Elzamtar v Bangladesh Islamic Centre of NSW Inc

Summary and analysis of evidence

1. Mr Elzamtar was born in Lebanon in 1955 or 1956. He migrated to Australia in 1977. He has lived in Proctor Parade since 1983. According to his evidence, Mr Elzamtar has been an active member of the Sefton mosque, and has acted as its caretaker since 1995.
2. Mr Elzamtar was the only witness called to give evidence at the hearing. He is unable to speak or write fluently in English. He gave evidence through an interpreter and was cross-examined by counsel for BIC.
3. Mr Elzamtar annexed to his affidavits various documents issued on the letterhead of BIC. Most of the documents take the form of official communications to Mr Elzamtar confirming his status as the caretaker of the mosque, or, in some cases, as a member of some type of advisory panel or committee of BIC. Some of them are more directly relevant to his claims. I will describe those documents as I come to them below.

Building expenses

1. The mosque was taken over by BIC in 2003 after having previously been controlled by another organisation. According to Mr Elzamtar, at around the same time he was approached by the then president of BIC, Mr Farkhruddin Chowdhury, and Mr Abdul Mumin Bhuiyan, who was a construction manager and engineer. They wanted to undertake renovations at the mosque and showed him some plans.
2. In his affidavit, Mr Elzamtar stated that the following discussion took place: Mr Abdul Mumim Bhuiyan said 'We have been approved to extend the Mosque and to renovate the Mosque. We would like you to take responsibility and charge of the renovations': In response, I said "Who is paying for all this?". Mr Abdul Mumin Bhuiyan said "Apu Ahmad you're my brother. This is the mosque. Whatever you do, collect the receipts and we will pay you back. Don't worry, all payments will be recovered."
3. Mr Elzamtar stated that he was also told by Mr Bhuiyan: You hire the tradies you need. You have authority to do that. Tell us what you need for the renovations. If we don't know anyone who can do the job, you find the person. Whatever you pay for, write it down, keep invoices. We will put it to the board and we will reimburse you". Mr Elzamtar also said in his oral evidence that, at least initially, he had regular meetings with Mr Chowdhury or Mr Bhuiyan to discuss the progress of the work.
4. According to Mr Elzamtar's evidence, his practice was to pay the tradesmen in cash, so as to obtain a discount. He would pay them on presentation of an invoice, or some other paperwork. This would happen either at the mosque itself or at his house. At times he would arrange for someone else to be present to witness the payment.
5. At the hearing, Mr Elzamtar produced photographs of building work at the mosque which had been taken in January 2004 and November 2005. He also produced a bundle of supporting documents for the payments which are the subject of his claim. The payments which were said to be so evidenced totalled about $232,000. Although the supporting documents were described in some of the evidence as "invoices", in fact, as we will see, a large proportion of them were not actually invoices but delivery dockets.
6. The earliest document in the bundle dates from February 2003 and the latest from September 2007. There is at least one document in every month for the periods from June 2003 to February 2004; from September 2005 to March 2006; and from August 2006 to February 2007 (apart from December 2006). In between there are some lengthy periods where there are no documents. These include from March to May 2003 and from March 2004 to February 2005 (apart from one document for $660 in October 2004).
7. In his affidavit Mr Elzamtar stated that he funded the payments to the tradesmen by selling a property in Lebanon, which fetched $330,000. He annexed to his affidavit copies of bank records showing the receipt of the money, and subsequent withdrawals. But the bank documents showed that the monies were received in November 2008, which was well after the expenditure which is the subject of the claims by Mr Elzamtar in these proceedings.
8. Counsel for Mr Elzamtar, obviously perceiving the problem, did not read the relevant paragraphs of the affidavit, but they were put in to evidence in the course of the cross-examination. Mr Elzamtar was unable to explain why he had made this mistake. At a later part in his cross-examination, he said that he had owned another property in Proctor Street which he had sold in 2003. But no documents were produced to confirm this.
9. Mr Elzamtar stated in his affidavit that when the initial arrangement was made with Mr Chowdhury and Mr Bhuiyan in 2003, he was told that he would be repaid with takings from the donations collected during Friday prayers at the mosque. Mr Elzamtar did receive payments from this source for a period of time, but (for reasons not explored in the evidence) not in 2003.
10. According to Mr Elzamtar's evidence in cross-examination, the payments lasted for four months or so and began at some point in 2005. Mr Elzamtar later acknowledged receipt, for the purposes of his claim in these proceedings, of about $44,000; the payments from donations were presumably included within that figure.
11. One of the documents on the letterhead of BIC which was annexed to Mr Elzamtar's affidavit was a letter to him dated 8 August 2007. It was signed by Mr Bhuiyan who was then the president. The letter stated: Further to my discussion with you on last Saturday (04-08-07) at the Sefton Mosque, I am informing and advising you that before carrying out any work, you will need to discuss and consult with Sefton Mosque Executive Council (EC) in order to get approval for any proposed work from the EC. As you are aware, the purpose of this consultation is to assist EC in running Sefton mosque well and in a useful and pleasant manner. · In addition, the following works as proposed would be undertaken as approved by the EC; 1) Complete roof for two entry areas of mosque facing Helen Street. 2) Complete floor carpet for the mosque before Ramadan. 3) Complete setting up of microphone system for the mosque. 4) Outside wall painting of the entire mosque. Once again EC is wishing to work closely in the future and please feel free to contact me should you require any assistance in the meantime. Mr Elzamtar said nothing about this letter in his affidavit.
12. In his affidavit, Mr Elzamtar stated that "on or about" 4 August 2008, he spoke to Mr Bhuiyan at the mosque. This was about eleven months after the last of the expenditure which is the subject of the claim in these proceedings. Mr Elzamtar's account of the conversations was: When I requested repayment, [Mr Bhuiyan] stated "Whatever you do, we will pay you. I am in charge of the committee. And I am the project manager and the president. Anything that needs to be done, goes through me. Continue with your work. Whatever is costed will be taken care of' or words to that effect
13. Also attached to Mr Elzamtar's affidavit was an invoice for the supply of a new microphone and speaker system for the mosque. The invoice was dated 24 August 2008, about three weeks after the conversation with Mr Bhuiyan. As described below, it appears to have been a duplicate of an invoice in the supporting document bundle for the same system which is dated August 2007, the year before.
14. In his affidavit Mr Elzamtar stated that he had reviewed the bundle of supporting documents to "refresh my memory to depose to the following paragraphs". But what followed was simply a series of recitations in the form: On [the date shown on the document] I paid [the issuer shown on the document] [the amount shown on the document] for [the goods or services described in the document].
15. In cross-examination, Mr Elzamtar was questioned about a handful of the documents from the bundle. I will refer to that cross-examination in a moment. Apart from the questions on those specific documents, he was not asked anything about the works, the tradesmen who did them, or his dealings with Mr Chowdhury or Mr Bhuiyan.
16. Mr Elzamtar was taken to five invoices in cross-examination. Of those, only four were actually from the supporting documents bundle. The other one was a separate annexure to Mr Elzamtar's affidavit.
17. Counsel first cross-examined Mr Elzamtar on the fact that there are two invoices in evidence from someone called Jalal. Both are for an audio system with an almost identical itemised list of components, and both total $14,000. One is dated August 2007 and the other (not in the supporting documents bundle) August 2008.
18. Mr Elzamtar initially responded by suggesting that there had been two sets of audio equipment purchased because BIC had chosen to replace the first system. That system had been bought in 2005 and the second was bought in 2008. But when counsel drew to Mr Elzamtar's attention that the two invoices in evidence were dated 2007 and 2008, Mr Elzamtar said he could not recall.
19. I found Mr Elzamtar's evidence on this confusing at best. There was no other evidence to suggest that a second system was ever purchased. But only the 2007 invoice was in Mr Elzamtar's pleaded claim, so the cross-examination ultimately only went to his general reliability and credit.
20. Counsel for BIC next questioned Mr Elzamtar on an invoice issued by "Efficient Plumbing Solutions" which referred to the provision of plumbing services at the mosque. The invoice was dated 31 February [sic] 2007. But the ABN on the invoice, although belonging to the business in question, was only registered on 18 September 2008. This was 19 months after the purported date of the invoice.
21. The next invoice on which Mr Elzamtar was cross-examined was similar. The invoice was issued by "Concrete Resurfacing and Maintenance". It referred to concreting work at the mosque. It was dated 23 August 2003, but the ABN was not registered until 15 August 2006, three years later.
22. In cross-examination counsel put to Mr Elzamtar that the dates in these invoices could not be correct. Mr Elzamtar did not have any explanation, but insisted the work had been done. He maintained that the issuer had prepared the invoices and said that he had not checked the ABN as it was not his responsibility to do so. Concerning the concreting invoice, Mr Elzamtar said that the work was done in 2003 and maintained that he received the document then, despite the evidence about the ABN not being registered at that time.
23. Counsel cross-examined on a third "invoice" (the reason for the inverted commas will become apparent in a moment). It was issued by "Ron Bohm Roofing" and referred to the supply and installation of roofing materials (timber, tiles and beams) at the mosque. The ABN was handwritten as 51 001 484 784. Counsel put to Mr Elzamtar that that ABN did not exist. Mr Elzamtar said that so far as he was concerned it was completely genuine.
24. Search evidence showed that the ABN on the invoice was incorrect, but Ron Bohm Roofing's actual ABN was 51 000 484 784, which is only one digit different. The clear inference is that a mistake was made in preparing the "invoice", and there is no reason to think that Mr Elzamtar would have known about such a mistake.
25. There are some curiosities about the "invoice". One is that it is not completely clear how much it is for. In the schedule prepared by counsel for BIC, the figure for the document was shown as $1,800 not $18,000. But I think this is a mistake.
26. The price appears four times in the document. In three cases it is stated as "$18000". The other figure consists of the numbers "18" followed by four, not three, zeros. From its positioning on the form, the number looks at first sight to represent $1800 with the other two zeros representing cents. However, the last zero has what may be an oblique line through it.
27. The expense in question also appears in the August 2009 expenditure list (see [53] below), where it is recorded as $18,000. I think on balance that this is the correct figure.
28. There are other curiosities about the document. It is written not on an invoice form, but on a quotation form. But it has been stamped "paid", refers to a "payment from" Mr Elzamtar for BIC, and is signed both by Mr Elzamtar and someone else, presumably a Mr Yaghi whose name appears as the "boss" of Ron Bohm Roofing.
29. None of these curiosities were the subject of cross-examination. Although the document is unprofessional in appearance, I accept on balance that it is a genuine receipt for $18,000.

