Douglas v Mikhael [2024] NSWCA 89 | Case summary

Court of Appeal (NSW)|2024-04-02|Before: Ward P, Mitchelmore JA, Richmond J

Background

The background to this matter can be briefly stated.
The dispute between the parties relates to a claim by Mr Douglas for damages and other relief for breach of two alleged oral contracts: an oral contract which he alleges was entered into with his sister and her husband in November 1999; and an oral contract which he alleges was entered into in May 2015 with those persons and FBM (the trustee of The Mikhael's Trust (the Trust)). As adverted to above, the discretionary objects of the Trust include Mr Mikhael and Ms Karborani, as well as Mr Douglas.
The alleged November 1999 agreement was pleaded as containing terms that Mr Douglas would pay $75,000 to Mr Mikhael and Ms Karborani, who would apply those funds to acquire businesses to be managed under a franchise agreement from a franchisor; those businesses would be held on trust for Mr Mikhael, Ms Karborani, Mr Douglas and others; Mr Mikhael and Ms Karborani would themselves pay or cause the trustee to pay to Mr Douglas 50% of the profits of those businesses; and the trustee would hold 50% of its interest in each of the businesses on trust for Mr Douglas (second further amended statement of claim at [4]-[5]; primary judgment at [11]).
The alleged May 2015 agreement was pleaded (expressly in the alternative, and hence seemingly in the alternative to the claim in respect of the alleged 1999 agreement) as containing terms that: the respondents would pay Mr Douglas $1,450,000 on a joint and several basis, in consideration for which the first defendant (sic; since Mr Mikhael is the first defendant this was presumably intended to be a reference to Mr Douglas as the releasor) would release the third respondent (FBM) from his claim for 50% of profits for the period up to 30 April 2015; FBM would pay Mr Douglas 50% of the profits derived from the Trust's business assets from May 2015 going forward; FBM would not retain any of Mr Douglas' share of the profits derived from the Trust's business assets and within the Trust, capitalise any such profits or deal with such profits other than by paying them to Mr Douglas; and the respondents would provide Mr Douglas with a full account of the Trust's business assets supported by financial records (second further amended statement of claim at [12]-[13]; primary judgment at [14]).

