The Cleaning Doctor NSW Pty Ltd v Fonseca

Summary of Evidence

1. The following narrative of facts, matters and events is drawn from the affidavit, oral and documentary evidence adduced by the parties. Where matters referred to are in dispute, I have identified the dispute and incorporated within the narrative my findings of fact in relation to those disputed matters.
2. The affidavit and documentary evidence adduced by both parties was extensive.
3. The plaintiffs read eleven affidavits sworn or affirmed by Ali in addition to affidavits sworn or affirmed by other witnesses. The defendants read eleven affidavits sworn or affirmed by Jeffrey, nine affidavits sworn or affirmed by Orlando and seven affidavits sworn or affirmed by Vilma, in addition to affidavits sworn or affirmed by other witnesses.
4. As will become apparent, the evidence of each witness about key factual matters, including conversations that occurred as long ago as 1997 and 2001, has evolved over the course of their affidavits. Aspects of the account given by each witness in later affidavits are inconsistent with aspects of their evidence in their earlier affidavits. To this must be added inconsistences between their affidavit evidence and their testimony during cross-examination, and inconsistencies within the oral testimony of the key witnesses.
5. The following summary does not endeavour to reconcile these inconsistencies. The inconsistencies are addressed in later sections of these reasons in which I set out my assessment of the credibility and reliability of evidence given by the witnesses and my findings of fact.

Ali's referral of work from Prestige Property Services to the Fonseca businesses: 1997 to 2002

1. Ali was born in Lebanon and is an Australian citizen. He moved to Australia from Lebanon permanently in 1997. [12] That same year, Ali commenced work as an Area Manager for Prestige Property Services (Prestige). Prestige provided property management services, including cleaning services, for large buildings and developments. Prestige engaged subcontractors and providers of subcontract labour to undertake the necessary work. Ali was introduced to Orlando by one of Prestige's other Area Managers in 1997 as one of the bosses of a subcontractor engaged by Prestige to provide cleaning services. [13]
2. As an Area Manager for Prestige, Ali had authority to decide which subcontractors Prestige engaged to perform work within his designated area. [14]
3. According to Ali, Orlando actively pursued work, gave Ali gifts, took him out to restaurants, night clubs and casinos, let him use his cars and would even bring women to Ali's apartment. [15]
4. Ali understood Orlando's cleaning business to be operated in substance by Orlando and members of his family, although the corporate entities through which the business operated changed from time to time. [16]
5. The Fonseca business was one of the main subcontractors to whom Ali allocated work in his role as Area Manager for Prestige. [17]
6. In his affidavit sworn on 8 September 2017, Orlando deposed that, when Prestige subcontracted cleaning work to the Fonseca business, Orlando would sometimes hire the subcontract labour to carry out the work but these cleaning workers were usually arranged by Ali or by the relevant Prestige Area Manager who had engaged the Fonseca business. Orlando deposed that, after he had been paid for the job by Prestige, he would arrange for the wages for the cleaning workers to be deposited into Ali's personal bank account so that Ali could pay the cleaning workers in cash. Ali provided timesheets to Orlando which recorded the hours worked by Ali and the cleaning workers so that Orlando could calculate the amount of wages to be paid into Ali's account for each job. [18]
7. In an affidavit affirmed a little over one year later on 18 September 2018, Orlando deposed that the payment arrangement referred to immediately above only commenced in about 2000 at Ali's request. [19]
8. In his affidavit of 18 September 2018, Orlando also deposed that he had a conversation with Ali in about 1997, in which Ali said to him: [20] "I have joined Prestige as a site manager. I manage various sites where Prestige has the contract. I am in charge of giving jobs to subcontractors. I can give you more jobs for Prestige but I want 15% of the profit for myself personally on some jobs and 20% on others. I will let you know which jobs are 15% and which are 20%."
9. Orlando deposed that he agreed to this in the same conversation and that, from about 1997 to about 2000, he paid Ali money from time to time that was equivalent to 15 per cent or 20 per cent of the profits that the Fonseca business made on Prestige jobs allocated by Ali. Orlando deposed that he calculated the profit as the difference between what Prestige paid him for the work for a given period, less what Orlando had paid his workers during the same period. [21]
10. Orlando also deposed that he continued to make these payments during the period after 2000 in respect of profits on jobs that Ali, on behalf of Prestige, subcontracted to Orlando's business. Orlando said that, in the period after 2000, he calculated the profit as the difference between what Prestige paid to the Fonseca business in respect of a particular period less what Orlando had paid to Ali for the wages of cleaning workers during the same period. [22]
11. Ali replied to Orlando's affidavit of 18 September 2018 in his affidavit affirmed on 9 May 2019. Ali disputed that he provided timesheets to Orlando and described the cleaning workers as being sub-contractors or employees of the Fonseca business. However, Ali confirmed Orlando's description of the arrangements for payment of the cleaning workers and did not deny that he requested these arrangements. Ali said: [23] "I approved the sub-contractors' [referring to Orlando's business and other subcontractors to Prestige] invoices for payment by the contractor. I required the sub-contractors to pay me the labour cost in cash or to my account. I withdrew the labour cost weekly and paid this to the site manager in cash. The site manager paid the labour on site weekly. … The amounts of money paid to me in cash or to my account for labour cost were often large: in some weeks the amount that would be paid to sub-sub-contractors or employees in total could be in the tens of thousands of dollars, though the amount was variable."
12. Ali gave further evidence in cross-examination confirming that he arranged the workers for cleaning jobs subcontracted by Prestige, and that he paid those workers out of funds that Orlando paid to him. [24] Ali said: [25] "Regardless of the subbie on-site, cleaners on-site has to be inducted and trained to do work on every site and supposed to have, for big venues, a photo ID. That's why, if I change the sub-contractor, we always remain the cleaners on-site. All their jobs supposed to raise an invoice and pay for the cleaners. That's all their job. They never get involved in internally training or anything. We have our branch to do the training and do everything. That's why we prefer to keep all the cleaners on-site, the same crew and we don't change, because, regularly, the subcontractor will supply someone for three months and they disappear. So, we had our casual and our permanent staff and for a reason, the company I work for, need to have subbies, so that they can save on costs. That's what - how we worked at that time."
13. However, Ali then gave further evidence suggesting that the arrangements whereby the workers' wages were paid to Ali personally and he then paid the workers in cash applied only to workers that he arranged for "ad hoc jobs and extras" beyond the scope of the work that Prestige had sub-contracted to the Fonseca business. [26] That is inconsistent with Ali's evidence in his 9 May 2019 affidavit referred to at [32] above, where he described those arrangements as applying to all workers who performed work that had been subcontracted by Prestige.
14. In his affidavit of 9 May 2019, Ali denied that he had asked Orlando in 1997, or in 2000, to pay him 15 per cent to 20 per cent of the profits on Prestige jobs that Ali allocated to the Fonseca business. Ali deposed that Orlando did not pay him 15 per cent to 20 per cent of profits during the period in which Ali worked for Prestige. [27] However, in cross-examination, Ali gave evidence to the effect that he had been receiving a percentage of profits from some time prior to 2000. [28] Ali then denied that he received a percentage of profits, and said that he received a dollar amount for each hour of work subcontracted by his employer to Fonseca businesses. [29] At a later stage of his cross-examination, Ali denied receiving any profit share from the Fonseca businesses prior to 2009. [30]
15. Neither Ali nor Orlando purported to offer any explanation as to why workers undertaking the cleaning work subcontracted to Orlando's business by Ali on behalf of Prestige were paid by Ali, rather than being engaged and paid directly by Orlando's business. Nor did they offer any explanation for workers being paid in cash. Whilst the considerations referred to by Ali in his evidence set out at [33] above explain why Prestige would wish to specify the workers to be engaged by its subcontractors, they do not explain why those workers needed to be paid by Ali rather than by the Fonseca business. Nor do they explain why the workers were paid in cash.

Purchase of the Bardwell Property: 2001

1. On 1 November 2001, Ali became the registered proprietor of property at 38 Dowling Street, Bardwell Valley, New South Wales. [31] The suburb is also known as Arncliffe. The parties referred to the property as the Bardwell Property and I will adopt the same terminology.
2. The purchase price for the Bardwell Property was $580,000. [32]
3. Orlando arranged for Hancock Alldis, solicitors, to act on the purchase of Bardwell Property [33] and subsequently paid their fees. [34]
4. Of the $580,000 purchase price, Orlando paid the deposit of $14,500 (which Ali described as a loan that Orlando made to him) [35] and $464,000 was financed by a loan from Perpetual Trustees Victoria Ltd, secured by registered mortgage over the Bardwell Property. [36]
5. There is a dispute between the parties about how the balance of the purchase price was funded, whether Ali acquired the property for Orlando's benefit on the basis that Ali would transfer the title to Orlando after about a year, and who made the repayments under the Perpetual Trustees mortgage after Ali's completion of the purchase.
6. Ali gave evidence that Orlando had helped him by showing him some properties that were for sale, and Ali decided that he would like to buy the Bardwell Property. Orlando then introduced Ali to a broker by the name of Nabil Beydoun to arrange finance for the purchase. According to Ali, he negotiated the purchase price directly with the vendor of the Bardwell Property. [37]
7. A settlement sheet prepared by Hancock Alldis on or about 3 September 2001 shows that, after deducting the deposit of $14,500 and making adjustments as between vendor and purchaser for rates, the amount payable to the vendor on settlement was $566,920.47. [38] A statement of account subsequently issued by Hancock Alldis indicates that the following additional amounts were also payable in connection with the purchase: $21,735.00 for stamp duty on the contract for sale of land, transfer and a "Mortgage to Fonseca", a $60.00 registration fee in respect of a caveat, $2,439.00 for registration and stamp duty in relation to the Perpetual Trustees mortgage and Hancock Alldis' fees of $1,438.05. [39]
8. On 2 October 2001, Hancock Alldis wrote to Ali in relation to the purchase of the Bardwell Property stating: "We confirm your instructions that you handed direct to the Vendor the balance of purchase monies in the sum of $105,000.00." [40]
9. A revised settlement sheet prepared by Hancock Alldis dated 19 September 2001 deducts the $105,000 that the firm was instructed Ali had paid directly to the vendor, reducing the amount payable to the vendor on settlement to $461,290.47. [41]
10. The settlement proceeded, and Ali became the registered proprietor of the Bardwell Property on 1 November 2001 as I have referred to above. There is no evidence to suggest that Hancock Alldis' settlement figures were adjusted further after 19 September 2001 or that the vendors required payment of an amount greater than $461,290.47 on settlement.
11. In his affidavit sworn on 27 May 2015, Ali deposed that he paid $100,000 in cash to the vendor of the Bardwell Property because he was eager to lock in the sale. [42] In his affidavit sworn on 23 February 2017, Ali deposed that: [43] 1. shortly before he departed Lebanon for Australia in 1997, his father had given him US$75,000 for himself and the same amount for Ali to give to his sister when he arrived in Australia; 2. when he moved to Australia, he brought both his own share and his sister's share of that money; 3. on arrival in Australia, he gave his sister "her share of the money" and kept his own share in cash at his sister's home in Auburn where he was living; 4. after he began working in Australia, Ali withdrew his entire wage from his bank account each week in cash. Any cash that he did not spend was added to his cash savings at the Auburn property; 5. he took the cash with him when he moved to another property owned by his sister in Guildford in about mid-2001. He continued withdrawing his wages in cash and adding to any excess cash to the pool of cash that was now kept at Guildford; and 6. by about July or August 2001, he had saved approximately $100,000. At that time, he started to look for a property to buy and he paid the cash to the vendor of the Bardwell Property as a deposit on the same day that he verbally agreed to purchase the property.
