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[2026] NSWSC 118
General information, not legal advice.
Supreme Court of NSW
2026-02-25
Meek J
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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: Cox v Zammar [2026] NSWSC 118
Hearing dates: 19 February 2026
Date of orders: 25 February 2026
Decision date: 25 February 2026
Jurisdiction: Equity
Before: Meek J
Decision: Findings for the plaintiff on claims for (a) rectification of a debt agreement, (b) $1.2 million under the agreement and (c) $18,069.90 of post agreement payments
Catchwords: CONTRACT — Loans — Discernment of arrangements between parties — Initial and ongoing multiple discrete loans — Subsequent arrangements for the defendant to repay the plaintiff a larger amount than the amount actually advanced as a form of compensation for delayed repayment of funds to him and in consideration for the plaintiff's ongoing provision of amounts to the defendant personally and in part to fund legal fees for the defendant's claim against a third party — Evolvement of arrangements led to increasingly larger sums proffered by the defendant and eventually a sum of $1.2 million recorded in a debt agreement
PLEADINGS — Admissions — Contention that absence of a defence leads to deemed admissions — Conflicting authorities as to effect of absence of a defence — Provisionally, the better view is that the absence of a defence does not give rise to “deemed admissions”, rather it leads to the consequence that the plaintiff may apply for default judgment
CONTRACT — Rectification — Common mistake —No requirement for communication of common intention by express statement, but it must established to be the parties' actual intention mutually held, viewed objectively from their words or actions
CONTRACT — Enforceability – Consideration of alleged impugning factors being penalty, “oppressive and unconscionable term”, “reading down” (an amount) and “financial stress” — Impugning factors rejected
WORDS & PHRASES – ‘oppressive’, ‘unconscionable’, ‘financial stress’
Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2006 (NSW)
Cases Cited: Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205; [2012] HCA 30
Australian Securities and Investments Commission (ASIC) v Kobelt (2019) 267 CLR 1; [2019] HCA 18.
Balout v Touma; Dobro Dosle Pty Limited t/as Amalgamated Investments Trust v Balout [2025] NSWSC 459
Bauskis v Luew [2013] NSWCA 297
Bishopsgate Insurance Australia Ltd v Commonwealth Engineering (NSW) Pty Ltd [1981] 1 NSWLR 429
Brady v Brady [2025] NSWSC 217
Browne v Dunn (1893) 6 R 67
Bush v National Australia Bank Ltd (1992) 35 NSWLR 390
Coshott v Sakic (1998) 44 NSWLR 667
ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24; (2021) 388 ALR 128
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Heydon v Perpetual Executors Trustees & Agency Co (WA) Ltd (1930) 45 CLR 111
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336; (1973) 1 ALR 169
MY Distributors Pty Ltd v Omaq Pty Ltd (1992) 36 FCR 578
Ogilvie v Adams [1981] VR 1041
Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525 [2016] HCA 28
Re Hayvio Pty Ltd [2011] NSWSC 1125
Rose v Manno Kingsway Pty Ltd (2025) 116 NSWLR 598; [2025] NSWCA 23
Schmierer v Taouk (2004) 207 ALR 301; [2004] NSWSC 345
Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; 2016 [HCA] 47
Sneddon v New South Wales [2012] NSWCA 351
Thunder Studios Inc (California) v Kazal (No 9) [2020] FCA 846
Trust Co of Australia Ltd, v Perpetual Trustees (WA) Limited (No 2) (1995) 36 NSWLR 654
Wheatley v Peek [2025] NSWCA 265
Young v Queensland Trustees Ltd (1956) 99 CLR 560
Xia v Santah Pty Ltd [2003] NSWSC 807
Texts Cited: Australian Government, Australian Institute of Health and Welfare, ‘Mental Health’ Financial stress and mental health (Web Page, 2 December 2025) (see endnotes for accessible link)
Dombal, Ryan “When you’d buy vinyl, you’d have this lovely-sized object with a lovely picture, and you’d read the lyrics and usually there was something artistic that went with it.” Ryan Dombal, Interview with Kate Bush ‘The elusive art-rock originator on her time-traveling new LP, Director’s Cut’ Pitchfork (online, 15 May 2011) (see endnotes for accessible link)
Halperin, Shirley, ‘Duran Duran’s Simon LeBon: ‘We Were Part of the Record Industry’s Demise. It Wasn’t a Great Experience’ The Hollywood Reporter (online, 23 December, 2010) (see endnotes for accessible link)
Isaac, Mike, ‘Neil Young Trumpets High-Quality Digital Music, With Steve Jobs’ Blessing’ Wired (online, 31 January 2012) (see endnotes for accessible link)
Luke 7:35 Bible - New International Version (proved right); Bible – English Standard Version (justified).
Macquarie Dictionary, online ed
Seddon, Nick, and Bigwood, Rick, Cheshire & Fifoot Law of Contract (LexisNexis Australia, online at February 2026)
Category: Principal judgment
Parties: David Cox – Plaintiff
Ziad Zammar – Defendant
Representation: Counsel:
D Emmerig – Plaintiff
Solicitors:
MistryFallahi Lawyers & Business Advisors – Plaintiff
File Number(s): 2025/00076425
HIS HONOUR: In the eclectic world of music, notable artists, whilst acknowledging technological recording advancements, speak of an enduring affection for the vinyl medium. Simon Le Bon has said “There’s no question that a vinyl record is a lot nicer than a CD. It’s nicer to hold in your hands, you can do more with it.” [1] Kate Bush (whose song “Running up that Hill” has a resurgent audience having attracted a new generation of listeners through the immensely popular Netflix Series “Stranger Things” [2] ) is to like effect [3] . Neil Young has remarked “Steve Jobs was a digital pioneer, but when he went home, he listened to vinyl.” [4]
In September 2022, a shared interest in vinyl records was the catalyst for David Cox (plaintiff), a chef then living in the Netherlands connecting via Facebook marketplace with Ziad Zammar (defendant) then residing in a Perth suburb in Western Australia. To this day the parties have never met in person. For a season of about a year, a rapport was forged and trust built.
Requests depending on their nature, size and cost will test the mettle of a friendship and may readily expose underlying traits and vulnerabilities.
From early September 2023, the defendant’s casual calls for money, met by the plaintiff, led to the defendant seeking further funds. Upon the plaintiff pressing his friend for an explanation, the defendant admitted to having a gambling addiction. For some, maybe many, the relationship and lending might have abruptly ceased at that point. However, having overcome alcohol addiction himself, the plaintiff “empathised with” the defendant, making him “more inclined to help him” [5] and leading him to accommodate the requests. The ongoing lending in that sense is explicable notwithstanding the plaintiff felt manipulated by the defendant [6] . However, “wisdom is proved right (or justified) by all her children” [7] and the initial connection, untainted by financial ties, was progressively undermined and the friendship, ultimately, irretrievably wounded.
Progressive lending over about 17 months culminated in the signing of a document (debt agreement), in January 2005 which, recorded the plaintiff agreeing to loan the defendant “the sum of $1,200,000 (the "Loan"), inclusive of interest and damages”, ($1****.2 million sum), a sum more than twice the actual amounts lent.
That debt agreement forms the centrepiece of a dispute between the parties in which the plaintiff seeks to recover either the $1,200,000 sum and further advances or the total of the sums actually lent.
The claim of the plaintiff is essentially to recover monies lent. Initially, there were discrete loans as between the plaintiff and the defendant. However, as recounted below, from approximately July 2024, the nature of the arrangements between the parties changed.
In the summons, the plaintiff simply claimed as final relief "damages" with other claims for interest pursuant to s 100 and 101 of the Civil Procedure Act 2005 (NSW) (C****PA).
