Hanania v Parramatta Wholesale Cars Pty Ltd

Hanania v Parramatta Wholesale Cars Pty Ltd - [2022] NSWSC 806 - NSWSC 2020 case summary — Zoe

[2]

Judgment

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.
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.
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.
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]).
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.
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.

[3]

Other members of the Hanania Family

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.
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.
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.
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.
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.

[4]

Distillation of the issues

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.
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.
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.
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.
Each camp of the Hanania family has engaged in various machinations over the decades to wrest control from the other. I am, of course, not concerned so much with these machinations as with the substance of the case. To a large extent the machinations have been a distraction.

[5]

A cautionary note

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.
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.
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.
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.)
As Leeming JA (sitting at first instance) recently pointed out, where the decision at hand requires the resolution of conflicting, indeed diametrically opposed, testimony, "the convenient course is to start with context and the contemporaneous documents": Aerolink Air Services Pty Ltd v Bankstown Airport Ltd [2022] NSWSC 587 at [21]. With respect, in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31], Gleeson CJ, Gummow and Kirby JJ referred to the modern trend for judges, including trial judges "to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events."

[6]

Objective facts and contemporaneous documents

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.
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.
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
It is known from Nida's evidence that payment of at least part of the capital contribution of both Issa and Elias preceded settlement of the purchase of the land.
The amounts reflected in the financial statements of the partnership are perhaps not necessarily inconsistent with George Shukri, Raymond and Ghada purchasing the land separately with their own funds. However, the aggregate, total capital contributions of the partners during this first period of operation of the business is $364,796. This, of course, would leave a significant surplus over the amount $200k paid by the purchasers to acquire the land.
The total cost of purchasing, registering and reconditioning used car stock is shown as $361,897.45 (including "closing stock" of $132,526), approximately $65,000 in excess of gross receipts. Doubtless the reconditioning work added significant value to the stock. The balance sheet shows only $25,044.87 cash at bank. Had George Shukri, Raymond and Ghada paid $200,000 for the land with their own money over and above the capital contributions shown in the financial statement, one would have expected a larger sum of cash on hand to be available at the end of the financial year.
Indeed, if one deducts total costs from capital contributions and adds back total sales, a surplus of $299,900.96 is produced. Total operating expenses over and above the costs of sales are just under $11,500, hardly making a difference. Clearly, the capital contributions of the partners were more than adequate to cover the cost of acquisition of the land (with the mortgage-back) which itself is shown in the accounts of the partnership as a partnership asset.
Taking these matters together, the position established by the partnership accounts tends more to support the case presented by Issa and Elias than that of George Shukri, Raymond and Ghada. Moreover, the detailed partnership accounts proving the contributions of the partners, listing the land as an asset of the partnership and the mortgage-back as its liability strongly suggest that the land was in fact a partnership asset in respect of which each partner had a personal interest: see s 22 Partnership Act.
It is apposite to record here, in her affidavit sworn on 22 August 2019 Nida states (at [17] - [19]) that she paid the mortgage to JC Craft Pty Ltd from the partnership business account. She annexed a "true copy of the ledger" in her handwriting of what was paid to JC Craft Pty Ltd. While the document does not have the look and feel of a primary book of account, no party questioned its authenticity, or its accuracy. It shows, and I accept, that the loan was paid off mainly from the partnership bank account between May 1988 and April 1993. Nida's ledger shows the total amount paid in the 1988 financial year, effectively for the months of May and June, is $7,950, which tallies with the amount shown as interest in the profit and loss statement I have referred to above.
I interpolate that Mr Duc, doubtless for reasons different from Mr Wood, submitted that no reliance could be placed upon the land being listed as an asset in the GRQWC partnership accounts. He argued, the accounts are not primary records and are clearly unreliable as later accounts list the adjoining land at 295 and 305 Church Street respectively which were not utilised for the partnership business. With respect, this is not correct. It is common ground that George Shukri, Issa, Elias and their wives are the registered proprietors of 295 and 305 Church Street. The balance sheet forming part of the 1990 financials, which appear to be a draft only and which are annexed, inter alia, to Issa's affidavit of 19 December 2018, also lists freehold land and buildings as a fixed asset. By reference to the value ascribed, I infer this to be another reference to 301 Church Street. However, the balance sheet for the 1991 financial year lists each of 295, 301 and 305 Church Street by name as fixed assets. Other evidence shows that this was after Raymond was said to have been bought out of GRQWC at his own request and before Elias left active involvement in the partnership on what appears to have been 9 January 1992. These three properties continued to be listed as assets of GRQWC at least until the financial statements for the 1999 financial year. Thereafter accounting practices seemed to have changed following a change in accountants and there was a reversion to the practice of simply referring to "freehold land" (see Exhibit 8 generally). Were it an issue, I would regard these partnership accounts as at least some evidence that the three properties were partnership assets; some evidence, perhaps entitled to considerable weight? But the ownership of the adjoining land is not in issue. This gave rise to objections about evidence about its ownership being admitted on relevance grounds which were not hotly contested. However, after Elias's joinder it became apparent that all of the partners' dealings for and with the business may have some relevance to issues to be determined in the case and the evidence was later re-introduced without objection.

[7]

Raymond ceases to participate in the GRQWC partnership

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.
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.
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.

[9]

Elias ceases to participate in the partnership

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.
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.
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.
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.
Moving ahead to the year 2000, GRQWC generated no trading income, there were other comparatively modest amounts earned from other sources, and the non-current assets including property remained about the same. This non-trading profit was distributed equally between George Shukri and Issa. While Elias was mentioned in the partners profit summary, there is a nil distribution. And for the summary of proprietor's funds, I infer erroneously entitled Partners Loan Accounts Summary, the positions of Raymond, George Shukri and Issa remain unchanged, but Elias, who is named, is shown as entitled to no proprietor's funds (Exhibit 8, tab 54). By contrast, for the year, PWC had gross sales in excess of $2m and a trading profit of $338K.
These financial records tend to suggest that Elias withdrew from the day-to-day business of the partnership on 9 January 1992, but had some continuing involvement as evidenced by the small capital contribution and distribution of profits subsequently. Moreover, he remained on the books as a more or less dormant partner, like Raymond, until the 1999 financial year, which seems to have been the last year in which GRQWC traded in used car sales. Given the apparent withdrawal of his proprietorship funds, the raising of the liability on the part of GRQWC to him and Lucy in the sum of $130,000 and the removal of 295 Church Street, where he traded as "Auto Alley Family Cars", from the books there is the appearance that there may have been a settlement with him whereby he relinquished his interests to "purchase" 295 Church Street.
There are two difficulties with this scenario. First, a real property search of the land known as 295 Church Street dated 25 October 2020 shows the registered proprietorship as unchanged and in the hands of Elias, Issa, George Shukri and their respective spouses as tenants in common in equal shares (Affidavit Muhammad Elias Attia affirmed 26 October 2020, [17], annexure MEA-4, p. 67). This may not be unusual within the Hanania family. Attention to legal detail is not at a premium despite their apparent success in business. Moreover, the land is mortgaged to the Australia and New Zealand Banking Group Limited which other evidence demonstrates continues as PWC's financier. ANZ is also the banker for other family members including George Shukri. The second point is that although Elias said in an affidavit filed that he was under pressure from George and Issa to buy them out of 295 Church Street, because he had exclusive use of it, none of them give evidence that that is what happened to bring Elias's involvement in the partnership to an end. Let alone, what appears from the accounts. In the event Elias did not read the pertinent portion of his affidavit (sworn 17 April 2020) dealing with ownership of 295 Church St.

[10]

Interim impressions about the partnership position of Raymond and Elias

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.
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]).
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.
According to GRQWC's records, the position therefore seems to be that Raymond and Elias separately ceased working in the partnership to pursue other interests at different times. Each seemed to retain a financial interest, even if in Raymond's case effectively as a debtor of the partnership. While the records support the liquidation of Elias' interest during the last year of trading in 1999, they do not provide evidence which supports the transfer of Elias' interest to Raymond. It is notable that no party chose to call evidence from the two different accountants who prepared the accounts or evidence explaining their absence. Their evidence might have clarified the position suggested by the accounts themselves in a meaningful way. Issa and Elias had an interest in clarifying the position given their assertion of a beneficial interest in the land. Equally, George Shukri had an interest in calling such evidence given his assertion that he is the person ultimately entitled to control PWC. There are other aspects of their financial dealings that probably could have been explained by the person who was from time to time the accountant for the business.
I will review and evaluate the oral evidence of the witnesses before making final findings of fact in relation to the position of Raymond and Elias vis a vis the partnership, if I can. Objectively, there can be no real question that Issa and George Shukri continued to carry on business in the partnership after Raymond and Elias ceased day to day involvement to pursue their separate interests.

[11]

The payment of rent

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]).
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.
After yet further disputation about financial arrangements in relation to the land, on 16 January 2017, after the expiration of the notice to quit, Raymond, and his son George, with Elias' assistance, partitioned the land along its notional centre line and erected a fence (as I have stated above). To do so it was necessary for Raymond to move Issa's stock without his prior permission. Raymond freely admitted to these actions.
There is no dispute about these basic facts relating to the rent case. Essentially, the dispute relates to whether there was ever an intention to create legal relations by way of a commercial lease of Raymond's interest in the land as a co-tenant. Issa's case is that the absence of a formal executed lease and the lack of observance of standard conveyancing practice in relation to the formation of commercial leases indicate an absence of any intention to enter into legal relations. Issa says the payment of money to Raymond was a family or domestic arrangement for Raymond's benefit. I will resolve these issues below.
The second significant matter concerning the payment and acceptance of "rent" is Mr Duc's argument that this circumstance is a powerful indicium that the land was never part of the property of the GRQWC partnership. Given the unity of the right to possession, which is characteristic of a tenancy in common, the payment of rent by Issa to Raymond and Ghada was powerful evidence that Issa had no beneficial title to the property, nor any belief in such an entitlement.
While I fully accept that the unity of possession shared by tenants in common is characteristic of that form of joint ownership, notwithstanding the consideration that each tenant in common has a distinct share or interest in the property, it is clear that one tenant in common may transfer or lease his, her or its interest to another person, at least, so as not to exclude the rights of a co-tenant: State of New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247 at [32] - [33], Hodgson JA. There seems to be no legal reason why a tenant in common could not lease his, her or its interest to a co-tenant even by way of periodic tenancy permitting the co-tenant to use the land to operate a business to the exclusion of the tenant in common during the term of the lease. Although the unity of possessions means that one tenant in common is not entitled to exclude another from possession, it is otherwise if the excluded tenant has permitted his, her or its co-tenant exclusive possession under a contract supported by valuable consideration. In these circumstances, the payment of rent by Issa to Raymond would not be irreconcilable with Issa having an equitable title to the land as a tenant in common.
It is also important to bear in mind that, legally, Issa was not paying the rent in his own interest or on his own behalf. Initially the rent was paid out of the funds of the GRQWC partnership and later, after PWC became the commercial vehicle through which the business of GRQWC was conducted by PWC which, certainly in later years, Issa effectively controlled. It is not suggested by Issa, or anybody else, that PWC has any beneficial interest in the land.
I do not regard the payment and acceptance of rent as any way decisive in the particular circumstances of this case of the question of whether Issa, and Elias for that matter, have a beneficial interest in the land. It is a consideration that may have some relevance.

