El-Cheikh v Miraki

The issues presented for determination

1. The relief sought by Omar at trial was set out in Amended Points of Relief filed on 18 March 2018: "1 A declaration that it was the common intention of the first plaintiff and the first defendant at the time of entry into a Loan Agreement on or about 16 October 2016 (Loan Agreement), that the loan amount was $500,000. 2. An order that the Loan Agreement between the first plaintiff and the first defendant executed on about 16 October 2016 (Loan Agreement) be rectified by deleting the amount in Item 8 of "$900,000" and inserting the amount "$500,000". 3 Judgment against the first defendant for the first plaintiff for the full amount owing under the Loan Agreement, being the amount of $500,000 plus interest at the rate of 12% per annum up until the date of judgment, or alternatively, under s100 of the Supreme Court Act. 4 A declaration pursuant to clauses 5 and/or 8.21 of the Loan Agreement, that the First Plaintiff holds an equitable mortgage over the [Property] for all amounts owing by the first defendant to the first plaintiff under the Loan Agreement. 5 A declaration pursuant to clauses 5 and/or 8.21 of the Loan Agreement entered into on or about 16 October 2016, that the First Plaintiff holds an equitable mortgage over the property located at X XXXX Avenue, West Pennant Hills, NSW for all amounts owing by the first defendant to the first plaintiff under the Loan Agreement. 6 A declaration pursuant to clauses 5 and/or 8.21 of the Loan Agreement entered into on or about 16 October 2016, that the [Property] be charged with all amounts owing by the first defendant to the first plaintiff under the Loan Agreement. 7 A declaration pursuant to clauses 5 and/or 8.21 of the Loan Agreement entered into on or about 16 October 2016, that the property located at X XXXX Avenue, West Pennant Hills, NSW be charged with all amounts owing by the first defendant to the first plaintiff under the Loan Agreement. 8 A declaration that the second plaintiff owns 50% of the units in the Gladstone Road Unit Trust, under the terms of the Gladstone Road Unit Trust Unit Holder Agreement entered into on or about 16 October 2016. 9 A declaration that the first defendant holds the [Property] on trust for the Gladstone Road Unit Trust, under the terms of the Gladstone Road Unit Trust Unit Holder Agreement entered into on or about 16 October 2016. 10 An order that the first defendant provide the second plaintiff with all accounts (draft or final) for the Gladstone Road Unit Trust since 16 October 2016 pursuant to clause 9 of the Gladstone Road Unit Trust Unit Holder Agreement. 11 An order that the first defendant deliver up or return all plant, equipment and personal property owned by the second plaintiff currently located at the [Property]. 12 Alternatively to paragraph 11 above, the first defendant pay the second plaintiff damages for the conversion and/or unlawful detention of the second plaintiff's plant, equipment and personal property. 13 Such further or other orders the Court considers appropriate. 14 Costs."
2. By the end of the hearing the issues had been further refined: 1. At the outset, Mr Cleary confirmed on behalf of the plaintiffs that Orders 11 and 12 of the Amended Points of Claim were not being pressed. 2. As a minor point, the evidence made clear (and there was no dispute) that the references to 16 October 2016 in the Amended Points of Claim should have been to 12 October 2016. 3. Insofar as the relief sought referred to rectification, Mr Cleary made no submissions on that issue in his final submissions.
3. In closing submissions Mr Cleary identified seven issues for the Court's determination: 1. The credit of the witnesses. 2. Did Omar and Navid agree to purchase the Property together through a trust? 3. Was the Property purchased by Sepideh as trustee for the GRUT? 4. Did Omar advance $450,000 as a loan under the Loan Agreement? 5. What amount is Omar entitled to recover as a debt under the Loan Agreement, with interest? 6. Is Omar entitled to an equitable mortgage or charge over the Property, or other property owned by Sepideh under the Loan Agreement, for the amounts owing under the Loan Agreement? 7. Who should be ordered to pay the costs of the proceedings?
4. Mr Allen met these issues with two points. First, he submitted that the GRUT had never been constituted. Second, insofar as the Court accepted that Omar had advanced $450,000 in cash, Mr Allen contended Omar had not advanced the funds to Sepideh pursuant to the Loan Agreement, but rather had provided the cash to Navid pursuant to a separate, oral agreement between he (Omar) and Navid.
5. The Court will determine the case by reference to the issues as presented by the parties in their closing submissions. In doing so, I should also note that there was no dispute that large amounts of cash passed between Omar and Navid, including in relation to the purchase of luxury cars. The Court accepts Omar recorded each cash loan he made, usually in a diary or otherwise in a note (such as on his mobile phone). These records were brief notations, but would typically set out details of the date of the loan, the borrower and the loan amount. However, the case both as pleaded and presented does not require the Court to arrive at any reconciliation or accounting of those transactions. The only cash advances in issue were those said to have been made by Omar on 17 October 2016, totalling $450,000 towards the purchase of the Property.

The facts

1. Nearly all factual matters were put in issue between the parties. The respective credit of Omar and the Mirakis was seriously challenged by the other.
2. However, in what follows attention has only been given to those matters which the Court considers dispositive. It is neither practical nor necessary to set out in detail every competing factual dispute raised. Where any reference is made to findings on contentious matters, they are cross-referenced to that part of the judgment where reasons for the finding are given. To the extent that any other facts set out below were not agreed by the parties, I am satisfied on the balance of probabilities that they could not be sensibly disputed.

What the documents show

1. These proceedings concern the purchase of the Property. To understand everything that follows, and with so much in dispute, it is convenient to begin with the incontrovertible documentary record about that transaction itself.
2. The contract for sale of the Property was dated 18 August 2016 and was in the standard NSW form for the sale and purchase of land 2016 edition (the "Sales Contract"). The vendor was NLM Holdings Pty Limited ("NLM"). NLM's agent was listed as "Coutts". The purchaser was described as "Sepideh Miraki" simpliciter. Her solicitor was recorded as "Noah" of Conveyancing Plus Legal. There was no dispute this referred to a Mr Noah Alkhair, the solicitor acting on behalf of the Mirakis on the conveyance of the Property.
3. The Sales Contract set out the purchase price of $1,700,000 ("Purchase Price"), being a deposit of $170,000 ("Deposit") and the balance of $1,530,000. Completion was specified to occur on 30 September 2016.
4. While special condition 45 of the Sales Contract disclosed that NLM was entering into the contract in its capacity as trustee of the Molnar Unit Trust, there was nothing in the Sales Contract to suggest that Sepideh was purchasing the Property in any capacity other than in her own right.
5. The Deposit was paid with funds from the bank account of Barton Contractors Australia Pty Limited ("Barton"), a company of which Sepideh was the sole director and shareholder. This conclusion arises from a Commonwealth Bank of Australia ("CBA") money transfer form in evidence (curiously an international money transfer) dated 12 August 2016 recording the transfer of $170,000 from Barton to Coutts Real Estate Sales Trust Account. A corresponding debit in that amount (plus a $30 bank fee) on 12 August 2016 appeared in Barton's CBA bank statement, also in evidence.
6. Omar contended he had provided the funds for the Deposit by means of forgiveness of a cash debt owed to him by Navid and by provision of additional cash. This contention falls within those matters that I have referred to in paragraph [15] above as not ultimately being something which the Court was required to determine.
7. Settlement of the purchase in fact took place on 18 October 2016. On 17 October 2016, Sepideh's solicitor, Mr Alkhair, wrote to her (copying Navid and Omar) confirming (emphasis in original): "… Subject: Miraki Purchase from NLM Holdings Pty Limited Attachments: Cheque directions for settlement.pdf Dear Sepideh We refer to the above matter and confirm that settlement has been scheduled for: Date: Tuesday 18th October 2016 Time: 2.00pm Venue: SAI Global settlement rooms Sydney. We confirm that in order to finalise the purchase we require the following bank cheque from you. Please note, that the bank cheque must be delivered to our office by 7.30pm tonight…"
8. The document attached to Mr Alkhair's email, "Cheque direction for settlement.pdf", confirmed that on settlement ANZ would be providing $989,519.70 and that the balance of the Purchase Price she would need to provide to him was $642,535.18.
9. In evidence were two bank cheques in favour of NLM totalling the $642,535.18 requested by Mr Alkhair, both dated 17 October 2016: one drawn on the CBA for $502,535.18 (the "CBA Cheque") and the other drawn on the ANZ Bank ("ANZ") for $140,000 (the "ANZ Cheque"). Both of these banks had branches in the Cherrybrook Shopping Centre. By reason of the evidence referred to in the following paragraphs, the Court finds that the CBA Cheque was paid for with funds from Barton's CBA "Business Transaction Account" and the ANZ Cheque was paid for with funds from Sepideh's personal ANZ "Progress Saver Account".
10. In relation to the CBA Cheque, there was a CBA deposit receipt for Barton's CBA account from the Cherrybrook Shopping Centre branch timed at 3.15pm on 17 October 2016 for $290,000, with an available balance thereafter of $507,053.43.
11. As noted above in paragraph [22], the bank statement for Barton's CBA account was also in evidence. It showed that as at 11 October 2016 the account was overdrawn. This was regularised by two deposits on 12 October 2016: $1,000 described as "Loan to BCA" (which I infer to mean Barton) and a deposit of $16,800 from "Iconic Constructions Australia (NSW" (sic). There was no evidence before me of a company with that name (not to be confused with the second defendant, Iconic Constructions), but nothing turns on this. These deposits left a balance of $16,553.43.
12. On 17 October 2017 two further deposits to Barton's CBA account are recorded: a cash deposit of $290,000 (which was the deposit referred to in paragraph [27] above) and a deposit of $200,000 described as "Impero Loan" from "Impero Pacific G" (I infer "Group"). There was then a withdrawal on the same day of $502,550.18 which the Court has no doubt was used to purchase the CBA Cheque, inclusive of a $15 bank cheque fee charged by the CBA.
13. In relation to the ANZ Cheque, there was in evidence an ANZ withdrawal receipt from the Cherrybrook Shopping Centre branch timed at 3.27pm on 17 October 2016 for $140,010 and showing a balance remaining of $11,735.65. The account from which this amount was withdrawn was the ANZ "Progress Saver Account" of Sepideh (the receipt includes the account number, which matches with other correspondence in evidence from ANZ to Sepideh, showing the account to have been in her name).
14. There is then also in evidence an ANZ bank cheque receipt from the same Cherrybrook branch timed at 3.30pm on 17 October 2016, recording a bank cheque having been purchased by Navid Ardestani for $140,000 in favour of NLM. There was a bank statement in evidence for Sepideh's ANZ account which shows for 17 October 2016 an initial balance of $11,745.65, the deposit of $140,000 and the withdrawal of $140,010 (I infer the difference of $10 is the bank cheque fee charged by ANZ).
15. The case as it was argued at hearing became about Omar's claim that he had given $450,000 in cash to Navid which had been used to fund the purchase of the CBA Cheque and the ANZ Cheque.

Background to the parties

1. Around the time Omar and Navid met in 2014, the Mirakis operated a painting and construction business through two companies, Barton and Iconic Constructions. Although Sepideh was recorded as the sole director and secretary of both companies (at that time), it was apparent that Navid conducted the companies' day-to-day affairs. Navid operated their business from an office unit located in an industrial business park at X/XX Gladstone Road, Castle Hill (the "Miraki Office Unit"). The Miraki Office Unit had been purchased in Sepideh's name some time in 2014.
2. Omar had set up a labour-hire business which came to be operated by Iconic Group Australia Pty Ltd ("Iconic Group"), a company registered in October 2015. He was (and remains) Iconic Group's sole director, secretary and shareholder. Although the business was initially conducted from Omar's residence in Carlingford, in or around June 2015 Omar accepted an invitation from Navid to move Iconic Group's operations to the Miraki Office Unit.
3. Notwithstanding the close relationship formed between Omar and Navid over a relatively short period of time, Omar and Sepideh had limited contact with each other. Navid's dealings with Omar were a point of conflict with Sepideh and Sepideh made clear more than once in her evidence that she did not look favourably on the friendship.

Purchase of the Property

1. In or around early June 2016, Omar became aware that the Property was listed for sale. This new office space was on the other side of the same industrial business park in which the Miraki Office Unit was located and was significantly larger in size. It was a two-storey building with 530 square metres of internal space, including both office and warehouse space.
2. Omar introduced Navid to the Property as a larger space from which they could operate their respective businesses.
3. At some time in early July 2016, Omar and Navid inspected the Property. On this occasion or shortly thereafter, the property's sales agent, Mr Ray Mayer of Coutts Real Estate, told them the Purchase Price was $1,700,000. Following the inspection, on 18 July 2016 Mr Mayer sent two emails to Omar, the first attaching a floor plan of the Property and the second a brochure setting out more detail on the office space. The Mirakis were not included on this correspondence, which is consistent with the initial contact in relation to the Property having been made with Mr Mayer by Omar.
4. Omar and Navid subsequently began serious discussions regarding their potential purchase of the Property. So much is evident from an email sent by Mr Mayer to Omar on 25 July 2016 requesting "details for the [sales] contract", including "Purchaser / ABN / Solicitors (sic) Details" and requesting a holding deposit of $2,000. Again, the Mirakis were not included on this correspondence. However, their (or at least Navid's) involvement was obviously understood by the vendor, who on 28 July 2016 sent an email to Mr Mayer requiring "further information from Navid and Omar relating to the Lease Agreement documents". Around this time it had become apparent the parties would need to enter into a short-term leasing agreement in order to facilitate the purchase of the Property.
5. The Court accepts that by early August 2016 a decision had been made by Omar and the Mirakis to purchase the Property for the Purchase Price of $1,700,000. On 9 August 2016, the vendor of the Property, Mr Molnar, emailed Mr Mayer (emphasis in original): "Hi Ray, Happy to go ahead as per our earlier discussions: 1. Exchange will take place this Friday 12th August, 2016. 2. 10% deposit paid on Exchange. 3. Settlement will take place on Friday 30th September, 2016. 4. Navid wants to move in on 16th September, 2016 - we will move out by the 15th Sept. 5. We assume Lease still remains in place re GST, however there will need to be a new date set out the Lease and there will be no lease paid (3 months advance etc). Can you please convey this to Navid and he can get the ball rolling with his solicitor for Exchange to take place this Friday 12th, September. …"
6. Mr Mayer forwarded this email to Omar on 9 August 2016 shortly after its receipt from Mr Molnar, with Omar in turn forwarding the email to Navid later that evening. Omar and Navid were clearly working together to purchase the Property.
7. The Court accepts (and neither party challenged) that at some point, the initial dates for contract exchange and settlement of the Property set out above were pushed back to 18 August and 18 October 2016 respectively.

Discussions regarding the structure and finance of the Property purchase

1. It was common ground that Omar and Navid had many discussions as to how they would finance and structure the purchase of the Property, as well as to how they would subsequently manage the office space.
2. The parties accepted that Omar and Navid talked about purchasing the Property in partnership together and in equal shares. Mr Cleary referred to this discussion during the hearing as the "50/50 Conversation". In his affidavit sworn 12 February 2019, Omar said that in or around August 2016 he and Navid had a conversation to the following effect: "46. …. [Omar]: We will go fifty fifty in the purchase of the property. I will put in $400,000.00, you will put in $400,000.00 and we will borrow the remainder from the bank". "You currently owe me $230,000, and on top of that, I have covered your share of the deposit, as well as my own. As such, I have already given to you my $400,000. Navid: "Yes, ok, on settlement I will pay my $400,000.00, as well as an additional $230,000 to cover the remainder of your contribution, and that way we will be equal". …."
3. By reason of the email set out in paragraph [63] below and special condition 1.b to the Loan Agreement (see paragraph [75] below), and in accordance with the Court's findings as to credit (see paragraphs [111] to [147] below), the Court finds that Omar and the Mirakis agreed upon this "50/50" arrangement. The Court finds that Omar and the Mirakis agreed to contribute $400,000 each (or $800,000 in total) towards the Purchase Price, with the balance to be obtained by way of finance from the bank (as to which see paragraphs [60] to [62] below). As set out in paragraph [15] above, the case as both pleaded and presented does not require the Court to arrive at any reconciliation or accounting of the $230,000 or funds Omar alleges he provided for the Deposit.
4. The parties also agreed that incidental to the "50/50 Conversation" was a discussion that the Property be purchased and held through a trust. Again, in his affidavit sworn 12 February 2019, Omar contended that as part of the conversation set out at paragraph [44] above, words to the following effect were said: "46. …. [Omar]: We also need to work out how to structure this purchase so that we are both protected. I would rather my share of the property be held by my family trust, or in a newly created trust". Navid: "We could put the property in my wife's name, so that we are both protected". [Omar]: "I am happy if we form a trust for the purpose of holding the property, and for now, name your wife as the trustee of the trust. Once it is up and running though, we need to replace your wife with a corporate trustee. I also will need all of the documents drawn up by my lawyer so that I am protected." Navid: "Ok, get your lawyer to prepare the documents".
5. Although a key issue to be resolved in the case at bar was whether this is what in fact legally transpired, there can be no dispute that the parties at least initially committed to, and took steps towards effecting, the trust arrangement.
6. By reason of the matters set out in paragraphs [63] to [65] below, the Court is further satisfied the parties agreed that the Property would initially be held in the name of Sepideh as trustee of the newly created trust, to be replaced with a corporate trustee at a later point.

Exchange on the Property and payment of the Deposit

1. As I have already set out in paragraphs [22] and [23] above, exchange of the Sales Contract took place on 18 August 2016. The Sales Contract identified the "purchaser" of the Property as "Sepideh Miraki", with the contact address provided being that of the Mirakis' residential home in West Pennant Hills (the "Miraki Residence").
2. The Deposit was also paid on exchange of the Sales Contract. As set out in paragraph [23] above, there was no dispute that the Deposit was paid on the day from the bank account of the Mirakis' business, Barton. However, as set out in paragraph [15], as the case was ultimately presented it is unnecessary for the Court to resolve the question of who in fact financed the Deposit.

The Gladstone Road Unit Trust

1. In accordance with the parties' decision to purchase and manage the Property through a trust (see paragraph [48] above), on 6 September 2016 a trust deed (the "GRUT Deed") (described as a Fixed Unit Trust (NSW Land Tax) Deed) was executed which set out the terms for a newly created fixed unit trust, being the GRUT. The GRUT Deed included: "Iconic Constructions Australia Pty Ltd ACN: 168 104 649 ATF: Miraki Family Trust El-Cheikh Group Pty Ltd ACN: 614 664 158 ATF: El-Cheikh Family Trust Subscribers - and - Gladstone Rd Enterprises Pty Ltd Trustee" with the "Subscribers" being the second plaintiff (El-Cheikh Group) and second defendant (Iconic Constructions).
2. Before turning to the material provisions of the GRUT Deed, it is convenient to make four brief observations in relation to the parties to that deed.
3. First, there was no dispute that under the GRUT Deed, Omar and the Mirakis were each to hold their half share of the Property through their respective nominee companies, El-Cheikh Group and Iconic Constructions. Second, El-Cheikh Group was incorporated on 6 September 2016 for the purpose of the purchase of the Property, with Omar's brother, Walid El-Cheikh, as its sole director, secretary and shareholder. Third, Gladstone Rd Enterprises was also incorporated on 6 September 2016 with Sepideh as its sole director, secretary and shareholder. Finally, the Court is satisfied that Gladstone Rd Enterprises was incorporated in accordance with Omar and the Mirakis' intention that it would take over the role of (corporate) trustee of the GRUT from Sepideh (see paragraph [48] above).
4. The GRUT Deed included: " RECITALS A. The Subscribers will pay to the Trustee the Subscription Amount in return for Units to be issued by the Trustee. B. The Trustee will deposit the Subscription Amount in the Bank Account with the intention that such deposit and any further amounts received and deposited will be held upon the trusts and subject to the terms contained in this Deed. C. This Deed is made with the intention that:- i. it will bind the Trustee and each of the persons who have or may become Unitholders in the manner set out in this Deed; ii. the trusts declared in this Deed will have effect to the extent provided for in this Deed for the benefit of each Unitholder… DEED THE PARTIES AGREE 1 DEFINITIONS In this Deed, the Schedules and any documents referred to in this Deed, the following terms will have the following meanings unless the context otherwise requires: … 1.21 "SUBSCRIBER" means a person identified in items 4 and 6 of Schedule 1 and any additional subscriber for Units pursuant to this Deed. 1.22 "SUBSCRIPTION AMOUNT" means the amount to be paid to the Trustee by a Subscriber, calculated by multiplying the number of Units to be issued to the Subscriber in item 6 of Schedule 1 by the value of the Initial Units as set out in item 5 of Schedule 1. … 1.25 "TRUSTEE" means the trustee or trustees named and described in item 3 of Schedule 1 and any additional or substituted trustee. 1.26 "TRUST FUND" means the sum of the following: - (a) the Subscription Amounts; (b) moneys paid to and accepted by the Trustee upon the issue of New Units pursuant to clause 4 of this Deed; (c) the accumulations of income directed or empowered to be made by the Trustee and all accretions to the Trust Fund and the investments and property from time to time representing these moneys and any reinvestments of cash or property of the Trust Fund and the proceeds received from the realisation of any investments howsoever realised and accumulations or any part thereof; and (d) any further amounts or property received by the Trustee pursuant to the trusts under this Deed including without limitation the proceeds of any borrowings made by the Trustee. 1.29 "UNITHOLDER" means any person registered pursuant to this Deed as the holder of a Unit and includes persons jointly registered. 1.30 "VESTING DAY" means, subject to clause 11, the date 80 years from the Date of this Deed except where the Governing State is South Australia, in which case "VESTING DAY" means, subject to clause 11, such date as the Trustee shall determine in writing on one or more occasions, after receiving the written consent of the holders of not less than 50% of the Units, subject to the Law of Property Act 1936 (SA), and in any event shall not be a date later than that permitted by the rule against perpetuities in the Governing State at the relevant time. … 3 DECLARATIONS OF TRUST The Trustee declares that from the Date of this Deed, it will hold the Trust Fund for the Unitholders upon the trusts and with and subject to the powers and provisions contained in this Deed. 4 UNITS - ISSUE AND APPLICATION … 4.3 Initial Unitholders Upon paying the Subscription Amount to the Trustee, each Subscriber will be registered as the holder of the number of Units set out next to the name of that Subscriber in item 6 of the Schedule and these Units when issued will be the Initial Units and these Subscribers will be the Initial Unitholders. … 11 DURATION AND DETERMINATION OF THE TRUST 11.1 Duration of Trust The Trust will begin at the Date of this Deed and, unless previously determined pursuant to the next subclause, will continue until the Vesting Day. 16 MEETINGS 16.4 Resolution without meeting A resolution or form of consent in writing signed by all of the Unitholders will be as valid and effectual as if it had been passed at a duly called or constituted general meeting of Unitholders. Any such resolution or consent may consist of duplicate copies of one document each signed by a Unitholder. … 20 CHANGE OR RETIREMENT OF TRUSTEE 20.2 Appointment or removal of Trustee by Unitholders Any Trustee may be removed and any Trustee may be appointed by a resolution passed by the holders of not less than 75% of the Units. SCHEDULE 1
5. Date of deed The 6th day of September 2016
6. Name of trust Gladstone Rd Unit Trust Gladstone Rd Enterprises Pty Ltd
7. Trustee ACN: 614 666 876 [Miraki Residence] Iconic Constructions Australia Pty Ltd ACN: 168 104 649 ATF: Miraki Family Trust [Miraki Residence] and
8. Initial Subscribers El-Cheikh Group Pty Ltd ACN: 614 664 158 ATF: El-Cheikh Family Trust Unit X XX-XX XXXX Wiley Park, NSW 2195
9. Value of the Initial Units $1 per unit
10. Initial Subscriptions Subscribers Iconic Constructions Australia Pty Ltd ACN: 168 104 649 50 ATF: Miraki Family Trust 50 El-Cheikh Group Pty Ltd ACN: 614 664 158 ATF: El-Cheikh Family Trust
11. Governing state New South Wales

1. The GRUT Deed was in typescript, except for the "Date of Deed" inserted by hand in Schedule 1 and reproduced in italics above.
2. As set out in Schedule 1, Iconic Constructions and El-Cheikh Group were the only two initial subscribers to the GRUT, both entitled to 50 units valued at $1 per unit (being a total initial subscription value of $50). However, there was no evidence that either has paid the subscription fee. The address provided for Gladstone Rd Enterprises was that of the Miraki Residence.
3. There was no dispute that the GRUT Deed had been executed by Sepideh (on behalf of Iconic Constructions and Gladstone Rd Enterprises) and Walid (on behalf of El-Cheikh Group). The Court accepts the submission put by the plaintiffs that the GRUT Deed was validly executed by the parties to it on or around 6 September 2016, being the date it bears.
4. On 22 September 2016 Omar's accountant, Mr Mark Bartolo, emailed Sepideh's solicitor, Mr Alkhair, saying, inter alia: "… This may be of assistance for you. The entity Gladstone Road Enterprises Pty Ltd in its capacity as trust (sic) for the Gladstone Road Unit Trust must be the purchaser not Speideh (sic) Miraki. The vendor needs to be advised. There is also a requirement to seek an extension for at least 45 days. …"
5. There is no evidence about whether any of this was sought to be done. In any event, there is no doubt that upon settlement on 18 October 2016 the Property was transferred into the name of Sepideh.