In the statement of claim, the plaintiff sought relief as follows:
1 Judgement [sic] for the Plaintiff against the Defendant for $1,220,854.90.
2 An order that clause 1 of the Debt Agreement dated 9 January 2025 be rectified by substituting the text of the clause with:
“The Borrower agrees to pay the Lender the sum of $1,200,000 (the ‘Loan’), inclusive of interest and damages”.
3 In the alternative to Prayer 1 and 2, judgment for the Plaintiff against the Defendant for $509,644.23.
4 Interest pursuant to section 100 of the Civil Procedure Act 2005 (NSW).
5 Costs.
6 Such further or other order as the Court sees fit.
The "pleadings and particulars” part of the statement of claim sets out a number of headings which, in a number of ways connect with the relief claimed. Essentially, the plaintiff pleads that:
between 1 November 2022 and 21 January 2025, there were various loan agreements giving rise to a total advance in the sum of $488,789.33 (pre-agreement loans);
on around 21 January 2025, the parties entered into an agreement in relation to the pre-agreement loans (debt agreement);
cl 1 of the debt agreement is inaccurate such that a claim for rectification is sought;
further advances between 22 January 2025 and 10 February 2025 were made totalling $20,854.90 (post agreement loans);
there were failures to pay in respect of the pre-agreement loans, debt agreement, and the post agreement loans such that recovery is appropriate.
In September 2025, by reference to a loan spreadsheet (Spreadsheet), a revised total of $508,456.23 was claimed for the period 3 September 2023 to 10 February 2025 [8] .
Finally just before the hearing, a further revised amount of $505,671.23 was claimed after giving credit for sums paid during the course of 2025 [9] . That new calculation is not per se disputed [10] .
The Spreadsheet is said to contain approximately 530 individual loan transactions.
The approach taken by the plaintiff to proving the advances has been to provide documentary evidence from his bank accounts on the one hand and the defendant’s bank accounts on the other hand, to demonstrate the amounts transferred from the plaintiff to the defendant. Whilst the plaintiff has provided some evidence and some documents regarding certain of the requests, the plaintiff has not attempted to set out individual discussions in respect of each of the numerous transactions.
Despite the absence of any defence and affidavit or witness statement from the defendant consequent upon pre-trial directions that I had made on 19 December 2025, the parties provided respective lists of issues. On 3 February 2026, Ms Smith provided to my Associate a combined list of issues regarding:
the debt agreement (liability, rectification, enforceability);
the money advanced (amount advanced and alleged breach); and
relief.
It is evident from this ‘Combined List’ document, the submissions and matters raised on the hearing that the following were the real issues in dispute:
Whether the failure of the defendant to file any defence gave rise to deemed admissions (deemed admissions issue)?
What (if any) arrangement between the parties justifies the claim for the $1.2 million sum well beyond the amount actually lent (debt issue)?
Should the debt agreement be rectified (rectification issue)?
Is the $1.2 million sum stated in the debt agreement enforceable and in particular: (a) does it constitute an enforceable penalty; (b) is it oppressive or unconscionable; (c) should it be read down to reflect the true principal advanced; and (d) is it impugned by the defendant’s assertion of “financial stress” as noted below (enforceability issue)?
Prior to addressing these issues, it is appropriate to set out certain of the background details that lead to the lending, the procedural history bearing upon the evidence in the matter, and the deemed admissions issue.
The matter was listed before me for hearing on 19 February 2026. Mr Emmerig of counsel appeared for the plaintiff. The defendant who is located in Western Australia has never physically appeared in person in the proceedings.
Proceedings in Supreme Court are generally held in person [11] . Attendance by AVL may be permitted but is a departure from or an exception to the general position. The defendant requested to appear by AVL. The plaintiff took no objection to that course. I permitted that to occur.
For the purposes of the hearing, the plaintiff prepared a form of Court Book (Court Book or CB). The Court Book contained the summons filed on 26 February 2025 and the statement of claim filed on 16 April 2025.
In the context in which the defendant had not complied with Court directions to file a defence or evidence, I sought to understand from him his position regarding the issues in the case. It became clear that the defendant accepted that he had:
been advanced approximately $508,000 which [arithmetically] after repayments was now a balance of $505,671.23 [13] ;
a responsibility to repay that balance [14] ;
signed the debt agreement [15] ; and
agreed to pay a sum of $1.2 million by 20 January 2025 [16] .
Significantly, apart from challenging his liability for the $1.2 million sum as distinct from the amount actually lent to him, what the defendant mainly sought was an instalment order to pay his acknowledged debts. He stated [17]
However, the main point I want to put forward today is that I am committing to repaying that principal debt, and respectfully ask the Court to allow repayment by instalments of $550 a week so that I can fulfil my obligations responsibly. I really just ‑ I wish to resolve this matter in good faith and move on.
Included in the Court Book were three affidavits:
the defendant's affidavit affirmed 26 March 2025 (D1) - being an interlocutory affidavit in compliance with asset disclosure orders;
the affidavit of Jana Smith (Ms Smith), a solicitor in the employ of the plaintiff’s solicitors, affirmed 8 September 2025 (JS1) - setting out the procedural history of the matter; and
the affidavit of the plaintiff affirmed 10 September 2025 (P1) - in chief essentially in substitution for his is affidavit affirmed on 25 February 2025 used in support of the application for freezing orders.
In addition, there was tendered a bundle of documents behind the final tab of the Court Book substantially drawn from the exhibit to the plaintiff's affidavit and subpoenaed documents.
The plaintiff provided a Supplementary Court Book (SCB) which contained two further affidavits being:
an earlier affidavit of the plaintiff affirmed on 2 March 2025 (P2) - addressing a calculation error in his initial affidavit and providing some further details about the debt agreement and correspondence; and
a further affidavit from Ms Smith affirmed 18 February 2026 (JS2) - which addresses a number of matters including relevantly:
(a) updating the current amount unpaid having regard to payments made by the defendant during the pendency of the proceedings between 17 May 2025 and 14 November 2025; (b) correspondence between Ms Smith and the defendant and in between the parties; and, (c) providing an additional bank statement.
On the hearing, the defendant did not object to any of the plaintiff's evidence [21] .
I expressly raised with the defendant the fact that there had been an order for him to put on evidence which he had not complied with.
Nonetheless, I asked him whether he wished to attempt to place before the Court any evidence on the matter. I explained the possibility that, for example, he might wish to seek to be sworn in to give oral evidence by seeking permission of the Court to do so. The defendant did not seek to adduce any such evidence [22] .
In this case, the requisite standard of proof for determining the facts in issue is on the balance of probabilities [23] .
Without limiting the matters the Court may take into account in deciding whether it is so satisfied that the facts in issue are established, it is to take into account [24] :
the nature of the cause of action or defence;
the nature of the subject‐matter of the proceeding; and
the gravity of the matters alleged.
Evidence should be approached and weighed having regard to objective surrounding facts which are either undisputed or established by contemporaneous documents, logic and the inherent probabilities of life as they bear upon the events [25] . An important aspect of fact-finding is the documents and events have to be understood in their proper context [26] .
I asked the defendant whether he wished to cross examine the plaintiff. I explained to the defendant the purposes of cross examination. Following that explanation, he indicated that he did wish to cross examine the plaintiff. The plaintiff was in the precincts of the Court and Mr Emmerig did not oppose the plaintiff being called for cross examination albeit that no prior such notice had been given [27] .
I explained to the defendant that if he wished to ultimately put a submission to me that the plaintiff's evidence on some particular matter should not be accepted then as a matter of procedural fairness (referencing the rule in Browne v Dunn (1893) 6 R 67), he would need to put that to the plaintiff. The defendant did briefly cross examine the plaintiff.
