd Pty Ltd [2026] NSWCA 23
(1992) 28 NSWLR 338
(1986) 160 CLR 226
(1986) 162 CLR 1
(1959) 101 CLR 298
(2022) 277 CLR 115
(2025) 116 NSWLR 598
(1988) 180 CLR 491
Appeal dismissed. The appellant was ordered to pay the first respondent’s costs. [58]
The relevant principle was summarised in Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 (Con-Stan) at 244; [1986] HCA 14: