Hanania v Parramatta Wholesale Cars Pty Ltd

Solicitors: Williams the Law Firm (First and Second Defendants) Attia Lawyers and Consultants (Plaintiffs) Marsdens (Fifth Cross Defendant) File Number(s): 2018/16534 Publication restriction: Nil

Judgment

1. These proceedings are concerned with a dispute about land holdings among members of the Hanania family. The immediate subject matter of the dispute involves commercial premises at 301 Church Street, Granville ("the land") forming part of the land on which a used car sales business, known as GR Quality Wholesale Cars ("GRQWC") is conducted. The business is also run from adjoining land at 305 Church Street, which property is not in dispute in these proceedings. A second issue concerns the control of the first defendant, Parramatta Wholesale Cars Pty Ltd ("PWC"), which according to the view I have formed of the evidence, is the corporate entity through which the used car sales business is now conducted. The particular interest of the parties in that company for present purposes relates to its ownership of other commercial premises, Lots 3 and 4 Parramatta Rd, Granville. Title to that land is not questioned.
2. Without intending any disrespect, for clarity, I will refer to the various members of the Hanania family involved in the proceedings, one way or another, by their given names.
3. The plaintiffs are George Shukri, the patriarch, his son Raymond and daughter-in-law, Ghada, who is married to Raymond. They are the registered proprietors of the land: George Shukri as to 50 percent as tenant in common; and Raymond and Ghada jointly as to the remaining 50 percent as tenants in common with George Shukri. The relief they seek is judgment for possession of the land and recovery of, what they say is, unpaid rent. The basis of the claim for possession is PWC's failure to pay the rent formerly paid to Raymond and Ghada for its use of the land.
4. George Shukri also seeks an order under s 175 Corporations Act 2001 (Cth) for a correction of the register of PWC so that he is shown as having the sole shareholding, i.e.100 percent of the shares in the company to the exclusion of another of his sons, Issa, the second defendant (see Further Amended Statement of Claim ("FASOC") [33] and [35]).
5. Issa resists the claim for possession by arguing he has an equitable proprietary interest in the land. By the first cross claim he seeks a declaration that George Shukri, Raymond and Ghada hold a one-third, or alternatively one-quarter, interest in the land on a remedial constructive trust for him, a transfer of his interest and, in the alternative, equitable compensation. He also seeks orders under s 175 Corporations Act setting aside a purported transfer of PWC shares to George Shukri. I should say that according to the evidence before me (Exhibit 1) Issa has already had George Shukri's name removed and his own restored. Accordingly, I apprehend that those orders are otiose. Issa denies that George Shukri has any entitlement to any shares in PWC. For clarity I record that the first to fourth cross-defendants respectively are George Shukri, Raymond, Ghada and PWC, the last because of the orders originally claimed in relation to what Issa styled the purported share transfer.
6. The fifth cross-defendant is yet another son of George Shukri, Elias. The circumstances in which Elias came to be a party are fully set out in my judgment of 6 September 2019 published with this judgment. For present purposes suffice it to say, he was at one time an active partner in GRQWC. He too claims an interest in the land and for this reason has been joined as the Fifth Cross Defendant. Elias has filed the second cross claim claiming a one-third, or in the alternative one-quarter, equitable interest in the land by way of estoppel by representation. He also claims a remedial constructive trust in respect of his interest and the transfer of it to him. It is appropriate to say contextually that Elias conducts his own used car business from premises at 299 Church Street which also adjoin the land. Various members of the Hanania family including George Shukri, Issa and Elias are registered proprietors.

Other members of the Hanania Family

1. Among the persons who will be mentioned in the narrative are other members of the Hanania family and associates. While these persons are not of central significance it is appropriate to identify them now for context. Elen (sometimes referred to as Elaine) is George Shukri's wife; Fayrouz (sometimes referred to as Feroz) is Issa's wife; and Lucy is Elias's wife. Each of them and Ghada are mentioned in various accounting and tax records as recipients of parts of the distribution of the profits of GRQWC, presumably under a Federal Commissioner of Taxation v Everett (1980) 143 CLR 440; [1980] HCA 6 arrangement with her husband. But the evidence does not make this explicit.
2. George, the son of Raymond and Ghada, was involved with his father, and Elias as it happens, in what appears to have been a clandestine operation on or about 16 January 2017 to wrest possession and control of one-half of the land from Issa and PWC by running a fence along the notional centre line of the land, presumably representative of Raymond and Ghada's "share". George runs his own used car business from this portion of the land.
3. Issa's son, Steve, gave evidence about a conversation amongst George Shukri, Raymond, his father and himself during which Issa asserted an entitlement to one-third ownership in December 2018. His evidence does not extend to an acknowledgment of this entitlement by either Raymond or George Shukri.
4. Mrs Sylvia Alkhas is a niece of the brothers, the daughter of a sister, not otherwise involved in the proceedings. She is a licensed conveyancer by profession and gave evidence about having prepared a transfer of an interest in the land in Issa's favour in or around 2011. Evidence about that topic was also given by a colleague of Mrs Alkhas, Ms My Yen Vuong. I will return to their evidence at the appropriate time.
5. An exception to the general statement that other members of the family were not centrally involved is Nida, one of four daughters of George Shukri and Elen. Nida's evidence is of some importance as she was involved administratively in the running of the business of GRQWC and PWC for many years. She kept such primary books of account as were maintained for the purpose of the business. Essentially this came down to a handwritten notebook referred to as the "Red Journal" (MFI 5). The original was not tendered in evidence, but various copied extracts of it were attached to affidavits of the principal witnesses. There were other handwritten records prepared by Nida. Although called in her father's case and generally supportive of George Shukri's position, Nida's evidence was not especially damaging to the case of Issa or, for that matter, Elias.

Distillation of the issues

1. Certainly, of the position of Issa and PWC it can be said that unless Issa establishes an interest in the land, the claim for possession must succeed given his admitted discontinuance of the rental payments and a somewhat informal notice to quit (Exhibit B) served on behalf of Raymond, Ghada and, curiously, George Shukri. I say curiously, because PWC, the company George Shukri claims to own and control, runs its business from the only portion of the land occupied by it. Possibly, some unpaid rent is due.
2. Although in the way of these things, the question about ownership of the land was presented with a great deal of elaboration, it perhaps, in my view could have been reduced to the question in substance of whether it formed part of the property of the partnership which carried on business as GRQWC when it was entered into. However, the case for each of Issa and Elias is not formulated by reference to the Partnership Act 1892 (NSW) and there may be legal reasons for that. The partnership agreement was not reduced to writing by deed or otherwise. Indeed, Mr Wood SC, who appeared with Mr Simone for Issa, urged me not to approach the case by reference to the question whether the land was partnership property.
3. Elias is not in possession of any part of the land and no relief is sought against him by George Shukri, Raymond and Ghada. His claim is therefore freestanding and unrelated to the issues joined between Issa, on the one hand, and George Shukri, Raymond and Ghada, on the other. Naturally, the factual matrix is common and his cross-claim is similar to Issa's.
4. Likewise beneficial ownership of the shares in PWC to my mind turns on the question of who was or were the active participant or participants in the business of GRQWC when PWC was incorporated on 7 April 1997. Although others were involved at PWC's inception, as I will explain, by 17 March 1998 at the latest the company was, to use a neutral expression, wholly controlled by Hanania interests and operated GRQWC business from the land. Although Issa presented it as a "new business", I am satisfied that it eventually assumed conduct of the previous business. Indeed, on 6 April 1998 PWC became proprietor of the business name, (Exhibit 8, tab 71, p. 6770) GRQWC (Exhibit 8, tab 71, p. 6770). By about the 2000 financial year the GRQWC partnership appears to have ceased to trade in used cars although there is no evidence it was dissolved in any formal sense: cf s 32(b) Partnership Act.

A cautionary note

1. The central events occurred nearly 25 years ago. While there are many contemporaneous documents extant, as I have pointed out the arrangements governing the entry into the GRQWC partnership by George Shukri, Raymond, Issa and Elias were not reduced to writing. As Mr Duc of Counsel, who appeared for the plaintiffs, argued, the oft-cited passage from the judgment of McClelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315, the different context notwithstanding, has application. Essentially, the thrust of the evidence of George Shukri and Raymond is that they bought the land, it never formed part of the partnership property and Issa and Elias were invited to join the partnership upon the payment of the consideration of $100,000 each to work in the business and take an equal share of the profits. An interest in the land was not offered to them. George Shukri and Raymond, especially the latter, were adamant that they intended to keep the land for themselves.
2. Although their interests are not identical, Issa and Elias were equally adamant that they were offered a share of the land as well as the profit. Each maintained that they would not have entered the partnership were it otherwise.
3. When one bears in mind that the contract for the purchase of the land was completed as long ago as 11 April 1998 (Exhibit 7, tab 7) and that the business conducted from it was enough of a going concern by the end of the 1987-1988 financial year to have turned a profit for taxation purposes, the difficulties of decision making are obvious. It also needs to be borne in mind that the legal onus of proof is borne individually by Issa and Elias. That is to say, so far as property in the land is concerned, the cross-claimants who propound an unregistered, equitable interest must prove their respective entitlements on the balance of probabilities.
4. In Watson v Foxman (at 319) McClelland CJ in Eq said: "… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consider­ation of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience." (My emphasis.)