The cross-examination established:
the plaintiff had transferred to the defendant the sum of approximately $508,000 rather than $1.2 million [28] .
the plaintiff disputed that there was any discussion to the effect that if defendant lost his money or something happened to his money, or he was not able to pay the $1.2 million that the plaintiff would be reasonable enough for the defendant just to pay the amount that was actually borrowed [29] .
Nothing arose from the very brief cross-examination of the plaintiff that caused me to doubt that the plaintiff was advancing anything other than a credible and reliable account of the events bearing upon the matter.
No issue regarding the credibility of the defendant's evidence arose by dint of the fact that the defendant did not give evidence in the matter. His affidavit (D1) was read by Mr Emmerig in the plaintiff's case. Indeed, on the hearing the defendant (as recounted above) made a number of frank acknowledgements.
The parties communications were by messenger, text messages, phone calls and email [30] .
Broadly speaking, I accept the plaintiff's evidence regarding the events of the matter and advances of monies as a loan. Some degree of the plaintiff’s affidavit evidence regarding conversations is simply drawn from messages (reproduced in the Court Book) between the parties bearing upon a number of the requests for monies [31] , requests to “borrow” [32] and promises of payment [33] , and excuses about delayed payment or non-payment [34] . The loan advances are supported by bank records [35] .
The factual findings that I make below are essentially based upon the narrative from the plaintiff in his affidavit evidence (which I accept) substantially both underpinned and contextualised by documentary material in the Court Book.
During submissions, Mr Emmerig stated [36] that the failure of the plaintiff to give evidence in the matter should give rise to a Jones v Dunkel [37] inference.
The inferences permitted to be drawn under the ‘rule’ are not ‘at large’ but explained by the High Court in many cases including Kuhl v Zurich Financial Services Australia Ltd [38] .
Payne JA recently explained in Wheatley v Peek [2025] NSWCA 265 (Wheatley) [39]
63. The limitations of the principle were addressed in SSABR Pty Ltd v AMA Group Limited [2024] NSWCA 175 where Stern JA, with whom Ward P and Price AJA agreed, said the following:
[161] As is well established, Jones v Dunkel cannot be used to draw a positive inference if the evidence does not otherwise admit of a rationally drawn inference: see eg Galea v Bagtrans Pty Ltd [2010] NSWCA 350 at [2] (Allsop P, Macfarlan JA agreeing). It does not permit a court to infer that the uncalled evidence would have been positively damaging to a party’s case, nor does it supply missing gaps in the evidence: RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270 at [161] (Ward JA, as her Honour then was, Basten and Meagher JJA agreeing).
From late 2022 until around August to September 2023, the plaintiff and the defendant communicated at least on a weekly basis and to the plaintiff's belief, they had become good friends [44] .
The plaintiff indicates that the defendant advanced various reasons for needing the funds, including owing money to others, needing money for accommodation, his salary not coming through, legal expenses, family emergencies, groceries and various other family reasons. Loans were made by the plaintiff with, he asserts, promises by the defendant for repayment [45] .
From about September 2023, for a further six months until March 2024, there was a hiatus in contact between the parties. The plaintiff says that from March 2024, the defendant began contacting him again and his request for loans began to increase in intensity and nature [46] .
Subsequent to the gambling disclosure by the defendant, on 31 March 2024 the defendant sent the plaintiff a draft form of loan agreement in relation to amounts then owing by him [47] . It specified an amount of $2,090.50 plus 5% interest. Within a day (1 April 2024) an amended agreement was sent referencing a loan amount of $4,340.50 plus 15% interest [48] .
On 1, 4 and 6 April 2024, there was correspondence between the parties in which on one view, the defendant indicated that he had engaged in manipulative behaviour and the plaintiff for his part, asserted that he had felt manipulated [49] .
On 14 April 2024, the defendant sent the plaintiff a message indicating that there had been a deposit of $3,000 to the plaintiff's account. The amount was not in fact received [50] .
Late on 23 April 2024, the defendant texted the plaintiff and, inter alia, acknowledged that the reference to $3,000 was a lie and that he had actually gambled the money [51] .
Notwithstanding that startling disclosure, between 27 April 2024 and 29 May 2024, further requests were made by the defendant for payment and monies paid and promises made that were not kept [52] .
In late May 2024, the plaintiff indicates that the defendant messaged him indicating that he was not in control of his finances and had met a Vikrant Serali (Mr Serali), a gambling addiction sponsor to help him manage his finances.
The plaintiff says that at this stage his financial situation had deteriorated. In light of the frequent loans, he himself had begun to ask relatives, including his parents for loans so that he could then provide monies to the defendant [53] .
The defendant's disclosure of his "sponsor" Mr Serali was the catalyst for a different complexion placed on the relationship between the parties. It appears that the plaintiff's father (who seemingly was updated by the plaintiff regarding events) had some doubt as to whether Mr Serali even existed which led the plaintiff to correspond with Mr Serali by email on 20 June 2024. During the hearing, Mr Emmerig informed me that even the plaintiff now expresses doubt as to whether Mr Serali was a real person [54] . However, there is no need for me to make any determination as to that.
Thu, Oct 10, 2024 at 4:41 AM
I, ZIAD ISSAM ZAMMAR, solemnly swear that l owe DAVID EDWARD COX the sum of $975,000. This debt will be paid from the compensation that I have been awarded from the settlement of my case against Vikrant Serali. I sweat to also send David the settlement schedule copy of both Agreements this week to reassure him.
I have not been forced to write this by David. I have written this out of my own will and because it's the honest truth
…
Thu, Oct 10, 2024 at4:54AM
I, ZIAD ISSAM ZAMMAR, solemnly swear that I owe DAVID EDWARD COX the sum of $990,000. This debt will be paid from the compensation that I have been awarded from the settlement of my case against Vikrant Serali. I sweat to also send David the settlement schedule copy of both Agreements this week to reassure him.
…
Fri, Oct 11, 2024 at 9:01 PM
I, ZIAD ISSAM ZAMMAR, solemnly swear that I owe DAVID EDWARD COX the sum of $998,000. This debt will be
paid from the compensation that I have been awarded from the settlement of my case against Vikrant Serali. I sweat to also send David the settlement schedule copy of both Agreements this week to reassure him.
I have not been forced to write this by David. I have written this out of my own will and because it's the honest truth
By this time, I infer the plaintiff's father had had further discussions with him regarding his arrangements with the defendant.
On 23 October 2024, the plaintiff corresponded with the defendant noting that he and his father had "bankrolled all the legal costs so far, with no evidence that any of this [the money] exists" and requested for Sarah Wilson, apparently the defendant’s solicitor at that stage (Ms Wilson), the defendant, the plaintiff and his father to have a quick chat to give the plaintiff’s father some comfort about the matter so that he could feel "confident that this is real" [67] .
Seemingly that did not eventuate.
On 13 November 2024, the plaintiff received a message from Ms Wilson in which she confirmed that a sum of $416,800 had been transferred to him [68] .
By this stage, the plaintiff states that he was growing increasingly concerned that the defendant was unstable and threatening to kill himself. He said that he felt that he had no choice and was forced to continue to be led along by the defendant and if he did not continue to support him with loans then his settlement sum would never be released and the plaintiff in turn would never receive any payment from him [69] .
In late 2024, further promises were made. Thus, on 26 November 2024 the plaintiff received another email from the defendant forwarding an email apparently from the CBA stating that a payment of $500,000 had been submitted to the plaintiff's bank account with the description "debt repayment". Yet he never received it [70] .