Loans

1. Mr Elzamtar produced five documents which he said evidenced loans made by him to BIC. Particulars of the alleged loans are: 1. August 2003: $14,000; 2. December 2005: $3,000; 3. 25 July 2008: $8,000; 4. 27 July 2008: $8,000; and 5. May 2009: $10,000. I will refer to these as loans 1 to 5.
2. In his affidavit, Mr Elzamtar gave an account of the circumstances surrounding each alleged loan. In each case he described being approached by office bearers of BIC and agreeing to provide money in response to their request. The relevant loan document was signed when Mr Elzamtar provided the money, which in each case happened within a day or so. I will refer to some of this evidence in more detail below when considering whether Mr Elzamtar has proved his factual case on the loans.

August 2009 expenditure list

1. A critical document in these proceedings is a list of expenditure on the mosque which was prepared and signed in August 2009, and was annexed to Mr Elzamtar's affidavit. I will refer to it as the "August 2009 expenditure list".
2. The document begins by stating that it is from Mr Elzamtar to BIC. It then states: All works completed from 2003-2009 is authorised by Abdul Mumim Bhuiyan (project manager \ president) and Fakhar Eldin Shudry (president).
3. In his oral evidence, Mr Elzamtar identified "Fakhar Eldin Shudry" as being present in court. Counsel for Mr Elzamtar stated that "Fakhar Eldin Shudry" was another version of Mr Farkhruddin Chowdhury's name. Initially counsel for BIC said he was not instructed to make this concession, but in the end I did not understand it to be in dispute.
4. The next part of the document is a two column table which extends onto the second page. The first column sets out items of work and the second column sets out corresponding cost figures. There are 22 rows in the table. The total is $216,090. One row records the costs of the item "$donated" and another records "donated bricks" with a negative figure. If that negative figure is ignored the other figures reconcile with the recorded total, and I have therefore ignored the negative figure in the balance of this judgment.
5. With this adjustment, the items and corresponding figures in the table are as follows: Item number Description Cost 1 Foundation and concrete slabs (Incl. Hire and labour of bobcat and excavator) $18,000 2 Plumber (incl. labour and materials) $14,400 3 Bricks $41,440 4 (donated bricks) $0 5 Brick layers labour $14,000 6 Sand and cement $2,800 7 Shelter for men and ladies bathroom $6,800 8 Timber, roof tiles and metal beams $18,000 9 Timber framing of ceiling $13,000 10 Masjid's front arches (built twice) $13,600 11 Concreting of stairs $3,800 12 Labour and materials for securing, stabilising and rebuilding of collapsed wall in mosque $34,400 13 Donated cement $0 14 Tiling of bathrooms (labour and materials) $3,600 15 Carpet $6,500 16 All new microphone and speaker system $14,000 17 Wuduu area sinks and seating (labour and materials) $1,850 18 Small aluminium windows x9 $1,200 19 Painting (labour and materials) $2,000 20 Electrical work (materials only) $1,800 21 Fence between mosque and number 17 proctor pde (Labour and materials) $2,400 22 Mosque fence and gate $2,500

1. Under the table the document states: NOTE: THE ABOVE DOES NOT INCLUDE ALL WORKS COMPLETED AT THE MOSQUE, AS MUCH OF THE WORK WAS COMPLETED AS CHARITY WORK, AND HAS NO RELEVANCE TO ANY OTHER OUTSTANDING DEBTS.
2. At the bottom of the second page is another two-column table recording money received. It contains three entries. The first line shows a receipt of $3,000 by cheque from Mr Chowdhury. The second line shows a receipt of $3,000 by cheque from Mr Bhuiyan (noted "received on his behalf"). The third shows a receipt of $2,800 with no other details.
3. The table of receipts does not contain any dates. Mr Elzamtar did not refer to it in his affidavit.
4. The document bears two signatures, and it was not disputed that they are the signatures of Mr Bhuiyan and Mr Chowdhury. The signatures bear the date 30 August 2009, apparently in Mr Bhuiyan's handwriting.
5. Mr Elzamtar referred in two different places in his affidavit to the circumstances in which the August 2009 expenditure list was prepared and signed. Earlier in the affidavit, he said that on 30 August 2009 he, and his daughter Sarah, attended a meeting at Mr Bhuiyan's house at which a number of other members of the Bangladeshi community were present. Mr Chowdhury was not there but participated by telephone. Mr Elzamtar continued: Mr Bhuiyan said to Mr [Chowdhury], "we have to pay Elzamtar $216,090. The amount we owe is more but we have agreed to this sum. We have to assure his money in case another president comes along and they don't assure his money" or words to that effect. In response, Mr [Chowdhury] said, "god willing I will speak to my community and within a year we are going to come up with the money" or words to that effect.
6. Later in the affidavit, after setting out his "recollection" of each of the supporting documents (see [131] above), Mr Elzamtar returned to the August 2009 expenditure list. He stated that the list was prepared with the assistance of Mr Bhuiyan who had copies of the supporting documents. The list was typed by his daughter Sarah because of his lack of English. He stated that the list was signed on 30 August 2009 by Mr Bhuiyan, and the second signature was from Mr Chowdhury, and that he and Sarah were present when it was signed.
7. There is some apparent tension between Mr Elzamtar's evidence that he and Sarah were present when Mr Chowdhury signed the list and his evidence that Mr Chowdhury was not present at the meeting at Mr Bhuiyan's house at which Mr Bhuiyan signed it. Perhaps the list was later taken to Mr Chowdhury for signature. There was some inconclusive discussion about this in the course of Mr Elzamtar's evidence in chief, but no actual explanatory evidence was given.
8. As I have already said, there was no dispute about the validity of the signatures. Counsel for BIC did not cross-examine on the question. In fact counsel did not cross-examine on the expenditure list at all.

