Khan v DP Bonds Pty Ltd [2026] NSWSC 942 | Case summary

Khan v DP Bonds Pty Ltd [2026] NSWSC 942 | Case summary | Zoe

Court

Supreme Court of NSW

Decision date

2026-08-06

Before

Pike J

Catchwords

CONTRACTS — sale of land — deposit bond — counter indemnity — whether plaintiffs signed deposit bond application and counter indemnity to facilitate purchase of property — plaintiffs alleging signatures forged by finance broker — uncontradicted forensic handwriting evidence supporting forgery — whether indemnity a nullity — whether agreement should be declared wholly void — Contracts Review Act 1980 (NSW), s 7 AGENCY — actual authority — ostensible authority — finance broker — whether finance broker authorised to sign or submit deposit bond application and counter indemnity on behalf of proposed purchasers — provision of identification and financial documents — whether finance broker on a frolic of his own — scope of finance broker’s engagement — where plaintiffs authorised broker to do all things necessary to secure property CONTRACTS — ratification — whether plaintiffs ratified or adopted unauthorised deposit bond application, counter indemnity and deposit bond by subsequently taking steps to obtain finance and complete purchase — whether knowledge of transaction and deposit bond sufficient — whether forged signature capable of ratification — extensive contemporaneous evidence demonstrating plaintiffs' knowledge of financial agreements to facilitate purchase of property CONSUMER LAW — misleading or deceptive conduct — silence or omission — whether plaintiffs failed to disclose alleged forgery before deposit bond was called upon and paid — whether alleged conduct was in trade or commerce — whether duty to disclose arose EQUITY — estoppel — common law and equitable estoppel — alleged forged documents — whether plaintiffs, by silence or subsequent conduct, were precluded from denying liability under counter indemnity — where plaintiffs became aware of alleged forgery — reliance and detriment REAL PROPERTY — caveat — caveat lodged to secure liability under counter indemnity — funds paid into court to procure withdrawal of caveat — whether funds should be paid to plaintiffs or defendants

Source

Original judgment source is linked above.

Catchwords

CONTRACTS — sale of land — deposit bond — counter indemnity — whether plaintiffs signed deposit bond application and counter indemnity to facilitate purchase of property — plaintiffs alleging signatures forged by finance broker — uncontradicted forensic handwriting evidence supporting forgery — whether indemnity a nullity — whether agreement should be declared wholly void — Contracts Review Act 1980 (NSW), s 7 AGENCY — actual authority — ostensible authority — finance broker — whether finance broker authorised to sign or submit deposit bond application and counter indemnity on behalf of proposed purchasers — provision of identification and financial documents — whether finance broker on a frolic of his own — scope of finance broker’s engagement — where plaintiffs authorised broker to do all things necessary to secure property CONTRACTS — ratification — whether plaintiffs ratified or adopted unauthorised deposit bond application, counter indemnity and deposit bond by subsequently taking steps to obtain finance and complete purchase — whether knowledge of transaction and deposit bond sufficient — whether forged signature capable of ratification — extensive contemporaneous evidence demonstrating plaintiffs' knowledge of financial agreements to facilitate purchase of property CONSUMER LAW — misleading or deceptive conduct — silence or omission — whether plaintiffs failed to disclose alleged forgery before deposit bond was called upon and paid — whether alleged conduct was in trade or commerce — whether duty to disclose arose EQUITY — estoppel — common law and equitable estoppel — alleged forged documents — whether plaintiffs, by silence or subsequent conduct, were precluded from denying liability under counter indemnity — where plaintiffs became aware of alleged forgery — reliance and detriment REAL PROPERTY — caveat — caveat lodged to secure liability under counter indemnity — funds paid into court to procure withdrawal of caveat — whether funds should be paid to plaintiffs or defendants

Judgment

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

Medium Neutral Citation: Khan v DP Bonds Pty Ltd [2026] NSWSC 942

Hearing dates: 18-20 May and 22 June 2026

Date of orders: 6 August 2026

Decision date: 06 August 2026

Jurisdiction: Equity - Real Property List

Before: Pike J

Decision: Cross-claim upheld. Parties to agree orders to give effect to these reasons.

Catchwords: CONTRACTS — sale of land — deposit bond — counter indemnity — whether plaintiffs signed deposit bond application and counter indemnity to facilitate purchase of property — plaintiffs alleging signatures forged by finance broker — uncontradicted forensic handwriting evidence supporting forgery — whether indemnity a nullity — whether agreement should be declared wholly void — Contracts Review Act 1980 (NSW), s 7
AGENCY — actual authority — ostensible authority — finance broker — whether finance broker authorised to sign or submit deposit bond application and counter indemnity on behalf of proposed purchasers — provision of identification and financial documents — whether finance broker on a frolic of his own — scope of finance broker’s engagement — where plaintiffs authorised broker to do all things necessary to secure property
CONTRACTS — ratification — whether plaintiffs ratified or adopted unauthorised deposit bond application, counter indemnity and deposit bond by subsequently taking steps to obtain finance and complete purchase — whether knowledge of transaction and deposit bond sufficient — whether forged signature capable of ratification — extensive contemporaneous evidence demonstrating plaintiffs' knowledge of financial agreements to facilitate purchase of property
CONSUMER LAW — misleading or deceptive conduct — silence or omission — whether plaintiffs failed to disclose alleged forgery before deposit bond was called upon and paid — whether alleged conduct was in trade or commerce — whether duty to disclose arose
EQUITY — estoppel — common law and equitable estoppel — alleged forged documents — whether plaintiffs, by silence or subsequent conduct, were precluded from denying liability under counter indemnity — where plaintiffs became aware of alleged forgery — reliance and detriment
REAL PROPERTY — caveat — caveat lodged to secure liability under counter indemnity — funds paid into court to procure withdrawal of caveat — whether funds should be paid to plaintiffs or defendants

Parties

Applicant/Plaintiff:

Khan

Respondent/Defendant:

DP Bonds Pty Ltd

Legislation Cited (9)

Contracts Review Act 1980(NSW)

Australian Securities and Investments Commission Act 2001(Cth)

Evidence Act 1995(NSW)

Real Property Act 1900(NSW)

Uniform Civil Procedure Rules 2005(NSW)

Review Act 1980

Property Act 1900

Conveyancer's Licensing Act 2003

Securities and Investments Commission Act 2001

Cases Cited (24)

[2017] FCAFC 76

[1938] HCA 34

These proceedings concern a deposit bond issued in connection with a proposed purchase of land at Lot XX Thirteenth Avenue, Austral NSW 2179 (the Austral Property). The plaintiffs, Mohammed Jabir Jaffrullah Khan and Mohammed Junaid Nawab Khan, are brothers. I will refer to them respectively as Jabir and Junaid, and together as the Khans.
The first defendant, DP Bonds Pty Ltd (DP Bonds), carries on business in relation to the issue of deposit bonds. The second defendant, HDI Global Specialty SE HRB 211924 (HDI), was the underwriter of the relevant bond. DP Bonds acted as agent for HDI. I will refer to them together as the defendants where no distinction is necessary.
On 10 November 2023, DP Bonds, as agent for HDI, issued Deposit Bond No DB11236010A in the sum of $70,000 in connection with the proposed purchase of the Austral Property. The bond named the Khans as purchasers. It was issued in favour of the vendors of the Austral Property in substitution for the cash deposit payable under the contract for sale.
The bond was issued after DP Bonds received several versions of a document titled “Deposit Power Short Term Application” (DPSTA). The document relied upon by the defendants is dated 8 November 2023. It was completed and submitted by Mario Massouras (Mr Massouras), a finance broker associated with Maze Finance. The DPSTA contained, on its final page, a counter indemnity in favour of the underwriter HDI. The defendants contend that the Khans are bound by that counter indemnity.
A central factual issue in the proceedings is whether the Khans signed the DPSTA, including the counter indemnity. If they did, there is little difficulty in the defendants’ primary case. If they did not, further questions arise as to whether Mr Massouras had authority to bind them, whether they subsequently ratified or adopted what was done, whether they are estopped from denying liability, and whether they engaged in misleading or deceptive conduct by failing to alert the defendants of the alleged forgery before the bond was called upon and paid.
The Khans deny signing the DPSTA, the counter indemnity, or the contract for sale of the Austral Property. They say that the signatures appearing on those documents were forged. They allege that the most likely person responsible was Mr Massouras. On that basis, they contend that the counter indemnity is a nullity and not binding on them. In the alternative, they contend that any agreement is liable to be declared void under the Contracts Review Act 1980 (NSW) (CRA).
The defendants deny that the Khans are entitled to such relief. Instead, they contend that the Khans signed the DPSTA or that Mr Massouras had actual or ostensible authority to submit the DPSTA on behalf of the Khans. In the alternative, they contend that the Khans ratified or adopted the DPSTA, the counter indemnity and the deposit bond by their subsequent conduct, including by continuing to act as purchasers of the Austral Property after becoming aware of the contract and the Deposit Bond.
The defendants also allege that the Khans engaged in misleading or deceptive conduct by failing to notify them of the alleged forgery before the bond was called upon and paid. Finally, the defendants contend that the Khans are estopped from denying liability under the counter indemnity.
The immediate practical significance of the dispute is the sum of $80,000 paid into Court by the Khans in March 2024. That payment was made in order to procure the withdrawal of a caveat lodged by DP Bonds over property owned by the Khans at XX Rossini Drive, Hinchinbrook NSW 2168 (the Hinchinbrook Property). The Khans seek payment out of that sum to themselves. The defendants, by cross-claim, seek payment out of that sum to them, or alternatively in the amount of $70,000 plus interest and costs.
For the reasons set out below, I am satisfied on the evidence that the Khans likely did not sign the DPSTAs. That conclusion, however, does not determine the proceedings. I am satisfied that Mr Massouras was engaged by the Khans to do everything necessary to seek to secure the Austral Property, including in relation to obtaining finance for the acquisition of the Austral Property and that, in the circumstances, he was authorised to procure the issue of the Deposit Bond in their names.
In any event, after the Khans became aware that the Austral Property transaction was on foot and that a deposit bond had been issued in their names, they continued to act as purchasers, sought finance to complete, and did not notify DP Bonds of the alleged forgery before the bond was called upon and paid. I am satisfied that, in the circumstances, they are estopped from denying liability to the defendants.
The defendants’ cross-claim should therefore be upheld. The claims advanced by the Khans should be dismissed. The parties should seek to agree orders, including as to payment out of the funds in Court, and costs. I will determine any remaining issues on the papers.