Objective facts and contemporaneous documents

1. As I have already pointed out, it is an objective fact clearly established by the contemporaneous documents (Exhibit 7, tab 7, p. 57) that the completion of the contract for the purchase of the land occurred on 11 April 1988. The purchase price was $350,000 (before adjustments on settlement) and it was partly financed by a mortgage-back to the vendor, JC Craft Pty Ltd, in the sum of $150,000. A 10 per cent deposit of $35,000 had been paid on exchange and the adjusted balance due on settlement Clear of the mortgage-back) was $167,553.51. George Shukri, on the one hand, and Raymond and Ghada on the other, say they respectively contributed equally to the deposit and the balance due on settlement.
2. GRQWC's financial records for the trading period ending on 30 June 1998 (Exhibit 7, tab 10, p. 64ff) do not state the commencement date for the partnership. However, they demonstrate that by the end of the 1998 financial year, the first partial year of trading, sales totalling $297,001.96 had been made, producing a gross profit of $47,610.24, which after expenses beyond the cost of sales left a net profit of $36,199.46. Included in these expenses was the amount of $7,950 for interest. I infer that this "interest" was paid on the mortgage-back to the vendor (see [30] below). That debt is recorded as a liability of the partnership by way of secured loan. The land, while not identified by reference to its address, appears as a fixed asset of the partnership. In the balance sheet it is described simply as "Freehold land and buildings" to a total value (at cost) of $367,043.76. I infer that the amount over the purchase price of the land relates to work done on the buildings or other structures erected on the land. Again, a secured loan is recorded as the most significant liability. It is beyond question that this is the mortgage-back.
3. The balance sheet, by reference to Note 1 (Exhibit 7, tab 10, p. 65), records the "proprietorship" of each of the partners treating each of the married couples as a single entity. An amount is shown for the capital contribution and share of profit for each entity less drawings. For 1988 financial year profits were distributed equally in the sum of $9,049.87. Drawings were somewhat uneven with Raymond and Ghada drawing $19,451.63 and each of the others drawing what appears to be a fixed amount of $3,900. The various capital contributions are as follow (for ease, I will simply list the names of the male members of the family without intending disrespect to the women): Raymond $126,804 George Shukri $66,895 Issa $75,764.97 Elias $96,563.14

Raymond ceases to participate in the GRQWC partnership

1. As with all details in this case, the circumstances and context of Raymond ceasing active involvement in GRQWC are disputed. But it is common ground that Raymond and Ghada received a payment in the sum of $225,000, withdrawn from a bank account kept and maintained in GRQWC's name on 30 April 1990 (Exhibit 7, tab 21, p. 389). This virtually cleaned out the partnership's cash reserves, reducing them to $4,388.11. The funds were banked in Raymond and Ghada's NAB account at Parramatta South on 2 May 1990 (Exhibit 7, tab 28, p. 392). It is also common ground that Raymond later started an independent used car business named "Wheels and Deals". Issa and Elias regarded this payment as Raymond being "bought out". Raymond however considered it no more than his due. It is common ground that Raymond withdrew from active participation in GRQWC's business activities around then to concentrate on his own affairs, but the documents do not make clear when. Australian Security and Investment Commission ("ASIC") records (Exhibit 8, tab 69) show that a company named Wheels and Deals Pty Ltd was registered on 18 February 1991 and that Raymond and Ghada both become directors on 12 March 1991 continuing until 8 June 2011, when the company was deregistered. Each held a fully paid up $1 share of the 2 ordinary shares issued.
2. It should be recorded in these reasons that this payment to Raymond is not reflected in the draft accounts for 1990. There was no dispute about the fact of its occurrence and other records prove the payment. The balance sheet for the 1989 financial year showed: Raymond's "proprietorship" reducing from $116,402 to $70,294.45, notwithstanding the introduction by him of a further $30,229 in capital; and the attribution to him of an equal share of profit in the sum of $35,748.82. The reduction may be accounted for partly by his drawings in the sum of $112,06.20 far in excess of the $9,900 drawn by each of George Shukri, Issa and Elias in the same year. From Elias's evidence there may have been tension, indeed suspicion, within the partnership about the drawings Raymond and Ghada were taking from the business which were so far in excess of the others and of what proved to be their share of the profit. This falls into that category of "machinations" I referred to above, which I need not resolve.
3. Only partial financial statements for the financial year ending on 30 June 1991 are produced. They are attached to Issa's affidavit of 19 December 2018. Although incomplete, it seems clear they show that Raymond (and Ghada) remained a proprietor. From this record I infer that when finalised, the 1990 accounts showed Raymond's capital account had been reduced from plus $70,294.45 to minus $150,119.89. The difference of course is not far off the $225,000 payment to which I have referred. Drawings were said to have been $254,977.21, and I infer that the payment of $225,000 is included in this figure. Interestingly, for the 1991 year he is recorded as having made an additional capital contribution of $6,500 and receiving a share of profit of $16,293.66; the same amount George Shukri, Issa and Elias received. These payments reduced his indebtedness to $127,326.23. In that same 1991 financial year, George Shukri is recorded as having made a very significant capital contribution of $317,650, Issa $32,450 and Elias $45,200. Raymond is recorded as having taken no drawings and George, Issa and Elias unequal amounts of drawings, but well below their allocated share of profit. The impression from the accounts is that Raymond received a large payout and eventually became a dormant partner , remaining on the books as a proprietor.

The financial records for the period ended 30 June 1992

1. For the period ending 30 June 1992, the profit and loss account shows that the net profit was distributed to George Shukri and Issa only (Elias had by then left his active involvement in the business, a point to which I will return). However, on the balance sheet, proprietorship remained in the hands of the original partners. Raymond remained on his net, negative $127,306.33 and Elias on a positive $173,653.94. The three properties remain listed as fixed assets of the business. The mortgage-back to the vendor of the land continued to be shown as a liability of the partnership and a new loan by way of a commercial bill to the ANZ Bank also appeared, possibly related to the additional land acquisitions (Exhibit 8, tab 31). The accounts for 1993 are not in evidence but from the 1994 accounts it appears that Raymond made a capital contribution of $50,000 in the 1993 financial year. This contribution is not fully explained by the evidence but may relate to his claim to having made a lump sum contribution of $33,215 to the final discharge of the mortgage-back (see [205] below. This reduced his "indebtedness" to $77,326, rounding the cents, and it has remained at that level ever since, so far as the evidence goes. The last financials for GRQWC in evidence are for the financial year ending 30 June 2003. Raymond's position remained unchanged at that stage.

Elias ceases to participate in the partnership

1. Elias too ceased his active participation in the business to pursue his own interests in used car sales. As with Raymond, the ongoing financial records show him continuing to have a proprietary interest in GRQWC at least until the year 2000, to which I will return.
2. The financial records strongly suggest that Elias ceased his day-to-day involvement in the partnership on 9 January 1992 because a profit and loss account for the period, I infer, 1 July 1991 to 9 January 1992 was prepared showing a distribution of profit on that date to each of George Shukri, Issa and Elias equally in the sum of $14,283.96 from a net trading profit of $42,851.88.
3. The profit and loss accounts for the period ending 30 June 1992 show an additional net profit of $18,571 which was distributed equally between George Shukri and Issa only. As I have already said, the balance sheet shows each of the four partners continuing (Raymond's stake in the capital partnership remained negative). On 30 June 1992, Elias's capital contributions were $173,653.94. Although not drawing a profit or working in the business, Elias made capital contribution of $1,050 in 1993 and in 1995 he received a share of profit in the sum of $10,997. These brought Elias's proprietorship funds to a total of $185,700.93, where they remained in subsequent years.
4. There was a change of accountant in about 1998 (Exhibit 8, tab 44). The new accountant prepared the financials for the year ended 30 June 1997 and thereafter so far as they are in evidence. The financial statements for the 1998 financial year show GRQWC continuing to trade with a strong growth in sales. The profit was divided equally between George and Issa while Raymond and Elias were shown as proprietors with an unchanged position. The three properties at 295, 301 and 305 Church Street were shown as non-current assets at cost with an aggregate value of about $1.23m (Exhibit 8, tab 45). The only document in evidence for the 30 June 1999 year (Exhibit 8, tab 53) is styled, "trial balance as at 30 June 1999". To my mind it suggests a transition year in the changeover from GRQWC to PWC in which sales dropped from about $2.5m in 1998 to about $134K. This appears to be the last year that GRQWC traded in used car sales. Relevant to the present purposes concerning Elias's position is an amount of $130,297.17 DR shown as a current liability due to Elias (and Lucy). Their proprietorship funds in the sum of $185,793 are shown as having been wholly taken as drawings, and 295 Church Street with a historical cost value of $577,734, which appeared in the accounts for 1998 has been removed for 1999, reducing the real estate held as non-current assets to a figure of about $656K.

Interim impressions about the partnership position of Raymond and Elias

1. Until Elias was joined to the proceedings, it was common ground among George Shukri, Raymond and Issa that Raymond had "bought Elias out" by giving him and his wife Lucy a house that Raymond and Ghada owned in exchange for Elias's GRQWC share. On this basis before Elias showed up out of the blue at court on the fourth day of the hearing, the matter was proceeding on the common assumption that Elias had no possible interest in the land because he had sold out to Raymond. Exhibit 7, tab 23 is a transfer under the Real Property Act 1900 (NSW) apparently dated 31 January 1991 whereby Raymond and Ghada transferred their home at Bossley Park to Lucy. If one is prepared to work on the assumption that 1991 is erroneously recorded for 1992, as sometimes happens early in a new year, the transfer is in close proximity to 9 January 1992, which on the documentary evidence seems to be the date when Elias ceased his day-to-day involvement in the partnership. The difficulty for the acceptance of the common assumption is that the transfer is expressed to be for the consideration of $155,000, the receipt of which is thereby acknowledged.
2. As recounted in his affidavit sworn on 17 April 2020, Elias's account is much more nuanced. He acknowledges the purchase of the Bossley Park property and gives an account consistent with a January 1991, not 1992, settlement while stating the house "was paid for in full and was not a trade-off for the purchase of my interest in [301 Church Street]" (Affidavit [38]).
3. According to Elias, Raymond offered to buy him out of the partnership in or about November 1991, Elias agreed stipulating, "I just want all my money back that I have paid" (Affidavit [39]). This fits in with a 9 January 1992 changeover date. But Elias says that Raymond only paid two instalments by cheque in the sum of $20,000 and $11,500 respectively. Elias also states that he decided that he no longer wished to be part of the business anyway and left. He re-offered sale of his share in the business to Raymond, who did not respond (Affidavit [41]). As I have tried to point out, the financial records of the partnership do not support a finalisation of Elias' involvement in, or complete retirement from, the partnership in January 1992. Certainly, there is no suggestion in any of the records of Elias being paid anything in respect of his share in the partnership, unlike Raymond, before the trial balance for 1999.