12. In cross-examination, Ali referred to this cash payment as being an amount of $105,000, consistently with Hancock Alldis' letter dated 2 October 2001, rather than $100,000. [44] He described having kept the growing pile of cash in a locked cupboard in his sister's home where he lived before he purchased the Bardwell Property in November 2001. Ali gave evidence that he was not interested in the interest that he could have earned on the money if it had been deposited with a bank rather than kept in cash. He believed the interest rate was low. He was hoping to buy a property and said that he had been advised by a friend "to take it out and leave it with me [that is, keep it with himself] as cash, because when you have cash, you can get a better bargain than having money in the bank, you can go out and buy something better." Ali "always had the idea that I could buy something straight away and I need the money and it's ready for me to buy". [45]
13. Ali gave no account of the source of funds from which the stamp duty and registration fees referred to at [43] above were paid. In cross-examination, Ali confirmed that the $105,000 cash payment referred to above was the only payment that he made out of his own funds towards the purchase of the Bardwell Property. [46] In his affidavits sworn on 7 July 2015 and 23 February 2017, Ali denied having borrowed any funds from Orlando to purchase the Bardwell Property. At that stage, Ali did not even acknowledge that Orlando had paid the $14,500 deposit, although he did accept that Orlando had paid Hancock Alldis' fees. [47]
14. In his 9 May 2019 affidavit, Ali accepted that Orlando had paid the $14,500 deposit (which he described as a loan) and deposed that Orlando may have lent him other money to purchase the Bardwell Property. Ali said that this was reflected in a mortgage that he had signed securing repayment of $50,000. Ali immediately added that, shortly after the purchase of the property, Orlando had told him that he did not need to repay the loan. [48]
15. Ali had earlier denied signing the $50,000 mortgage when responding to a notice to admit facts. Ali was given the opportunity to explain this earlier denial in cross-examination, but no satisfactory explanation emerged. Ali denied changing his position after the defendants served a report of a forensic document examiner concerning his signatures on the mortgage and an affidavit of the solicitor whose signature appears on the mortgage as a witness to Ali's signature. Despite the cross-examiner showing Ali his denial in his response to the notice to admit facts, Ali asserted in cross-examination: "I never denied signing the mortgage paper at all from day 1." [49]
16. In cross-examination, Ali gave evidence seemingly inconsistent with his affidavit evidence referred to immediately above, in that he denied that he had ever received $50,000. However, it was not entirely clear whether he was denying that a loan of $50,000 had been made to him or whether he was merely denying that a sum of $50,000 had been paid directly to him by way of loan (as opposed to paid to third parties to discharge his liabilities for the $14,500 deposit, stamp duty, registration fees and solicitors' fees). [50] Consistently with Ali's 19 May 2019 affidavit, the plaintiffs' closing submissions accepted that Orlando and Vilma had provided financial assistance of about $50,000 for the purchase of the Bardwell Property and that this was reflected in the $50,000 mortgage. [51]
17. The $50,000 mortgage is not dated. [52] A licensed conveyancer employed by Hancock Alldis witnessed the signatures of both the mortgagor and mortgagee. Hancock Alldis lodged a caveat over the Bardwell Property on 11 December 2001 on behalf of Vilma, claiming an interest or estate in the land pursuant to a mortgage between herself (as mortgagee) and Ali (as mortgagor) dated 26 September 2001. [53]
18. Orlando gave a very different account of the transaction by which Ali became the registered proprietor of the Bardwell Property in November 2001.
19. In his affidavit sworn on 8 September 2017, Orlando deposed that he said to Ali words to the following effect: [54] "I want to buy a house but my broker says I cannot get a loan at the moment. He told me that I need to wait about six months. I do not want to wait. Here is my plan. I want you to buy the house in your name and take out a mortgage in your name. I will lend you some money to help you buy the house and pay the deposit. You will need to get a mortgage but I will pay the mortgage repayments. You can live in the house for nothing for one year. As soon as I can borrow the money from the bank, you have to transfer the house back to me. I will pay out your mortgage."
20. Orlando deposed that Ali had agreed to this, and that Orlando had then said that he would ask his solicitor to prepare "all of the documents". [55]
21. In his affidavit affirmed on 18 September 2018, Orlando added to the account of his conversation with Ali in 2001 that he had given in his 8 September 2017 affidavit. Orlando deposed that the conversation also included words to the following effect: [56] "The property is 38 Dowling Street Bardwell Valley. To live there rent-free you have to give me work."
22. I will refer to the agreement that Orlando claims to have entered into with Ali as the alleged September 2001 agreement. It was not documented by Hancock Alldis or, indeed, at all. In cross-examination, Orlando gave three inconsistent answers about why the solicitors he had engaged did not document the alleged agreement (my emphasis): [57] "Q. … as you say, you had a solicitor available to you to prepare all of the documents to record this deal that you had with Ali, didn't you? A. Yes. Q. Why didn't you get your solicitors, then, to record in an agreement that Ali had to transfer the house back to you? A. Because I don't think that it's necessary because that's the agreement I got with Ali it's going to be transferred. Q. It's not necessary, you could trust him; is that it? A. Yeah. Q. It was not necessary to get anything in writing from Ali about this agreement? A. That's the big mistake I make, not making everything in writing. Q. Is the reason why you say you didn't get this deal recorded in writing by your solicitors was because you say you could trust Ali? A. No, because the solicitor never asked me to do that document. If the solicitor asked me to do that document, I do it. Q. You claim you told your solicitors about this deal with Ali where Ali would buy this property on your behalf and transfer it back to you? A. Yes. Q. You say you told your solicitors about that? A. To be transferred, the property to me, later on? Q. Yes. A. I can't remember if I told the solicitors. Q. Is there any reason why you wouldn't have told your solicitors about this arrangement? A. I can't remember."
