Nokshee Pty Ltd v MATC Property Group Pty Ltd [2026] VSC 181

1. The plaintiffs sue the defendants to recover loans advanced under a series of agreements, styled as heads of agreement, entered between February 2018 and September 2022. The plaintiffs contend this case is a simple one for recovery of the debts due under the terms set out in the heads of agreement and to enforce their contractual rights under those instruments. The plaintiffs' allegations are set out in the Further Amended Statement of Claim filed on 24 June 2025 ('FASOC'). By the FASOC the plaintiffs seek:

(a) payment of the debts due under the terms of the heads of agreement (that is, including interest but less any repayments) advanced to the first and second defendants and guaranteed by the third defendant;

(b) damages from the first, second and third defendants (the latter as guarantor) in respect of the first and second defendants' breaches of the heads of agreement terms by failing to pay the amounts due and owing to the plaintiffs; and

(c) damages from the fourth defendant for breach of her implied duty to cooperate.

1. The defendants deny any liability. They contend that while the transactions contemplated by the first to fifth heads of agreement resemble conventional loans, on their proper construction, each heads of agreement incorporated by reference all of the terms contained in the document styled 'Investment Agreement'. The Investment Agreement document gave effect to a Mudaraba-style financing structure that avoided the use of 'riba' or interest, which is contrary to the Islamic faith. The defendants contend that the incorporated terms are to be given primacy, transforming the underlying transactions in the heads of agreement from being conventional interest-bearing loans to, in substance, a profit-and-loss sharing financing structure. Central to their argument is cl 3, appearing in each heads of agreement as follows:

This agreement supplements the Mudaraba Investment Agreement signed with MATC. The rights, powers or remedies provided or available to the Financier in the agreement are cumulative and not exclusive of any rights, powers or remedies available or provided by Australian Law.

Additionally, the second defendant denies any liability under the terms of the sixth heads of agreement, and the fourth defendant denies the allegations against her.

1. It is not in dispute that the heads of agreement and the Mudaraba-style Investment Agreement document contain terms that are fundamentally inconsistent. The Court's essential task in this proceeding is to identify the contractual terms that control the bargain between the parties. For the reasons elaborated below in this judgment, I am satisfied that:

(a) the contractual bargain between the parties is reflected in the terms of the first to fifth heads of agreement and comprises an interest-bearing loan (or loans);

(b) the loans advanced under the first to fifth heads of agreement to the first defendant are due and payable, together with interest (but less any repayments);

(c) if there was a loan validly made under the sixth heads of agreement entered into between the second plaintiff and the second defendant, that loan has been repaid in full;

(d) the third defendant is liable as personal guarantor, under the applicable heads of agreement, for all moneys owing by the first defendant to the plaintiffs; and

(e) the claim for breach of the implied duty to cooperate brought against the fourth defendant fails by reason of the plaintiffs' failure to prove any loss or damage.

The parties and the background to their contractual dealings

1. The main protagonists in this dispute are Mr Nur-ul Alam and Dr Tawfique Chowdhury.
2. Mr Alam is a businessman, husband and father, and a practising Muslim. He is the sole shareholder and director of the first and second plaintiff companies, Nokshee and MH (Aust) (the latter being the trustee of his self-managed superannuation fund).
3. Dr Chowdhury, who is named as the third defendant, is a registered medical practitioner and works as a doctor. He is also a property developer. He is a director of the first and second defendant companies, MATC and T2. The fourth defendant, Ms Feda Arabi, is Dr Chowdhury's spouse. Like Mr Alam, Dr Chowdhury is a practising Muslim.
4. Dr Chowdhury was seeking investment from Mr Alam in MATC's 'Brookfield Living' property development project. He described the 'project' in his evidence as:

an investment um into Brookfield, ah a number of parcels of land that are put together um to make a ... property development.

1. Both Mr Alam and Dr Chowdhury gave evidence at the trial and were cross examined. Their oral evidence, together with the documents tendered at trial, reveal the following chronology of events.

(a) They first met each other at a wedding reception for mutual friends in February 2018. Following that meeting, Dr Chowdhury visited Mr Alam's home to pitch his property development investment proposal in his 'Brookfield Living' project in greater detail, using a slide deck he 'send[s] to [his] investors'.[1] Part of the slide deck documents, sent by email on 20 February 2018, described the mode of investment Dr Chowdhury was seeking in the following terms:

Each parcel of land is acquired and registered as an asset under a separate standalone company, with separate financials with no cross‑liabilities across the entities. Investment capital is secured against shareholding in the company with category A shares and clear future share buyback agreements in place for between 2 to 5 years duration depending on investor appetite.[2]

At that initial meeting, Mr Alam declined to invest in this way, telling Dr Chowdhury to the effect that his investment was only for a short time, and he did not want any shares.[3]

(b) Mr Alam thereafter sought information from Dr Chowdhury and Mr Nabi, his business manager, about Dr Chowdhury's projects and his ability to repay any money advanced within six months.[4] Dr Chowdhury provided a Google drive containing additional information.[5]

(c) Despite receiving the further information, Mr Alam initially declined to proceed because of 'uncertainty on the money payback within 6 months'.[6] Dr Chowdhury sent him two emails in response, the first emphasising he was short of funds in February,[7] and the second stating 'paying you back in 6‍months will not be at all problematic'.[8]

(d) On 21 February 2018, Mr Alam agreed to 'invest $1m only from other banks. Please send me the contract ...'[9]

(e) On 23 February 2018, Dr Chowdhury sent Mr Alam an email attaching 'the contract',[10] being a document titled 'Investment Agreement'.[11] Later that day Mr Alam emailed Dr Chowdhury, stating:

Since I am not an investor in your project, and I need to exit after six months, I am unsure how Mudraba profit & loss equation applies to this transaction.

Since my solicitor, doesn't understand how your mudraba agreement works, he suggested me to do another agreement on top of what you have proposed.

SO please find attached the agreement I would like to sign, please advise whether you are happy with what has been written.

Since you are providing property under your wife's name as the security collateral, I need her signature as a guarantor, please?

Also I need the title of the property attached herewith please.

Also I am thinking to visit the project site, is there anyone in Melbourne, whom I can call and meet at the site, please.[12]

As indicated in the text of his email, Mr Alam attached the contract he was prepared to sign, being a document titled 'Heads of Agreement'[13] to his email response.

You are asking for 25% profit and a collateral valued at $2.5m for a loan of $1m and on top personal guarrantees (sic) from me and my wife. Does this sound right to you?

On top of this, the conditions you are stipulating are to take over the collateral in case of any delay not in terms of islamic principles of mudarabah making your contract a riba based contract.

Pls advise.[14]

Sorry Tawfique, if it sounds that way. I did not put indemnity clause against loss deliberately. So you do have a room to claim loss, if it genuinely happen. Also if price of the collateral is higher, it would be sold off and left over would be returned to the owner.

I am not seeking riba, however, I need to feel comfortable to take the risk. Actually I have been advised by my solicitor not to go ahead with this investment, given the risk it has.