The payment of rent

1. The question of the payment of rent to Raymond and Ghada for the occupation and use of the land is said to be significant at two levels. First, there is their claim for the arrears of rent and outgoings in respect of the land from PWC. Rent was originally agreed in the sum of $3,000 per month by Raymond with Issa, I infer on behalf of GRQWC. Cheque butts in evidence (Exhibit 8, tab 35) date back to 23 March 1995. This accords, at least in broad terms, with Raymond and Ghada's evidence that they relocated to resume living in Jordan in 1995 returning to Australia only when necessary for domestic or business purposes. Council rates in respect of the land are included in GRQWC's financial records as part of the business expenses over the cost of sales for each year, other than for 30 June 1988 financial year during which the land was acquired. Given that the purchase contract settlement occurred in April 1988, I would infer that rates for that year were probably adjusted between vendor and purchaser: see solicitor's settlement sheet (Exhibit 7, tab 7, p. 58). For the 1995 financial year rent is shown as $33,667, suggesting payment must have commenced somewhat prior to March 1995. For 1996, 1997 and 1998 rent is shown as an expense in the sum of $36,000, according with the monthly rent paid to Raymond and Ghada . From its financial records, it appears that PWC took over responsibility for the rent when it assumed the conduct of GRQWC's used car business. The rent reduced to $2,750 per month from an unspecified date during the 2003 financial year (Exhibit 8, tab 58). The plaintiffs' say that this reduction resulted from the unilateral decision of Issa and although he took no immediate action in relation to it, Raymond did complain, "Rents go up not down" (see Nida's affidavit, 29 August 2019 [27]-[28]).
2. According to Issa's affidavit sworn on 19 December 2018, ([70] - [78]), PWC rather than Issa personally paid the reduced rent to Raymond (and Ghada). Issa implies that the reduction was agreed to by Raymond even if somewhat begrudgingly. Raymond made a demand for payment of an increased rent during 2013 which Issa refused. Again, in August 2015, Raymond demanded an increase in rent saying unless it increased the rent PWC must vacate one-third of the land. Issa refused to pay the additional rent but agreed to remove stock from one-third of the land in accordance with Raymond's demand. There was an argument about what particular portion of the land Raymond required. After that was resolved, Raymond's son George commenced to carry on a used car business on the portion of the land which Issa had vacated.

What the documents show about Parramatta Wholesale Cars Pty Ltd

1. PWC was incorporated on 7 April 1997 (Exhibit 8, tab 70). It appears to be common ground that the original idea behind the incorporation of PWC was to provide an opportunity to a salesman employed by GRQWC, Mr Peter Andrews, to participate in some of the profits of the partnership. He was the original director and he and Issa were the original shareholders of PWC. Mr Andrews' partner who was involved in the incorporation of PWC had initially been appointed a director and secretary. That appointment was very short lived, being for the day of registration only and Nida was appointed secretary to replace her on the very same day. It is interesting to note that the incorporation of the company was proceeded by the registration of a business name of Parramatta Wholesale Cars, in force between 3 March 1997 and 4 April 1997, and of which George Shukri and Issa were the holders.
2. The arrangement with Mr Andrews was short lived. He ceased to be a director on 17 March 1998 and George Shukri was appointed in his place. This returned control of the company wholly to the Hanania family with George Shukri and Issa as directors and Nida continuing as secretary. Mr Andrews may have continued an association with the business because the annual return lodged on 8 January 1999 showed that the shareholding of him and Issa increased to 5,000 shares each. But this may have been simply erroneous. Mr Andrews appears to have later dropped out of the business and it continued with Issa as the sole registered shareholder.
3. I have already said that my impression from GRQWC's documents, especially the trial balance as at 30 June 1999 (Exhibit 8, tab 53), is that 1999 was a transition year during which the used car sales business of GRQWC was being transferred to PWC. By and for the year ending 30 June 2000, GRQWC had no income generated by used car sales (Exhibit 8, tab 54).
4. It is also instructive for various purposes to record that listed among GRQWC's "current assets" for 1998 and 1999 (Exhibit 8, tab 53, p. 551) is a large loan to PWC. In 1998 it totalled $461,421.03 and in 1999, $427,737.13. I interpolate that this may relate to the purchase of lots 3 and 4 Parramatta Road, Granville. It is also I think important to bear in mind that as between George Shukri and Issa, the former's proprietorship funds in GRQWC as at 30 June 1999 totalled $588,807.48, and the latter's $250,811.97.

Witness testimony

1. I have already referred to the Watson v Foxman considerations affecting the quality of the recall of each of the witnesses in this case. Those factors necessarily include the effluxion of time; the events central to each of the two main areas of dispute in the case occurred two and three decades ago. There is no written agreement entered into governing the legal arrangements between the parties in relation to either the GRQWC partnership or their involvement in PWC. Even the putative lease was not reduced to writing. Almost inevitably, where potentially valuable property rights are now involved and disputed, aspects of self-interest including a sense of entitlement affects the quality of their recall. This phenomenon is aggravated by the animosity attending what appear to be entrenched and intractable differences between the parties to a family dispute over property. There was a, perhaps understandable, tendency, especially given the long effluxion of time, on the part of each witness to express themselves in conclusory terms rather than providing direct evidence of what they did, said, saw, heard or otherwise perceived. As I have said, for this reason the evidence of each witness has to be adjudged by reference to such objective facts as there are, facts supported by contemporaneous documents especially the records of the business and the apparent logic of events.

Nida Hanania

1. Nida was employed by the partnership in an administrative capacity and became the company secretary of PWC. She now resides in Jordan, like George Shukri and Raymond, but her evidence was not, as I have already pointed out, in all respects adverse to the position of Issa and Elias. Her oral testimony was given mostly on 2 September 2019 before Elias was joined to the proceedings. Although she states that her affidavit was made in response to the affidavit of Issa, she was the first witness called to give evidence and much of her cross-examination concerned matters which might be regarded as important contextually.
2. It was her evidence that she was involved in the administration of the business from the commencement of the partnership between George Shukri and Raymond. Nida states that she was present when George Shukri invited Issa "into the business" (Affidavit [11]), but she does not give evidence of what was said by either of them. She said Issa joined the business from 1988 which is, of course, consistent with the financial accounts to which I have made extensive reference already. Her evidence was that Issa worked primarily as a salesman, earning 25 percent of the profit of the business. She confirmed, as I have referred to already, that the mortgage-back to John Craft Pty Ltd was paid for by cheque "from the partnership business account". She states, "The partnership did not pay rent to the owners of the business" while Raymond was involved. "Upon Raymond leaving the partnership", Nida would write a cheque to Raymond drawn on the partnership account for monthly rent of $3,000. (Affidavit [21]). Nida does not put a date on Raymond "leaving the partnership".
3. She refers to Mr Andrews as "a very good salesperson" (Affidavit [23]). On her account, Mr Andrews had promised to buy into the business by payment of $200,000, upon which he defaulted, and George Shukri asked Mr Andrews to leave in or about April 1998 when George Shukri became a director, and, Nida says, "shareholder". The idea that Mr Andrews was only involved for a relatively short time whatever the ASIC records of PWC suggests, is consistent with the impression I have formed from a consideration of the contemporaneous records of the business and the testimony of George Shukri and Issa.
4. In one respect at least, Nida's affidavit is inaccurate. She stated that George Shukri directed her to incorporate the company (Affidavit [24]). The ASIC records established that the application for incorporation was made by Mr Andrews' partner, although Issa and Nida seemed to have intervened with celerity to appoint Nida as secretary in lieu of Mr Andrews' partner on the very day of incorporation. Nida accepted this in cross-examination. (33.16T - 34.33T; 417.30T; 418.35T).

Cross-examination

1. In cross-examination by Mr Wood SC (Mr Wood took Silk during the hearing), Nida said she was paid a salary, she took directions from Issa because he was "one of the owners of the business" (17.17T) and that she kept a record of financial aspects of the business. She said she was not involved when "they were purchasing the property" (17.23T). But at some stage she became responsible for the red journal. By reference to Exhibit 7, tab 5, p. 32 and tab 8, p. 60, she agreed that Issa paid two amounts totalling $52,626 on "the day of the settlement". Mr Wood assumed this to be the day the agreement to buy into GRQWC "settled" but I took "settlement" to be a reference to the settlement of the purchase of the land. Exhibit 7, tab 8, p. 60, is an ANZ bank statement in the name of Raymond, Ghada and George Shukri, I infer at that time, the business account, shows the first cheque in the sum of $35,700 was deposited on 11 April 1988 and the second in the sum of $16,926.54 on 13 April 1988. An endorsement in Arabic script referrable to each deposit was translated by Nida as meaning "from Issa" (22.1T). Nida also said that Issa had paid the full $100,000 (22.13T), however, she insisted his payment was "not for the land (but) to operate the business". She confirmed being present when George Shukri "invited [Issa] to the business" (22.26T). But again, she did not give evidence of the conversation between George Shukri and Issa or anyone else who was present. As I have said, her statement that Issa (or Elias) was not invited to be an owner of the land is purely conclusory (24.4T).
2. She also confirmed that the amount of the mortgage-back was paid out of the profits of GRQWC (25.1T), but said "[the partners] looked at it as to be a rent for the premises" (25.31T).
3. Nida confirmed she was the secretary of PWC and she worked in administration (25.48T - 26.4T). She accepted that during the period 1997 to 2000, I interpolate when PWC appeared to be assuming carriage of GRQWC's business, George Shukri was travelling a good deal between Australia and Jordan. It was fair to say that he was spending half of the year in Jordan and the other half in Australia (26.20 - .31T). Nida denied that she asked Issa to give George Shukri "a role in the company", I infer the meaning, to give him something to do. She said that George Shukri was at GRQWC "anyway and he moved into" PWC (26.47T).