The ANZ Loan

1. An offer from ANZ addressed to Sepideh dated 11 October 2016 was received for a business loan (the "ANZ Loan"). Navid forwarded a copy of the ANZ Loan by email to Omar later on 11 October 2016. This is consistent with the parties still being in agreement to fund the Purchase Price through a final combination of personal savings and finance (see paragraph [45] above).
2. The ANZ Loan had a total facility limit of $1,000,000, was in Sepideh's name, was provided for the purpose of "[p]urchase of property for commercial use" and was to be secured by a mortgage over the Property and a guarantee from Barton. There was no dispute that the "property purchase" referred to was the purchase of the Property.
3. Sepideh subsequently signed and returned the "Acceptance and Consent" to the ANZ Loan some time on 13 October 2016. She signed both in her own right and as the director and secretary of Barton.

Correspondence on 11 October 2016

1. At 2.09pm on 11 October 2016, Mr Bartolo circulated an email providing an update on outstanding settlement matters. The email was sent to Omar, Mr Joseph Di Mauro (Omar's solicitor) and Mr Alkhair. It said (emphasis added): "… Subject: Update On Property settlement matters Hi All, Just confirming matters as I understand it and post discussions with: 1. Omar 2. Noah As at 11/10/16 approximately 1.00pm 1. Property will be purchased by Sepideh 2. The attached structure will not be utilized at this stage. (See attachment 1) 3. The property will be transferred to this structure down the track and Joseph and Noah have worked out an efficient way to make this happen. 4. Noah has confirmed to me that the Loan agreement will be executed by Sepideh within 24-48 hours. See Second attachment. 5. If Noah has any further issues with the Loan Agreement he will contact Joseph directly. 6. Sepideh may not be able to contribute her capital of $400k. If so then Omar will contribute the extra $400k and the loan agreement will be modified to reflect this increase contribution by Omar. This modification will be attended to by Joseph and Noah. As Omar has to leave again for an overseas trip on the weekend, the loan agreement and any other necessary documentation, as noted below, must be signed this week without fail. If anyone disagrees with the above please advise in writing via email today. Joseph, Specific matters for you: 1. Please advise if there is anything else that needs to be created and signed this week. I understand you wanted a JV agreement. If so, this needs to be created now and sent to Noah ASAP so it can be executed at the same time as the loan agreement. 2. Joseph if security by way of second mortgage or caveat is to be lodged once settlement occurs, then please ensure that the necessary documentation is prepared now and signed by the parties before Omar leaves on the weekend. …"
2. Shortly after receipt of the above email, at 2.22pm Mr Di Mauro sent the following reply to Mr Bartolo, Mr Alkhair and Omar: " Subject: RE: Update On Property settlement matters Hi All, I note that Sepideh is purchasing the property as trustee of the Gladstone Unit Trust and that in due course there will be a change of trustee. I also note that as Omar is contributing funds towards the purchase of the property he will be registering a mortgage on the tile (sic) in due course, but that in the interim he will register a caveat over the property, which will rank second only to the funds being advanced by the first mortgagee. I also note that Sepideh will agree to not transacting any business of the trust without the written approval of both the unit holders (the unit holders are as per the diagram circulated by Mark Bartolo). All can you please confirm that we are all in agreement to the above."

The meeting on 12 October 2016

1. Early in the morning of 12 October 2016, Mr Alkhair sent an email to Omar and Mr Bartolo, copied to Mr Di Mauro and Sepideh. It said: "… Subject: RE: Update On Property settlement matters Good morning all, I refer to the various correspondences and confirm that in principal [sic] Mrs Sepideh Miraki is agreeable to the following: 1. That She is purchasing the property as trustee of the Gladstone Unit Trust and that in due course there will be a change of trustee, 2. That Sepideh will not transact any business of the trust without the written approval of both the unit holders (the unit holders are as per the diagram circulated by Mark Bartolo). 3. That Omar is contributing funds ($850,000) towards the purchase of the property, 4. That in consideration of Omar's contribution Sepideh and Omar will enter into a loan agreement confirming the loan advance, 5. That Sepideh will grant her irrevocable consent that Omar may register a mortgage and/or a caveat whilst the loan funds remain outstanding, 6. That prior to the advance of loan funds, Sepideh will enter into the Mortgage & Caveat in the form attached herein, 7. The Mortgage and Caveat will be registered or remain unregistered at the sole discretion of Omar. I will correspond with Mrs Miraki later today for the purposes of executing all proposed documents and I welcome you to contact me should you have any queries or if I can assist in anyway. …"
2. Given the identical subject line, Mr Alkhair's reference to "various correspondences" and that the email was stated as being provided to "confirm" Sepideh was "agreeable" to the settlement matters listed, the Court infers this email was sent in response to Mr Di Mauro's email of 11 October 2016 (see paragraph [64] above).
3. Sepideh's evidence was that the first time she was made aware of the above email and, more importantly, its contents was in the course of the current proceedings. In accordance with the Court's findings on Sepideh's reliability as a witness (see paragraphs [125] to [129] below), the Court does not accept this evidence. In any event, the matters to which Mr Alkhair referred were subsequently discussed by the parties in person at a meeting held later that evening at the Miraki Residence (the "12 October Meeting"). Sepideh did not challenge that the 12 October Meeting took place.
4. At 12.41pm on 12 October 2016 Navid forwarded by email to Omar a request from a finance broker in connection with the ANZ Loan which required "evidence of funds to complete". This is again consistent with the joint nature of Omar and Navid's enterprise to purchase the Property.
5. At the 12 October Meeting, Omar, the Mirakis, Mr Alkhair and another of Omar's brothers, Khalid El-Cheikh, met to finalise and execute a number of documents required for the upcoming settlement of the purchase of the Property.
6. The documents executed by the parties at the 12 October Meeting included: 1. The Loan Agreement between Omar and Sepideh (which also purported to grant Omar a charge by Sepideh over the Property and her other assets); 2. A mortgage from Sepideh granted over the Property, in favour of Omar; 3. A caveat protecting Omar's interest in the Property, consented to by Sepideh; and 4. The Gladstone Road Unit Trust Unit Holder Agreement (the "GRUT UHA").
7. Pausing here, it is convenient to note the Court does not accept Sepideh's contention that the documents detailed in the preceding paragraph were "foisted" upon her by the other parties present at the 12 October Meeting, or that she did not understand the effect of what she was signing. No issue of unconscionable conduct or non est factum was pleaded by Sepideh in her defence. Consistently with the Court's findings on Sepideh's credit (particularly those matters set out in paragraph [140] below), I am satisfied, and certainly on the balance of probabilities, that Sepideh understood the general effect of the impact or effect of the documents she signed.
8. I will now address each of these documents in turn.

The Loan Agreement

1. By reference to the emails of 11 and 12 October 2016 set out in paragraphs [63] to [65] above, the Court accepts Omar's evidence that at some point prior to Mr Alkhair's email circulated on the morning of 12 October 2016, Navid had informed Omar that he (Navid) and Sepideh were having difficulties raising sufficient funds to pay their 50% contribution, or $400,000, towards the Purchase Price.
2. In order to ensure the upcoming settlement went ahead, Omar and the Mirakis agreed to enter into the Loan Agreement, pursuant to which Omar would lend Sepideh funds to cover their contribution to the Purchase Price. Although undated, the parties accepted (as does the Court) that the Loan Agreement was executed by both Sepideh and Omar at the 12 October Meeting, with both initialling each page of the document.
3. The terms of the Loan Agreement included: "….WHEREAS The Borrower has requested the Lenders to make available certain loans advances or financial accommodation to the Borrower for business purposes which the Lenders have agreed to do subject to and upon the terms and conditions specified in this Loan Agreement. NOW THIS DEED WITNESSES AS FOLLOWS: 1 DEFINITIONS AND INTERPRETATION In the interpretation and application of this Loan Agreement, unless inconsistent with or repugnant to the context, the following shall apply: 1.12 "Lenders" means and includes the person(s) or legal entity referred to in the Schedule as the Lenders; 1.13 "Borrower" means and includes the person(s) referred to in the Schedule as the Borrower; 1.14 "Guarantor" means and includes any party or parties to the Securities other than the Lenders or the Borrower whether an actual Guarantor or not; … 1.17 "Initial Amount of the Loan" means and includes the amount referred to as such in the Schedule being that part of the Principal Sum of the Loan paid by the Lenders to the Borrower on the Date of Advance; 1.18 "Loan" means and includes all loans advances or financial accommodation of any nature whatsoever from the Lenders to the Borrower and shall include without limitation the Initial Amount of the Loan, all monies, debts and liability of any nature whatsoever due or owing or which may become owing whether previously presently or at some future date by the Borrower to the Lenders and shall further include any interest, fees, costs, charges, losses, damages or expenses due to or incurred by the Lenders of any nature whatsoever relation to, touching upon or arising out of this Loan Agreement or out of the Securities; 1.19 "Event of Default" means and includes an event referred to as such in clause 6; … 1.22 "Mortgaged Property" means and includes any property of any nature whatsoever being the subject of any Securities; and shall be deemed to include any real estate property whether presently owned or subsequently acquired during the period of this Agreement either by the Borrower or any Guarantor; … 1.24 "Repayment Date" means and includes the date specified as such in the Schedule or any extension of that date agreed to in writing by the parties. … 3 BORROWER'S WARRANTIES 3.1 The Borrower warrants to the Lenders that: … 3.8 In the event that the Borrower is the Trustee of any Trust, it enters into this Loan Agreement for and on behalf of and with the power and authority of each and every such Trust of which it is Trustee and in the event that the Borrower enters into this Loan Agreement and any Securities in its capacity as a Trustee or in any manner whatsoever on behalf of another interested party that such trust or capacity is valid and binding and that any deed or documentation constituting or evidencing same is fully enforceable and that copies of all such deeds and documentation have been provided to the Lenders together with any amendment, substitution, variation or replacement of such deeds and documents. The Lenders shall not be prejudiced or affected by any breach or oversight by the borrower in this regard. … 4 BORROWER AND GUARANTORS COVENANTS The Borrower and guarantors covenant with the Lenders that they shall: 4.1 repay to the Lenders or at its direction the Loan upon the Repayment Date; … 5 SECURITIES In consideration of these presents and of the Lenders agreeing to make the Loan, the Borrower covenants with the Lenders that it shall grant or procure to be granted the Securities in favour acknowledges and agrees that: … 5.3 For the avoidance of any doubt, the Borrower hereby charges as beneficial owner in favour of the Lenders all its right, title and interest in or derived from, the Mortgaged Property and all its assets as security for payment to the lenders of the Loan. … 6 EVENTS OF DEFAULT Notwithstanding anything contained in this Agreement, the Loan shall at the option of the Lenders become immediately due and payable and each of the Securities shall immediately become enforceable at the option of the Lenders upon the happening of any one of the following events of default, without the necessity for any notice or demand by the Lenders and notwithstanding any delay or previous waiver by the Lenders of the right to exercise such option. An Event of Default shall be deemed to have occurred if: … 6.2 default is made by the Borrower in the due and punctual payment of interest or any other monies at any time due and payable by the Borrower to the Lenders whether demanded or not. … 6.14 in respect of any trust or settlement of which the Borrower or Guarantor is at the date of this Agreement the Trustee, any one or more of the following events occurs without the prior consent in writing of the Lenders, namely: 6.14.1 the Trust or Settlement is determined or terminated; 6.14.2 any power of determination, revocation, addition, appropriation or advancement save and except any such power which relates to the income of such trust or settlement is exercised by the Trustee; 6.14.3 the Trustee's right of indemnity is in any way restricted, diminished or impaired; any distribution of corpus is made; 6.14.4 the Borrower or Guarantor (as the case may be) retires or is removed as sole Trustee; … SCHEDULE Item 1 Lenders: Omar El-Cheikh Item 2 Lenders Address: XX XXXX Street Rydalmere NSW 2116 Item 3 Borrower: Sepideh Miraki Item 4 Borrower's address [The Miraki Residence] Item 5 The Guarantor N/A Item 6 The Guarantor's address N/A Establishment/Procuration Fee: $0.00 Item 7 Legals/Lodgement Fee: $3,500 plus GST Brokerage Fee: $0.00 Item 8 Amount of Loan: $900,000.00 S.M $850,000.00 Item 9 Date of Advance: Upon signing hereof and completion of all loan documentation Item 10 Repayment Date: 5 (five) years after date of Advance or upon the sale of the property Item 11 Interest: 12% per annum, provided always that if the Borrower pays the interest and principal on or before the due dates the lender shall accept 0% per annum and a share of the profits from the sale of the property. Item 12 Payment of Interest: $4,000 interest per month payable monthly in advance provided always that if the Borrower shall comply with the terms of the advance then no interest is payable but the lender shall be entitled to a share of the profits derived from the sale of the property Item 13 Security Property: Being the property known as [the Property] Item 14 Non refundable Application fee $0.00 Prior Encumbrances: Loan for the balance of the purchase Price and associated purchase costs after allowing for the initial contributions of $400,000 by both the borrower and the lender