[12]

What the documents show about Parramatta Wholesale Cars Pty Ltd

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.
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.
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).
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.
From PWC's figures for the year ended 30 June 2001, sales for 2000 were $2.75m and in 2001, $1.36m. Perhaps surprisingly the gross trading profit was similar in each of those years. In 2000 it was $339K and in 2001, $300K. Its balance sheet recorded, inter alia, interest-bearing liabilities in 2000 in the sum of $802K and 2001 of $765K. It is important to record, having regard to what is behind the dispute about the shareholding in PWC, that those liabilities probably include the loan I have referred to from GRQWC and a mortgage, originally in the sum of $400,000 from ANZ bank in relation to the purchase of lots 3 and 4 Parramatta Road.
Lots 3 and 4 Parramatta Rd., Granville were bought at auction on 7 May 1998 for the purchase price of $405,000 and $465,000 respectively (Exhibit 8, tabs 46 and 47). The purchase was partly financed through a fully drawn advance facility with ANZ Bank in the sum of $400,000. The approval specifically provides that the purpose of the loan is the purchase of two blocks of land at Granville. It stipulates "You must not use the loan funds for any other purpose without obtaining ANZ's approval in writing" (Exhibit 8, tab 48, p. 532). At the same time an overdraft facility in the sum of $140,000 was provided to PWC by ANZ for working capital. The fully drawn advance was provided to PWC and not to any individual members of the Hanania family. Security for both facilities was to be provided by a registered mortgage over each of lots 3 and 4 and a floating charge over all of the assets and undertakings of PWC. George Shukri (and Elen) and Issa (and Fayrouz) were guarantors.
The purchases settled on 22 June 1998 (Exhibit 8, tabs 51 and 52). Apart from the funds provided by the fully drawn advance, there is an issue about the source of the funds. Exhibit 8, tab 52 is a copy of handwritten working papers of PWC's then accountant dated 9 June 1999 detailing calculations in relation to the purchase of Lots 3 and 4. I would infer that work was done for the preparation of the financial accounts for the financial year ending 30 June 1998. Mr Duc submits (the plaintiff's submissions at page 7, [53] to [65]) that the working paper shows George Shukri contributing $328,757.03 of his own money to the purchase. There seems to be no dispute that this is so. The question is whether it was loan to PWC which Issa claims has been repaid.
Given the issue not much turns on this but the calculations are very faint in the form in which they have been reproduced in the original exhibit. For this reason and because they are, albeit quite neatly, handwritten they are quite difficult to decipher. However, I do not read them as attributing that contribution of $328,757.03 to George Shukri personally. There is a notation of "GR Car Sales" contributing "$9000". But the entry which Mr Duc submits I should attribute to George Shukri seems to be referrable to "ex GR (indecipherable) PC", although I cannot be sure. Certainly, it does not equate to either GS Hanania or G and E Hanania. There is a separate amount of $30,000 in respect of which the accountant has clearly written "paid by I and F Hanania (partners of G and R)". It seems to me that the reference to "G R" in the contentious entry is probably a reference to the partnership.
In so concluding, I have taken into account the financial statements for the partnership as at 30 June 1998 (Exhibit 8, tab 45). That document shows that in 1997 there was a loan of $3,000 only to PWC and for 1998 a reference to the loan to PWC I have already made mention of in the sum $461,421.03. The working paper also records that the aggregate purchase price for both lots was $870,000 and that the deposit of $87,000 was paid "ex GR", clearly a reference to the partnership, leaving a balance of $783,000. The accountant's workings do not include other related fees and charges including for the bank loan and legal fees. However, if one deducts the $400,000 mortgage, "ex ANZ Bank", from the $870,000 purchase price, one of course, is left with a figure of $470,000 which is in the near vicinity of the amount of the 1998 loan to PWC.
It is also relevant to record that the "Partners Loan Account Summary" for GRQWC for the 1998 financial year do not show any significant increase in George Shukri's capital contributions when compared with the 1997 year. Each of George Shukri and Issa are recorded as having made an additional capital contribution in 1998 of $10,000.
Mr Attia has annexed the transfer in respect of each of Lots 3 and 4 to his affidavit of 26 October 2020. Nida, as secretary, and George Shukri, as director, have witnessed the affixation of the common seal of PWC to each transfer. However, this says nothing, with respect, about the source of the monetary contributions to the purchase price. This is only entirely consistent with the usual conveyancing practice at the time whatever the source of the funds.
I re-emphasise however, it is common ground that George Shukri contributed in some form about $300K from funds he had, mainly overseas. This contribution does not show up in the records that were tendered, other than, by implication perhaps, in the loan from GRQWC. On Issa's account the $300K was a loan from his father that he repaid over the years from PWC funds (340.14T; 341.20T; 342.49T). George Shukri and Nida denied the contribution was a loan (113.15 - 37T; 114.35T) (48.37 - 47T; 49.8T - 50.35T). Looking more closely at PWC's financial statements for the 2001 financial year (Exhibit 8, tab 55) the non-current liabilities include $460,009.80 described as unsecured loans from other persons (p. 572). The secured bank loan is dealt with separately. PWC's financials for 2002 show that the category of loans from other persons has grown to $562,361.67 while the secured bank loan (apart from the overdraft) is reducing. PWC's financials for 2004 year (Exhibit 8, tab 58) give clearer particulars showing the amount of the loan then outstanding due to GRQWC as $530,839.13, which is equivalent to the figure shown in GRQWC's financial statement for 2003 year (Exhibit 8, tab 57). The PWC 2004 financials show an unsecured loan to George Shukri in the sum of $204,576.83, which is grown from $133,917.80 since the previous year. By 2008, the last year of PWC's financials in evidence, the unsecured debt due to George Shukri is $289,418.96 and to GRQWC $625,376.82. For each year there was also a loan due to Issa which in 2008 had grown to $320,055.75. When considering the significance of these matters, it needs to be borne in mind that George Shukri and Issa, given Raymond's negative financial position, were the last partners standing. Incomplete as they may be these financial records support loans from the partnership and from George Shukri and Issa individually to PWC, but not the repayment of those loans. GRQWC's financials for 2003 (with Comparative figures for 2002) show "other income" over very small bank interest as $24,259.94. Arguably this could be interest on the loan to PWC but there is no corresponding entry in PWC's financials for 2004, which also recite the 2003 figures. While all of this is not inconsistent with George Shukri's contribution being made by loan through GRQWC it is not positively probative of it. And the figures do not provide evidence of the repayment of such a loan. I should also say the "the income" provided most of GRQWC's profit which was divided equally between George Shukri and Issa.
Mr Attia also annexes a number of ASIC documents relating to PWC. From those documents (Annexure MEA - 2) it is apparent that the annual report of 19 January 2000 was still listing Mr Andrews as one of the two shareholders of PWC. By the annual report lodged on 5 February 2001, Issa appears as the sole shareholder. It is also apparent that despite being appointed a director on 17 March 1998, George Shukri was not allocated any shares in PWC. He and Raymond took matters into their own hands in January 2018 by changing the company details in respect of members shareholdings to exclude Issa and substitute George Shukri. Issa rectified this by "ratifying" by resolution the removal of Nida as the company secretary on 31 May 2017 and the removal of George Shukri on 12 January 2018: minute of meeting of 29 August 2019 (Exhibit 8, tab 74). As I have said, at the same time he purported to remove George Shukri as a shareholder restoring his own status as "sole shareholder".
It is in the context of these matters and PWC apparently assuming the business of the GRQWC partnership that George Shukri seeks correction of PWC's register under s 175 Corporations Act.
I will now deal with the oral testimony before stating my conclusions about the matters in dispute.

[14]

Nida Hanania

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.
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".
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.
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).
Nida states that Lots 3 and 4 Parramatta Rd were purchased for PWC by George Shukri providing "around $300,000" and a bank loan from ANZ (Affidavit [26] - [27]). No records are attached or produced corroborating a direct contribution by George Shukri. The only document referred to is the transfer to which I have made reference to above.
After the company was incorporated, the rent to Raymond was paid from the company account. Until she received the advice of her solicitor, Nida was unaware that Issa had removed her from the office of secretary.

[15]

Cross-examination

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).
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).
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).
When cross-examined on the ASIC records, Nida agreed that George Shukri was not a director of PWC when it was first established and until March 1998 (38.12 - .25T). Nida insisted that Mr Andrews was supposed to pay a sum of money to George Shukri "to get into the business". Nida said that Mr Andrews had to leave because of complaints from the Department of Fair Trading about his conduct and because he failed to put the promised money into the business (44.35 - .49T). As I have said, Nida denied that the $300,000 paid by George Shukri in connection with the purchase of Lots 3 and 4 Parramatta Rd was a loan (49.10T). She denied that deposits in George Shukri's ANZ bank account on 7 January 2010 and 16 February 2010 were examples of periodic loan repayments made by PWC to George Shukri (50.12T). She denied that the $300,000 was repaid to him (50.35T). There was no exploration of when Nida moved to Jordan as her principal place of residence or how that may have affected her opportunity to know relevant facts from her own perception.
After Nida's evidence had concluded, later in the hearing evidence was taken from Sylvia , the niece who is a licensed conveyancer, who gave evidence of having prepared a transfer for signature by Raymond, Ghada and George Shukri transferring an interest in the land to Issa. Sylvia said that Nida had said to her at court before she gave evidence, "Don't say you prepared the transfer". From this I am asked to infer that Nida had sought to influence Sylvia's evidence in a manner favourable to George Shukri and Raymond and that this reflects poorly upon her credit.
Nida was re-called to allow her the opportunity to answer this charge. She denied that she had said the words attributed to her by Sylvia (416.37T). Nida said Sylvia had said to her that she had prepared the transfer and Nida responded, "if you did, please say it" (416.44T). She denied attempting to influence Sylvia's evidence. The incident at least suggests there may have been intra-familial agitation about ownership of the land for some time before the dispute ended up in court as Sylvia suggests.

[16]

Ghada Hanania

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.
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.
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).
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".

[17]

Cross-examination

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).
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).
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).
Ghada said that she was not a regular employee of GRQWC, but if asked she would go there "for an hour or two" or to take or bring a document (78.35 - .46T). She agreed that there were disputes at work because Raymond would "make all repayments for whatever we used to spend from profits" (83.20T). She could not recall the details of Raymond leaving the partnership and then seeking to buy back in (83.30 - .40T). Ghada said that when she and Raymond were planning to move to Queensland Elias and Lucy wanted to buy the house. She believed that the transfer did not take place (84.25T).
I interpolate that it's very difficult to rely upon Ghada's evidence as being probative of any fact in issue. Without any criticism whatsoever, it is clear that Ghada had her hands full and was working very hard as a homemaker and mother of five young children during the period when the central events occurred. That is entirely understandable. It is apparent to me, as she said herself, that although Raymond would discuss important matters with her, no doubt valuing her opinion, she would leave it to him to make final decisions himself. I am satisfied that she left financial matters in his hands on that basis and that she had no time to take a close interest in all the details, being satisfied that she could rely upon Raymond to make such decisions in the best interests of each or both of them.

[18]