The Khans commenced these proceedings by summons filed on 21 March 2024. At that time, they were registered proprietors of the Hinchinbrook Property.
The summons sought, among other relief, an order pursuant to s 74MA of the R**eal Property Act 1900 (NSW) that caveat AT872658 be withdrawn. The caveat had been lodged by DP Bonds over the Hinchinbrook Property and claimed an interest said to arise under the counter indemnity contained in the DPSTA.
The summons also sought final relief in the form of a declaration that the counter indemnity provision contained in the DPSTA dated 8 November 2023 was void and of no effect.
On 22 March 2024, the proceedings came before the Duty Judge, Hammerschlag CJ in Eq. Consent orders were made. Pursuant to those orders, and upon the usual undertaking as to damages and without admissions, the Khans paid $80,000 into Court. Upon that payment being made, the caveat over the Hinchinbrook Property was withdrawn.
The $80,000 was paid into Court pending further order. Costs were reserved. The proceedings were otherwise listed for directions in the real property list.
By consent, the matter then proceeded by way of pleadings. The Khans filed a statement of claim on 29 May 2024. The defendants filed a defence on 17 July 2024. On the same date, the defendants filed a cross-claim. The Khans filed a defence to the cross-claim.
On 5 September 2025, I listed the matter for hearing for 4 days to commence on 18 May 2026. The hearing commenced on that day. Andrew Bulley appeared for the Khans. Amelia Avery Williams appeared for the defendants. It was not possible to conclude the hearing during this 4 day period. This was because, although the Khans served an expert report from a handwriting expert, Melanie Holt (Ms Holt), dated 18 September 2024, Ms Holt was not informed of the hearing date, and no steps were taken to secure her attendance, until very shortly prior to 18 May 2026. At the time of the hearing Ms Holt was overseas and was unable to attend in person. In circumstances where Ms Holt did not have her file with her and indeed had been given no real notice of the hearing, it was not practicable to explore Ms Holt giving evidence remotely. Even if this was practicable, I would not have been likely to require Ms Holt to interrupt her overseas travels to give evidence.
The parties were ultimately able to agree to terms whereby the hearing would be adjourned to a date when Ms Holt was available with the Khans paying the costs thrown away by reason of the fact that the hearing was not able to be concluded within the initially allocated period.
The conduct of the legal representatives for the Khans fell well short of what is expected. The impact is exacerbated in the present case when one considers the amount at issue, which whilst is obviously significant for the parties, is small in the context of contested Supreme Court litigation. Nonetheless, it seemed to me that the interests of justice were best served in the present case by taking the course that I did, rather than preventing the Khans from relying on Ms Holt’s report.

Each of the Khans gave evidence and were cross-examined. They were not impressive witnesses. I do not accept their evidence unless it is against their interest or corroborated by contemporaneous material. For the most part there is no corroboration.
Jabir’s affidavit evidence was demonstrated to be wrong in significant respects. For example, he gave the impression that he only became aware of Mr Massouras and his company (Maze Finance) in October 2023 as a result of some research. The reality was that he had known Mr Massouras for many years and had attended his wedding. This is evidenced by Jabir’s text to Mr Massouras on 11 February 2024, which stated “[y]ou have been in my life over a decade a good mate”.
There were also aspects of his evidence which were materially inconsistent with the evidence of Kristy Ektas (Ms Ektas). I regard Ms Ektas as a genuinely independent and reliable witness. Her evidence was given by reference to contemporaneous file notes made in the course of her work, and, in important respects, those notes supported her recollection of the relevant conversations. Where Jabir’s later account was inconsistent with Ms Ektas’ evidence and her contemporaneous records, I prefer the evidence of Ms Ektas.
Junaid was also an unreliable witness. He refused to accept basic propositions that were consistent with his own evidence. His evidence was also inconsistent with the evidence of Ms Ektas, supported as it was by contemporaneous file notes.
The whole thrust of the evidence now given by both Jabir and Junaid – namely that they were not aware that they were contractually bound to purchase the Austral Property until late January 2024 – is inconsistent with the contemporaneous documentary evidence and that given by independent witnesses.
The third witness called by the Khans was Ms Holt, who I consider to be a careful and reliable witness. She gave her evidence in a measured manner, acknowledged the limitations of her expert examination and did not seek to express her conclusions more strongly than the available material permitted. Her opinions were explained by reference to the features she observed in the questioned and comparison signatures and were not materially undermined in cross-examination. I accept her evidence.
Five witnesses were called by the defendants.
Save for Mr Massouras, I formed the view that each was doing their best to assist the Court.
Socheath Yi’s (Mr Yi) evidence was of no real significance.
Ms Ektas was a reliable witness whose evidence was supported by contemporaneous file notes. I accept it.
Marco Conciatore’s (Mr Conciatore) evidence was relatively brief. No credit attack was made in relation to it. I accept it.
Nikolaos Alexopoulos (Mr Alexopoulos) was a clear and impressive witness who appeared to have a clear recollection of relevant events that he was involved in. I accept his evidence. No real attack was levelled against it in closing address.
The final witness was Mr Massouras. His evidence was seriously challenged.
The Khans submit that his account of the preparation and execution of the deposit bond applications was not reliable and thus should not be accepted. Although Mr Massouras accepted that the handwriting on the application forms was his, he maintained that he emailed the forms to the Khans, that they signed them, and that they returned them to him. He also said that, because the matter was urgent, he would have telephoned the Khans to tell them that the forms were in their inbox and needed to be signed promptly.
The Khans point to the absence of any contemporaneous material supporting that account. No emails were tendered showing that any version of the application form was sent to either Jabir or Junaid for signature or returned by them. The absence is significant in circumstances where Mr Massouras accepted that he knew the Khans’ email addresses and corresponded with them by email. Further, the extensive text messages between Jabir and Mr Massouras during the critical period contain no reference to any of the deposit bond applications. Mr Massouras ultimately accepted in cross-examination that the messages said nothing about the applications and that the messages on 13 November 2023 made no reference to the deposit bond having been issued.
The Khans also rely upon the fact that Mr Massouras inserted his own email address, rather than an email address of either Jabir or Junaid, as the address to which the link to view the issued deposit bond was to be sent. Mr Massouras accepted that, as a result, neither Jabir or Junaid would receive that link directly. Although he asserted that he later provided the bond to them, his evidence did not clearly establish when or how that occurred.
There was a further challenge to Mr Massouras’ credit arising from the supporting material submitted with the application. In particular, he was taken to a document appearing to be the first page of a contract for the sale of the Hinchinbrook Property dated 8 November 2023 and which recorded a sale price of $1.3 million. There was no satisfactory evidence that such a contract then existed. Mr Massouras accepted that it was quite possible that he submitted the document in support of the application, but could not explain where it came from. The Khans submit that this evidence supports an inference that Mr Massouras was prepared to submit material of doubtful provenance in support of the application and materially undermines the reliability of his evidence that the Khans themselves signed and returned the application forms.
I do not accept aspects of Mr Massouras’ evidence, including as to the circumstances in which the deposit bond application was made. This does not mean that I reject the whole of Mr Massouras’ evidence: see Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 695; [1975] HCA 63 per Gibbs J; CCL Secure Ltd v Berry [2019] FCAFC 81 at [94]. There are large aspects of it that I do accept, especially where consistent with the objective contemporaneous material and inherent probabilities.
I do not regard the apparently doubtful provenance of the documents submitted in support of the DPSTA as bearing adversely on Mr Massouras’ credit and, more importantly, the important issue of whether Mr Massouras was authorised by the Khans to submit the application for a deposit bond on their behalf. There was no reason for Mr Massouras to be applying for a deposit bond with whatever supporting material he submitted, unless he was authorised to do so by the Khans. He was not on a frolic of his own.