Procedural history

At various stages in the proceedings both at first instance and in this Court, Mr Douglas has had legal representation.
Initially, a summons was filed on behalf of Mr Douglas on 20 October 2020, identifying TTP Legal & Co as his legal representative and Ms Therese (Thuy) Ngo as the contact person at that firm. The summons in effect sought preliminary discovery: an order for the examination of Mr Mikhael and Ms Karborani and then an order for discovery of documents to identify the entity (as it turned out, FBM) that was established to manage or derive income from the franchise. Mr Douglas was successful in obtaining orders for preliminary discovery.
On 27 May 2021, Mr Douglas (by then apparently acting without a lawyer on the record) filed a statement of claim against Mr Mikhael and Ms Karborani seeking the payment of $1,450,000 plus interest (as well as a 50% share in the profits received by the defendants from managing the "shops under franchise").
On 8 October 2021, Mr Douglas (still acting without a lawyer on the record) filed an amended statement of claim; among other things, joining FBM as the third defendant and seeking additional relief.
On 8 November 2021, an amended defence was filed on behalf of the three defendants.
The hearing before Richmond J commenced on 5 September 2022. Mr Douglas was represented at the hearing by a barrister (Mr Kevin Tang). It appears that Mr Tang was appearing at that stage on a direct access brief and that he had been briefed only shortly before the hearing (see primary judgment at [5]). The primary judge records that, when the hearing commenced, Mr Tang sought leave to amend the statement of claim in order more clearly to plead Mr Douglas' case and the relief sought (see at [6]). His Honour granted that relief. The second further amended statement of claim was filed on 5 September 2022, the third day of the hearing. It did not, as required by the Uniform Civil Procedure Rules (UCPR), indicate the amendments that had been made to the pleading. A defence to that pleading was filed on 10 September 2022.
The primary judge noted in his reasons that the matter had originally been set down for a hearing of three days; that the cross-examination of Mr Douglas' witnesses finished at the end of the third day; and that on the fourth day (i.e., on 8 September 2022) the hearing was adjourned because Mr Mikhael had been admitted to hospital where he was being treated for an acute intracranial bleed and was in intensive care (primary judgment at [7]).
On 9 November 2022, at 4.50pm, a notice of appointment of solicitor was filed by a solicitor (Stephen Noss) recording Mr Noss' appointment to act as Mr Douglas' solicitor in the proceedings (which had by then been adjourned part-heard).
The hearing resumed on 13 and 14 December 2022. The defence witnesses were cross-examined on 13 December 2022. Written closing submissions were handed up on 14 December 2022 and there were oral submissions on that day (primary judgment at [8]-[9]). His Honour reserved judgment.
On 21 December 2022, Mr Noss filed a notice of ceasing to act.
On 18 August 2023, the primary judge handed down judgment dismissing Mr Douglas' claim. Mr Douglas here complains at the eight-month delay, apparently believing that such a delay meant that the judgment was going to be "substantial" towards him, asserting that "[y]ou need two months, or one month" to say what the primary judge said in his judgment (AT 12.2-8).
In the primary judgment, his Honour recorded (at [10]) that on 8 February 2023 (while the judgment was reserved), Mr Douglas sent an email to chambers making submissions about the evidence and seeking to file and serve a further affidavit. His Honour made clear that he had not taken into account the email or anything in it because it was submitted without leave having been granted and after the hearing had concluded. This affidavit would appear to be the material in the Blue Appeal Book at 588-677 to the inclusion of which the respondents have taken objection (see at [14]-[18] of the respondent's supplementary written submissions filed 26 March 2024) - as to which, see below.
On 17 November 2023, Mr Douglas (having earlier filed a notice of intention to appeal on 7 September 2023) filed his notice of appeal. No solicitor was named on the record. Mr Douglas informed the Court that his barrister (Mr Duc) had helped him to file "defective grounds of appeal" (see AT 4.20-21).
On 13 December 2023, the Registrar set the appeal down for a one-day hearing on 2 April 2024.
Issues then arose as to the preparation of the matter for the appeal hearing. The Registrar made orders in accordance with Short Minutes of Order on 6 March 2024, noting a dispute by the respondents as to the content of the Black Appeal Book and Blue Appeal Book. The Registrar made orders for the removal of certain documents from those Appeal Books, extended the time for the filing of those Appeal Books to 13 March 2024 and directed that any notice of motion and supporting affidavit seeking a review of her decisions be filed and served by 12 March 2024 and made returnable for directions on 18 March 2024. The Red Book had been filed by that stage, as had the Black Appeal Book; and written submissions in chief had been filed by Mr Douglas (the respondents filed their written submissions on 15 March 2024).
On 15 March 2024, Mr Douglas filed a notice of motion seeking various orders including that the appeal date be changed "and adjourned to a more suitable day for both parties in August 2024" (order 2) and that a suitable date be provided for filing and hearing an application for leave to subpoena "documents that are extremely important evidence related to the 2015 agreement …" (order 3).
The matter came before Payne JA on 18 March 2024. Mr Douglas appeared for himself (18/03/2024; T 1.39-41). Payne JA indicated on that occasion that he would be prepared to make orders setting aside the Registrar's orders about the contents of the Black and Blue Appeal Books and the award of costs in relation to two directions hearings before the Registrar; and to defer questions as to the admissibility of those documents and the consequent costs orders to the hearing on 2 April 2024 (see Douglas v Mikhael [2024] NSWCA 60 (the first Payne judgment) at [5]).
Mr Douglas resisted that course. After he had indicated that Mr Duc of counsel had been briefed to appear on 2 April 2024, Payne JA arranged for the matter to be stood down until 4.30pm for the hearing of the motion with Mr Duc to appear via AVL (see the first Payne judgment at [5]-[6]).
Payne JA recorded (in his later judgment of 20 March 2024 (Douglas v Mikhael (No 2) [2024] NSWCA 61 (the second Payne judgment))) that Mr Duc confirmed that he was briefed as counsel to appear for Mr Douglas on the appeal. Mr Duc submitted that the appeal should be adjourned for some months as Mr Douglas was under significant stress in preparing the appeal (18/03/2024; 22.15-28). That application was refused (for the reasons set out in the first Payne judgment at [9]) including that Mr Duc was now briefed and available to appear on 2 April 2021.
As to the question of leave to issue subpoenas, Mr Duc indicated he was not in a position to address Payne JA on that subject that afternoon, but would be in a position to do so on 19 March 2024. His Honour stood over the hearing of proposed order 3 of the motion to 4pm on 19 March 2024 and indicated that if Mr Duc was successful in that application his Honour would revisit the question of an adjournment (see at [10] of the first Payne judgment).
Among the orders made on that occasion were to grant Mr Douglas leave to file a motion pursuant to ss 75A(7) and (8) of the Supreme Court Act 1970 (NSW) by 5pm on 22 March 2024 if he wished to rely on documents that were not in evidence or relied upon before the primary judge (and for the parties to file submissions by 25 March 2024 in relation to any such motion). No such notice of motion has been filed.
On 19 March 2024, Payne JA published his reasons for the orders made on 18 March 2024 (the first Payne judgment). On that day, his Honour heard the application for leave to issue the subpoenas. Mr Duc again appeared for Mr Douglas. The application was refused. His Honour's reasons noted that Mr Douglas required leave to issue the subpoenas because he was not represented by a solicitor (see r 7.3 of the UCPR) ([4] of the second Payne judgment).
Leave to issue the subpoenas was refused for four reasons (set out at [8]-[15] of the second Payne judgment). First, the delay in seeking leave to issue the subpoenas (with no adequate explanation for that delay). His Honour considered that it was a near certainty that if leave were granted the hearing on 2 April 2024 would have to be adjourned. His Honour said that delay alone provided a sufficient basis to refuse leave to issue the subpoenas (noting the obligations of parties in relation to the just, quick and cheap resolution of the litigation). Second, his Honour found that the proposed subpoenas lacked a legitimate forensic purpose, noting Mr Duc's concession that the subpoenas sought material relevant to the 2015 agreement and that none of the grounds of appeal sought to set aside the primary judge's findings as to the failure to prove that (2015) agreement. Third, his Honour was not satisfied that it had been shown to be a realistic possibility that this Court would admit as further evidence any material obtained under the proposed subpoenas (noting the test in Akins v National Australia Bank (1994) 34 NSWLR 155 (Akins) per Clarke JA at 160). In particular, his Honour concluded that there was no realistic possibility that any evidence met the principal requirements set out in Akins and that it was clear that this evidence was of a kind that could have been obtained with reasonable diligence for use at the trial where Mr Douglas was represented by counsel. Fourth, that it is generally undesirable that leave be granted to issue subpoenas in the Court of Appeal.
On 25 March 2024 (as noted above), after receipt of a communication from Mr Douglas by email on 22 March 2024, Payne JA's associate notified Mr Douglas that he should be ready to proceed on 2 April 2024 with the hearing of the appeal if his applications to vacate the hearing and to rely on the draft amended grounds of appeal were refused on 2 April 2024.
On 28 March 2024 (Easter Thursday) at 5.30pm, a solicitor (Mr Elias Attia) filed a notice of motion on behalf of Mr Douglas seeking to vacate the 2 April 2024 hearing date; and that leave be granted to the appellant to rely on a "Draft amended grounds of appeal" (to be filed and served on the defendants by 2 May 2024). Mr Attia swore an affidavit on 28 March 2024 in support of that motion, deposing to the fact that he had been instructed by Mr Douglas "earlier" that week "to assist his barrister to prepare and finalise" an amended notice of appeal, a notice of motion and subpoenas (see at [1]); that Mr Douglas was suffering from extreme anxiety and depression as diagnosed by the doctor in a medical certificate exhibited to Mr Douglas' 22 March 2024 affidavit ([4]); and that, though not a medical expert, Mr Attia could "clearly see" that Mr Douglas was not well.
At [6] of his affidavit, Mr Attia deposed that he received instructions to act in the matter on 26 March 2024 and that he was informed at the time that he accepted the brief to act that Mr Duc was working on the matter. Mr Attia deposed that the grounds of appeal had been drafted by Mr Douglas with assistance from his barrister. The amended notice of appeal annexed to Mr Attia's affidavit appears to differ from the original notice of appeal only by the addition of the words "and/or May 2015" in Ground 1 and is clearly a draft (see the text of the header to the grounds of appeal).
Mr Attia further deposed to his understanding that Mr Duc is no longer acting for Mr Douglas in the matter; that he (Mr Attia) never accepted a brief to appear on 2 April 2024; and that, without advice from (unidentified) Senior Counsel (who as at 2 April 2024 had apparently not yet been briefed) he (Mr Attia) would not be in any position to run the matter as a solicitor advocate nor would he be able to provide advice as to Mr Douglas' prospects of success; and that, if an adjournment were granted, he would need to consider the above matters when deciding whether to continue to act ([9]-[10]).
Surprisingly, while having deposed that he had not formed a definitive view about the prospects of success in this matter without first consulting a senior counsel and that he had not read the transcripts in the matter, Mr Attia also deposed that he was confident "that there are probably more grounds [of appeal] that will be identified once a silk has reviewed the file" (see at [8]). Mr Attia also deposed that he did not anticipate that he would be filing a notice of appointment in this matter where no counsel had been briefed to appear (see at [9]). Mr Attia deposed that he understood that substantial progress had been made in preparing the matter for hearing ([13]) but also that Mr Douglas would be unable properly to prosecute his case without the adjournment ([16]). Mr Attia made clear that he was not prepared to present the matter at a hearing if Mr Douglas did not have a barrister present ([14]) and sought an adjournment "to a suitable day for both parties later this year" ([17]).
Shortly before those documents were filed, (at 4.24pm on 28 March 2024), Mr Attia filed a set of subpoenas (identical in substance to those that Payne JA had refused leave to be issued including because they lacked a legitimate forensic purpose) addressed to the Department of Home Affairs, Australia and New Zealand Banking Group Ltd and Commonwealth Bank of Australia, respectively, specifying a return date of 25 September 2024. Mr Douglas informed the Court that the September return date was an "administrative" error in Mr Attia's office and that Mr Attia had informed him of this in a phone call (AT 4.42-43). The 25 September 2024 return date is the date that appeared on the subpoenas exhibited to Mr Douglas' 22 March 2024 affidavit (Ex JD-2). It may be inferred that all Mr Attia's office did was to reproduce the subpoenas (with the September return date) with a change to the coversheet recording that there was now a solicitor on the record.
On 1 April 2024 (Easter Monday), Mr Attia filed a further set of subpoenas, again in identical form to the subpoenas that Payne JA had refused leave for Mr Douglas to issue but specifying an earlier return date.
The "medical certificate" on which Mr Douglas relies (admitted as Ex A in this Court) is a letter dated 20 March 2024, addressed "To whom it may concern" by Dr Marwan Aloe of Greenacre Health Care, stating: Thank you for seeing Mr Joseph Douglas, age 52yrs 4 mths, is suffering fromm [sic] severe anxiety, poor concentration and unable to process any information His exacerbation of depression and he is currently unfit and not capable of attending court or meetings He will be referred for counselling.
It is immediately apparent from the text of the certificate (which commences "Thank you for seeing Mr Joseph Douglas") that it has been prepared from some other document (perhaps a letter intended as a referral for Mr Douglas for counselling).