Ghada Hanania

1. Ghada's affidavit sworn on 15 September 2018 was read in the proceedings. In her affidavit, Ghada said she married Raymond in 1988 and they formed a business partnership when they purchased the land. She said that she paid her portion of the purchase price of $50,000, herself (Affidavit [4]). She said that George Shukri and Raymond formed the partnership known as GRQWC. She said that she worked there and the three of them contributed to repayment of the vendor finance. She said that Issa did not contribute to the vendor finance and that he was not involved in the purchase (Affidavit [7]). She said there was never an agreement to which she was a party for Issa to purchase any part of the land. She said she was independent and had her own accountant prepare tax returns in relation to the income subsequently derived from the land by way of rent. She and Raymond decided in or about 1995 to relocate to Jordan, but they travelled back and forth. Half of the land was made available to her son George after PWC stopped paying rent (Affidavit [18]). She and Raymond instructed George to erect a dividing fence on the land.
2. Also in a conclusory way, Ghada said there was an agreement from 1997 that PWC would pay the rent which continued up until 2001 when she discovered that the deposits in her joint account with Raymond had been reduced to $2,750. She did not agree to any change in the rent. She said that PWC and Issa remain on the land against her wishes.
3. In supplementary evidence in chief by leave, when asked about the purchase of the land, she made it clear that Raymond paid and "[her] name was used to be in that land" (59.33T). When asked how much money had been paid by herself, she said "you mean myself or myself and my husband". Counsel clarified it was the latter, Ghada responded "I can't be specific" (59.43T). She said, "He borrowed $150,000 from the owner, who sold us". I took "him" to be Raymond. Ghada said the mortgage-back was to be repaid "from what we generated from business" (60.10T). She didn't have any conversation with George Shukri or Raymond about the mortgage-back arrangements (60.25T). When asked about Issa's involvement in the use of the land Ghada said, "I normally don't get involved in matters like these. It's between him and my husband" (60.50T).
4. Although at paragraph 32 of her affidavit, Ghada purported to attach a schedule of unpaid rent (Annexure "D"), it became apparent that she was not the author of the document. When asked directly about what she had said in her affidavit, she responded through the interpreter, "She's saying that I wasn't involved in these details. 'I don't quite understand what's meant by this paragraph'" (63.23T). Mr Duc did not press annexure "D".

Cross-examination

1. In cross-examination Ghada was asked about her choice to make an affirmation for her oral testimony and taking an oath for her affidavit. She said: "Just the way I look at it is different, because I cannot remember everything, to take an oath of something that I'm not sure of - because I cannot remember everything". (65.13T) She agreed that when she swore her affidavit, she did not satisfy herself that annexure "D" had been included (66.25T). It became quite apparent to me that preparation of Ghada's affidavit was a joint effort between her then solicitor and Raymond, which she was prepared to go along with (67.20T). She felt that she "did not need to learn every paragraph and its contents" (67.35T). She did not read all of the affidavit in English but relied upon the explanation given by the solicitor (67.42T). Despite what was said in her affidavit she was not involved in the decision to partition the land. She said "I wasn't there, I wasn't here; my husband was here. Let me put it this way to you, I am a partner, but my husband takes care of everything. He owns it, but, you know I am a partner as his wife" (67.48T). The decision to partition the land was wholly Raymond's decision (68.13T).
2. Ghada made it quite clear that at the time these events occurred she did not normally get involved in financial matters. She was fully engaged in raising five young children (68.30T). She said Raymond discussed financial matters with her "before he makes a decision" (68.41T). She was unaware of any conversation between Raymond and Issa about Issa buying into the business for $100,000 (69.1T). She said a number of times that she had never heard of any arrangement in February 1988 where each of Issa and Elias were to pay $100,000 to take part in the business (69.5 - .33T). She had no knowledge that Issa and Elias were being paid a share of the profits of GRQWC at any time (70.10T). When asked about the mortgage-back being paid from the profits of the partnership she said "I believe so. I'm not sure" (70.29T). She wasn't sure whether Issa and Elias had bought an interest in the land at some point (70.46T). Ghada agreed when comparing parts of her affidavit with that of Raymond they were almost identical. She said, "Whoever wrote for Raymond wrote for her" (72.38 - .44T).
3. Ghada knew that Sylvia Alkhas was Raymond's niece, but she denied that Sylvia had prepared a transfer of title in relation to the land. She said "I've never seen her. I've never met her" (76.37T). When asked whether she had signed a transfer giving Issa a one-third share in the property she said that she could not recall. Due to the effluxion of time, "it's very hard for me to remember whether it's true or not". She then seemed to qualify the evidence she had given about Sylvia saying she had never met her for business. "But she is my husband's niece" (78.5T).

Issa Hanania

1. George Shukri and Raymond gave evidence in the plaintiff's case before Issa, and before Elias was joined. In the way of things their evidence and cross-examination in an anticipatory way also sought to counter Issa's, but not Elias's, cross-claim given that Issa's affidavit had been served in advance of the hearing. They were both recalled to give further evidence, either in reply or in response to the cross-claims after both Issa and Elias had given evidence. For convenience I think it appropriate to deal with the evidence of Issa and Elias before dealing with the whole of the evidence of George Shukri and Raymond.
2. Other minor players gave evidence, being Sylvia, Ms Vuong and Issa's son, Steve, and I will refer to their evidence last.
3. The evidence of Issa was given in two affidavits. The first sworn on 19 December 2018 was read after rulings on objections, and the second of 28 April 2020 was read without objection. As with other witnesses, I gave leave for the affidavit evidence to be supplemented in some respects by oral evidence.
4. After the family migrated to Australia in 1979, Issa principally performed factory work for about 8 years until 1987. He also dabbled in the family occupation of buying used cars, fixing them up and selling them for a profit. In about April 1987 he resigned from his factory job and returned to Jordan to marry his now wife, Fayrouz. I should say that Issa is also known within the family as "Alex".
5. Issa states that while he was in Jordan, Raymond telephoned him enquiring about whether Issa wished to buy into the land. Issa's evidence is that Raymond said (Affidavit 19 December 2018, [5]): "The reason why I am calling is because I found a property at 301 Church Street, Parramatta which I want to buy, but don't have enough money to buy it myself. Do you have enough money to buy the property with me?" Issa said he replied in the affirmative and said, "Go ahead buy it". Issa said that he had substantial savings from his long years of work for the same employer, which included accrued employment benefits paid-out when he resigned.
6. He did not return to Australia until February 1988, Raymond told him then that contracts had been exchanged and that he and George Shukri are "putting in about $200,000. The balance of about $150,000 is by way of vendor finance".

Cross-examination

1. Under cross-examination by Mr Balasubramanian for Elias, Issa agreed that apart from the discussion about Raymond buying out Elias, he was not further involved in any transaction that may have occurred giving effect to any such agreement. Issa also said that in a meeting shortly before the commencement of proceedings in early 2018 with Elias and George Shukri, George Shukri produced a copy of a transfer that had been signed by Raymond and Ghada. Issa did not believe that Elias asked George Shukri to sign the transfer (304.28 - .46T). Issa did accept that Elias "has always maintained that he had a one-third interest" in the land (305.18T).
2. Under cross-examination by Mr Duc, it was put to Issa that no such conversation with Raymond as he relayed about him contributing to the purchase of the land occurred. Issa said it did happen (307.15T), although he agreed that he was not involved in the plan to purchase the land from the start. He accepted that he had not put the full conversation about the proposed use of the land and the purchase price in his affidavit (308.25T). Issa denied that the business was already operating when he joined (310.35T) and that by then it was "a fully running operation". Mr Duc put to Issa that his account of his conversation with George Shukri and acquiring a one-quarter interest in the land was a fabrication, to which Issa responded, "That's 100 percent true, that's what happened" (311.23T). Issa denied that all that had been offered to him by Raymond was that he could be involved in the business and not the land if he contributed $100,000 (312.5 - .17T). Issa said that the two payments deposited on 11 and 13 April 1988 were to go into the land and that other amounts were paid for stock and preparation (312.25 - .37T). He reiterated that two deposits were to settle the land in April (313.43T).
3. Issa agreed that the amounts shown as paid by him in the red journal do not total $100,000 (318.18T). But he said he paid more money towards buying cars at auction because when the business had just started the auction houses would not accept their cheques (318.30T). Issa rejected the proposition that he resented that GR stood for George and Raymond. He said, "We used to work like the best family" (319.47T).
4. Issa said that he believed that George Shukri, Raymond, Elias and himself were operating in equal shares together. That's why he went into the business to get the quarter of the property and quarter share in the business as well (323.15 - .21T). He never sought any legal advice about his entitlements (323.34T). Issa denied that the 25 percent profit he was paid was merely compensation for his labour in the business. He said initially all the family "were going very well" (326.35 - .40T).