Later attempts to obtain payment

1. According to Mr Elzamtar's affidavit, his relationship with BIC changed when a Mr Ayoub Chowdhury (apparently not the same person as Mr Farkhruddin Chowdhury) became president of BIC in about May 2010. Mr Elzamtar described attending a long meeting with Mr Ayoub Chowdhury soon afterwards. According to Mr Elzamtar, Mr Ayoub Chowdhury refused, on behalf of BIC, to accept responsibility for repayment of loans (and, it seems, for payment of building works) pre-dating when he took over as president. Mr Elzamtar's position was that he had a binding deal with BIC through its previous representatives, Mr Chowdhury and Mr Bhuiyan.
2. It seems that by 2011 at the latest there was a great deal of instability within BIC (in fact, according to Mr Elzamtar's affidavit, some of his loans had been requested so as to pay for legal costs associated with litigation). Other documents on BIC's letterhead which were attached to Mr Elzamtar's affidavit give some clues about this.
3. First, there is a letter dated July 2012 and signed by Saiful Islam Chowdhury (apparently a different man again) as president. He stated that a Mr Ayubur Rahman ("AR") Chowdhury (who may be the same person as the Mr Ayoub Chowdhury referred to in Mr Elzamtar's affidavit) had been removed as president of the general meeting held in June 2011. Later documentary evidence refers to orders made by the Court in December 2011 in proceedings concerning the management of BIC. Those orders do not seem to have quelled the dispute: Mr Saiful Islam Chowdhury stated that Mr AR Chowdhury had formed an executive council for BIC following an AGM in June 2012. Mr Saiful Islam Chowdhury stated that the convening of the AGM had been invalid and urged Mr Elzamtar, as caretaker of the mosque, to deal with Mr Saiful Islam Chowdhury and a Mr Kabir Ahmed (described as the secretary), not with Mr AR Chowdhury and his associates.
4. Then, in January 2013, there is a written memorandum of understanding between BIC (signed on its behalf by Mr AR Chowdhury) and Mr Elzamtar. The memorandum set out five agreed points. Four of them concerned arrangements for the management of the mosque to be put in place by the executive committee of BIC. The other was: [Mr Elzamtar] is claiming that the BIC owes some money to him. BIC requests him to lodge all necessary invoices and supporting documents to establish his claim.
5. Mr Elzamtar stated in his affidavit that in "about late 2013", he was approached by Mr Khasrul Islam Talukder (the then president of BIC) and Mr Mohammed Akterul (the then treasurer) to build a shed for the mosque. He stated that the following conversation ensued: Mr Elzamtar You still owe me money from before. How do you expect me to do this if you still haven't paid me? Mr Talukder Don't worry brother, I'm President. We have one more small issue in court with Kabir Ahmed. Once that is dealt with we will pay you everything. I assure your rights, whatever we owe you will be paid
6. Another of the documents on BIC letterhead attached to Mr Elzamtar's affidavit is one signed by Mr Talukder and dated 14 October 2013. It was concerned with defining Mr Elzamtar's role at the mosque. It stated that Mr Elzamtar would look after the building of a shed, but said nothing about the repayment of debts.
7. Mr Elzamtar claimed that he had made many requests to BIC for payment of the amounts owed to him, but was constantly fobbed off. In his oral evidence Mr Elzamtar described one of these exchanges: …he used to come with excuses "I don't have any money". Yes they'd say like, you know "you're a Muslim brother"… … …the week after, we pay you the next week, yes. And you know, pat me on the back…
8. In cross-examination Mr Elzamtar agreed that by July 2012 he had retained solicitors to pursue his claim against BIC. He said that he realised the people he was dealing with on behalf of BIC were "deceiving and thieves". He said that they took him to court in 2011, accusing him of "stealing", but he won the case, and after that, in 2012, he started his case against them.
9. I am not sure that Mr Elzamtar's recollection of dates in this evidence is accurate. The present litigation was commenced, as I have stated, in 2014, although of course he could have retained solicitors earlier. Nevertheless, he repeatedly agreed when counsel put to him that he had lost all faith in the BIC executive council by 2011.

Building expenditure

1. Mr Elzamtar claims a total of $232,219 in a schedule to his statement of claim, which is made up of 116 items. Counsel provided me with another schedule based on the supporting document bundle, but counsel's schedule totalled only $219,627 even though it included some items which had not been pleaded (part of the reason for this was that the "invoice" from Ron Bohm Roofing (see [42] above) was recorded in counsel's schedule as being for $1,800 not $18,000).
2. In order to clarify the position I undertook a reconciliation of the items in the statement of claim with the documents in the supporting document bundle. This showed that some of these figures in the statement of claim had been incorrectly recorded or duplicated, or had no supporting documents. The reconciliation forms part of the schedule which is to be attached to the parties' version of this judgment (see [81] below).
3. After making the necessary corrections, Mr Elzamtar's adjusted claim is $229,500, which is made up of 111 items. In his statement of claim, Mr Elzamtar acknowledges receipt of a total of $43,438 from BIC. The net claim is thus $186,062.
4. The precision of the receipt figure of $43,438 suggests that it may have been based on a record of some sort. But there was no evidence at all to explain where the figure came from or how it was made up. Nor was there any other evidence about the receipt of the $8,800 referred to in the table appended to the August 2009 expenditure list. On the evidence before me, I can only assume that the remainder ($34,638) came from the mosque donations in 2005 or 2006.
5. I have already referred to BIC's limitation defence, the attempt to outflank it by claiming equitable relief, and the reply to the limitation defence based on the August 2009 expenditure list. But even if Mr Elzamtar can defeat or outflank the limitation defence, that is not the end of the case. He still has to prove his underlying claim. For this purpose, Mr Elzamtar relies again on the August 2009 expenditure list. His contention is that it operates as an admission by BIC.
6. Despite the evidence which suggests that the August 2009 expenditure list represented an agreed compromise of Mr Elzamtar's claims, Mr Elzamtar does not rely upon it as a contractual compromise. If he had done so, he might have avoided the necessity of establishing his case by way of proof of his original claims, followed by an acknowledgement. But counsel for Mr Elzamtar accepted that a claim based on an alleged contractual compromise was not within the statement of claim, and did not seek to introduce such a claim by amendment.
7. There are thus three questions that I must answer. First, whether the evidence before me (including the August 2009 expenditure list, was considered as an admission) sustains Mr Elzamtar's claim on a factual level. Second, whether the August 2009 expenditure list was an acknowledgement which defeats the limitation defence to the claim. Third, whether BIC's conduct raises an entitlement to equitable relief which defeats or outflanks that limitation defence.