Anyway, it is up to you, whether you are interested to proceed.[15]

(h) The heads of agreement in the form attached to Mr Alam's email on 23 February 2018 was amended to add cl 19.[16] The amended document, titled 'Heads of Agreement' was signed on behalf of Nokshee, MATC, Dr Chowdhury and Ms Arabi on 26 February 2018 ('first agreement').[17] The $1 million was transferred by Nokshee to MATC after execution.[18]

(i) In about May 2018, the parties agreed to restructure the first agreement,[19] pursuant to which the first agreement was to be 'cancelled', and a second and third heads of agreement entered to replace it. The $1 million advanced in February 2018 was split between the two plaintiff entities, that is $600,000 was to be advanced from Nokshee and $400,000 advanced from MH (Aust), as the trustee of Mr Alam's superfund. Accordingly:

• (A) On 6 June 2018, Mr Alam, as director of Nokshee, issued to Dr Chowdhury, as director of MATC, a notice of cancellation[20] in respect of the first agreement, together with an invoice for $83,333.33, described as being for:

Outstanding Liabilities for the Mudarabah Loan Agreement between Nokshee P/L and MATC P/L for a period of 4 months starting from 25 February 2018 to 25 June 2018 @25% profit for a loan amount of $1,000,000.[21]

• (B) On 26 June 2018, Nokshee and MATC executed a document styled as a 'Heads of Agreement' (second agreement),[22] by which Nokshee was said to have advanced $600,000 to MATC. The date of the advance was said to be 26 June 2018 and the repayment amount of $750,000 was to be repaid on 25 June 2019. No new moneys were advanced, having already been transferred to MATC under the first agreement, though the repayment date was extended. Save as noted, the terms of the second agreement were materially the same as those in the first agreement.
• (C) Also on 26 June 2018, MH (Aust) and MATC executed a document styled as 'Heads of Agreement' ('third agreement'),[23] by which MH (Aust) was said to have advanced $400,000 to MATC. The date of the advance was said to be 26 June 2018 and the repayment amount of $500,000 was to be repaid on 25 June 2019. No new moneys were advanced, having already been transferred to MATC under the first agreement, though the date of repayment was extended. Save as noted, the terms of the third agreement were materially the same as those in the first agreement.

(j) On 22 January 2019, the second and third agreements were purportedly varied by the parties so as to capitalise the $83,333.33 payment due on the moneys advanced under the first agreement, which had not been paid. As a result, the principal amount said to have been advanced under the second agreement increased by $50,000 to $650,000 (described in the FASOC as the fourth agreement) and under the third agreement, the principal amount increased by $33,333.33 to $433,333.33 (described in the FASOC as the fifth agreement). The variations were agreed after Mr Alam threatened to withdraw his funds.[24] The variations are said to be contained in the terms of the emails sent by Dr Chowdhury to Mr Alam on 10 December 2018,[25] and by Mr Alam to Dr Chowdhury on 20 January 2019.[26]

(k) On 5 April 2019, MATC paid $75,000 to Nokshee.[27]

(l) On 1 August 2019, the fourth defendant transferred her interest in the property at 28-32 Brooklyn Park Drive, Brookfield, VIC to a third party.[28] This property was identified as the 'Security Property' in the Schedule to each heads of agreement.

(m) On 17 July 2020, MATC paid $40,055.83 to Nokshee.[29]

(n) On 24 February 2021, MATC paid $20,000 to Nokshee.[30]

(o) On 18 August 2022, MATC paid $20,000 to Nokshee.[31]

(p) On 1 September 2022, MH (Aust) and the second defendant, T2, entered into an agreement, styled as a 'Heads of Agreement' ('sixth agreement'), which provided a loan of $100,000, repayable after 12 months; that is by 31 August 2023.[32] This agreement differed materially from the others, and came about because, in the absence of repayment, Mr Alam desired to 'rotate' funds from his super fund to Nokshee to free up cash.[33] Mr Alam described it as a 'last resort'[34] and sought advice from his accountant regarding the sixth agreement.[35]

(q) On 20 September 2022, MH (Aust) transferred $100,000 to T2 pursuant to the sixth agreement.[36]

(r) On 21 September 2022, $50,000[37] was paid to Nokshee at the direction of Mr Alam.[38]

(s) On 27 September 2022, $50,000[39] was paid to Nokshee at the direction of Mr Alam.[40]

(t) On 5 December 2022, MATC paid $10,000 to Nokshee.[41]

(u) On 8 December 2022, MATC paid $20,000 to Nokshee.[42]

Which of the first to fifth heads of agreement agreements is enforceable?

1. By the FASOC, the plaintiffs allege that the fourth and fifth agreements are binding, having amended the second and third agreements, which themselves replaced the first agreement. Their claims in debt and for damages contemplate slightly different outcomes in terms of the quantum of principal and interest due depending on which of the first to fifth agreements is found to be valid and enforceable. These different outcomes are pleaded in the alternative in the FASOC. The plaintiffs' primary focus is on the central construction question, that being whether the terms of the heads of agreement, or those in the Mudaraba-style Investment Agreement document, govern the contractual bargain between these parties. The plaintiffs' submissions do not grapple with any question of formation, particularly the issue of whether valuable consideration was provided for the second and third agreements when no new funds were advanced at the time of their execution.
2. Whilst the defendants make reference to the issue of enforceability, they simultaneously recognise that, given the material similarity between the terms of each of the first to fifth agreements, the same central construction issue arises no matter which of them is ultimately enforceable.
3. I intend to approach this dispute in the same way - that is, to consider the central construction issue and to only consider which of the first to fifth agreements is enforceable in making any consequential findings about liability, to the extent it is necessary to do so.
4. The sixth agreement sits apart. It is in substantially different terms to the other agreements, and the only issue that pertains to it is whether, assuming a loan was advanced under its terms, the repayments made by T2 to Nokshee using the moneys advanced under it reduced the first defendant's liability to Nokshee, or extinguished completely the liability of the second defendant to the second plaintiff.

1. The plaintiffs contend that the defendants are liable to them in debt. They contend that the heads of agreement established a conventional loan arrangement whereby the repayment amount at the end of the term was equivalent to the principal advanced, (under the first agreement being $1 million) plus 'profit', which was, in substance, interest, calculated at 25% per annum. They rely, for the loan agreement's written terms, upon the heads of agreement documents executed on 26 February 2018 (being the first agreement), 26 June 2018 (being the second and third agreements) and the variations made in writing by email in December 2021 and January 2022. They describe the Mudaraba-style Investment Agreement document, that was attached to Dr Chowdhury's 23 February 2018 email to Mr Alam, as the 'rejected instrument'. They further contend that there is no ambiguity in the terms of the heads of agreement, and no incorporation of the rejected and unsigned Mudaraba-style Investment Agreement document into the heads of agreement.
2. The defendants acknowledge that the heads of agreement and the Mudaraba-style Investment Agreement document contain terms that are fundamentally inconsistent with each other. The heads of agreement is said to resemble a conventional loan agreement, while the Mudaraba-style Investment Agreement document treats the financial advance as investment capital provided to an investment manager (Mudarib) to establish a profit-sharing partnership to undertake the development. Consistent with a profit-sharing structure, neither the return of the invested capital, nor payment of any profit, could be guaranteed. As set out in their amended defences, the defendants do not advance a case to the effect that the Mudaraba-style Investment Agreement document was formed as a separate contract between the parties.[43] Rather, it is the defendants' case that, properly construed, the heads of agreement, expressly by cl 3, incorporates the terms set out in the Mudaraba-style Investment Agreement document. They say further that to the extent there is inconsistency between the terms in the two documents, the inconsistency is to be resolved, as a matter of construction, by giving primacy to the terms contained in the Mudaraba‑style Investment Agreement document. They say this construction is consistent with the intentions of the parties, objectively ascertained.

General principles of construction of commercial contracts

1. The legal principles to be applied by courts when construing commercial contracts, in accordance with the objective theory of contract, are not in dispute. Drawn from Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd[44] ('Mount Bruce'), they can be briefly stated as follows.[45]

(a) The rights and liabilities of each party under the provisions of the contract are determined objectively by reference to text, context, and purpose.

(b) In determining meaning, the Court asks 'what a reasonable businessperson would have understood those terms to mean', having regard to the 'language used', the 'circumstances addressed by the contract and the commercial purpose or objects to be secured'.

(c) Ordinarily, the process of interpretation of a contract is to be undertaken by reference to the wording of the contract alone and where an expression or phrase is unambiguous and susceptible of only one meaning, then evidence of the surrounding circumstances cannot be adduced to contradict that plain meaning.

(d) The surrounding circumstances, such as those that reveal the genesis of the transaction, the background and the context, may assist to identify the purpose or objects of the contract or to determine the proper construction where there is a constructional choice.

(e) The external matters must be 'objective' and known to both parties.

(f) Evidence of the 'parties' statements and actions reflecting their actual intentions and expectations' is inadmissible.

(g) Unless the contract indicates a contrary intention, a court may assume that the parties 'intended to produce a commercial result', and can construe the contract to avoid 'commercial nonsense' or 'commercial inconvenience'.

1. Consistently also with the objective theory of contract, statements made or other conduct that postdates formation of the contract cannot be used to construe the contract. In particular contexts, other principles regarding contractual construction may be relevant, such as those relating to the incorporation of terms,[46] the construction of contemporaneously executed agreements together and with reference to each other,[47] and principles relating to the resolution of inconsistencies in contractual terms.[48]

Express terms of the first to fifth agreements

1. As noted above, save as to the identity of the counterparty, the repayment date and the principal amounts, the terms of the first to fifth agreements are relevantly identical. Each provided for an advance of principal, and the unconditional repayment of the advance and the 25% 'profit' that was to apply to it. The recitals state:

The Entrepreneur has requested that the Financier to (sic) make available certain loans advances or financial accommodation to the Entrepreneur for business purposes which the Financier has agreed to do subject to and upon the terms and conditions specified in this Heads of Agreement ...[49]

1. In terms of the key clauses which give the agreed transaction its appearance as a conventional loan, each heads of agreement sets out:

(a) under cl 1, that the plaintiff(s) agreed to provide the 'advance' to MATC, defined as the 'Loan', so as to 'enable MATC to complete the Brookfield Living Land development (the Project) detailed in Exhibit A ...';

(b) under cl 2, that in 'order to better secure the advance, MATC shall execute the Mudarab Agreement documents[50] securing the debt on the Property and the land (address 28-32 Brooklyne Drive) owned by [the fourth defendant] ...' where '[t]he collateral mortgage shall not be registered provided that MATC shall not be in default ...';

(c) under cl 8, that MATC agreed to pay the plaintiff(s) 'a profit value of $125,000 for the Loan for the 6 months' and if not repaid 'then further profit will accrue at the rate of 25% per year on the principal';

(d) under cl 11, that the directors and shareholders of MATC 'guarantee[d] the performance of MATC'; and

(e) under cl 16, that upon the happening of one of the identified events of default, including default in payment on the date due, the 'Loan shall at the option of the Financier become immediately due and payable and each of the securities shall immediately become enforceable.'

The Schedule defines the 'Financier' as the plaintiff(s), the 'Entrepreneur' as the first defendant, 'Guarantors 1' and '2' as the third and fourth defendants, as well as defining the 'Loan Advance/Finance Provided', the 'Date of Advance', 'Repayment Date, Repayment Amount' and 'Security Property (collateral)'.

(a) Clause 3, from which the dispute about the central constructional issue springs, which provides that:

This agreement supplements the Mudaraba Investment Agreement signed with MATC. The rights, powers or remedies provided or available to the Financier in the agreement are cumulative and not exclusive of any rights, powers or remedies available or provided by Australian Law.

The parties here to (sic) agree to proceed on the basis of this Heads of Agreement and accept that it is a binding agreement. Each party must do everything reasonably necessary or desirable to give full effect to this agreement and the parties undertake to enter into all commercial agreements necessary or desirable to give effect to this heads of agreement.

(c) Clause 14, which provides a right to terminate if the 'Project' does not proceed or land development construction is cancelled:

provided always that Nokshee will be entitled to be paid by MATC the principal sum plus proportionate profits accrued from the date of advance to the date of repayment of the loan calculated on a daily prorated basis.

1. In addition to the Schedule, there are two exhibits annexed to the heads of agreement, being Exhibit A and B. Exhibit A provides the following description of the 'Project' (as defined in cl 1):

MATC PROPERTY GROUP PTY LTD has set up an Investment portfolio called "Brookfield VIC1" to encourage members of the community to invest their funds and earn a shariah compliant high yield return. The Company have a commitment to distribute the entire income or loss or capital (or both) to its investors. All investors will be issued with an investment certificate wherein MATC PROPERTY GROUP PTY LTD is encouraging investors to invest their money in a pooled fund which will give them a return of 25% annually on their invested capital. This fund will be managed by a group of experts in real estate business.

MATC PROPERTY GROUP PTY LTD will invest the accumulated fund in real estate, where there is only a relatively very low risk of loosing (sic) the momentum of investment return. Financial accounts of the trust will be finalized and audited in every financial year. All investors will have equal right to their invested fund in the total accumulated fund.

Exhibit B comprises a plan of subdivision for the property development 'Project' at Brookfield.

Terms of the Mudaraba-style Investment Agreement document proposed on 23 February 2018

1. Dr Chowdhury's email to Mr Alam, dated 23 February 2018, attached a document styled 'Investment Agreement'. The defendants contend this agreement contemplates a Mudaraba-style investment structure, consistent with Shariah law principles. This is the document, and thereby the investment structure, the defendants contend has been incorporated into the heads of agreement.
2. In the form as sent, the document contained terms including as follows:

(a) the Client [plaintiff(s)] and the Institution [MATC] wished to enter into an Agreement (Mudaraba) in conformity with the Islamic Shariah for the purpose of carrying out the Project described in Ex A (referred to as an investment portfolio called 'Brookfield VIC1') (preamble);

(b) the parties agreed that a sum of $1,000,000 by way of finance was required as a part of the Project as estimated by the Institution (cl 2);

(c) the Institution undertook to the Client that it would render management services with due care and all reasonable commercial diligence expected of an experienced businessman to ensure the success of the Project (cl 6(b));

(d) the estimated participation in profit would, subject to adjustments as stipulated, be 25% per annum of the invested capital pro rata (cl 8);

(e) the participation in losses would be as follows:

• (A) 25% of the loss in the Project would be borne by the Client according to their invested fund; and
• (B) the Institution would receive no compensation for its management services, and would be liable for the loss if it was proven that it had breached its obligations or was proven to be failing in the discharge of its obligations under the agreement (cl 9(a));

(f) subject to cls 8 and 9, and under Islamic shariah principles, the Institution could not guarantee the invested capital and/or profit (cl 10(a));

(g) a collateral from the Institution was provided and could only be liquidated in the event of misconduct or negligence and/or breach of terms (cl 10(b));

(h) the guarantee asset was 28-32 Brooklyn Drive, Brookfield (cl 10(c));

(i) the guarantee would be utilised to cover any loss or depletion of capital only and only if misconduct or negligence or breach of terms was proven (cl 10(d));

(j) an assumed interim Profit could be distributed to, or an assumed interim Loss deducted from, the Client after six months according to the invested fund, which would be adjusted at the end of financial year in final accounts (cl 13(b) and (c)); and

(k) the Schedule of Repayment provided that $1,000,000 (principal) and $125,000 (dividend) would be paid on 23 August 2018 (Ex B).

1. Exhibit A to the document is the same as Exhibit A that is attached to the heads of agreement, and explains the investment portfolio behind the first defendant's development project.

Construing the terms of the parties' contractual bargain

Are the documents to be construed by reference to each other?

1. The defendants contend that the 'Mudaraba Investment Agreement and the Heads of Agreement were brought into existence contemporaneously and should be construed together and with reference to each other'.[51] In doing so, they presumably seek to invoke the principles of construction of separate contracts executed contemporaneously as part of the same transaction, as described in McVeigh v National Australia Bank.[52] In such cases, several instruments may be read together, and each one in aid of construction of the others, even though the parties are not the same, provided the instruments were known to the other parties and were executed contemporaneously to accomplish a common purpose.[53] However, the submission is at odds with the defendants' position that the Mudaraba-style Investment Agreement was never formed as a separate contract. Accordingly, there are not multiple contracts to interpret together as part of the same transaction. In any event, it is not clear how the application of these principles would assist in the construction exercise given it is said the provisions contained in the two documents are 'fundamentally incompatible with each other' and 'not capable of reconciliation'.[54] For these reasons, I have not further considered this submission.

Incorporation of terms into the heads of agreement

1. The defendants contend that the full terms of the Mudaraba-style Investment Agreement document are 'expressly incorporated into the pleaded loan agreements',[55] each of which states, in cl 3, that they 'supplement the Muradib Investment Agreement signed with MATC'. There is a two-stage test to be applied in determining whether and how terms are incorporated into a contract.[56] The first stage involves construing the words of incorporation by applying the ordinary principles of construction to commercial contracts in order to determine whether there is incorporation and the width of it.[57] The second stage involves reading the incorporated wording into the host document to see whether the incorporated wording needs to be rejected as inconsistent or insensible.[58]
2. The defendants submit that as part of the construction exercise in the first stage, the Court must strive to give meaning to the words 'supplement the Mudarib Investment Agreement signed with MATC' in cl 3. The defendants contend that the reference to the 'Mudarib Investment Agreement signed with MATC' is an express reference to the Mudaraba-style Investment Agreement document sent by Dr Chowdhury to Mr Alam on 23 February 2018, even though it was never signed. They also contend the word 'supplements', as used in the clause, should be given its ordinary and natural meaning, being 'something added to complete a thing, supply a deficiency or reinforce or extend a whole.'[59] They say further that the concept of 'supplementing' connotes that the Mudaraba-style Investment Agreement document is the dominant or controlling instrument - that is, the heads of agreement adds to it and must give way to it in the event of inconsistency.
3. As noted by McLeish JA in Doggett v Commonwealth Bank of Australia ('Doggett'), there is little in the way of authority regarding the construction of words of incorporation.[60] His Honour speculated this is because such clauses are either quite specific or refer in a general way to a document without differentiating amongst its provisions. In Doggett, where, as its first step, the Court had the task of construing a clause that incorporated 'relevant provisions' of the Banking Code of Conduct, his Honour obtained assistance from English authorities incorporating terms into bills of lading, identifying in those authorities 'a special rule' whereby very general words of incorporation of the terms and conditions of a charter party are read down by reference to the subject matter of the bill of lading.[61] That is, words of general incorporation are limited in their operation and apt only to incorporate clauses that are 'directly germane' to the subject matter of the incorporating contract.[62] Provisions that are not directly germane should not be incorporated 'unless it is done explicitly in clear words'.[63]
4. In my view, the Mudaraba-style Investment Agreement document is not incorporated into the heads of agreement by cl 3. First, that agreement was never signed, which is significant given the wording of cl 3 fastens on an agreement 'signed' with MATC. When given its natural and ordinary meaning, the word 'supplements' is not a word of incorporation. It means what is says - to the extent there is a 'signed Mudarib Investment Agreement with MATC' the heads of agreement supplements, or adds to it. Objectively construed, the word is not apt to bring into the heads of agreement the full terms of the Mudaraba-style Investment Agreement document.
5. In any event, and contrary to the defendants' submission, cl 3 does not refer to the Mudaraba-style Investment Agreement document. MATC was seeking investors in the Brookfield Living property development project. By cl 1 of the heads of agreement, the plaintiffs agreed to advance 'the Loan' to 'enable MATC to complete the Brookfield Living Land development (the Project) detailed in Exhibit A'. Exhibit A describes the Project and its structure, recording that MATC has set up an 'investment portfolio' to 'encourage community members to invest'. Exhibit A uses the phrase 'all investors', and describes how they will earn a shariah compliant return with MATC making 'a commitment to distribute the entire income or loss or capital (or both)' to them. That is, the investment portfolio that was being used to fund the Brookfield Living project operates on Mudaraba-style profit-and-loss sharing investment terms. Accordingly, reading cl 3 with the benefit of the text and context provided by Exhibit A and the heads of agreement as a whole, cl 3 is to be construed as referring to other Mudaraba-style investment agreements 'signed [by other investors] with MATC'. In this context, the meaning being given to the word 'supplements' is harmonious with the purpose of the loan as described in cl 1, that is, to provide financial accommodation that adds to the funding provided by other investments to enable completion of the Project. This construction gives meaning to each of the words of cl 3 which is consistent with the text, context and purpose of the heads of agreement as a whole. That construction is also harmonious with the recitals and cl 12 of the heads of agreement by which the parties agreed that they will be bound by the terms set out therein.
6. If I am wrong, and the word 'supplements' can be construed as a word of incorporation, and the document intended to be incorporated is that upon which the defendants rely, then the defendants' argument still falters at the first stage. As an incorporating clause, it is very general - it does not differentiate between the clauses of the document it purports to incorporate. Drawing on the rule identified in the bills of lading cases, and applied in Doggett, such a general clause is apt only to incorporate clauses that are directly germane to the subject matter of the incorporating contract. This is where the fundamental incompatibility or inconsistency between the heads of agreement terms, which describe a conventional loan, and the terms of the Mudaraba‑style Investment Agreement document, becomes problematic. None of the clauses in the Mudaraba-style Investment Agreement document which relate to the profit-sharing financial structure it contemplates could be incorporated, as they are not directly germane to the subject matter of the heads of agreement. Had the parties intended to incorporate such a fundamentally different arrangement, one which overhauled the whole character of their contract, they would have needed to do so 'explicitly by clear words'.
7. The defendants' case would also fail if analysed at the second stage, that is, by writing all of the incorporated terms into the host contract and rejecting those that are inconsistent or insensible. Given the terms of the Mudaraba-style Investment Agreement document, which give it the character of a capital investment/profit share, are, as the defendants describe them, 'fundamentally incompatible' with the terms of the heads of agreement which create a loan, all of those terms would be rejected. After their rejection, the heads of agreement would retain its original character as a loan.

1. Having determined there is no incorporation of the terms of the Mudaraba-style Investment Agreement document, the heads of agreement falls to be construed by reference to the terms contained in the first to fifth agreements. Those various heads of agreement are clear on their face and unambiguous in their terms. The recitals reveal the purpose of the heads of agreement as being to provide a loan, a financial advance or financial accommodation to the first defendant. The advance is referred to as a loan throughout the document, starting with the recitals and then in cls 1, 2, 4, 5, 8, 13, 15, 16 and in the Schedule. The essential elements of the loan are:

(a) the advance of a sum of money (originally $1 million[64] and then restructured to $600,000[65] and $400,000[66] across the two plaintiff entities);

(b) repayment of the advance after a defined period with an agreed return (variously referred to as interest or profit);[67] and

(c) in the event of non-payment, an ongoing accrual of interest/profit at 25% per annum;

(d) a right of termination where the project does not proceed together with repayment of the principal and a proportionate amount of interest following termination; and

(e) in the event of default in payment of the loan or interest/profit as and when due, the loan shall become immediately due and payable, and the security enforceable, at the option of the financier.

1. Clause 19 acknowledges that the agreement 'supports Sharia law' and so contemplates capital losses being claimed (though it does not say how) in 'the event of war, natural disasters like earthquakes which might blow away all prospects of the commercial land value for Exhibit B.' However, the clause clarifies that 'no loss' can be claimed where caused by 'negligence, incompetence, miscalculation of market conditions, mismanagement of Entrepreneur and his/her associates'. Other than in these limited circumstances, there is nothing in the heads of agreement which excuses or diminishes the repayment obligation in the event there is a capital loss on the Project.