Special Conditions 1. The parties here to shall enter into a joint venture agreement whereby the parties shall evidence the following agreement between the parties a. All decisions related to the property must be agreed to by the Borrower and the Lender including i. The amount of any borrowing to be secured on the property ii. The use of the property. iii. The rental to be charged. iv. Any works to be carried out on the property v. The time of sale of the property b. The parties hereto shall each contribute $400,000 towards the purchase of the property, with the purchase to be solely in the name of the Borrower. c. The Lender shall be entitled to register a second Mortgage over the property to better secure his interest in the property. d. The fact that the parties shall each contribute equally to any short fall (sic) in the outgoings and mortgage payments after allowing for the renal received from the property e. The fact that the Borrower shall pay the capital gains tax applicable on the sale of the property for both the Borrower and the Lender and shall then distribute to the Lender his 50% share of the profits free of any liability for capital gains tax. 2. The Borrower shall execute all necessary or desirable documents in order to give effect to the agreements contained herein and to secure the advance, as and when called upon to do so by the Lender. 3. The Borrower shall not in any way pledge charge or otherwise encumber the property without the express written permission of the Lender. "

1. The Loan Agreement was in typescript, except for the "Amount of Loan" set out in the "Schedule", which was amended by hand and reproduced in italics above. This amendment increased the amount from $850,000 to $900,000, with the change initialled by Sepideh. It is not necessary for the Court to come to any view about the reason for the increase.
2. The Loan Agreement was signed by Sepideh and witnessed by Mr Alkhair. There is no evidence to suggest that the joint venture agreement referred to in the Special Conditions was ever brought into existence.

Mortgage over the Property

1. As security for the monies advanced under the Loan Agreement, Sepideh granted a mortgage in favour of Omar for all her "estate and interest" in the Property (the "Mortgage").
2. A standard form mortgage was executed by Omar and Sepideh (as mortgagee and mortgagor, respectively), witnessed by Mr Alkhair and Omar's brother, Khalid. In evidence before the Court were a number of additional documents concerning the Mortgage, including: 1. A Disbursement Order, authorising Omar's lawyers (DSA Law) to take steps to complete the Mortgage (with handwritten alterations initialled by Sepideh altering the principal from $850,000 to $900,000); 2. Statutory Declaration on behalf of the Mortgagor (that is, Sepideh); 3. Authority to Complete and Acknowledgement on behalf of the Mortgagor; and 4. Acknowledgement by Mortgagor (again with a handwritten alteration in one place amending the principal from $850,000 to $900,000, but leaving it at $850,000 in another), all being signed by Sepideh and dated 12 October 2016.
3. Also in evidence was a document titled "Offer", the terms of which included: OFFER MORTGAGOR: Sepideh Miraki of [the Miraki Residence] MORTGAGEE: Omar El-Cheikh of XX XXXX Street, Rydalmere, NSW 2216 RE: LOAN - $850,000.00 $900,000.00 S.M. SECURITY: 1st Registered Mortgage over [the Property] The terms of such Mortgage will be: Principal Sum: $850,000.00 $900,000.00 S.M. Term of Loan: 60 months commencing the 12th October 2016 Interest Rate: 6% PER ANNUM Penalty Interest: 12% PER ANNUM Interest Payable: Interest is payable Monthly in advance for the term of the loan Instalments: $4,250.00 per Month interest if paid on time $8,500.00 per Month interest if paid after the due date $850,000.00 plus any accrued interest and costs payable at the end of the term of the loan Commencing Date: 12th October 2016 Insurance: Full replacement value over the properties noting the interests of the mortgagee Security: 1st Registered Mortgage over [the Property] Valuation: Sworn valuation/s if requested by the Mortgagees Application Fee: NIL …. Other Conditions: 1. Any other conditions which the Mortgagee may impose as a result of its enquiries. 2. Interest is payable monthly and shall be paid in advance. 3. Any other conditions contained in the Loan agreement and or Mortgage. Should the borrower wish to accept this offer, he should sign the endorsement at the foot of the copy letter enclosed and return it to us. Please note that the moneys will be reserved for a period of seven days from the date of this letter. This offer will remain open for acceptance for a period of seven (7) days from the date hereof, failing which, it will, ipso facto and without the need for notice, automatically lapse."
4. As before, the Offer was in typescript, except for the "Principal Sum" amount which was again amended by hand from $850,000 to $900,000 and reproduced in italics above. The change was initialled by Sepideh.
5. It was accepted by the parties that although the Mortgage was executed and all documents in paragraph [76] above signed at the 12 October Meeting, the Mortgage was never lodged for registration. This is unsurprising, given the ANZ Loan was secured by a first mortgage over the Property.

Caveat over the Property

1. As further security for the monies to be advanced under the Loan Agreement, the parties also completed a caveat to be lodged against the Property in favour of Omar (the "Caveat"). The Caveat was registered on 10 November 2016.
2. The Caveat stated that Omar's "equitable & legal interest" in the Property was claimed by virtue of the following stated facts: "ON THE 13th OF OCTOBER 2016 THE CAVEATOR DID ADVANCE TO THE REGISTERED PROPRIETOR THE TOTAL AMOUNT OF $850,000 $900,000 BY WAY OF LOAN FUNDS, TO ASSIST WITH THE PURCHASE OF THE PROPERTY KNOWN AS [THE PROPERTY]"
3. Again, the amount of $850,000 had been crossed-out and amended by hand to $900,000, with the change initialled by Sepideh. No instrument (for example, the Loan Agreement) is referred to as being relied on in the Caveat. Further, as will be apparent in the factual findings below at paragraphs [92] and [93], Omar did not advance any "loan funds" as such until 17 October 2016.
4. The Caveat was signed by Omar, witnessed by Mr Alkhair and dated 12 October 2016. Sepideh signed the consent to the Caveat as the (future) registered proprietor of the Property.

The Gladstone Rd Unit Trust Unit Holder Agreement

1. As set out in paragraph [51] above, on or around 6 September 2016 the parties had executed the GRUT Deed. The GRUT UHA now purported to set out the terms upon which the business of the GRUT was to be conducted, and the obligations which attached to the unitholders' (being El-Cheikh Group and Iconic Constructions) respective holdings in the unit trust.
2. The terms of the GRUT UHA included: "THIS AGREEMENT dated day of 2016 BETWEEN SEPIDEH MIRAKI of [the Miraki Residence] (Trustee) AND EL-CHEIKH GROUP PTY LTD of XX XXXX Crescent, Greensborough, VIC 3088 (Unitholder 1) AND ICONIC CONSTRUCTIONS AUSTRALIA PTY LTD of XXX/XXX XXXX Street, Sydney, NSW 2000 (Unitholder 2) RECITALS A. As at the date hereof the units in the trust are held as to 50% by Unitholder 1 and as to 50% by Unitholder 2. B. The unit trust deed governs the conduct of the business by the trustee and the relative rights and obligations of the unit holders. C. The parties wish to set out in this agreement the full terms and conditions upon which the business is to be conducted and the rights and obligations which will attach to the unit holder's respective holdings in the unit trust. … 2. Definitions In this agreement, unless the context otherwise requires: (e) Business means the business of the Gladstone Rd Unit Trust and any other business approved by special resolution of directors of the trustee;… (m) Property means the commercial premises located at [the Property]. …. (o) Trust means the Gladstone Rd Unit Trust; (p) Trustee means Sepideh Miraki or any additional substitute or replacement trustee. 3. Unit holding structure The unit holdings of each unit holder as at the date of this agreement are as follows: Unit holder No. of units El-Cheikh Group Pty Ltd 50 (ACN 614 664 158) Iconic Constructions Australia Pty Ltd 50 (ACN 168 666 876)

4. Management of the company Principal activity (a) The unit holders agree that the trust's principal activity will be to purchase and manage the Property. (b) The trust will be managed by the trustee. "
5. Although the GRUT UHA was undated, there was no dispute it was signed by Sepideh at the 12 October Meeting in two places: in her own right as the "trustee" described in the document and on behalf of Iconic Constructions. Walid, however, was not present at the 12 October 2016 Meeting and as such did not sign the GRUT UHA on behalf of El-Cheikh Group until a later date. So much is evident from the email correspondence circulated by Mr Alkhair to Omar, Mr Bartolo and Mr Di Mauro the next day, on 13 October 2016: "Please find attached the following executed documents: 1. Loan Agreement 2. Disbursement Order, 3. Mortgage, and 4. Caveat. Please note that the Unit Trust unit (sic) Holder agreement is currently with Omar who is attending to the execution by the director of the El-cheikh (sic) Group and will provide this prior to settlement, once received I will forward same to you. Please note that settlement of the property is expected on Tuesday 18th of October 2016. …"
6. Although the evidence before the Court does not disclose the exact date Walid signed the GRUT UHA, neither party challenged (and the Court accepts) that at some point before settlement of the purchase of the Property, the GRUT UHA had been validly executed by all the parties to it.