On 12 December 2024, the plaintiff received a further email from the defendant addressed to another solicitor named Melissa (Mel) Williams who the plaintiff understood was the defendant's solicitor at the time, directing her to pay the plaintiff, a sum of $1.1 million [71] .
Seemingly by mid-to-late December 2024, the plaintiff says he was forced to move from the Netherlands to Australia to live with his parents because of the overwhelming financial burden of advancing loans to the defendant [72] . The plaintiff claims the defendant’s failure to repay the funds to him had a significant impact on him both financially and mentally, he being diagnosed with depression and suffering from stress-related anxiety [73] .
114 On 8 January 2025, Ziad asked me for yet more money, and we had the following message exchange:
David: “I just keep flogging stuff for nothing.”
Ziad: “I will just give you 1.2m. 1.2m should cover it. We will put that in the agreement.”
David: “Okay. Tbh I just want this over with. Just like you. We don’t deserve this stress and angst.”
Ziad: “We don't”
Copies of these messages are at page 291 of the Exhibit.
115 On 9 January 2025, Ziad approached me and offered to put his obligation to pay $1,200,000 into a formal document. I agreed and I prepared the document and sent it to Ziad for signing. I did not engage a lawyer to help in preparing the document.
116 Pursuant to that agreement, Ziad agreed to pay $1,200,000.00, including interest and damages, by 20 January 2025 (Debt Agreement). A copy of the signed Debt Agreement is at pages 292 to 293 of the Exhibit.
117 On 12 January 2025, Ziad asked me for a loan of $600. When I pushed back, he sent me an iMessage saying, “$600! It doesn’t matter. I am going to give you 1.2m.” Ziad's reference to $600 was to another advance I made to him upon his request made to me on that day. Copies of these messages are at pages 294 to 295 of the Exhibit.
118 On 9 January 2025, I prepared the Debt Agreement and sent to Ziad for signing.
119 On 17 January 2025 at 12:40pm, I reminded Ziad to sign the Debt Agreement by saying to him:
“I sent that extra money.
Can you please print and sign the docs before you head out? Though the agreement is really important to me, you might also find it useful when you are at ANZ if they ask you to justify the $1.2m transfer to me (1 researched ANZ in-branch transfer and they said there is no limit but you need to fill in a form and show ID).”
Copies of these messages are at page 296 of the Exhibit. CB 345
120 On 18 January 2025, Ziad and I messaged each other:
“...Why don’t you visit Mel?
“I visited Mel last night and almost got arrested.
I prefer not.
Also, after I give you $1.2m, I am left with $600k.”
Copies of these messages are at page 297 of the Exhibit.
121 At the time, | understood Ziad's comments about getting arrested as referring to a dispute which had apparently arisen between Ziad and his solicitor Mel relating to the payment of her fees.
122 The Debt Agreement was executed by me on 17 January 2025 and by Ziad on 21 January 2025.
123 From my many communications with Ziad from at least July 2024, I had always understood that I would be remunerated for the advances made to him for an amount higher than the total value of the loans made plus interest. It was on this condition that I continued to make loans to Ziad, even when it was against my better judgment, because on numerous occasions he committed to pay me a large lump-sum in repayment. Ziad also used his promises to pay me these larger amounts as a bases to request that I make further advances to him.
DEBT AGREEMENT
This Debt Agreement ("Agreement”) is made and entered into as of 9™ January, 2025 by
and between:
Lender:
David Edward Cox of [address redacted]
Email: [redacted]
Phone Number: [redacted]
Borrower:
Ziad Zammar of [address redacted]
Email: [redacted]
Phone Number: [redacted]
1. Loan Amount
The Lender agrees to loan the Borrower the sum of $1,200,000 {the "Loan"), inclusive of interest and damages.
2. Purpose of Lean
The Loan shall be used for assisting Ziad with personal expenses including lawyer fees.
3. Interest Rate
The Loan shall bear interest at the rate of 0 % per annum. Interest is already incorporated in loan amount, Agreed by both parties.
- Repayment Terms
The Borrower agrees to repay the Loan in full, including interest, by 20" January 2025
Payments shall be made in the following manner: Bank Transfer made at the local ANZ branch (ANZ Perth) to the following account:
Bendigo Bank
Account Name: David Edward Cox
BSB: [redacted]
Account Number: [redacted]
5. Prepayment
The Borrower may prepay the Loan in whole or part without penalty.
- Default
In the event of default, including failure to make a payment when due, the Lender may declare the entire Loan amount, including accrued interest, immediately due and payable.
7. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of Australia
8. Miscellaneous
This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements or understandings, whether written or oral,
Any amendments to this Agreement must be in writing and signed by both parties.
The defendant did not pay the plaintiff $1.2 million on 20 January 2025 or at any point afterwards.
According to the plaintiff, at the time that the defendant signed the debt agreement on 21 January 2025, the unpaid advances made by him totalled $487,701.33 [77] .
On 22 January 2025, the defendant provided the plaintiff with a copy of an apparent lodgement receipt in the amount of $600,000 from the defendant to the plaintiff's Bendigo Saver bank account [78] .
The plaintiff says that the payment was not received by him, but he understood that this was a partial payment of the sum that the defendant agreed to pay him [79] .
On 23 January 2025, the defendant alerted the plaintiff that a sum of $1.2 million was "pending" [80] .
On the same day in response to a message from the plaintiff that his father was wanting some sort of assurance about the matter, the defendant messaged the plaintiff to the effect [81]
That agreement I signed for $1.2M is enough assurance
Unfucken believable
…..
$1.2 m that's coming through any minutes and I'm sitting like a piece of shit and talked down on after even signing that agreement:
Between 22 January 25 and 10 February 2025, the plaintiff says that he made further advances to the defendant in the sum of $20,754.90.
On 2 February 2025, the defendant provided the plaintiff with a copy of the lodgement receipt in the sum of $5,000 into his PayPal account. That payment also was not received by the plaintiff [82] .
On 4 February 2005, seemingly to reassure the plaintiff about his intention and ability to repay the amount under the debt agreement, the defendant sent the plaintiff correspondence enclosing a confirmation apparently from ANZ that the balance of the defendant’s ANZ bank account [number specified] was $1,810,442.00 [83] .
That document is, let me use the expression, of “doubtful reliability”. There is other evidence tendered in the proceedings being an interim statement of account of that particular account which shows that the actual balance of the defendant's specified account was at that stage nothing like $1.8 million, but rather $931.40 [84] .
Mr Emmerig submits this is one of the elements of the case which show that any unconscionability was on the defendant’s side.
On 26 February 2025, the plaintiff having conducted some investigations believing that the defendant did not own any property and fearing that he would not recover his money commenced these proceedings by summons filed seeking urgent relief by way of freezing orders with final relief being claimed for damages, interest and costs.
The defendant has had a sporadic history of involvement in the proceedings. On some occasions he has appeared by AVL and on other occasions he has not appeared at all. At no stage during the proceedings has the defendant filed a defence or any evidence. The procedural history of the matter is summarised in the affidavit of Ms Smith. It is unnecessary to recount all of it. However, the following matters bear upon the way the case has been presented at final hearing.
On 7 March 2025, an order was made by Richmond J that the matter proceed by way of pleadings. Ordinarily in a matter in which a statement of claim has been filed, unless the Court orders otherwise, witness evidence at the trial must be given orally before the Court: Uniform Civil Procedure Rules (UCPR) r 31.1(1), (2).
In the early stages of the proceedings, in particular in March 2025, there were a number of orders made for the plaintiff to provide an asset disclosure affidavit which he eventually did. However, at this point orders were not generally made for the filing and serving of affidavit evidence.
On 27 June 2025, the Court made an order for the defendant to file and serve his defence "and evidence" by 9 July 2025. The defendant filed no defence nor any evidence. Properly construed, it seemed to me that that was an order pursuant to UCPR r 31.1(3) requiring the defendant to provide evidence for the trial either by affidavit or witness statement. The defendant did neither.
The defendant has not filed a defence. Under Uniform Civil Procedure Rules 2005 (NSW) r 14.26, the allegations of fact contained in the statement of claim are deemed to be admitted: see Macdonald v ASIC (2007) 73 NSWLR 612 at [49]; Quality Bakers Australia Pty Ltd v Yassim Modern Bakery Pty Ltd [2007] NSWSC 804 at [2]; Kazal v Thunder Studios Inc [2023] FCAFC 174 at [202]; cf Sneddon v New South Wales [2012] NSWCA 351 at [152] per Macfarlan JA.
14.26 Admission and traverse from pleadings
(1) An allegation of fact made by a party in a pleading is taken to be admitted by any opposite party required to plead in response unless—
(a) in the pleading in response, the opposite party traverses the allegation, or
(b) a joinder of issues under rule 14.27 operates as a denial of the allegation.
The proposition that the failure of a defendant to file a defence gives rise to deemed admissions of the allegations in the statement of claim is contestable and the subject of conflicting authorities.
The decision of the Full Court of the Federal Court in MY Distributors Pty Ltd v Omaq Pty Ltd (1992) 36 FCR 578 (MY Distributors) is contrary to the notion. In that case, their Honours held that the absence of a defence cannot constitute admission of the facts alleged in the statement of claim. One of the more recent decisions of the matter is that of Rares J in Thunder Studios Inc (California) v Kazal (No 9) [2020] FCA 846 in which his Honour referenced a number of cases taking the opposite view to MY Distributors.
Significantly, Pike J in Brady referenced the decision of Macfarlan JA in Sneddon v New South Wales [2012] NSWCA 351 (Sneddon) at [152] where his Honour stated as follows:
The use of the word "the" in the expression in (a) "in the pleading in response" indicates that that sub-rule is concerned with a situation where a pleading is in fact filed, not one, as here, where there is a failure to file a responsive pleading. The point only arises in relation to a defence as r 14.27 expressly deals with the absence of a reply to a defence, providing that there is an implied joinder of issue on that defence. Thus, the consequences of failing to file a defence are in my view not dealt with by r 14.26 but by Part 16 of the UCPR concerning default judgment.
Pike J appeared to be alive to the debate over the proposition and having recited the passage that I have referred to above stated "in any event, I accept the evidence of the plaintiff as set out above” [85] .
I do not consider that I should act upon Mr Emmerig’s submission that the allegations in the statement of claim are admitted for at least three reasons.
First, I was not taken to the conflicting authorities in the matter and it is clear that the defendant was in no position to assist the Court on the issue. Provisionally the better view is that the comments of Macfarlan JA in Sneddon are correct and the absence of a defence does not lead to the consequence that there are deemed admissions. Rather it leads to the consequence that the plaintiff may apply for default judgment.
The entitlement of a party to seek judgement on admissions under the UCPR is predicated on an admission actually having been made. UCPR r 17.7 provides:
If admissions are made by a party, whether by his or her pleadings or otherwise, the court may, on the application of any other party, give any judgment or make any order to which the other party is entitled on the admissions.
For the benefit of judgment to be availed of the admission of the party must be “by his or her pleadings or otherwise”. Conceptually, the words “or otherwise” might allow the possibility that an admission could arise by omission in the sense of failing to file a defence. However, that is, with respect, a curious notion. Leaving aside express statutory provisions which might deal with omissions to do things in certain circumstances, generally speaking under the common law, Australian courts do not act upon the basis that the failure of someone to say something about claims against them necessarily constitutes an admission sufficient to enable judgment to be given based on such mere failure without any further context.
Secondly, the notion that the "allegations of fact are admitted" begs the question of what is said to be the significance of the so-called admissions. The plaintiff has not applied in the proceeding for judgment on admissions, which is a procedure available pursuant to UCPR r 17.7. Further, nor has the plaintiff applied for default judgment under UCPR Part 16 (in particular r 16.6–16.7).
Thirdly, particularly in cases where a party seeks equitable relief, it is far from clear that the Court is obliged to grant a judgment on admissions. It has been said that courts of equity have adopted a practice over a long period of time not to make certain types of orders on admissions or without proper examination. The practice manifests itself in many ways [86] . It is not necessary for me to further explicate that proposition.
The burden of proving the fact that an advance of money was made by way of a loan is borne by the person who makes the advance [87] .That onus is not discharged by mere proof of the payment itself [88] .
Once it is admitted or established that an advance was made by way of a loan, the onus of proving that the loan has been repaid is borne by the borrower [89] .
In the absence of an agreement as to the time at which the loan would be repaid, it is repayable on demand [90] .
Where there are multiple agreements, generally speaking, the consideration which is given in the first ‘transaction’ cannot sustain a second contract [91] .
Further, a promise to perform an existing contractual duty or obligation is not consideration and fresh consideration is necessary to make valid an agreement which purports to vary another contractual agreement [92] .
Relatedly, there are principles dealing with forbearance to sue and compromise. It is not necessary for me to delve deeply into this. The principles are discussed at length in Cheshire & Fifoot ‘Law of Contract’ [93] .
There is a difference between arrangements in which there are multiple discrete agreements on the one hand and arrangements in which there is a payment of money in the context of conferral of a benefit.
During the course of the hearing, I sought to understand how the plaintiff justified his claim for the $1.2 million sum. I raised with Mr Emmerig the question of whether the $1.2 million or part of it might be said to have been a form of past consideration [94] .
Mr Emmerig submitted that payment of monies before the giving of a promise to confer a benefit is valid consideration for that promise if the act has been done at the promisor’s request and the parties understood that the act was to be remunerated by the conferment of a benefit - citing Rose per Bell CJ at [61] and [64] as follows:
[61] The primary judge also made reference to the Privy Council’s decision in Pao On v Lau Yiu Long [1980] AC 614 which is sometimes understood as creating an exception to the proposition that a promise may not be supported by past consideration. In that case, at 629, Lord Scarman said:
“An act done before the giving of a promise to make a payment or to confer some other benefit can sometimes be consideration for the promise. The act must have been done at the promisors’ request: the parties must have understood that the act was to be remunerated either by a payment or the conferment of some other benefit: and payment, or the conferment of a benefit, must have been legally enforceable had it been promised in advance.”
[62] As has been explained in Heydon on Contract at par 5.270 by reference to earlier cases, namely In re Casey’s Patents; Stewart v Casey [1892] 1 Ch 104; Kennedy v Broun (1863) 13 CBNS 677 143 ER 268; and Lampleigh v Brathwait (1615) Hob 105 80 ER 255:
“Assume that before a later promise is made, an act is done or a promise is given by a person who becomes the promisee of the later promise. Assume that act was done or promise given at the request of the later promisor. Assume that it was understood that payment for the earlier act or promise would be made. Assume that payment for the earlier act or promise, had that payment been promised in advance, would have been legally recoverable. In these circumstances the promisee can enforce the promise to pay for the act or promise despite the fact that the act or promise was ‘past’ in the sense that it took place before the promise.”
[63] In Casey, Bowen LJ explained the principle at 115–116 as follows:
“Even if it were true … that a past service cannot support a future promise, you must look at the document and see if the promise cannot receive a proper effect in some other way. Now, the fact of a past service raises an implication that at the time it was rendered it was to be paid for, and, if it was a service which was to be paid for, when you get in the subsequent document a promise to pay, that promise may be treated either as an admission which evidences or as a positive bargain which fixes the amount of that reasonable remuneration on the faith of which the service was originally rendered. So that here for past services there is ample justification for the promise to give the third share.”