Application for leave to rely on draft amended grounds of appeal

We turn first to the relief sought to amend the grounds of appeal. Although the 28 March 2024 motion sought leave to rely on a "Draft amended grounds of appeal", the orders sought also contemplated that the appellant's solicitor file the amended grounds of appeal and serve them on the respondents by 2 May 2024 (order 3). By reference to Mr Attia's affidavit, it therefore appears that the intention is not simply to file the document annexed to Mr Attia's affidavit (with the amendment to ground 1) but to include further amended grounds of appeal of the kind that Mr Attia (without reference to the transcript and without consultation with counsel) is confident will be identified by some unidentified senior counsel.
The applicable principles on an application for leave to amend were set out in Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175; [2009] HCA 27 (Aon). What is here notably absent is any (let alone any satisfactory) explanation for the delay in seeking to amend the notice of appeal. Mr Douglas has had the benefit of counsel acting in the matter, who Mr Attia has deposed assisted in drafting the notice of appeal and in whom Mr Attia expressed confidence in his affidavit (describing him as a skilled advocate) presumably since before November 2023 when the notice of appeal was filed. Mr Douglas has therefore had ample time since the primary judgment was handed down (and with assistance of counsel for most if not all of that period) to formulate the grounds of appeal that he wishes to raise. The addition of the words "and/or 2015" in the draft amended grounds of appeal appears to have been in recognition of the difficulty faced by Mr Douglas in obtaining leave to issue subpoenas for the production of documents that would only be of potential relevance if the findings as to the 2015 agreement were the subject of challenge (which, on the notice of appeal as presently filed, they are not). Even if this was only appreciated when the matter was before Payne JA on 18-19 March 2024, there has been sufficient time for Mr Douglas (who over that period had both a barrister and, for a short time, a solicitor engaged) to identify the proposed amendments to the grounds of appeal. Instead, Mr Douglas was effectively seeking leave to rely upon amended grounds of appeal yet to be identified.
It is not consistent with the just, quick and cheap resolution of the real issues in dispute for leave to be given at this late stage for an amendment to the grounds of appeal which has not yet even been formulated, particularly when there has been no satisfactory explanation for the delay. Although the only prejudice that the respondents could point to if an amendment to ground 1 (to add "and/or 2015") were granted was that the submissions did not presently deal with any challenge to the 2015 agreement, the real prejudice seems to be the inevitable need for an adjournment to permit the as yet unidentified additional grounds to be formulated. The fact that costs orders would presumably flow from such an adjournment is not to the point. As noted in Aon, costs are not a panacea for all ills (see at [25] per French CJ and at [99] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). It is unacceptable for the hearing of a matter that was listed in December last year to be deferred for some indefinite time in these circumstances. It can also be inferred that the respondents will have the ongoing stress of undetermined litigation for that period.
In those circumstances, the Court formed the view that no leave to amend was warranted and the application was refused.

Application for adjournment of hearing

Turning to the application for an adjournment of the hearing of the appeal, it is impossible, having regard to the procedural chronology of events set out above, to avoid the conclusion that Mr Douglas has been seeking to engineer a situation in which an adjournment would be inevitable.
When the matter was before Payne JA on 18-19 March 2024, there was no suggestion that Mr Duc was not going to appear at the hearing of the appeal; and no suggestion of any dissatisfaction by Mr Douglas with Mr Duc as his counsel. Mr Attia's understanding, at least as at 26 March 2024, was that Mr Duc was retained for the hearing (see [6] of his affidavit sworn 28 March 2024). Mr Douglas must therefore have terminated Mr Duc's retainer at some time between Mr Attia's receipt of instructions on 26 March 2024 and Mr Attia's affidavit of 28 March 2024.
It can readily be inferred that Mr Attia was engaged by Mr Douglas once Mr Douglas' application for leave to issue subpoenas was rejected. Mr Douglas is well aware that under the UCPR leave was necessary because there was no solicitor on the record to act for him (see AT 4.49-AT 5.2). Mr Douglas' response to the proposition that the subpoenas were identical to those for which leave to issue had been refused by Payne JA was to the effect that he now did not need leave to issue the subpoenas because he had appointed a solicitor.
Mr Attia was aware at the time he received instructions to act that the matter had been listed for hearing of the appeal on 2 April 2024. The fact that he understood at that time (26 March 2024) that Mr Duc was engaged in the matter and would be appearing does not mean that his retainer was in any way limited (as he now suggests in his affidavit).
The position was presented to the Court by Mr Douglas as a fait accompli - that an adjournment was necessary because Mr Douglas (who had "sacked" his barrister and had only recently instructed a solicitor who was too busy to attend and in any event is not prepared to attend court without a barrister) (see AT 4.20-24) had a legal right to representation.
Mr Douglas was adamant that his "human rights" meant that he was entitled to be legally represented; and that he was entitled to terminate Mr Duc's retainer (AT 4.21-26): He helped me to file defective grounds of appeal. I have the right to tell my representative not to, like - sack him, if I think that he didn't do a good job. That is a legal right that I have. In my submissions, I would like to say that I am unrepresented today, and I have no legal representation. Nothing was filed from my end, and it's my legal right to have representation and equality in the Court.
The fact is that Mr Douglas, as at 2 April 2024, did have the benefit of legal representation - by a solicitor who was too busy, and not prepared, to come to Court or to make an application to attend by AVL. What is unacceptable is not that the Court in those circumstances refused the adjournment, it is the conduct of a legal representative who accepts instructions in a matter knowing or intending that he or she will be unable to attend when the matter is listed for hearing and either assuming that this will warrant an adjournment or seeking an adjournment without even the courtesy of appearing on the application to do so.
As to the medical certificate, apart from the fact that it suffers from vagueness as to the circumstances in which it was issued (see the textual oddity referred to above), it does not expose the reasoning process of the doctor (i.e., as to what assessment was carried out or whether this is simply recording Mr Douglas' instructions). Nor is it clear from the certificate when, if ever, Mr Douglas might be able to attend court "or meetings". Limited weight can be placed on such a certificate, see, for example, Forster v Harvey [2006] NSWSC 1112, where Young CJ in Eq (as his Honour then was) considered and rejected an informal application for adjournment in circumstances where a common form medical certificate had been provided, asserting that the defendant was "unfit for work" and suffering from major depression.
In circumstances where Mr Douglas has signed and filed written submissions, thereby adopting those submissions that he says were prepared by Mr Duc, the Court concluded that there was no prejudice in the matter simply being determined on both parties' written submissions.
As will be apparent from the determination of the substantive appeal (see below), having reviewed the material and submissions prior to the hearing of 2 April 2024, the merits of the existing grounds of appeal appeared to be low.
In all of those circumstances, and particularly having regard to the procedural history of the matter, the adjournment application was refused.

Subpoenas

Insofar as Mr Douglas might have pressed for an adjournment to permit the subpoenas that had been issued by Mr Attia to be answered, it may be noted that counsel for the respondents sought that the subpoenas be set aside as an abuse of process (AT 6.5-12). It was suggested that an issue estoppel arose in relation to the conclusions reached by Payne JA in respect of the identical subpoenas which Mr Douglas sought leave to issue (AT 6.26-27). The respondents point out that Payne JA considered comprehensively the subpoena recipients, the scope and the breadth of the documents sought, and the applicable principles as considered in Akins.
This Court accepted that the subpoenas (though not requiring leave since Mr Douglas was by then represented by a solicitor when they were filed) should be set aside. Whether or not the issuance of subpoenas in identical form to those for which leave had already been refused was itself an abuse of process, there is no utility in the subpoenas (for the reasons already identified by Payne JA at [8]-[15] of the second Payne judgment) as the findings in respect of the alleged 2015 agreement are not the subject of challenge. There is no satisfactory explanation for the delay in seeking production of the documents; and little likelihood that the evidence would be admitted on the appeal given that it is evidence that could have been sought when the matter was before the primary judge.

Substantive Appeal

Turning then to the substantive appeal, we summarise below the findings made by the primary judge and then address sequentially the grounds of appeal (noting that in his written submissions Mr Douglas has indicated at [9] that ground 7 is not pressed).