Elias Hanania

1. When Elias sought to intervene in the proceedings on what was the fourth day of hearing (5 September 2019) he did so as a person who was not legally represented. He had made contact with a solicitor who may have been prepared to assist, but he needed to obtain the paper work from the other parties (228.27T). While explaining his understanding of his position he said: "So there was a big fight [at GRQWC] because Raymond took [$225,000] and he wouldn't transfer [the land] … and he make me take the [Bossley Park property] for $155,000 where it was worth $120,000. His Honour: You say you paid for that house. Elias: No, I didn't pay for the house but I grabbed it because I couldn't grab anything out of what I gave him and the fight was on so I just want to grab whatever I can with no evidence and walking away from the problem. I just walked away from it and this was the problem, your Honour I made it clear that I would not accept Elias's statement as evidence, but only as an outline about what Elias said his involvement in the case was (230.40 - .45T)
2. In his written submissions, Mr Duc (Plaintiff's Written Submissions, 16 November 2020 [147]) effectively relies upon the statement "I didn't pay for the house, but I grabbed it", as an evidential admission which contradicts the case Elias ultimately presented when he secured the representation of Mr Balasubramanian.
3. Elias swore two affidavits in the proceedings. The first on 17 April 2020 and the second on 23 October 2020. Elias was 16 when the family migrated to Australia in or about March 1979 and he attended Chester Hill Special English School for a period before attending Canley Vale High School. I infer he did not finish high school but left to enter the workforce. He worked in various capacities over the next 8 years including as a factory hand, in bricklaying, fruit shops and the family occupation of acquiring, modifying and selling used cars.
4. Elias said he was with Raymond sometime in late 1987 when they drove passed the land and Elias noticed the "For Sale" sign. They stopped and looked at the property. Elias says that Raymond said (Affidavit 17 April 2020 [16]): "The property looks good we should buy it together and we can run it jointly". Elias responded by saying: "Yes, I agree". Elias says he contacted Mr Craft and arranged a meeting with Raymond, Mr Craft and himself at Raymond's home. At the meeting the purchase price of $350,000 was agreed. Elias said (Affidavit [19]): "The original agreement was that Raymond and I would pay $200,000 up front and the balance would be vendor finance from John at a cheaper rate than we could obtain at the bank. Raymond and I shook hands with John at the end of the meeting."

Cross-examination

1. Under cross-examination by Mr Wood for Issa, Elias said Raymond wanted to buy Elias's interest in the car yard. Elias understood that to be a reference to the land not the business. He could have taken an interest in the business because Elias wanted nothing to do with it (381.15T - 382.15T). Elias paid Raymond "all his money" for the Bossley Park property (381.40T). Elias claimed to have sighted the transfer form when it had been signed by Raymond and Ghada (383.20T), not at the time, but around 2017 or 2018. He saw it in a folder George Shukri kept containing important paperwork (383.25 - .30T).
2. Elias started his own business from 295 "back in 92 with a different name" (383.45T). He only started using "Auto Alley Family Cars" in 2009, 2010 and 2011. Although he considered it possible, Elias did not believe that he received one-third of the existing stock of GRQWC when he left to start his own business. He said, "I had the problem, I walked out" (384.5 - .20T).
3. During cross-examination by Mr Duc, Elias denied the business was already a going concern when he joined the partnership. It was getting ready to start business. Elias said he and Issa helped set up the business and George Shukri wanted them to stay in the business "and join in whether we liked it or not" (384.30 - .50T). Elias said he did not want to go into the partnership. His father forced them into it (385.2T). Elias insisted he'd seen the transfer. George did not sign it, both Raymond and Ghada had. He rejected the suggestion that the "document does not exist" (385.22T). He denied making up the story about the transfer. He accepted seeing the transfer was not mentioned in his affidavits, but said "It's not my business … if you don't ask me it's not my business to answer" (386.21T). Elias denied that the amounts he paid as recorded in either the red journal or his handwritten copy of it were for entry into the partnership, as opposed to acquiring an interest in the land, only (389.47T).
4. Elias rejected the suggestion that George Shukri had never said that he and Elias would both "have to come into the property and do this as family business" (391.34T).
5. Elias accepted that George Shukri had not sold any of the properties that he had bought since his migration to Australia in 1979. But he added "he didn't buy them by himself either" (393.15T).

George Shukri Hanania

1. George Shukri swore two affidavits in the proceedings. The first on 15 September 2018 and the second on 19 October 2020. The second was largely in response to Elias's affidavit of 17 April 2020.
2. George Shukri has been involved in the sale of new and used cars throughout his life both in Jordan and in Australia. He started in the trade travelling to European countries including Germany to buy cars, drive them back to Jordan and sell them at a profit. From this time, he also commenced to acquire a property portfolio in Jordan.
3. He migrated to Australia with his wife and eight children, four boys and four girls in 1979. Given his capacity to invest in Australia he was a preferred migrant immediately qualifying as a permanent resident and eventually as an Australian citizen. He continued in the motor vehicle trade in Australia going into partnership with Raymond. He referred to GRQWC, which he said was registered around 6 April 1998 (First Affidavit [8]). He initially started in Australia, buying cars at auction, fixing or cleaning them up and reselling them. He spoke to Raymond about establishing a partnership and acquiring premises from which to run it.
4. George Shukri says that he and Raymond approached John Craft and spoke to him about purchasing the land. George said the arrangement to buy the land and arrange the mortgage-back was his idea (First Affidavit [12]). They decided to employ Nida. George Shukri says that Raymond only worked for a period of one year or more before going to Brisbane to pursue other opportunities.
5. In supplementary oral evidence by leave, George Shukri described the formation of the arrangement with Issa and Elias in the following terms (91.30T). I should say, however, as I think is apparent from the transcript, he is a man of considerable years. He tended to be a discursive witness, not necessarily prone to giving a direct answer to a direct question. I formed the view this was because George Shukri thought he knew the facts better than anybody and wanted to give me the benefit of what he knew. It was also evident that the relationship especially with Issa, but also with Elias had completely broken down (see for example 108.5T).
6. I thought a telling part of George Shukri's evidence in chief is the passage I have quoted below. Although a little disjointed and perhaps out of order, the answer was given in relation to a question in terms of, "what arrangement did you make with [Issa and Elias] to come and sell cars" (91.30T): "I asked them, I invited them to come and work with me and get their money, or spending money, from the profits that we make from cars, selling cars. And they came and supported me. They used to get the money every month for their expenses, whatever they wanted. We proceeded doing that, and they started putting the cars in the streets, and I did not agree to that. We told them that we're traders, we should buy land, and put the cars in the proper land." Although it's a little difficult to decipher George Shukri's meaning, I infer that "putting the cars in the streets" is a reference to Issa and Elias, as they said, buying cars to do up for resale as a sideline before joining GRQWC. Obviously George Shukri thought the business should be put on a proper basis. Land should be bought and cars put in a proper yard.

Cross examination

1. George Shukri gave oral evidence twice. First on 3 September 2019 and secondly on 29 October 2020 (90T ff; and 486T ff).
2. George Shukri is not very proficient in English and normally relied upon Nida "with paperwork and that sort of thing" in business (93.25 - .44T).
3. When cross-examined about the registration of the business name, GRQWC and who were its owners, George Shukri said that they started with four persons, then Raymond left the business and was given his money (95.25 - .30T). George Shukri said Raymond still had his "one-third" share in the land "that we leased from him" (95.42T). George Shukri volunteered that he was the owner of the land and that Issa and Elias (only) shared profits with him (96.25T). Although there was some confusion in his evidence, George Shukri agreed that after Raymond was paid out, George Shukri, Elias and Issa were the owners of the land (97.13T). However, he immediately volunteered that Raymond had a one-third share in the property which was rented for $3,000 per month plus tax (97.18T). George Shukri then wanted to talk about the purchase of 295 and 305, however, he continued, saying that the land is still with the three persons Elias, Issa and himself (97.38T). He confirmed that when Raymond was bought out the three remaining partners were the owners of [the land] (97.45T).
4. When it was put that Raymond had purchased Elias's interest in the land, George Shukri responded, "Raymond gave Elias's house instead of the money (for) the land". This evidence was given at the time when it was common ground Elias's interest (if any) in the business or land had been bought out by Raymond. I remind myself that that proposition is now hotly contested by Elias, and not dogmatically maintained by Issa.
5. George Shukri denied at least initially that Issa had paid the $100,000 as required (102.15T). George Shukri recognised the red journal (MFI 5) as the ledger maintained by Nida, but he was argumentative about what it showed saying, "But where's the [$100,000]? did she give evidence that we took [$100,000]?" (103.15 - .30T). He also said, "Did they get a receipt?" (103.39T) and then backed off from accepting that what became Exhibit 7 (p. 32) was a true copy of the red journal (103.45T).
6. Without any disrespect, George Shukri's cross-examination on the first occasion, as I have already indicated proceeded as something of an arm wrestle between him and the cross-examiner with George Shukri attempting to get his version of his recollection of the facts out without interruption by questions from the cross-examiner.