Issa Hanania

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.
Other minor players gave evidence, being Sylvia, Ms Vuong and Issa's son, Steve, and I will refer to their evidence last.
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.
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".
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.
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".
A short time later George Shukri spoke to Issa and Elias together. I interpolate that according to Nida, Issa and Elias were living with George Shukri then. Raymond was not present, as he made clear in his oral testimony. Issa states that George Shukri said: "Alex, we want you and Elias to join us in the caryard business. We don't have enough money to set up the business or stock. If you pay $100,000 each you will own one-quarter of the land and we will be equal partners in the business". Issa says that he initially turned George Shukri down, but the latter was persistent and his mother importuning, so he changed his mind.
There was a later meeting of the family at George Shukri's home when Raymond and Elias were also present. George reiterated his offer in similar terms saying: "You come to the business, and we go together and get an equal share". Raymond said: "The deal is each of you pay $100,000 into the business and you will get one-quarter share each in the land and be equal partners in the business" Issa said he would "come in on the condition that I get a share in the business, and I get a share in the land". His evidence is that his father George Shukri said, "OK we will be equal partners in everything". To which Issa replied "OK, I agree". Elias too, agreed.
Issa's evidence is that he paid his contribution by the two deposits I have referred to already of 11 and 13 April 1988 and the balance by way of stock purchases and other costs of the business. It is convenient to state now that given the evidence, both George Shukri and Raymond were prepared to accept Issa had made the deposits, but Raymond regarded the question of whether he had paid the balance as a matter for Issa still to prove (Raymond: 429.20 - .40T; George Shukri: 102.10 - .15T; 104.30 - .45T: and 105.15 - .22T).
Issa was aware that on completion of the purchase of the land, the registered proprietors were George Shukri, Raymond and Ghada. He was not concerned about this as he "trusted [his] father and brother" (Affidavit [19]). In reliance upon the agreement with his father and brothers, Issa operated the business with them and worked in it in the belief that he would receive what at that time would have been a one-quarter interest in the property. He did not receive a salary and his remuneration consisted of his equal share of the partnership profit.
He was aware that the mortgage-back was paid out of the proceeds of the business and was discharged on 29 April 1993. He would not have agreed to or acquiesced in that mortgage being paid from the proceeds of the business had he not believed that he was a one-quarter owner of the land or that the other partners could refuse to transfer his interest in the land to him (Affidavit [23]).
In the first half of 1990 he became aware that Raymond wanted to leave the business because of tension between him and Ghada on the one hand, and Elias and Issa on the other, about money being drawn out of the business for the personal and private expenditure of the former. This led to a discussion at George Shukri's house where Raymond said, "Pay me out and I'll go". Issa asked him "how much do you want for your one-quarter share of the land and business?" Raymond responded, "Pay me $225,000 and I'll go". After a discussion among George Shukri, Issa and Elias it was agreed that the partnership would pay the sum that Raymond required to pay him out (Affidavit [31]). I have referred above to the documentary evidence which establishes that this occurred with a cheque being drawn from a business account on 30 April 1990, deposited into Raymond and Ghada's account on 2 May 1990. Raymond ceased any active part in the business.
In or around 1991, when Raymond and Ghada returned to Sydney, Raymond worked in the used car industry for other dealers before seeking "to buy back into the property" (Affidavit [38]). Issa refers to the transfer of the Bossley Park property to Elias's wife, Lucy. He says he was present when Elias and Raymond discussed Raymond buying Elias's share and stated that Elias agreed to accept Raymond's offer of the house "and whatever the difference is I will make up in cash". It's clear that Elias did leave at least his active participation in the business, but from the financial records this did not occur until 9 January 1992. Assuming that the transfer of the Bossley Park property to Lucy occurred on 31 January 1991 and not 1992, this supports Elias's account that he and Lucy paid the amount shown on the face of the transfer of $155,000. In any event Raymond did not resume work in the business of GRQWC but established his own car yard at Haberfield.
When Elias left the business, he operated his own car yard "Auto Alley Family Cars" from the adjoining property at 295 or 299 Church Street, of which George Shukri, Issa and Elias and their wives are the registered proprietors as tenants-in-common. According to Issa, GRQWC transferred "one-third of the cars it had in stock to Elias on his exit". This transaction does not appear on the GRQWC financial records for 1992 either at 9 January 1992 or at 30 June 1992. Although gross and net profit are considerably reduced when the position as at 30 June 1992 is compared to 30 June 1991.
After Elias left the business, Issa said that he ran it with Nida's administrative assistance as George Shukri was spending much time travelling between Australia and Jordan. When Raymond and Ghada decided to relocate to Jordan in about 1995, Raymond demanded rent for his share of the land. After haggling they agreed on $3,000 a month and outgoings, which Issa said was calculated as one-third of $9,000 a month, which he understood was the market rate for similar sites in the vicinity. He stated: "I did not know that as a co-owner of the property, I would be entitled to occupy the whole of the property."
Issa gives an account of the establishment of PWC to accommodate the ambition of Mr Andrews consistent broadly with Nida's evidence and I will not repeat it. Issa says that Mr Andrews had left PWC in March 1998 to work elsewhere. It was due to an oversight that his "shareholding was not removed until the 2000 annual return of [the] company" (Affidavit [58]). His account is inconsistent with Nida to the extent that he does not mention the idea of Mr Andrews being supposed to pay any money to buy in to George Shukri or anyone else. Issa says that he did not intend George Shukri would be a shareholder in the company (Affidavit [56]).
Issa says that PWC originally commenced operating from 295 Church Street. However, this must be an error, in my opinion, given that Elias conducted his business from that address (Elias's Affidavit, sworn 17 April 2020 [42]).
As I have said, Issa's version is that lots 3 and 4 Parramatta Road were bought by PWC at his instigation. The purchase involved a loan from George Shukri in the sum of $300,000 which Issa claims to have repaid with interest over a period of 10 years (Affidavit [62]).
Issa's evidence in relation to the rent dispute with Raymond and Ghada is that initially in about 2001 Raymond agreed to a reduction to $2,750. It was not until about 2013 that Raymond complained and demanded an increase to $3,500, which Issa refused on the basis that "business is slow" (Affidavit [69]). Issa says that in about August 2015 there was another conversation during which Raymond said if Issa was not prepared to pay more rent he "had better vacate one-third of the land … and put up a fence". I have referred in general terms to these circumstances above. Issa was prepared to agree to this and moved his stock after some dispute about which particular portion of the land Raymond wanted, leaving the portion adjacent to 295 vacant. Raymond having taken back his "portion", Issa felt no further obligation to pay the rent. There was a further dispute about the unpaid rent in late 2016 when Raymond insisted that he was "entitled to half the block". Issa remonstrated with him saying "No that's not right, you know we own one-third each between you, Dad and me" (Affidavit [75]). This conversation is said to have taken place in the presence of George Shukri and Steve. The dispute escalated. Raymond demanded the sum of $189,880 for Issa to have one-third of the land which Issa refused saying "I won't be paying you anything". It was following this discussion that the clandestine operation occurred on 16 January 2017 partitioning the land with the erection of a fence down its notional centre line.
Issa also recounts the various machinations in relation to the shares of PWC, including the steps taken by Raymond and George Shukri to substitute George Shukri as the sole shareholder which Issa was able to reverse on or about 9 March 2018.
At [65] - [68] of Issa's affidavit of 19 December 2018, he gives evidence about events which occurred in August 2011 when Raymond and Ghada were in Australia to attend Issa's daughter's engagement party. Issa says that Raymond and Ghada agreed to transfer to Issa a one-third interest in the land. Sylvia, who as I have said is a licenced conveyancer, drafted the transfer to give effect to this and Raymond and Ghada signed the document. Their signature was witnessed by another licenced conveyancer, who was a friend of Sylvia's, Ms Vuong. George Shukri was then in Jordan and Issa retained the draft transfer signed by Raymond and Ghada pending George Shukri's return. In December 2012 he returned to Australia for the wedding of Issa's daughter. Issa presented the transfer for his signature, but he prevaricated. Issa kept the signed transfer in a filing cabinet at the land, but at some unspecified later time he noticed it was missing. He did not authorise its removal.
Issa's second affidavit sworn on 28 April 2020 largely relates to Elias's affidavit and in general terms is supportive of the evidence Elias gives in his affidavit of 17 April 2020. So far as there are contentious matters between them, many of those paragraphs were not read in Elias's case and it is unnecessary for me to refer to Issa's evidence about them.
Issa's supplementary oral evidence about George Shukri's failure to sign the transfer was a little different to his affidavit. When asked after the wedding to sign, George Shukri is said to have responded "yes, I'll sign it later" (300.11T). On each subsequent occasion when Issa raised it with him, he would procrastinate saying, "not now" (300.24T).

[19]

Cross-examination

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).
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).
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).
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).
Issa insisted that when Raymond left to go to Queensland, the payment of $225,000 was for "the business and the land, all, the whole lot" (327.22T). He said, "I'm telling the truth 100 percent" (327.49T). He also said that Raymond said he would pay his share of the debt still owing the vendor which then in total amounted to $100,000. Raymond's share was $25,000, so the total he was paid was $250,000 (328.45T). He agreed that he had not given that evidence in his affidavit (329.1T).
Issa denied that the payment of $225,000 to Raymond was an arrangement made between George Shukri and Raymond not involving Issa and Elias (336.40T). He agreed that when the rent was reduced to $2,750 PWC stopped paying the outgoings (337.5T).
Issa agreed that there is no record in the partnership accounts of the transfer of one-third of the stock to Elias when he left in 1992 (330.15T). He said after Raymond and Elias left, he was substantially running the business and that George Shukri was "hardly active" when he was in Australia (330.33T).
Issa thought that the arrangement to pay rent to Raymond commenced in 1995, although he accepted it could be possible that it went back as far as 1992 (331.20 - .34T). When it was put to him that Raymond did not agree to the reduction in the rent, Issa responded "well, he'd been agreed for 15, 14 years, taking that amount" (sic) (332.15T). He accepted that "a couple of times he called me and said he was, "Not happy", but this happened later in the piece, during the "last two (to) three years" (332.20 - .25T).
When Issa was challenged about his statement that he did not know that as a co-owner of the property he would be entitled to occupy the whole of the property without paying rent (332.41T - 333.33T), it was certainly not clear to me that Issa had any clear understanding either then or now about the rights of tenants in common to occupy the property. He did not seem to get the point of the question at all about when his understanding changed.
Although Issa seemed to say that GRQWC became PWC (337.30T), he then said, "[PWC] was different. We just stopped dealing with [GRQWC]" (337.45T). He denied PWC came to own the business name GRQWC (337.49T). I interpolate Issa is wrong about that matter.
Issa denied that George Shukri was supposed to be allocated the $5,000 shares in PWC held by Mr Andrews when the latter ceased his involvement in the business (339.48T). He said, "George wasn't involved in the company then" (340.1T). Again, he insisted that George's $300,000 was extended as a loan, not as capital to assist acquiring lots 3 and 4 Parramatta Rd (340.5 - .15T; 341.20T).
He accepted that if Mr Andrews ceased his involvement on 17 March 1998 then shares issued on 28 October 1998 must have been issued after he resigned (340.20 - .37T).
Issa rejected the proposition that he unilaterally reduced the rent without Raymond's consent (344.1T).
He denied that his evidence about Raymond and Ghada signing the transfer in 2011 was a fabrication (345.40T). He believed that it was George Shukri who removed the transfer from the office at the land (346.8T). He denied that the document "never existed" (346.44T). He denied that the conversation which he said had occurred in the presence of George Shukri and Steve "simply didn't happen" (348.41T).
Issa accepted that the time, money and effort he is putting into the business is to build up PWC, of which he is shareholder and director (351.15 - .25T). He denied that George Shukri was always meant to be the sole shareholder of PWC (352.20T).
Issa was cross-examined about the payment of land tax on the property and specifically whether it had been paid from Raymond's bank account (353.20T). Issa said that he paid one-third of the land tax from Raymond's account in relation to Raymond's "share" of the land only. Issa paid the other two-thirds. I asked the following question: "Q. Why did you pay two-thirds [Issa] A. Because … I believed from the beginning that I owned one-third of the property on 301 and the other third, it was for Elias. I gave Elias his share in his property 299 (295), and I operate two-third from 301". (353.30T) I took this as Issa suggesting that he treated his one-third share in the adjoining 299 as being Elias's, taking what he regarded as Elias's one-third share in 301 as his own presumably in an exchange. Of course, this does not account for any interest that George Shukri may have.
It was also suggested to him that there was a dishonest motive for him removing George Shukri and Nida from their positions with PWC. Issa explained that he had given "the corporate key for the company" to George Shukri at his request (353.13T). He did not appreciate that George Shukri would get Raymond to transfer the shares in Issa's name to the former. He decided to remove them "because they can do anything if I leave them on the ASIC there" (354.27T).
In re-examination Issa was asked about repayment of the $300,000 he said was a loan from George Shukri. He answered by reference to the bank statements at Exhibit 8, tabs 60 and 61 which were respectively statements for George Shukri's account with the ANZ Bank and the Arab Bank. Nida had been asked questions about the ANZ statements. Issa said the deposits shown in those statements were in repayment of the loan (357.10T). I interpolate that these records are hardly complete and with respect do not show any regular pattern of payment. Moreover, they cover a limited period between August 2006 and November 2016. But they are far from comprehensive during this period.
The records include a deposit in the sum of $278,965 by way of transfer on 2 November 2016 but there is no evidence that that specific payment came from a bank account operated by PWC or otherwise controlled by Issa. George Shukri referred to it as a transfer organised by his eldest son, Shukri, in Jordan.