Primary judgment

The primary judge identified (at [18]-[22]) the authorities setting out the applicable principles in determining whether alleged oral agreements were entered into including the need for the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that the conversation occurred (citing Watson v Foxman (1995) 49 NSWLR 315 per McLelland CJ in Eq at 318 and John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 per Hammerschlag J, as his Honour then was, at [94]). His Honour noted the need to feel an actual persuasion of the occurrence or existence of a conversation relied upon as the foundation for the cause of action based on an oral contract and the significant difficulties faced by a plaintiff where there is the absence of reliable contemporaneous records or some other satisfactory corroboration. His Honour also noted that reasonable satisfaction is not produced by inexact proofs, indefinite testimony, or indirect inferences.
His Honour addressed the evidence relied upon by Mr Douglas in support of the contention that an oral agreement was made in November 1999, namely his own affidavit sworn 12 October 2020 and an affidavit in relevantly identical terms affirmed by Mr Rimon Mansour on 19 March 2021 as to the alleged conversation in November 1999. Mr Mansour (see [1] of his affidavit) is the second cousin of Mr Douglas and Ms Karborani. His Honour rejected Mr Mansour's evidence (see [55] of the primary judgment), on the basis that Mr Mansour's affidavit contained substantial passages of corresponding identical evidence to that of Mr Douglas (see at [40], [43]), or evidence that was of close correlation (see [44]).
The primary judge set out six reasons as to why he did not have an actual persuasion that the alleged meeting on 6 November 1999 occurred, or that if it did occur, the words attributed to the individuals by Mr Douglas were said (see at [71]-[79] of the primary judgment). Those reasons, in summary, were as follows. First ([71]), the absence of any contemporaneous record of the meeting and the implausibility that Mr Douglas would recall in such detail the conversation recorded at [15] of his affidavit some 20 years later. Second ([72]), the implausible explanation given by Mr Douglas in cross-examination as to why he brought Mr Mansour to the meeting (identifying an inconsistency with Mr Douglas' affidavit evidence; i.e., that in his affidavit, Mr Douglas said that Mr Mansour was to be a witness at the meeting, whereas in cross-examination Mr Douglas said that he trusted his sister (6/09/2022; T 134.43) and that it was not essential that Mr Mansour be there as a witness (6/09/2022; T 135.20)). Third ([73]), the lack of a credible explanation by Mr Douglas for his recollection of the date of the alleged meeting. His Honour (at [75]) drew a Jones v Dunkel inference (Jones v Dunkel (1959) 101 CLR 298 at 320-321), from the failure of Mr Douglas to call his parents to give evidence supporting his contention that his parents had held the sum of $45,000 which he claimed had been paid to the respondents, that the evidence would not have assisted his case ([75]). Fourth ([77]), the parties' conduct after the alleged contract, noting that there was no evidence beyond mere assertion that Mr Douglas did anything to establish the franchised stores in late 1999 or that he made any demand on the respondents asserting the existence of a contract in the terms alleged. Fifth, ([78]), that the alleged contract was inherently implausible, noting Mr Mikhael's evidence as to his business operations in the years prior to the alleged 1999 agreement, supported by the evidence of Mr Abraham Hatoum (the owner of the franchise business) that he (Mr Hatoum) did not regard Mr Douglas as a person who had any business skill or acumen and that he (Mr Hatoum) would never have offered Mr Douglas an opportunity to operate one of his stores (see the affidavit sworn by Mr Hatoum on 27 February 2022 at [27]). Sixth ([79]), his Honour's assessment of the respondents and their witness, Mr Hatoum, as being truthful and reliable (a finding not challenged on appeal).
As for the alleged 2015 agreement, the primary judge referred to three matters in concluding at [80] that he did not have an actual persuasion that this agreement was entered into (see [81]-[83]). None of those matters is the subject of this appeal. They were: first, his Honour's acceptance of Ms Karborani's denial of the alleged conversations; second, that the alleged conversations were implausible and predicated on there being a business arrangement (the alleged November 1999 arrangement) which his Honour had rejected; third, the lack of corroboration by any contemporary record (noting his earlier rejection of Mr Mansour's evidence).

Grounds of Appeal

At the outset, it is relevant to note that Mr Douglas in his written submissions challenges various factual findings but has not complied with r 51.36(2) of the UCPR, there being no statement in narrative form providing references in the judgment or transcript and setting out the findings challenged or contended for (see Nicholls v Wilson & Partners Limited [2010] NSWCA 140 per Allsop P at [6] as to the requirements of this rule).
Complaint is also made by the respondents as to a failure by Mr Douglas to comply with r 51.29(2)(a)(ii) of the UCPR, namely a failure to identify which parts of affidavits and annexures were rejected (though he has included the primary judge's evidential rulings contained in MFI 1 and MFI 2). Among other things, the respondents complain as to the inclusion in the Appeal Books of an affidavit made by Mr Douglas on 2 February 2023 after the hearing at first instance (for which leave was not given by the primary judge). This was the subject of the directions made by Payne JA as to the filing by 22 March 2024 of any notice of motion by Mr Douglas for leave to rely on this as fresh evidence on the appeal (see order 4 at [11] of the first Payne judgment). As that motion was not filed, it is not necessary to deal further with the respondents' complaint, other than to note that regard will not be had to that affidavit material on this appeal.
The respondents have pointed to the observation by Samuels JA in Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep), endorsed by the High Court in Nobarani v Mariconte [2018] HCA 36 at [47], to the effect that an unrepresented party is subject to the same rules as any other litigant; and that the court must see that the rules are obeyed, subject to any proper exceptions, since to do otherwise would be unfair to the represented litigant. Reference is also made in this context to Duraisamy v Sydney Trains [2019] NSWCA 269 at [25].
It is not necessary, given the conclusions reached as to the substantive grounds further to address these complaints. The unsatisfactory way in which this appeal has been presented is sufficiently apparent from the procedural chronology above.
Turning then to the grounds of appeal, we deal first with the challenges by Mr Douglas to the findings on which the primary judge's ultimate conclusion as to the alleged November 1999 oral contract was based.

Ground 2: The learned judge erred in finding that it was implausible the plaintiff would remember the conversation evidencing the agreement in the absence of a contemporaneous record (at [70]) and failed to take into account it was a family arrangement that did not necessary [sic] need to be reduced to a note or record.

Ground 2 challenges the finding as to the implausibility, in the absence of any contemporaneous record of the November 1999 agreement, of Mr Douglas remembering with precision the alleged conversation. Mr Douglas submits that the primary judge elevated the lack of contemporaneous records to being a test of whether or not the agreement existed. Mr Douglas also complains that his Honour discounted that it was a family arrangement and would not necessarily be evidenced in a written agreement.
The respondents submit that, even if the primary judge did err in respect of the finding here challenged, this would not change the ultimate outcome, given the other findings by the primary judge. The respondents argue that this was not a case in which oral recollection was able to be tested against documentary evidence; and, for that reason, the primary judge correctly recognised (at [21] of the primary judgment) that the only safe course was to place primary emphasis on objective material and inherent commercial probabilities.
As to the complaint by Mr Douglas that the primary judge failed to take into account that this was a "family arrangement" that did not need to be reduced to writing, the respondents complain that this was not a matter squarely put to the primary judge and they say that Mr Douglas ought not be permitted to raise it for the first time on appeal (citing Elite Realty Development Pty Ltd v Sadek [2023] NSWCA 165 per Payne JA at [77]; University of Wollongong v Metwally (No 2) [1985] HCA 28; and Whisprun Pty Ltd v Dixon (2003) 234 CLR 492; [2003] HCA 48 at [51] (Heydon J, with whom Gleeson CJ and Gummow, Kirby, Hayne and Callinan JJ agreed)). The respondents say that the closing submissions for Mr Douglas did not make such an assertion, simply noting (after reference to the coming into existence of the Trust as a matter relied upon to support the assertion that the 1999 event occurred - see 14/12/2022; T 324.1-5) that the evidence ought be viewed with caution in a "particular family situation like this" (14/12/2022; T 325.15).
In any event, the respondents argue that the primary judge did take the family situation into account, referring to [19] of the primary judgment, where the primary judge noted that the Court could consider "surrounding circumstances including the history of the relationship between the parties and their conduct prior to and at the time of the alleged contract"; and that his Honour had recorded (at [3]) that Mr Douglas and Ms Karborani were siblings.