Cross examination on 29 October 2020

1. George Shukri denied that there was any occasion in 2011 when he was present when Raymond and Ghada signed a transfer of an interest in the land to Issa (490.25T). He said, "None of this happened" (490.40T). Specifically, he denied having taken the transfer from the meeting and having carried it around for several years (490.45T) saying, "No, I can't remember that all". On this occasion he insisted that Issa and Elias were only partners in the business not the land. "The land is for me and Raymond" (491.32T).
2. When cross-examined by Mr Balasubramanian for Elias, George Shukri denied he was tailoring his evidence to assist his case, saying, "I only say what happened" (493.29T). He denied that Elias was offered an opportunity to join the business to get a share in the business and the land, saying, "The land is out of the question" (493.35T). George Shukri denied that Elias made his contribution of $100,000 and indeed suggested that the money shown as contributions in the ledger was money "they were taking … out of the yard and they were putting it in the books as payment" (493.41T).
3. George Shukri was cross-examined about the financial accounts for 30 June 1988 (Exhibit 7, p. 182), he said, "This is not my paper and I do not remember seeing it or having even looked at it" (494.34T). I interpolate that George Shukri said at the outset of his evidence on the first occasion that he was not proficient in written English. When asked directly about the account showing a contribution of $98,000 by Elias as at 30 June 1998, George Shukri said, "He bought stock with this amount". When asked whether stock purchases were in addition to the capital contribution, George Shukri said, "Maybe, probably" (495.12T). When asked whether he would agree that Elias had contributed approximately $100,000, George Shukri responded that the financial records were "the accountants work" and they should report who paid how much because there were four partners (495.22T). He did not directly answer whether he accepted the accuracy and reliability of the financial reports but said "my sons and daughter are managing the business and that they are actually handling all aspects of it" (495.46T). In a non-responsive answer to a different question, George Shukri said that the accountants were handling all the accounts and questions should be directed at them (496.36T). I have already made mention of the failure of any party to call the relevant accountant to answer questions arising out of the accounts, or explain the absence of that evidence.

Raymond Hanania

1. Raymond's evidence was contained in 3 affidavits sworn on 15 September 2018, 27 August 2019 and 19 October 2020. In his first affidavit sworn on 15 September 2018, Raymond states that he, Ghada and George Shukri bought the land amongst themselves paying a combined total of $200,000 with the mortgage-back of $150,000 to the vendor. Raymond states that he and George Shukri formed GRQWC as a partnership which was registered on 6 April 1988 operating a used car yard from the land. He states that at no stage did Issa contribute to the purchase of land or the vendor finance. Elias was not a party when the affidavit was sworn.
2. Raymond states there was never any agreement involving Issa for the purchase of the land. It is his evidence that he and George Shukri invited Issa to work as an employee of GRQWC, I infer selling cars.
3. Raymond decided to relocate to Jordan in 1995. He is not explicit, but I infer from that time he states that rent of $3,000 was paid to him and Ghada for the use of their "portion" of the land. When PWC commenced operating from the land, he and Ghada had an agreement with its board for the payment of the amount of $3,000, which continued until 2001 until he was informed by Issa and George Shukri that the rent would be reduced to $2,750. He did not agree to this, nor did he agree to the cessation of rent in 2015. Although the sequence of events was a little confusing, it was around that time that his son, George, commenced to trade from a portion of the land, eventually running a fence down the notional centre line.
4. In his second affidavit sworn on 27 August 2019, which was prepared in answer to Issa's affidavit of 19 December 2018, Raymond denies that he spoke to Issa while he was in Jordan about Issa contributing to the purchase price of the land. Raymond says Issa was never invited to participate in the purchase of the land. Contrary to the contents of his first affidavit, Raymond states that when Issa returned to Australia in February 1988, he and George Shukri were already operating the partnership from the land. The car yard was full of stock. Issa was not a party to the mortgage back arrangement with the vendor. Raymond reiterates that Issa was invited only to be a salesperson at the car yard. He states (Second Affidavit [10]), the partnership was operating, and it did not require additional funding from Issa. "At no stage did [Raymond] invite Issa … to pay $100,000 to be one-quarter share each in the land and be equal partners in the business [GRQWC]".

Cross-examination

1. Initially Raymond said that the $225,000 to buy him out came from the business, but he asserted "there's no money from Issa or Elias in the business yet" (158.47T). He denied he was bought out of the land (159.7T).
2. Raymond said that as soon as he received the $225,000, he also started to receive rent (160.30T). He agreed that the conversation about reducing the rent took place in 2001 and that Issa continued to pay that rent until 2015. Other than complaining, Raymond did not take any steps "to force Issa to pay more rent", but he explained that was because George Shukri was still with the business (161.20 - .25T). He took no action before 2016 because he did not want to interfere with his father's business being run from the land (162.10T).
3. He agreed that after his return from Queensland in 1991 he had no further part in the business of GRQWC (163.35T). But he denied his arrangement with Elias was to re-buy an interest in the land. He said, "The land mine … why would you buy it another more time?" (sic) (163.50T). He accepted that the transfer to Lucy was part of his payment to buy Elias's interest (164.5T). His position was that the transfer of the land to Lucy was part of the payment to buy Elias's share "and the stock" (165.25T). But he insisted it had "nothing to do with the land" (165.26T). He accepted that he never received a share of the profits of GRQWC after the transfer of the Bossley Park property to Elias (165.30 - .44T). He accepted that he would not have transferred the Bossley Park property unless he was receiving something valuable in return, but he denied that the value was a share in the land, because he already had that (166.5 - .35T).
4. He categorically denied that the partnership arrangement involved each of the four partners having an interest in the land. The arrangement was in the business only (166.43T). Interestingly, he could not say whether any money changed hands either way on the transfer of the Bossley Park property (wrongly referred to as Fairfield) (166.47T). He reiterated that he could not recall "if there's some cash for me or for him. Or for [Elias] … we do it together" (167.38T).
5. When answering questions about the mortgage back arrangement on 4 September 2019 he said that the payments to the vendor were from GRQWC not PWC. He said that GRQWC paid off the vendor finance "over time" (170.45T - 171.1T). I interpolate that there was no mention by him of any payment from Wheels and Deals or his personal Citibank account. Again, interestingly, he seemed to regard the repayments of the mortgage-back from the GRQWC account as having "nothing to do with Issa, nothing to do with Elias" (171.11T), which must clearly be wrong. He insisted the profits forgone by making those repayments was profit that flowed to him and George Shukri and by implication not to Issa and Elias (171.17T).

Cross-examination on 20 October 2020

1. In further cross-examination by Mr Wood on 28 October 2020, Raymond identified a bank statement dated 16 May 1988 for what was then GRQWC's cheque account with the ANZ bank. It records the entry for the two deposits of Issa's funds on 11 and 13 April 1988. The photocopy of the statement had some English endorsements including the words "for 301 Church Street" (428.32T). There are also endorsements in Arabic adjacent to the deposits made by Issa. The Arabic endorsements were in Raymond's handwriting (428.43T). He was asked specifically about the third endorsement adjacent to the deposit of $16,926.54 on 13 April 1988, which he translated as meaning "from Issa settlement day" (428.49T).
2. Raymond denied that he endorsed the statement as an indication that Issa was making a payment in connection with his purchase of the land (429.12T). Raymond said that he had bought a lot of stock and had put other money into the business and applied Issa's contribution toward the settlement of the purchase. Raymond said that he had explained to Issa that he had spent a lot of money and told him and Elias, I infer, "when we need the money for the [settlement], I take the money from you" (429.5T). He insisted that the contributions from Issa and Elias had "nothing to do with the land" (429.44T). While he was not prepared to accept that Issa paid the full $100,000, he accepted he made the payments shown in the bank statement for 11 and 13 April 1988 which were applied to complete the purchase of the land (429.40T). Mr Wood challenged Raymond about paragraph 4 of his third affidavit and the payment which Raymond claimed was the final payment to discharge the mortgage-back. He was cross-examined by reference to Nida's "ledger" of the repayments to the mortgagee, which seems to record that the payment was in fact made to a company called FH Lock Leasing Limited and not JC Craft Pty Ltd (431.5T). Initially Raymond seemed to accept this. He did say, "That's long time, maybe 33 years" (430.29T). Although clearly uncertain about the details given the long effluxion of time, he agreed that all of the payments recorded on pages 1 and 2 of Nida's "ledger" covering the years 1988 to March 1993 were by cheques drawn on the bank account of GRQWC (433.8T).
3. He agreed that page 3 suggested that the cheque he had identified in paragraph 4 of the third affidavit was paid to FH Lock Leasing Limited, but his answer was somewhat uncertain (434.20T). He felt that was the amount he paid to discharge the mortgage. I interpolate that uninstructed by the evidence, it's not entirely clear whether F.H. Lock Leasing was the payee or the source of the funds. This impression is strengthened one considers that the financial records for 2003 record Raymond having made an additional capital contribution, notwithstanding the generally dormant status of his partnership interest, in the sum of $50,000 (see [35] above). Although not the same figure, it is of the right order of magnitude to suggest that Raymond did contribute to the final payment bas he said he did and as Nida's account supports.