[20]

Elias Hanania

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)
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.
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.
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."
Raymond and Elias had a falling out. Elias no longer wished to be involved in business with Raymond, who said he would buy the land anyway. He understood that the property was bought, and the registered proprietors were George Shukri, Raymond and Ghada.
Elias said that a contingent of the extended family had a holiday on the Gold Coast in February 1988. Those present included Elias and his wife and Issa and his wife. During the trip Elias says George Shukri often spoke of the purchase of the land repeatedly saying to Issa and Elias, "You both have to come into the property and do this as a family business". Elias says he constantly declined saying he couldn't work with Raymond.
Shortly after the family's return from Queensland, Elias says there was an argument about the business at George Shukri's house. It became heated and Elias started to leave. George Shukri followed him out into the street and said: "You have to get into the business if you want to be part of the family. You and Issa must purchase a share of the property, and get into the family business" (Affidavit of 17 April [25]). Like Issa, Elias says there was pressure from his mother and sisters to "follow, [his] father's wishes". He agrees there was a further meeting with Issa and his father also involving Raymond and Ghada. He accepts what Issa says about that meeting. But in expressing his willingness to become involved, he stressed that his agreement was conditional on "everyone is going in equally and we have a good clean business and no one does anything wrong". He said George Shukri and Raymond and Ghada agreed to that. George Shukri said that for the payment of $100,000 "you will get a one-quarter interest in the property and be a partner in the business". Raymond and Ghada echoed that statement and specifically mentioned "a quarter interest in the property if you pay $100,000" (Affidavit [26]).
Elias annexed a handwritten schedule to his affidavit setting out some of the payments he had made towards the property. He said his contribution exceeded $100,000. I accept Mr Duc's criticism that, probably, the schedule is really a handwritten copy of entries from the red journal. However, Elias claims to have paid $63,000 on the day of the settlement of the property which also appears in the red journal.
Elias says that as result of the assurances and representations made by George Shukri, Raymond and Ghada, he agreed to purchase a quarter interest in the property and in the business. He worked in the business and made further contributions as required towards the partnership. He would not have agreed to join the partnership and make the contributions he made had he been told he was not to obtain an interest in the property (Affidavit [29]).
I should point out that in supplementary evidence-in-chief by leave Elias identified page 162 of the red book (Exhibit 7, tab 5) as the source of annexure A. He described annexure A as "a copy of it in my handwriting in my paper work" (378.7T). He translated the Arabic script at the top of page 162 of the red book as "account of a brother Elias Hanania"(sic) (377.44T). He emphasised that he had contributed $63,000 on the very day the purchase of the land settled vis 8 April 1988. Of course, the correct date is 11 April 1988. But certainly, his evidence is consistent with a large payment being made just before settlement.
He said initially the business ran well with each member of the family having a different role. From the profit of the business repayments of the mortgage-back were made. Had he not believed that he too had an interest in the land, he would not have agreed to the partnership funds paying the mortgage.
In his oral evidence, Elias gave evidence of the concerns that had been generated because of the amount Raymond was drawing from the partnership account for person expenditure. He said this had been drawn to Issa's attention by Nida. He gave evidence of the meeting at George Shukri's house around April 1990 when Raymond asked for the $225,000 to be paid to leave the business (379.40T). His evidence was that he said that he was not prepared to continue in the business with Raymond and Ghada. "Either they go or we go". The "we" included Issa. Elias said that when Raymond left there was still $100,000 owing in the mortgage-back. But he was not prepared to pay his share of $25,000 to pay it out at that time. This is the reason why there was no transfer of the land at that time according to Elias. His evidence was (380.35T): "[Raymond said] we have to clear the mortgage or you have to work out around the mortgage, it's going to cost a bit of money, and we brothers ‑ the father is there ‑ it was a trusted family. We put all this money without a receipt, without any legal documents. We operate in my father's way back home, and this is what lead to this. So it was ‑ it was there, an agreement that he will pay $25,000 but when it comes to the crunch he never paid it. We ended up paying the 25 that Raymond owes, the three of us - George [Shukri], Issa and myself."
I have already spoken about the circumstances of Elias leaving the business above. He denies that he received the Bossley Park property as part-payment for his interest in the partnership and land. He insists that although there was discussion about Raymond buying him out, it did not happen. So far as the Bossley Park property is concerned, Elias attaches another copy of the transfer to Lucy to his affidavit sworn on 23 October 2020 and two cheques, the first dated August 1990 in the sum of $25,500 and the second dated 20 August 1990 in the sum of $20,000 deposited into an account with the ANZ in the name GR Quality Cars (as opposed to GRQWC), which account was maintained by Raymond and Ghada. Issa corroborated Elias on the details of the GR Quality Cars account (304.1 - .26T).

[21]

Cross-examination

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).
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).
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).
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).
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).
Elias disagreed that the payment of $225,000 to Raymond in 1990 was a separate arrangement between George and Raymond which had nothing to do with the other partners in the business (398.5 - .9T). Elias denied that he had did "a deal" with Raymond whereby he would receive the Bossley Park house and $31,500 to transfer his share in the business back to Raymond. Elias said he paid for the purchase of the house in full (400.35T). Elias said that Raymond was supposed to pay him close to $350,000 to buy back the land he sold out of when he took the $225,000 and he did not do it (401.15T). Elias said that "the buying of Raymond back into the property was (at the) end of 91 … it started but he never finished paying. He only pay (the) 2 amounts and that's about all, he walked away from it as he got [his new] yard" (401.35T). Elias denied that Raymond was only buying back into a share of the business "not the land" (401.45T). He added, "there's no goodwill in car yards".

[22]

George Shukri Hanania

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.
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.
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.
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.
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).
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.
He explained that the "G" stood for George and the "R" for Raymond in the GRQWC.
When asked when did that business come to an end, George Shukri responded (without the assistance of an interpreter) "Not finished; it's still running - still running". He could not remember when PWC was incorporated (92.22T).
George Shukri's first affidavit is sparse in its narrative. He speaks of Raymond and Ghada returning to Jordan "to live and maintain the ownership of [the land]". George Shukri says he agreed on behalf of the business to pay rent to Raymond and Ghada and obtained the agreement of Issa "who was a working director" (First Affidavit [20]). The rent was reduced to $2,750 in 2001.
George Shukri says it was his idea to incorporate PWC and he dealt with Mr Andrews in relation to it. George Shukri states that he paid for the shares for the company from Mr Andrews "and no one else" (first affidavit [27]). This is a little inconsistent with the idea that Mr Andrews was supposed to buy in. He said that he was appointed director on 17 March 1998 and appointed Issa "only as a working director" (First affidavit [28]). Nida was the company secretary, "as I trusted her to manage and run the company". He did not authorise Issa to be sole director or sole shareholder.
In September 2018 (after the commencement of the proceedings) his solicitor showed him the ASIC documents demonstrating he had been removed as a director and Nida as secretary.
When he was in Jordan, Issa would draw money from the company account for George Shukri, but Issa did not pay him anything out of Issa's personal funds. He said Issa was against the purchase of lots 3 and 4 Parramatta Road, rather than it being his idea.
George Shukri states that he attempted to correct the company records on 11 January 2018 to restore himself as a director and shareholder. The position as reflected in the ASIC documents had come about without his authorisation. And by transferring the directorship and shares into his name he was restoring the correct position.
George Shukri claims that he purchased lots 3 and 4 in the company name. He was the only person who contributed funds to the purchase and raised the mortgage with the ANZ bank. He was "the only financial contributor towards the company from inception" (First Affidavit [46]).
In his second affidavit George Shukri maintains that only he, Raymond and Ghada were the purchasers of the land. Elias had no knowledge of the land until after it was purchased and there were no discussions about Issa and Elias purchasing the land. He agrees that there were discussions on the Gold Coast about Issa and Elias entering the business, but he denied offering a share of the land. He said, "I would not have said that because I buy and keep property that I buy. I don't sell properties" (Second Affidavit [7]).
He agrees that he did pressure Issa and Elias to come into the business because they were both then unemployed. The money paid by Elias was only to give him a 25 percent share in the business.
George Shukri agrees that he did operate the business with Elias (and Issa) and proper financial records were kept by the accountant "and verified at the end of every financial year" (Second Affidavit [11]). He agrees that Elias did not have any active involvement in GRQWC from 1992. He, Issa, Elias and their wives are the registered proprietors of 299 and 305 Church Street. There were some discussions about Elias buying the others out of 299 but they were "never fulfilled" (Second Affidavit [12]). George Shukri says the situation is that he and Issa allowed Elias to operate his business from 299 Church Street to stop the constant conflicts between Elias and Issa. Elias was to repay the mortgage and the outgoings on the premises (Second Affidavit [13]).
After Elias left George Shukri and Issa continued to operate on the land at 305 Church Street. George Shukri denies seeking to be bought out of 305 Church Street. Elias paying the loan repayments and the outgoings was in lieu of rent so far as George Shukri was concerned.
In supplementary evidence-in-chief on 29 October 2020, George Shukri said when he spoke to Issa and Elias on the Gold Coast in February 1988, he told them they would be partners in the business, not the land (486.20T). Elias and Issa agreed to that.

[23]

Cross examination

George Shukri gave oral evidence twice. First on 3 September 2019 and secondly on 29 October 2020 (90T ff; and 486T ff).
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).
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).
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.
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).
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.
When it was put directly that Issa paid $100,000 in 1988 to George Shukri, Ghada and Raymond, the witness eventually said "Not right. Not true" (102.15T). He eventually accepted the two instalments that are shown in the red journal (104.41T). Through persistence when asked again whether Issa paid "the $100,000" through various contributions, George Shukri said, "What is that the rest is him, this I agree with him, because I know he had paid them", which I took to be an acknowledgment of the payment (105.20T).
When asked about sharing profits with Issa and Elias, George Shukri made it more or less clear that when the adjoining yards were purchased, "everyone had land in his name" (105.40T). I took this as a suggestion that the three adjoining blocks were referrable to the three sons involved in the business, Raymond, Elias and Issa. George Shukri's eldest son, Shukri is not involved, but I gather was involved in the family's business interests in Jordan.
In a long monologue valiantly interrupted by Mr Wood with the occasional question (105.40 - 106.28T), George Shukri seemed to be saying that he was the boss, he brought his family from Jordan, took Issa out of the cable company and Elias out of the butcher shop and set them up in business, notwithstanding this, Issa usurped his authority assuming control of the business to the exclusion of George Shukri. None of this was responsive to any question that George Shukri was asked, but it provided an insight into his psychology.
George Shukri said that in his absence in Jordan, Issa was running GRQWC. He agreed that he was absent for about six months of the year in Jordan and when he was here, he was in charge and Issa would not interfere (109.10 - .29T).
Concerning the establishment of PWC, George Shukri's evidence seemed to be that Mr Andrews was involved at the outset, but "he made a mess of things, and he started getting into trouble" (110.33T). When he left, he transferred his share to Issa, but it should have been transferred to George Shukri (110.35 - .45T).
He denied that his contribution of $300,000 to the purchase of lots 3 and 4 Parramatta Road was a loan or that the deposits in his ANZ bank account were repayments of that loan. The $300,000 was money he transferred from Jordan (113.15T - 114.35T).
While accepting that he and Issa were directors of PWC in June 1998, he did not accept that Issa was the sole shareholder. Issa registered himself in that capacity without authority. George Shukri insisted that he was "in charge" (120.45T - 121.10T).
In a non-responsive way in re-examination, George Shukri reverted to the position that Issa had never paid the amount of $100,000 saying "that never happened" (125.5T), although he acknowledged the two lump sum payments adding up to "53 odd thousand dollars", saying, "that was the only amount paid by Issa" (125.30T). George Shukri also volunteered "when we asked him if he wants to - to go as a partner in the land that we bought, he said, "I don't have anything else other than this amount" (125.45T). George Shukri said the amounts were paid "from the profit of the yard to cover the expenses like solicitor, stamp duty and things like that" (126.23T). I believe that I managed to confuse things by asking what address they were paid for, even though clearly in the documentary evidence they were paid in April 1988 and George Shukri responded "we buy two yard from Parramatta Road" (126.28T), clearly a reference to lots 3 and 4, not purchased until 10 years later. When asked by Mr Duc about the $225,000 paid to Raymond in 1990, George Shukri said (at 126.38T): "That was the money that was paid to Raymond when ‑ when Raymond was getting out of the business. Each of them paid 75,000. Three of us ‑ that makes it 225. We [bought] Raymond out." He added in English. "Yeah, because now the yard three person. Before, it was four person."

[24]

Cross examination on 29 October 2020

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).
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).
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.
When asked whether the mortgage-back was repaid out of the business accounts. George Shukri said (497.43T): "This is, this is my account, GR and Parramatta, both of them are the same company, and it is from my personal account. And same company. So the money was paid, and I cannot say no to it, it's expenses, so it's okay. So this is my personal account, and yes, it is paid from me, which is from GR."
He agreed that the "personal account" was the business account for GRQWC (498.22T). When asked whether when the mortgage was paid Elias was part of the partnership, he said: "Yes, Elias doesn't have a share in that, in land. Not about, not in the land" (498.35T).
When Mr Balasubramanian put directly to George Shukri that Elias had an interest in the land in 1988 at (500.15T): "No, in the land, he has nothing to do with the land, and Elias even had a disagreement between another brother, so I believe that they have ‑ as a sort of a settlement he gave him another piece of land, but when it comes to 301, Elias doesn't have any interest in the land."
It can be seen that George Shukri's evidence was much more direct on the second occasion. He was clear on what his position was. There was continuity in the businesses of GRQWC and PWC, he and Raymond (and Ghada) owned the land, and Elias and Issa shared in the profits of GRQWC's business only. There never was any agreement according to George Shukri about Issa and Elias buying into the land. I observe that, as I have been at pains to point out, given the great effluxion of time in this case, George Shukri's evidence on this occasion was long on opaque, impenetrable, conclusory statements and short on matters of detailed primary facts from which inferences might otherwise have been drawn.