Determination as to Ground 2

No error has been demonstrated in his Honour's conclusion that it was implausible for Mr Douglas to have had such a precise recollection of the date of the alleged conversation, given the absence of any contemporaneous note. Mr Douglas, himself, in his written submissions refers to the passage of time as rendering explicable the matters to which his Honour referred in not having an actual persuasion as to the 1999 agreement.
As to the complaint that his Honour failed to take into account that a family agreement did not need to be put into writing, his Honour cannot fairly be criticised for not explicitly addressing a submission not directly put to him. Further, and in any event, the reason for the absence of a written record is immaterial to the difficulty of relying upon memory without any contemporaneous record.

Ground 3: The learned judge erred in taking into account an irrelevant consideration, that is, why Mr Mansour was a witness to the 1999 agreement leading to the Court not accepting the explanation given by Mr Douglas as to why Mr Mansour came to the meeting (at [72]).

Ground 3 asserts error by the primary judge in taking into account an irrelevant consideration (namely, why Mr Douglas had a need for a witness if he trusted his sister and brother-in-law but he did not seek to have the agreement reduced to writing). Mr Douglas says that the primary judge was critical of him for doing one thing, but not the other, and elevating this to an important part of his consideration.
The respondents submit that the primary judge was entitled to consider the surrounding circumstances in determining whether the alleged 1999 agreement was entered into; and that, Mr Douglas having placed reliance on Mr Mansour as the only other alleged independent witness to the relevant event, the primary judge was entitled to pay regard (as part of the surrounding circumstances) to the stated reason for Mr Mansour's attendance at the meeting. The respondents thus maintain that the finding at [72] was not an irrelevant consideration.

Determination as to Ground 3

This ground of appeal must also fail. The circumstances in which Mr Mansour attended the alleged meeting of 6 November 1999 cannot be said to have been an irrelevant consideration when assessing the credibility of Mr Douglas' (and Mr Mansour's) evidence that he attended that meeting.
The inconsistency to which his Honour adverted (at [72]) in relation to Mr Douglas' explanation for Mr Mansour's attendance at the alleged meeting was but one factor that led his Honour not to feel an actual sense of satisfaction as to the existence of the alleged 1999 agreement.

Ground 4: The learned judge erred in finding that it was implausible that the plaintiff remembered the date specifically of 6 November 1999, in circumstances where the plaintiff gave a credible explanation for why he remembered the date (at [73]-[74]).

Ground 4 challenges the finding that it was implausible that Mr Douglas had a good recollection of the date of entering into the November 1999 agreement (6 November 1999). At [73], the primary judge considered that Mr Douglas' explanation as to how he remembered the precise date of the meeting (6 November 1999), namely that it was the date he had borrowed $30,000 in cash from Mr Mansour (6/09/2022; T 105.1), was not credible.
Mr Douglas argues that it was not implausible that he was aware of, and had recalled, the event as it was important to him; and says that the primary judge erred in not accepting his evidence.
The respondents point out that, in contrast to his precise recollection of the date of the November 1999 meeting, in his affidavit evidence, Mr Douglas was unable to recall exact dates for a number of earlier conversations (referring to his affidavit sworn 12 October 2020 at [8]: "on or about February 1997"; [9]: "on or about October 1997"; [10]: "on August 1998"; [14]: "on or around the end of October 1999"). The respondents also note that, in cross-examination, Mr Douglas said that Mr Mansour "probably wrote it somewhere" but that he had not looked at that note before giving evidence in Court (6/09/2022; T 105.22).
The respondents submit that the explanation given by Mr Douglas for his precise recollection of the date is not a credible explanation and note that Mr Douglas has not identified any other part of his evidence in which he provides any better explanation for how he was able to recall such a precise date, 23 years after the event.

Determination as to Ground 4

No error has been demonstrated in relation to the finding that Mr Douglas' explanation for his precise recollection of the 6 November 1999 date was not credible. The statement that this was when Mr Douglas borrowed $30,000 in cash from Mr Mansour begs the question in circumstances where there is nothing to identify 6 November 1999 as the date on which any such borrowing occurred. True it is that witnesses may have a precise recollection of dates many years before when momentous events occur. However, all the primary judge was here saying, which accords with common sense, is that, in the absence of some contemporaneous document to fix the date in Mr Douglas' mind, it is not credible that he had a precise recollection of that date.
Ground 4 is not made good.

Ground 5: The learned judge erred by exceeding what it is permissible for a judge to do in becoming an advocate in the proceeding:

A. asking the defendant's counsel whether she was going to explore the implementation of the agreement (T146 at 45 [sic: this appears to be a reference to T146 at 5]),

B. at T110 at 45 when the learned judge asked about post-agreement conduct, and at 123 line 5.

Ground 5 raises a ground of procedural fairness (and in the written submissions there is a suggestion that this gives rise to an apprehension of bias).
In this context, Mr Douglas refers to the passage in Galea v Galea (1990) 19 NSWLR 263 (Galea) at 280 where Kirby ACJ, as his Honour then was, said that excessive judicial questioning or pejorative comments could create a real danger of an unfair trial. Mr Douglas contends that the primary judge descended to the level of being an advocate for the respondents by suggesting cross-examination lines of enquiry to the respondents' counsel. Mr Douglas contends that the fairness of the trial was compromised and that this leads to a view that the primary judge had closed his mind to further persuasion.
The respondents complain that Mr Douglas has not properly identified the manner in which the alleged conduct of the primary judge created a real danger that the trial was unfair; and they say that the three limited questions by the primary judge that are identified in this ground of appeal must be viewed in the context of the whole trial.
The first of the transcript references identified by Mr Douglas (6/09/2022; T 146.5) was where the primary judge, in the course of the cross-examination of Mr Douglas by the respondents' counsel, suggested to counsel: "I think you need to reframe your question, to identify the second agreement". The respondents note that this was in reference to an earlier question put by the respondent's counsel, referring to a letter of demand that had been sent by Mr Douglas' solicitors (6/09/2022; T 145.35-50).
The second of the transcript references identified by Mr Douglas (6/09/2022; T 110.45) was in the context of a discussion which took place, in the absence of the witness, where the primary judge raised with Mr Douglas' counsel the lack of evidence of what steps Mr Douglas took after allegedly entering into the 1999 agreement.
The third of the transcript references identified by Mr Douglas (6/09/2022; T 123.5) followed on from a further discussion, still in the absence of the witness, between the primary judge and Mr Douglas' counsel, concerning the chronology of events as to what evidence there was as to Mr Douglas' involvement in the business and the materiality of that involvement, and the respondents' counsel expressing her understanding of Mr Douglas' case. In that context, at T 123.5, the primary judge asked to be taken to the relevant part of the amended statement of claim (see the whole of the discussion from T 122.1 through to T 124.7).
The respondents point out that, in Galea, Kirby ACJ noted at 281 that greater latitude in questioning will be accepted where a judge is sitting alone and that, where a complaint is made of excessive questioning, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and "into the perils of self-persuasion". Reference is made by the respondents by way of example to the consideration of such a question in Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 at [161]-[172]; Sweeney v He [2023] NSWCA 68 at [151]-[154]; and Ball v McInerney [2014] NSWCA 331 at [81] (per Gleeson JA).
The respondents contend that none of the transcript references complained of by Mr Douglas can be understood in any sense to be excessive, nor were they such as to create a real danger of an unfair trial. It is submitted that a trial judge can properly clear up ambiguities or a point that has been overlooked, seek clarification in respect of answers given, or ask questions with a view to being better able to comprehend the issues or weigh the evidence. The respondents submit that the passages to which Mr Douglas has referred cannot be understood to give the appearance of bias or to amount to any egregious departure from the role of a trial judge.