Proof of expenditure

1. In final submissions, counsel for BIC contended that the bundle of supporting documents only actually verified a very small part of Mr Elzamtar's claim. Counsel argued that most of the documents did not go so far as to prove expenditure on the mosque by Mr Elzamtar of the amount claimed.
2. In order to clarify the position, I directed that a schedule be prepared and filed setting out the objections to each of the items in the claim, together with any response on behalf of Mr Elzamtar. This was produced on 25 June. As I have already mentioned, counsel's schedule did not reconcile exactly with the pleaded claims, and I produced a reconciled version.
3. Counsel for BIC's starting point was that, in order to constitute a satisfactory verification of the amount claimed, the supporting document should contain a receipt. Of the 111 items making up the claim, as adjusted, only 6 were accepted by counsel as satisfying this requirement.
4. For the purposes of the judgment, I have classified the supporting documents into five categories. Those categories have been colour-coded in the Court's version of the claim schedule. Copies of that schedule will be attached in the version of the judgment published to the parties (but not the published version on the internet).
5. The categories are: 1. documents containing a receipt, not objected to by counsel for BIC ($2,494). 2. invoices (without a record of receipt) referring to the delivery of goods or supply of services at the mosque ($152,904); 3. invoices (without a record of receipt) which contain no reference to the delivery of goods or supply of services at the mosque ($2,268); 4. non-invoice documents referring to the delivery of goods or supply of services at the mosque ($55,544); 5. non-invoice documents (quotations, order forms and delivery dockets) which contain no reference to the delivery of goods or supply of services at the mosque ($16,288).
6. No further comment is required about the category one documents. Counsel accepted that the expenditure of the sums recorded in those documents had been proved. But counsel submitted that none of the documents in the other categories sustained Mr Elzamtar's claim.
7. Counsel submitted that in the absence of any evidence of a receipt, the Court should not accept that the category two documents actually represented expenditure by Mr Elzamtar. In this regard counsel referred to the uncertainties created by the invoices with the post-dated ABNs, and the existence of the second audio system invoice (see [34] above). I should however record that in the course of the hearing the ABNs on the other documents were checked and it was agreed as a fact that all except the two which were raised in cross-examination had a current ABN on the date of issue.
8. The category three invoices present the further difficulty that there is nothing in the invoices themselves to link the charge to work at the mosque. Some of the invoices are not even addressed to Mr Elzamtar; they represent cash sales, presumably at trade distribution centres; or they are addressed to other entities entirely, not otherwise identified in the evidence. There is an obvious risk that invoices of this character could have come in to Mr Elzamtar's possession as a result of works which had nothing to do with the mosque.
9. The category four documents raise a different problem. They are consistent with an intention to undertake works at the mosque involving the building products or services in question (and, in the case of the delivery dockets, of delivery of such products to the mosque). But if the products or services were in fact supplied, there should have been invoices. The absence of such invoices itself raises the question why. It also means that there is no documentary evidence of Mr Elzamtar actually being charged for the products and services in question, let alone paying for them.
10. The category five documents combine the problems with categories three and four. Not only are they non-contractual, many of them are not even addressed to Mr Elzamtar and some of them have delivery addresses at completely different locations.
11. The problems can be illustrated by the very first document in the supporting documents bundle. It is a delivery docket issued by the brick manufacturer Austral Bricks. It represents an account sale; the account holder is identified as "Gemac Brick" with a postal address at Warrawong. The delivery acknowledgment receipt is signed by "J Benson". The delivery and job details are not easy to interpret, but it appears that the bricks were collected "ex yard", with the job address recorded as Eve Street, Erskineville (it is possible that this represents the delivery address). That is nowhere near Sefton.
12. In the ordinary course, the invoice would have been issued to Gemac. The delivery docket itself does not contain any price information, but in the bottom right hand corner "$1,900" has been written in handwriting.
13. There is nothing in the evidence to identify who Gemac or Mr/Ms Benson were. On the face of it, the delivery had nothing to do with work at the mosque.
14. It is of course possible that the bricks represent a purchase by a contractor which was reimbursed in cash by Mr Elzamtar. But as counsel for BIC pointed out, that analysis is quite inconsistent with Mr Elzamtar's formulaic description of the transaction in his affidavit where he stated that on the date in question he paid "Austral Brick Company Pty Ltd" $1,900 for bricks. If one thing is clear from the document, it is that Mr Elzamtar did not pay Austral.
15. For reasons given below, none of these problems are insuperable. Having said that, the fact that a large number of the documents are delivery dockets rather than actual invoices hardly inspires confidence. The evidence of the supporting documents, standing alone, is not very persuasive.
16. And Mr Elzamtar's general account of what happened raises some unanswered questions. In particular, there is Mr Bhuiyan's letter of August 2007. On Mr Elzamtar's case, at the time Mr Bhuiyan wrote the letter there was over $150,000 in work which he had asked Mr Elzamtar to do and had not been paid for. If that was so, it seems strange that none of it was mentioned.
17. The letter also suggests that from then onwards the system for undertaking work and paying for it was to be tightened up. A few of the items of expenditure claimed by Mr Elzamtar post-date that letter, but he did not refer to any change in procedure. Nor is there any explanation for why Mr Elzamtar did not submit his claim to BIC after his January 2013 memorandum of understanding with Mr AR Chowdhury. But there was no cross-examination on these questions.
18. Some parts of Mr Elzamtar's evidence also raise questions about his reliability generally. His evidence about the sale of land in Lebanon being the source of the funds paid was wrong (and obviously so, on the face of the annexures to his affidavit). Even if in fact the source was the sale of a property in Proctor Avenue, as Mr Elzamtar later said, that still says little for the reliability of his affidavit. There was also Mr Elzamtar's evidence about making a second loan to BIC in July 2008 which I have concluded is a figment of his imagination (see [189] below).
19. Mr Elzamtar himself said in cross-examination that the events had happened a long time ago and it was difficult to recall. No doubt that is true. Mr Elzamtar's affidavit account, where it can be compared with contemporaneous documents, tends to raise more questions than it answers. The invoices which pre-dated the registration of the relevant ABNs are the clearest examples of this. I can only accept the claims based on those invoices by discounting Mr Elzamtar's evidence about the procedures which he followed. Overall I did not consider him to be a particularly reliable witness on issues of detail or chronology.
20. But Mr Elzamtar does have the August 2009 expenditure list, as countersigned by Mr Bhuiyan and Mr Chowdhury, to rely upon. Mr Elzamtar's account of how the document came to be signed raises its own questions (see [58] above). But the fact is that again Mr Elzamtar's account was not questioned in cross-examination, and no point was taken about the authority of Mr Bhuiyan and Mr Chowdhury to sign it on behalf of BIC.
21. Counsel for BIC himself submitted that the document was prepared for BIC's purposes as a record of works done with BIC's approval. In counsel's submission, that was all it was. But to read it that way takes no account of the figures in the document. Counsel also suggested that the document might have been a record of expenses incurred by others as well as Mr Elzamtar. But that ignores the fact that the document originated from Mr Elzamtar. Why would he have made a list of everyone's expenditure?
22. In the end, I think the document can only be read as an agreed list of expenditure incurred by Mr Elzamtar. I cannot see any other purpose it could realistically have served. In effect, the signatures on the list represent an admission on the part of BIC that Mr Elzamtar's reimbursable expenditure on the project was $216,090.
23. It is clear enough that the August 2009 expenditure list would have been based on a bundle of supporting documents which more or less corresponded to the bundle produced for the purpose of these proceedings. It is not possible to undertake an item-by-item reconciliation between the bundle and the expenditure list. In fact the supporting documents total $229,500, which is $13,410 more than the expenditure list total.
24. But some of the items in the expenditure list can be more or less lined up with one or more of the supporting documents. Counsel for Mr Elzamtar produced the following analysis: August 2009 Expenditure List Court Schedule Bundle Description Cost Item number Cost Foundation and concrete slabs (Incl. Hire and labour of bobcat and excavator) $18,000 28 $18,000 Plumber (incl. labour and materials) $14,400 113 $14,400 Sand and cement $2,800 24,27,59,61,105 $2,922 Timber, roof tiles and metal beams $18,000 63 $18,000 Labour and materials for securing, stabilising and rebuilding of collapsed wall in mosque $34,400 116 $34,400 Carpet $6,500 114 $6,500 All new microphone and speaker system $14,000 115 $14,000 Fence between mosque and number 17 proctor pde (Labour and materials) $4,900 94,112 $4,300 Mosque fence and gate Total $113,000 $112,522

1. About half of the expenditure list total can thus be matched, or roughly matched, to the supporting documents.
2. An admission is only one piece of evidence, and its weight depends upon the circumstances in which it is made: Lustre Hosiery Ltd v York (1935) 54 CLR 134 at 138-9. The deficiencies in the supporting documents mean that, of themselves, they add little or nothing to the context. But the weight of the admission is greatly strengthened by Mr Elzamtar's uncontested evidence that at the time Mr Bhuiyan was aware of the contents of the bundle (indeed on Mr Elzamtar's account he had copies of the documents), and the associated inference that the expenditure list was prepared from the supporting documents. Importantly, the total of the supporting documents exceeds the expenditure list total by an appreciable margin. This tends to confirm that there was some sort of review process which resulted in some items being accepted and others rejected.
3. Counsel for Mr Elzamtar invited me to go further and draw a Jones v Dunkel ((1959) 101 CLR 298) inference against BIC as a result of its failure to call Mr Chowdhury and Mr Bhuiyan as witnesses. But I think that the making of the guillotine order and the fact that no evidence was filed in time presents an obstacle to doing so.
4. A Jones v Dunkel inference rests on a chain of reasoning, one essential link is that the opposing party is able to call the witness: see Payne v Parker [1976] 1 NSWLR 191 per Hutley JA at 197 and Glass JA at 201-202. As I have already indicated, BIC's current legal representatives only came in to the case after the date fixed in the guillotine order had expired. Had they wished to call Mr Chowdhury and Mr Bhuiyan as witnesses, they could of course have made an application for leave to do so, but given the chequered procedural history of the proceedings, the chances of obtaining leave would not have been great. In the circumstances I do not think that I should draw a positive inference against BIC that the evidence of Mr Chowdhury and Mr Bhuiyan would not have assisted BIC in its defence.
5. But counsel for Mr Elzamtar found more solid ground when he referred to the rule in Browne v Dunn (1893) 6 R 67. Counsel for BIC did not question Mr Elzamtar at all about his dealings with Mr Bhuiyan and Mr Chowdhury, and this included Mr Bhuiyan's letter of August 2007. Nor did counsel ask anything about the preparation of the August 2009 expenditure list.
6. Of course, not being able to call any witnesses himself, there were some practical limitations to what counsel could properly ask. But there was nothing to stop counsel from probing Mr Elzamatar about the quality of his recollection, or asking him about the apparent unlikelihoods or contradictions in his account. It must be remembered that although counsel was unable to lead evidence from Mr Chowdhury and other BIC witnesses, he could still have obtained instructions from them for the purposes of cross-examination.
7. I think the failure to question Mr Elzamtar is of particular significance when considering the deficiencies which counsel later identified in the supporting documents. All of the deficiencies were potentially capable of explanation. Even the category five documents which showed some other job or delivery address may represent products which were diverted or carried across from another site. This might have raised inconsistencies with the billing and payment practices described by Mr Elzamtar, but that is the very reason why he should have been asked to address it.
8. Taking all these factors together, on balance I am satisfied that Mr Elzamtar has proved that he undertook reimbursable expenditure on the mosque in the sum of $216,090.