[25]

Raymond Hanania

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.
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.
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.
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]".
Raymond says the business was afforded 7 days credit by the relevant auction houses from the outset. He disagrees with Issa that George Shukri had no real active participation in the business. Raymond says that George Shukri would go to auctions and buy cars. He was usually the first person at the yard in the morning, opening up. George Shukri taught his sons "the business" (Second Affidavit [17]).
Raymond denies that the partnership owned the land.
Raymond accepts that he did open his own business at Haberfield and says nothing further about it as he regards it as having nothing to do with the case at hand.
While rent was paid, Raymond and Ghada did not pay outgoings as this was done by GRQWC and then PWC. Raymond states, "[T]his changed when I took possession of [the land] of half the car yard and [George] through our authority of me and my wife pays the rates" (Second Affidavit [27]) (sic). Raymond denies that he and Ghada ever signed a transfer assigning an interest in the land to Issa. He acknowledges that he was the person who moved PWC's stock off the portion of the land to be occupied by his son, George, and he put the fence up (by a contractor).
In his third affidavit re-sworn on 19 October 2020 and filed in response to Elias's affidavit of 17 April 2020, Raymond denied that Elias was with him when they located the land, which was then for sale. Raymond denies that Elias had anything to do with any contact or dealings with the vendor regarding the purchase of the land. Raymond states he noticed the land himself, contacted the vendor and negotiated with him directly on behalf of Ghada and George Shukri.
Raymond denies that the payments made by Elias "were going towards payment for [a] share of the property". Rather, they were payments of working capital toward the daily operations of the business. He accepts that Elias was a partner in the business, "not the property" (Third Affidavit [10]). Raymond states that he would not have accepted a $100,000 contribution from Elias as adequate for him to buy into both the business and the land. The land was not part of the business.
Raymond says that he paid the last instalment on the mortgage-back arrangement in the sum of $33,215 from his personal account. To the extent that payments were sourced from GRQWC's earnings, "we considered this as a rental payment from the business" (Third Affidavit [14]).
Raymond denied that he took more than his fair share of money from proceeds of GRQWC's business.
Raymond states that the payment of $225,000 was due to him because he had the highest capital contribution and he "was the one who established the business from day one" (Third Affidavit [18]). He denied that there was any agreement about transferring title. I interpolate that GRQWC's financial records show that Raymond initially contributed the most capital of the four partners. But not by a large measure, for instance Elias contributed $98,563.14 during the initial trading period ended 30 June 1988 and Raymond $126,400.
Raymond maintains that when he returned from Brisbane, Elias went out of the GRQWC partnership and Raymond bought his share by transferring the Bossley Park property and making the two payments by cheque to which Elias refers. The transfer of the Bossley Park property was on the condition that Raymond and Ghada could reside there rent free until the completion of his new home then under construction.
Mr Duc was given leave to elicit further evidence in chief from Raymond in relation to matters, the subject of objection in the affidavit. He said the mortgage-back repayments were made on a monthly basis by his "company", by which he meant GRQWC, "me and my father" (149.1 - .20T), nobody else made those payments, which I took to extend to Issa and, so far as he was then relevant, Elias. It is notable that no mention was made of that final payment of $33,215 first referred to in his third affidavit.
He said the agreement for the payment of $225,000 was for "stock and goodwill". The agreement was made with George Shukri for Raymond to get out of the business. He made no mention of the other partners (149.30T - 150.17T). Raymond said that George Shukri had asked his brother "to come into the business" and Raymond "can't really work with him". He tried "for two years, three years, too much trouble" and he would "rather to get out" (150.25T).
He said the agreement to pay $3,000 rent plus outgoings was made between him and George Shukri. Issa was present but said nothing. He was listening (151.25 - .43T). Raymond denied that there was any discussion about lowering the rent (152.15T). He said he never agreed to any reduction (153.1T). Raymond said when Issa told him he couldn't pay more than $2750 he said, "Okay, leave the place, leave the property, I don't mind", but he did not leave (153.20T).
Raymond said that George Shukri invited Issa "to be part of [GRQWC]". Raymond was not present when George Shukri made the offer. He said, "When they come in, I can't say anything; [George Shukri's] the owner of the business" (155.20T).
When Issa refused to increase the rent, Raymond took no action. He said, "Nothing really I can do because my father there" (155.44T).
Raymond denied that he ever offered to sell Issa an interest in the property. On the contrary, he said Issa offered to buy one-third off him, but Raymond said, "It's not for sale" (158.16 - .30T).
Raymond also gave evidence on 28 October 2020 when he was permitted to give supplementary oral evidence arising out of aspects of his third affidavit which had been rejected on the objection of opposing counsel. He said that the final payments on the mortgage-back were from two sources. One was from GRQWC's account, which he said "is from my father". The second was from his Citibank Personal Cheque account related to his Wheels and Deals business (424.45T - 425.5T). I infer that Raymond did not have the cheque book or relevant bank statement because he would have to look for it to see if it was still available (425.23T). The record was not produced. He relied upon the "ledger" attached to Nida's affidavit rather than any primary record of his own (426.20T). It was the third page of that "ledger".
Concerning his assertion that repayments of the mortgage-back made from the GRQWC account were rent payable to Raymond, Ghada and George Shukri, he answered, "Not so for us, for the loan" (426.2T).

[26]

Cross-examination

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).
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).
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).
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).
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).
When challenged about the start date of the rental payment, Raymond said "I can't remember the details" (172.42T). He denied that the rent did not commence until he returned to Jordan (175.20 - .30T). He made it clear that he had difficulty with recalling the details (175.35T). When challenged about his recollection with the suggestion that the records showed that GRQWC did not commence paying rent until the 1995 financial year, Raymond said "I'm sure they pay me (before)" (176.35T).
While Raymond was prepared to accept that the arrangement for Elias and Issa to become partners might have been made in February 1988, he was adamant that the agreement did not involve them receiving a share of the land he said, "That never happened". He insisted that the sum of $100,000 was insufficient to acquire an interest in the land too (184.40T - 185.10T).
Raymond agreed that he did not receive a share of the profit from the partnership after receiving the $225,000 (189.10 - .25T). And even after he "bought Elias's share … [he] did not become entitled to get a share of the profits" (190.4T). He said, "Yea, when I buy it, yea, I don't get". He did not directly answer the question that the only thing of value that Elias had to give was a share of the land. The financial accounts of GRQWC show that he received a share of the profit for the 1991 financial year (see [34] above).
Raymond agreed that he had nothing to do with the incorporation of PWC or setting up the business to be conducted (194.5 - .10T).
Raymond denied any knowledge of Sylvia having prepared a transfer concerning the land (195.11T). He denied being present at a meeting when Sylvia and her friend, Ms Vuong were present. He said that he had seen her once only since he returned to Jordan when she "just come and say hello when we come to the country" (195.25 - .36T). He categorically denied any arrangement from 1988 involving Issa receiving an interest in the land and that transfer was prepared to give effect to that agreement (195.40 - .45T). He agreed that there were passages of his wife's affidavit which were identical to his, but said "that's what happened, exactly" (197.30 - .35T).
When asked about the payments made by Issa at the commencement of the partnership, Raymond said, somewhat belligerently, "You don't pay a third of $100,000" (203.3 - .15T). He denied that after paying the sum of $53,626 he made up the balance of the $100,000 by stock purchases (203.18T). Interestingly, Raymond seemed prepared to accept that Issa had paid that sum but commented "that's not for stock" (203.40T). When shown the red journal, Raymond said he recognised it (204.1T). When confronted with the red journal he agreed that Issa made those two payments "when he came into the business" (204.28T). Notwithstanding the entries attributable to Issa were recorded in Nida's hand under the heading in Arabic "Issa Hanania payments", Raymond was not prepared to accept the accuracy of the record saying, "He have to prove it" (205.40T).
Despite having agreed that the endorsement in the Arabic language said "Issa Hanania payments" he then appeared to deny that it said that (206.10T), but when asked to translate them himself he confirmed that they meant the account in Issa's name. Notwithstanding the ledger, Raymond insisted that Issa never paid the $100,000 (207.25 - .33T). He reverted to the position that he was not going to accept that Issa had even paid $53,626 (207.45T). When confronted with Exhibit 7, tab 8 consisting of the ANZ records he seemed not prepared to concede that Issa had paid the amounts but accepted that it looked like they were going into the bank (208.45 - 209.4T). But he said that that's not enough even for the stock in the yard (209.7T). He did eventually accept that those amounts must have been paid by Issa but remained unprepared to accept that the balance was made up by expenditure on additional stock and other items (209.27 - .41T). He said that Issa worked for the business as an employee entitled to a share of the profit (209.50T - 210.1T). However, he seemed prepared to accept that he was a partner in the business (210.38 - .44T).
Raymond agreed that between them, Ghada left financial matters including dealing with the land to him (213.33T - 214.1T).
Raymond did not physically erect the fence himself, but he got others to do the work. He denied the work was done at night (215.25 - .49T), saying "Issa was there". He agreed that he was the person who dealt with ASIC to put the shares in PWC in George Shukri's name (217.18T). Raymond reiterated that George Shukri invited Issa and Elias into the business. He was not happy about this, but he went along with his father's wishes (219.9T). He was challenged about this by reference to paragraph 20 of his first affidavit when he said he invited Issa to come and work at the business. When it was put that he was seeking to downplay Issa's role he said, "I don't know" (220.12T).
Mr Wood put to Raymond that he was lying when he said the agreement to take Elias and Issa into the partnership did not involve interest in the land (244.25T). It was also put to Raymond that he was lying when he suggested that the arrangement he said he made with Elias for Elias's share of the business was just for stock. Raymond rejected that (244.39T). Raymond was taken to the balance sheet for the year ending 30 June 1992 and it was put to him that the land was recorded as a fixed asset of the GRQWC partnership (245.35T). Raymond's response, referring to the accountants, was "anyway they never do the right things with the taxation" (245.40T). When asked whether it was recorded the land was an asset of the business and in the hands of the persons who were then the partners, Raymond responded, "I think it's a mistake, it's not right" (245.47T). He said he left the partnership because "they don't do the right thing with the taxation; they don't do the right things with anything" (246.1T). He was shown the balance sheet as at 30 June 1991 and again he acknowledged that the land was shown as an asset of the business. He was asked this question at (246.15 - .20T): "Q. That reflects the fact that the arrangement between you and your brothers and your father was that 301 Church Street was owned by yourself, your brother Elias, your brother Issa and your father George. That's right, isn't it? A. WITNESS: [without the assistance of the interpreter] Yes."

[27]