1. Although no detailed submissions have been made on the point, the defendants raise the issue of whether valuable consideration was provided for entry into the second and third heads of agreement given no 'new' moneys were advanced.
2. The loan advanced under the terms of the first agreement was due to be repaid on 25 August 2018.[68] Mr Alam gave evidence that, in about May 2018, Dr Chowdhury was 'hinting that he need (sic) money for longer'.[69] Mr Alam said in his evidence that he had purchased an investment property by that time and he needed funds to settle but couldn't use his superannuation fund. He gave evidence that he told Dr Chowdhury that in order to extend the term of the loan to MATC, he would need to split the loan so he could advance some of the money from his self-managed superannuation fund instead of Nokshee, presumably freeing up funds for Nokshee to use to settle on his new investment property. This is consistent with the explanation he gave to Dr Chowdhury's personal assistant in his email dated 8 May 2018, in which he states:

Because I spoke to [Dr Chowdhury] re: extension or a revised contract. For the extension, I told him that I need to have two separate contracts: one for super fund trustee company and another for my company, as I bought new block for which super money can not be used and I need him to borrow from super fund which was invested in MCCA.[70]

1. Mr Alam then provided the draft second and third heads of agreement by email dated 6 June 2018, commencing the email '[a]s discussed'.[71] The draft agreements split the advance into a $600,000 loan from Nokshee to MATC and a $400,000 loan from MH (Aust) to Nokshee. Mr Alam also gave evidence that he told Dr Chowdhury that he would need to end the first agreement with effect on 25 June 2018 and to issue an invoice for the 'profit' due under that agreement on a pro rata basis to 25 June 2018. Mr Alam issued a notice of cancellation and an invoice on 6 June 2018.[72] The total value of the invoice was $83,333, inclusive of GST.
2. Despite their submission that this restructuring of the loan was at the request of Mr Alam, the defendants did not cross-examine Mr Alam on this issue, and Dr Chowdhury did not give any evidence about it. The emails from around that time concerning the extension, and the reasons for the restructure, are consistent with Mr Alam's evidence. I am satisfied that MATC needed the loan repayment term to be extended. Mr Alam agreed to the extension of the repayment term, but proposed to restructure the financing, with MH (Aust) stepping in as a new lender in respect of $400,000. That the moneys weren't repaid by MATC to Nokshee and 'new' money re-advanced by MH (Aust) is, in my view, of little consequence. That was the effect of the transaction - either MH (Aust) transferred the moneys to Nokshee or a loan was created as between MH (Aust) and Nokshee. In either case, there was valuable consideration given by the parties to the second and third heads of agreement - Nokshee and MH (Aust) advanced their money on extended repayment terms, and MATC promised to repay the moneys when due on the extended repayment date. The second and third heads of agreement are valid and enforceable.

1. Although the FASOC identifies a fourth and fifth heads of agreement. These are variations of the second and third heads of agreement. The agreement to vary the terms of the second and third agreements so as to capitalise the interest payment then outstanding of $83,333 arises from a series of emails between Mr Alam and Dr Chowdhury between December 2018 and January 2019. Mr Alam gave evidence that the invoice he issued in June 2018 remained unpaid by MATC as at December 2018, prompting him to threaten to withdraw the loans.[73] His email to Dr Chowdhury, dated 2 December 2018, stated:

Many thanks for the updates. However, all these updates didn't eventuate to any outcome for me. In the last six months, you were not able to pay any money to my company who invested in good faith to your business.

Given that none of the promises could be kept due to lack of soundness in your business model, I am considering to withdraw my investment prematurely. Although my existing Investment/Mudaraba Loan Agreement supposed to expire in 25 June 2019, given lack of certainty in your business, I would appreciate if you could settle the loan early (please refer to Clause 14).[74]

Dr Chowdhury responded by email dated 10 December 2018 to propose the outstanding interest totalling $83,333 be capitalised proportionately with the principal advanced by each of Nokshee and MH (Aust).[75] Mr Alam, on behalf of Nokshee and MH (Aust), accepted Dr Chowdhury's proposal, on behalf of MATC, to defer repayment of the overdue interest by capitalising it by email dated 20 January 2019.[76]

1. The defendants did not cross-examine Mr Alam about the variations, and Dr Chowdhury did not give any evidence about it. The documents tendered by the parties speak for themselves. In my view, these emails evidence an agreement between the parties to vary the second and third agreement terms so as to capitalise the outstanding interest amount. In consequence, the advance given by Nokshee to MATC under the second agreement increased to $650,000, whilst the advance from MH (Aust) to MATC increased to $433,333.00. No other terms changed.
2. Accordingly, I am satisfied that the loans advanced to MATC are enforceable by Nokshee and MH (Aust) consistently with the terms of the second and third agreements, as varied by the email agreement described above.

1. On 1 September 2022, MH (Aust) and the second defendant, T2, entered into an agreement for a loan in the sum of $100,000, plus interest, with the repayment amount due to be paid by 31 August 2023.[77] This agreement is defined in the FASOC as the 'sixth heads of agreement'. In the FASOC, MH (Aust) claims that T2, the second‍‑named defendant, has failed to repay the moneys owing under the sixth heads of agreement and is indebted to it in the sum of $127,602.74.
2. Mr Alam gave evidence that the purpose of the loan to T2 was to 'rotate' the moneys advanced to MATC by Nokshee into MH (Aust). He explained that he intended that T2 would use the moneys loaned to it by MH (Aust) to repay interest owing by MATC to Nokshee, thereby freeing up cash outside the superannuation fund for Mr Alam to use for, amongst other things, his daughter's wedding. He gave evidence that he proposed the transaction to Dr Chowdhury after asking MATC to repay $200,000 due under the loan from Nokshee, which remained unpaid. That request for repayment, and the proposal to rotate funds from superannuation, is evidenced in WhatsApp messages between Mr Alam and Dr Chowdhury in evidence in the proceeding.[78] Mr Alam's difficult financial position and the proposal are also described in his email to Dr Chowdhury sent on 1 September 2022, attaching the draft of the sixth heads of agreement and which stated:

This is the draft, same as my other contract to borrow $100K from my Super Fund to pay back to me as the cash which I need to resolve my immediate needs. You really put me in a hard place. You committed in writing to settle the loan last December. This is now September, you are still uncertain re: when to settle the loan agreement in full. My family is really concerned about me and my situation with your dealings.

If you could give $100K this week, without touching my Super, is still my preference. I already gave you $400K of my super. This is the last amount of savings I have. I am already struggling to service my loans in the bank. So without cash flow, everything will collapse. Hence I am desperate to get the cash I need. In your May phone call, you said you would settle it in July, but nothing happened. Then I thought in August you get fund from Lux or from Hospital sale. That didn't happen either.