Limitation defence

1. Mr Elzamtar's claim with respect to expenditure on the mosque was pleaded as a liquidated one for reimbursement of monies paid out by him pursuant to an agreement with BIC. The agreement was pleaded as having been made between Mr Elzamtar and Mr Chowdhury and Mr Bhuiyan on behalf of BIC in 2003. Alternatively, the same liquidated amount was claimed by way of restitution for unjust enrichment.
2. I am not sure about this alternative claim. Usually restitution for monies paid to the use of the defendant (to use the old language) would be claimed where there is no contractual right to reimbursement. In the present case the pleaded facts support an ordinary contractual claim for reimbursement on a "pay and be paid" basis.
3. Counsel for BIC submitted that Mr Elzamtar's cause of action accrued on the date of payment. If the cause of action is a restitutionary one, this would make no difference as the date of accrual of the causes of action would be the same: Coshott v Lenin [2007] NSWCA 153 at [15]-[17]. Strictly speaking, this meant that Mr Elzamtar had a multiplicity of causes of action, each one arising on the date of the individual payment in question.
4. Initially, counsel for Mr Elzamtar did not appear to dispute this analysis. In particular, although the agreement as pleaded in the statement of claim was that Mr Elzamtar would be reimbursed from monies collected from the mosque, counsel did not suggest that this affected the dates of accrual of his causes of action for limitation purposes.
5. It thus appeared to be common ground that Mr Elzamtar's building expenditure claims were, prima facie, statute barred. But in the course of final submissions, counsel for Mr Elzamtar advanced a new argument for the purpose of outflanking the limitation defence.
6. At [20] above I quoted from Mr Elzamtar's affidavit account of his agreement with Mr Chowdhury and Mr Bhuiyan in 2003. In one of the quoted passages, Mr Bhuiyan was recorded as saying that he and Mr Chowdhury would "put it" (Mr Elzamtar's expenditure) "to the board and reimburse you". The new argument seized on this. Counsel for Mr Elzamtar submitted that BIC's liability to reimburse Mr Elzamtar did not arise until board approval was obtained. That approval, so the submission continued, was not given until 30 August 2009, when Mr Chowdhury and Mr Bhuiyan accepted, on BIC's behalf, Mr Elzamtar's list of expenditure. No question of limitation, according to the submission, therefore arose.
7. If the deal between the parties was that Mr Elzamtar could not be paid until some sort of formal approval had been obtained from the executive committee of BIC, it seems extremely unlikely that no steps would have been taken to obtain such approval for more than six years after the work was undertaken. Such a deal also seems inconsistent with the evidence of substantial payments having been made before the expenditure list was approved in August 2009. And even then, the list was not formally approved by the executive committee, so far as the evidence goes, but only by Mr Bhuiyan and Mr Chowdhury.
8. In any event, I was clearly of the view that this new argument involved a departure from Mr Elzamtar's pleaded case. Counsel thereupon made an oral application to amend the statement of claim, but I refused the application, essentially for the same reasons which led me to refuse the amended application at the beginning of the hearing (see [9] above).
9. Following the disallowance of this argument, counsel did not contest that Mr Elzamtar's causes of action were prima facie statute barred. The question was whether those causes of action had been confirmed.
10. Confirmation of a cause of action for the purposes of the Limitation Act 1969 (NSW) is dealt with by s 54. That section relevantly provides: (1) Where, after a limitation period fixed by or under this Act for a cause of action commences to run but before the expiration of the limitation period, a person against whom (either solely or with other persons) the cause of action lies confirms the cause of action, the time during which the limitation period runs before the date of the confirmation does not count in the reckoning of the limitation period for an action on the cause of action by a person having the benefit of the confirmation against a person bound by the confirmation. (2) For the purposes of this section: (a) a person confirms a cause of action if, but only if, the person: (i) acknowledges, to a person having (either solely or with other persons) the cause of action, the right or title of the person to whom the acknowledgment is made, or (ii) makes, to a person having (either solely or with other persons) the cause of action, a payment in respect of the right or title of the person to whom the payment is made, … … (4) An acknowledgment for the purposes of this section must be in writing and signed by the maker.
11. Counsel for Mr Elzamtar relied on the August 2009 expenditure list as an acknowledgment under s 54(2)(a)(i). Counsel did not submit that confirmation by part-payment (s 54(2)(a)(ii)) would be available. As we have seen, there is no evidence of when the $8,800 in the table appended to the list was received. Nor did counsel rely in this context on the payments from the mosque takings.
12. Counsel for BIC disputed that the list was an acknowledgment for relevant purposes. Counsel pointed out that the onus lay on Mr Elzamtar as plaintiff to prove the acknowledgement of his "right or title" by BIC, and contended that there was sufficient doubt on the question to defeat his case on this point.
13. Counsel's first submission was that I could not be satisfied that the list even represented expenditure incurred by Mr Elzamtar. I have already rejected this submission in the course of considering the weight of the list as an admission: see [103] above. Counsel however presented an additional submission with which I have not yet dealt.
14. On this submission, it could be accepted that the list represented a list of expenditure on tasks approved by BIC. But counsel pointed out that the list of receipts appended to the expenditure list did not include the monies (apparently totalling more than $30,000) received in 2005 or 2006 from takings at the mosque. Thus, the submission ran, the Court could not be satisfied that the expenditure list represented an acknowledgement of what was owing at the time.
15. According to the submission, the list might have been prepared so as to identify and agree the starting point for determining what, if anything, Mr Elzamtar was entitled to. But even if so, the parties had not taken the further step of working out what was actually owed. This meant, so the submission ran, that the list could not be an acknowledgement.
16. Both counsel made it clear that in putting their submissions on the acknowledgement point they had not fully researched the authorities. I was invited to deal with the question as a matter of principle, supplemented by my own research based on the limited number of authorities which were mentioned.
17. The relevant history, and some of the Australian appellate authorities, were summarised by Bryson AJ in Woo v Woo [2010] NSWSC 1216 at [93]-[98]. His Honour in particular referred to Spencer v Hemmerde [1922] 2 AC 507, where there was a lengthy review of prior authority by the House of Lords.
18. Counsel's submission depended upon Mr Elzamtar having received additional monies which were not recorded in the August 2009 expenditure list. But is the Court allowed to take this extrinsic fact into account when determining whether the list was an acknowledgment?
19. The availability of extrinsic facts for the purpose of interpreting an acknowledgement was discussed at some length by Lord Sumner in Spencer at 525-526. His Lordship concluded that the subjective intention of the party giving the acknowledgement is irrelevant, but the discussion was otherwise inconclusive.
20. The statutory objective is plainly to ensure that, to be effective, an acknowledgment must be in writing. There is a risk of that objective being defeated if the Court too freely allows in extrinsic evidence. That is a factor in favour of confining consideration to the contents of the document itself. But in the end I do not need to reach a final conclusion on this question.
21. At first sight it is somewhat surprising that if more than $30,000 had been received by way of mosque contributions in 2005 and 2006, the August 2009 expenditure list did not refer to it. But because of the way the case has been conducted, that is far from being the only aspect of the evidence which is hard to understand.
22. Even if Mr Elzamtar's receipt of other monies were treated as an established fact, in my view that would not be sufficient to alter the Court's objective understanding of the document. Both parties may have been aware that Mr Elzamtar had received more money. But they may not have known, or may not have agreed, how much more. The mention of specific receipts totalling $8,800 did not necessarily amount to agreement that those had been the only payments received.
23. With or without the extrinsic fact of receipt of further funds, I think the plain interpretation of the document is that it acknowledged a maximum debt of $207,290 ($216,090 incurred less $8,800 paid). Of course this acknowledgement only operated to allow Mr Elzamtar to pursue a claim up to that amount. It did not prevent BIC from contending that additional payments had been made.
24. There is however a complication. An acknowledgement can only operate by way of confirmation of a cause of action and extend the limitation period, if, at the time of the confirmation, the period has not expired: Stage Club Ltd v Miller Hotels Pty Ltd (1981) 150 CLR 535 at 566. Counsel for Mr Elzamtar accepted that, to the extent that Mr Elzamtar's expenditure pre-dated 30 August 2003, the acknowledgement in the August 2009 expenditure list could not revive his causes of action.
25. The supporting documents which pre-date 30 August 2003 are identified in the Court's schedule (see [81] above). They total $38,820. By reference to the table at [101] above, it is possible to identify $19,800 of this in the August 2009 expenditure list. The remaining $19,020 cannot be identified. Some of it may overlap with the $13,410 in unadmitted expenditure (see [100] above). But if so the extent of the overlap cannot be quantified. Accordingly I think that the whole $38,820 must be deducted from the $229,500 admitted in the expenditure list, leaving a maximum entitlement of $190,680. I will address the deduction of receipts below.

