Haiyong Su v 5 Blackman Cres Macquarie Pty Ltd [2026] NSWSC 875 | Case summary

Haiyong Su v 5 Blackman Cres Macquarie Pty Ltd [2026] NSWSC 875 | Case summary | Zoe

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-07-23

Before

McGrath J

Catchwords

PRACTICE AND PROCEDURE – pleadings – matters raised in oral and written submissions that were not pleaded in the defence by the defendant – the plaintiff took issue with unpleaded matters being raised – HELD – the defendant is not permitted to raise unpleaded matters that are likely to surprise and cause prejudice to the plaintiff CORPORATIONS – entitlement to make certain assumptions in relation to dealings with company – whether the defendant was bound by the agreement entered into by its sole director and secretary – HELD – defendant company bound by the agreement entered into by its sole director and secretary MORTGAGES AND SECURITIES – mortgagee’s duties, rights and remedies – mortgagee’s entitlement to recover the costs of enforcing its rights at common law and under contract – whether mortgagee disentitled to amount for enforcement costs – HELD – mortgagee cannot recover costs which were not proved to have been incurred – mortgagee otherwise disentitled to amount for enforcement costs incurred unnecessarily and unreasonably ESTOPPEL – Anshun estoppel – basis on which the plaintiff sought to recover enforcement costs in these proceedings so connected to the subject matter of earlier proceedings in the Supreme Court of the Australian Capital Territory to make it unreasonable for the plaintiff not to have been made or raised it in those proceedings – high risk of conflicting judgments – HELD – elements of Anshun estoppel satisfied CONTRACTS – construction – penalties doctrine – whether interest rate increase triggered upon default constituted a penalty – HELD – default interest rate out of proportion to the lender’s interest sought to be protected – interest at default interest rate an unenforceable penalty EQUITY – fiduciary duties – breach – whether second cross-defendant obtained funds in breach of either limb of Barnes v Addy – HELD – funds cannot constitute trust property where the recipient is independently entitled to them

Source

Original judgment source is linked above.

Catchwords

PRACTICE AND PROCEDURE – pleadings – matters raised in oral and written submissions that were not pleaded in the defence by the defendant – the plaintiff took issue with unpleaded matters being raised – HELD – the defendant is not permitted to raise unpleaded matters that are likely to surprise and cause prejudice to the plaintiff CORPORATIONS – entitlement to make certain assumptions in relation to dealings with company – whether the defendant was bound by the agreement entered into by its sole director and secretary – HELD – defendant company bound by the agreement entered into by its sole director and secretary MORTGAGES AND SECURITIES – mortgagee’s duties, rights and remedies – mortgagee’s entitlement to recover the costs of enforcing its rights at common law and under contract – whether mortgagee disentitled to amount for enforcement costs – HELD – mortgagee cannot recover costs which were not proved to have been incurred – mortgagee otherwise disentitled to amount for enforcement costs incurred unnecessarily and unreasonably ESTOPPEL – Anshun estoppel – basis on which the plaintiff sought to recover enforcement costs in these proceedings so connected to the subject matter of earlier proceedings in the Supreme Court of the Australian Capital Territory to make it unreasonable for the plaintiff not to have been made or raised it in those proceedings – high risk of conflicting judgments – HELD – elements of Anshun estoppel satisfied CONTRACTS – construction – penalties doctrine – whether interest rate increase triggered upon default constituted a penalty – HELD – default interest rate out of proportion to the lender’s interest sought to be protected – interest at default interest rate an unenforceable penalty EQUITY – fiduciary duties – breach – whether second cross-defendant obtained funds in breach of either limb of Barnes v Addy – HELD – funds cannot constitute trust property where the recipient is independently entitled to them

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Haiyong Su v 5 Blackman Cres Macquarie Pty Ltd [2026] NSWSC 875

Hearing dates: 30 March 2026, 1 April 2026

Date of orders: 23 July 2026

Decision date: 23 July 2026

Jurisdiction: Equity

Before: McGrath J

Decision: See [283]–[285]

Catchwords: PRACTICE AND PROCEDURE – pleadings – matters raised in oral and written submissions that were not pleaded in the defence by the defendant – the plaintiff took issue with unpleaded matters being raised – HELD – the defendant is not permitted to raise unpleaded matters that are likely to surprise and cause prejudice to the plaintiff
CORPORATIONS – entitlement to make certain assumptions in relation to dealings with company – whether the defendant was bound by the agreement entered into by its sole director and secretary – HELD – defendant company bound by the agreement entered into by its sole director and secretary
MORTGAGES AND SECURITIES – mortgagee’s duties, rights and remedies – mortgagee’s entitlement to recover the costs of enforcing its rights at common law and under contract – whether mortgagee disentitled to amount for enforcement costs – HELD – mortgagee cannot recover costs which were not proved to have been incurred – mortgagee otherwise disentitled to amount for enforcement costs incurred unnecessarily and unreasonably
ESTOPPEL – Anshun estoppel – basis on which the plaintiff sought to recover enforcement costs in these proceedings so connected to the subject matter of earlier proceedings in the Supreme Court of the Australian Capital Territory to make it unreasonable for the plaintiff not to have been made or raised it in those proceedings – high risk of conflicting judgments – HELD – elements of Anshun estoppel satisfied
CONTRACTS – construction – penalties doctrine – whether interest rate increase triggered upon default constituted a penalty – HELD – default interest rate out of proportion to the lender’s interest sought to be protected – interest at default interest rate an unenforceable penalty
EQUITY – fiduciary duties – breach – whether second cross-defendant obtained funds in breach of either limb of Barnes v Addy – HELD – funds cannot constitute trust property where the recipient is independently entitled to them

Parties

Applicant/Plaintiff:

Haiyong Su

Respondent/Defendant:

5 Blackman Cres Macquarie Pty Ltd

Legislation Cited (9)

Cited:** Corporations Act 2001(Cth)

Corporations Act 2001(Cth)

Court Act 1975(NSW)

Law Reform (Miscellaneous Provisions) Act 1946(NSW)

Procedure Rules 2006

Procedures Rules 2006

Court Act 1981

Review Act 1980

Reform (Miscellaneous Provisions) Act 1946

Cases Cited (104)

[2024] NSWCA 91

[2006] NSWCA 33

Cases Cited: AIG Australia Ltd v Hanna [2024] NSWCA 91
Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33
Armagas Ltd v Mondogas SA [1986] AC 717; 2 All ER 385
Atlanta Building Pty Ltd v Abela [2026] NSWCA 126
B&G Properties Pty Limited v Fayad [2021] NSWSC 1382
Bay Bon Investments Pty Ltd v Selvarajah [2008] NSWSC 1251
Bell v Hartnett Lawyers (No 2) [2021] NSWSC 1270
Bellas v Powers [2023] NSWSC 1198
Biggin & Co Ltd v Permanite Ltd [1950] 2 All ER 859; [1951] 1 KB 422
Bryant v Quinn [2022] NSWCA 163
Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295
Commissioner of Taxation v Normandy Finance and Investments Asia Pty Ltd [2016] FCAFC 180
Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184
Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising Co (1975) 133 CLR 72; 7 ALR 527; 50 ALJR 203
Crescent Capital Ltd as trustee for the Rockdale Central Security Trust v Chanine [2026] NSWSC 371
Creswick v Coast RV Pty Ltd [2013] NSWSC 1078
CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121
Damm v Coastwide Site Services Pty Ltd [2017] NSWSC 1361
Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70
Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
FAL Healthy Beverages Pty Ltd v Manly Warringah Sea Eagles Ltd [2016] NSWSC 1058
Fayad v B&G Properties Pty Ltd [2022] NSWCA 129
Financialstrategy.com.au Pty Ltd (in liq) v Bailey Roberts Group Pty Limited (in liq) [2026] NSWCA 74
First Cash Flow Solutions Pty Ltd v Saad [2023] NSWSC 686
Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480; 1 All ER 630
Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) [1993] Ch 171
Hely-Hutchinson v Brayhead Ltd (1986) 1 QB 529; [1967] 2 All ER 14
Henderson-Smart v Quality Blow Moulders Pty Ltd (2010) 25 VR 724
JCP Holdings Pty Ltd v Ulrich Pty Ltd [2025] NSWSC 911
Kyabram Property Investments Pty Ltd v Murray [2005] NSWCA 87
Laszczuk v Bendigo & Adelaide Bank Ltd (2020) 61 VR 1; [2020] VSCA 17
Laundy Hotels (Quarry) Pty Ltd v Dyco Hotels Pty Ltd (2023) 276 CLR 500; [2023] HCA 6
Left Bank Investments Pty Ltd v Ngunya Jarjum Aboriginal Corp [2020] NSWCA 144
Leonard v Booth (1954) 91 CLR 454; [1954] HCA 64
Morley v Boothby (1825) 3 Bing 107; 130 ER 455
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
Nashco Pty Ltd v Yang [2022] NSWCA 137
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146; 94 ALR 385; [1900] HCA 32
Ohn v Walton (1995) 36 NSWLR 77
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35
Panorama Developments (Guildford) Ltd v Fidelis Furnishing Fabrics Ltd [1971] 2 QB 711; [1971] 3 All ER 16
Perpetual Trustees Australia Ltd & Ors v Barker [2004] SASC 58
Pinnel’s Case (1602) 5 Co Rep 117; (1602) 77 ER 237
Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768; [2003] HCA 10
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Rava v Logan Wines Pty Ltd [2007] NSWCA 62
Reid Murray Holdings Ltd (in liq) v David Murray Holdings Pty Ltd (1972) 5 SASR 386
Rinehart v Hancock Prospecting Pty Ltd (2019) 267 CLR 514; [2019] HCA 13
Southwick v Moore Stephens Melbourne Pty Ltd [2008] VSCA 164
Spicer v Hayward (1700) Prec Ch 114; 24 ER 55
State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133
Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28

These debt recovery proceedings are brought by the plaintiff/first cross-defendant, Haiyong Su (also known as Henry Su), as lender against the defendant/cross-claimant, 5 Blackman Cres Macquarie Pty Ltd, as borrower in respect of a secured short-term loan of $100,000 contained in a deed made on 6 May 2019 (Deed of Loan) between Mr Su, 5 Blackman and the third cross-defendant, Fadi Nihad Kamal, also as borrower.
The second cross-defendant, Danny Noumeir, was the sole director and secretary of 5 Blackman when it was registered and at the time of the entry into the Deed of Loan. The security provided in respect of the loan from Mr Su to 5 Blackman and Mr Kamal took the form of a personal guarantee from Mr Noumeir, as well as mortgages over real property owned by 5 Blackman.
The loan term of three months was originally set to expire on 8 August 2019. 5 Blackman sought various extensions, but ultimately defaulted on repayment, leaving the parties in dispute, now some seven years later. The amount that Mr Su seeks to recover from 5 Blackman in these proceedings has now swollen from $100,000 to as much as $1,394,093.13 (on one permutation) as a result of 5 Blackman failing to repay the loan. This is because Mr Su claims to be entitled to recover the principal amount of the loan as well interest accruing at 3% per month (i.e. 36% per annum, compounding) and the legal costs arising out of the various enforcement measures taken by him.
5 Blackman brought a cross-claim against Mr Su, Mr Noumeir and Mr Kamal seeking to set aside the Deed of Loan and the mortgages granted by 5 Blackman as unenforceable by Mr Su and also recover equitable compensation from:
Mr Noumeir on the alleged basis that he breached fiduciary duties owed as a director to 5 Blackman by causing 5 Blackman to enter into the Deed of Loan and the mortgages; and
Mr Kamal on the alleged basis that he knowingly received trust property.
At the commencement of the trial, Mr Noumeir submitted to judgment on the cross-claim against him. Accordingly, on 30 March 2026, I made orders by consent in the following terms:

Mr Kamal appeared in these proceedings and was self-represented.
The following four issues arise for determination:
Whether Mr Noumeir was able to bind 5 Blackman by executing the Deed of Loan on 6 May 2019, so that the Deed of Loan is enforceable against 5 Blackman.
Whether Mr Su is entitled to recover the cost of the enforcement measures taken by him under the terms of the Deed of Loan.
Whether Mr Su is entitled to charge the default rates of interest compounding monthly as specified in the Deed of Loan or whether they are unenforceable as a penalty.
Whether 5 Blackman is entitled to equitable compensation from Mr Kamal as a result of his alleged knowing receipt of trust property.
For the reasons set out below, in respect of each of these four issues I have made the following determinations:
The Deed of Loan is binding and enforceable against 5 Blackman.
Mr Su has failed to substantiate many of the costs he asserts that he incurred in seeking to enforce the Deed of Loan and the mortgages against 5 Blackman. For those enforcement costs which Mr Su is able to substantiate, he cannot recover them from 5 Blackman because they were unnecessarily and unreasonably incurred in earlier proceedings in the Supreme Court of the Australian Capital Territory (ACT Supreme Court) which were dismissed. Further, Mr Su is subject to an Anshun estoppel that prevents him from seeking to recover costs he was ordered to pay 5 Blackman by the ACT Supreme Court in those proceedings.
The default rates of interest which compound monthly under the Deed of Loan are unenforceable against 5 Blackman as a penalty.
5 Blackman has failed to prove that Mr Kamal knowingly received trust property and therefore the cross-claim against him should be dismissed.
The consequence of these determinations is that Mr Su’s claim that the amount of the debt owing to him by 5 Blackman as at 9 March 2026 was as high as $1,394,093.13 is considerably overstated. The actual amount of the debt owing as at that date was the vastly lesser amount of $53,775.15.

The claims brought by Mr Su are contained in the amended statement of claim filed 7 June 2023 (ASOC). In essence, the debt owing to Mr Su alleged to be outstanding as at 17 May 2023 was $475,349.13, calculated as the total of the principal amount of $100,000, interest at 3% per month and legal costs, less a repayment made by Mr Kamal of $100,000. By the time of the trial, the total amounts of the interest and the legal costs were considerably higher. The parties agreed on a set of calculations of the amount owing to Mr Su as at 9 March 2026 based on different scenarios which depended on the determinations I made on the issues in dispute (T47).
The responses of 5 Blackman to the claims made in the ASOC are contained in the defence to the ASOC filed 23 June 2023 (Defence to ASOC). Unusually, at the trial many of the factual allegations contained in the Defence to ASOC were accepted by Mr Su as facts relied upon by him in support of the allegations in the ASOC, even though evidence was not provided by either party to support them. Mr Su recited many of those facts in the Plaintiff’s Chronology dated 17 March 2026, which I have taken to be facts admitted by him.
In summary, the following matters are pleaded in the Defence to ASOC:
Mr Noumeir breached the fiduciary duties he owed to 5 Blackman as part of a dishonest and fraudulent design by entering into the Deed of Loan and the mortgages and permitting the drawdown of the $100,000 loan so that the Deed of Loan and mortgages cannot be enforced against 5 Blackman ([37]–[40]; [52]–[59]; [61]–[68]).
The terms of the Deed of Loan providing for the default interest rate of 3% are void and unenforceable as a penalty ([60]).
5 Blackman is not liable to pay or reimburse Mr Su for legal costs incurred in the attempted enforcement of the Deed of Loan ([72]–[74]).
The Defence to ASOC also contains allegations which ultimately became part of the cross-claim made by 5 Blackman, which I have dealt with in more detail below.
The cross-claim of 5 Blackman was filed on 31 January 2024 (Cross-Claim). The Cross-Claim contains allegations that Mr Noumeir breached the fiduciary duties he owed to 5 Blackman as part of a dishonest and fraudulent design by entering into the Deed of Loan and the mortgages, and by permitting the drawdown of the $100,000 loan such that the Deed of Loan and the mortgages cannot be enforced against 5 Blackman ([5]–[38]). The Cross-Claim also contains allegations that Mr Kamal knowingly received trust property in the form of the loan funds ([39]–[40]). Consequently, 5 Blackman seeks a declaration that the Deed of Loan and the mortgages are unenforceable against it ([54]) and orders for equitable compensation or an account against each of Mr Noumeir and Mr Kamal ([55]).
On 24 July 2024, Mr Kamal filed his defence to the Cross-Claim (Kamal Defence to Cross-Claim).
On 26 March 2025, Mr Su filed his defence to the Cross-Claim (Su Defence to Cross-Claim).
The Kamal Defence to Cross-Claim and the Su Defence to Cross-Claim each contain a mixture of denials, “does not know and cannot admit” and “does not plead” responses and minor admissions to the allegations made against them. The central allegations made in the Cross-Claim are contested in each of the Kamal Defence to Cross-Claim and the Su Defence to Cross-Claim.
As I have mentioned above, Mr Noumeir submitted to judgment against him on the Cross-Claim.

In October 2018, Mr Su met Mr Noumeir through their church (T28).
In 2019, Mr Kamal was the sole director and shareholder of Avava Tiling Pty Ltd, which provides building, tiling and renovation services. At that time, Mr Noumeir operated a company called Quantum Tiles Pty Ltd which owed money to Avava for outstanding invoices.
In or around April 2019, Mr Kamal and Mr Noumeir had a conversation about the amounts owed for outstanding invoices by Quantum Tiles to Avava totalling more than $340,000. During the conversation:
Mr Kamal asked Mr Noumeir to pay the outstanding invoices because Mr Kamal had done the work, was in a difficult financial situation and needed to pay his workers;
Mr Noumeir said he was struggling financially, the only way he could pay Mr Kamal was if he borrowed money and, with Mr Kamal’s assistance as another borrower and security provider, he could borrow $100,000 from Mr Su and give it all to Mr Kamal;
Mr Kamal said that he wanted to get paid by Mr Noumeir and he did not want to borrow any money or mortgage his house;
Mr Noumeir assured Mr Kamal that he did not have to worry as Mr Noumeir could “service a loan of $100,000 without any problem”, would repay the loan and that Mr Kamal would incur “no risk”; and
Mr Kamal agreed that he would be a borrower but Mr Noumeir needed to make sure that he repaid the loan.
In around the middle of April 2019, Mr Noumeir approached Mr Su and said that he would introduce a client who intends to obtain a loan.
Later that day, Mr Su, Mr Noumeir and Mr Kamal met at Rashays restaurant in Liverpool for lunch and discussed the loan, including the principal and interest rate. During their conversation, Mr Noumeir said that Mr Kamal wanted to borrow some money for his business. Mr Su asked how much Mr Kamal wanted to borrow and what was the purpose of it. In response Mr Kamal said he wanted to borrow $100,000 for the development of a property in Lurnea. Mr Su said he needed a property to secure the loan and Mr Kamal replied that he had a property located in Casula, New South Wales (Casula Property) worth around $500,000, on which there was a mortgage to Westpac of around $300,000. Mr Kamal then provided his driver’s license for Mr Su to photograph to formally identify him.
Mr Kamal gave a different version of this meeting and suggested that it happened on about 2 or 3 May 2019. Mr Su denied Mr Kamal’s recollection of the meeting. I accept Mr Su’s version of the meeting, including the timing of it, as it is more plausible than the evidence provided by Mr Kamal, which suggested that Mr Noumeir said he was to be the borrower of the loan and would pay the proceeds to Mr Kamal.
A few days later, at Mr Su’s request, Mr Kamal showed him his Westpac mortgage accounts on his mobile banking application. Mr Su noticed that there was not only the Westpac mortgage of $300,000 on the Casula Property but also another mortgage secured over the Casula Property for about $80,000. Mr Su told Mr Kamal that with two mortgages the net proceeds of the Casula Property would not be enough to secure the loan. Mr Su told Mr Kamal that he could not proceed with the loan.
In mid-April 2019, Mr Su telephoned Mr Noumeir to inform him that Mr Kamal did not have sufficient security for the loan and he could not proceed with it. Mr Noumeir said that he had a property in the ACT which could provide additional security for the loan. Mr Su asked Mr Noumeir why he would do that and Mr Noumeir responded that he and Mr Kamal “are brothers” and that they do “business together”. Mr Noumeir told Mr Su that his property was the 3 Blackman Property. Mr Su said the loan should be acceptable if there were two properties securing it.
On 22 April 2019, Mr Su issued a letter of offer in which Mr Su offered to lend $100,000 to Mr Noumeir and Mr Kamal for the purpose of settling a development site in Lurnea (Letter of Offer).
In about the end of April 2019, Mr Mingbo Wang (Mr Su’s then solicitor) telephoned Mr Su and told him that he had conducted a title search for the 3 Blackman Property, found that it was registered in the name of 5 Blackman, and then conducted a company search of 5 Blackman, which confirmed that Mr Noumeir was the sole director of it. Mr Wang also said that the only shareholder of 5 Blackman was D**.A.**D Noumeir Pty Ltd and a company search of it had confirmed that Mr Noumeir was the sole director, secretary and shareholder of D.A.D Noumeir. Mr Wang told Mr Su that as the 3 Blackman Property to be used for security for the loan was registered in the name of 5 Blackman, the borrower of the loan should be 5 Blackman and not Mr Noumeir personally. Mr Su responded that he would check whether that change was suitable to Mr Noumeir.
Mr Su then telephoned Mr Noumeir to inform him that he had been told by Mr Wang that the 3 Blackman Property (which was to be used as security for the loan) was registered in the name of 5 Blackman. Mr Noumeir responded that this was correct, 5 Blackman was his company and he was its director. Mr Su also said to Mr Noumeir that Mr Wang told him that the sole shareholder of 5 Blackman was D.A.D Noumeir, which Mr Noumeir confirmed as his company. Mr Su asked Mr Noumeir whether he would agree to change the borrower of the loan from his personal name to the company’s name given that the 3 Blackman Property was registered in the name of 5 Blackman. Mr Noumeir agreed to this change.
In cross-examination, Mr Su adhered to the essence of his evidence about these respective conversations with Mr Wang and Mr Noumeir (T22–23).

On 6 May 2019, Mr Su, Mr Kamal and 5 Blackman entered into the Deed of Loan.
Mr Noumeir signed the Deed of Loan stating it to be pursuant to s 127 of the Corporations Act 2001 (Cth) and in his capacity as the sole director and secretary of 5 Blackman. Mr Su believed that in signing the Deed of Loan, Mr Noumeir was acting on behalf of 5 Blackman (T21).
In cross-examination, it was accepted by Mr Su that the reason 5 Blackman was the borrower under the Deed of Loan (and not Mr Noumeir himself) was because the 3 Blackman Property was owned by 5 Blackman and not by Mr Noumeir in his personal capacity (T23).
Mr Kamal also signed the Deed of Loan. Mr Kamal gave evidence that on about 7 May 2019, Mr Noumeir took him to his solicitor, George Anagnostellis of Citywide Legal in Mortlake, to sign documents in relation to the loan from Mr Su, stating that he remembers that date because it was written on the documents that he signed and he did not have a specific recollection of the date. Mr Kamal said that he did not read the documents because of his basic English language skills and that they were not explained to him before he signed them but he knew that the documents were about a loan from Mr Su in the amount of $100,000 and that Mr Kamal was a borrower. Mr Kamal also said that as far as he knew, Mr Noumeir was borrowing the money with him and he did not know that any company was a borrower.
The Letter of Offer indicates that it was signed by Mr Noumeir and Mr Kamal on 7 May 2019.
The Deed of Loan contains the date 6 May 2019 and not 7 May 2019 and the name of 5 Blackman clearly appears as a borrower together with Mr Kamal in the Deed of Loan. I find that Mr Kamal must have known that 5 Blackman was a borrower, not Mr Noumeir. In any event, nothing turns on the difference between those dates or Mr Kamal’s knowledge of 5 Blackman as a borrower because Mr Kamal has made no claim to have the Deed of Loan set aside on any basis.
In summary, pursuant to the terms of the Deed of Loan, which are set out in detail below, Mr Kamal and 5 Blackman were obliged to repay the loan of $100,000, together with interest and costs, to Mr Su by no later than 7 August 2019.
The recital in the Deed of Loan states:

Pursuant to cll 4.1 and 4.2 of the Deed of Loan, interest is “calculated on the Principal Outstanding” at either the Interest Rate (being 3% per month, which applies if there has been an Event of Default) or the Discount Interest Rate (being 2% per month, which applies if there has been no Event of Default). The “Principal Outstanding” is defined as including “any Money Owing”. “Money Owing” is defined broadly to capture “all money which the Borrower is or at any time may become actually or contingently liable to pay to or for the account of the Lender for any reason whatever under or in connection with this Deed” and includes “money by way of principal, interest, fees (including legal fees to enforce this Deed), costs, indemnity, charges …”. Accordingly, it is clear that under the terms of the Deed of Loan, interest is calculated on the principal and any and all moneys owing (including interest already accrued) as at the date of calculation.
By this means, interest accruing under the Deed of Loan compounds monthly because interest is not only calculated on the Principal Sum (i.e., simple interest) but on the Principal Sum and all the interest accrued to date (i.e., compound interest).
The Initial Interest Payment (defined as “Three (3) months interest calculated on the Principal Sum at the Discount Interest Rate”) is in simple interest (i.e., 2% x $100,000 = $2,000 for each month of the first three months = $6,000). However, pursuant to cll 4.3.1 and 4.3.2 of the Deed of Loan, the interest owed for those three months is nonetheless compounding:
“Initial Interest Payment shall be deducted from the Principle [sic] Sum before the Lender advance the Principle [sic] Sum to the Borrower” (cl 4.3.1); and
the “Difference between the Initial Interest Payment and the amount of Interest payable in accordance with clause 4.1 or 4.2 shall be paid on the Repayment Date” (cl 4.3.2).
Clause 5.1 of the Deed of Loan is titled “Repayment and Prepayments” and provides:

On 8 August 2019, after the original Repayment Date of 7 August 2019, Mr Su agreed with Mr Noumeir and Mr Kamal to extend the Repayment Date under the Deed of Loan by one month. This had the effect that the interest payable remained at the Discount Interest Rate of 2% per month until 8 September 2019.
On 22 August 2019, Mr Su sent an email to Mr Kamal and Mr Noumeir confirming that he had received an interest payment on 9 August 2019 of $1,000 in cash and an interest payment of $1,000 by electronic funds transfer on 14 August 2019 for the period from 8 August 2019 to 7 September 2019. Mr Su also stated that the Deed of Loan, including the extension period, would expire on 8 September 2019 and that full repayment of the Principal Sum of $100,000 would need to be made by 8 September 2019.
On 4 September 2019, Mr Su sent an email to Mr Kamal and Mr Noumeir again stating that the Deed of Loan, including the extension period, would expire on 8 September 2019 and that full repayment of the Principal Sum of $100,000 would need to be made by 8 September 2019. On the same day, Mr Noumeir replied by email to Mr Su requesting a further extension of three months (until 8 December 2019) with interest payable “at [the] normal rate”.
On 15 October 2019, Mr Su sent an email to Mr Kamal and Mr Noumeir confirming that he had received an interest payment of $2,000 in cash on 11 October 2019 for the period from 8 October 2019 to 7 November 2019. Mr Su also stated that the Deed of Loan, including the extension period, had expired on 8 September 2019 and interest in the default period would be charged at the Interest Rate of 3% per month, which was $3,000 per month.
On 17 November 2019, Mr Su sent an email to Mr Kamal and Mr Noumeir confirming that he had received an interest payment of $1,000 in cash on 8 November 2019 and an interest payment of $1,000 in cash on 16 November 2019 for the period from 8 November 2019 to 7 December 2019. Mr Su also stated that the Deed of Loan, including the extension period, had expired on 8 September 2019 and interest in the default period would be charged at the Interest Rate of 3% per month, which was $3,000 per month.
On 20 December 2019, Mr Su sent an email to Mr Kamal and Mr Noumeir confirming that he had received an interest payment of $1,000 in cash on 19 November 2019 and an interest payment of $1,000 by authorised cash withdrawal on 19 November 2019 for the period from 8 December 2019 to 7 January 2020. Mr Su also stated that the Deed of Loan, including the extension period, had expired on 8 September 2019 and interest in the default period would be charged at the Interest Rate of 3% per month, which was $3,000 per month.
In mid and late 2019, Mr Kamal recalls being sent by Mr Noumeir to meet Mr Su on at least two occasions to give him $2,000 in cash. Mr Kamal recalled doing this once in Leichardt and on another occasion in Liverpool.
On 11 January 2020, Mr Su sent an email to Mr Kamal and Mr Noumeir confirming that he had received an interest payment of $2,000 by authorised cash withdrawal on 10 January 2020 for the period from 8 January 2020 to 7 February 2020. Mr Su also stated that the Deed of Loan, including the extension period, had expired on 8 September 2019 and interest in the default period would be charged at the Interest Rate of 3% per month, which was $3,000 per month.
On 12 February 2020, Mr Su sent an email to Mr Kamal and Mr Noumeir confirming that he had received an interest payment of $1,000 in cash on 10 February 2020 and an interest payment of $1,000 in cash on 12 February 2020 for the period from 8 February 2020 to 7 March 2020. Mr Su stated that the “grace period for 2% Discount Interest Rate” finished on 8 February 2020 and a “3% Interest Rate per month is to be charged since 08/03/2020 for the rest of money owing period”. Mr Su also said that the Deed of Loan, had expired on 8 September 2019, including the extension period, and “[y]ou need to make a full repay the Principal amount of $100k immediately”.

5 Blackman made additional allegations in both oral and written submissions which are not contained in the Defence to ASOC. Applying the principles in Crescent Capital and Bryant, I do not permit any of these additional allegations to be raised now in light of the fact that none of them were pleaded, they come as a surprise to Mr Su and cause prejudice to Mr Su in having to meet them.
The unpleaded allegations which I do not permit 5 Blackman to raise are the following arguments:
Mr Su has already received the full benefit of payments, funds and orders of the ACT Supreme Court, including money sitting in trust for him and default judgment (as well as payments under guarantees and mortgages against Mr Noumeir and Mr Kamal) and, therefore, Mr Su’s claim is fully extinguished and that to find otherwise would enable Mr Su to “double dip”. In any event, I agree with Mr Su’s submission that none of these amounts received are referable to the moneys owed under the Deed of Loan, and to the extent they are referable, they do not extinguish the debt owed under the Deed of Loan until those funds are received (T6; T60). To date, Mr Su has not received any of the funds in respect of the ACT Default Judgment such that the obligations to repay the Deed of Loan have not yet been extinguished (T6; T60).
The Discount Interest Rate of 2% per month was a penalty and unenforceable as against 5 Blackman such that any interest ought to be calculated at court rates. 5 Blackman conceded that this point was not pleaded (T65).
The Deed of Loan and mortgages were unenforceable as against 5 Blackman for want of consideration because the entirety of the $100,000 loan was advanced to Mr Kamal and none of it was advanced to 5 Blackman. In any event, I agree with Mr Su’s submission that the Deed of Loan was a deed and accordingly no consideration beyond the execution of the deed was required (T6): Laszczuk v Bendigo & Adelaide Bank Ltd (2020) 61 VR 1; [2020] VSCA 17, Whelan, Hargrave and Emerton JJ at [38]–[42] citing Morley v Boothby (1825) 3 Bing 107; 130 ER 455, Best CJ at 456. See also Spicer v Hayward (1700) Prec Ch 114; 24 ER 55; Pinnel’s Case (1602) 5 Co Rep 117; (1602) 77 ER 237; Leonard v Booth (1954) 91 CLR 454; [1954] HCA 64 at 474; Reid Murray Holdings Ltd (in liq) v David Murray Holdings Pty Ltd (1972) 5 SASR 386.
Mr Su had an obligation to mitigate his loss and he failed to do so and is in breach of his obligation of good faith in attempting to enforce the Deed of Loan. In any event, I agree with Mr Su’s submission that it is not bad faith for Mr Su to insist on payment of amounts owing in accordance with the terms of the Deed of Loan (T60).
Mr Su conceded, or otherwise agreed, that Mr Kamal had repaid him the entirety of the principal owing under the Deed of Loan upon Mr Kamal transferring $100,000 into the trust account of Yingke Law Firm (T31). The contention that Mr Su conceded that the entirety of the amount owing under the Deed of Loan was repaid is based on a finding made in the ACT Dismissal Judgment at [58] (“it is apparent that the remaining claim is only for interest and costs (there being no dispute that the principal sum has been repaid to the applicant by a different defendant in the primary proceeding)”). I do not regard this “finding” in an interlocutory judgment of Loukas-Karlsson J as recording a concession by Mr Su that nothing was owing under the Deed of Loan and it certainly would be improper for me to regard it as a finding of fact based on different evidence to that which has been presented to me. In any event, I agree with Mr Su that it is clear that as at the date of the payment of $100,000 on 27 November 2020 by Mr Kamal, there was “Money Owing” to Mr Su under the Deed of Loan no matter which permutation of the calculations is taken to be correct (T59–60). In other words, even with the payment by Mr Kamal, at that time there was still money which was owed to Mr Su under the Deed of Loan. In addition, as there is no agreement between Mr Su and Mr Kamal forgiving the entirety of the debt owed under the Deed of Loan, 5 Blackman conceded (correctly, in my view) that there remained an amount owing under the Deed of Loan after payment of the $100,000 (T70).
5 Blackman’s positive defence advanced at the trial that the Deed of Loan was not in the best interests of 5 Blackman and Mr Noumeir was unable to bind 5 Blackman. It is unsurprising that this defence was not expressly pleaded considering its similarities to the defence in the ACT Proceedings and that the respective portions of the Defence to ASOC and the Cross-Claim which raised it were struck out. I do not allow this defence to be raised again when it has already been removed from the pleadings.

No common seal of 5 Blackman appears on the 3 Blackman Mortgage.
Without needing to consider the assumptions enumerated in s 129 of the Corporations Act, Mr Noumeir was plainly able to enter into the transaction documents with Mr Su on behalf of 5 Blackman. The authority to do so was provided by ss 198E(1) and 127(1)(c) of Corporations Act which give Mr Noumeir, as the sole director and sole company secretary of 5 Blackman at the relevant time, authority to execute the various transaction documents without the need for use of a common seal.
Relevantly, this is not a case where there is a dispute as to whether Mr Noumeir was the sole director, shareholder and company secretary of 5 Blackman at the relevant time, nor is it in dispute that the relevant transaction documents were executed by him. Accordingly, I agree with Mr Su that he does not rely, nor does he need to rely, on the statutory assumptions enumerated in s 129 of the Corporations Act (T7 and T48). By the operation of s 127(1)(c) of the Corporations Act, Mr Noumeir had the legal capacity to, and did, execute each of the Deed of Loan and the 3 Blackman Mortgage on behalf of 5 Blackman. This alone is sufficient to bind 5 Blackman to each of those documents as a matter of law: Creswick v Coast RV Pty Ltd [2013] NSWSC 1078, Beech-Jones J at [33].
If I am wrong about this conclusion and the s 129 assumptions are relevant, I reject 5 Blackman’s submission that, by operation of s 128(4) of the Corporations Act, Mr Su was disentitled because Mr Su was allegedly aware that Mr Noumeir was entering into the loan for personal reasons and in his personal capacity (T28–29). Contrary to how 5 Blackman put its submissions, the relevant inquiry under s 128(4) is whether Mr Su knew or suspected that the assumption sought to be relied upon – namely, the assumption that Mr Noumeir was the sole director and company secretary of 5 Blackman at the relevant time – was incorrect. 5 Blackman has not made any suggestion that there was any material that might put Mr Su on inquiry as to whether Mr Noumeir was the sole director and company secretary at the relevant time. Rather, that fact was not in dispute whatsoever.
The line of inquiry pursued in the cross-examination of Mr Su, including his awareness that the loan was being used for the settling of the development site of the Lurnea Property (which was not owned by 5 Blackman) and that the funds were going to Mr Kamal exclusively is irrelevant to the determination of whether s 128(4) disentitles Mr Su from relying on the assumptions in ss 129(2) and 129(5) of the Corporations Act*.* Those facts, if true, do not bear on whether Mr Su was put on inquiry as to the status of Mr Noumeir’s position within 5 Blackman nor whether the transaction documents were duly executed by 5 Blackman.
Accordingly, if I am wrong on the applicability of s 127 of the Corporations Act, then Mr Su was entitled to rely on the assumptions in ss 129(2) and 129(5) of the Corporations Act regarding Mr Noumeir’s status as the duly appointed sole director and sole secretary of 5 Blackman and that each of the Deed of Loan and the 3 Blackman Mortgage had been duly executed. Neither of those assumptions were displaced by the operation of s 128(4) of the Corporations Act.
As a result, both the Deed of Loan and the 3 Blackman Mortgage are enforceable against 5 Blackman.

Mr Su seeks to recover the costs he claims to have incurred in enforcing, or attempting to enforce, the Deed of Loan and the 3 Blackman Mortgage, either at common law or pursuant to the indemnity provisions in the Deed of Loan and the 3 Blackman Mortgage. The costs sought to be recovered are (T53):
Mr Su’s costs of the ACT Proceedings and the ACT Appeal Proceedings;
Mr Su’s liability for the costs orders made in 5 Blackman’s favour against him in the ACT Proceedings and the ACT Appeal Proceedings; and
Mr Su’s costs of these proceedings on an indemnity basis.
Mr Su argues that these enforcement costs form part of the “costs, charges and expenses” of Mr Su incurred “in connection with the … enforcement of any rights under or in relation to” the Deed of Loan or the 3 Blackman Mortgage that 5 Blackman is required to pay or reimburse under cl 12 of the Deed of Loan. Mr Su further argues that the enforcement costs are part of “any liability, loss, costs or expense caused or contributed to by …. the exercise or attempted exercise of any right by” Mr Su under the 3 Blackman Mortgage that 5 Blackman is required to indemnify under cl 19.1 of the 3 Blackman Mortgage. Mr Su also argues that these enforcement costs are payable on a “full solicitor and own client basis” by reason of cl 18.2 of the 3 Blackman Mortgage, which states that a reference to “costs and expenses” in the 3 Blackman Mortgage “includes, without limitation, legal costs and expenses on a full indemnity basis”.
Mr Su also submits that these categories of enforcement costs form part of the “Money Owing” as defined in cl 1.1 of the Deed of Loan. Mr Su also claims to be entitled to the interest that would accrue on those enforcement costs in accordance with cl 4 of the Deed of Loan.
In reply, 5 Blackman contends that:
Mr Su has failed to substantiate the costs that he said that he incurred in the ACT Proceedings and the ACT Appeal Proceedings;
Mr Su cannot claim costs in relation to the ACT Proceedings and the ACT Appeal Proceedings against 5 Blackman because 5 Blackman received costs orders in its favour against Mr Su;
any contractual clauses do not override the court’s discretion as to costs and the determinations made by the ACT Supreme Court; and
Mr Su is estopped from raising any dispute in respect of costs that have been the subject of any costs order made in the ACT Proceedings and the ACT Appeal Proceedings.

Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as “cause of action estoppel”. Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as “issue estoppel”. Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a “judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies”. The third form of estoppel is now most often referred to as “Anshun estoppel”, although it is still sometimes referred to as the “extended principle” in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a “true estoppel” and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.

Mr Su seeks to recover the alleged enforcement costs incurred by him in the ACT Proceedings and the ACT Appeal Proceedings under the general right of a mortgagee to cover such costs at common law and pursuant to the contractual indemnities contained within the Deed of Loan and the 3 Blackman Mortgage.
While Mr Su provided evidence by way of a certificate of determination of costs to prove that the amount of the assessed costs arising from Summer Lawyers acting for Mr Su in the ACT Proceedings was $205,820.06, Mr Su merely asserted that the costs incurred by him for the work done by Yingke Law Firm in acting in the ACT Proceedings were a total of $58,213.10 and the costs incurred by him for the work done by Yingke Law Firm in acting in the ACT Appeal Proceedings were a total of $67,771.87. No invoices to substantiate these amounts and the work alleged to have been undertaken by Yingke Law Firm were provided by Mr Su.
Where precise evidence is available, the court expects to have it and the degree of precision with which loss and damage is to be proved is proportionate to the proof reasonably available: Biggin & Co Ltd v Permanite Ltd [1950] 2 All ER 859; [1951] 1 KB 422, Devlin J at 438, approved in State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, Heydon JA at [72]. This is a case where Mr Su “has fallen short in adducing evidence of the kind that permits certainty and particularity, where such certainty was possible”: Atlanta Building Pty Ltd v Abela [2026] NSWCA 126, Ball JA (with whom Leeming and Free JJA agreed), citing Financialstrategy.com.au Pty Ltd (in liq) v Bailey Roberts Group Pty Limited (in liq) [2026] NSWCA 74 at [119], in turn citing Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768; [2003] HCA 10 at [38].
I consider that the only evidence of the costs which have been incurred by Mr Su in the ACT Proceedings is the amount of $205,820.06, as set out in the certificate of determination of costs. The evidence of what Mr Su has asserted as having been paid to Yingke Law Firm for the ACT Proceedings and the ACT Appeal Proceedings does not prove that those amounts have been incurred, does not prove the date on which they were incurred and does not prove to what those amounts relate. It is not sufficient for Mr Su to say that no objection was taken to the evidence of his assertion of those amounts and he was not cross-examined in relation to them. The evidence rises no higher than Mr Su’s assertion in circumstances in which it would be expected that Mr Su would have little difficulty in proving them by producing the relevant invoices. He has not done so, nor has he provided any explanation why he has not done so.
The normal manner in which a liability for the payment of legal costs arises for a client is by the receipt by the client of an invoice with a particular date and particular description of the services provided for a particular amount of money. There is no reason advanced as to why Mr Su has failed to provide evidence in the form of invoices from Yingke Law Firm to prove the amount of legal costs which he claims to have incurred in relation to the ACT Proceedings and the ACT Appeal Proceedings. There is no evidence before me to prove the costs incurred by Mr Su of the type I would expect.
Accordingly, I deny the recovery of the amounts of $58,213.10 and $67,771.87 in Mr Su’s claim for enforcement costs on the basis that they have not been proved by proper evidence. Only the amount of $205,820.06 has been substantiated.

As indicated above, Mr Su relies on cl 12 of the Deed of Loan and cl 19.1 of the 3 Blackman Mortgage to seek to recover the enforcement costs incurred.
Applying the principles regarding the general right of a mortgagee to recover enforcement costs as outlined above, such costs do not extend to the recovery of unnecessarily, improperly or unreasonably incurred costs or costs which are unnecessary, improper or unreasonable in amount. I can discern no intention in cl 12 of the Deed of Loan and cl 19.1(a) of the 3 Blackman Mortgage to require 5 Blackman to indemnify Mr Su against costs or expenses incurred unnecessarily, improperly or unreasonably.
As stated above, the only enforcement costs which have been substantiated by Mr Su are the assessed costs arising from Summer Lawyers acting for Mr Su in the ACT Proceedings for the total amount of $205,820.06. But those costs have been incurred in relation to an action which the ACT Supreme Court has now dismissed in the ACT Dismissal Judgment, which has been confirmed on appeal in the ACT Appeal Judgment. I consider those costs of Mr Su to be unnecessarily and unreasonably incurred because they were incurred in respect of a claim by Mr Su in the ACT Proceedings which the ACT Supreme Court has determined should be dismissed because Mr Su failed to appear in court when he was required, he delayed in sending the appropriate authorisations to obtain documents and he failed to provide reasons for his inability to obtain documents.
As a result, I consider that those costs are not recoverable by Mr Su under any general or contractual right he seeks to enforce against 5 Blackman. If it had been necessary for me to decide, for precisely the same reason I would also have found that the costs incurred by Mr Su in retaining Yingke Law Firm to act for him in the ACT Proceedings and the ACT Appeal Proceedings were also unnecessarily and unreasonably incurred and are not recoverable by Mr Su under any general or contractual right he seeks to enforce against 5 Blackman.
Mr Su suggests that it even if his non-compliance with the procedural requirements in the ACT Proceedings which led to the ACT Dismissal Judgment and the ACT Appeal Judgment was unreasonable, the costs incurred up to that point should be recoverable by him from 5 Blackman because it cannot be said that he was unreasonable in bringing the ACT Proceedings (T54). However, whether the attempted enforcement costs were reasonably incurred does not turn only on whether commencing the proceedings was reasonable, but rather whether the costs incurred by Mr Su in those proceedings were unnecessary or unreasonable. Self-evidently, they were.
Mr Su contends that his failure to subpoena Summer Lawyers (with whom he was in dispute) to obtain earlier drafts of the transaction documents to produce on discovery cannot be considered gross misconduct to preclude a mortgagee’s right to recovery (T54). I reject Mr Su’s submission that I am required to be satisfied that Mr Su’s efforts in the ACT Proceedings must amount to gross misconduct or gross negligence to preclude recovery (T54–55). The threshold is not so demanding. Rather, the right of recovery will be precluded where it can be demonstrated that the mortgagee acted unnecessarily or unreasonably in incurring the costs.
At the hearing before me, Mr Su sought to challenge the merits of the ACT Dismissal Judgment and ACT Appeal Judgment, suggesting that Mr Su’s case should not have been dismissed because he had no obligation to compel other persons to provide material to then discover (T54). Mr Su’s arguments on these points were completely misconceived. It is not appropriate for me to go behind either of the decisions in the ACT Supreme Court, which tell me all I need to know about Mr Su’s conduct so as to categorise his conduct of the ACT Proceedings generally. It is certainly not part of my role to consider or comment on the merits of either decision, despite Mr Su’s invitation that I do so.
As indicated above, the decision in Tarkington is not authority for the proposition that the adverse costs consequences of the dismissal of the ACT Proceedings and the dismissal of the ACT Appeal Proceedings are capable, as between these parties, of answering the description of costs incurred in an attempted enforcement. I also agree with 5 Blackman that Tarkington must be distinguished from the present case as Mr Su does not seek to recover the enforcement costs in unsuccessful proceedings against third parties, but rather against 5 Blackman, who has the benefit of numerous costs orders in the ACT Proceedings (T63). This is markedly different from the present case in which Mr Su contends that he has incurred substantial costs in the ACT Proceedings and the ACT Appeal Proceedings, which have led to the dismissal of the ACT Proceedings by reason of his failure to provide proper disclosure in a timely manner.
As a result, I consider that Mr Su cannot require 5 Blackman to pay the substantiated costs of $205,820.06 which he incurred in relation to the ACT Proceedings.

As observed by 5 Blackman, it was open to Mr Su to raise any arguments in respect of the making of the costs orders made against him in the ACT Proceedings and the ACT Appeal Proceedings respectively, both of which were proceedings against 5 Blackman (T64). Mr Su failed to do so, and he now wishes to side-step the payment of those costs orders by seeking an indemnity from 5 Blackman as costs incurred in the enforcement of the Deed of Loan and the 3 Blackman Mortgage.
Applying Tomlinson, I accept the submission of 5 Blackman that there is an Anshun estoppel which prevents Mr Su from relitigating against 5 Blackman the determination of costs by the ACT Supreme Court because the issue he now raises in these proceedings is so connected to the subject matter in the ACT Proceedings and the ACT Appeal Proceedings that it was unreasonable in the context of those proceedings for Mr Su not to have raised that issue in those proceedings as a basis for asserting that he was not liable for the costs he was ordered to pay in the ACT Proceedings and the ACT Appeal Proceedings.
Essentially, Mr Su has already been found to be liable for the costs of the ACT Proceedings and the ACT Appeal Proceedings and there is a high likelihood it would result in a conflicting judgment in these proceedings if 5 Blackman was found to be liable to pay those costs. To permit Mr Su to recover the costs of 5 Blackman he was ordered to pay in the ACT Proceedings and the ACT Appeal Proceedings would directly contradict with the orders made by McCallum CJ in the ACT Proceedings and by Loukas-Karlsson J in the ACT Appeal Proceedings. As explained above, the likelihood of conflicting judgments — in the sense that they appear to declare rights which are inconsistent in respect of the same issue — supports the existence of an Anshun estoppel.
I reject Mr Su’s submission that it would be unfair or impractical to suggest that the argument he now makes in these proceedings could have, and ought to have, been run before the ACT Supreme Court (T55–56). The mere fact that the validity and enforceability of the Deed of Loan and the 3 Blackman Mortgage were in dispute at that time did not preclude Mr Su from raising the submission that any costs incurred by him pursuant to an adverse costs order is recoverable under the Deed of Loan and the 3 Blackman Mortgage.
If I am wrong in my finding concerning the operation of the Anshun estoppel point, then the question arises as to whether Mr Su can recover the costs incurred by the orders of McCallum CJ in the ACT Proceedings and Loukas-Karlsson J in the ACT Appeal Proceedings pursuant to the mortgagee’s general right to the costs of attempted enforcement or under the provisions in the Deed of Loan and the 3 Blackman Mortgage.
Mr Su observed there are no authorities in which a party who has been unsuccessful in proceedings and has had an adverse costs order made against them but has nonetheless recovered the costs of enforcement and the adverse costs order against the other party to those proceedings (T53). I am not surprised because it involves any entirely novel proposition for which an obvious answer lies. For the same reasons as I have expressed above, I consider that the costs of the adverse costs order made against Mr Su would fall within the category of having been unnecessarily and unreasonably incurred by Mr Su if he sought to recover them from 5 Blackman having already been ordered to pay them to 5 Blackman. Any other result would be absurd.
The purpose of a costs order is to compensate the person in whose favour it is made and it is not to punish the person against whom the order is made: Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25, Kiefel CJ, Bell, Gageler, Keane and Nettle JJ at [25]; Ohn v Walton (1995) 36 NSWLR 77, Gleeson CJ at 79; Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33, Tobias J (with whom Santow JA agreed) at [34]. In Ohn at 77, Gleeson CJ noted that the test of whether to impose an order for costs against an unsuccessful party is not whether that party had done anything to warrant punishment, but rather, whether, in the circumstances, the other party should be compensated.
It is not inconsistent with this principle that costs orders also play an essential role in case management. Although not “punitive”, defaults in compliance with procedural directions will often merit a costs order because of the additional cost which the default occasions to the innocent party. This was recognised by the High Court of Australia in Sangare at [25]:

As a starting point, I must recognise that the penalty doctrine operates as an exception to the freedom of contract and “courts will not lightly invalidate a contractual provision for an agreed payment on the ground that it has the character of a punishment”: Paciocco v Australia & New Zealand Banking Group Ltd (2016) 258 CLR 525, Keane J at [220].
Neither party in this transaction appears to be a sophisticated commercial party, as Mr Su loaned funds in his personal capacity, he had met Mr Noumeir through his church, and Mr Kamal only came to be party to this transaction through his prior dealings with Mr Noumeir.
Mr Su raised an argument in opening submissions that the 3% interest rate cannot be characterised as “default interest” because the Deed of Loan designed the 2% rate as the “Discount Interest Rate” and the 3% rate as the “Interest Rate” (T5).
In my opinion, the nomenclature the parties assign to the different rates of interest are not determinative and cannot preclude the proper conclusion that an interest rate which increases from 2% to 3% upon the borrower defaulting under a loan agreement is a “default rate” in the sense necessary to engage the penalty doctrine. Any other conclusion would be contrary to the various decisions in which judicial officers have found that interest rates labelled as the ‘Discount Rate’ (or similar labels) were penalties: for example, JCP Holdings and Bellas v Powers [2023] NSWSC 1198.
I accept Mr Su’s submission that 5 Blackman bears the onus of demonstrating that the interest provision in the Deed of Loan is a penalty. However, I am of the opinion that this matter is akin to those in Bellas, First Cash Flow Solutions Pty Ltd v Saad [2023] NSWSC 686 and JCP Holdings where the Deed of Loan itself is evidence capable of establishing a sufficient basis for the court to find that a particular term is a penalty so as to cast an evidentiary burden on Mr Su to call evidence to explain why it is not: JPC Holdings at [89]; Bay Bon Investments Pty Ltd v Selvarajah [2008] NSWSC 1251, White J at [51].
In determining whether the default interest rate is an unenforceable penalty, I cannot consider the effect that the addition of various sums (including enforcement costs) which Mr Su claims should be added to Principal Outstanding would have on the increase in the interest owed.
The vastly different compounding operation of the interest provision under the terms of the Deed of Loan depending on which interest rate is applicable is best demonstrated in the table below which uses Mr Su’s two different calculations of the Principal Outstanding alleged to be payable by 5 Blackman to Mr Su as at 9 March 2026 under the Deed of Loan if the 3% Interest Rate is used or if the 2% Discount Interest Rate is used, excluding the enforcement costs claimed. Scenario A reflects the agreement under the Deed of Loan with interest accruing at 3% compounding monthly. Scenario B reflects the agreement under the Deed of Loan with interest accruing at 2% compounding monthly.

As is clear from these calculations, the monetary impact on 5 Blackman of compounding interest at 3% compared to compounding interest at 2% is nearly 350% greater.
I accept 5 Blackman’s submission that Mr Su failed to adduce any evidence that would satisfy me that the increased interest rate upon default is commercially justifiable as opposed to a punitive measure designed to incentivise compliance with the Deed of Loan (T10, T66).
It appears to me that cl 4.1 of the Deed of Loan had as its predominant purpose to punish the borrower for breach and, therefore, to compel performance. It was stipulated to operate in terrorem upon any default. It is not a genuine pre-calculation of the loss that Mr Su would suffer (or the pitfalls associated with the increased risk under the Deed of Loan) upon default.
In the context of this transaction, where Mr Su had security in the form of equitable mortgages over two properties (the 3 Blackman Property and the 5 Blackman Property) and his risk under the Deed of Loan did not materially increase upon Mr Kamal and Mr Noumeir’s default, there is no apparent justification for the default interest rate that might otherwise preclude the finding that it is a penalty.
In closing submissions, Mr Su directed my attention to two cases where this court has accepted and left undisturbed interest rates similar, or higher, than the interest rate in the instance case. Those two cases are:
In HomeSec Finance Express Pty Ltd v Richardson [2012] NSWSC 1375, in which Button J did not consider that a rate of simple interest of 12% per month (144% per annum) was either unjust or unconscionable.
In Guardian Mortgages Pty Ltd v Miller [2004] NSWSC 1236; (2004) 12 BPR 22,833, Wood CJ at CL did not consider that a rate of simple interest of 14.5% per month (174% per annum) was either unjust or unconscionable.
I reject Mr Su’s submissions that either of these cases provide any proper basis upon which I can decide the present case. Neither was a case about whether the interest rate was a penalty and instead were determinations about whether the interest rate was unjust or unconscionable. In addition, notably in both cases, the rate of interest was simple interest and the determinations reached turned on a lack of evidence on which to determine whether the rates were within the range for “very short term, high risk lending” (HomeSec at [156]) or “commercial bridging or short term loans” (Guardian at [105]). In HomeSec , Button J noted the absence of any evidence on which to determine that the default rate went “beyond what was reasonably necessary to protect the interests of the plaintiffs” (at [208]) and expressly held that “[i]f the plaintiffs had sought to enforce the contract on the basis of compound interest, I would have regarded that as not being reasonably necessary for the protection of the legitimate interests of the plaintiffs” (at [209]).
Further, the observations of Robb J in Arab Bank Australia Ltd v Sayde Developments Pty Ltd (2016) 93 NSWLR 231 at [94] confirm that these cases did not engage with the issue of whether a provision is a penalty which arises in the present case (emphasis added in bold):

5 Blackman filed the Cross-Claim on 31 January 2024. Regrettably, the submissions relating to the Cross-Claim were only brief and cursory in 5 Blackman’s oral and written submissions at the hearing.
The Cross-Claim was brought against Mr Su, Mr Noumeir and Mr Kamal. The crux of the allegations can be summarised as follows:
Mr Noumeir owed 5 Blackman fiduciary duties as its sole director pursuant to the Corporations Act and under the general law. Mr Noumeir breached his fiduciary duties by executing the Letter of Offer, the Deed of Loan, the 3 Blackman Mortgage and ancillary documents insofar as he permitted the drawdown of the loan as part of a dishonest and fraudulent design to use the properties owned by 5 Blackman as security for a purpose that caused a detriment to 5 Blackman, did not benefit 5 Blackman, exposed 5 Blackman to risk that Mr Su would seek to enforce its security over the properties and involved the use of Mr Noumeir’s position that was not within the purpose for which 5 Blackman had been formed and which transgressed ordinary standards of honest behaviour. On this basis, 5 Blackman seeks equitable compensation from Mr Noumeir.
Mr Kamal received trust property (i.e., the money under the Deed of Loan) with the knowledge that it had been obtained by Mr Noumeir in breach of his fiduciary duties owed to 5 Blackman. On this basis, 5 Blackman seeks equitable compensation from Mr Kamal.
The paragraphs of the Cross-Claim which alleged that Mr Su participated in or had knowledge of Mr Noumeir’s breach of his fiduciary duties were struck out by Hammerschlag CJ in Eq on 28 June 2025.
The only remaining allegations made against Mr Su was that the Deed of Loan and Mortgage were not enforceable because Mr Su obtained the rights under the Deed of Loan and the Mortgage in circumstances arising out of Mr Noumeir’s breach of fiduciary duty as part of the dishonest and fraudulent design which transgressed ordinary standards of honest behaviour. On this, Mr Su submitted that this has no substance and cannot intelligibly give rise to a defence insofar as the material facts (summarised at (3) above) that support the claim were struck out by Hammerschlag CJ in Eq (T5).
As explained above, Mr Noumeir has accepted judgment by consent against him. 5 Blackman contends that this means he accept judgment against him in terms of what has been pleaded against him (T71). The terms of orders made by consent state:

Haiyong Su v 5 Blackman Cres Macquarie Pty Ltd

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

Parties

Legislation Cited (9)

Cases Cited (104)

table of contents

Judgment

INTRODUCTION

CLAIMS, CROSS-CLAIM & DEFENCES

RELEVANT FACTS

5 Blackman, the 3 Blackman Property and the 5 Blackman Property

Dealings between Mr Su, Mr Noumeir and Mr Kamal before the Deed of Loan

6 May 2019: Deed of Loan

6 May 2019: Deed of Guarantee

7 May 2019: 3 Blackman Mortgage

8 – 9 May 2019: Drawdown of the loan under the Deed of Loan and payment to Mr Kamal

30 May 2019: Caveat lodged over 3 Blackman Property

August 2019 – February 2020: Extensions of repayment and payments of interest under the Deed of Loan

20 February 2020: Default notice sent to 5 Blackman and Mr Kamal and caveat lodged over Hoxton Park Property

March 2020: Refinancing effort

28 March 2020: Deregistration of 5 Blackman

31 March 2020: Caveat lodged over 5 Blackman Property

April 2020: Mr Su instructs Summer Lawyers to commence proceedings

May 2020: Further refinancing effort

20 June 2020: Commencement of the ACT Proceedings

21 July 2020: Mr Noumeir replaced by Mr Dimassy as director and secretary of 5 Blackman

17 September 2020: Amended claim in the ACT Proceedings

November 2020: Sale of Hoxton Park Property, removal of caveat and $100,000 payment by Mr Kamal

December 2020 – February 2021: Further progress of the ACT Proceedings

February – March 2021 – Dealings with $100,000 received by Yingke Law Firm

April 2021: Yingke Law Firm replace Summer Lawyers

Mid-2021: Discussion about failure to repay the loan

November 2021: Order to sell 3 Blackman Property and 5 Blackman Property

2022: Developments in the ACT Proceedings

September 2022: ACT Dismissal Judgment

September – November 2022: ACT Appeal Proceedings

November 2022 – February 2023: District Court Proceedings

November 2024 – February 2025: Sale of the Casula Property

Procedural history in this court

Costs incurred by Mr Su in the ACT Proceedings and the ACT Appeal Proceedings

Costs orders made in the ACT Proceedings

Further judgment in ACT Proceedings

UNPLEADED MATTERS

Legal principles

Consideration

ISSUE ONE: MR NOUMEIR’S ABILITY TO BIND 5 BLACKMAN

Legal principles

Consideration

ISSUE TWO: RECOVERY OF ENFORCEMENT COSTS

Legal principles

General right of mortgagee to enforcement costs

Recovery of enforcement costs under an agreement

Anshun estoppel

Consideration

Recovery of substantiated enforcement costs only

Right to recover enforcement costs

The costs orders made in favour of the 5 Blackman

The costs of these proceedings

ISSUE THREE: IS THE DEFAULT INTEREST RATE A PENALTY

Extension of Discount Interest Rate

Legal principles

Consideration

ISSUE FOUR: THE CROSS CLAIM

ORDERS