23. Orlando gave evidence that he had negotiated the purchase price for the Bardwell Property through his mortgage broker and paid the deposit of $14,500. Ali had not contributed any money to the purchase. Orlando and Vilma had lent Ali an amount of $110,000 to purchase the Bardwell Property, which was recorded in two separate loans in the amounts of $50,000 and $60,000. [58]
24. The $50,000 loan is the subject of the mortgage I have already referred to at [50]-[53] above.
25. In relation to the alleged $60,000 loan, the defendants rely on correspondence from Hancock Alldis to Vilma dated 9 April 2002 referring to an additional advance of $60,000 and a letter from Hancock Alldis to Ali dated 19 June 2002. The letter to Vilma dated 9 April 2002 encloses a copy of an invoice said to have been sent to Ali for Hancock Alldis' fees of $554.95 in respect of "the additional advance of $60,000". The enclosed invoice refers to a "Variation of Mortgage". [59] The letter dated 19 June 2002 is addressed to Ali. It refers to previous correspondence concerning the "Variation of Mortgage to Vilma Fonseca for the additional $60,000 loan advance" and demands payment of Hancock Alldis' tax invoice immediately. The letter also states: "Our client has also given us instruction to request the repayment of the loan amount in full within three months, otherwise proceedings for recovery will be commenced." [60]
26. There is no evidence of any variation of mortgage signed by Vilma and Ali. The only documentary evidence concerning the alleged loan of $60,000 is a handwritten document dated 6 November 2002 on "JAF Ambassador" letterhead. The handwriting is Vilma's. It states: [61] "I'm Ali Itawi of 38 Dowling Street Arncliffe 2144 NSW, Declaret that I recibe from Orlando Fonseca of 8 Goolagong Pl, Menai 2234 NSW, as loan, the sum of $60,000 (sixty thousand dollars) and I agree to put my house of 38 Dowling St Arncliffe as garante, and all the money that will be relize from Austar Finance will be deposit direct to Orlando Fonseca solicitors Trust Account."
27. In his affidavit affirmed on 9 May 2019, Ali said that he did not recall Orlando lending him a further $60,000 in about April 2002. Ali also denied signing the handwritten document dated 6 November 2002. [62]
28. It was put to Orlando in cross-examination that the agreement that he claims to have made with Ali was not consistent with the $50,000 mortgage and the further mortgage that Orlando claims Ali signed in November 2002, one year after the acquisition of the Bardwell Property. Orlando gave the following evidence: [63] "Q. We just went through this process a few minutes ago and I think you agreed with me when you added up everything that you'd - you say you paid-- A. Yeah, if you add it up there, it's at least 150. Q. Right. Why didn't you get a mortgage for $150,000? A. I don't remember why or not did that document. Q. My other question is this: if Mr Itawi was buying this property on your behalf, why were you getting a mortgage from him in respect of a property that he was buying for you? A. Why you mean the mortgage for the $50,000? Q. Yes, because on your version of events, Mr Itawi is buying this house for you, isn't he? A. Yes. Q. Right. Why do you need a mortgage from him for a house that he's buying for you? A. If in case he doesn't want to be transferred later to us. Q. Right. Well, if he doesn't want to, later, if he doesn't want to agree to transfer it, didn't you need an agreement so that he would be made to transfer it to you? A. I did that agreement verbally. Q. But why have a written agreement for the $50,000, but only a verbal agreement for the deal to transfer the property back to you? A. That's what I tell you, I can't remember why the lawyer doesn't do for 150. Q. Now, you wanted to talk about the - sorry - you say in addition to the 50,000, there was also 60,000, don't you? A. Yes. Q. But I want to suggest to you that the agreement you rely on for the 60,000 came almost 12 months after the transaction for the purchase by Mr Itawi of the Bardwell Valley property was completed, didn't it? A. I can't remember. Q. Well, we were just there. I want to suggest to you that the property was transferred into Mr Itawi's name - your Honour, it is court book 656 - at least it was registered - I want to suggest to you that the transfer of that property was registered into Mr Itawi's name on 5 November 2001, the transfer was stamped on 26 September 2001 and the $60,000 document you rely upon was not dated until 6 November 2002, more than 12 months after the transfer to Mr Itawi was stamped? A. I can't remember at the time, the date. Q. And the document that you rely upon for what you say was part of the $110,000, that is the $60,000, actually says these words, 'I, Ali Itawi, declare that I receive from Orlando Fonseca as loaned, the sum of $60,000 and I agree to put my house of 38 Dowling Street ..(not transcribable).. as guarantee.' Do you see that? Sorry, you don't see that. Do you recall that that's what the document says? A. Yeah. Q. So, that seems to be recording something that is happening on 6 November 2002, doesn't it? A. I can't remember the date, the time. Q. See, if you really had advanced $60,000 with the $50,000, you would have got a mortgage for $110,000, wouldn't you? A. I think - I can't remember why I not do the 110 or 150 my lawyer to the mortgage. Q. Is it because it didn't happen? Is that why you can't remember it? A. It happened, mate. This happened. Q. See, what I want to suggest to you is that if it was you who had provided the $110,000 rather than Mr Itawi providing the $110,000, you would have got your solicitors to have produced a mortgage for $110,000, wouldn't you? A. Probably we do a mistake not produce that document, but we put that money. Q. And if, as you say, the deal was that Mr Itawi was buying this property for you and was going to transfer it to you at a later period of time, you would have got your solicitors to have recorded that in an agreement in writing, wouldn't you? A. I don't know why they not do that. Q. Well, I suggest to you the reason why you didn't do it is because it never happened? A. That's what you think."