Equitable claims

1. Mr Elzamtar's statement of claim sought equitable relief of various types. Proprietary relief was claimed. This took the form of an equitable charge over the mosque to secure the amounts paid by Mr Elzamtar for the building works, coupled with an order for sale. Alternatively, the Court was asked to award equitable compensation representing the amounts expended on the mosque. A further alternative was for the Court to refuse to give effect to BIC's limitation defence, thus allowing the Court to give judgment in debt for the whole of Mr Elzamtar's claim.
2. Counsel for Mr Elzamtar identifies three different routes to the grant of equitable relief. They are: (i) a common intention constructive trust; (ii) a proprietary estoppel; (iii) a promissory estoppel.
3. Common intention constructive trust: The principle upon which counsel for Mr Elzamtar relies is identified in the judgment of Deane J in Muschinski v Dodds (1985) 160 CLR 583 at 620, which was approved by the majority of the High Court in Baumgartner v Baumgartner (1987) 164 CLR 137 at 148. It: operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do:
4. This principle does not apply in the current case. Ultimately it is based on the unconscientious assertion of legal title to property. BIC acquired the mosque before, and quite independently of, the dealings between it and Mr Elzamtar which are the subject of these proceedings. Furthermore, on my findings, Mr Elzamtar laid out the monies on the works on the mosque on the basis of an agreement, amounting to a contract, that he would be paid. It was an ordinary contractual arrangement between the owner of a property and a contractor for the performance of work. There was no relevant pooling of contributions.
5. Proprietary estoppel: The relevant legal doctrine was stated by Lord Kingsdown in Ramsden v Dyson (1866) LR 1 HL 129 at 170 in the following terms: If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land; with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation.
6. This doctrine does not apply either. It was never suggested at any stage that Mr Elzmatar would acquire any interest in the property on which the mosque was built. Nor would it be accurate to see Mr Elzamtar as having taken possession of the mosque in the relevant sense. Mr Elzamtar may have gone onto the property to direct work, but possession remained at all times with BIC.
7. The doctrine is inapplicable for a wider reason. Lord Kingsdown's formulation emphasises that it operates in two different situations. One is where there is a contract between the parties but that contract cannot be enforced because of the Statute of Frauds. The other is where for some other reason the promise or expectation is not enforceable as a matter of contract, for instance because it is too ill-defined to constitute a contract at law. In a case where the promise or expectation is found in an enforceable contract, there is no need for equity to intervene: the court simply enforces the contract in accordance with its terms.
8. In the present case, until the end of the limitation period Mr Elzamtar had a perfectly viable cause of action at law. Had Mr Elzamtar approached the Court before the expiry of the limitation period, there would have been no occasion for equitable relief: he simply would have been left to pursue his rights at law. Why should an equity spring up now that Mr Elzamtar has allowed those rights to become statute barred? There is no analogy with the Statute of Frauds, where the plaintiff cannot ever enforce the contract in question.
9. Promissory estoppel: Counsel's argument was based on the decisions of the High Court from Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 onwards. The elements of such an estoppel were stated by Brennan J in Waltons at 429 as being: (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiffs action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.
10. For the purposes of this case, counsel put Mr Elzamtar's expectation and detriment in two different ways. The first was that Mr Elzamtar understood that he would be reimbursed by BIC for expenditure on the mosque and outlaid money on that understanding. The second way of putting the claim was somewhat less clear. It relied on the alleged subsequent conduct on the part of BIC in assuring Mr Elzamtar that he would be paid back for his expenditure. Counsel did not go so far as to suggest that Mr Elzamtar was ever expressly told that BIC would not take a limitation defence. But the ultimate detriment was nonetheless said to be that he had failed to bring proceedings while there was time.
11. It is important to note that, having regard to the conclusions I have reached on confirmation of Mr Elzamtar's causes of action, his claim of estoppel is only needed for those causes of action which became statute barred before 30 August 2009 (that is, causes of action based on expenditure prior to 30 August 2003). The conduct of Mr Bhuiyan and Mr Chowdhury in acknowledging the debt on 30 August 2009, and any later conduct on the part of BIC, is not relevant.
12. In the course of the hearing I referred the parties to the decision of the House of Lords in Actionstrength Ltd v International Glass Engineering IN.GL.EN SpA [2003] 2 AC 541. In that case, a company called Saint-Gobain was having a factory built for it by a contractor, IG. Actionstrength was a sub-contractor supplying labour to IG. IG was not keeping up with its payments to Actionstrength, and arrears of £197,000 had built up. Actionstrength was entitled to terminate its sub-contract. This would have caused difficulties with the completion of the project and was a concern to Saint-Gobain.
13. For the purposes of the proceedings, the assumed facts were that Actionstrength was induced by Saint-Gobain not to terminate its contract with IG. In return Saint-Gobain undertook to pay any outstanding amounts owing to Actionstrength from IG, and any amounts IG did not pay in the future, to Actionstrength. Actionstrength then continued to supply labour under the contract. IG did not meet its obligations, resulting in an eventual shortfall of £1,300,000.
14. The agreement between Actionstrength and Saint-Gobain was oral. It was therefore caught by the guarantee provision in the Statute of Frauds (Statute of Frauds 1677, 29 Car 2, c 3, s 4). When Actionstrength sued Saint-Gobain for the arrears, Saint-Gobain pleaded the Statute as a defence. Actionstrength contended that it was estopped from doing so. This contention was rejected by the House of Lords.
15. Clearly the promise did not relate to an existing state of affairs. Only a promissory estoppel would have been sufficient for Actionstrength's purposes. Two strands can be identified in the judgments as reasons for rejecting such an estoppel.
16. The first strand of reasoning involves the assumption that a promissory estoppel can only operate in a defensive way, and therefore had to be specific to the pleading of the Statute as a defence. Thus: [I]n seeking to show inducement or encouragement Actionstrength can rely on nothing beyond the oral agreement of Saint-Gobain which, in the absence of writing, is rendered unenforceable by s 4. There was no representation by Saint-Gobain that it would honour the agreement despite the absence of writing, or that it was not a contract of guarantee, or that it would confirm the agreement in writing. Per Lord Bingham of Cornhill at [9]; see also Lord Clyde at [34]-[35].
17. The same approach can be discerned in the earlier decision of the Court of Appeal for England & Wales in Ace Insurance SA-NV v Seechurn ([2002] 2 Lloyd's Rep 390; EWCA Civ 67). In that case the plaintiff made an insurance claim which resulted in lengthy and fitful negotiations with his insurer. Those negotiations continued up until, and after, the expiry of the limitation period. The insurer then refused to pay, relying on the time bar. The Court insisted that the plaintiff could only succeed if he was able to identify in the correspondence prior to the limitation period expiring a clear and unequivocal promise not to rely on a limitation defence (see at [53]-[54]). In the absence of such a promise the plaintiff's claim failed.
18. The second strand of reasoning in the Actionstrength judgments concerns the prohibition in the Statute of Frauds itself. Thus: If Saint-Gobain were held to be estopped in this case it is hard to see why any oral guarantor, where credit was extended to a debtor on the strength of a guarantee, would not be similarly estopped. The result would be to render nugatory a provision which, despite its age, Parliament has deliberately chosen to retain. Per Lord Bingham of Cornhill at [9]; per Lord Hoffman at [26]-[28], who in this regard distinguished the provisions of the Statute concerning contracts for the sale of land as being subject to the doctrine of part performance; see also Lord Walker [52]-[53].
19. Counsel for Mr Elzamtar responded by referring me to a critique of the Actionstrength decision in an article by Professor Robertson (as he now is): A Robertson, "The Statute of Frauds, Equitable Estoppel and the 'Need for Something More''' (2003) 19 Journal of Contract Law 17. The article argued that the law of promissory estoppel as laid down by the High Court in Waltons and succeeding cases make both of the strands of reasoning in Actionstrength inapplicable in Australia.