Determination as to ground 5

It is relevant in relation to this ground of appeal to note the observation by Denning LJ in Jones v National Coal Board [1957] 2 QB 55 at 64 that: The judge's part … is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies.
It is abundantly clear from a review of the whole of the transcript that where the primary judge intervened to ask questions of the witnesses it was in order to clarify answers or to remove potential ambiguity from the questions. So, for example, the complaint about the statement at T 146.6, when put in the context of the immediately preceding questions, makes clear that the primary judge was trying to ensure that Mr Douglas' answer to the question could be readily understood. That context includes, from T 145.35, the following passages: Q. The demand that appears at page 82 of the court book makes no reference to a May 2015 agreement? A. I did - I did tell him [the solicitor, Mr Elias Tabshouri of Macquarie Lawyers] about it, but he sent the letter of demand as - as it is here. Q. You know this letter of demand makes no reference to the May 2015 agreement, don't you? A. No, it doesn't make any - and he - he written it, I didn't actually see it. Q. The first written demand made in respect of moneys that you say the first and second defendants owed you, prepared by a solicitor, on your instruction, makes no reference to the very agreement that you are suing upon? A. It - it didn't HIS HONOUR: Before he answers that question, he's suing on two agreements. … WITNESS: Because it's - it's - it's a letter of demand HIS HONOUR: No, Mr Douglas, sorry. I think you need to reframe your question, to identify the second agreement.
There is nothing objectionable about that intervention nor can it possibly be said to amount to procedural unfairness or give rise to an apprehension of bias.
As to the second passage identified, at T 110 the primary judge was clearly seeking to ascertain Mr Douglas' case. In particular, his Honour indicated to Mr Douglas' counsel that what actually happened pursuant to the alleged oral agreement or shortly after it was allegedly entered into would be highly relevant to know and a "fairly significant point" (6/09/2022; T 110.42). The primary judge was here indicating his concern to identify what the evidence, if any, was in relation to that issue. That concern was as much of (if not more) assistance to Mr Douglas' counsel as it was to the respondents' counsel. Again, there is nothing objectionable about that intervention and it does not indicate procedural unfairness or give rise to an apprehension of bias.
As to the third, again, when the exchange is read in context, it is clear that the primary judge was seeking to explore what evidence there was as to what Mr Douglas had done in relation to the management of the businesses; and his request to be taken to the parts of the amended pleading that had been filed (in response to the respondents' counsel's stated understanding of the case against her clients) does not indicate procedural unfairness or bias.
The criticisms made of the primary judge by this ground are not made good. There was no excessive questioning or interference by his Honour; nor was his Honour suggesting lines of cross examination as opposed to (quite fairly) indicating to both counsel his concerns as to the ambit of the evidence being relied upon in the plaintiff's case.
Nothing in the exchanges complained about suggests that a reasonably informed and fair minded lay observer might apprehend that his Honour might not approach the matter with an open mind. Testing the evidence, and submissions, with counsel in the course of a hearing is hardly an indication of bias. Nor has Mr Douglas identified the logical connection between the conduct complained of and the apprehended inability to approach the matter impartially that is required to satisfy the Ebner test (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]-[7] (Gleeson CJ, McHugh, Gummow and Hayne JJ), [83] (Gaudron J)).
Ground 5 is not made good.

Ground 6: The learned judge erred in law in taking into account the surrounding circumstances could be used (at [19]) to determine whether the oral contract was in existence (at [77]) in circumstances where the contract required no work to be performed by the plaintiff.

Ground 6 contends that his Honour erred in taking into account, as a surrounding circumstance in determining whether the parties entered into the 1999 agreement, that there was no post-contractual conduct to corroborate the alleged November 1999 agreement. Mr Douglas' point was that the agreement (as pleaded) did not require any activity on his part, beyond the payment. Accordingly, he contends that the primary judge should not have relied on the absence of post-contractual activities on his part when concluding that no agreement existed.
The respondents note that, in opening submissions, it was submitted by Mr Douglas that the first and second respondents intended to relocate to Perth to join a business that Mr Douglas had entered into with Mr Hatoum (5/09/2022; T 13.41-14.10); and that this reflected Mr Douglas' affidavit evidence (see Mr Douglas' affidavit sworn 12 October 2020 at [10]-[15]). The respondents say that Mr Douglas' case was that the $75,000 he allegedly provided to the respondents was half of the cost of setting up two new franchise stores in Perth; and that there was no evidence or pleading that Mr Douglas was not required to work in the new business or in effect was to act as a silent partner who would receive 50% of the profits in return for no input.
The respondents point out that the lack of evidence on this topic was noted by the primary judge in the course of argument (referring to 6/09/2022; T 110.10-42); and that in the primary judgment his Honour referred to Mr Hatoum's denial of any discussion about Mr Douglas taking an interest in a franchise store in Perth (at [63]) and concluded that it was inherently implausible that the respondents would agree to an arrangement whereby they did all the work, bore all the expenses, and yet paid 50% of the profits to Mr Douglas.
The respondents submit that, as part of the fact-finding process in seeking to attain a state of actual persuasion, it was open to the primary judge to take account of post-contractual conduct or lack thereof. Moreover, the respondents say that, as a matter that was not raised at first instance, Mr Douglas ought not be permitted to raise it now.

Determination as to Ground 6

No error has been demonstrated by the fact that his Honour had regard to whether there was any post-contractual conduct to corroborate (or shed light on whether) the agreement was entered into. It is permissible to have regard to post-contractual conduct in this context (Brambles Holdings Pty Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 at [25]-[26] per Heydon JA, as his Honour then was) and his Honour fairly raised that with Mr Douglas' counsel during the course of the hearing (as noted in relation to ground 5). Whether or not the alleged contract included a term requiring the performance of any obligations by Mr Douglas misses the point. His Honour's reasoning was that it was implausible that the respondents would have agreed to the arrangement as alleged.

Ground 8: The learned judge erred in finding that the affidavits of Mr Mansour of 19 March 2021 and Mr Joseph [Douglas] 12 October 2020 affidavit were identical where the evidence was of solicitor involvement in the drafting of the affidavits, and the learned judge erred in rejecting the evidence of Mr Mansour (at [61]).

Ground 7, as noted above, was not pressed.
Ground 8 contends that his Honour erred in rejecting the evidence of Mr Mansour, on the basis that his affidavit was identical in important respects to that of Mr Douglas (his Honour (at [52]-[53]) having considered Macquarie Developments Ltd v Forrester [2005] NSWSC 674 (Macquarie Developments), at [89] to [91] in that context).
Mr Douglas submits that his Honour erred because, if his Honour accepted that the solicitor had made the error, then that error should not have been visited upon Mr Douglas and his witness (Mr Mansour). Mr Douglas says that the evidence of Mr Mansour was material to the finding of either pleaded agreement; and that the primary judge should have applied other cases where difficulties of this kind do not render the credit of a witness worthless, although they require care before accepting the evidence of one or other of the witnesses (reference here being made to my decisions in Rosebanner Pty Ltd v Energy Australia [2009] NSWSC 43 (Rosebanner) at [324], [326] and Celermajer Holdings [2011] NSWSC 40 (Celermajer) at [183]-[189]).
Mr Douglas says that the primary judge erred in not giving weight to the evidence led by his witnesses; and says that the result "may have differed" had the judge accepted the account as provided by Mr Douglas and Mr Hatoum.
The respondents point to identical passages in the respective affidavits ([15]-[17] of Mr Douglas' 12 October 2020 affidavit and [11]-[13] of Mr Mansour's 19 March 2021 affidavit, to which his Honour referred at [40]); paragraphs that corresponded exactly as between the two affidavits (see [29], [31] and [32] of Mr Douglas' affidavit with [22]-[24] of Mr Mansour's affidavit, referred to by his Honour at [43]); and the close correlation between [14], [19], [24], [25], [27] and [28] of Mr Douglas' affidavit and similar paragraphs in Mr Mansour's affidavit, referred to by his Honour at [44].
The respondents submit that the primary judge correctly rejected Mr Mansour's evidence, having regard to the principles in Macquarie Developments as to identical affidavit evidence prepared by solicitors; and that this was consistent with the decisions to which Mr Douglas here refers (Rosebanner and Celermajer). In particular, the respondents point out that in Rosebanner (at [326]) it was noted that substantially identical affidavits may give rise to an inference of collusion, which may diminish weight or credit, but (at [328]) that evidence from a solicitor of an honest mistake may remove concerns of suspicion of collusion; and that Celermajer dealt with a different proposition (rather than circumstances of collusion in the sense of cutting and pasting, or sharing evidence, Celermajer involved a common recollection drawn from discussions between family members over the years as to what had happened).
The respondents say that the submission made in the present case by Mr Douglas (that if his solicitor had made the error then that error should not have been visited upon him or Mr Mansour) has the following difficulties.
First, that (as addressed by the primary judge at [55]), there are only two likely explanations for the identical evidence: either Mr Douglas sent his affidavit to Mr Mansour, which Mr Mansour used to prepare his; or Mr Douglas' solicitor copied and pasted Mr Douglas' affidavit and sent it to Mr Mansour.
Second, that Mr Douglas in cross-examination was adamant that he typed his own affidavit then sent it to his solicitor (7/09/2022; T 161.4). The respondents note that Mr Douglas' evidence was that he had talked to Mr Mansour about taking legal action; however, he had no involvement in preparing Mr Mansour's affidavit, nor did he provide his affidavit to Mr Mansour (7/09/2022; T 162.7, 13, 40); and that Mr Mansour had told him that he had prepared his own affidavit (7/09/2022; T 171.13-25).
Third, that Mr Mansour's evidence was that he prepared the first draft of his affidavit himself and then provided that to Mr Douglas' solicitor, who corrected grammatical errors (7/09/2022; T 200.22-201.18).
Fourth, following on from the above, that the statement in Ground 8 that "where the evidence was of solicitor involvement in the drafting of the affidavits…" is plainly incorrect since both Mr Douglas and Mr Mansour gave evidence that they drafted the documents themselves, and the solicitor merely made grammatical corrections.
The respondents submit that there was no evidence from Mr Douglas' then solicitor as to what occurred in the preparation of both affidavits, and therefore nothing upon which Mr Douglas can rely in submitting it was an error by his solicitor. The respondents say that it can be inferred that any such evidence would not have assisted Mr Douglas (invoking the principles in Jones v Dunkel). The respondents say that there is no basis upon which Mr Douglas can submit that there is an innocent explanation or an honest mistake, namely that his solicitor was responsible for the identical content of the affidavits. The respondents say that this is reinforced by the strident evidence of both witnesses that they independently created their own affidavits.