Cross-examination on 20 October 2020

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).
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).
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.
I interpolate, according to Nida's "ledger", the total amount repaid to JC Craft Pty Ltd, principal and interest was $214,165 between May 1988 and April 1993, suggesting a term of 5 years. This is consistent with the sub-heading on page 1 of the "ledger". The total sum drawn from GRQWC's account is $186,950. If one adds Raymond's $33,215, the total is $220,165. This is somewhat in excess of Nida's total calculations but closer to the mark than the total drawn from GRQWC's funds alone. Nida has also recorded some legal fees, but they do not account fully for the $6,000 difference between the two totals. In aggregate they are $418. There is always a possibility that my arithmetic is inaccurate, but these sums suggest that FH Lock Leasing was, as I have said, the source of the funds, not the payee. The total of the amount of $32,000 shown as drawn on GRQWC's account and $32,215 drawn on Raymond's Citibank account is $65,215, which is the amount Nida records as having been in April 1993 to discharge the mortgage-back. Although Raymond's evidence was very uncertain on this point, the objective facts seem to support his assertion that the amount was paid in discharge of the vendor finance.
Mr Balasubramanian took up the question of paragraph 14 of the third affidavit in his cross-examination and established that Raymond regarded his business account for Wheels and Deals as his personal account (436.40T). He accepted that before he left GRQWC on 15 April 1990, he would use the business account "for some personal things" (437.5T).
Raymond denied ever being at a meeting with Issa and Elias and George Shukri discussing the entry into the business of Elias and Issa (439.15 - .32T). While Raymond accepted that Elias had made a contribution to join GRQWC, he denied that he contributed $100,000 (439.44T). In Elias's case, Raymond denied that he was to receive any interest in the land. All he was to get was a quarter of the profit from the business. He said (440.1T): "Issa and Elias, they have no name in the business, they have no name in the land, they only get the profit." "No name in the business is a reference to "GR".
He was asked questions about Exhibit 5D1 which is "a blown up version" of page 162 of the red journal kept by Nida, Raymond accepted that the endorsement at the top of the page in the Arabic language translated as "account of brother Elias" (441.5T). Raymond was prepared to agree that GRQWC was registered "shortly after it commenced trading" (441.29T). Raymond could not remember the name, but its common ground the business name was registered on 6 April 1988, as he stated in paragraph 7 of his first affidavit. When taken to that paragraph he agreed (442.25T). When asked about the entry for 8 April 1988 showing $63,000 as "an amount placed the day of the settlement" Raymond answered (442.30T): "Well, that's, that's. Well, that's actually, the amount of the cheque, 63, I'm not sure about that. But that's up to Elias to prove it, because I can't find any record for it." And although the record was one kept by Nida, Raymond was not even prepared to agree that the first entry she made is dated 8 April 1988 (443.25T - .40T).
Raymond would not accept that Elias had contributed "at least $63,000 on or about 6 April". He responded, in English "He have to prove it … there's no record for payment this." (443.50T - 444.1T). Raymond wished to say that Nida would prepare the documents on the basis of "what she's been told to record" (444.15T). Somewhat begrudgingly, I thought, Raymond agreed that Elias made some contribution, but he couldn't say much because he hadn't found any proof of the amount in any other records. He could not find the corresponding amount in GRQWC's bank accounts (444.25T). Mr Balasubramanian challenged Raymond's account that he had expended some several hundred thousand dollars on the business before Issa and Elias joined. Mr Balasubramanian took Raymond to the GRQWC financial records for the financial year ending 30 June 1988. Raymond accepted the accuracy of the figures recorded in the profit and loss account (447.40 - 448.10T). When challenged about the absence of the expenditure of money on repairs and renovations to the premises (448.25T), Raymond answered: "There were no records of that, or these expenses were not recorded. But maybe [we] can find proof of such payments if we go back to the bank statements to that period." It was pointed out that the plaintiffs had had that opportunity before the hearing. Raymond made a number of excuses as to why the records could not be produced.
Raymond again denied that Elias had been promised an interest in both the business and the land in 1988 (449.30T). He did not deny that when he left the business in 1990, Elias's capital contribution was "double [Raymond's] contribution" (450.5T). Raymond accepted that the $225,000 he was paid in 1990 came from the account of GRQWC (450.38T). He accepted he had no further involvement in the business adding the qualification "until I bought Elias's share" (450.42T). He agreed that the total value of the property and cash given to Elias was (only) $186,500, but said the Bossley Park property was brand new and worth a lot more than $155,000 (451.5T).
In view of the fact that it is Raymond's case that he bought back into the business by purchasing Elias's share, by transferring the Bossley Park property to him as the substantial portion of the consideration, it is difficult to understand his evidence is that he really intended to "sign to Henry Debi" (452.4T). Then he said when he signed the transfer it was an empty document (452.34T), speculating that Henry Debi may have required it that way. Raymond was challenged about this given the same Justice of the Peace witnessed the signature of all signatories, including Raymond, Ghada and Lucy (452.40T). Raymond's retort was that he didn't sign in front of a JP. He continued to maintain that when he signed the document it was blank (453.35T).
When it was put to Raymond, given there were three partners remaining after the payment to him, that Elias's share in January 1990 would be worth more than the sum he received, he avoided the question saying, "They only stay on the quarter of business with my father. I don't know if it's my father give them third of profit, but they have nothing in the business, they have no name" (sic). When it was put that as at 30 June 1991, Elias had a capital contribution of $210,374.98 in the partnership, Raymond shrugged it off saying, "I don't have any interest in knowing that and why would I look it for it. So, it was an exchange" (454.47T).
When taken to the documents, Raymond agreed that Wheels and Deals Pty Ltd was registered on 18 February 1991, which was 18 days after the date of the transfer of the Bossley Park property to Lucy (455.40T - 456.11T). Mr Balasubramanian put that the transfer of the Bossley Park property had nothing to do with Raymond attempting to buy back into GRQWC. Raymond insisted "it was an exchange". Raymond agreed that he told Elias that he didn't have the money to buy him out of GRQWC and that it was a "capital intensive" exercise to set up a car dealership. It was put that he'd sold the Bossley Park property because he needed the money to finance the commencement of Wheels and Deals. He denied that was so (457.4T). Raymond said that he mortgaged his new house to Citibank to obtain an overdraft of around $150,000 (457.6T). He also said, "I'm not with no money at all" (457.12T). When challenged about the proximity between the transfer to Lucy and the establishment of the new business, Raymond retorted, "but I didn't start up my business until I get the loan from Citibank" (457.25T).
Raymond avoided the question that he had never attempted to buy back into GRQWC (457.45T). He denied that he spoke to Elias in November 1991 about buying back Raymond's one-third interest in the land. He said he had not sold the land, "We don't sell any of the lands, Mate" (458.4T). He agreed that he had no further involvement in the running of GRQWC after he left in April 1990. He said, after he left "I didn't have anything to do with [GRQWC], nor I received any profit shares" (458.20T). This is not quite right. But he insisted he bought back into the business. He said he received no share of the profits because Issa refused to pay.
Raymond was taken to the balance sheet for 1992 and his attention directed to the negative sum of $127,326.23, which he could not explain. He said, "92, I never look at any paper for [GRQWC]" (461.12T). He was asked whether the balance sheet indicated that rather than having a positive capital contribution to the partnership, he had a negative contribution. He did not directly answer the question. When he was asked whether the records show that he never bought Elias's share, Raymond challenged the correctness of the record speculating "This is the doing of Issa and the accountant" (461.30T).
Raymond accepted that he "probably" used the accountants, who acted for GRQWC as his accountants for the Wheels and Deals business (472.42T) and they "would have" prepared financial statements for his business, but he could not remember "100 percent" (472.50T).
Mr Balasubramanian took Raymond through the financial statements of GRQWC in some detail, but Raymond still insisted that he bought back into the partnership (474.9T). It was put that he was "no longer a partner'. He disputed this, then added non responsively that Issa agreed to pay him back but hadn't kept that promise (474.23T). He did not accept that he would have known from his interactions with the accountants in relation to his own business affairs what his position was with GRQWC (474.45T). He accepted that he "might have been aware" of his position with GRQWC at the time, but he had never seen or looked at the papers (475.38T). He could not remember looking at the financial records when he received a copy of Issa's first affidavit in December 2018 (476.1 - .15T).
Mr Balasubramanian returned to the question of the Citibank loan in the sum of $150,000. When pressed about whether he had received that loan in 1991, somewhat contrary to the answers he had been given previously he said "I can't remember … exactly, I can't be sure of the date" (476.45T). He was asked if he had received a copy of the mortgage document that had been served earlier that day (477.5T) and responded "Maybe it sent but I haven't seen it yet". He was asked whether he remembered the evidence he had earlier given that he did not start Wheels and Deals until he had received the loan. He remembered giving the evidence but said "I cannot remember the exact dates" (477.15T). It was then put that he did not get a loan from Citibank until 1994, to which he responded, again, that he could not remember the exact dates (477.33T).
I must say Raymond did seem to become somewhat evasive about these questions concerning just when it was he actually commenced business as Wheels and Deals (477.35T - 478.15T). When Mr Balasubramanian again put to him the form of mortgage which became Exhibit 5D2 and asked whether he obtained the mortgage from Citibank in January 1994, Raymond said, "I think that this is the time when we started working at the caryard" (478.20T). He denied he was fabricating his evidence to suit his case (478.25T). When he was taken to the document itself and asked whether that was the mortgage he obtained, he answered simply "Yes", accepting that the mortgage was not taken out until 10 January 1994. However, Raymond maintained that Elias and Lucy had never paid anything for the Bossley Park property (480.15T). He insisted that he bought Elias's share in GRQWC with that exchange.

[28]

Other lay witnesses

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.
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.
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.
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.
In her affidavit of 30 August 2019, Ms Mi Yen Vuong (sometimes known as Janet) remembered going with Sylvia to her uncle's house somewhere in the Fairfield City Council area. Ms Vuong was also very indefinite about the dates. The most accurate she could be was to say it was sometime between 2008 and 2013 when she resided in the Canley Heights area. She said she only attended at Sylvia's request to witness documents signed by family members on one occasion. She remembers attending and watching family members sign documents and when they signed she witnessed their signature. She could not recall "what the document was about or what it related to" (Affidavit sworn 30 August 2019).
In cross-examination Ms Vuong said there were quite a few people at the house when she entered, but she did not remember their names. Although her memory was "not 100 percent", she thought it was a male who signed the document from memory. She could not say whether more than one person signed the document (180.35 - .50T). She could not remember whether it was one document or more than one that required signature (181.12T).
When she was shown Exhibit A and her signature (182.5T), she could not say whether that was the document that was signed on the occasion about which she was giving evidence. Although Exhibit A was the type of document she prepared in the course of her practise as a licensed conveyancer, she had not prepared Exhibit A.
Issa's son, Steve, also gave evidence. His affidavit was sworn on 29 August 2019. The significant part of his evidence is found at paragraph 6 of his affidavit, said to corroborate a conversation between Raymond and Issa in the presence of George Shukri which took place at the land when Raymond and Issa were arguing about the rent. This was the "I am now taking half" conversation relayed by Issa when he asserted a right to a one-third ownership in the land. In cross-examination, Steve confirmed that he had read his father's affidavit sworn on 19 December 2018 (267.31T). He made the affidavit at the request of his father's lawyers. He also said that his cousin George was present (268.25T). He was cross-examined about his omission to mention George Shukri and his cousin George and it was put to him that they were not mentioned because they were not there (269.10T). Steve said, "No they were". He was asked whether someone had put words into his affidavit for him and he responded, "This is my affidavit and I wouldn't sign it if it wasn't" (269.30T).

[29]

Impression of the lay evidence

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.
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).
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.
Apart from this the evidence is really of doubtful relevance. As I have said at best it amounts to an admission by conduct that Issa had an interest in the land. This clearly is at best an admission about a mixed question of fact and law and such "admissions" are of doubtful admissibility and if admissible entitled to little weight, given they involve the application of a legal standard which is entirely a matter for the Court: Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51. Steve's evidence falls into the same category and in my judgment does not advance his father's case for the same reasons.

[31]

Relevant legal principles - the land

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.
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."
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.
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)."
As Sackar J pointed out in Togias [at 43], "the inquiry is not as to the actual presumed intentions of the parties involved, but rather as to whether according to the principles of equity, it would be a fraud on the party in question to deny the trust". His Honour also pointed out that contributions made to the acquisition of a property are not limited to monetary assistance.
As Macfarlan JA said in Priestley v Priestley [2017] NSWCA 155 at [18], a different category of case but not on this point, "it is sufficient that the contribution of [the claimant] is substantial even if it is not quantifiable". Intangible contributions such as the "the value of the son's care and assistance given to his father who was in his mid-eighties and attempting to maintain the operations of a large rural property cannot be underestimated".
Elias relies upon the principles underpinning the Baumgartner type of constructive trust only in the alternative. His primary claim relates to proprietary estoppel by encouragement. In Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 a plurality of the High Court of Australia constituted by Gleeson CJ, McHugh, Gummow and Callinan JJ said (at [5] - [6]): "In the present case, the constructive trust is proprietary in nature. It attaches to the Dwellingup property. Such a trust does not necessarily impose upon the holder of the legal title the various administrative duties and fiduciary obligations which attend the settlement of property to be held by a trustee upon an express trust for successive interests. Rather, the order made by the Full Court is akin to orders for conveyance made by Lord Westbury LC in Dillwyn v Llewelyn and, more recently, by McPherson J in Riches v Hogben. In these cases, the equity which founded the relief obtained was found in an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff. This is a well recognised variety of estoppel as understood in equity and may found relief which requires the taking of active steps by the defendant." (Citations omitted.)
In Priestley v Priestley Macfarlan JA said of the Dillwyn v Llewelyn type of proprietary estoppel by encouragement (at [13]): "Where a party (A) has expressly or impliedly promised to grant an interest to another (B) in a Dillwyn v Llewelyn type case, A's subjective state of mind is irrelevant if B acted reasonably in relying on the promise."
In Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 at [21] Handley AJA said (with whom Allsop and Giles JA agreed): "Such an estoppel comes into existence when an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment. If these matters are established equity may compel the owner to give effect to that expectation in whole or in part."
Of reliance in Priestley v Priestley Emmett JA (at [136]) said: "The question is not whether the promisee or representee acted, or desisted from acting, solely in reliance on the promise or representation of the other party. Rather, the question is whether the conduct of the representee or promisee was so influenced by the promise or representation that it would be unconscionable for the promisor or representor thereafter to enforce her or his strict legal rights. It is sufficient for the promisee or representee to show that the promise or representation was a significant factor taken into account by the promisee or representee when deciding whether to act or not to act. If the belief of the promisee or representee is a contributing cause of the conduct of the promisee or representee, that will be a sufficient connection between the assumption induced by the belief and the detriment. The question is whether the promisee or representee would have committed to and continued in particular conduct that had a detrimental effect on the promisee or representee if the relevant promise or representation had not been given to the promisee or representee by the promisor or representor."