As set out elsewhere in these reasons, one of the witnesses called in the defendants’ case was Mr Massouras, the finance broker who was involved in the Khans entering into the contract to purchase the Austral Property and the obtaining of the deposit bond.
Although directions were made in the preparation of the proceedings for the defendants to serve any affidavits on which they proposed to rely, the defendants were not able to serve an affidavit from Mr Massouras. This is understandable in circumstances where, at the time, he was incarcerated, having been charged with certain drug offences. Instead, the defendants served an outline of anticipated evidence of some ten paragraphs.
Mr Massouras was due to give evidence by audio visual link from Silverwater Correctional Complex on the third day of the hearing. On the evening of the second day of the hearing, my chambers were advised by email that Mr Massouras had, that day, been released on bail and would therefore appear in person at the hearing before the Court. Mr Massouras appeared to give evidence in response to a subpoena on the third morning of the hearing. Counsel for the defendants led evidence from him.
An aspect of the evidence given by Mr Massouras in chief was that he had emailed to the Khans (through Jabir) a number of application forms in relation to the deposit bond requesting that they apply their signature or initials to the relevant application. His evidence was that in response to those emails, each of the Khans executed or initialled the relevant application forms and returned them to Mr Massouras, after which he uploaded them onto the defendants’ system.
On several occasions during the course of Mr Massouras’ evidence in chief, counsel for the Khans took objections to various questions being asked. I permitted the questions to be asked on the basis that if, after the conclusion of the evidence in chief, counsel for the Khans required time in order to obtain instructions in relation to those matters, I would be inclined to give the Khans’ counsel an opportunity to obtain those instructions.
The examination in chief of Mr Massouras concluded at about 11.20am on the third morning of the hearing. Counsel for the Khans asked for a short period to obtain instructions and I accordingly took an early morning tea adjournment.
When I returned, counsel for the Khans informed me that he had recently become aware that there were further documents which had come into his solicitor’s possession, which should have been produced in response to a notice to produce issued in April 2024, but which counsel contended had a material bearing on Mr Massouras’ evidence. I was requested to adjourn the hearing until the fourth morning, to enable those documents to be obtained and then deployed. I did not agree with this course. I required counsel for the plaintiffs to commence his cross-examination and take it as far as he could without reference to the new documents. Counsel for the Khans took this course.
This section of the cross-examination lasted until approximately 12.40pm. I was then advised that Mr Massouras, for reasons concerning his bail conditions which need not be delved into, was unable to remain to give evidence after 2pm. I therefore excused Mr Massouras from further attending until 10am the following morning in circumstances where I indicated to Mr Massouras that if he was not required for further cross-examination, he would be so advised. I indicated to counsel for the parties that I would entertain any further application in relation to the new documents at 2pm.
When the matter resumed at 2pm, counsel for the Khans advised me that during the luncheon adjournment some documents had been provided by the Khans’ solicitors to the defendants’ solicitors. I was subsequently advised that this took the form of two zip files containing a number of documents. It was accepted by counsel for the Khans that these documents should have been produced to the defendants in answer to a notice to produce served by the defendants on 12 April 2024. I was further advised that it was thought by the Khans’ solicitors that those documents had been produced, but it subsequently became clear that the documents had not been produced and as such they were only produced on the third day of the hearing.
Counsel for the Khans made an application to be able to use the further documents by way of cross-examination of Mr Massouras on the fourth day of the hearing. I refused that application on the basis that it appeared to me that I was then unable to assess whether such an application was in the interests of justice without some identification of the documentary material that was sought to be deployed and some explanation for the delay in the production.
At 3.30pm on the third day of the hearing, counsel for the Khans made a further application. He handed up a lever arch folder of documents, which contained, relevantly two tabs of documents. Behind the first tab were Jabir’s mobile telephone records during a certain period and behind the second tab were a series of emails from or to Jabir.
It subsequently emerged in discussion with counsel for the Khans that his application was to use a subset of those documents, principally the emails in the period that the deposit bond was allegedly provided to the Khans for their signature, in further cross-examination of Mr Massouras and subsequently to be tendered in the Khans' case, presumably by way of a reopening. The point to be proved was a negative, namely that there were no emails between Mr Massouras and Jabir consistent with the evidence given by Mr Massouras to the effect that he emailed the various versions of the application for the deposit bond to Jabir, and received back from Jabir signed application forms.
An affidavit was subsequently handed up from the solicitor who currently has carriage of the matter for the Khans. It was ultimately accepted, as I understood the position after further questioning by me of counsel for the Khans, that the affidavit did not really disclose how it was that the documents now produced, were not produced in May 2024. Counsel for the Khans sought further instructions and I was informed from the bar table that the Khans, pursuant to a request from their solicitors, had very recently forwarded to the Khans’ solicitors, an earlier email which they had sent to the Khans’ solicitors in May 2024 attaching the documentation now produced. No explanation was provided to explain how it was that the documents which were emailed in May 2024 were not then produced in response to the notice to produce.
Counsel for the defendants opposed any application to rely upon the further material, including to ask further questions by way of cross-examination of Mr Massouras.
Having heard argument I ruled that the Khans were not permitted to rely upon any of the further material served, or further cross-examine Mr Massouras in relation to that material. I gave brief reasons at the time for so ruling.
In my view, it was not in the interests of justice for the Khans to be permitted to rely upon the further material in the circumstances, including to ask further questions of Mr Massouras.
For the point advanced by the Khans to be properly made, there would have needed to be evidence that the bundle of emails proposed to be shown to Mr Massouras was the complete set of emails exchanged between Mr Massouras and Jabir during the relevant period. The Khans had not given any such evidence, and it was not indicated that part of the application was to recall one or both of the Khans to give that evidence.
Had such evidence been given, I would have been required, in the interests of justice, to permit the defendants time to undertake whatever enquiries or searches they were instructed to take, in order to test the proposition that the email chain was complete. This is in circumstances where Mr Massouras had given the sworn evidence that he had emailed the documents. Indeed, counsel for the Khans did not dispute that the defendants should be given an opportunity to test the contention. In order to test the contention, it would, in my view, at least be open to the defendants to issue subpoenas to third parties who may house the email accounts for Jabir, seek emails from Mr Massouras, assuming he still has them or from the NSW Police Force who appear to have seized Mr Massouras’ laptop at the time he was arrested.
These further enquiries would likely have taken substantial time and it was by no means clear to me that those enquiries would have been able to be completed by the time that the hearing was to resume on 22 June 2026 – by reason of the Khans' failure to subpoena the handwriting expert – Ms Holt, from whom they had previously served a report. In these circumstances, a further adjournment of the hearing would have been likely. This was not in the interests of justice, particularly in circumstances where the amount at issue in the case is in the order of $80,000. Questions of proportionality loom large. The opportunity for a party to litigation to properly present its case has limits.
During the course of her address, counsel for the defendants handed up a draft index to a proposed court book which was circulated by the Khans’ solicitors to the defendants’ solicitors in the week prior to the hearing. As it ultimately turned out, it was not possible, apparently, for the Khans’ solicitors to produce a court book. Rather than insist upon compliance with this basic requirement, and particularly driven by the amount at issue in the proceedings, I permitted the hearing to proceed on the basis that each party separately tendered the material on which they proposed to rely. The draft court book index circulated the week prior to the hearing included a number of emails which, as I understand it, were only produced to the defendants’ solicitors on the third day of the hearing. Self-evidently, the Khans’ solicitors were in possession of those emails in the week prior to the hearing. I was informed by counsel for the defendants that the defendants requested copies of the documents contained in the draft court book index, but no such documents were provided. Further, notwithstanding that the documents were included in the draft court book index, the Khans did not subsequently seek to tender the emails. In my view, these matters provide a further reason for refusing the application of the Khans.