[64] Pao On has been applied in Australia in the Federal Court in Re Douglas; Ex parte Starkey (1987) 15 FCR 475, and in the Supreme Court of New South Wales by Santow J (as his Honour then was) in Bluebird Investments Pty Ltd v Graf (1994) 13 ACSR 271 who said at 294:
“An act done (here payment of the money) before the giving of a promise to confer a benefit (here the promise to transfer the shares) is valid consideration for that promise if the act has been done at the promisor’s request (ie that of Bluebird Canada), the parties understood that the act was to be remunerated by the conferment of a benefit, and the conferment of the benefit would have been enforceable if it had been promised in advance …”
For the period up to about early July 2024, the arrangements between the parties appear to have been simply that the defendant requested money, the plaintiff provided funds and the funds were not repaid. On one view there were multiple such transactions.
However, there was a change of dynamic in the relationships between the parties. From about early July 2024 and certainly no later than 8 August 2024, the defendant informed the plaintiff that he would use the money expected to be reclaimed from Mr Serali to pay back the debts that he owed to the plaintiff and divide with the plaintiff a portion of his settlement with Mr Serali – but that he needed further monies to pay Mrs Peters. The plaintiff says that on this basis, he agreed to provide further loans to the defendant apparently to fund his legal fees in his dispute with Mr Serali and indeed thereafter did provide further monies to the defendant [95] . Consequently, from this point of time onwards, the plaintiff received communications both from Mr and Mrs Peters and the defendant providing updates about monies that apparently Mr Serali was prepared to pay to the defendant.
The plaintiff asserts and I accept that it was on the basis of ongoing promises, (including the prospect of receiving larger amounts than he had actually lent to the defendant) that he continued to lend monies to the defendant. His evidence in this regard is as follows [96] :
125 As the amounts of money I loaned to Ziad increased, so did the amounts he promised to pay me. Despite his ongoing manipulation, it was on the bases of these promises that I continued to provide further loans to Ziad, including to assist him with his legal fees in his apparent dispute with Vikrant to obtain the settlement sum from which I would be paid. Ziad also continued to make requests for loans by reference to the lump sums he had promised me, on the basis that I would ultimately be repaid more than the amounts which I had loaned him and the further sums he requested.
126 If it had not been for these promises, I would not have made any further loans because I would not have believed that there was any prospect of being repaid. Ziad's manipulation only succeeded because of his ongoing promises that I would ultimately be compensated for the loan amounts which I had made to him, which would allow me to repay my friends and family and repair my worsening financial position.
The plaintiff seeks to have the debt agreement rectified on the basis of a common mistake.
The purpose of rectification was described by Mr Emmerig in his submissions as follows [99]
85. The plaintiff submits that this is clear and convincing proof that the intention of both parties when entering into the Debt Agreement was that the agreement created a liability for the defendant to pay the plaintiff $1,200,000 “inclusive of interest and damages” to settle any obligations then accrued between the parties.
86. It is also apparent from the above that the Debt Agreement was intended to conform to the parties’ mutual intention. The plaintiff drafted the agreement to more formally reflect the agreement reached with the defendant on 8 January 2025 that the defendant would “give [you] 1.2m. 1.2m should cover it.” [100]
87. Further, as outlined above, clause 1 does not accord with the parties’ intention, because although the mutual intention of the plaintiff and the defendant was that the Debt Agreement record the defendant agreeing to pay the plaintiff the sum of $1,200,000 it refers to the Lender loaning the Borrower the sum of $1,200,000, to be repayable by 20 January 2025.
88. The Court would therefore order that clause 1 of the Debt Agreement be rectified to reflect this common intention to read:
“The Borrower agrees to pay the Lender the sum of $1,200,000 (the “Loan”) inclusive of interest and damages”.
Leaving aside statutory jurisdiction to rectify instruments, rectification is an equitable remedy, the purpose of which is to make the relevant instrument conform to the true agreement of the parties where the writing by common mistake fails to express that agreement accurately. [101]
For relief by rectification, it must be demonstrated that, at the time of the execution of the written instrument sought to be rectified: [102]
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.
There is no requirement for communication of that common intention by express statement [103] , but it must established to be the parties' actual intention mutually held, as viewed objectively from their words or actions [104] .
It is not disputed that the agreement has been signed by the respective parties on 17 and 21 January 2025 and witnessed on those dates.
It is not evident to me that properly contextualised, rectification is strictly necessary. Nonetheless, I am satisfied, in particular having regard to the defendant's statement during the hearing that the defendant did agree to pay the plaintiff the $1.2 million sum by 20 January 2025 [105] that that was the true agreement of the parties. In those circumstances I am prepared to order rectification of the agreement.
The term “penalty” refers to punishment, consisting of the imposition of an additional or different contractual liability, for non-observance of a “primary” contractual stipulation. It is a “collateral” stipulation “in the nature of a security for and in terrorem of the satisfaction of the primary stipulation” [106] .
Properly contextualised, I am not persuaded that the $1.2 million amount referenced in the debt agreement is a penalty.
The history leading up to the debt agreement reveals progressively increasing amounts which the defendant had promised or represented that he would pay the plaintiff to settle the existing debts in consideration of further advances. From late September 2024 these were summarised by Mr Emmerig in his submissions as follows:
on 23 September 2024, the sum of $645,000; [107]
on 10 October 2024, the sum of $975,000, then increased to $990,000; [108]
on 11 October 2024, the sum of $998,000; [109] and
on 12 December 2024, the sum of $1,100,000 [110] .
The first figure of $645,000 is indistinct on the documentation. However, I accept the other amounts were represented.
The context is as identified above that these were amounts progressively proffered by the defendant for the plaintiff to receive an amount larger than the amount actually advanced by the plaintiff, as a form of compensation for delayed repayment of funds to him and in consideration for the plaintiff's ongoing provision of amounts to the defendant personally and in part to fund legal fees for the defendant's claim against Mr Serali.
The defendant’s use of the expressions “an oppressive or unconscionable term” within the ‘Combined List’ of issues was not explained by him.
The ordinary meaning of the adjective “oppressive” conveys something that is burdensome, or unjustly harsh [111] . The ordinary meaning of the adjective “unconscionable” conveys the meanings of “unreasonably excessive”; “not in accordance with what is just all reasonable” and “not guided by conscience; unscrupulous” [112] .
Lawyers use the term “unconscionable” in a number of different senses. The meaning of “unconscionable” inevitably varies by reference to the context including whether it is referenced in a statute or otherwise [113] .
Initially, having regard to the claim for rectification, I was mindful of looking for the underlying communication between the parties that gave rise to the debt agreement. In that regard I considered the plaintiff’s version of events in January 2025. I examined carefully the four pages of message correspondence between the parties from 7-18 January 2025 [114] .
It has to be acknowledged that the messaging in that correspondence does not present in a calm and considered manner. It has various manic and desperate aspects to it, particularly the messaging on 12 January 2025. The full narrative is set out in the Court Book but it includes phrases “This is how desperate I am to fucking finish this”, “Please put me out of my misery…”, “There is no more energy my tank”, “Just end this for me”, “I AN [SIC] ABOUT TO COLLAPSE”, “I FEEL DIZZY MAN”, “THIS IS THE MOST IMPORTANT NIGHT OF MY LIFE” “NO MORE”, “NO MORE”, “FUCK FUCK”.