Other lay witnesses

1. As I have said already, part of Issa's case that he has a beneficial interest in the land is what might be referred to as an admission by conduct by Raymond and Ghada signing a transfer of such an interest to him. Issa's evidence about this matter is summarised above, as are Raymond and Ghada's denials. It will be recalled Issa says that George Shukri declined to, or prevaricated about, signing the transfer which went missing, according to Issa.
2. Issa seeks to support his case in this regard through the evidence of Sylvia, George Shukri's granddaughter and a niece to the other parties. Sylvia, as I have said more than once, is a licensed conveyancer. Sylvia said that she had drafted the transfer at Issa's request. Because this was a non-paying family job, she did not open, keep or maintain a file, nor did she make a copy of the transfer she recalled preparing. She was uncertain as to when this happened giving a possible range of dates covering a four-year period from about mid-2008 to 2012. Unassisted she could not put it any more accurately because "It's been such a long time" (258.27T). She said, "I had 2011 in mind". She recalled that at the time she was working as an employee prior to becoming self-employed.
3. Under cross examination she confirmed that there was no record because it was work done "out of family obligation" (259.13T). She was cross-examined very closely by Mr Duc and was unable to be precise. She was aware that the question about the land has "been an ongoing issue for [the] family for quite some time now", but she drew the transfer on Issa's instructions. She did not speak to George Shukri, Raymond or Ghada about the matter before drawing the transfer. She cannot remember what share was to be transferred. Sylvia gives an account of Raymond, Ghada and George Shukri all being present at the one time at Issa's home.
4. This is somewhat different from the account Issa gave. His evidence is that Raymond and Ghada were present in Australia for the engagement of Issa's daughter and signed it at that time. George Shukri did not make the trip for that purpose, but he was at the wedding which is when Issa asked him to sign. The matter is somewhat complicated by the fact that Sylvia had prepared an application for replacement of a Certificate of Title relating to George Shukri's home on George Shukri's behalf. She had an understandable reluctance to witness documents she had prepared out of family obligation for family members and the colleague who witnessed that application is the same colleague said to have witnessed Ghada and Raymond's signatures on the transfer. The application is dated 28 June 2011 (Exhibit A). When she was shown the document in cross-examination she said that helped her date the preparation of the transfer to 2011 as she felt she prepared both documents at the same time. 2011 is also when Issa's daughter became engaged.

Impression of the lay evidence

1. I think it convenient to deal with this other lay evidence before going on to determine the substantive issues. First, I am not satisfied that Nida attempted to influence Sylvia in the evidence she was to give at the hearing. Given the seriousness of this allegation, I have borne firmly in mind the provisions of s 140(2) Evidence Act 1995 (NSW), giving effect to the well-known principle in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. There would have been no point in Nida making such a statement as Sylvia's evidence was already contained in her affidavit which had been served, as Nida probably would have known. Moreover, there was no threat of consequences for Nida made. The meeting between them otherwise appeared to be affectionate and I am not persuaded on the balance of probabilities that Sylvia's evidence is correct. Notwithstanding the mutual affection, there may have been a degree of tension given that the litigation has apparently divided the Hanania family into opposing camps and Sylvia is giving evidence in Issa's case, just as Nida had given evidence in the plaintiffs' case. I think the more likely explanation is that there was some misunderstanding between them about what was said. I am not persuaded that Nida sought to influence Sylvia's evidence.
2. Nor am I satisfied on the balance of probabilities that Ghada and Raymond signed a transfer prepared by Sylvia at the request of Issa. The evidence is not advanced by Ms Vuong because her recollection is just as indefinite as Sylvia's and Exhibit A provides a perfectly logical explanation for the attendance of both Sylvia and Ms Vuong, if not upon Raymond and Ghada then at least upon George Shukri. It was clear that both Sylvia and Ms Vuong's recollection was at best extremely challenged by the effect of the passage of time. Ms Vuong, understandably, cannot even say from her own recollection what the document was nor how many people signed it. She could not really recall more than one document. It seems to me the most likely explanation is that given the absence of records and the passage of time, the purpose of the after-hours excursion to Issa's home to obtain the signature of George Shukri was the completion of the application for the replacement of the Certificate of Title to his home (Exhibit A).
3. The admissibility of the evidence is not enhanced by the consideration that Issa and Elias both make reference to the alleged transfer, nor frankly, am I impressed by the evidence of the apparent theft of it. This is really a matter where the passage of time, the filter of family dispute and the spectre of self-interest has at best produced a false recollection. Notwithstanding some other like admissions made in the course of oral evidence by each of the plaintiffs to which I will make further reference below, the general position adopted by each of George Shukri, Raymond and Ghada has been one of adamantine denial of any agreement to grant an interest in the land as opposed to the business. While their position too may be coloured by the factors to which I have referred, I am not persuaded that this represents a late development in their thinking. I should also say that were one to accept the evidence of the missing, but signed transfer, George Shukri's alleged prevarication in respect of signing it was not capable of amounting to evidence supporting the case that Issa and also Elias advance. Elias's evidence of George Shukri having the transfer in his possession at a late stage in the development of the dispute is not one which emanated from Issa unassisted by reading Elias's affidavit.

Valuation evidence

1. As against the possibility that he would be successful in establishing an equitable interest in the land, but I was unpersuaded that the declaration of a constructive trust was the appropriate remedy in the circumstances, Issa read the affidavit of Kevin Kwok, licensed valuer on an unspecified day in August 2019, but filed on 1 September 2019. Mr Kwok was not required for cross-examination and his detailed report of 27 August 2019 complies with the requirements of the rules for the admission into evidence of expert evidence. Mr Wood SC submitted I would adopt Mr Kwok's valuation were I to consider an award of equitable compensation the more appropriate remedy in the circumstances.
2. As Mr Kwok's opinion is not disputed, it is unnecessary for me to analyse the content of the report or the basis of Mr Kwok's opinion. He has undertaken an assessment of the market value of the land by the comparable sales method. He defined market value as the price that would be negotiated in an open and unrestricted market between a knowledgeable, willing, but not anxious buyer and a knowledgeable, willing, but not anxious seller acting at arms length within a reasonable time frame. In his opinion, as at the date of his report of 27 August 2019, the market value of the land is $2 million.

Relevant legal principles - the land

1. Issa's cross-claim is founded upon Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 ("Baumgartner"). He seeks the declaration of a constructive trust over the land. It is generally recognised that "the origin of such trust can be found in the decision in Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 at [618] - [620] ("Muschinski") as approved in Baumgartner at [147] - [148]"; Nicolitsa Togias v State of New South Wales [2021] NSWSC 1588 ("Togias"); Sackar J.
2. The locus classicus in the judgment of Deane J in Muschinski is as follows: "The principle 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."
3. Parker J summarised the elements required to be proved by a claimant pithily in Woods v McKinley (No 2) [2021] NSWSC 1510 at [231] in the following way: "[the necessary elements to be established are]: (1) the formation of a joint endeavour between the parties; (2) the acquisition of property pursuant to that joint endeavour; and (3) the premature termination of the joint endeavour, leaving one party with a legal interest which that party was not intended to enjoy beneficially in those circumstances." Representation and detrimental reliance are not necessary elements.
4. To similar effect is the statement by Ward J (as her Honour then was) in Austin v Hornby (2011) 16 BPR 30,623; [2011] NSWSC 1059 at [159]: "In West v Mead [citation omitted] Campbell J (as his Honour then was) considered what was to be established before such a constructive trust could be imposed: first, that there be both a joint relationship or endeavour, in which expenditure is shared for the common benefit in the course of and for the purposes of which an asset is acquired (noting that the scope of the joint venture in which the parties were engaging may be of relevance and as Deane J in Muschinski considered, may change from time to time); second, that the substratum of that joint relationship or endeavour must have been removed or the joint endeavour prematurely terminated "without attributable blame"; and, third, that there must be the requisite element of unconscionability (namely, that it would be unconscionable for the benefit of those monetary and non-monetary contributions to be retained by the other party to the joint endeavour)."

Section 175 Corporations Act 2001 (Cth)

1. Section 175 of the Corporations Act is in the following terms: (1) A company or registered scheme or a person aggrieved may apply to the Court to have a register kept by the company or scheme under this Part corrected. (2) If the Court orders the company or scheme to correct the register, it may also order the company or scheme to compensate a party to the application for loss or damage suffered. (3) If: (a) the Court orders a company or scheme to correct its register of members; and (b) the company or scheme has lodged a list of its members with ASIC; the company or scheme must lodge notice of the correction with ASIC.
2. Black J summarised the principles in his decision of In the matter Motasea Pty Ltd [2014] NSWSC 69. At [47] his Honour said: "The authorities recognise that the applicant for rectification must show a personal equity that the Court will protect; prima facie such inequity is shown if a person's name is wrongly omitted from the register, however, the court has a broad discretion whether to order the correction of the register of members and may decline to order rectification if there is some reason why that should not occur" (Citations omitted).
3. Black J also referred to the decision of the High Court in Grant v John Grant & Sons Pty Ltd (1950) 82 CLR 1; [1950] HCA 54 at 51. There, Fullagar J said that the remedy is discretionary, but that where a person's name was wrongly omitted from the register this would prima facie in equity warrant rectification. I interpolate that this is the relevant consideration here. Black J also pointed out by reference to his previous decision in Re Mogul Stud Pty Ltd [2012] NSWSC 1639 at [7] that the principles of rectification under the general law are relevant "and those draw attention to where the position as recorded in the document reflects the common subjective intention of the parties".

Decision - the land

1. For the reasons I have fully rehearsed more than once, it's very difficult to rely solely upon the oral testimony of the parties in arriving at a conclusion whether Issa, on the one hand, and Elias, on the other, have established on the balance of probabilities a constructive trust proprietary in nature of a beneficial interest in the land as tenants in common and in what shares.
2. I have already explained why it is, with respect, that Ghada's evidence is to my mind not probative of any fact in issue, even indirectly. As to George Shukri, Raymond, Issa and Elias, their individual positions as well as the common position of George Shukri and Raymond and the opposite common position of Issa and Elias are so diametrically in opposition to one another that it is only when their evidence about events which occurred so long ago accord with, as I have said, the contemporaneous documents or the apparent logic of events that one feels confident to accept a particular evidentiary representation of any of them as supporting a particular conclusion about the facts in issue. Obviously, as the tribunal of fact, it is within my power to accept some, and reject other, parts of the evidence of any witness.
3. I would have thought that the most significant aspects of the evidence favouring the acceptance of Issa and Elias's claim are to be found in the financial records of GRQWC and PWC, the red journal, and the primary banking records, such as this last category is. In particular, the inclusion of the land from the outset of the partnership as a fixed asset of the partnership, and the substantial monetary contributions of both Issa in the approximate sum of $53,000 and Elias in the approximate sum of $63,000 at or about the time of the completion of the contract for purchase of the land are powerful factors favouring the acceptance of the version of each of them that the land was specifically mentioned in the discussions at least involving George Shukri, to whom Raymond obviously respectfully deferred, and Issa and Elias. It is not necessary to accept what Issa said about Raymond contacting him while he was overseas for the purpose of his marriage, or what Elias said about being in the company of Raymond when the availability of the land was first identified or that he set up the meeting between the vendor, John Craft and Raymond which led to the agreement to purchase the land.