I set out below the factual chronology.
There were a very large number of factual disputes between the parties. The fact finding task is complicated by the fact that the three key witnesses, Jabir, Junaid and Mr Massouras, were unreliable witnesses in many respects. The most reliable guide to what occurred and against which to assess the oral evidence of the witnesses, is the objective contemporaneous documents and the underlying inherent probabilities: see ET-China.com International Holdings Limited v Cheung (2021) 150 ACSR 461; [2021] NSWCA 24 at [25]-[30] per Bell P (Bathurst CJ and Leeming JA agreeing).
Whilst there were a very large number of factual disputes between the parties, this was principally because they put forward quite different factual narratives. At a broad level the Khans contended that they were not aware that they were contractually bound to acquire the Austral Property and had provided a deposit bond to pay the deposit, until about late January 2024. They submit that everything done before that time was a result of Mr Massouras acting on a frolic of his own.
On the other hand, the defendants contend that the Khans well knew what was going on, having authorised Mr Massouras to do all things necessary to secure the Austral Property for them. They submit that the Khans only raised the contention that they did not know they were bound to buy the Austral Property and that Mr Massouras had forged their signatures after they realised that if they proceeded with the purchase they would not have sufficient funds to build a house on that land.
Resolution of which of these two narratives is more likely goes a long way to resolving the issues in these proceedings.
I have set out below the relevant chronology against which to assess the competing narratives.
As at 2023, the Khans were the registered proprietors of the Hinchinbrook Property as tenants in common. They inherited it on the passing of their mother in about 2014.
At some stage in 2023, the Khans discussed renovating the Hinchinbrook Property with a view, it would appear, to then selling it and buying a house and land package. There is some uncertainty in the evidence as to when this idea first emerged. The text messages between Jabir and Mr Massouras suggest that it was likely in early 2023 that the idea first emerged. The evidence suggesting that it was later in the year (October or so) is likely to be unreliable.
The Khans needed to borrow money to carry out the renovation work, with Jabir also needing to borrow money to pay out some personal expenses.
It does not appear to be in dispute that Mr Massouras was asked to secure a loan for the purposes of renovating the Hinchinbrook Property and clearing up Jabir’s personal debts.
Contrary to the impression created by Jabir in his first affidavit, the Khans and Mr Massouras were very good friends. Mr Massouras had brokered a loan for Junaid in about 2014 or 2015. Jabir had also attended Mr Massouras’ wedding.
Beyond obtaining finance to clear up Jabir’s personal debts and renovate the Hinchinbrook Property, the precise scope of the engagement between Mr Massouras and the Khans in 2023 is in dispute. The Khans say that Mr Massouras was engaged only to present financing options in relation to a property transaction, and that he had no authority to enter into contracts or sign documents on their behalf. Accordingly, the Khans say that they were not aware they had bought the Austral Property until late January 2024. The defendants say that in relation to the purchase of the Austral Property, Mr Massouras was tasked with doing everything to purchase the property for the Khans and had complete authority to act in connection with finance arrangements, including the deposit bond application.
Mr Massouras introduced Jabir to Mr Alexopoulos in about April 2023 as a real estate agent who could help Jabir and Junaid find suitable properties in surrounding suburbs, and also help them sell the Hinchinbrook Property.
As at September 2023, Mr Massouras was progressing finance applications. Both Jabir and Junaid had previously provided him with identification material and the like to enable such applications to be made.
At this time, the Khans were looking to purchase land – or “investigating” as Jabir put it in cross-examination. They were obtaining brochures and plans for homes that could be built on particular blocks and were communicating with Mr Massouras about purchasing a land and house package. Their discussions included obtaining finance for a house and land package. Jabir said that he was not concerned with what particular lender or lenders Mr Massouras was approaching. He had been tasked with getting a loan for the Khans and they left the details of which lender and how he did that to Mr Massouras.
Jabir ultimately agreed in cross-examination that he knew at this time that if they were to buy a block of land, a deposit would need to be paid. Junaid also agreed.
A valuer attended the Hinchinbrook Property on 19 October 2023 for the purposes of the Khans obtaining finance. A loan was obtained from Pepper Finance that settled on 27 October 2023.
It seems common ground that by early November 2023, the Austral Property had been identified. The Khans had checked it out and that it was only eight minutes to the station. It seems Mr Alexopoulos introduced Jabir and Junaid to the Austral Property in the beginning of November 2023.
Mr Massouras gave evidence that after Jabir and Junaid had visited the Austral Property they telephoned Mr Massouras indicating that they wanted to buy the Austral Property. Mr Massouras says that he then negotiated with Mr Alexopoulos for the Austral Property, told the Khans (Jabir) the price he had negotiated ($700,000) and that the Khans (through Jabir) agreed to go ahead. Jabir then told Mr Massouras “to go ahead and do everything [he could] to secure it”.
Mr Massouras also negotiated a six month settlement period with Mr Alexopoulos. This was, he said, to enable the Khans with sufficient time to sell the Hinchinbrook Property. Mr Massouras says that he discussed all of the relevant matters with the Khans (principally Jabir) including that they could purchase the Austral Property through the use of a deposit bond.
Mr Alexopoulos’ evidence in this regard is largely consistent with the evidence of Mr Massouras. Importantly, his evidence corroborates Mr Massouras’ evidence that the Khans were aware they had purchased the Austral Property as at November 2023.
The Khan’s accept that they viewed the Austral Property, however they deny that they agreed to buy it at this time. Furthermore, they deny that Mr Massouras ever discussed with them buying the Austral Property, including using a deposit bond or that they said to Mr Massouras that they wanted to go ahead and that he should do everything he could to secure it. I resolve this important issue below.
Throughout October and early November 2023, Jabir and Mr Massouras conversed in a series of text messages which refer to the Austral Property, including a message on 2 November 2023, where Jabir texted Mr Massouras stating “[b]ring on the sale n the new home man”. Coupled with what occurred the next day, this text is strongly suggestive of Jabir being aware at this stage that the Austral Property was being bought.
On 3 November 2023, Ms Ektas of MLG Conveyancing (MLG) was introduced to the Khans by Mr Massouras:

Between 6 and 8 November 2023, various DPTSA’s were provided by Mr Massouras to DP Bonds. The provision was by way of Mr Massouras uploading the relevant form using the DP Bonds online system. It appears that five separate forms were uploaded. Each form included a counter indemnity agreement purportedly signed by the Khans.
The effect of the counter indemnity agreement was that in consideration of the underwriter (HDI) issuing the Deposit Bond to the Vendor, each applicant – being relevantly the Khans – agreed to certain terms. Those terms included a broadly worded indemnity and an acknowledgment that upon the Underwriter making any payment under or in connection with the Deposit Bond, the applicant shall immediately owe the Underwriter the amount of that payment.
The first DPSTA was uploaded on 6 November 2023. This document contained the signatures of both Jabir and Junaid:
An amended form was uploaded on 7 November 2023. The signatures on that form appear to be the same as on the first form, with the form now dated “7/11/23”. The answers to the questions on page 5 of the form (being the counter indemnity) had also all been amended from “No” to “Yes” with the changes purportedly initialled by the Khans.
Another version was uploaded later on 7 November 2023. The signatures on page 5 again appear different to the earlier two versions and the answers to the relevant questions were now all marked “Yes”, and there were no initials.
Two further versions were apparently uploaded on 8 November 2023. The first of these is curiously dated “27/11/23” and purports to include a page, certified by Mr Massouras and dated “7/11/23” showing three forms of identification for the Khans.
The signatures on the two versions uploaded on 8 November 2023 appear different.
The signatures on the DPSTA last uploaded on 8 November 2023 is provided below:
Mr Massouras’ email contact details appeared on each version of the application.
As set out above, the application was accompanied by copies of identity documents for each of the Khans, including drivers licenses, Medicare cards and bank cards. The Khans agreed that they had provided this material to Mr Massouras but apparently only so that he could obtain finance options, not secure loans or obtain deposit bonds. It was also accompanied by a purported loan approval from MyLoan Plus dated 7 November 2023 in the amount of $450,000 in the names of the Khans in respect of the Austral Property, together with a copy of the contract for sale of that property, signed by the Khans. Also included was a purported loan approval from MyLoan Plus dated 26 October 2023 in respect of the Hinchinbrook Property in the amount of $825,133 and what purports to be the front page of the Contract for Sale of Land for the Hinchinbrook Property dated “6/11/23” for $1.3 million.
On 10 November 2023, in reliance on the information contained in the DPSTA, DP Bonds, as agent for HDI, issued the Deposit Bond in favour of the vendor of the Austral Property in the sum of $70,000. The Khans were named as purchasers.
It appears that contracts for the purchase of the Austral Property were exchanged on or about 10 November 2023. A purchasers’ counterpart was in evidence containing signatures purporting to be of Junaid and Jabir. Both denied that they ever signed the contract. Mr Massouras said that they did.
On 13 November 2023, Ms Ektas, a conveyancer from MLG received an email from Dimitra Biris of One Agency containing a covering letter, sales advice and the front page of a contract for sale and purchase of land for the Austral Property. The covering letter provided:

On 14 November 2023 at 9.15am, Jabir sent a message to Mr Massouras referring to “Kristie” sending documents to sign “for the land and stuff just asking i should sign and evrrythink [sic] right”. Jabir denied that he sent this text because he had seen the email from Ms Ektas dated 13 November 2023. Again, I do not accept this evidence. It is likely directly responsive to the email and the telephone call which preceded it.
On 17 November 2023, Jabir texted Mr Massouras “And we are okay to drive to our land tomorrow yeah bro”. Jabir ultimately accepted in cross-examination that this was a reference to the Austral Property. He had previously sought to suggest that it was not such a reference and that instead it was a text meant for his brother which was referring to the “multiple properties that [they] had visited”, and not the Austral Property. These messages make it difficult to accept that Jabir had no awareness of the purchase. However, they do not establish knowledge of the deposit bond application or counter indemnity.
On 18 November 2023, Mr Massouras texted Jabir “don’t forget Nick’s coming over at 3 o’clock. To sign the agreement with you boys and go through the process”.
At or about this time in November or December 2023, the Khans spoke to Mr Alexopoulos, about selling the Hinchinbrook Property. Mr Alexopoulos gave evidence that he met with both of the Khans at the Hinchinbrook Property to discuss the engagement and sale of the Hinchinbrook Property. While at the Hinchinbrook Property, Mr Alexopoulos observed pamphlets from home builders and the Khans discussed with him that they were deciding whether to build a single or double storey house on the Austral Property. One of the Khans indicated to Mr Alexopoulos that he was excited about the Austral Property as it was eight minutes to the station and that “he had checked out the Austral Property and loved it”. Jabir said in cross-examination that he did not recall such a discussion. I accept Mr Alexopoulos’ evidence in this regard. His evidence is quite inconsistent with the narrative that Jabir and Junaid now seek to give.
On 17 January 2024, Jabir and Mr Massouras had a text exchange as follows:

Jabir admitted that he received this email and that he knew from it that he and his brother had committed to buy the Austral Property, but he stated: “we weren’t too sure how we were committed”. Neither of the Khans responded to this email. There was also no suggestion, at this time, that Jabir was unhappy about being committed to purchase the Austral Property. Jabir’s conduct, immediately thereafter, is only consistent with understanding he was committed and wanting to go ahead by signing loan documentation.
On the following day, Jabir sent a message to Mr Massouras asking whether any loan documents needed to be signed. Read together, those communications are difficult to reconcile with a conclusion that Jabir was unaware that finance was being pursued for the purpose of completing a purchase of the Austral Property. His enquiry about loan documents is, in my view, consistent with an understanding that a purchase transaction was on foot and that finance was required in connection with it. Jabir agreed that he did not send a message to Mr Massouras asking him why he was bound to buy the Austral Property at this time.
On 5 February 2024, Jabir tried to send the following three text messages to Mr Massouras: “Hey bro”, “How we tracking”, and “We all sweet”. For some reason they were not delivered. Jabir denied in cross-examination that he was seeking to inquire as to the position in relation to finance for the purchase of the Austral Property, contending that his concern was in relation to the forthcoming auction of the Hinchinbrook Property. This explanation seems a little strange in circumstances where Mr Alexopoulos was the agent in relation to the sale of the Hinchinbrook Property and Mr Massouras was tasked with obtaining finance for the purchase of the Austral Property. His attempted texts to Mr Massouras were, in my view, likely directed at obtaining finance for the purchase of the Austral Property.
On 6 February 2024, the Khans signed, by DocuSign, a retainer for MLG, a document confirming that they wished to purchase the Austral Property as joint tenants, and a client authorisation for electronic conveyancing. A purchaser declaration for Revenue NSW was also signed electronically that day, although dated 14 November 2023. The Khans each gave evidence that the DocuSign just skipped through and they didn’t have a chance to read any of the documents. Jabir stated that “the DocuSign, the moment you hit the signature panel, it just jumps to the next page and the next page and the next page”. They also said they thought the documents were in relation to the Hinchinbrook Property, not in relation to the Austral Property. I do not accept either of these contentions. I am satisfied that the Khans well understood what they were signing and doing. Their earlier text messages to Mr Massouras raised questions of Mr Massouras where they were not certain whether they should sign. This is quite inconsistent with simply electronic signing when they did not know what they were signing.
On 7 February 2024, the Khans each completed a verification of ID document, although Jabir denied that this was in respect of the Austral Property. No alternative transaction was identified.
On 7 February 2024, Ms Ektas emailed Mr Massouras:

On 8 February 2024, there were text messages between Jabir and Mr Massouras concerning payslips and settlement. Mr Massouras reassured Jabir that settlement would occur. Jabir immediately sent his payslip and said he would send Junaid’s in the next ten minutes. Jabir denied that what was occurring was that Mr Massouras was organising the funds that were needed to complete on the purchase of the Austral Property. He said that all that Mr Massouras was doing was “process[ing] the preapproval only”, which was different from unconditional approval to go ahead to purchase the land. I do not accept this evidence. It is quite unclear what Jabir meant by “preapproval only”. In any event, it is readily apparent from the communications that there was an urgent need to obtain funding to enable settlement to occur.
There was a further exchange of text messages on 8 February 2024 in which Jabir asked Mr Massouras “Also is everythink looking good man” to which Mr Massouras responded “100% for tomorrow” and “Yeah man, it will get dine”, which was obviously a reference to “done”.
Jabir also texted: “I am not gonna get excited until I sign the paper work for the land and a photo of it saying sold with me and my bro”. Jabir said by referring to the paper work in his text he was referring to signing a contract for the sale of land. I do not accept this evidence. Jabir well knew he was committed to buy the Austral Property.
On 9 February 2024, the vendors of the Austral Property served a notice to complete. On the same day, Ms Ektas had a telephone conversation with Jabir. Her contemporaneous file note records that the client was upset because Mr Massouras had not received the loan approval yet. There was no suggestion at this stage by the Khans that they did not know they were contractually bound to buy the Austral Property. Quite the opposite. Jabir included in one of his affidavits a version of the conversation with Ms Ektas where he apparently said that he and his brother had never signed a contract and asked how could they be required to go through with this transaction? I do not accept that there was any such conversation on 9 February 2024. Ms Ektas’ account, supported by her file note, is more reliable.
Jabir also contended that he immediately had a conversation with Mr Massouras where he asked him for the contract of sale and said to Mr Massouras that “We haven’t even paid a deposit how can we be asked to settle?” Mr Massouras apparently said that he had the documents and would send them through. Jabir also asked whether they could service any loan “with the defaults on my account” and was told by Mr Massouras that he had sorted it with the lender. I do not accept that Jabir had this conversation with Mr Massouras. The text messages between the two at this time give a more accurate account of what was transpiring between the two.
On 9 February 2024, Jabir sent a text message to Mr Massouras:

On 9 February 2024, Jabir sent another text message to Mr Massouras referring to having spoken to Kristy, about the transaction not settling that day, and regarding a notice requiring settlement within 14 days. It ends with “Man what is happening. Lol…”. I do not regard this last aspect of the message as any form of questioning by Jabir as to how it was they were bound. It is more consistent with Jabir being concerned that the finance had still not been obtained.
In his 19 March 2024 affidavit, Jabir deposes to having had a telephone discussion with Mr Massouras after speaking to Ms Ektas in which he asked Mr Massouras, amongst other things, whether he could service any loan and for Mr Massouras not to put them under any financial stress. Apparently, Mr Massouras said he had sorted it with the lender.
On 10 February 2024, the Hinchinbrook Property went to auction. At the auction only one bid was made for $1,070,000. Following this bid, Jabir indicated that he would not sell the Hinchinbrook Property for this price. Subsequently, the bid was increased by $5,000 to $1,075,000, and the Khans accepted the price and exchanged contracts.
Jabir contends that there was a discussion in which he made it clear that neither he or his brother had seen any documents for the purchase of the Austral Property. Both Mr Massouras and Mr Alexopoulos denied that any such conversation occurred. I do not accept Jabir’s evidence. I prefer the denials of Mr Massouras and Mr Alexopoulos.
On 10 February 2024 at 2.13pm, Jabir texted Mr Massouras “we left [ourselves] short man”. Jabir denied the suggestion that what he was conveying to Mr Massouras was that they had left themselves short on time in terms of selling the Hinchinbrook Property in time to settle on the Austral Property. He said that he was conveying that they had left themselves short in terms of the amount they sold the Hinchinbrook Property for.
At 6.05am on Sunday, 11 February 2024, Jabir texted Mr Massouras: “Sorry for the early message but I wanna pull of the sale man. Yesterday was a mess I said no but people played on johnys emotions. …..We are so short of money now with building this house … we are now in worse position …”.
Jabir denied that the message to “this house” in his text was a reference to the Austral Property, but agreed he was not building any other house at the time. Again, I do not accept Jabir’s denial. The text is consistent with Jabir being well aware that they were committed to buying the Austral Property, but realising that in light of the price achieved for the Hinchinbrook Property, they would be short of money to build on that property. Therefore, the Khans were in a worse position having sold the Hinchinbrook Property which they were living in and now not having a new home to move into or enough money to build a new home.
On the morning of 12 February 2024, Jabir sent an email to Ms Ektas indicating that both “myself and my brother wish to renag [sic] on the sale” – being a reference to the sale of the Hinchinbrook Property. Their complaint was that the sale price was not high enough and they felt pressured into selling. The email also included:

Whilst the email confirms that the Khans were unhappy about the sale price achieved for the Hinchinbrook Property, it also confirms that they knew they were locked into purchasing the Austral Property (which is vacant land on which they were proposing to build). There was no suggestion of their signatures having been forged. Again, however, Jabir denied that the reference to a new house in his email was a reference to the Austral Property. I do not accept this denial.
On 13 February 2024, Mr Massouras was arrested on charges unrelated to these proceedings. The next day Jabir spoke with Ms Ektas and Mr Alexopoulos. It was then apparent that a new broker would be needed if finance was to be obtained. The Khans thereafter engaged Mr Conciatore.
On 15 February 2024, Ms Ektas emailed the Khans the contract for sale and the Deposit Bond. This was obviously necessary for new finance to be obtained, given that Mr Massouras was in gaol.
On 19 February 2024, Ms Ektas emailed the Khans the purchasers’ signed counterpart of the contract for sale.
On 22 February 2024, Mr Conciatore obtained approval for the Khans to borrow $525,000 to complete the purchase.
Mr Alexopoulos offered to loan the balance to the Khans pending completion of the sale of the Hinchinbrook Property. Mr Alexopoulos also paid some of Jabir’s personal debts to improve his credit rating at the time.
On 23 February 2024, the vendor of the Austral Property extended the time for completion in the Notice to Complete to 4pm on 28 February 2024.
On 26 February 2024, Ms Ektas sent a further email to the Khans regarding settlement of the purchase, which had been scheduled for 28 February 2024. On the same day, Ms Ektas spoke with Junaid, who said words to the effect that the loan documents had been signed. Again, there was no suggestion that signatures had been forged, or the Khans were not bound.
On 27 February 2024, and probably before the email immediately above, Ms Ektas emailed Jabir and Junaid the following:

On 27 February 2024, Jabir telephoned Ms Ektas and told her that he had engaged a solicitor to look over the matter who had advised that the contract was signed fraudulently as well as the deposit bond. This was the first time any such suggestion was made.
That same day, Jabir informed Mr Alexopoulos for the first time that he did not sign the contract or deposit bond and that Mr Massouras had betrayed him. He also told Mr Alexopoulos that his fiancée had given him an ultimatum that he had to get out of the purchase of the Austral Property.
On 28 February 2024, Ms Ektas emailed the vendor seeking to extend the notice to complete for a further time until 1 March 2024. The vendors did not agree.
On 29 February 2024, the vendors of the Austral Property made a claim on the Deposit Bond. On 1 March 2024, DP Bonds paid the claim in the amount of $70,000. It is not in dispute that this was done without any prior notice to the Khans.
On 1 March 2024, DP Bonds lodged a caveat over the Hinchinbrook Property. The caveat purported to secure a charge in favour of DP Bonds pursuant to cl 7 of the counter indemnity in the amount of $70,000 plus interest and costs.
On 4 March 2024, Jabir spoke with Mr Yi on behalf of DP Bonds. Jabir informed him that the relevant documents had not been signed by either of the Khans and that their signatures had been forged. By that time, the defendants had already paid the claim on the Deposit Bond.
The Khans then commenced these proceedings to obtain removal of the caveat so that settlement of the sale of the Hinchinbrook Property could proceed. The caveat was withdrawn after the $80,000 was paid into Court.
Jabir agreed in cross-examination that the net proceeds which the Khans were to receive and did receive on the settlement of the sale of the Hinchinbrook Property were in the order of $200,000, which was less than the Khans required to settle on the purchase of the Austral Property. Approximately $216,000 was to be lent by Mr Alexopoulos to make up the difference between the amount required to be paid on settlement and the amount of $525,000 which Mr Conciatore had borrowed for the Khans. Stamp duty of approximately $30,000 was also payable. Junaid also agreed that the loan arranged by Mr Conciatore would not give them enough money to build on the Austral Property.

(a) Ms Holt agreed that she was not given any originals of any of the questioned documents and that this was a limitation; (b) Ms Holt agreed that she was only given three original specimen signatures for Jabir and no original specimens for Junaid, and this was a limitation in the preparation of her report. She did not agree that it was a serious limitation, as the copies were good; (c) Ms Holt would ordinarily like to have at least 10-20 specimen signatures to constitute an adequate sample. It was not possible to provide this many, which she agreed was a limitation; (d) whilst Ms Holt was not asked to consider whether the questioned documents were signed electronically or with a physical wet ink pen, if it was the case that they were signed electronically, it looks like they were signed using a stylus and if so, she would not expect the signatures to look as different as what they do; (e) whilst Ms Holt was not expressly asked to consider whether haste, lack of care or an unfavourable writing position may have affected the signatures that she looked at, her practice was to always looks at different propositions and in her opinion, those matters did not really seem to explain what she saw in the questioned documents; (f) whilst Ms Holt agreed that she was not able to exclude in her report whether the signatures were written to disguise the author of the signature, this is not what she expected to see if they were disguised. Again, in terms of Junaid’s signatures, whilst Ms Holt could not totally exclude that the signature was written by Junaid so as to later be disallowed, she did not think it was the best supported proposition. The position was the same in relation to Jabir’s signature; (g) Ms Holt expressed the opinion that all of these signatures were written by the same writer, rather than two writers. While she could not totally exclude the possibility that the common writer could have been Junaid, she did not think that this was the best supported proposition; and (h) whilst Ms Holt only had six specimens in relation to Junaid, she thought he was a very consistent signer.

I consider first the question of whether the Khans signed the DPSTAs that were submitted by Mr Massouras to DP Bonds, which included the counter indemnity agreement relied on by the defendants. If they did, they are obviously bound.
The Khans contend that they did not and that Mr Massouras “forged” their signatures on the various applications that were submitted. They rely on their own evidence whereby they each deny signing the forms. They also rely on the expert report of Ms Holt.
The defendants rely on the evidence given by Mr Massouras that each of the application forms was signed by each of the Khans, having been emailed to them by Mr Massouras.
The Khans obviously bear the onus on this point. It is a serious allegation to which the usual principles apply: s 140 of the Evidence Act 1995 (NSW), Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; [1938] HCA 34 per Dixon J.
In answering this question, I place principal reliance on the expert report of Ms Holt.
I am not able to place any reliance on the uncorroborated evidence of the Khans. Most, if not all, of the evidence given by them is quite inconsistent with the objective material and the evidence of independent witnesses – principally Ms Ektas and Mr Alexopoulos.
The evidence given by Mr Massouras – that he provided each version of the deposit bond application form to the Khans by email for their signature and return – is similarly uncorroborated by any objective material. I am conscious in this regard that Mr Massouras, until the day before he gave evidence before me, had been incarcerated and thus is unlikely to have had access to any of his emails, although some text messages from his phone were tendered, suggesting access to some devices. I have also recounted earlier in these reasons the unhappy saga of the production of emails and other documents by the Khans. Each of these matters diminish the significance of the lack of emails between Mr Massouras and the Khans corroborating Mr Massouras’ evidence. The fact remains, however, that Mr Massouras’ evidence in this regard is uncorroborated.
Ms Holt’s report, however, is quite clear. Whilst Ms Holt’s work was subject to a number of limitations because of the limited material that she was provided, and its form (largely copies as opposed to originals), she frankly acknowledged those limitations in her report and took them into account in expressing the opinions that she did.
It is apparent from Ms Holt’s answer to question D that she was acutely conscious of not expressing an opinion when the material provided to her did not permit her to do so. Conscious of the limitations in the material provided to her and its form, Ms Holt expressed the opinion in relation to Junaid that the evidence provides strong support for the proposition that someone other than Junaid signed the documents. In relation to Jabir, the evidence provides very strong support for the proposition that he did not sign the DPSTAs. The evidence provides moderate support for the proposition that the names and signatures were written by the one person.
None of these opinions were diminished, in my view, by the cross-examination.
One important matter relied on by the defendants was the lack of original signatures in the material provided to Ms Holt. I was referred to what was said by Ward CJ in Eq (as the learned President then was) in Ling v Beyond Development Group Pty Ltd [2022] NSWSC 685 at [169] where her Honour remarked that the use of copied signatures rather than originals – “seems to me a serious limitation – certainly, from a lay perspective I would prefer at least to see the original of impugned or questioned documents”.
I do not regard these remarks as laying down some general proposition. Ms Holt was aware of the issue in the present case but was still able to express the opinions that she did.
The expert report provides the most reliable evidence on the issue.
Accordingly, I am satisfied that neither Jabir or Junaid signed the DPSTAs.
For the reasons set out below, however, I am comfortably satisfied that the Khans authorised Mr Massouras to do all things to secure the Austral Property, including executing the DPSTAs (including the counter indemnity) on their behalf.