I need you to sign the settlement DEED with one of the three OPTIONS I mentioned in my last email to you. If it is not done, my son wants to submit a statutory DEMAND.[79]

1. In his evidence-in-chief, Mr Alam described his proposal as a 'last resort'[80] after MATC failed to pay him any money as requested, and despite the loan being due in June 2019. In his evidence, Dr Chowdhury accepted that he did not have the cashflow to pay Mr Alam.[81] As Mr Alam's 1 September 2022 email made clear, he was desperate to get the cash he needed. He also gave evidence that he had sought an assurance from his accountant that the transaction was lawful.[82]
2. In purported performance of the sixth heads of agreement, in September 2022, MH (Aust) transferred two tranches of $50,000 (totalling $100,000) to T2. Then, on 21 September 2022, T2 paid $50,000 to Nokshee.[83] On 27 September 2022, T2 paid a further $50,000 to Nokshee.[84] Dr Chowdhury gave evidence that Mr Alam directed him which account the moneys were to be paid into.[85] The plaintiffs contend that these two payments reduced the extent of MATC's indebtedness to Nokshee under the second agreement by $100,000. They contend, therefore, the $100,000 advanced to T2, together with accruing interest, remains unpaid.
3. The defendants' counsel cross-examined Mr Alam extensively about this transaction, putting to him that the loan provided by the sixth agreement was a 'nonsense'.[86] Counsel ultimately submitted to the Court that the loan was a 'sham' and a 'scheme devised by Mr Alam to circumvent the operation of s 65 of the Superannuation Industry (Supervision) Act 1993 (Cth) ...'[87] The plaintiffs submit that whilst the transaction may have been a poor decision, there is no illegality, in particular no contravention of the section cited. Ultimately, I do not need to determine whether Mr Alam devised the transaction as a sham or whether he was attempting to circumvent the application of the superannuation laws. This is because, in the proceeding, the plaintiffs rely on the payments to Nokshee as having had the legal effect of reducing the debt owed by MATC to Nokshee under the second agreement (as varied). Even if the sixth agreement was effective to create legal rights and obligations (which is to be doubted), I accept the defendants' submission that the two $50,000 payments were made to Nokshee at the direction of Mr Alam, as a director of MH (Aust), and the legal effect of them was to discharge T2's debt to MH (Aust), as opposed to discharging any part of MATC's liability to Nokshee.[88] Accordingly, any payment obligation that T2 had to MH (Aust) under the sixth heads of agreement (assuming its legal effectiveness), was discharged by the payments. It follows that the second plaintiff's claims against T2 in this proceeding must fail.
4. The defendants submit that Mr Alam's conduct, and his attempt to justify the transaction, impeaches his credit. Certainly Mr Alam's claim, under the pressure of cross-examination, that the payment of $100,000 by MH (Aust) to T2 was unconnected to the payment, a few days later, of $100,000 by T2 to Nokshee, is at odds with the otherwise frank evidence he gave to the effect that he was attempting to 'rotate', or access, funds from his superannuation fund. However, I do not make any adverse credit finding against Mr Alam. To my observation, Mr Alam was desperate to access cash and at the same time to keep everyone happy, including Dr Chowdhury, who he said he still trusted,[89] despite his numerous unfulfilled promises to repay the borrowed money. In my view, he honestly believed that the sixth heads of agreement would legitimately allow him to access the cash and to keep helping Dr Chowdhury at the same time.

1. Despite demand,[90] the loans advanced by the plaintiffs to the first defendant under the second and third agreements (as varied) have not been paid in full. There is no dispute as to the payments made by MATC to Nokshee, and their quantum. For ease, I have set them out in the table below:

1. The first defendant is liable for the debts due to the plaintiffs under the second and third agreements (as varied) comprising the principal, less any repayments, together with interest calculated on the principal at a rate of 25% per annum, in accordance with the agreements.

1. By cl 11, Dr Chowdhury agreed to guarantee the performance by MATC of its obligations under the terms of each heads of agreement as its director and shareholder. Dr Chowdhury has admitted his role as guarantor under the first to fifth agreements.[91] The plaintiffs demanded payment of the amounts due under the loan agreements from Dr Chowdhury as guarantor by notices dated 24 February 2023.[92]
2. Dr Chowdhury is liable to the plaintiffs for the amounts outstanding from MATC under the terms of the heads of agreement.

The claim against the fourth defendant, Ms Arabi

1. By paragraph 26A of the FASOC, the plaintiffs allege that there was a duty to cooperate implied into the heads of agreement, the content of which was that:

(a) the parties would do all things necessary to enable the other party to have the benefit of the contract; and

(b) further or alternatively, in circumstances where an arrangement could only take effect by the continuance of a certain existing state of circumstances, the parties agreed that they would not do anything to put an end to that state of circumstances.

The plaintiffs particularise the positive duty alleged in subparagraph (a) above as being that which was identified in Butt v M'Donald[93] as applied in Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd.[94] They particularise the negative formulation of the duty alleged in subparagraph (b) above as that identified in Stirling v Maitland[95] and Australis Media Holdings Pty Ltd v Telstra Corporation Ltd.[96] The plaintiffs added this claim by amendments made in the FASOC pursuant to a grant of leave on 3 June 2025. Shortly before trial, the first, second and third defendants and separately the fourth defendant, filed amended defences to the FASOC. They each deny the allegations that a duty to cooperate was implied into the heads of agreement.

1. The plaintiffs contend that pursuant to cl 2 of the heads of agreement, the defendants promised to provide an unregistered mortgage over a property owned by Ms Arabi, identified in Item 8 of the Schedule to the heads of agreement as being the property at 28-32 Brooklyn Drive, Brookfield[97] ('Property'). The plaintiffs acknowledge that Ms Arabi did not own the Property at the time of execution of the first agreement. Its acquisition preceded entry into the second and third agreements.[98] The plaintiffs further contend that pursuant to cls 5 and 6 of the heads of agreement, the defendants agreed to take all necessary action to ensure the security would be valid and enforceable and warranted there would be no prior mortgage or other security granted in respect of the Property. Despite making this contention, the plaintiffs do not plead that there was a breach of these warranties, even though the Property, after its acquisition, was subject to a registered mortgage in favour of another party.
2. The plaintiffs instead allege in the FASOC[99] that the fourth defendant breached her implied duty to cooperate by transferring the Property to a third party on 1 August 2019.[100] They contend that by transferring the Property, Ms Arabi did not provide the plaintiffs with the benefit provided for by cl 2 of the heads of agreement, and that she has prevented the plaintiffs from enjoying the benefit of the security. They allege the damage suffered arises from their inability to enforce against the collateral. In paragraph 26C of the FASOC, they particularise the loss and damage as being equivalent to the value of the security provided by the Property of approximately $1.3 million. Accordingly, they seek an order that Ms Arabi pay to them the sum of $1.3 million in damages for the breach.
3. The defendants deny the plaintiffs' allegations as to the existence and scope of the duty within the heads of agreement and defend the substance of the claim on the bases that:

(a) as the true agreement between the parties incorporated the terms in the Mudaraba-style Investment Agreement document, that agreement contained express written terms which regulated when the plaintiffs could enforce the security and those circumstances (ie proven misconduct, negligence or breach) had not arisen;

(b) Mr Alam consented to the Property being transferred to a third party; and

(c) there is no evidence, only assertion, that the plaintiffs have suffered loss and damage as particularised in paragraph 26C of the FASOC.

Given I have determined that the terms of the Mudaraba-style Investment Agreement document have not been incorporated into the heads of agreement, the first contention must fail. I will deal with the other bases for the defence of the claim in turn.

Is there an implied duty to cooperate of the scope alleged implied in the heads of agreement?

1. The duty to cooperate arises as an implied term of a contract and, as such, must meet the test of necessity and be consistent with its express terms.[101] As the Court described the duty in Adaz Nominees Pty Ltd v Castleway Pty Ltd:

the law will imply, in appropriate circumstances, a positive obligation to take action (to cooperate and to do all such things as are necessary to enable the other party to have the benefit of the contract), and a negative covenant not to hinder or prevent the fulfilment of the purpose of the express promises made in the contract.[102]

As can be seen, the duty has both positive and negative connotations, and its content and operation requires consideration of the terms of the contract.