29. It was also put to Orlando in cross-examination that he had no record of having advanced $60,000 to Ali in November 2002. Orlando's answers in response to this series of questions were argumentative and incoherent: [64] "Q. You don't have any record of advancing $60,000 to Mr Itawi in November 2002, do you? A. What records? Q. You don't have any record of advancing $60,000 to Mr Itawi in November 2002, do you? A. Probably ..(not transcribable).. in the accounts of my companies ..(not transcribable).. the money and we took the money. Q. You haven't - you've got access to the accounts of your companies, don't you? A. Yes. Q. Including access to the accounts of your companies for Clean & Clear - yes? A. Yes. Q. So, you could have, if you had a record of advancing $60,000 to Mr Itawi in November 2002, you could have produced those accounts showing that advance, couldn't you? A. Do you know why I not use that, because you friend think Cassaniti, he's got all the statement, he's got all the documents for my companies for the last ten years. Q. You just said you had access to them. I'm not asking you whether Mr Cassaniti has also got access, but you said you had access to them, didn't you? A. That's correct, yeah. Q. So, you could have produced your copies of the accounts-- A. How can I produce the copies now? Q. Now, you have - you and your solicitors have subpoenaed many bank documents for these proceedings, haven't they? A. Yes. Q. You could have subpoenaed bank records showing the $60,000 coming out of one of your company's accounts and going into Mr Itawi's account. You haven't done that, have you? A. Reason because we write some - so many cheques, we take cash and move money from one account to the other account. I don't know if you - my solicitors gave the accounts from my companies to show you the money withdraw from their companies, the 60 and the 50,000 withdraw in cash to Ali Itawi."
30. Following the questions and answers referred to immediately above, it was put to Orlando that his evidence that he and Vilma had lent $110,000 to Ali was false. Orlando replied: "That's what you think. Can you prove that?" [65]
31. Adding the $50,000 loan and the alleged $60,000 loan referred to above to the $14,500 deposit, stamp duty and legal fees that he paid, Orlando claimed in cross-examination to have lent Ali about $150,000 in total for the acquisition of the Bardwell Property. [66] Orlando said that he (not Ali) had made the $105,000 payment directly the vendor. [67] Orlando gave the following evidence about this in cross-examination: [68] "Q. How do you say you paid that $105,000? Do you say you gave it to your solicitors? A. It was paid to the vendor. Q. Who do you say paid it to the vendor: you or Mr Itawi? A. I pay myself. Mr Itawi never meet the owner of the property. Q. So you're the one who paid it, not Mr Itawi? A. That's correct Q. Do you know why, then, there is a letter from the solicitors who acted on this matter who write to Mr Itawi saying, 'Dear Mr Itawi, we confirm your instructions that you handed direct to the vendor the balance of purchase moneys in the sum of $105,000'? Do you know why it referred to Mr Itawi and not to you? A. Because when we do the paperwork, we put that Ali Itawi as the buyer but the person who buy the property was myself and I'm the one that put the money. Q. That doesn't explain, though, does it, why the letter didn't say, "We confirm your instructions that Mr Fonseca handed direct to the vendor the balance of purchase moneys in the sum of $105,000 on your behalf"? Why didn't the letter from the solicitors say that? A. I don't remember why. Q. Do you claim that you gave this $105,000 to the vendors before settlement? A. Of course before settlement. Q. Why do you say it was necessary to give the vendors $105,000 before settlement? A. Because it's like the deposit. Q. You'd already paid the deposit? That's your evidence, isn't it, you already paid the deposit? A. I had given $5,800/$5,000. Q. No. In your evidence you say that the deposit was $14,500, don't you? A. It's not $14,000. I think this is what we paid for the lawyers. Q. I suggest that you got a settlement sheet from your solicitors showing the deposit as $14,500, didn't you? A. I don't remember that."
32. Orlando's claim in cross-examination that he personally paid the $105,000 to the vendor is inconsistent with his affidavit sworn on 8 September 2017 in which he had deposed that he had not dealt directly with the vendor of the Bardwell Property and that he had conducted the transaction through his broker, Mr Ali Hussain. [69]
33. As referred to at [55] above, Orlando gave evidence that, at the time that he says he wanted to buy the Bardwell Property in 2001, his broker had told him that he "cannot get a loan at the moment" and that he would need to wait about six months before he could get a loan. In cross-examination, Orlando gave inconsistent evidence about whether his broker had told him that he could not get a loan because he first needed to save a percentage of the purchase price for the Bardwell Property before he could borrow the remainder (probably 20 per cent, according to Orlando), or because he already had too many loans. [70] The second answer (that Orlando already had too many loans) was given only after it was put to him that the $150,000 that he claims to have lent to Ali to fund the November 2001 purchase of the Bardwell Property was equivalent to 26 per cent of the purchase price, and that Orlando could have used those funds to acquire the property in his own name with a loan for the balance of the purchase price.
34. Orlando's broker, Mr Ali Hussain, was not called to give evidence.
35. It was put to Orlando in cross-examination that the agreement that he claims to have made with Ali when the Bardwell Property was acquired in November 2001 was a story that Orlando had made up at some time after these proceedings were commenced in May 2015. Orlando was aware that the proceedings had been commenced in May 2015 and he knew that Ali's allegations included that Orlando had asked him to transfer the Bardwell Property to Orlando in November 2002 on the basis of Orlando's promise to transfer the property back to Ali at a later time. The first affidavit served on behalf of the defendants was an affidavit of Jeffrey sworn on 1 July 2015. Jeffrey spoke with Orlando for the purpose of obtaining information to swear that affidavit. In cross-examination, Jeffrey accepted that he would have ensured that Orlando had first been provided with a copy of Ali's 27 May 2015 affidavit or that he had explained to Orlando the contents of it. Jeffrey also accepted that he would have been careful to record what Orlando told him at the time. The information recorded in Jeffrey's 1 July 2015 affidavit in relation to Ali's claims about the Bardwell Property was that Ali had transferred the property to Orlando in January 2003 in satisfaction of two loans that Ali owed to Orlando. Jeffrey nevertheless disputed that Orlando had not told him for the purpose of his 1 July 2015 affidavit that Ali had purchased the Bardwell Property on Orlando's behalf in November 2001. In cross-examination, Orlando could not recall whether he had told Jeffrey for the purpose of Jeffrey's 1 July 2015 affidavit that Ali had purchased the Bardwell Property on behalf of Orlando in November 2001, as Orlando now claims. [71]
36. It was put to Orlando in cross-examination that he did not in fact make any agreement or deal with Ali for Ali to purchase the Bardwell Property in his name on Orlando's behalf and to transfer it to Orlando later. Orlando answered: "I make the deal from the first day we purchased the property with Ali". [72] Ali denied making the alleged "deal". [73]

Ali resides in the Bardwell Property: November 2001 to early 2003

1. It is common ground that Ali resided in the Bardwell Property from completion of the purchase in November 2001.
2. There is a dispute between the parties about who made the Perpetual Trustees mortgage repayments during the period until February 2003 when the Bardwell Property was transferred to Orlando.