Proprietary estoppel

1. Turning then to the alternative question of the case of Issa and the primary case of Elias based on proprietary estoppel by encouragement, of course representation, or promise, and detrimental reliance are necessary matters for the claimants to prove. On the evidence I have accepted and the findings of fact I have so far made, both Issa and Elias have established on the balance of probabilities that George Shukri, on behalf of himself and Raymond, who also spoke for Ghada, represented to each of them that by contributing $100,000 to the business and agreeing to work in the business as partners, they would obtain an equal share in the land and in the business. So far as the equal share in the business is concerned, it was implicit that they would share equally in the net profit of the business and contribute additional capital as required.
2. I am also satisfied that George Shukri's representation induced an assumption on the part of each of Issa and Elias that they would in future, perhaps in the near future, acquire a one-quarter share of ownership in the land and that they relied upon the representation and assumption it had induced in making their capital contributions and devoting their energies, including their labour, to furthering the business enterprise of the partnership.
3. Naturally there may be other factors that would lead a person to take up the opportunity of entering a business in which the senior partner was experienced and the business held the promise in its own terms of generating a profit producing a reliable income stream. However, I am satisfied in the case of each of Issa and Elias that the representation that they would acquire not only a share in the business, but also a share in the land, was a significant factor, taken into account by each of them when deciding both to make the contributions they did to the business, to enable it to complete the acquisition of the land and acquire stock, and by committing themselves to future discharge of the responsibilities of a partner including making additional capital contributions when called upon and working in the business to promote its success. I am satisfied that the assumption or belief induced by the representation made by George Shukri was a very significant contributing cause to the course of conduct followed thereafter by Issa and, for a significant period, by Elias. I would emphasise that in all of this, the significant initial cash contributions made should not be overlooked, notwithstanding Raymond's belief that their cash contributions were no more than was required to gain entry to the incipient business without an interest in the land.

Decision - the shareholding in Parramatta Wholesale Cars Pty Limited

1. Although I have made it clear that I do not accept the whole of George Shukri's evidence for the reasons I have rehearsed at length, I accept his evidence (at 497.43T; extracted above at [190]) that GRQWC and PWC, "both of them are the same company" because in my assessment of the evidence this accords better with both the content of the contemporaneous documents and the apparent logic of events than Issa's case that PWC was an entirely new venture wholly owned and controlled by him and that George's only involvement was that he was good enough to extend a loan to Issa so he could use the company to buy lots 3 and 4 Parramatta Road. However, I do not accept George Shukri's evidence that he, and not Issa, wholly owns and controls PWC. His statement that GRQWC and PWC "are the same company" belies that conclusion. What is clear from the financial records of GRQWC including the 1999 trial balance is that when the transition from GRQWC to PWC occurred, George Shukri and Issa were the last two remaining active partners who notwithstanding their differing capital contributions were entitled to share equally in the profits of GRQWC. It would be absurd if Issa was entitled to arrogate the business to himself by the simplest device of incorporating a company.
2. Having said that, I accept that PWC was incorporated for a different purpose, that purpose being to provide a means of allowing Mr Andrews to participate in the profits of GRQWC. It's unnecessary to say whether or not Mr Andrews was supposed to make a financial contribution, but the impression I have formed of George Shukri is that probably he was and he failed to do so. I also accept that he was the type of persuasive salesman who made promises he could not keep and there were issues with the Department of Fair Trading. I accept that he left or was forced to leave in or about March 1998 when George Shukri was appointed a director. I am also of the view that from that time the idea developed that it may be more advantageous to run the business of GRQWC through a corporate entity and over the next 12 or so months, the transition I have referred to occurred. I should make clear apropos of my observations above (at [47]) that notwithstanding the annual returns of PWC showing an ongoing shareholding by Mr Andrews after 17 March 1998, that this is "simply erroneous".

Decision - the rent claim

1. The effect of my findings so far is that obviously George Shukri, Raymond and Ghada cannot pursue a claim for arrears of rent against Issa personally as he is, in equity, a tenant in common with them and in any event, it is common ground that since the late 1990s PWC has been the "tenant" on a periodic basis.
2. Mr Wood advanced a number of detailed arguments about the lease and rent claim (written submissions [72] - [78]). As I have indicated his primary argument was that given the intra-familial aspects of the case and the absence of formality in the establishment of the pre-incorporation arrangement about the payment of "rent", I would not be satisfied that there was an intention to enter into legal relations in relation to that matter.
3. I am satisfied that although the arrangements were somewhat informal that there was an intention to create legal relations, even though so far as GRQWC's possession of the land was concerned, each of its partners at all material times had enjoyed the unity of possession characteristic of tenancy in common. Neither was entitled to exclude the other and all were entitled to use the land for proper, lawful purposes. As I have said, these rights no doubt were capable of being adjusted amongst the tenants in common by agreement. There was no law against tenants in common agreeing that one or more of their number will forsake his or her entitlement to possession of the land for a period provided the arrangement is supported by valuable consideration.
4. Although PWC is a company, in accordance with my findings, controlled by two of the tenants in common, no doubt a lease may be granted to it by other tenants in common permitting it to use the land to the exclusion of the lessor. And although Mr Woods has set out the formal requirements of the entry into commercial leases in his written submissions, it seems to me that a lease arrangement even over commercial premises can be established on a periodic basis by the proffering and acceptance of rent, as occurred here on a month-to-month basis. And I am satisfied that there was a lease between PWC and Raymond and Ghada by which the latter let their interest in the land including their right to possession, to the exclusion of them by PWC: State of New South Wales v Koumdjiev (p. 361 [33]). I accept that that is what occurred here.
5. Raymond, on behalf of himself and Ghada, fully appreciated that PWC was controlled by both George Shukri and Issa. I am not satisfied that Issa unilaterally reduced the rent from $3,000 rent per month to $2,750 per month without Raymond's agreement however highhandedly Issa may have conducted himself. It is notable that in his first affidavit, Raymond said he was informed of the reduction in rent by Issa and George Shukri. Although he says he did not agree to it, I do not accept his evidence. I accept Raymond was not happy about the reduction of the rent, but given his father's involvement he accepted it, albeit through gritted teeth.

Possession

1. As I have said, the notice to quit (Exhibit B) was erroneously issued in purported reliance upon the provisions of the Residential Tenancies Act 2010 (NSW). It was directed only to Issa and his son, Steve and not to PWC which on any basis was the ongoing lessee. The only ground given in the notice was the non-payment of rent, for which on the findings I have made, PWC was not liable as at 26 October 2016 when the notice was given.
2. The filing and serving of the Statement of Claim may of itself have been sufficient notice of ejectment to a person in adverse possession, but not to a party like PWC which until then had enjoyed a gratuitous licence to occupy that part of the land left to it in January 2018. But, of course, more fundamentally, George Shukri, Raymond and Ghada cannot exclude Issa from land of which he is beneficially a tenant in common. In my view nor can they exclude the corporation by which means he, in common with George Shukri, exercises his right to possess and use the land in a proper manner for lawful purposes. Given Issa's, and through him PWC's compliance with Raymond's request to allow Raymond's son use of an appropriate use of a portion of the land it can hardly be said that Issa's possession and use is excessive or unreasonably restricts the use of co-tenants in common. Even if it did, the remedy available to the co-tenant would not be judgment for possession, but a compulsory sale under s 66 Conveyancing Act 1919 (NSW), which the plaintiffs have not sought: State of New South Wales v Koumdjiev (p. 361 [32]).
3. In the circumstances proceedings for possession should be dismissed.

Orders

1. For these reasons, I make the following orders: 1. Declare that George Shukri Hanania, Raymond George Hanania and Ghada Hanania hold the land in folio 44/950742 and known as 301 Church Street, Granville on constructive trust for Issa Hanania as to a one-quarter share as tenant in common and for Elias Hanania as to one-quarter share as tenant in common. 2. Dismiss the plaintiffs' proceedings for possession of the said land. 3. Declare that George Shukri Hanania is entitled to an order under s 175 Corporations Act 2001 (Cth) for the correction of the register of members of Parramatta Wholesale Cars Pty Ltd to show that he holds an equal number of shares in the company to Issa Hanania. 4. Dismiss the claim for arrears of rent. 5. The parties to confer and agree upon orders necessary to carry these decisions into effect and bring in short minutes of order by 30 June 2022. 6. In default of agreement, each party to lodge with the chambers of Campbell J by that date a minute of the orders propounded and a short submission in support not exceeding three pages. 7. Subject to any application for any special order as to costs made in writing within 14 days of the date hereof, the plaintiffs are to pay the defendants and the first cross-claimant's costs of the proceedings, excluding the costs referable to the first plaintiff's claim for an order under s 175 Corporations Act 2001 (Cth), and the second cross-claimant's costs of his cross-claim. 8. The second defendant is to pay the first plaintiff's costs of the application for correction of the register of members of the first defendant under s 175 Corporations Act 2001 (Cth). 9. Subject to the preceding orders, liberty to apply reserved in respect of the form of orders and the questions of costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 June 2022