Settlement of the purchase of the Property

1. Mr Alkhair sent an email to Sepideh at 2.28pm on 17 October 2016, copied to Navid and Omar, confirming details for the upcoming settlement. Attached to the email was a cheque direction, providing that the balance of the Purchase Price to be provided at settlement was $642,535.18. A copy of that email is set out in paragraph [24] above.
2. Shortly after Mr Alkhair's email was circulated, Omar and Navid met outside the Cherrybrook branch of the CBA. For the reasons set out in paragraph [164] below, the Court accepts that Omar had with him a bag which contained $450,000 in cash that he gave to Navid.
3. As set out in paragraphs [26] to [31] above, the Court is satisfied that Navid applied $430,000 of those funds towards purchasing the CBA Cheque and the ANZ Cheque.
4. It is convenient to pause and make one observation in relation to the ANZ Cheque. It was Omar's evidence that when he and Navid arrived at the Cherrybrook branch of the ANZ, Omar gave Navid the remaining $160,000 cash. However, on this occasion and unlike what occurred at the CBA branch, Omar did not accompany Navid to the ANZ bank teller.
5. As set out in paragraph [31] above, the bank statement in evidence discloses that only $140,000 was then deposited by Navid into the ANZ "Progress Saver Account" of Sepideh. Mr Allen contended the $20,000 discrepancy between Omar's evidence and the documentary record supported Sepideh's claim that no money was ever advanced by Omar pursuant to the Loan Agreement. While the Court accepts only a deposit of $140,000 was made, consistent with the Court's respective credit findings on Omar and the Mirakis (see paragraphs [137] and following below), the Court is nevertheless satisfied, on the balance of probabilities, that Omar did in fact give Navid a total of $160,000 cash at the ANZ bank. However, only $140,000 was applied toward the Purchase Price.
6. The CBA Cheque and ANZ Cheque together provided the $642,535.18 Mr Alkhair had instructed was required for settlement (see paragraph [24] above).
7. After the two bank cheques were drawn, Omar and Navid went to a nearby Gloria Jeans café to have a cup of coffee and celebrate the fact they had the settlement funds. On this occasion, Omar took a photograph of Navid with the two bank cheques sitting on the table in front to him. There was a dispute in the evidence as to what happened next, but the Court is satisfied that one way or the other the bank cheques were provided to Mr Alkhair that evening.
8. Settlement of the purchase of the Property occurred on 18 October 2016.

Subsequent events leading to the initiation of Court proceedings

1. Following settlement of the Property, Omar and the Mirakis moved their respective businesses into the Property.
2. Various alterations and renovations to the office space were subsequently undertaken, such as the removal of old fittings and installation of new signage, blinds and a security system. A company was also retained to provide regular cleaning services. There was a dispute in the evidence as to what works were in fact carried out and who paid for them, however as a result of the plaintiffs no longer pressing Orders 11 and 12 of the Amended Points of Claim (see paragraph [12] above), nothing ultimately turns on this.
3. Attempts were also made to finalise a number of outstanding matters regarding the finance, structure and management of the Property.
4. Mr Bartolo renewed efforts to have Gladstone Rd Enterprises assume the role of trustee of the GRUT, purportedly taking over from Sepideh. Despite a number of emails between Mr Bartolo, Mr Di Mauro, Omar and Mr Alkhair on the matter from early November 2016, the change of trustee never happened.
5. On 8 November 2016, the Caveat signed at the 12 October Meeting (see paragraphs [83] to [86] above) was lodged against the Property by Mr Alkhair.
6. Attempts were also made by Mr Alkhair to have the GRUT UHA lodged and stamped by the NSW Government Office of State Revenue ("OSR"). However, a requisition notice issued by the Chief Commissioner of State Revenue on 23 November 2016 stated the GRUT UHA was not a declaration of trust (and therefore not liable to duty), and requested the actual declaration of trust be provided to the OSR. There is no evidence as to whether this was ever done.
7. From on or around February 2017, Omar began to seek repayment of the $450,000 which he said had been advanced to the Mirakis under the Loan Agreement. The Court accepts that, at this point, no repayments or interest payments had been made by the Mirakis on the funds provided by Omar on 17 October 2016.
8. There can be no dispute on the evidence that what started off as small arguments between Omar and Navid regarding monies owed became a significant source of tension between the two. It was this conflict, together with the emerging dispute as to whether the Property was held by Sepideh in her personal capacity or as trustee for the GRUT, that triggered the eventual breakdown in relations between the parties.
9. Of some real significance to the present dispute was this text message from Navid to Omar on 21 March 2017 as the latter had been pressing for resolution of the issues between them: "+ I'm paying you $50K on top of your $450K that you put in settlement for me". This is an admission against interest by Navid which strongly corroborates Omar's evidence that he (Omar) provided the $450,000 in cash on 17 October 2016.
10. On 13 April 2017 the Mirakis locked Omar out of the Property. Sepideh subsequently served a lapsing notice in relation to the Caveat. The Caveat has been extended pending determination of these proceedings.
11. The plaintiffs commenced these proceedings on 24 May 2017 by summons.
12. The Property remains registered in Sepideh's name.

Findings as to credit

1. This is the first of the issues identified by Mr Cleary (see paragraph [13] above).
2. The case at bar involves conflicting versions of events on almost every fact in issue. Given the breakdown in relations between the parties, it was not surprising there was little on which they agreed. However, given the lack of contemporaneous documentation on certain critical issues and what frequently became a "he-said-she-said" explanation of events, the credit of the protagonists became a central issue.

Legal principles as to credit

1. I considered the principles applicable to findings of credit in Maria Saravinovksa v Krste (Chris) Saravinovski; Chris Saravinovski v George Saravinovski (No 6) [2016] NSWSC 964 at [464] - [473]. Those ten principles may be briefly summarised as follows.
2. First, at the forefront of the Court's approach has been the oft cited statement of McLelland CJ in Equity in Watson v Foxman (1995) 49 NSWLR 315 at 318-319: "Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as "misleading") within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not … attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712."
3. Second, the concept of actual persuasion was elucidated by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers appointed) (In liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123: "48. Under s 140(2) of the Evidence Act 1995 (Cth), the Court must, in deciding whether it is satisfied that a case has been proved to the requisite standard, take into account: • 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. When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; [1938] ALR 334 at 342."
4. Third, there is the statutory successor of the rule in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 in s 140 of the Evidence Act 1995 (NSW): "140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account -- (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged."
5. Fourth, evidence is to be preferred which is inherently probable in the circumstances or is given by a witness against their interest.
6. Fifth, evidence of independent witnesses, i.e. persons who have no reason to be partisan, may be decisive in resolving the conflicting evidence of interested parties.
7. Sixth, where a witness has been found to be lying about one thing that does not automatically mean that they are to be disbelieved about everything else. The Court is not bound to accept or reject a witness' evidence in its entirety. This approach was expressed by O'Loughlin J in Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1; [2000] FCA 1084: "118. Before commencing a detailed analysis of the evidence in this case, I desire, in the first instance, to make clear the approach that I have taken to the evidence of a witness where I have found some, but not all, aspects of the evidence of that witness to be unreliable. Simply because I find against a party or a witness on one issue and reject some part of the evidence of that person, it does not mean that what remains is tainted, or otherwise lacks probative force, with the consequence that I should dismiss all the evidence of that person. The principles enunciated in the cases indicate that the trial judge is entitled to believe part of the evidence given by a witness and to reject the rest. After making an assessment of the evidence, after utilising the advantage of having seen and heard all the witnesses, and after forming an impression of each, the confidence that the judge reposes in a particular witness is assessed accordingly. Where evidence has a logical probative value, a judge will rely on it; where it contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force, the judge will, in all probability reject it or, at least, not rely on it. I mention some authorities that support those propositions. … 121. A trial judge is not restricted in his or her assessment of a witness. By this I mean that if, on peripheral issues, the trial judge reaches conclusions adverse to the credibility of a party, it does not necessarily follow, consistently with such conclusions, that these must be findings adverse to that party on the issues that are central to the determination of the matter. There is no rule of law or practice that states that an adverse finding on any aspect in the evidence of a witness means that the whole of that witness' evidence must be rejected."
8. Seventh, and closely related to the preceding point, in Sangha v Baxter [2009] NSWCA 78 Basten JA (with whom Handley AJA agreed) cautioned against global credibility findings: "155. There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases. 156. Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44]."
9. Eighth, disbelieving a witness that "X" was the case does not mean that "not X" has been proven. The Court respectfully adopts what fell from Gibbs J (as his Honour then was) in Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 694; [1975] HCA 63 (citations inserted): "…The fact that a witness is disbelieved does not prove the opposite of what he asserted: Scott Fell v. Lloyd (1911) 13 C.LR. 230, at p. 241; Hobbs v. Tinling (C.T.) & Co. Ltd. [1929] 2 K.B. 1, at p. 21. It has sometimes been said that where the story of a witness is disbelieved, the result is simply that there is no evidence on the subject (Jack v. Smail (1906) 2 C.L.R. 684, at p. 698; Malzy v. Eichholz [1916] 2 K.B. 308, at p. 321; Ex parte Bear; Re Jones (1945) 46 S.R. (N.S.W.) 126, at p. 128), but although this is no doubt true in many cases it is not correct as a universal proposition. There may be circumstances in which an inference can be drawn from the fact that the witness has told a false story, for example, that the truth would be harmful to him; and it is no doubt for this reason that false statements by an accused person may sometimes be regarded as corroboration of other evidence given in a criminal case: Eade v. The King (1924) 34 C.L.R. 153, at p. 158; Tripodi v. The Queen (1961) 104 C.L.R. 1. Moreover, if the truth must lie between two alternative states of fact, disbelief in evidence that one of the state of facts exists may support the existence of the alternative state of facts: Lee v. Russell [1961] W.A.R. 103, at p. 109."
10. Ninth, the way evidence should be treated where that evidence is not the subject of cross-examination when cross-examination was required, was considered by Hallen J in Fulton v Fulton [2014] NSWSC 619: "111. However, affidavit evidence, however good, which, for whatever reason, is not subject to cross-examination when cross-examination is required, will always be discounted, as appropriate, if the affidavit is used with leave without cross-examination. The degree to which it will be discounted may depend on various factors, including the circumstances that lead to cross-examination being dispensed with, the nature of the evidence and its centrality and degree of significance to the case. The degree of discount appropriate will be judged according to all the circumstances of the case: Re O'Neil, Deceased [1972] VicRp 35, [1972] VR 327, per Anderson J, at 333 - 334; Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 86, per Hamilton J, at [5]."
11. Tenth, the Court can only do the best it can on the evidence which it has. Some issues may need not be resolved or should not be resolved. It may be that they cannot be resolved given the nature of the evidence which the parties have adduced. The evidence in the case at bar has many similarities to the family dispute considered by Robb J in Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044. Of the evidence in that case, his Honour said: "187. The principal evidence relating to these issues consisted of the uncorroborated evidence of the witnesses, or alternatively the only corroboration available was the testimony of other witnesses. The evidence distilled into the word of one witness against the word of one or more other witnesses. Most of the events relevant to the issues occurred many years ago. The evidence relevant to the issues generally consisted of a series of assertions, and counter-assertions by various witnesses. Evidence of the objective context was generally not available, so it has not been feasible to test the versions of events that were in contest by reference to the objective probabilities, based upon uncontroversial contemporary circumstances. Though the issues are not entirely irrelevant, their significance is limited, and their resolution has not been necessary for the purpose of determining the real issues in the case. Any attempt to resolve the issues by making judgments about the relative credibility of the individual witnesses on an issue-by-issue basis was likely to be based on illusory foundations."

The plaintiffs' submissions on the Mirakis' credit

1. On behalf of the plaintiffs, Mr Cleary contended the Court should not accept either Sepideh or Navid as reliable witnesses and, accordingly, should not accept their recollection of events. A number of submissions were made by Mr Cleary in relation to each of Sepideh and Navid, which can be summarised as follows.