20. The effect of the House of Lords decision, as analysed in Robertson's article, was that reliance by Actionstrength on an assumption that Saint-Gobain would fulfil its oral undertaking (described by Robertson as a "primary assumption") was insufficient to raise a promissory estoppel which overcame the Statute. To overcome the Statute would have required reliance on a more specific assumption (a "secondary assumption"), namely that Saint-Gobain would not rely on it.
21. Robertson challenged both of the strands of reasoning in Actionstrength to which I have referred. His argument against the first strand was that, in Australian law, promissory estoppel is not merely defensive; it is a stand-alone cause of action. As to the second strand, Robertson argued that the doctrine does not involve enforcing promises which are unenforceable because of non-compliance with the Statute. Rather it is directed to the avoidance of detriment. Thus, Robertson suggested, had the appeal in Actionstrength succeeded, the measure of compensation would have been £1,103,000 (£1,300,000 less the £197,000 of arrears at the time the promise was made).
22. Certainly the received view in Australia is that promissory estoppel operates as an independent source of rights, and is not confined to relief against the exercise of legal rights. It is also true that proprietary estoppel operates to enforce a primary assumption despite the terms of the Statute (as Lord Kingsdown's formulation expressly states; see also Giumelli v Giumelli (1999) 196 CLR 101 at 112). But attempts to formulate an overarching doctrine of estoppel incorporating both proprietary estoppel and promissory estoppel have stalled: KR Handley, Estoppel By Conduct and Election (Sweet & Maxwell Thomson Reuters, 2nd, 2016) [1-034]. It remains controversial whether promissory estoppel extends to enforcing a promise in the same way as a proprietary estoppel does.
23. The issue was considered in this state by the Court of Appeal in Powercell Pty Ltd v Cuzeno Pty Ltd [2004] NSWCA 51. The leading judgment was given by Giles JA with whom RP Meagher and Santow JJA agreed. The case concerned a property development. The appellant orally contracted with the respondent to take over contracts which the respondent had entered into with third party purchasers. The oral contract was caught by this State's statute of frauds (Conveyancing Act 1919 (NSW), s 54A).
24. The respondent contended for a promissory estoppel founded on detrimental reliance on the unenforceable promise by the appellant. The respondent cited Robertson's article and relied on his argument. Giles JA said at [76]-[77]: 76 It may be accepted that an estoppel can be a source of rights. That was the case in Waltons Stores (Interstate) Ltd v Maher itself, and from Ramsden v Dyson (1865) LR 1 HL 129 onwards interests in land have often been held to have arisen on principles of estoppel. Where an interest in land has been held to have arisen absence of a written record has not precluded its enforcement. That has been because the assumption induced by the defendant is taken to have encompassed enforceable rights (see Waltons Stores (Interstate) Ltd v Maher at 432-3, 446, 464), which cannot be said of the mere assumption that a contract exists when the law of land requires a written record for enforceability. 77 It does not follow that where the source of the rights is contractual, the statutory imperative of s 54A can be overcome by creation of an alternative source of rights.
25. Only a secondary estoppel, against relying on the Statute, was pleaded, and that failed on the facts. Thus the availability of an estoppel based on a primary assumption did not directly arise. But Giles JA nevertheless directly addressed Robertson's argument. He said at [79]-[80]: 79 Putting [the pleading problem] aside, I do not think the argument is sound. Its fundamental flaw is that there was an agreement, binding in contract, that the respondent would take over the contracts with the purchasers. There was no need for an independent source of rights, and neither occasion nor warrant to improve the appellant's position by creating rights alternatively sourced through principles of estoppel. To repeat, without more it was not inequitable or unconscionable for the respondent to rely on the law of the land. 80 Equity has ameliorated the harshness of reliance on s 54A through the doctrine of part performance. The doctrine would be unnecessary if the plaintiff could always fall back on an estoppel founded on no more than the making of the contract in question. And if the plaintiff could always do that, s 54A would be rendered nugatory
26. Robertson's argument derives some support from decisions at appellate level in Queensland (Riches v Hogben [1986] 1 Qd R 315) and Western Australia (Tipperary Development Pty Ltd v Western Australia (2009) 38 WAR 488 at [139]-[147], per McLure JA with Newnes JA agreeing; contra Wheeler JA at [21]-[24]). But in this State the law was clearly expressed by the Court of Appeal in Powercell. It is notable that subsequent decisions of the Court continue to maintain the distinction between proprietary and promissory estoppel: Ashton v Pratt (2015) 88 NSWLR 281 per Bathurst CJ at [137]-[138].
27. In the end, it is unnecessary in this case to reach any final conclusion on the extent to which promissory estoppel can be used to outflank the statute of frauds. I am concerned with the statute of limitations. I have already explained why I do not think that the doctrine of proprietary estoppel's outflanking effect on the statute of frauds carries across to the statute of limitations. The same reasoning would apply to the doctrine of promissory estoppel if it extended as far as proprietary estoppel.
28. Another way of putting this is to focus on the causal elements of promissory estoppel. Reliance on the detriment must be reasonably related to the promise.
29. In the present case, the primary assumption was that Mr Elzamtar would be paid for works funded by him, based on the 2003 promise by Mr Chowdhury and Mr Bhuiyan. The alleged act of reliance was the incurring of building expenses. But incurring those expenses created corresponding contractual (or restitutionary) rights to reimbursement from BIC. At that point there was no operative detriment. The problem for Mr Elzamtar arises from his later failure to take proceedings during the limitation period, and this had nothing to do with the original promise.
30. In theory this leaves open a promissory estoppel founded on a secondary assumption that BIC would not rely on a limitation defence. But no express representation to that effect was made in this case.
31. What is alleged is that BIC made generalised promises to pay. But I do not think that some sort of implication from those promises would do. Such an implication would arguably arise in every case of an oral promise to pay. To allow an estoppel based on such an implication would nullify the requirement in s 54(4) that, to be effective, an acknowledgement must be recorded in writing.
32. In my view, the approach in Seechurn accurately represents the law in this State so far as an estoppel against the statute of limitations is concerned. In the absence of a specific and clear promise not to plead the statute, coupled with detrimental reliance on that promise, BIC remains entitled to rely on its statutory defence. The equitable estoppel claim fails.
33. Had I considered that an equitable estoppel arose, founded on the primary assumption that BIC would reimburse Mr Elzamtar for his building costs, I would still have had to consider whether relief was still obtainable, having regard to the lapse of time since those costs were incurred. In this regard, counsel reminded me of the well-known statement by Isaacs J in R v McNeil (1922) 31 CLR 76 at 100: Where a Court of equity finds that a legal right, for which it is asked to give a better remedy than is given at law, is barred by an Act of Parliament, it has no more power to remove or lower that bar than has a Court of law. But where equity has created a new right founded on its own doctrines exclusively, and no Act bars that specific right, then equity is free. It usually applies, from a sense of fitness, its own equitable doctrine of laches and adopts the measure of time which Parliament has indicated in analogous cases, but, when a greater equity caused by fraud arises, it modifies the practice it has itself created and gives play to the greater equity.
34. Had I needed to apply this statement of principle, there might have been a question about whether there was any analogous statutory bar, or any "greater equity", in play (counsel for Mr Elzamtar took a point about BIC's pleading in this regard). As it is, I can pass the issue by.

Credit for payment

1. I concluded above that Mr Elzamtar was entitled to succeed in an action at law with respect to the building costs in the amount of $216,090, less the statute barred component of $38,820, but subject to payments received. Mr Elzamtar acknowledges receipts of $43,438. The question is how those receipts should be applied.
2. There was no argument from counsel on this question. As a matter of principle, I think that I should apply the "first in, first out" method of appropriation which is the default method used on a running account (Devaynes v Noble (Clayton's case) (1816) 1 Mer 571, 608; 35 ER 781). This means that the receipts will be applied first against the older expenses which are not covered by a valid acknowledgement. The result is that, after deduction of receipts, Mr Elzamtar is entitled to judgment in the sum of $172,652.