[33]

Decision - the land

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.
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.
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.
To my mind the significance of the evidence provided by those contemporaneous documents to which I have referred in general terms for present purposes, but which I have analysed in some detail above, is supported by Raymond's evidence I have extracted at [232] above, that when pressed in cross-examination, he told Issa and Elias "When we need the money for the [settlement], I take the money from you". This demonstrates to me that notwithstanding Raymond's protestations about the disproportionate amount of money he put into GRQWC before Issa and Elias joined, that those substantial cash contributions put in by Issa and Elias effectively in close proximity to the settlement were used to finance in no small part the amount due on completion. When one considers the balance due from the purchasers on completion, the combined sum provides the larger part of the amount due clear of the mortgage-back.
Issa's contribution is firmly and clearly established by the red journal and banking records, the scepticism of George Shukri and Raymond notwithstanding. Elias's contribution does not appear in the available banking records however I am not of the view that Nida would record matters in the red journal unless satisfied the payment was made, whatever Raymond might say. As I have pointed out more than once the 1988 financial accounts show Elias's capital contributions for the three months during which he had been directly involved as about $96,500. I accept on balance that Elias made the contribution recorded in the red journal on or about the day of settlement.
I accept that the financial records of GRQWC are reliable so far as they go, notwithstanding that they are secondary records, doubtless would involve a degree of reconstruction on the part of the accountant and also are somewhat incomplete. I certainly do not accept Raymond's argumentative approach that the accountants "never do the right thing with the taxation" (see [230] above).
I am also of the view for the reasons I explained (at [22] - [31]) that the actual capital contributions subscribed to the partners in the financial accounts for the financial year ending 30 June 1988 when considered in the light of the trading profit were sufficient to cover the cost of acquisition of the land, even if the deposit was originally paid by George Shukri and Raymond. Indeed, as I pointed out, the balance sheet shows only $25,044.87 cash at bank (as I point out at [27]). Had George Shukri, Raymond and Ghada paid $200,000 with their own money over and above the financial contributions shown in the financial statement, one would have expected a much larger sum of cash on hand to be available at the end of the financial year.
Another salient factor arising of the partnership records is the repayment of the mortgage-back to the vendor, JC Craft Pty Ltd out of the profits of GRQWC. This is supported by both the financial accounts and Nida's "ledger". I accept, however, that Raymond did contribute $33,215 from the funds available to him, which were separate from the profits of GRQWC, which is of some significance. I do not accept the assertion of Nida and Raymond that the mortgage repayments taken out of the partnership funds were a kind of rent for the use of the land by the partnership. This really is inconsistent with the apparent logic of events. First the repayments were drawn for the specific purpose of paying down the mortgage-back. Secondly, "the rent" ceased when the mortgage was finally discharged in April 1993. This is a different amount from the rent paid to Raymond and Ghada which, on the best evidence available, did not commence until the financial year ending 30 June 1995 (see [48] above), notwithstanding Raymond's assertion that it commenced from a time he ceased his active participation in the partnership. Thirdly, there is force in the evidence of both Issa and Elias that they would not have agreed to paying down the mortgage had they not believed they had an interest in the land.
A small, but related matter is that from its first full year of operations GRQWC appears to have paid the rates on the land as an expense over and above the cost of sales.
I should say that I would not put much weight on the concessions made by George Shukri and Raymond under cross-examination during the first tranche of hearing dates that Issa and Elias had interests in the land. In George Shukri's case (see [175] above), he seems to have conceded that when Raymond was "bought out", the three remaining partners being himself, Issa and Elias were the owners of the land (97.45T). In Raymond's case, there was the concession at the end of his cross-examination (see [230] above) that the financial accounts of GRQWC reflected the arrangement that the land was owned by him, Elias, Issa and George Shukri (246.15 - .20T). While these concessions were a significant reward for the skill and persistence of the cross-examiner, such statements are also caught by the principle in Dovuro Pty Ltd v Wilkins, discussed above (at [259]) and at best, of little weight. Although, it is interesting that when cross-examined again on 29 October 2020, both Raymond and George Shukri were much firmer in the determination of their response that neither Issa nor Elias had an interest in the land. The volte face did not enhance the reliability of their evidence generally.
In a somewhat different category is the passage of George Shukri's evidence, I have extracted above (at [159]; from 91.30T). That evidence was given in response to a question about what arrangement was made with Issa and Elias. It seems to me, as I have already said, George Shukri's reference to Issa and Elias "putting cars in the streets" was a reference to their part-time previous occupation of buying, modifying and selling individual vehicles. However, if one accepts the statement, "we told them that we are traders, we should buy land and put the cars in the proper land", and I do, this does appear to be a significant statement by George Shukri that Issa and Elias were invited to participate in GRQWC, buying the land and putting the cars in a proper yard for sale like professional used car dealers. This rather supports Issa's evidence (see [99] above) that George Shukri invited both him and Elias into the business on the basis of a payment each of $100,000 for which they were would each own one-quarter of the land and be equal partners in the business. It also supports the evidence of Elias (see [141] above) that George Shukri told them to purchase a share of the property and get into the family business. At a later meeting Elias says George Shukri said, "You will get a one-quarter interest in the property and be a partner in the business". Despite having expressed reservations about certain aspect of the evidence of Issa and Elias, it seems to me that in substance something to that effect was said to them by George Shukri. Given the deference Raymond showed to his father's views, I infer that George Shukri also spoke for him.
I appreciate there is a very significant dispute about whether Issa and Elias each put in $100,000 upon entry into the partnership. It is apparent that they did not, at least not in full. However that might be, the nature of the arrangement does not suggest that time was of the essence and the partnership financial accounts, again, establish that the capital contribution of each was not far off that mark. In Issa's case by 30 June 1988, it was slightly over $75,000. And in Elias's case, it was slightly over $98,500. Both had contributed more according to the accounts than George Shukri at that time but less than Raymond. It is apparent, at least by reference to the course of subsequent events that immediate payment of the contribution of each was not a condition precedent to his entry into the partnership. I say this bearing in mind no claim is brought in contract.
So far as the Baumgartner constructive trust is concerned, I appreciate that it is unnecessary for a claimant to establish that a specific representation about acquisition of an interest in specified property has been made, nor is detrimental reliance required. It is sufficient, according to the principles I have set out above, that the essential elements identified by Parker J in Woods v McKinlay (No 2) are satisfied. Acknowledging that English and Australian law in this area is not the same, in this context, as Lord Scott pointed out in Cobbe v Yeoman's Row Management Limited [2008] 1 WLR 1752 ("Cobbe's case") at 1771 [33] - [35], there is a distinction between property acquired for the purpose of a joint venture, which ultimately failed, and property that was already owned by one of the parties before any joint venture had been embarked upon involving that property. However, in my judgment, the case at hand does not fall into the latter category. On the evidence I prefer and to which I have referred, I am satisfied on the balance of probabilities that the land was acquired for the purpose of the partnership. That is to say, there was a joint venture, i.e. the GRQWC partnership; although I accept that the acquisition of the property was initiated by George Shukri and Raymond prior to the entry of Issa and Elias to the partnership, Issa and Elias did contribute to its acquisition even if legal ownership in accordance with the contract for sale remained with George Shukri, Raymond and Ghada. The close temporal proximity of the acquisition of the land to the formation of the full partnership is another not insignificant factor suggesting that the land was acquired for that purpose. And I so find.
The one difficulty in my mind on this analysis is whether there has been a relevant premature termination of the partnership making it unconscionable for George Shukri, Raymond and Ghada to retain the title to the land to the detriment of Issa and Elias. In the end I am satisfied that this element has also been established. The joint business venture has ended prematurely in the sense that Raymond and Elias have left to devote their energies to their own affairs, and as I have clearly indicated already, in my view the remaining active partners George Shukri and Issa have transitioned the venture from GRQWC into PWC. The termination of the venture is premature in the sense that these developments have occurred before the legal title to the land was transferred equally to all of them as tenants-in-common in equal shares, as I have found was contemplated from the outset. I should say that I accept the evidence of Issa and Elias separately given that as at the outset the business was going well, and as the partners were working well together, they did not worry about the legal niceties. They trusted their father and brother.
In Issa's case, it is pellucidly clear that George Shukri, Raymond and Ghada are seeking to use their legal right to his disadvantage by ejecting not only PWC, but him from the land. There are other, perhaps more nuanced, considerations affecting the situation given the assumption of GRQWC's business by PWC, notwithstanding what might be described as the bare legal shell of the partnership continuing for limited purposes. GRQWC is no longer in the used car business.
Elias's position is not so clear given his voluntary departure from the business about which I will say more. But for the reasons I have given, prima facie, he has made out Parker J's third element.
I return to the reluctance of the parties to advance an argument based upon the land having become partnership property. From Mr Duc's point of view, I suspect that treating the land as partnership property may be inconsistent with the case that he wishes to present that the legal owners are the beneficial owners as well and that the land should be regarded, in the terms of Lord Scott in Cobbe's case, as property that was already owned by George Shukri, Raymond and Ghada before the joint venture embodied in the GRQWC partnership had been embarked upon. For Mr Wood's case, I suggest his concern is s 22 Partnership Act and the expression implicit in it of the common law doctrine of conversion where land bought for the purpose of a partnership "was to be considered part of the partnership fund, and consequently must be considered as personality, and distributable as such": Darby v Darby (1856) 3 Drew 495 at 498-499; (1856) 61 ER 992 at 993. The potential difficulty with this for Mr Wood's argument, of course, is the related consideration that on the dissolution of a partnership, all the property belonging to the partnership is sold and the net proceeds of sale divided amongst the partners according to their respective shares in the capital. The same difficulty besets Elias's argument. Arguably, therefore, treating the land primarily as partnership property is inconsistent with the assertion of a constructive trust of a proprietary right in the land, especially among persons who are or have been members of the same partnership. It's for this reason that Mr Wood submitted that I should deal with the land notwithstanding the financial records as a separate asset in the same way as the parties have made in their own minds a distinction between the land and the partnership business.
While the proceedings before me are adversarial and the parties are entitled to choose the ground on which to fight their dispute, parties do not have the power to require a court not to apply the law: Dovuro Pty Ltd v Wilkins at [89], per Kirby J. On the other hand, there is force in Mr Wood's submission that all the parties have drawn a distinction between the land as an asset and the partnership business as a going concern. This tendency also is evident in the subsequent acquisition of commercial land by members of the family for ongoing business purposes. This can also be seen in how the issues have been defined. George Shukri and Raymond insisted that Issa and Elias had no interest in the land, but only in the business. They adopted the strong line that the Hananias did not part with property in land. On the other hand, Issa and Elias were clear that interests in both the land and the business were specified, separately but in the same construct, by George Shukri. And he seems to have confirmed that in the passage from his evidence at 91.30T. Perhaps the most evidential significant aspect of the inclusion of the land as a fixed partnership asset by the accountants is that it is evidence that all partners agreed that each of them was to have an interest in the land to the purchase of which in effect, and in a practical, i.e., monetary, sense, each had separately contributed.