Sepideh

1. First, Mr Cleary made a number of submissions to the effect that Sepideh put certain aspects of her evidence in a deliberately equivocal or evasive manner. Two examples were advanced: 1. When asked in cross-examination why she did not correct her affidavit evidence (when read) to tell the Court she was no longer a director and shareholder of Iconic Constructions, Sepideh simply responded "No one asked me" (T103:18-29). 2. Sepideh was asked a number of times whether one of the companies of which she was a current director and shareholder (Cullen and Property Holdings Pty Ltd) owned any property. After initially maintaining she didn't know, Sepideh conceded (T105:48-50): "A. The thing is, I know, but I don't… want to talk about it, because to me, it's got nothing to do with this case, and I don't want to give any more information to [Omar]."
2. Mr Cleary contended that in the face of answers such as the above, the Court ought to be sceptical about the reliability of evidence Sepideh gave in the witness box.
3. Second, it was submitted that there were a number of inconsistencies in critical parts of Sepideh's evidence that the Court should not accept. In particular, Mr Cleary referred to an exchange between the Court and Sepideh during cross-examination, in which Sepideh conceded that when signing the documents at the 12 October Meeting, she knew Omar and Navid were intending to buy the Property together (T127.31-37): "HIS HONOUR Q. Well Madam, just help me with this please. You said that you knew that you were going to go buying this property together. A. Yes. Q. Now, are you telling me that on 12 October when you were signing all those documents, you knew that you were buying this property together? A. Yes, I knew. … Q. That is to say, you understood you were buying the property together with Omar? A. Yes, but deep down, I never wanted to buy it with him. Q. I understand deep down you never wanted - that you're telling me you never wanted to, but I just wanted, in fairness to you, to make sure-- A. Sure. Q. --So, when you signed all those documents on 12 October, you understood that at that point in time, by signing those documents in some way, you were buying the property together with Omar? A. Yes, correct."
4. This was to be contrasted with both Sepideh's affidavit evidence in which she deposed to buying the Property in her personal capacity, as well as her previous evidence in cross-examination where she maintained she was buying the property for herself (T119.48-50): "Q. …You didn't buy that property in your personal capacity, did you? A. Yes, I did buy that property. It wasn't my first time buying that, like buying property and, yes, I did purchase that property.
5. Mr Clearly emphasised that the inconsistency in Sepideh's evidentiary position was a further reason why the Court would not accept her as a truthful witness.

Navid

1. Mr Cleary contended there were a number of reasons why the Court would also not find the evidence of Navid to be reliable. These can be summarised as follows.
2. First, on many occasions during cross-examination Navid would not answer the question he was asked. Instead, he gave irrelevant or non-responsive answers. On many occasions this required the Court to intervene and direct Navid to answer the question put to him.
3. Second, and proceeding from the above, there were numerous times in cross-examination where the evidence Navid gave could not be accepted as a serious attempt to answer the questions put to him properly or truthfully. Mr Cleary contended that Navid gave the Court what could only be considered "nonsensical" answers and gave a number of examples in support, including: 1. In relation to the Property being listed for sale and whether it was Omar who had first introduced Navid to that listing (T144.39-46): "Q. --Omar came to you to tell you that there was another property for sale in the building? A. We were talking about a number of different property, the one next to Amanda Crowe's house, which was a, a block of units. She went to gaol because of double shooting and murder and then Omar, I said to Omar, "Mate, this doesn't work." Police was all over her then, anyway, a, a lot of things happened but some of the item I cannot talk about it here. I'm happy to explain to the judge, more than happy if I get with that like some sort of immunity. It's to do with the authority and all that stuff but, yeah, he's assisting, yeah, at the moment." 1. In relation to the Deposit and whether Omar had given Navid $70,000 in cash towards the Deposit on 12 August 2016 (T151.13-21, 30-34): "Q. And on 12 August 2016, you visited his house, do you remember doing that? A. 12 August? Q. Yes. A. I never been to him, his house, let's get that right. He doesn't have a house mate..(not transcribable)..different addresses. What are you talking about..(not transcribable)..room in different dodgy addresses, I'm sorry, but which house are talking about sir?" … Q. XX XXXX Drive Carlingford NSW? A. Well sir, he had met me there, he had met me in different places, and sometime in some hotel room and different area, and I'm living here..(not transcribable)..I don't know what we're talking about exactly, but I do recall that day, exactly, I'm sorry. But what, what, what does that mean? Why should I go to his house for?..." 1. In relation to the "50/50 Conversation" and discussions between Omar and Navid concerning the finance, structure and management of the Property (T156.20-29, 157:34-41) "Q. Just before lunch I was asking you some questions about a conversation you were having with Omar-- A. Yeah. Q. --in August 2016. Do you remember those questions I was asking you? A. Which, which part of this conversation, the legal or illegal one? Q. I don't know what you mean. A. I said the legal conversations I had with Omar or the illegal one? The illegal is not for court, we can leave that to somewhere else." … "Q. The trust that you were discussing with Omar. A. Sir, that never got chased, never got finalised. There was a lot of talk about it, a lot of things. Omar never finalised anything. He kept his position from day 1 to put the lease in. He, he put the lease in to, you know, basically pay for the thing. But next thing he say, "Oh, the lease shouldn't be under Iconic Group, should be under Iconic Constructions Australia." I say, "Of course". Next thing he brought his other mate in, and another drug dealer came in, and another ---" 1. In relation to whether Omar met with Navid on 17 October 2016 and provided funds towards the Mirakis' contribution to the Purchase Price (T162.31-50): "Q. Do you meet up with Omar on 17 October at a Cherrybrook shopping centre? A. I forgot to give him the key back for the Bentley. He took the Bentley..(not transcribable)..but the key is still here. You can ask him to pick it up, sorry. Yes. Q. Did you go to a Cherrybrook shopping centre with Omar on 17 two thousand and-- A. Yes, correct, I've been there, yes, yes. … Q. Omar had with him a bag? A. What sort of bag? Q. It was just an ordinary bag and he had cash in that bag, didn't he? A. I thought you meant the little bags. …"
4. Mr Cleary's submission was that the cumulative effect of the above matters was that the Court should be satisfied both Sepideh and Navid's recollection of events could not be trusted. This was to be contrasted with Omar who, Mr Cleary submitted, gave credible and truthful oral evidence during the hearing. As such, to the extent the Mirakis evidence was in conflict with that of Omar's or the documentary evidence, Mr Cleary contended the Court would accept that evidence over the Mirakis'.

The defendants' submissions on Omar's credit

1. Mr Allen emphasised on a number of occasions in cross-examination that Omar was only able to provide estimates in the answers he provided to the Court or was "guessing" his evidence in the witness box. For example, when challenged by Mr Allen on his evidence that Navid had paid "[m]aybe $100,000 something like that" in relation to the purchase of a Porsche, Omar responded "there was a lot of transactions between me and Mr Miraki, so it's, it's hard to remember every single one" (T62.6-12).
2. Mr Allen also drew attention to inconsistencies in Omar's evidence during cross-examination, which were said to be misleading in the impression they gave the Court. For example, Omar had maintained in his affidavit evidence and initially in cross-examination (T68.38-40) that he had given Navid $170,000 in cash to pay the Deposit. This was to be contrasted with Omar's later clarification that he had not handed Navid $170,000 in cash on the one particular occasion, but that $100,000 of this was purportedly by means of forgiveness of a debt owed to him by Navid from a previous loan (T69.43-48).
3. The inference to be drawn from such lines of inquiry in Mr Allen's cross-examination was that it was Omar whose recollection of events could not be trusted, and whose evidence should therefore not be preferred over the Mirakis.

Findings as to credit

1. There can be no doubt that there were inconsistencies in the evidence of Omar, Sepideh and Navid. However, the impression the Court has formed of Omar was that he was, on the whole, a reliable witness whose evidence was to be preferred over that of the Mirakis, where that evidence was in conflict.
2. Having observed Omar in the witness box, I am satisfied that he appeared to be doing his best to assist the Court. In contrast to Navid (see paragraph [142] and following below), Omar was measured, articulate in his recollection of events and candid when he did not know the answer to a question put to him. I accept Mr Cleary's submission that most of Omar's evidence was not seriously challenged by the defendants. Further, as will be apparent in the Court's reasons below on contentious findings, Omar's evidence was generally consistent with the documentary record before the Court.
3. Turning next to Sepideh, I accept Mr Cleary's submissions (see paragraph [125] and following above) as to why her evidence could not be accepted as reliable unless inherently likely, against interest or supported by contemporaneous documentary evidence. I do not accept her attempts to minimise her role in or her understanding of what was happening, for example such as her evidence with respect to the events of the 12 October Meeting, given in cross-examination included (T121.17-28, 123.22-29): "Q. That meeting was about the purchase of [the Property]? A. Yes. There wasn't a discussion about anything. I just signed the paperwork that time of night and I did not have the opportunity to ask any question, to raise any issue. Noah Alkhair had, did not have any discussion with me. He didn't advise me anything. He didn't even show me the actual paperwork. He just got me to the point that I had to sign, all right, here sign, sign, sign, that's it. ... Q. One of the documents that you were asked to sign was a unit trust unitholders agreement? A. I signed it but I did not know it was the agreement. I did not know it was the, the trustee. I just signed it without any explanation. He didn't even open the page for me to say, "This is" - okay, I'll just sign like this, sign, sign, sign. HIS HONOUR: The witness is simply showing lifting the corner of the pages without the whole page being open."
4. Even accepting that Navid was the main driver of the transaction with Omar, I do not accept she was completely ignorant of the matters the subject of these proceedings. She struck me as an intelligent and strong individual. This is particularly apparent when taking into consideration Sepideh's own affidavit evidence where she describes her occupation interchangeably as "company director" and "director", her oral evidence that her main occupation includes being a "property investor" (T.96:8-9) and both her current and historical positions as a director and shareholder of several companies. Against this background, Sepideh's repeated assertions that she didn't know or understand what was going on regarding the purchase of the Property and the effect of associated legal documents cannot sensibly be maintained. Accordingly, I accept Mr Cleary's submission that the Court ought to treat the reliability of Sepideh's evidence with caution in the absence of corroboration by contemporaneous documents.
5. Second, I find that Sepideh was both deliberately evasive and equivocal in the way she presented her evidence and was motivated by a strong dislike of Omar. At no time did she give the impression that she was trying to recall the truth of what occurred as opposed to strenuously maintaining her version of events in her own and Navid's interest. She made no attempt to conceal her animosity towards or contempt for Omar and I am satisfied that this coloured her evidence, as seen in the example at paragraph [125(2)] above as well as the following exchange in cross-examination (T118.21-41): "Q. You know, don't you, that Navid had invited Omar to operate his business-- A. I don't know if he was invited or - I don't know if he was invited, I don't know. Q. You know that he was there. A. Yes, he was there, and I stopped going there. Q. Why did you stop going there? A. Because I didn't want to have anything to do with [Omar]. Q. At that time. A. From day 1. Q. Why was that? A. To me, he didn't look right. Someone in carwash with tracksuit pants, Lamborghini, nothing match up. I'm not trying to say I'm an angel and he's an evil, but in, to my standard, he wasn't my type, I wouldn't hang around with - no offence, no offence."
6. Turning finally to Navid, I accept Mr Cleary's submission that he (Navid) was a deeply unimpressive and unsatisfactory witness. The Court's reasons for this conclusion can also be summarised in two points.
7. First, having observed Navid in the witness box and his demeanour during cross-examination, I was left with the impression that Navid displayed a complete unwillingness to engage with questions he perceived as adverse to his or Sepideh's interests. Navid was equivocal in his evidence and frequently argumentative. So much is clear from the examples set out in paragraph [132] above. His demeanour and answers suggested that he treated the entire court process as something of a joke or not worthy of serious attention.
8. The following exchanges in cross-examination are also illustrative of the manner in which Navid typically responded to the questions put to him (T141.42-44, 171.21-37): "Q. At that time you [and Omar] met because of a love of cars; is that right? A. Not really, that was love of something else but you can call it something, whatever." … "Q. And you'll see that you sent a message to Omar on 21 March 2017-- A. Yeah. Q. --at 11.13. A. Yep. Q. "I've made the fifth payment to the office." A. Yep. Q. That's a reference isn't it to the payment on the ANZ Bank loan? A. Probably, yeah. Q. Probably, or it is? A. Mate, I don't know, you tell you. Q. It's your message? A. You know better."
9. Navid's responses to questions were often non-responsive, wholly irrelevant and unhelpful in determining the disputed facts in issue before the Court. I was required to intervene and tell Navid on at least 18 separate occasions to answer the question put to him by Mr Cleary, often with limited success.
10. Second, there were occasions where I had no doubt that Navid was willing to say anything to discredit Omar, or at the very least ensure that Omar's version of events was obfuscated. Again, this typically involved wholly irrelevant assertions or denials from Navid as demonstrated by the following exchanges in cross-examination (T146.32-147.6, T151.13-21): "Q. [Omar] didn't ask [if he could come and work at your office at the Property]? A. No, it's a very good shot, yeah, but, look, end of the day, if you, if you, if you really want to know, there was a company which my wife used to be a director and shareholder called Iconic Constructions Australia Pty Ltd. He was looking to start doing some business because he..(not transcribable)..business the way he conducting himself. I told him, "You have a good friend," like in union, like Bruce Crowe, his girlfriend, the one who's in gaol for double murder." … "Q. I'm just asking you if you recall having a conversation with Omar where you and he were discussing [the Property] when it was for sale; do you recall having conversations with Omar at that time? … A. Okay, when we sold our factory unit we have, we, me and Omar, we established those companies and I put couple of hundred grand there, from memory, to start doing labour hire, security and things like that and if you, if you go through the paperwork you can see it's true. We have, I have, I have done that, right. But, as I said, Omar didn't trust no one. He's just too paranoid. He, he born paranoid. I'm sorry, Omar is, is respected guy but that's how he, he just is frisky, always jumping up and down about nothing…" … "Q. After settlement, that is after 18 October 2016, you agree with me don't you, that both you and Omar moved your respective businesses into the office, the new office at [the Property]? A. Barton was almost gone at that time. We moved in, Iconic [Constructions] Australia NSW in the bracket. The USB is here, we're going to tender it, he says there's a lease in place, he says the alarm is back to base to police, you know that, it's all there, we have live photo of him that I was giving him money, what are we talking about there? Let's get real please. Your client knows I have given him money--"
11. I am satisfied that Navid was making no serious effort to tell the truth and do not accept him a witness of truth. Accordingly, where there is a conflict in the evidence, I have not accepted Navid's evidence unless it accords with the probabilities, is against interest or is supported by contemporaneous documents.