Determination as to Ground 8

The conclusion by the primary judge that Mr Mansour's evidence was undermined entirely by the circumstance of its close similarity to Mr Douglas' affidavit was clearly open to the primary judge. As was pointed out in Macquarie Developments by Palmer J at [90], where affidavit evidence of two witnesses is in the same words, this is highly suggestive either of collusion between the witnesses or that the person drafting the affidavits has not used the actual words of one or both of the witnesses; either possibility seriously prejudices the value of that evidence.
In the present case, the evidence of Mr Mansour as to the preparation of his affidavit does not support the suggestion by Mr Douglas that the close similarity of the two affidavits was due to some innocent mistake by his solicitor. Had that been the case, it was open for Mr Douglas to have adduced evidence from the solicitor to explain that mistake.
From a timing point of view, Mr Douglas' affidavit was prepared first (some five months before that of Mr Mansour). Therefore, as his Honor found, there were only two likely alternative explanations: first, that there was collusion between the witnesses (which both Mr Douglas and Mr Mansour deny) or that Mr Douglas' solicitor prepared Mr Mansour's affidavit by reference to that of Mr Douglas (in which case Mr Mansour's evidence was unjustified).
Either way, this devalued the probative force of Mr Mansour's evidence and the primary judge did not err in rejecting his evidence for that reason.

Ground 9: The learned judge erred at [61] in rejecting Mr Douglas [sic] evidence when he equated not remembering a phone number to being able to recall in detail a business transaction, this being an irrelevant consideration.

Ground 9 relates to his Honour's judgment (at [61]) where his Honour drew an adverse Jones v Dunkel inference arising from Mr Douglas' failure to tender any evidence to prove what his mobile phone number was between June and August 2015.
Mr Douglas contends that the primary judge gave a "great deal of weight" to Mr Douglas' inability to recall a mobile telephone number from many years ago; despite the fact that it had nothing to do with the elements of the entering into a contract, and that it was tangential to credit. Mr Douglas says that whether he was on notice of the issue because of the affidavit of his sister is not to the point (see the respondents' submissions) and that his Honour incorrectly applied Jones v Dunkel. In that regard, Mr Douglas says that the failure to provide evidence on this issue was a minor matter; and that it was not critical to the determination of the matter. Further, Mr Douglas says that the text messages had nothing to do with the existence of the 1999 agreement; and that this finding could not have been used by the primary judge in relation to whether or not the 1999 agreement was made.
The respondents submit that this ground of appeal is premised on a misunderstanding of the primary judge's reasons at [61]. Relevantly, it is noted that (at [39]-[41] of the primary judgment), his Honour set out excerpts from Mr Douglas' affidavit of 12 October 2020, in which Mr Douglas gave very precise evidence of conversations occurring in 1999 and 2015; and that in cross-examination, Mr Douglas was unable to recall his mobile phone number in 2015 (5/09/2022; T 36.22-23).
The respondents explain the relevance of the telephone number as arising from a series of text messages attached to Ms Karborani's 27 February 2022 affidavit. The respondents note that Mr Douglas had given evidence that he had received payments from the respondents in June 2015, representing payments to him pursuant to the 2015 agreement (see his 12 October 2022 affidavit at [29]), whereas Ms Karborani's evidence was that at that time she had spoken to Mr Douglas, who had requested money to pay rent and other expenses (see her affidavit sworn 27 February 2022 at [57], [58]). The respondents say that the text messages were adduced in evidence to substantiate those payments.
It is noted that Mr Douglas was cross-examined in relation to those text messages (see 5/09/2022; T.44.35-T.73.25) and that, in re-examination, Mr Douglas confirmed he did not remember his phone number (7/09/2022; T 189.35). The respondents point out that, in contrast, Mr Douglas was able to recall a number of other details with precision, including: in his 10 December 2021 affidavit, details of properties owned by the respondents, and levels of indebtedness, in 1999, 2000 and 2005 ([104]-[107]); in his affidavit of 12 October 2020, details of specific amounts paid to him in 2015 ([30]); and that in the letter of demand sent by his solicitor on 29 March 2019, details of 25 separate Looksmart Alteration businesses were included. It is also noted that, during cross examination, Mr Douglas was able to recall that his ex-wife's mobile number, in 2015, started with the numbers "0447" (T 184.28).
The respondents point out that the text messages were attached to Ms Karborani's 27 February 2022 affidavit and that the hearing commenced on 5 September 2022. The respondents say that, having been on notice of a series of text messages that were relied upon to contradict part of his claim, Mr Douglas had more than six months in which to make further enquiries; and that, in his affidavit in response of 8 March 2022, Mr Douglas denied that he had sent the text messages to Ms Karborani and asserted the messages were either fabricated, or had been sent by someone else ([31], [32]).
The respondents submit that the passage in his Honour's judgment at [61] about which Mr Douglas here complains was not to reject Mr Douglas' evidence but, rather, to observe the stark contrast between his ability to recall with such precision the detail of conversations that took place more than 20 years earlier, and his inability to recall a more recent mobile telephone number. The respondents say that, given that it was within Mr Douglas' power to have made further enquiries prior to the hearing relating to his mobile phone number in the relevant period, it was open to the primary judge to draw a Jones v Dunkel inference.
Thus, it is said that Ground 9 misinterprets the primary judge's finding. In any event, the respondents say that, in circumstances where the text messages were relied upon to disprove a direct element of Mr Douglas' claim (which the respondents suggest was some form of claim of part performance of the alleged 2015 agreement), it cannot be said those were irrelevant considerations.
Finally, the respondents say that, while addressed by the primary judge as an element of the evidence, even if the finding at [61] were in error it is unlikely to have changed the outcome in any event (noting the other matters relied upon by the primary judge at [70]-[83]).

Determination as to Ground 9

The respondents have explained the relevance to their case of the text messages referred to by his Honour at [61]. In circumstances where Mr Douglas had denied sending those messages (and suggested they had been fabricated) the cross-examination of Mr Douglas as to his mobile phone number at the time is readily explicable.
The primary judge at [61] did not reject Mr Douglas' professed inability to recall his telephone number. Rather, his Honour was contrasting that inability with Mr Douglas' professed ability to recall with precision other matters. In any event, the Jones v Dunkel inference drawn by his Honour, understood in context, was that evidence as to his telephone number in 2015 would not have assisted Mr Douglas' denial that the text messages emanated from him. There was no error in so doing.