3. In his affidavit sworn on 8 September 2017, Orlando deposed: [74] "In late 2001, Ali Itawi bought the Bardwell property for about $580,000. I negotiated the amount of the purchase price myself. I did not deal directly the vendors. I dealt with Ali Hussain. At [251] of OF-1 is a copy of a settlement statement with the date '19/09/2001'. I arranged for Hancock Alldis Lawyers to act for Ali Itawi in relation to the conveyance. Kevin Hancock was the solicitor but I understand he has now passed away. I paid the mortgage repayments on this loan using money from Endeavour. I do not recall how much I paid. I no longer have copies of Endeavour's bank statements from this time to show these mortgage payments."
4. I have set out these two paragraphs in full (excluding sentences that were not read) so that the context of Orlando's evidence that he made the mortgage repayments is clear. It is plain from that context that Orlando was giving evidence that from the time Ali purchased the Bardwell Property in November 2001, Orlando had made the mortgage payments, using funds of the Endeavour Cleaning Services business or Endeavour Cleaning Group Pty Ltd. I note that the business name Endeavour Cleaning Services was first registered in September 2003 and Endeavour Cleaning Group Pty Ltd was incorporated on 6 April 2006. [75]
5. Ali affirmed an affidavit on 9 May 2019 responding to Orlando's affidavit of 8 September 2017. Paragraph 72 of Ali's 9 May 2019 affidavit responded specifically to the two paragraphs of Orlando's affidavit that I have set out above. The parts of paragraph 72 read by the plaintiffs at the final hearing did not include any response to Orlando's evidence that he made the mortgage repayments on the Bardwell Property from November 2001 onwards. [76] Paragraph 72 included the following further sentence that was not read by the plaintiffs, but was the subject of cross-examination: "'He [Orlando] admits that he paid the mortgage repayments on the loan using money from Endeavour, which I say is consistent with our agreement about paying off my house.'" [77]
6. On 10 November 2020, Ali affirmed an affidavit in which he deposed that he had assumed, when reading the two paragraphs of Orlando's affidavit referred to above, that Orlando was referring to the mortgage payments after the Bardwell Property was transferred to Orlando in 2003. Ali deposed: [78] "Having read those paragraphs more carefully, it is now apparent to me that what Orlando may be saying in those paragraphs is that he made the mortgage repayments on the loan that was in my name before the property was transferred to him in 2003. If that is what he is saying, it is not correct. I paid my mortgage repayments on the Bardwell Property up until the date of the transfer of the Bardwell Property from me to Orlando."
7. Ali annexed to his 10 November 2020 affidavit a copy of a statement of account prepared by Austar and addressed to him at the Bardwell Property. The statement of account is a mortgage account in respect of a loan commencing on 19 September 2001. The amount of the loan was $464,000. The statement relates to the period 1 July 2002 to 31 December 2002. The statement records 12 payments of $1,337.95 made during this period. Each payment is described on the statement as "Payment 1". The statement does not identify the source of the payment. Ali's evidence in his 10 November 2020 affidavit and in cross-examination is that he made those payments. The amount owing as at 31 December 2002 was $464,310. [79]
8. The statement of account records three dishonoured payments during the period from 1 July to 21 December 2002. It appears from the evidence referred to at [107] below that the mortgagee had commenced proceedings prior to completion of Ali's transfer of the property to Orlando in January 2003.
9. In cross-examination, Ali gave evidence that: "I paid the mortgage from my account. … I paid it and it shows on my statement I paid it, and the reason why I got one dishonoured payment because was short about $15 from my account. That's exactly what happened." [80] Ali's assertion that only one payment had been dishonoured is plainly wrong, as revealed by the statement annexed to his own affidavit. However, it is clear from this evidence that the manner in which Ali says that he paid the Bardwell Property mortgage during the period from November 2001 to January 2003 was by transferring funds from his bank account to the mortgage account.
10. Orlando was cross-examined about his claim to have made the Bardwell Property mortgage repayments during the period in which the property was registered in Ali's name: [81] "Q. Now, you claim, don't you, that you paid all the mortgage payments on the Bardwell Valley property after Mr Itawi had purchased the property in September 2001? A. Yes. Q. You say you did this because of what you say was the agreement that you had with Mr Itawi, that he would buy this property on your behalf; correct? A. Correct. Q. Now, if that was correct, you would never have had - sorry, you would have wanted to have received the loan statements that Mr Itawi had for this mortgage, so that you could monitor the loan account, wouldn't you? A. Can you ask the question again? Q. Yes. If, as you claim, Mr Itawi bought the Bardwell Valley property on your behalf-- A. Mm-hmm. Q. --and if, as you claim, you'd said you were going to be making all the mortgage payments, you would have wanted the bank - the mortgage statements to have been sent to your address, wouldn't you? A. I think the statements coming to my address. … Q. And I want to suggest to you, Mr Fonseca, that up until at least 31 December 2002, the mortgage statements were being sent to the address of Mr A Itawi, 38 Dowling Street, Arncliffe, New South Wales, 2205, weren't they? A. I can't remember. Q. And that's because, Mr Fonseca, it's simply not true, is it, that you were making the mortgage payments prior to the property being transferred to you by Mr Itawi? A. (No verbal reply) Q. It's not true, is it? A. What do you mean it's not true? I can ask the bank, I'll give you statement who's been paying the loans for all the time. Q. So, you could produce a bank statement showing that you were making the mortgage payments on this property when Mr - when the property was in Mr Itawi's name? Is that what you're telling the Court? A. Whatever repayments I've been making, we can request the statements from the banks. Yes."