[34]

Proprietary estoppel

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.
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.
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.
A question, of course arises, given the potentially valuable opportunity to participate in a profit-making enterprise, inherent in the representation or promise made by George Shukri, can it be said that the established reliance is detrimental to Issa on the one hand and Elias on the other individually? In this regard I bear in mind the statement of Emmett AJA in Priestley v Priestley at [164]: "The principle of proportionality applies only in unusual cases where proprietary relief would be out of all proportion to the detriment. The proper measure of relief in a case where the detriment to a promisee or representee is something substantial is performance of the promise or representation. The detriment or harm required to ground an estoppel can be any material disadvantage, so long as it is substantial. It need not be quantifiable in the same way as an order for damages. Detriment is not a narrow or technical concept and need not be a quantifiable financial detriment so long as it is something substantial. The evaluation of the substantiality of the detriment must be approached as part of a broad inquiry as to whether repudiation of a promise or representation is or is not unconscionable in all the circumstances."
I would also bear in mind that in the same case Macfarlan JA (at [18]) laid emphasis upon the claimant's financial contribution, even when considered separately from the other significant but intangible contributions that the claimant had made. As a starting point here, it seems to me that in the case of Issa and Elias "on purely financial terms", the detriment to each of them was a material disadvantage. The financial contribution of each is not limited to the amount actually paid upon entry to the partnership. But even that amount is significant and substantial. Financial commitment to the partnership also included, as the record showed, the ongoing requirement to make further capital contributions as required to keep the business going. It should not be overlooked that those contributions included the amount necessary to pay Raymond out when he decided to leave the partnership to pursue other opportunities in April 1990. That, of itself was a very significant sum and George Shukri made clear that he regarded the payment of $225,000 as having been contributed to equally by the remaining partners: himself, Issa and Elias (126.38T; [186] above). I interpolate that Elias, at least, certainly thought that the payment to Raymond ought to constitute buying him out of both the business and the land, although nothing was done to give effect to that expectation. Raymond continued, as I have said, as what I have styled a dormant partner, and nothing was done to put the title to the land in the name of the continuing active partners.
In any event, as I have said in Issa's case the detriment has been made clear by subsequent events. He has already been denied occupation of one-half of the land, even if he did not resist the move strenuously, and he is facing an ejectment from the rest of the land in these proceedings. It goes without saying that the unity of possession, to which I have already referred would be a complete answer to the plaintiffs claim for possession against Issa. Issa has not otherwise shown what other opportunities he may have pursued had he not been induced by George's representation to conduct himself as he did. However, I do not regard this as necessary, he was obviously a resourceful person who through his industry, and doubtless thrift, had been able to amass a not insignificant amount of capital to enable him to make the contributions he did, notwithstanding his previous employment as a factory hand, supplementing his income by dealing in a small way privately in used cars. His industry has kept both GRQWC and PWC going on a generally successful trajectory even if George Shukri, the patriarch, regards himself essentially as the boss. Issa is the person who has remained in Australia carrying on the business for the benefit not only of himself but of George Shukri whatever intra-familial resentments have built up over the decades. I am well satisfied that Issa has demonstrated, were it necessary, the elements of detrimental reliance.
Many of the same observations can be made about Elias. I have already pointed out that his capital contributions, including his contribution towards Raymond's "buyout", are significant and substantial. He was also, according to his evidence, a reluctant starter, given what he said about incipient tensions among the brothers, which Raymond's evidence echoed. I think the evidence of each of them in this regard is to be taken with a grain of salt because it is no doubt influenced by a great deal of hindsight given the great differences that have developed over the decades. However, perhaps there is an element of intangible contribution in terms of the satisfaction that George Shukri no doubt derived from the assistance of his sons working in a successful family business, rather than pursuing opportunities of their own.
George Shukri was somewhat dismissive of the prospects of Issa and Elias without his help. He may have been somewhat dismissive of the prospects of all of his sons. He referred to Issa and Elias being unemployed and him being motivated by giving them a job. This is a little unfair to them. Each was unemployed at the time but, as I have said, each had shown considerable industry in the past, sufficient to at a young age, have amassed enough capital to gain the promise of an interest in the land and entry to the business. Their unemployment at the time was for reasons of their own choosing, not manifesting a lack of industry. Issa, of course, had taken a holiday, returned to Jordan and married there.
A matter which concerns me about whether Elias has suffered a detriment is the evidence suggesting that he wished to leave the business, did in fact leave the business on 9 January 1992 and was himself "bought out" by Raymond transferring the Bossley Park property to him for no consideration and making other cash payments. If Elias received other land and the return of some capital to surrender his interest in the land and the business, he could hardly have suffered a detriment and it could hardly be unconscionable for George Shukri, Raymond and Ghada not to have transferred an interest in the land to him.
Raymond, of course, had received the large sum of $225,000 upon ceasing his active participation in the business, which as I have said more than once appears to be shown in the books of GRQWC as a withdrawal of capital, not involving his departure from the partnership given he continued throughout to remain, an albeit dormant, partner notwithstanding his withdrawal from the business activities. Apart from Elias, no one has made any suggestion that he does not retain an interest in the land. As I have pointed out more than once, he did after his withdrawal make capital contributions, including on my view, the payment of $33,215 to discharge the mortgage-back. These are family arrangements, I remind myself, rather than arms-length commercial dealings.
I am satisfied that Elias has proved on the balance of probabilities, that he was not given the Bossley Park property without consideration and a relatively small sum of money in "exchange" for his parcel of rights in relation to the business and land as claimed by Raymond in particular, but also by George Shukri. If I may put it colloquially Issa seems to have run dead on that issue.
There are a number of factors which have led me to this conclusion. First, I accept the transfer of the Bossley Park property was made to Lucy on 31 January 1991, not 1992 despite the possibility of a "new year" slip in dating the transfer; secondly, although related, it is clear that Elias did not depart the partnership until 9 January 1992 on which date there was a distribution of profit for the year to date amongst him, George Shukri and Issa, but not Raymond; thirdly, unlike when Raymond left, Elias's capital account remained intact with contributions of about $185,000 and no withdrawal of capital; fourthly there is no suggestion of any payment out to Elias, nor is there any re-adjustment of Raymond's capital account having regard to the putative reintroduction of capital by Raymond to the partnership; and finally, there is no reassignment of any part of the capital in Elias's account to Raymond's. I accept that Elias left to commence business on his own account next door to the land and that he did so with the apparent blessing of George Shukri and Issa. But there was no payment out.
An additional important factor is that Elias remained, like Raymond, a dormant partner, but with his capital account intact until GRQWC's business was transitioned to PWC during the 1999 financial year. I appreciate that at that time the accounts, especially the trial balance (Exhibit 8, tab 53) suggest that Elias had made a withdrawal of his capital or that GRQWC incurred a liability to him for a return of his capital. It also appears that 295 (or 299) Church Street was removed from the assets of GRQWC. These entries suggest some sort of financial settlement with Elias. The difficulty I have with that scenario is that no one conducted a case on the basis that that is what happened; that Elias was bought out not in 1992, but by the transactions appearing in the trial balance for 1999. It was not put to Elias in cross-examination that this had happened and he was given no opportunity to deal with that suggestion at all. In these circumstances, notwithstanding my general preference for the contemporaneous records, I am left in a position where the entries in the trial balance are interesting, but entirely unexplained. This is another example where evidence from the accountant responsible might have shed meaningful light on the significance or otherwise of those matters. One would have expected that those who seek to deny Elias an interest in the land would call that rebutting evidence on the basis that he who asserts must prove, always bearing in mind that Elias carries the persuasive onus of making good his claim.
The final point in relation to Elias's position is, of course, the admission he seems to have made on 6 September 2019 that he did not pay for the Bossley Park property (see [135] - [136] above). I repeat that he said, "I didn't pay for the house, but I grabbed it because I couldn't grab anything out of what I gave [Raymond]". This is obviously a potentially significant matter. I accept that whether or not one paid for real estate is something one is unlikely to forget or overlook. There is an ambiguity about what was said, because the passage immediately preceding my question (recounted at [135]) above should not be overlooked. There, Elias had said that Raymond made him take the Bossley Park property for $155,000 when it was worth $120,000. It was that statement that prompted my question. I have borne in mind that Elias was unrepresented and that these statements were made in response to questions asked by me when he showed up in court in attempt to tease out what his claim might be. At the time I made it clear I would not accept his statements as evidence. Although to the extent to which they are against interest, and now he is a party, Mr Duc is entitled to rely upon them.
While I have some misgivings and find his statement somewhat puzzling, having had the benefit of all of the evidence in the case, I am of the view that the apparent admission is entitled to little weight, having regard to the other circumstances to which I have referred which I find compelling. I am satisfied, as I have said, that Elias paid Raymond $155,000 for the Bossley Park property, the receipt of which is acknowledged on the face of the transfer itself. In coming to this conclusion, I am in part influenced by the consideration that I found Raymond's evidence about signing the transfer in blank and intending to transfer the land to a friend of his thoroughly unconvincing. I have also accepted the thrust of Mr Balasubramanian's cross-examination of Raymond that at the time the transfer of the Bossley Park property was made, Raymond was in need of capital to establish Wheels and Deals. Mr Balasubramanian clearly established that Raymond's evidence that he had obtained a loan for that from Citibank by mortgaging his new home was erroneous. The new home was not yet completed until in January 1991 and the mortgage to Citibank was not taken out until 1994. Raymond's late explanation that he may not have traded Wheels and Deals from the caryard until then, I found completely unconvincing and a mere after thought to deal with a difficult line of cross-examination. I accept Elias's evidence that there was talk of Raymond buying him out but nothing came of it.
I am satisfied that Elias's detrimental reliance has not been undermined by any of the other possible transactions thrown up in the evidence.
It follows that I am satisfied that George Shukri, Raymond and Ghada hold the land on a proprietary constructive trust for the benefit of Issa as to a one-quarter share as tenant in common and for Elias as to a one-quarter share as tenant in common.

[35]

Decision - the shareholding in Parramatta Wholesale Cars Pty Limited

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.
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".
I am satisfied that from 17 March 1998, when he was appointed a director, George Shukri was entitled to be issued an equal shareholding with Issa, given that from that time the process of redirecting the purpose of PWC was initiated. This was evidenced by the purchase of lots 3 and 4 Parramatta Road at auction on 7 May 1998. As I am sure I have made clear already, I am not satisfied that the $300,000 odd contributed by George Shukri was a loan and I am certainly not satisfied that Issa has proved repayment of the loan for the reasons I have set out at [61] - [67]. From this material, I draw the inference that George Shukri was an active participant with Issa in the purchase of those properties through their common involvement in PWC. A most telling consideration is that the balance of funds of purchase of the land was raised by a mortgage with ANZ bank which George Shukri and Elen and Issa and Fayrouz were required to guarantee in addition to the mortgages provided by PWC. If George Shukri was a mere lender, he would hardly have agreed to that. If Issa was a mere working director, he would hardly have agreed to that. I say this bearing in mind their presentation in the witness-box, as well as by reference to the apparent logic of events.
I appreciate in coming to these conclusions, I am rejecting the main thrust of the evidence of each of George Shukri and Issa about these matters. They each have a high degree of self-interest in excluding the other. I am of the view, notwithstanding the impression I have formed, that Issa is the day to day driving force behind PWC, and has been for many years. George Shukri, despite his chronological seniority, retains an active interest in the affairs of the business and, in any event, had by the time of the transition of GRQWC's business to PWC by far and away contributed the most capital to the enterprise. It may be a small point but having had the opportunity of seeing and hearing all of the principal members of the Hanania family give evidence, including George Shukri, I am of the view that he is not the type of man who would be prepared to lend a large sum of money to his son for the purchase of valuable land. He impressed me very much that he was the type of person, given his long business history in Jordan and Australia who would only be involved in the purchase of land if he could be involved directly as an owner.
For what it's worth, I record that the trial balance for 30 June 1999 for GRQWC (Exhibit 8, tab 53, p. 552) shows George's equity as $579,598 and Issa's as $241,603 (Elias is still shown as $185,700). From that position, as I have said more than once, GRQWC's profit and loss statement for 2000 (Exhibit 8, tab 54) shows no profit from trading in used cars at all, but a non-trading profit from other unspecified income sources divided equally between George Shukri and Issa. I repeat in that year 2000, PWC made $2.175m as a gross trading profit by dealing in used cars. I would regard these documents and George's evidence as a clear indication that the common intent of George and Issa adjudged objectively was that they were to be equal shareholders in PWC from at least, or no later than, 17 March 1998 when Mr Andrews left the business.
Applying the principles I have set out above (at [273] ff) I am satisfied that George Shukri has made a case under s 175 of the Corporations Act for the correction of or rectification of PWC's share register. That is to say, applying those principles I am satisfied that George Shukri has established a personal equity that requires the protection of the Court. In the exercise of my discretion, I propose to order a correction of the register of members. I am not satisfied that there is any reason why that order should not be made.
The orders giving effect to this decision ought to require PWC to comply with ss 178A and 178C Corporations Act within 28 days of the entry of orders.

[36]

Decision - the rent claim

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.
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.
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.
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.
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.
From time to time he complained about the rent to Issa, but Issa did not agree to an increase. When matters came to a head in 2015, really Raymond and Issa agreed to disagree and the impasse about the amount of rent was resolved by PWC surrendering a portion of the land, as requested by Raymond, to Raymond and Ghada for use by their son to whom they, doubtless purported to grant a lease or license over that portion of the land to the exclusion of PWC and, not that it matters for present purposes, Issa. Obviously not satisfied, and after the notice to quit had been given to Issa (but not PWC), Raymond took matters into his own hands and took possession of an additional portion of the land and erected a fence down the notional centre line to exclude both Issa and PWC. In truth by excluding Issa, George Shukri by implication and their company, PWC from the use and enjoyment of that portion of the land in a proper manner, Raymond and Ghada are in effect trespassers: State of New South Wales v Koumdjiev (p. 361 [32]).
In my judgment when Raymond and Issa agreed to PWC surrendering the part of the land demanded by Raymond, any lease and obligation to pay rent was discharged by their agreement. Although I accept that Raymond was acting out of a misunderstanding of the concept of the unity of possession enjoyed by tenant in common, by seizing an additional portion of the land, albeit without Issa's active opposition (even if he had the tacit agreement of George Shukri and Elias), and erecting a fence to exclude Issa, Raymond was acting well beyond his legal rights as a tenant in common.
I am not of the view that an entitlement to rent has been established.

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