Matters in issue

1. Following the findings as to credit set out above, it is convenient next to turn to the other factual and legal matters identified by Mr Cleary as being in issue.

Did Omar and Navid agree to purchase the Property together through a trust?

1. While Mr Cleary submitted this was a matter in issue, why it should be so is not immediately obvious. Navid is not a party to the proceedings and, it follows, no relief is sought against him. Nor is it pleaded in the Amended Points of Claim that Navid was acting on behalf of Sepideh (who is a party) such that an agreement between Omar and Navid would be binding on Sepideh. However, insofar as it forms part of the background to what occurred, and for what it may be worth, the Court accepts that Omar and Navid had agreed (in the sense of a commercial understanding rather than a legally enforceable arrangement) that they would purchase the Property through a trust.
2. Various correspondence I have set out earlier in these reasons makes it clear they were embarked upon the purchase together. Ultimately Navid accepted in cross-examination both the "50/50 conversation" and that a trust structure would be used. As to the first, Navid's evidence was: (T153.18-43) Q…. I'm asking you whether you recall having a conversation where Omar said to you-- A. Yes. Q. --"We will go 50/50 in the purchase of the property." Do you remember that? A. Yes. Q. Do you accept that he said that to you? A. We had, we had different conversation. And do you want to know the exact conversation, or just say yes or no? Q. I just want you to say yes or not. Do you accept that-- A. Okay, I accept that there was a number of conversations between me and him. Q. Do you accept that in one of those conversations he said to you "We'll go 50/50 in the purchase of the property/" A. I have said that at the time probably yes. Q. And he said "I will put in 400,000 and you will put in 400,000 and we can borrow the remainder from the bank." Do you agree that he said that to you? A. He said he put 400 grand and I put 400 grand. Q. And did he say to you that "We'll borrow the rest from the bank." A. Yeah.
3. As to the second, despite his attempts at obfuscation, his acceptance of what was being put to him was clear enough (T157.18-158.43): "Q. --Omar said to you like, "We need to work out how to structure this purchase." A. Yeah. Q. "I would rather my share of the property be held by a family trust or a newly created trust." A. Around those lines, yes, you are - with - somehow you are correct with what you say about what we've been talking about. Q. Then you said to him, "We could put the property in my wife's name so that we were both protected," something like that? A. What sort of, what sort of protection is there? Q. From a trust. A. What trust? Q. The trust that you were discussing with Omar. A. Sir, that never got chased, never got finalised. There was a lot of talk about it, a lot of things. Omar never finalised anything. He kept his position from day 1 to put the lease in. He, he put the lease in to, you know, basically pay for the thing. But next thing he say, "Oh, the lease shouldn't be under Iconic Group, should be under Iconic Constructions Australia." I say, "Of course." Next thing he brought his other mate in, and another drug dealer came in, and another-- Q. I'm not asking-- A. ..(Not transcribable)..I've done. You should, you should, you should - you don't know who your client is, sir. HIS HONOUR Q. Mr Miraki, please just answer the questions. A. Sorry. Q. Just wait for the next question. A. Yes. CLEARY Q. I'm not asking whether you thought or whether you understood it happened. I'm just asking about whether you talked about it with him. A. Mate, we have spoken about many things, and if you ask me specific, exactly, I will give you the answer, no problem, if I can. If I can recall it, no problem, sir. Q. All right, okay. A. Yes. Q. He said to you, "I'm happy with that." A. Yeah. Q. "I'm happy to form a trust for the purpose of holding the property"-- A. ..(Not transcribable).. Q. --"and for now we can name your wife as the trustee of the trust." A. Sir, he's happy with what? You, you started to say that he was happy with something. Q. "I am happy if we form a trust"-- A. Yeah. Q. --"for the purpose of holding the property." A. Yeah. Q. Did he say that? A. Yeah. Yeah. Q. "And for now, and name your wife as the trustee of the trust." A. That was the conversation and the idea back then. Q. Back then, that's right, and once it was up and running-- A. Yeah. Q. --he said to you, "We need to replace your wife with a corporate trustee." A. Yeah, when he pay the money, but he never paid me. My wife was not the washing machine or money launderer for him..(not transcribable).. - "

Was the Property purchased by Sepideh as trustee for the GRUT?

1. As I have set out in paragraphs [19] to [21] above, the Sales Contract gives no indication that Sepideh was purchasing the Property other than for herself legally and beneficially. The onus to prove anything different lay on the plaintiffs. For the reasons which follow, the Court has concluded that they have not discharged that onus.
2. Before turning to consider this specific issue, it is convenient to record that the Court accepts Mr Allen's submission that the GRUT was never constituted because, on the evidence, there is no trust property. There is no evidence that either El-Cheikh Group or Iconic Constructions as Subscribers paid their respective Subscription Amount to the trustee (Gladstone Road Enterprises), those amounts being the initial trust property (see the GRUT Deed set out in paragraph [54] above, especially Recital A, the definition of "Trust Fund" and the declaration of trust in clause 3).
3. Given the simplicity with which this could have been proved by, relevantly, El-Cheikh, the Court finds that neither of the Subscribers paid the Subscription Amount. The consequence is an application of basic trust law. As one author put it succinctly: "A trust does not exist at the time of the execution of the trust deed. It only comes into existence at the moment when the first unitholder subscribes his units and pays his subscription money." (Kam Fan Sin, The Legal Nature of the Unit Trust, Clarendon Press, Oxford, 1997, p 51)
4. Furthermore, Mr Allen submitted, and the Court accepts, that there could be no resolution of the unitholders of a trust that has not been fully constituted. He relied on this proposition in J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia, LexisNexis Butterworths, Australia, 2006: "[6.03] An incompletely constituted trust can only amount to an agreement to constitute a trust. In order to convert an incompletely constituted trust into a completely constituted trust against an unwilling promisor one would need the aid of the equitable remedy of specific performance of such an agreement."
5. In this case there was no claim for specific performance.
6. It follows from the foregoing that the Court finds that neither Subscriber became a Unitholder in the GRUT pursuant to clause 4.3 of the GRUT Deed (see paragraph [54] above). Although the GRUT UHA recites that the Subscribers were Unitholders (see paragraph [88] above), because it was executed as an agreement no question of estoppel by deed arises, nor was any other form of estoppel pleaded arising from the terms of the GRUT UHA or any other conduct of the parties.
7. Having expressed those conclusions, the issue posed by Mr Cleary nevertheless can only be answered by consideration of the GRUT Deed. Given the way the case was pleaded and argued, the issue is not answered by the fact that Sepideh conceded that she signed the various documents at the 12 October Meeting "because [the Property] was planned to go under my name and then later transferred to corporate trust" (T126:40-41) or that she accepted that in signing "all those documents" she understood that she and Omar were buying the Property together (T128:34-36). Nor are the plaintiffs assisted even if the parties all understood that what was being proposed was that Sepideh would purchase the Property as a trustee (see Mr Alkhair's email set out in paragraph [65] above).
8. The GRUT Deed provided that the trustee was Gladstone Road Enterprises and, in clause 20.2, that "Any Trustee may be removed and any Trustee may be appointed by a resolution passed by the holders of not less than 75% of the Units". Mr Cleary submitted that Sepideh had become trustee of the GRUT by reason of the GRUT UHA in one of two ways: 1. The GRUT UHA appointed Sepideh as the trustee of the GRUT; or 2. The GRUT UHA was a "resolution or form of consent" appointing Sepideh as trustee for the purposes of clause 16.14 of the GRUT Deed, which provided that "A resolution or form of consent in writing signed by all of the Unitholders will be as valid and effectual as if it had been passed at a duly called or constituted general meeting of Unitholders".
9. The GRUT UHA appears to be an ill-fitting adaption of a precedent intended to do something else, probably a shareholders' agreement. So much is apparent, for example, from the heading in clause 4 "management of the company" when there is no definition of "company", and that while Sepideh is defined as "trustee" the definitions in clause 2 clearly contemplate a corporate trustee (e.g. "2(c) Board means the board of directors of the trustee" and "2(g) Director means a director of the trustee").
10. The Court rejects Mr Cleary's submissions for these reasons: 1. The argument fails at the outset because whatever the GRUT UHA may be and do, El-Cheikh Group and Iconic Constructions were not Unitholders for the reasons given in paragraphs [153] to [157] above. It therefore cannot be a resolution appointing a trustee pursuant to either clause 20.2 or clause 16.4 of the GRUT Deed. The balance of the Court's reasons are alternatives to this reason in case it be wrong. 2. The GRUT UHA contains no express language of appointment of a trustee. Merely defining a party as "Trustee" by putting that word after her name in the section identifying the parties (not a natural place for operative provisions) is not an appointment of a trustee. This outcome is not changed by clause 2(p) in the definition clause "Trustee means Sepideh Miraki or any additional substitute or replacement trustee". In the absence of very clear words, a definition provision is also not a natural place for an operative provision. The Court would be especially slow to interpret these two references as effecting an appointment in a document drawn by solicitors. 3. The recitals (set out in paragraph [88] above), which can provide an important clue to interpretation, say nothing about the purpose of the agreement being to appoint a trustee (or remove an existing trustee). 4. The closest the GRUT UHA comes to language of appointment, and then it could only be by implication, is clause 4(b) which provides that "The trust will be managed by the trustee" (sic. without capitalisation for what must be intended to be defined terms). Taken literally the reference to "manage" does not add anything to what are the trustee's functions under the GRUT Deed. Alternatively, many unit trusts have an appointed manager. However, if it was intended to appoint Sepideh to that role (rather than trustee), it would be ineffective because under clause 17.1 of the GRUT Deed the power to appoint a manager is vested in the trustee for the time being and not the Unitholders. 5. It follows from what I have said in the preceding sub-paragraph that unless clause 4(b) can be construed as giving effect to the parties' intention to appoint Sepideh as trustee by implication, the clause is surplusage with no legal effect. That is the conclusion the Court has reached. In doing so I have not overlooked the principle of construction that words should not be construed as meaningless or ineffectual if a meaning can reasonably be given to them. However, there are three reasons why I do not think that principle can be applied in this case: 1. A trustee does much more than "manage" the trust (and clearly so given the list of powers and duties set out in the GRUT Deed). The concept of "managing" is not sufficiently wide to sustain an implication of appointment to the office of trustee with all that entails. 2. The Court should avoid a construction that brings about a doubt in the administration of a trust. Under clause 9.2 of the GRUT Deed "If the Trustee at any time consists of more than one person, then those persons will act jointly". It is therefore necessary to avoid doubt about how many persons constitute the trustee. In the absence of express removal, express appointment of a new trustee without the word "additional" may leave doubt about this. The doubt must be all the greater if, as in this case, the Court were to find appointment of a trustee being effected by implication. Does the Court imply a removal of the existing trustee or imply that the appointment is as an "additional" trustee? I am unable to discern a principled basis on which that choice can be made. 3. That doubt becomes real in the present case because if it were the case that Sepideh was appointed the trustee of the GRUT and Gladstone Rd Enterprises had not been removed, then by reason of clause 9.2 of the GRUT Deed Sepideh could only have acquired the Property jointly with Gladstone Rd Enterprises. That certainly did not occur in this case. 1. Turning to Mr Cleary's alternative argument, I do not accept that the GRUT UHA (or clause 4(b) in particular) answers the description of a "resolution or form of consent" as those words might reasonably be construed. This is because they appear in clause 16 of the GRUT Deed, which is a clause devoted to the conduct of meetings of Unitholders. Those words mean a document that records a resolution or form of consent that would otherwise have been passed at or presented to a general meeting of Unitholders. The words "resolve", "resolution" or "consent" do not anywhere appear in the GRUT UHA in relation to the trustee ("resolution" does appear in relation to the conduct of the Unitholders inter se).