Ground 1: The learned judge erred in finding he was not persuaded that there was an oral contract formed on 6 November 1999.

Ground 1 challenges the ultimate conclusion as to the alleged November 1999 oral contract, namely, that Mr Douglas had failed to prove the alleged November 1999 contract (see at [84] of the primary judgment). Mr Douglas maintains that the weight of evidence was that a contract was entered into, referring to the terms of the pleaded contract and to the establishment of the franchise stores by the respondents.
In his written submissions, Mr Douglas identifies the primary judge's error in not accepting that the alleged contract was proved as leading his Honour not to accept the reliability of his evidence (citing [76] of the primary judgment). That submission inverts his Honour's reasoning process. The unreliability of Mr Douglas' evidence was but one reason for his Honour's lack of an actual persuasion that there was a 1999 agreement. Thus, while this ground challenges the ultimate conclusion in relation to the alleged November 1999 agreement, in substance it is a complaint as to the credit findings that underpinned the primary judge's lack of satisfaction as to the alleged oral contract.
Mr Douglas maintains that the explanation for the matters relied upon by the primary judge in rejecting his evidence (see above at [70]) lies in the passage of time. However, his Honour was clearly cognisant of the fallibility of human memory (see [20] of the primary judgment). What his Honour was explaining (at [71]-[79]) were aspects of Mr Douglas' evidence that were nevertheless implausible.
The respondents emphasise (as they did at first instance) that there are no contemporaneous records evidencing the alleged 1999 agreement. They say that the highest that the submissions for Mr Douglas reached was that the 1999 agreement was corroborated by the formation of the 2015 agreement, referring to opening submissions by Mr Douglas' counsel that "discussions and words must have been uttered to get to the point where the plaintiff had to enter into an agreement with the first and second defendant" (5/09/2022; T 14.8) and that "there was some agreement that must have been entered into in 1999…" (5/09/2022; T 14.18); and to closing oral and written submissions (14/12/22; T 321.28; plaintiff's written submissions at [1], [7], [11]). The respondents note that his Honour's finding rejecting the 2015 agreement ([82]) is not the subject of appeal.
The respondents submit that the conclusions reached by his Honour as to the six matters leading to his lack of satisfaction as to the alleged November 1999 agreement were open to him and not glaringly improbable. They say that there was nothing perverse in the primary judge's reasoning process or ultimate conclusion; and they cavil with the proposition that the weight of the evidence was that a contract was entered into.

Determination as to Ground 1

No error has been established in his Honour's conclusion as to the alleged November 1999 agreement. The challenge to his Honour's factual findings (as raised by Grounds 2-4, 8 and 9) has not been made good. To the extent that his Honour's conclusion was based on an assessment as to the credibility and reliability of the respective witnesses, his Honour's factual findings have not been shown to be glaringly improbable or contrary to incontrovertible facts. Ground 1 must fail.

Conclusion

None of the grounds of appeal has been made good. The appeal should be dismissed. There is no reason for costs not to follow the event. Accordingly, for the above reasons, the appeal is dismissed with costs.

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uity Division Citation: [2023] NSWSC 979 Date of Decision: 18 August 2023 Before: Richmond J File Number(s): 2021/151712

[This headnote is not to be read as part of the judgment] This appeal related to two alleged oral contracts, the first allegedly entered into in November 1999 between the appellant (Mr Douglas) on one side, and on the other the second respondent (his sister, Ms Karborani) and the first respondent (her husband, Mr Mikhael). Mr Douglas alleged that pursuant to the agreement he would pay the first and second respondents $75,000 to acquire businesses to be managed under a franchise agreement from a franchisor, with those businesses to be held on trust for (among others) Mr Douglas, Ms Karborani and Mr Mikhael (the 1999 Agreement). The respondents would pay (or cause the trustee to pay) 50% of the profits to Mr Douglas, and the trustee would hold 50% of its interest in each business on trust for Mr Douglas. The respondents disputed the existence of both the conversation and the alleged agreement. Mr Douglas also alleged that a second agreement had been reached in May 2015 pursuant to which the respondents would pay Mr Douglas $1,450,000, in consideration for him releasing the trustee from his claim for 50% of the profits for the period up to 30 April 2015. The respondents also disputed the existence of this agreement. The primary judge dismissed Mr Douglas' claim. Mr Douglas appealed from the factual findings rejecting the existence of the alleged 1999 agreement. Mr Douglas also filed a motion seeking orders vacating the hearing date and for leave to rely on a "draft notice of appeal". Having terminated the retainer of his counsel shortly before the date listed for hearing of the appeal, Mr Douglas had retained a solicitor. However, the solicitor did not attend the hearing. These applications were refused, with reasons to be provided in the final judgment. The Court proceeded with the appeal. Mr Douglas did not wish to make oral submissions without legal representation. The respondents relied on their written submissions. The Court then reserved judgment, indicating that the substantive appeal would be dealt with on the parties' written submissions. Held dismissing the appeal (Ward P, Mitchelmore JA, Basten AJA): A Interlocutory Applications (1) There was no explanation for the appellant's delay in seeking to amend the notice of appeal: at [51]. It is not consistent with the just, quick and cheap resolution of the real issues in dispute for leave to be given at this late stage for an amendment to the grounds of appeal which has not yet even been formulated, particularly when there has been no satisfactory explanation for the delay: at [52]. Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175; [2009] HCA 27 applied. (2) Mr Douglas had sought to engineer a situation where an adjournment was inevitable, having terminated his counsel's retainer and having engaged a solicitor for the purpose of issuing subpoenas in identical form to those for which leave had already been refused, that solicitor then being unable or unwilling to attend the hearing: at [54]. As Mr Douglas was aware in advance that if his interlocutory applications did not succeed the hearing of the appeal would take place and where Mr Douglas had signed and filed written submissions on the appeal, there was no prejudice in the matter being determined on both sides' written submissions: at [62]. B Substantive Appeal (1) No error was demonstrated in the primary judge's conclusion that it was implausible for Mr Douglas to have a precise recollection of the date of the conversation relevant to the 1999 Agreement, given the absence of any contemporaneous note: at [81]; the reason for the absence of a written record is immaterial to the difficulty of relying upon memory without any contemporaneous record: at [82]. (2) The circumstances in which Mr Mansour (a cousin of Mr Douglas and Ms Karborani, and a key witness for Mr Douglas) attended the alleged meeting in November 1999 cannot have been an irrelevant consideration when assessing the credibility of Mr Douglas' and Mr Mansour's evidence; as such, the primary judge did not err in having regard to those circumstances: at [85]. (3) The primary judge did not err in finding that Mr Douglas' explanation for his precise recollection of the exact date of the November 1999 meeting was not credible: at [92]. (4) There was no excessive questioning or interference by the primary judge, nor was the primary judge suggesting lines of cross-examination to the respondents' counsel. The allegations of a denial of procedural fairness or the apprehension of bias were not made good: at [106]-[107]. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 applied; Jones v National Coal Board [1957] 2 QB 55 considered. (5) There was no error in the primary judge having had regard to whether there was post-contractual conduct to corroborate whether the agreement was entered into: at [112]-[113]. Brambles Holdings Pty Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 considered. (6) The conclusion that Mr Mansour's evidence was undermined entirely by the circumstance of its close similarity to Mr Douglas' evidence was open to the primary judge: at [126]. Macquarie Developments Ltd v Forrester [2005] NSWSC 674 considered. (7) The primary judge did not err in drawing a Jones v Dunkel inference from Mr Douglas' failure to tender evidence of his mobile phone number between June and August 2015 in circumstances where he had denied sending text messages put into evidence by the respondents: at [139]-[140]. (8) In light of the failure to establish error in respect of various factual findings, there was no error in the primary judge's conclusion that there was no November 1999 Agreement: at [147]. (9) Thus, none of the grounds of appeal was made good and the appeal was dismissed with costs.

Douglas v Mikhael

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