The messaging on 17 January 2025 contains a narrative about transfers of money apparently from Melbourne and the defendant stating “I’m starving I hAve not eaten since lunch yesterday”. On the afternoon of 18 January 2025, the messaging contains statement that the defendant had visited Mel (Williams) the previous evening “and almost got arrested”.
During the hearing I questioned the defendant about his references in the statement of issues and in particular his use of the word "unconscionable". I asked him whether he was intimating that the agreement had been entered into in the context in which he was pressured into it, or what the position was. The defendant frankly accepted that he was not pressured into the agreement by the plaintiff [115] and that it was he himself who had put forward the proposal [116] . Indeed, when I referenced the other matters that he had raised in the list of issues as to whether the agreement was oppressive or unconscionable and should be read down to reflect the true principal advanced, the defendant stated he did not know whether "unconscionable" was the right word [117] .
Despite opportunity, he did not seek to adduce evidence of unconscionability [118] nor explain or elaborate how he contended that the term for the $1.2 million amount was oppressive or unconscionable. Notwithstanding that I had explained to the defendant the permissible purposes of submissions (addressing the evidence which the litigant contends the judge should accept or reject, matters which the litigant says may cast doubt on or defeat the plaintiff's claim or otherwise support the litigant’s defences [119] ) the defendant did not seek to cast doubt on the plaintiff's evidence.
Financial stress refers to situations where households struggle to meet everyday financial commitments or access emergency funds due to limited financial resources (ABS 2023a).
Significantly, notwithstanding that I explained to the defendant the court procedure, he chose not to adduce any evidence.
There are some indications on the evidence that the defendant has had at times very little financial means. The affidavit the defendant provided in relation to the asset disclosure order shows that his assets at that time (26 March 2025) totalled less than $10,000. Conceptually, one might infer that the fact that the defendant made constant requests for money to the plaintiff and was generally unable to pay funds suggests he was under financial stress. However, the defendant did not choose to lead specific evidence about his financial position in January 2025. I do not consider that I can simply infer that the defendant was under “financial stress”, relevantly to support some finding that the debt agreement was unenforceable.
Ultimately my findings are that:
Clause 1 of the debt agreement dated 9 January 2025 and signed by the parties respectively on 17 and 21 January 2025 be rectified by substituting the text of the clause with:
"The Borrower agrees to pay the Lender the sum of $1.2 million (the "Loan"), inclusive of interest and damages".
(a) $1.2 million; and (b) the net amount of the post agreement payments (i.e. net after repayments) in the sum of $18,069.90 ($20,854.90 minus $2,785).
The plaintiff did not seek interest on the $1.2 million sum [122] .
However, the plaintiff did seek pre-judgment interest on the post agreement loans. There was no agreement in respect of interest in regard to those payments.
The Court has power to award interest pursuant to CPA s 100. There is no reason why interest should be denied to the plaintiff. I consider that the plaintiff should be awarded pre-judgment interest pursuant to CPA s 100 on the net amount of post-judgment loans.
There is a question regarding the date(s) when interest should be calculated from in respect of that sum. There were 4 amounts lent by the plaintiff to the defendant over the period 5-10 February 2025 totalling $20,854.90 [123] . There were 13 payments made by the defendant to the plaintiff of the period 17 May 2025 – 14 November 2025 [124] . There is an inherent messiness in doing multiple calculations on ever-changing net balances over that period of time. A pragmatic way of addressing the matter may be to simply perform a calculation of interest on the net sum of $18,069.90 as and from 15 November 2025.
However, ultimately, it is a matter for the plaintiff to indicate what he proposes in that regard.
The findings that I have set out above address the plaintiff’s claims for relief. Having regard to the need for some precision regarding calculation of interest I propose to require the parties to provide proposed short minutes of order to give effect to the reasons for judgment. Unless there is specific request for a further listing, I do not propose to relist the matter. Rather I propose to make orders in chambers consequent upon receipt of the proposed short minutes of orders.
The Orders of the Court are – The Court
Directs the parties, by email correspondence to the Associate to Meek J, on or before 4 PM on Wednesday, 4 March 2026 to bring in short minutes of order to give effect to the reasons for judgment, including a calculation of interest on the sum of $18,069.90, and any costs order different from the provisional indication of costs above.
Orders that the matter stand over to chambers to make orders consequent upon receipt and consideration of the proposed short minutes of order.
If the defendant still seeks to apply to pay the proposed judgment by instalments, he can apply to do so after judgment is entered.
**********
Shirley Halperin, ‘Duran Duran’s Simon LeBon: ‘We Were Part of the Record Industry’s Demise. It Wasn’t a Great Experience’ The Hollywood Reporter (online, 23 December, 2010) https://www.hollywoodreporter.com/news/general-news/duran-durans-simon-lebon-part-65381/.
Stranger Things (Netflix, 2022) seasons 4 and 5.
Ryan Dombal, “When you’d buy vinyl, you’d have this lovely-sized object with a lovely picture, and you’d read the lyrics and usually there was something artistic that went with it.” Ryan Dombal, Interview with Kate Bush ‘The elusive art-rock originator on her time-traveling new LP, Director’s Cut’ Pitchfork (online, 15 May 2011) https://pitchfork.com/features/interview/7968-kate-bush/.
Mike Isaac, ‘Neil Young Trumpets High-Quality Digital Music, With Steve Jobs’ Blessing’ Wired (online, 31 January 2012) https://www.wired.com/2012/01/neil-young-steve-jobs-atd/.
CB 38[18].
CB 39[27].
Luke 7:35 Bible - New International Version (proved right); Bible – English Standard Version (justified).
CB 635–725.
JS2 [5].
T 2.42-.50.
See e.g. Xia v Santah Pty Ltd [2003] NSWSC 807 at [9] per Palmer J.
See Bauskis v Luew [2013] NSWCA 297 at [67]–[70]; T 20.24-33.
T 2.32-33; 2.42-.50; 3.8; 21.3-.10; 21.49-.50.
T 2.36-.38; 48.24-.29.
T 3.5-.6; 21.5-.10; 48.24.
T 16.41-.49; 21.7-.10.
T 2.35-.39.
T 17.6-.9.
T 21.39-.40.
T 24.5-.22.
T 18.7-19.18.
T 20.8-.22; 22.14-24.22.
Evidence Act 1995 (NSW) (Evidence Act) s 140(1).
Evidence Act s 140(2).
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]-[31] per Gleeson CJ, Gummow and Kirby JJ.
e.g. ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24; (2021) 388 ALR 128 at [25], [28] per Bell P.
T 24.24-25.12.
T 27.31-28.7.
T 28.26–.49.
CB 36[6].
See e.g. CB 64.
See e.g. CB 66.
See e.g. CB 65, 66.
See e.g. CB 65, 66-68, 81, 321-322.
CB 129-286; 421-634.
T 43.15-.18.
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 (Jones v Dunkel).
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63]-[64] per Heydon, Crennan and Bell JJ.
Wheatley (Bell CJ at [1] and Mitchelmore JA at [80] agreeing)
See T 29.20-.34; 48.1-.7.
T 2.32-.50.
T 16.45-.50.
T 48.24-.33, but read in light of T 3.18-.31.
CB 36[6].
CB 36[7]-[8].
CB 37[15].
CB 82-83.
CB 84-85.
CB 86-87, 92.
CB 40[32]-[35], 95.
CB 42[41], 109.
CB 42[42]-45[53].
CB 43[45].
T 31.47-32.18.
CB 49[74].
CB 49[75]-[76].
CB 50[81], 300.
CB 50[85].
CB 52[91]-[92].
CB 313.
CB 52[93].
CB 52[96], 314.
CB 53[100], 316–319.
CB 53[101], 318–320.