1. Neither the plaintiffs nor the defendants have addressed in detail in their submissions the content and operation of the alleged duty to cooperate. The defendants' denial of paragraph 26A of the FASOC is presumably principally made because they contend the content and operation of the duty as alleged is inconsistent with the express terms of the Mudaraba-style Investment Agreement document, such that it would not be implied in the circumstances. Given their primary position, the defendants do no more than assert, in their closing submissions, that the heads of agreement might have given the plaintiffs a caveatable interest over the Property or the right to have the fourth defendant execute an unregistered mortgage, but there was no express prohibition on Ms Arabi transferring the Property to a third party.
2. Certainly, there is no express prohibition; it is for that reason that the plaintiffs contend that it is necessary for the law to imply the duty to cooperate in the terms alleged. Clause 2 of the heads of agreement contemplated that the parties would execute further documents to secure the debt owed to the plaintiffs by an unregistered mortgage over the Property. Clause 2 also allowed the plaintiffs to register a caveat over the Property. Clauses 5 and 6 provided that the fourth defendant (as a guarantor) had taken all necessary action to make the collateral enforceable, and that the Property would not be encumbered. That is, the fourth defendant warranted that she would provide the benefit of the Property, unencumbered, as collateral to the plaintiffs to support the making of the loans. I am, therefore, satisfied that a duty to cooperate, as alleged by the plaintiffs, is implied into the heads of agreement. The defendants undertook to cooperate to ensure the plaintiffs received the benefit of the collateral in securing the repayment of the loans and not to deal with the Property in a manner which deprived the plaintiffs of that benefit. This implied term had the effect of prohibiting the fourth defendant from disposing of the Property to a third party (absent consent).

1. The fourth defendant alleges there was no breach of the implied duty to cooperate because Mr Alam consented to her selling the Property. In particular, the fourth defendant contends that in about June 2019, Mr Alam, on behalf of Nokshee and MH (Aust), gave his verbal consent to Dr Chowdhury (on behalf of Ms Arabi) to the Property being transferred to a third party.
2. The fourth defendant was not called to give any evidence at the trial. However, Dr Chowdhury gave evidence that Mr Alam had consented to her selling the Property during a conversation he had with him by phone in June 2019. He gave evidence that he called Mr Alam and told him that he needed 'to sell off [his] wife's property'.[103] He said he asked for Mr Alam's permission to sell the Property and that Mr Alam responded to the effect 'Go ahead, the property was only a security, I did not intend it as payment for anything and that is why I did not put a caveat on it.'[104] Mr Alam could not recall any such conversation.[105]
3. On 30 June 2019, Dr Chowdhury and Mr Alam exchanged a series of WhatsApp messages about the Property. That exchange commenced with Dr Chowdhury asking whether Mr Alam's company had placed a caveat on the Property. Mr Alam replied that he had not done so, and Dr Chowdhury further explained in the three subsequent messages:

I need to arrange for my assets to be sold to the bond.

So I am preparing the documents for that to happen.

That's how your money will be repaid.[106]

After some further messages, Mr Alam responds 'Sure ...' before embarking on a different topic.

1. Mr Alam did not recall the conversation related by Dr Chowdhury in his evidence and which Dr Chowdhury claimed occurred prior to the WhatsApp exchange extracted above, that is, earlier in June of 2019. Mr Alam said that he accepts he consented to the Property being sold but that his consent was conditioned upon the understanding that it was being sold to the 'bond company' (as indicated in the WhatsApp messages) so that he could be repaid, and not to a third party. Mr Alam said he understood the bond company to be Lux Capital, which is a Shariah-compliant bond product that Dr Chowdhury intended to launch on the financial markets with his business partner, Mr Piet Saarloos.[107]
2. I am satisfied that Mr Alam's consent, which he concedes despite there being, in my view, some ambiguity in the WhatsApp messages,[108] was conditional on the sale being to 'the bond company' and to facilitate repayment. I find it unlikely that the conversation earlier in June as described by Dr Chowdhury occurred, either at all or with the result that Mr Alam provided his unconditional consent to the sale during the conversation. Mr Alam could not recall the conversation, despite having seemingly good recall of other conversations and events from that time. It makes little sense that the WhatsApp messages would have been required had an earlier conversation occurred in the more general terms relayed by Dr Chowdhury, in particular, there would have been no apparent need to make any representation about to whom the assets, including the Property, were to be sold or the representation that this was how Mr Alam's companies' loans would be repaid.
3. In my view too, Dr Chowdhury was not always accurate in his description of the contents of some of his conversations with Mr Alam, and this casts doubt over his evidence about the asserted June conversation. That was exemplified by his giving evidence in the proceeding to the effect that the loan moneys advanced by the plaintiffs were used towards the purchase of two real property assets connected with the Brookfield development, with that evidence only to be contradicted by his statement on a recorded Zoom call between the pair in December 2020. The plaintiffs tendered the recording in evidence to impeach Dr Chowdhury's credit. I am satisfied that in the recorded conversation, Dr Chowdhury tells Mr Alam that:

when you invested with me in Australia, what I did was, I obviously bought land in Australia but I also moved money to Malaysia to do my construction.[109]

Having listened to this during his cross-examination, Dr Chowdhury denied he was talking about Mr Alam's money. However, that is contradicted by what he says next in the recording:

My construction firm will have more than enough capital to pay uncle ... because you know I have given you my personal guarantee as well, so its basically, the money has to be paid by the company that used your money or whichever company I have ...[110]

Quite clearly, Dr Chowdhury is providing reassurance to Mr Alam that he will be repaid the moneys his companies have loaned, and that the repayment could come from any of Dr Chowdhury's companies because of the personal guarantee. The personal guarantee could only be a reference to the guarantee given by Dr Chowdhury under the terms of the heads of agreement. This contradicts the evidence given by Dr Chowdhury under oath that he only used the moneys to purchase the properties connected with the Brookfield development, and leads me to approach his evidence with caution.

1. I prefer the evidence of Mr Alam that he gave only his conditional consent to the sale of the Property. The fourth defendant transferred the Property to a third party unconnected with the 'bond company'. The plaintiffs' loans were not repaid from the sale proceeds. In this way, the plaintiffs have been deprived of the benefit of the collateral provided under the terms of the heads of agreement. The fourth defendant breached her implied duty to cooperate.

1. Despite being satisfied that the fourth defendant did not comply with the conditions attaching to Mr Alam's consent to the sale of the Property and so breached the implied duty, the plaintiffs have not adduced evidence to support their claim to damages as particularised in the amount of approximately $1.3 million in paragraph 26C of the FASOC. The plaintiffs first sought to rely on inadmissible evidence of the price achieved on the sale of the Property. With that evidence excluded, the plaintiffs then sought to rely on:

(a) Dr Chowdhury's present recollection of the sale price in August 2019; and

(b) the $1.2 million purchase price recorded in the transfer of land form[111] upon the acquisition in May 2018.

The plaintiffs submitted that whilst they had not adduced expert evidence about the precise value of the Property at the date of breach (and therefore of the value of the benefit of which the plaintiffs allege they had been deprived), evidence of the price actually paid in the market at the time of the breach and 'shortly prior' is an adequate measure. Firstly, I disagree that the acquisition in May 2018 was 'shortly prior' to the date of breach some 13 months later. Secondly, Dr Chowdhury could not really recall the sale price in August 2019, beyond suggesting 'it might've been around 1.2 or 1.15.'[112] As noted above, the plaintiffs did not have any admissible documentary evidence to demonstrate the actual sale price at the date of breach. In terms of using the acquisition price recorded in the land transfer form in May 2018, the plaintiffs did not adduce any other valuation evidence to confirm the value of the Property at that time, including evidence which confirmed the price paid was as the result of an arms‑length transaction.