Did Omar advance $450,000 as a loan under the Loan Agreement executed on 12 October 2016?

1. This issue invites consideration of two issues: did Omar advance $450,000 and, if he did, did he do so pursuant to the Loan Agreement? For the reasons which follow, the Court is satisfied that he did advance $450,000 but is not satisfied that he did so pursuant to the Loan Agreement.
2. Turning first to the issue of the advance, Mr Cleary submitted that Navid had accepted in cross-examination (T163:24) that Omar had given Navid $270,000 in cash at the CBA bank teller window. However, Navid continued to assert that he had deposited $20,000 of his own cash at the CBA and that he had deposited $140,000 of his own money at the ANZ. Mr Cleary submitted that, as a matter of credit, the Court should prefer Omar's evidence that he had given Navid $450,000 in cash, including with the consequence that Navid had failed to deposit $20,000 of that money. Mr Allen submitted that even if the Court accepted Omar's version of events, the money had been advanced not pursuant to the Loan Agreement but rather in accordance with an oral agreement between Omar and Navid.
3. By reason of the following matters taken together, the Court accepts Omar's version of events as to what occurred at the CBA and ANZ banks on 17 October 2016: 1. As a matter of credit, the Court prefers Omar's evidence over that of Navid for the reasons set out in paragraphs [137] to [147] above. 2. Navid's admission in a text message from Navid to Omar on 21 March 2017 as the latter had been pressing for resolution of the issues between them: "+ I'm paying you $50K on top of your $450K that you put in settlement for me". 3. The evidence referred to in paragraphs [63] to [65] above and the fact of the Loan Agreement that there was an expectation in all parties that Omar would be making up a shortfall of $400,000, being the amount that the Mirakis would not be able to fund toward the Purchase Price. 4. The undisputed evidence that large amounts of cash passed between Omar and Navid. 5. Omar's diary note for 17 October 2016 which accords with his practice of noting cash transactions in his diary (see paragraph [15] above): "NV - 450 - SETTLEMENT". The is no doubt that "NV" means Navid. 6. Omar's undisputed attendance at the two banks with Navid. While they were obviously engaged in a joint project to purchase the Property (not least evidenced by Omar photographing Navid with the two bank cheques), given a choice between Omar apparently just accompanying Navid to the two banks for the sake of it and Omar being there because he was providing funds, I am satisfied on the balance of probabilities that the latter is the explanation. This is also consistent with the undisputed evidence that it was common practice for Omar to loan money to Navid, and that the quantum of such cash loans was often substantial. Further, the Court is satisfied and certainly on the balance of probabilities, that Omar advanced a number of cash loans to Navid during the course of 2016 (however, as set out in paragraph [15] above, the Court was not required to come to a reconciliation of those advances).
4. Finally in answer to the first question, on the basis of the bank records referred to in paragraphs [26] to [31] above, the Court finds that $430,000 of the $450,000 advanced by Omar was applied to the purchase of the Property through the purchase of the bank cheques that were handed over at settlement.
5. The second question is whether Omar advanced the funds pursuant to the Loan Agreement. Whether something is done pursuant to an agreement requires the Court to consider the objective facts. In the ordinary case it is usually not an issue because a party enters into an agreement to pay $X and then in fact pays $X. The obvious inference from those two primary, objective facts in the ordinary case is that the payment of $X was made pursuant to the agreement.
6. The way in which the parties to these proceedings conducted their financial relationship means that this is not an ordinary case and the answer to this second question is not obvious.
7. Mr Cleary's submissions on this point ultimately depended on the sequence of events: the execution of the Loan Agreement on 12 October 2016; that the Loan Agreement was entered into so the purchase of the Property could go ahead; Omar's provision of the $450,000 in cash on 17 October 2016 so that the settlement could proceed; the fact that those funds (or at least $430,000 of them) were used to purchase the Property. Mr Cleary's argument required the Court to be satisfied by reason of these matters that Omar had advanced the funds pursuant to the Loan Agreement.
8. At the heart of Mr Allen's submissions on this question was the undoubtedly correct general proposition that parties may make one contract but perform another. He did not dispute that Omar and Sepideh had entered into the Loan Agreement. That agreement recorded that $900,000 was to be advanced to Sepideh and, he submitted, pursuant to clause 3.8 (see paragraph [75] above) in her capacity as a trustee (which the Court has found she was not). He contended that no loan in that amount was advanced to Sepideh at all, let alone in her capacity as trustee. Rather, what instead happened was that Omar lent money to Navid pursuant to a separate oral agreement he had made with Navid.
9. Mr Allen referred to the five matters in support of these submissions.
10. First, it was characteristic of the way Omar and Navid did business together, which they both acknowledged in their evidence. Their dealings involved on any view the passing of large amounts of cash between them.
11. Second, Omar had conceded in cross-examination that he had lent the $450,000 to Navid pursuant to the terms of an oral agreement between the two of them (T77:39-78:10 and T89:22-50): "Q: And that you were demanding the $450,000 from Mr Miraki because he had agreed to repay you the $450,000 within one month, that's the case, isn't it? A. Yes. Q. And you agree that advance that you were asking Mr Miraki to repay in March 2017, was made in October 2016? A. Sorry, can you repeat the question please? Q. You'd agree that when you were complaining to Mr Miraki, he had not repaid you $450,000? A. Yes. Q. You were referring to an advance of money that was made in October 2016, weren't you? A. October 2016? Yes, it was the - Q. Thank you…. … Q. It's the case isn't it that in October 2016 if you in fact did advance any money you advanced that money to Mr Miraki, didn't you? A. The, the money was advanced for the sole purpose of purchasing this factory unit. [T]hat was it. Q. You gave the money to Mr Miraki, didn't you? A. I, I gave the money to Mr Miraki-- Q. Thank you. A. --which was deposited into the bank accounts. Q. You were in agreement with Mr Miraki at the time, did you not, that Mrs Miraki would pay that money back in one month? A. The agreement was with everybody at that table, which would have been Sepideh and Navid. Q. When you say "agreement" you're referring to an oral agreement involvement (sic) Mr Miraki whereby he said to you "I will repay the money within one month", is that the case? A. From the sale of their Worrigee property that they were settling on, which was, which was Sepideh's. Q. Is it the case that in October 2016 you had a conversation with Mr Miraki where Mr Miraki said, ["]If you lend me some money I will repay you that money within one month from the proceeds of the sale of a property?["] A. The conversation was with Ms Miraki or Mr Miraki? Q. Mr Miraki? A. Yes, correct."
12. Mr Allen referred particularly to Omar's clarification in the transcript extracted in the preceding paragraph of "Ms Miraki or Mr Miraki", and his subsequent reference to Navid, as further evidence that the funds loan agreement was in fact with Navid.
13. Third, Omar's diary note was "NV - 450 - SETTLEMENT", where there was no dispute between the parties that "NV" was an abbreviation for "Navid". This was contemporaneous evidence that the funds had been loaned to Navid.
14. Fourth, Mr Allen also referred to the full text message exchange between Omar and Navid of 21 March 2017: "Omar: "No it's not wrong bro, I have to fukn practically beg you for my own money back. Our agreement was 1 month its now more than 5 months and your latest excuse is Iranian new year. Fukn seriously bro !!!" Navid: "… + I'm paying you $50K on top of your $450K that you put into settlement for me …" Omar: "… I have to beg you for my fukn money don't I Navid? …"
15. Fifth, he submitted that the plaintiffs' case in relation to the $450,000 was wholly inconsistent with the terms of the pleaded Loan Agreement: 1. The Loan Agreement specified an advance of $900,000. The disparity between that amount and the $450,000 demonstrated that the latter was unrelated to the Loan Agreement. (I interpolate here that Mr Cleary did not address the disparity. It is understandable he did not do so because the balance of the $900,000 could only be explained by entering into a morass of alleged set-offs of money said to be owing by Navid to Omar in respect of past cash advances for other purposes.) 2. The claim that the Loan Agreement had to be rectified (ultimately not pressed) was an admission that the actual terms of the Loan Agreement did not govern the relationship. 3. The existence of an oral agreement between Omar and Navid explained why (as Omar conceded) Omar had never asked for, nor complained about, Sepideh's failure to pay interest at the rate of $4,000 per month as provided for in the Loan Agreement.
16. The onus to prove that the $450,000 had been advanced pursuant to the Loan Agreement rested on the plaintiffs. They have failed to discharge that onus. I have carefully considered the matters advanced by both sides of the record on this question. However, having regard to the matters advanced by Mr Allen - in particular Omar's evidence referred to in paragraph [172] above - I am unable to reach a state of actual satisfaction that on the balance of probabilities Omar advanced the $450,000 in cash to Sepideh pursuant to the Loan Agreement.
17. Because Navid was not a party to the proceedings, I do not consider it either appropriate or necessary to make a finding that there was an agreement between Omar and Navid of the kind advanced by Mr Allen. It is sufficient to record that I regard the possibility of such an agreement to be sufficiently substantial to provide a credible, alternative explanation for the $450,000 advance so that the plaintiffs have not discharged their onus on this question.

Conclusions

1. The remaining matters in issue identified by Mr Cleary (see paragraph [13] above) only arise if the Court was satisfied that the $450,000 had been advanced pursuant to the Loan Agreements. As the Court has not been satisfied of that matter, those issues are no longer relevant.
2. There are two matters which I should record for completeness.
3. First, although the Court is satisfied that $430,000 of Omar's $450,000 was applied to the purchase of the Property, no other case was advanced by the plaintiffs that would entitle Omar to relief in relation to that. In particular, I had this exchange with Mr Cleary (T180:35-44): "HIS HONOUR: While we're looking at the 450,000 can I just ask you this, what happens if I accept the money was advanced but the trust was never perfected? What do you say then, is it the failure of a joint venture that gives your client and (sic) equitable charge over the property or what? CLEARY: If your Honour finds that the 450 was advanced then you would find it was obviously advanced under the loan agreement that was signed on 12 October 2016. Under that loan agreement there are provisions that provide for mortgages and equitable charges in respect of any property that are said that are owned."
4. Second, in the course of argument I raised with Mr Cleary whether it would be open to the Court to make any relief it might otherwise grant to El-Cheikh Group in relation to the GRUT conditional on that company paying the subscription amount under the GRUT Deed. Mr Allen opposed that course, including because he submitted that would be tantamount to giving specific performance, which had neither been pleaded nor argued. I accept that submission. Nor had Gladstone Rd Enterprises been joined to the proceedings. Furthermore, while it was not the subject of argument, I have real difficulty in seeing how even if El-Cheikh Group paid the subscription amount now, it could make any difference to the outcome of these proceedings as they were ultimately argued. Whether it wishes to make that payment now for other reasons is a matter for it.
5. I will give the parties an opportunity to agree upon orders to give effect to these reasons. Subject to any further submissions or applications, my preliminary view is that the proceedings should be dismissed with costs and an order made for the withdrawal of the Caveat.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2020