11. I note the inconsistency between Orlando's two answers that I have emphasised in the extract above.
12. Senior counsel for the plaintiff then called for "any bank statements showing any payments by any of the Fonseca entities to the mortgage account in Mr Itawi's name prior to December 2002". The defendants' response was that there was nothing to produce. [82]
13. In his affidavits sworn on 27 May 2015 and affirmed on 9 May 2015, Ali deposed that he made various improvements to the Bardwell Property at his own expense during the period from 2001 to 2015. In the period prior to 2003, Ali deposed that he installed new curtains, installed two new air conditioning units and carried out concrete work at the back of the house, at his own cost. [83]

Ali's move to work with Tempo and continued referral of work to the Fonseca businesses: 2002

1. In about 2002, Prestige was taken over by another cleaning contracting company called Tempo. Ali's role as Area Manager continued unchanged. [84] Ali worked for Tempo from the time that it took over Prestige in 2002 until about 2004 or 2005.
2. According to Orlando, he and Ali continued the same practice they had adopted while Ali was an Area Manager with Prestige. When Ali (on behalf of Tempo) engaged Orlando's business to undertake cleaning work, Ali would arrange the cleaning workers and Orlando would cause the wages for those workers and for Ali, as calculated by Ali, to be paid into Ali's bank account so that Ali could pay the workers in cash. [85] This is consistent with Ali's evidence of their arrangements for the payment of the workers. Ali described the Fonseca businesses as sub-contractors of Tempo and the cleaning workers as sub-sub-contractors. [86]
3. Orlando also deposed that he continued to pay to Ali between 15 per cent and 20 per cent of the profits that Orlando's business made on Tempo jobs allocated to him by Ali, calculated as the difference between the amount that Tempo paid to Orlando's business in any given period and the amount that Orlando's business paid to Ali to cover the wages of workers in that same period. [87]
4. In his affidavit of 9 May 2019, Ali deposed that Orlando did not pay him 15 per cent to 20 per cent of profits during the period in which Ali worked for Tempo. [88] It is not clear whether, by this evidence, Ali was disputing that Orlando had agreed to pay him a percentage of profits as opposed to a dollar amount (as referred to at [35] above), or whether he disputing that Orlando had paid him profits that he claims to have been entitled to, or both.
5. In his affidavit affirmed on 18 December 2019, Orlando introduced a further variation to his account of the arrangements he made with Ali concerning the payment of cleaning workers in the whole of the period prior to January 2003. Orlando deposed that, when he was arranging to pay money into Ali's account so that Ali could pay workers, Ali frequently asked Orlando to pay a specified extra amount and promised to repay Orlando. [89] In his affidavit affirmed on 12 February 2020, Ali denied asking for these additional amounts. [90] Orlando introduced this variation into his account of the arrangements in the context of putting forward an explanation for why he did not pay any moneys to Ali in consideration for the transfer of the Bardwell Property in January 2003.
6. It is not in dispute that Orlando periodically caused cash deposits to be made into Ali's accounts. The defendants adduced evidence of receipts for some deposits made during the period from 2002 until about 2010, although they did not put these receipts forward as a complete record of all such cash payments. In his affidavit affirmed on 9 May 2019, Ali said that these cash payments were for the cleaning workers he arranged to perform the work for jobs that he caused to be subcontracted to Orlando's businesses. [91] The receipts in evidence for cash payments made in 2002 totalled $6,800 paid during the period from 20 July 2002 to 20 December 2002. During that same period, additional payments totalling $26,370 were made from Jeffrey's account to Ali's accounts. [92]

Alleged partnership agreement and transfer of the Bardwell Property to Orlando: November 2002 to January 2003

1. On 11 December 2002, Ali signed a contract for the sale of the Bardwell Property to Orlando. [93] The contract was completed on 21 January 2003 [94] and Orlando became the registered proprietor of the Bardwell Property on 11 February 2003. [95]
2. There is a dispute between Ali and Orlando about the circumstances in which and the terms on which the Bardwell Property was transferred to Orlando.
3. Ali gave evidence that Orlando frequently asked Ali to go into partnership with him. [96] In his affidavit sworn on 27 May 2015, Ali gave evidence of a conversation that says he had with Orlando in about November 2002. [97] According to Ali, Orlando asked him again to become his partner and said that he wanted to borrow money in order to be able to hire more workers and undertake more work. Orlando proposed that: [98] 1. he would take out a bank loan in order to fund the cost of hiring more workers, as the workers have to be paid before the subcontractor is paid; 2. Ali would transfer the Bardwell Property to Orlando so that Orlando could secure that loan against the property so as to achieve a lower interest rate; 3. Orlando would not pay Ali for the Bardwell Property, but would take out a loan in his own name to refinance Ali's mortgage over the property (in addition to a further loan to be taken out later to fund the payroll of his expanded workforce); 4. Ali would be entitled to 20 per cent of the profits of the business (or 50 per cent if Ali came to work directly with Orlando); 5. Orlando would pay Ali's share of those profits directly into the part of the mortgage over the Bardwell Property that Ali was responsible for; 6. Orlando would also pay to Ali "the shortfall on the transfer of the property" but would need five years to do this in order to free up money to expand in the meantime; and 7. eventually, the Bardwell Property would be transferred back to Ali with any mortgage paid off.
4. Ali says that he agreed to this proposal. [99] It is convenient to refer to this as the alleged November 2002 agreement.