I turn now to consider whether, notwithstanding that I have found that the Khans likely did not sign the DPSTAs including the counter indemnity, whether, nonetheless, they authorised Mr Massouras to do so on their behalf. The defendants contend that they did and as such there is no forgery. The Khans’ case is that Mr Massouras was not authorised to execute any such documents or to cause the Khans to buy the Austral Property.
Resolution of this issue depends largely on an assessment of the competing narratives against the contemporaneous documents and evidence of independent witnesses.
Mr Massouras’ evidence was that he had been engaged by the Khans as their finance broker and that, in that capacity, he was instructed to take the steps necessary to secure the Austral Property. He said that the Austral Property was identified in early November 2023, that the Khans inspected it and that they told him they wanted to buy it. This was part of their plan to renovate the Hinchinbrook Property, sell it and buy a new house and land package.
His evidence was that Jabir told him to “go ahead and do everything [he could] to secure it”. He understood that instruction as authority to proceed with the proposed purchase and to commence the processes necessary to facilitate the transaction.
Mr Massouras explained that his role was not confined to identifying a particular lender or presenting isolated financing options. He said that, as a mortgage broker, he sought to obtain and provide relevant documents to those involved in the transaction, so as to alleviate the administrative burden upon his clients. It was in this context that he provided the contract for sale to Ms Ektas. His evidence was that he did so because the Khans wished to proceed with the purchase and because it was necessary for a conveyancer to commence the conveyancing process.
When asked how he understood that the Khans wished to proceed with the purchase, Mr Massouras said that Jabir had expressly told him so. His evidence was that, after Jabir had seen the vacant land, Jabir had instructed him by telephone to do everything he could to secure it. Mr Massouras further gave evidence that when he discussed proceeding with Jabir, Jabir told him to “go ahead”.
Mr Massouras said that he understood those instructions to mean that the Khans had accepted the proposed purchase price and wished to proceed with the acquisition of the Austral Property. Consequently, he took steps directed to progressing the transaction, including arranging for the Khans to have a conveyancer, providing the contract to Ms Ektas, and negotiating matters relating to the proposed settlement.
Mr Massouras also gave evidence that he negotiated a 90 day settlement period. He explained that the longer settlement period was intended to provide the Khans with sufficient time to sell their existing Hinchinbrook Property and obtain the finance required to complete the purchase of the Austral Property. On the defendants’ case, those steps were consistent with Mr Massouras acting pursuant to a broad retainer to secure the Austral Property and arrange the financial machinery necessary for the Khans to complete the transaction.
In relation to the deposit bond, Mr Massouras’ evidence was that “[e]verything was explained to Jabir in regards to the process, what the Deposit Power - what the application was, what the nature of it was and why we had to do it, and explained to him as to the, the ins and outs and terms and conditions”. In particular, Mr Massouras explained to Jabir that the bond operated as a guarantee and would secure the Austral Property by enabling contracts to be exchanged without payment of a cash deposit. He said that Jabir indicated that he “understood it” and that “they wanted to proceed with it”.
The defendants relied upon that evidence to submit that Mr Massouras was authorised to procure the deposit bond on behalf of the plaintiffs. They submitted that the instruction to do “everything” possible to secure the Austral Property was, in the circumstances, sufficiently broad to authorise Mr Massouras to take the steps required to obtain the bond, particularly where the bond was the mechanism by which the deposit obligation was satisfied and contracts could be exchanged.
The defendants further relied upon Mr Massouras’ evidence concerning the preparation of the application form. He accepted that he completed parts of the form himself. His evidence, however, was that the form was provided to the Khans and was returned to him bearing their signatures. The defendants submitted that his candour as to the portions of the application completed in his handwriting supported the reliability of his account.
It was also submitted that Mr Massouras had no apparent reason to forge the Khans’ signatures. The defendants contended that he was acting in furtherance of the transaction which, on his evidence, the Khans had expressly instructed him to secure. They therefore submitted that his evidence that the Khans signed and returned the application should be accepted.
The Khans on the other hand contended that the plan was not one where they would buy the Austral Property before they had sold the Hinchinbrook Property. Rather, the plan was that the Hinchinbrook Property would be sold first before a new property would be acquired. Mr Massouras was only authorised to investigate finance options on behalf of the Khans in relation to an alternate property, once the Hinchinbrook Property had been sold. The Khans were not aware until about 30 January 2024 that they were contractually bound to purchase the Austral Property. Insofar as Mr Massouras had acted so as to bind the Khans to purchase the Austral Property, he was acting on a frolic of his own.
For the reasons set out below, I reject the contentions advanced by the Khans and accept the defendants’ contentions.
As a starting point, there is absolutely no reason why Mr Massouras would have been acting on a frolic of his own in causing the Khans to be bound to purchase the Austral Property. No reason was advanced by the Khans as to why he would be. There was no financial or other incentive for him to do so. He must have been doing what he was doing in the belief that this is what he was authorised by the Khans to do. No clear case was propounded by the Khans that Mr Massouras was mistaken in doing what he was doing.
Mr Massouras’ evidence that the Khans had agreed to buy the Austral Property in November 2023 is supported by the evidence of Mr Alexopoulos, particularly of what occurred when he visited the Khans in November or December 2023 at the Hinchinbrook Property to discuss its sale, where he had discussions with the Khans about the Austral Property.
The fact that a 90 day settlement term was negotiated was also consistent with Mr Massouras’ evidence of the plan – namely to allow time for the Hinchinbrook Property to be sold to then settle on the Austral Property.
More importantly, the evidence of Ms Ektas strongly supports the defendants’ case and corroborates the evidence of Mr Massouras in relation to the Khans being aware the Austral Property had been bought by them in November 2023. Ms Ektas had telephone discussions with each of Jabir and Junaid in which she told them that she was acting on the purchase. She then emailed both Jabir and Junaid confirming that contracts had been exchanged and that the parties were now bound. She also emailed an engagement letter. Jabir’s text to Mr Massouras at the time confirms that he was aware that Ms Ektas was sending documents to sign.
There was no suggestion at the time that the emails were not received or that the Khans did not know what was going on. I have rejected the evidence that the Khans now give, that they did not receive, or were not aware of, the emails.
There were also a number of text exchanges between Jabir and Mr Massouras in November 2023 consistent with the Khans being aware that the Austral Property had been purchased: “Bring on the sale n the new home man”, and “And are we okay to drive to our land tomorrow yeah bro”.
The conclusion that emerges from this material is reinforced when regard is had to the conduct of the Khans after, even on their own evidence, they were aware that they were contractually bound to purchase the Austral Property – being 30 January 2024.
Their actions immediately thereafter were only consistent with wanting to purchase the Austral Property. There was no suggestion until much later in February 2024, after the Hinchinbrook Property had been sold and their financial plight became much clearer, that their signatures had been forged and they were not bound.
On 6 February 2024, each of Jabir and Junaid signed, electronically, a number of documents to engage MLG Conveyancing, including terms of engagement, a document specifying that they wanted to hold the Austral Property as joint tenants, a PEXA authorisation for MLG Conveyancing and a purchaser declaration. The documents they signed were replete with references to the Austral Property. I have rejected the evidence of the Khans that they did not know what they were signing or that they believed they were related to the Hinchinbrook Property. This last suggestion is put to bed by the fact that on 8 February 2024, Jabir texted Mr Massouras asking who the solicitor was that was acting on the Hinchinbrook Sale. It is most unlikely that he would have sent this text asking this question if he had thought that the documents that he had signed two days earlier were in relation to the Hinchinbrook Property.
On 7 February 2024, the Khans each completed a verification of ID document. This was clearly in relation to the Austral Property. Jabir’s evidence that it was not in relation to the Austral Property suffers from the fact that there was no alternate property identified to which the verification could relate.
On 9 February 2024, Ms Ektas telephoned Jabir to advise him that a notice to complete had been served by the vendors of the Austral Property. Ms Ektas kept a file note of that conversation which I accept is an accurate summary of what was discussed. It is independent and contemporaneous. Ms Ektas recorded not that Jabir questioned how it was that they were contractually bound to buy the Austral Property, but rather that Jabir was upset as “Mario had not received the loan approval yet”. This is all consistent with the defendants’ contention that the Khans were well aware from November 2023 that they had bought the Austral Property. It is quite inconsistent with the narrative that the Khans now seek to give.
The text exchange between Jabir and Mr Massouras immediately thereafter is also inconsistent with any suggestion on the part of the Khans that they were not aware, or contended they were not contractually bound to buy the Austral Property. These contemporaneous documents are also inconsistent with the evidence which the Khans now seek to give of telephone discussions which they contend they had with either Ms Ektas or Mr Massouras at the time.
After Mr Massouras had been arrested, the Khans, rather than contend that they were not bound and should not be required to complete the purchase, immediately sought to engage a new finance broker, Mr Conciatore to obtain finance for them. Mr Conciatore then arranged finance.
The suggestion that the Khans were not bound did not emerge until after the Hinchinbrook Property had been sold, Mr Conciatore had arranged such finance as he could, and Mr Alexopoulos had agreed to loan monies to the Khans to enable the Austral Property to be settled prior to the settlement of the sale of the Hinchinbrook Property. It was at this time that it became quite apparent to the Khans that they would not have sufficient monies to build on the Austral Property.
In my view, this provides the most likely explanation for the change in position of the Khans in late February 2024.
In simple terms, there is no contemporaneous material that supports the narrative contended for by the Khans. All of the contemporaneous material, and the evidence of independent witnesses, namely Ms Ektas and Mr Alexopoulos, is quite inconsistent with the Khans’ narrative, and consistent with the defendants’ narrative. That narrative must involve the Khans authorising Mr Massouras to do all things to secure the Austral Property for them, including obtaining the Deposit Bond.
The fact that I have found above that the Khans likely did not sign the DPSTAs including the counter indemnity agreement, and thus that it is likely that Mr Massouras applied their signatures, does not stand in the way of accepting the defendants’ version in relation to authority.
As set out above when dealing with the credibility of the various witnesses, the fact that I have rejected various aspects of Mr Massouras’ evidence does not mean that I should reject all of it.
The aspects of Mr Massouras’ evidence that I have accepted are overwhelmingly supported by the contemporaneous documents and evidence of independent witnesses. It is Ms Holt’s evidence that has caused me to make the findings I have on the signatures.
It is perhaps understandable that Mr Massouras would not openly have admitted to having forged the Khans’ signatures.
To reject the remainder of Mr Massouras’ evidence would be to ignore the objective evidence and that of the independent witnesses.
For these reasons, I am comfortably satisfied that the Khans authorised Mr Massouras to purchase the Austral Property for them in November 2023, and to do all things necessary to secure it. This included obtaining a deposit bond.
It is clear from their previous dealings that Mr Massouras was given a degree of autonomy by the Khans in securing finance. The Khans were not concerned in who Mr Massouras contacted or arranged finance from – they were more concerned with the outcome.
I am satisfied that the Khans left it to Mr Massouras to do whatever was necessary to secure the Austral Property for them, including paying the deposit and obtaining the necessary finance. They authorised him to take whatever steps were necessary. I am also satisfied that Mr Massouras likely kept the Khans updated in general terms as to what he was doing. They were well aware that a contract had been signed to purchase the Austral Property, and that a deposit bond was provided in connection with that.
In circumstances where Mr Massouras was authorised to obtain the Deposit Bond on behalf of the Khans, there was no forgery. The situation is relevantly similar to that considered by Peden J in G**EMI 169 Pty Ltd v Suria Global (L) Pty Ltd (No 9) [2025] NSWSC 975 at [19] and [174], and Schmidt J in Capital Access Australia Pty Ltd v Hraiki & Anor [2011] NSWSC 109 at [121], [122] and [173]ff.
It follows that the Khans are bound by the counter indemnity agreement.
This conclusion also deals, as I understood the submissions advanced by the Khans, with the claim based on the CRA. The claim was advanced on the basis that the Khans did not enter into the counter indemnity agreement or authorise Mr Massouras to enter into it for them. I have rejected this last proposition.
In light of this conclusion, the further fallback arguments raised by the defendants as to why the Khans are liable under the counter indemnity agreement, do no arise for consideration. I consider each of them briefly below.
Having regard to the submissions advanced in closing, the alternatives of ratification or adoption and estoppel can be grouped together as they seem to be based on the same initial premises.
It was contended that the Khans were aware, on their own case, of the existence of the Deposit Bond from 15 February 2024. From then, until the vendors were paid out under the bond on 1 March 2024, the Khans did not take any steps to inform the defendants of any fraud or forgery or disavow the Deposit Bond. The defendants relied on the signed application form in paying out the vendors on 1 March 2024.
The defendants contended that by acting in accordance with their position as purchasers of land under the contract for the sale of the Austral Property and relying on or taking advantage of the deposit bond after 15 February 2024 to keep the contract for the Austral Property on foot, the Khans:

These alternative arguments are obviously addressed against the background that I have found (contrary to what I have found above) that the Khans did not authorise Mr Massouras to affix their signatures to the DPSTAs and counter indemnity agreements, such that their signatures were true forgeries.
In this circumstance, there is a real issue as to whether a principal can ratify a forgery: see for example, Commonwealth Bank of Australia v Perrin (2011) Q ConvR 54-765; [2011] QSC 274 at [144]-[145] per McMurdo J.
Whilst it is clear that an instrument forged can subsequently be adopted by the principal under a new agreement between the principal and the contracting party for valuable consideration or under seal (see Rowe v B and R Nominees Pty Ltd (1964) VR 477 at 485 per Gillard J) there was no suggestion that this occurred here.
That leaves the question of estoppel. It was not in dispute that, “aside from any issue of ratification, a principal may be held to be estopped from denying effect to a document to which his or her signature has been forged by an agent if the principal has, by not disclosing to the third party that the instrument is a forgery or instructing the third party to act upon the instrument, induce the third party to act to his or her detriment in reliance upon the principal’s conduct”: see Law of Agency, G E Dal Pont (4th ed Lexis Nexis) at [5.13].
The present case was said to be one of non-disclosure. There was no suggestion that the Khans had instructed the defendants to act.
It is not in dispute that from at least 15 February 2024, a deposit bond had been issued by the defendants to provide for the deposit in relation to the contract for the purchase of the Austral Property. By 27 February 2024, the Khans had formed the view that both the contract for the purchase of the Austral Property and the Deposit Bond were both signed fraudulently. Jabir told Ms Ektas this in a phone call that day. The Khans were also told by Ms Ektas by email that day that if they did not complete the vendors may terminate the contract, claim the Deposit Bond and sue them for damages.
They did nothing to alert the defendants to the fact that they contended that the Deposit Bond was not issued with their authority.
In City Bank of Sydney v McLaughlin (1909) 9 CLR 615; [1909] HCA 78 at p 625, Griffith CJ and Barton J said:

Counsel for the Khans accepted that a party, upon learning of a forgery comes under an obligation to inform the other party of the fact of that forgery.
The Khans’ contended, however, that they were not aware their signatures on the DPTSA had been forged until 6 March 2024. They were aware, however, that the contract and the Deposit Bond had been “signed fraudulently” by 27 February 2024 because Jabir told Ms Ektas this on that day. This is the basis on which they contended they were not liable. It is this fact that should have been disclosed. Its effect, in substance, is the same as our signatures have been forged.
Far from telling the defendants that they were not bound by the Deposit Bond because it was a forgery or signed fraudulently (if there be any difference), the Khans acted to the contrary, in seeking to rely upon the Deposit Bond to keep the contract on foot.
Consequently, the defendants clearly acted to their detriment. Had they been told by the Khans that their signatures on the DPSTAs including the counter indemnity agreement had been signed fraudulently, HDI would likely not have paid out the $70,000 to the vendors.
Had it been necessary to decide, I would thus have held that the Khans are estopped from denying that they are bound by the counter indemnity agreement.
The final cause of action propounded by the defendants in the cross-claim is for misleading and deceptive conduct.
The same factual premise was relied on as for the estoppel claim – namely the failure to inform the defendants of any alleged fraud or forgery in relation to the application for the Deposit Bond and relying on the Deposit Bond to continue to act in accordance with the contract to purchase the Austral Property until 28 February 2024.
The conduct was said to infringe s 18 of the Australian Consumer Law (ACL) and s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act).
The matter was only addressed briefly by both sides. The Khans’ response was the same factual response as they made to the estoppel claim – once the Khans became aware of the forgery on 6 March 2024, the first defendant was notified accordingly of the fraud.
No authorities were referred to by either side.
Section 18(1) of the ACL provides:

Khan v DP Bonds Pty Ltd

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

Parties

Legislation Cited (9)

Cases Cited (24)

JUDGMENT

Introduction and overview

Procedural background

The witnesses

The Khans’ application to reopen and further cross-examine Mr Massouras

The pleadings

The factual chronology

The handwriting evidence

Did the Khans sign the deposit bond application, including the counter indemnity?

Was Mr Massouras authorised by the Khans to execute the DPSTA (including the counter indemnity)?

Conclusion and orders

Amendments

07 August 2026