CB 53[102].
CB 321-323.
CB 54[103].
CB 54[105], 329.
CB 55[107].
CB 55[108], 331.
CB 55[112], 333.
CB 55 (P1 [113]).
CB 62 (P1 [148]).
CB 55[114]-57[123].
CB 343-346.
CB 335-336.
CB 58.
CB 59[134], 347.
CB 59[134.
CB 414.
CB 415.
CB 59[135], 348.
CB 59[136], 349–350.
CB 610.
Brady at [70].
See Trust Co of Australia Ltd, v Perpetual Trustees (WA) Limited (No 2) (1995) 36 NSWLR 654 at 660C–D.
Heydon v Perpetual Executors Trustees & Agency Co (WA) Ltd (1930) 45 CLR 111 at 113.
Schmierer v Taouk (2004) 207 ALR 301; [2004] NSWSC 345 per White J at [59].
Young v Queensland Trustees Ltd (1956) 99 CLR 560 at 569-570; Coshott v Sakic (1998) 44 NSWLR 667 at 671D-F. Balout v Touma; Dobro Dosle Pty Limited t/as Amalgamated Investments Trust v Balout [2025] NSWSC 459 per Lindsay J at [16].
Ogilvie v Adams [1981] VR 1041 at 1043; Re Hayvio Pty Ltd [2011] NSWSC 1125 per Ward J [10]-[13].
Rose v Manno Kingsway Pty Ltd (2025) 116 NSWLR 598; [2025] NSWCA 23 (Rose) per Bell CJ at [59]; Nick Seddon and Rick Bigwood, Cheshire & Fifoot Law of Contract (LexisNexis Australia, online at February 2026) (Cheshire & Fifoot) [4.19].
Rose at [59].
Cheshire & Fifoot at [4.24]-[4.28].
See e.g. T 4,9-12.
CB 49[78]-[79]; See also submissions at T 32.22-.37; T 36.37-.40.
CB 57[125]-58[126]; see also CB 52[93].
T 3.18-.19.
See e.g. CB 50 (P1[82]).
PS [85-[88].
CB 55[114]; CB 334.
Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336; (1973) 1 ALR 169 per Mason J at 350 (PS[80]); Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; 2016 [HCA] 47 (Simic) per Gageler, Nettle and Gordon JJ at [103].
Simic at [103].
Simic at [104] citing Bishopsgate Insurance Australia Ltd v Commonwealth Engineering (NSW) Pty Ltd [1981] 1 NSWLR 429 at 431; Bush v National Australia Bank Ltd (1992) 35 NSWLR 390 (Bush) at 405-406.
Simic at [104] citing Bush at 405-406.
T 16.42-16.49.
Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205; [2012] HCA 30 at [9]-[10]; Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525 [2016] HCA 28 per Gageler J at [118].
CB 52 (P1[86],[93]), 313, 315.
CB 53 (P1[102]); CB 321-322.
CB 53 (P1[102]); CB 323.
CB 55 (P1[112]); CB 333.
Macquarie Dictionary, (online at 23 February 2026) ‘oppressive’.
Ibid.
See Australian Securities and Investments Commission (ASIC) v Kobelt (2019) 267 CLR 1; [2019] HCA 18.
CB 343-346.
T 17.7.
T 2.12–19.
T 2.22–.29.
T 22.6-.14
See also 29.20-.34; 48.1-.7.
T 28.5-10.
Australian Government, Australian Institute of Health and Welfare, ‘Mental Health’ Financial stress and mental health (Web Page, 2 December 2025) https://www.aihw.gov.au/mental-health/topic-areas/other-mental-health-reports/financial-stress.
T 47.29-.41.
CB 17 (P1[18]).
SCB 38-39 (JS2[4]).
[4]: “Initially” amended to “From early September 2023, the defendant’s”; “further funds sought” amended to “the defendant seeking further funds”.
Cox
Zammar [2026] NSWSC 118
(2012) 247 CLR 205
(2019) 267 CLR 1
(1992) 35 NSWLR 390
(1998) 44 NSWLR 667
(2021) 388 ALR 128
(2003) 214 CLR 118
(1930) 45 CLR 111
(1959) 101 CLR 298
(2011) 243 CLR 361
(1973) 128 CLR 336
(1973) 1 ALR 169
(1992) 36 FCR 578
(2016) 258 CLR 525
(2025) 116 NSWLR 598
(2004) 207 ALR 301
(2016) 260 CLR 85
(1995) 36 NSWLR 654
(1956) 99 CLR 560
(2007) 73 NSWLR 612
(1987) 15 FCR 475
On the hearing, aspects of the debt agreement and surrounding correspondence giving rise to it raised concerns for me as to the enforceability of what had been agreed. However, the importance of that evolution of arrangement between the parties should not be underscored and I will refer to it below. Patient advocacy from Mr Emmerig who appeared for the plaintiff explained the broader context for an agreement to repay a larger amount than was actually lent and eventually persuaded me that the principal relief sought by the plaintiff is appropriate.
Relevantly by mid-July 2024, the defendant had a falling out with Mr Serali and informed the plaintiff of that. In particular, he informed the plaintiff that instead of Mr Serali providing the defendant with financial help, he had in fact caused losses to the defendant by taking loans in the defendant's name and extracting money from the defendant's bank account. As a result, the defendant informed the plaintiff that he had engaged a lawyer friend of his, Patrisha (Trish) Peters to act for him in a claim against Mr Serali [55] .
Subsequently, the plaintiff was copied into correspondence from Mrs Peters and also from her husband, Neil (Mr Peters) on several occasions in which they informed the plaintiff that the defendant had been defrauded by Mr Serali and some form of negotiations were being conducted with Mr Serali to extract a settlement in respect of those losses [56] .
On 8 August 2024, one email from Mrs Peters to the plaintiff referenced that Mr Serali had agreed to pay the defendant $595,000 of which the plaintiff was to receive a portion subject to an agreement between himself and the defendant [57] .
On 8 September 2024, the plaintiff received an email from Mr Peters informing him that he had negotiated a higher settlement amount of $950,000 from Mr Serali [58] .
By 2 September 2024, the plaintiff received an email from Mr Peters confirming that he had taken over from his wife progression of the claim against Mr Serali and on 13 September 2024, the defendant messaged the plaintiff that he had settled with Mr Serali for a sum of $1.4 million [59] .
On 23 September 2024, the defendant messaged the plaintiff indicating that the amount of "$645K will be coming in" and "when Natalia sends the update I will send through straight away” [60] . The plaintiff says that he understood that this was to compensate him for having provided so many loans [61] .
By about 27 September 2024, the defendant alerted the plaintiff that the settlement with Mr Serali was taking a long time and that although the settlement money had been paid into two of his bank accounts, the accounts had been frozen by the banks, apparently because they were unable to verify the source of the funds [62] .
Later that day, the plaintiff received an email from the defendant forwarding an email apparently from the Commonwealth Bank of Australia (CBA) stating that a payment of $50,000 had been submitted to the plaintiff's bank account with the description "debt". The plaintiff says he never received that payment [63] .
On 9 October 2024, the plaintiff received a further email from the defendant stating that a payment of $500,000 had been "submitted" to his bank account with the description "Loan Repayment Approved". Yet again the payment was not received by the plaintiff [64] .
On 10 and 11 October 2024, the plaintiff, following a request by the defendant for further advances made 6 separate payments totalling $5,165 [65] . On those dates the defendant by email sent to the plaintiff 3 declarations in the following form [66] :
To the extent that the defendant has raised oppression or unconscionability as a basis to impugn the plaintiff’s claim to the $1.2 million sum, I reject any such defence to the claim.