1. The plaintiffs faced another evidentiary difficulty. The collateral was an unregistered mortgage over the Property. On the date of acquisition of the Property by the fourth defendant, First Mortgage Capital Pty Ltd registered a mortgage on title. A mortgage remained registered against the Property for the entire period in which the fourth defendant owned it. The plaintiffs' losses could not be greater than the available equity in the Property given the registered mortgagee's indefeasible interest. There was no evidence adduced about the level of indebtedness secured by the mortgage or of the value of the remaining equity in the Property. The plaintiffs make no complaint in the proceeding about the Property having been encumbered at the date it was acquired by the fourth defendant; they complain only about the breach of the duty to cooperate occasioned upon its transfer.
2. I accept the fourth defendant's submission that the plaintiffs' case for damages rests upon mere assertion as to loss. The plaintiffs have failed to adduce any admissible evidence of the value of the Property (and moreover the available equity) at the date of the breach on 1 August 2019. Their claim for damages for breach of contract by the fourth defendant must fail for want of evidence.

1. For the foregoing reasons, judgment will be ordered in favour of the plaintiffs against the first and third defendants for the amounts due as debts under the second and third agreements (as varied).
2. The plaintiffs' claims against the second defendant and the fourth defendant are dismissed.
3. I will hear further from the parties on the form of order to give effect to these reasons, including the precise sums due under the second and third agreements up to the date of judgment. I will also hear further from the parties on the issue of costs.

[1] Transcript of Proceedings, Nokshee Pty Ltd v MATC Property Group Pty Ltd [2026] VSC 181 (Supreme Court of Victoria, S ECI 2023 04745, Goulden AsJ, 25 - ‍27 November 2025) T35.18-T36.24 ('Transcript'); Court Book, undated, 166 ('CB').

[3] Mr Alam Transcript T36.23-T36.24; Dr Chowdhury Transcript T119.16-T120.14.

[4] Transcript T39.19-T40.01, CB 159, CB163.

[10] Supplementary Court Book, undated, 70 ('SCB'), it is agreed that the attachment is at SCB 180. This is an event in the Agreed Chronology filed on 11 March 2025.

[11] This is the Mudaraba-style Investment Agreement document the defendants contend was incorporated into the heads of agreement and assumed primacy.

[16] Transcript T45.09-T45.17; Transcript T139.03-T139.06.

[17] CB 225. This is an event in the Agreed Chronology filed on 11 March 2025.

[18] CB 232, 236, 834. Transcript T47.30-T48.01. This is an event in the Agreed Chronology filed on 11 March 2025.

[19] There is a conflict about who requested this change, Mr Alam saying that Dr Chowdhury has requested an extension beyond the 25 August 2018 repayment date (Transcript T48.06), and Dr Chowdhury's submissions relying on Mr Alam's emails sent in May and June 2018 (CB 251, 254-5, 257-8) to contend that the restructure occurred at Mr Alam's request.

[21] CB 259. This is an event in the Agreed Chronology filed on 11 March 2025.

[22] CB 268. This is an event in the Agreed Chronology filed on 11 March 2025.

[23] CB 260. This is an event in the Agreed Chronology filed on 11 March 2025.

[25] CB 428-9. This is an event in the Agreed Chronology filed on 11 March 2025. Transcript T50.06-T50.23.

[26] CB 427-8. This is an event in the Agreed Chronology filed on 11 March 2025. Transcript T50.06-T50.23.

[27] This is an event in the Agreed Chronology filed on 11 March 2025.

[28] This is an event in the Agreed Chronology filed on 11 March 2025.

[29] This is an event in the Agreed Chronology filed on 11 March 2025.

[30] This is an event in the Agreed Chronology filed on 11 March 2025.

[31] This is an event in the Agreed Chronology filed on 11 March 2025.

[33] CB 550-3. The execution of the sixth agreement is an event in the Agreed Chronology filed on 11 March 2025.

[35] Exhibit P-1. Transcript T106.10-T106.30; Transcript T82.19-T82.25.

[37] CB 83. It is not apparent from the evidence which entity made the payment, however, this is an event in the Agreed Chronology filed on 11 March 2025, which identifies MATC as the payor.

[39] CB 84. It is not apparent from the evidence which entity made the payment, however, this is an event in the Agreed Chronology filed on 11 March 2025, which identifies MATC as the payor.

[41] This is an event in the Agreed Chronology filed on 11 March 2025.

[42] This is an event in the Agreed Chronology filed on 11 March 2025.

[44] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 ('Mount Bruce').

[45] This summary replicates substantially the summary of legal principles drawn from Mount Bruce given by Lyons JA in EMR Capital Investment (No 6B) Pte Ltd v Carl Hallion [2024] VSC 805, which summary was not disturbed on appeal.

[46] Coopers Brewery Ltd v Lion Nathan Australia Pty Ltd [2005] SASC 400; (2005) 93 SASR 179; Doggett v Commonwealth Bank of Australia [2015] VSCA 351; (2015) 47 VR 302 ('Doggett').

[47] See eg, McVeigh, In the matter of Piccolo v National Australia Bank Ltd [2000] FCA 187; (2000) 278 ALR 429.

[48] See eg, GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50; (2003) 128 FCR 1.

[50] The 'Mudarab Agreement documents' are not defined or otherwise identified.

[51] Defendants' closing submissions [62].

[52] [2000] FCA 187; (2000) 278 ALR 429 ('McVeigh').

[54] Hume Steel Ltd v A-G (Vic) [1927] HCA 24; (1927) 39 CLR 455, 465; Defendants' closing submissions [64].

[55] Defendants' closing submissions [67].

[59] The concise Macquarie dictionary using the first definition, as cited in the defendants' closing submissions [69].

[63] The Annefield [1971] p 168, 184; 2 WLR 320, 332.

[67] See cl 8, and items 6 and 7 to each heads of agreement.

[73] Transcript T49.31-T50.10, CB 429-30.

[76] CB 427-8, Transcript T50.11-T50.23.

[82] Transcript T82.21-T82.25, Exhibit 'P1'.

[83] In the Agreed Chronology filed on 11 March 2025, it is said the payment was made to Nokshee by MATC. Although there is a bank record in evidence showing this payment to Nokshee (CB 83), that bank record does not identify the transferor. At trial the parties described the payment as having been made by T2 (see T82.26-T83.13; T95.14-T96.20; T129.25-T131.10).

[87] Defendants' closing submissions [82].

[88] Re York Street Mezzanine Pty Ltd (in liq) [2007] FCA 922; (2007) 162 FCR 358, [28] citing Roper v Bumford [1810] EngR 367; (1810) 3 Taunt 76; 128 ER 31.

[91] Notice to Admit [34]-[36] CB131-2; Notice of Dispute CB 134-5.

[94] [1979] HCA 51; (1979) 144 CLR 596.

[95] [1864] EngR 752; (1864) 122 ER 1043.

[96] (1998) 43 NSWLR 104.

[97] Although the property is more correctly described as 28-32 Brooklyn Park Drive, Brookfield as identified in the Agreed Chronology filed on 11 March 2025.

[98] The defendants' closing submissions state that Ms Arabi became the registered proprietor on 18 May 2018.

[99] By their closing submissions, the plaintiffs allege that each of MATC, Dr Chowdhury and Ms Arabi breached their respective duties and, therefore, the heads of agreement by taking steps that prevent the plaintiffs from enjoying the benefit of their agreements. However, in the FASOC this claim is made against Ms Arabi alone.

[101] Adaz Nominees Pty Ltd v Castleway Pty Ltd [2020] VSCA 201 ('Adaz'), approved in Bensons Property Group Pty Ltd v Key Infrastructure Australia Ltd [2021] VSCA 69.

[107] Transcript T52.03-T52.08; T128.01-T128.19.

[108] The WhatsApp messages refer to 'my assets', that is Dr Chowdhury's assets, as opposed to those of his wife, including the Property, which in an earlier message he clearly describes as 'my wife's property'.

[109] SCB 84 at approximately 2:15 run time.

[110] SCB 84 at approximately 27:18 run time.

[111] CB 727. There is no date on the transfer of land form, however, the defendants submitted that the acquisition occurred on 18 May 2018.