Loans to BIC

1. I have earlier set out the particulars of the loans alleged by Mr Elzamtar. Four of the loan documents (1, 2, 3 and 5) were standard form documents on the letterhead of BIC. The BIC form was headed "loan agreement". It contained space for the lender's details, amount of the loan, and borrower's details to be inserted. There was a printed line which specified the "term of the loan" as "12 months to be paid off on demand by lender". The form also contained spaces for signature by the lender, the borrower, and witnesses.

Loans 1 and 2

1. Loan documents 1 and 2 were dated 14 August 2003 and 18 December 2005. Counsel for Mr Elzamtar accepted that, for both of these loans, an action in debt is statute barred.
2. In order to obtain equitable relief, Mr Elzamtar must of course prove that he did in fact pay monies to BIC by way of loan as he alleges. There is no difficulty so far as loan document 2 is concerned: it records Mr Elzamtar as the lender and BIC as the borrower, is apparently duly signed by BIC, and bears what appears to be Mr Elzamtar's signature as lender.
3. But loan document 1 is more problematical. It records BIC as the borrower, and is apparently duly signed by BIC and witnessed. But the lender is recorded as "OMARAAMIDE" (it may be "OMAR AAMIDE"; there is a blot which could be a full stop or a dash between the "R" and the "A"). The borrower's address is recorded as being in Campbell Hill Road, Guildford, and the borrower's signature looks like that of Mr Bhuiyan. A signature resembling Mr Elzamtar's does appear on the document, but as a witness.
4. In his affidavit, Mr Elzamtar stated that the loan was made at the request of Mr Bhuiyan and Mr Chowdhury and he paid the requested amount of $14,000 directly into BIC's bank account. He produced a deposit slip recording such a deposit on 13 August 2003.
5. Mr Elzamtar stated that, having refreshed his memory from the loan agreement, which was dated the following day, he was visited by Mr Chowdhury and Mr Bhuiyan and others and signed the document at their request. He noted Mr Chowdhury's signature on behalf of BIC but said he did not know the name of the borrower or the borrower's signature (even though it is apparently Mr Bhuiyan's). Mr Elzamtar noted his signature on the document as a witness. He did not explain why, if he was the borrower, he did not sign as such and somebody else's name appeared as the lender.
6. I find it very difficult to make sense of the evidence on this alleged loan. The document does not itself support Mr Elzamtar's allegation and the deposit slip does not identify who the depositor was. However, Mr Elzamtar was not asked about this in cross-examination. On the view I take, it is not necessary to decide whether Mr Elzamtar in fact made a loan payment to BIC as alleged.
7. Mr Elzamtar's alternative claim for equitable relief so far as the loans were concerned was confined to promissory estoppel. As pleaded, the alleged detriment was not the making of the loans in the first place. Rather, it was the making of further loans, and the payment of subsequent building expenses, allegedly in reliance on the understanding that the earlier loans would be repaid.
8. Mr Elzmatar's claim is similar to, but not exactly the same, as his promissory estoppel claim with respect to the building expenses. But I do not think that the differences affect the result. In making further loans and further payments of reimbursable expenses, Mr Elzamtar received the benefit of legal obligations on BIC to repay. As with the estoppel claim concerning building expenses, there is no causal relationship between entry into those transactions and the later invocation by BIC of a limitation defence. For reasons I have given, a promissory estoppel founded on a primary assumption is not available against BIC's reliance on the statute of limitations.
9. Mr Elzamtar did not in his statement of claim allege that he had acted on any assumption that BIC would not rely on a limitation defence to his loan claims. For reasons I have already given, in the absence of some specific promise or understanding of that kind, promissory estoppel was not available. Mr Elzamtar's claim for equitable relief with respect to the loans fails.

Loans 3, 4 and 5

1. There is no limitation defence to the claims based on loan documents 3, 4 and 5. But in the end Mr Elzamtar did not pursue any claim based on loan document 5; he seems to have overlooked, when the proceedings were instituted, that the loan in question had already been repaid.
2. Counsel for BIC accepted that the claim based on loan document 3 succeeds. The only dispute concerned the claim based on loan document 4.
3. Loan document 4 is in a different form from the other loan documents. It is a handwritten receipt issued by the treasurer of the Parramatta Islamic Cultural Association Inc ("PICA"). It records: Received from the sum of $14,000 (cheque: $6000, cash: $8000) via Abu Ahmed from Bangladesh Islamic Centre Sefton NSW as full repayment of the remainder of the loan from PICA to BIC.
4. In his affidavit, Mr Elzamtar stated that he was approached by Mr Chowdhury and Mr Bhuiyan to assist in repayment of a pre-existing borrowing of $14,000 from PICA. It was agreed that Mr Chowdhury would contribute $6,000 of his money to repay the borrowing, and Mr Elzamtar would pay the remaining $8,000 from his own funds. According to Mr Elzamtar, Mr Chowdhury wanted to make it appear that the whole of the $14,000 had been provided by Mr Elzamtar; it seems that Mr Chowdhury believed that if he was the lender, for some reason he might not be repaid.
5. This version of events is entirely consistent with the receipt from PICA. Counsel for BIC did not dispute that Mr Elzamtar provided $8,000 of his own money by way of loan to BIC to help BIC to pay off the borrowing from PICA. But counsel argued that this loan by Mr Elzamtar was in fact the one recorded in loan document 3.
6. As I have stated, loan document 3 is in the usual BIC form. It is dated 25 July 2008, only two days before the date of the PICA receipt. It records a loan of $8,000. On its face, there is every reason to think that it records the monies provided by Mr Elzamtar to pay PICA.
7. In his affidavit, Mr Elzamtar gave a different account of loan 3. He stated that it arose out of earlier approaches by Mr Chowdhury and Mr Kabir Ahmed for a loan to pay for legal costs of proceedings in which BIC was involved (see [63] above). He was initially asked to lend $18,000 but said he could only afford $8,000. Mr Elzamtar stated that he handed over the sum of $8,000 on 25 July when he signed the loan document.
8. Under cross examination, Mr Elzamtar at first agreed that it was his practice to obtain a written loan agreement for the loans he made to BIC. This was because of the need to protect himself if the office-bearers of BIC changed. Counsel put to Mr Elzamtar that there was never any oral loan agreement in July 2008, but the answers were non-responsive. The following exchange then occurred: Q. I'm going to suggest to you that there was only one loan of $8,000 in July 2008. A. INTERPRETER: From 2003 to 2008 I gave them more than six or seven loans. There is a loan in here which I have in here that's - I've lost it altogether. Yeah, that was a loan they took the first day - the first day 14,000, and the next day another 14,000, and I've lost it. That's the signature, Abdul Mumin [Bhuiyan] and Fakhruddin [Chowdhury].
9. I am not satisfied that there were two loans made within two days of each other for the same amount as Mr Elzamtar claims. On his own account, Mr Elzamtar had only been prepared to advance $8,000 at the time. The absence of a second standard form loan agreement is telling. I am not satisfied that the account in loan 3 of Mr Elzamtar's affidavit is reliable, and by the end of the cross-examination I was not sure that Mr Elzamtar was still adhering to it. I think it is more probable that Mr Elzamtar reconstructed what appears in his affidavit, perhaps on the basis of some other loan transaction. I reject the claim for loan 4.

Conclusions and orders

1. I have concluded that: 1. Mr Elzamtar is entitled to judgment on his claim for reimbursement of building costs in the sum of $172,652, together with statutory interest; 2. Mr Elzamtar is entitled to judgment on his claim for repayment of loan 3 in the sum of $8,000, together with statutory interest; 3. Mr Elzamtar fails in his claims for repayment of loans 1, 2, 4 and 5.
2. It will be necessary to calculate interest on the judgments in favour of Mr Elzamtar. The parties also agreed that I should defer dealing with costs until I had delivered my judgment on liability issues. I will direct Mr Elzamtar to bring in a minute of order to give effect to my judgment. That minute should also deal with the costs of the proceedings. Any dispute can be the subject of further argument.
3. The orders of the Court are: 1. Adjourn the proceedings for 7 days or such other period as may be arranged with my Associate. 2. Direct that the plaintiff consult with the defendant and, not less than 2 days before the adjourned hearing, submit a minute of order giving effect to my judgment, and dealing with the costs of the proceedings.

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