5. In cross-examination, Ali was asked what he understood Orlando to be referring to when he said (according to Ali) that he would pay to Ali "the shortfall on the transfer of the property" but that he would need time to do so. It is convenient to set out the whole of the relevant exchange in cross-examination (my emphasis in bold, with the italicised text indicating cross-examination about a different conversation that Ali says he had with Orlando in September 2009): [100] "Q. Now, in the same volume that you have in front of you, and this is volume 1 of the court book, at page 133 is your affidavit of 27 May 2015. Please turn to that? A. Page again please? Q. 133 is the first page of that affidavit. A. Yes. Q. If you go to page 137 at the bottom there is the start of paragraph 26 - tell me when you've found it please? A. Yep. Q. If you just turn the page, you will see that's a very long paragraph and then at page 139 - A. Yeah. Q. --towards the top is where you start or where you say that in about November 2002, you had a conversation with Orlando. Are you there at that spot in the affidavit? A. Yeah. Q. Then, in the course of this long conversation, on the next page, this is page 140 of the court book … Orlando says, and I quote, 'I will need some time to grow.' Do you see that? A. Yes. Q. Now in that passage you have there of Orlando speaking, if you keep reading it, you see that he then says towards the end of that passage, 'I'll also pay you the shortfall on the transfer of the property, but I'll need five years for that. That's to free up money to expand in the meantime.' Do you see that? A. Yeah. Q. What did you think he meant by the shortfall? A. Anything that he wants to pay me, he pay me in five years' time, not that time. Q. Anything he wants to pay, is that what you said? A. Anything he wants to pay me - Q. And if he wanted to pay you a dollar, that would have been okay, too? A. I never disagree on any conversation I had with myself and Orlando in regard to the property. Q. I'm really asking you now about an amount of money, you see. I'm asking you what you thought he meant when you say he used the words 'I'll also pay you the shortfall on the transfer of the property, but I'll need five years for that.' What did you think he meant by that? A. I didn't put a figure on five years. On trust, as I said from day 1, we agreed on doing this, all this exercise, to get what we're going to get after selling the house. Q. You didn't have a figure in your mind at all? A. None at all. Q. And you didn't know what figure Orlando had in his mind, if any; is that right? A. Not at all. All my understanding was - Q. But neither - I'm sorry. Go on? A. Sorry. All my understanding was that I'll have my property back as soon as it paid off. That's all I understood at that time. Q. If you continue on in this affidavit at paragraph 51, you come to a paragraph where you recite conversation you had with Orlando in about September 2009 concerning Bardwell Valley and the Cleaning Doctor? A. Yes. Q. Now, at the end of that page - this is page 147 of the book - in the course of that conversation, you say - you write there that you said, 'You also owe me the rest of the purchase price on my house.' Then you say that Orlando replied, 'Yes. The business can't afford to pay this at the moment. I agree it's owed though.' You've read that now? A. Yes, I do. Q. What did you mean by 'you still owe me the rest of the purchase price'? A. We had our agreement and he dishonoured the agreement and that's why I was talking to him about my debt with him to be honoured. Q. Mr Itawi, you just said a short time ago that you didn't know what price was on the contract and that you and Orlando hadn't talked about any particular price-- A. I'm not talking about the price, sorry. Q. So, when you used the words - you say you used the words to him, 'You still owe me the purchase' - sorry - 'You also still owe me the rest of the purchase price on my house', what did you mean when you used the word 'purchase price'? A. Because he need to transfer the property back to me. Q. Are you saying that they are the same things, are you? A. They're the same thing. Q. I'm just-- A. Not the money thing. I think to sign the property back to me. Q. Just go back to page 140. This is the November 2002 conversation. At about a third of the way down, Orlando says, 'It would go like this', and then he keep talking. Do you see that passage? A. Which line again, please? Q. Page 140, about a third of the way down, where Orlando starts talking, 'It would go like this', and he continues talking; do you see that? A. I can't see it, sorry. One second. Q. You are at page 140 of the book? A. I'm at 140. It got me, Orlando, me, Orlando, me, Orlando ..(not transcribable).. Q. So, the top of the page there's 'me' then there's 'Orlando'-- A. Yes. Q. --do you see, 'Orlando: It would go like this'? A. 'It would go like this', yeah. Q. Then he asked you or suggest to you that you transfer the property to him, he pays out the mortgage, he puts on a new mortgage in the short term and then he says, 'And you will end up getting it back with any mortgage paid out soon.' Do you see that? A. Yeah. Q. You say he's referring there to you getting the property back? A. Yes. Q. Then about three or four inches down the page where Orlando starts talking again, he says, 'I will need some time to grow.' Do you see that passage again? A. Yeah. Q. In that passage, he says, 'I'll also pay you the shortfall on the transfer, but need - I'll need five years for that.' Do you see that passage? A. Yes. Q. You're writing here, aren't you, in this affidavit, you are writing that he said that he would do both things, he would transfer the property back to you; 'mortgage-free soon', and will also pay you the shortfall of the transfer. Don't you agree that you were saying both those things? A. Can I answer, please, yeah, he borrowed more money on the house and I been paying the mortgage back. So, I've been paying his money that he took from the house extra. So, I need that difference back to me, because I've been paying for it all this time. All these years I've been paying for it. My house was $465,000. I had to pay the mortgage. I was paying for the $800,000 mortgage. Q. So, do you say now that your deal with him did not involve him paying you the balance of the purchase price that was on the contract? A. We didn't talk about the balance whatsoever, myself and Orlando. Q. You never said to him - you never said to him that he still owed you the rest of the purchase price, did you? A. What I meant by the purchase price, it's a different. I was paying for mortgage. If you can see when I start paying for the mortgage was $1,300, then I end up paying $15,000 a month for the mortgage, including the car rent and everything. That increased dramatically and that different, I only supposed to pay 1300 for I give my property at that time, not the whole amount for the money he borrowed under that house. Q. The conversation that you claim you had with him in November 2002 did not happen, Mr Itawi; what do you say to that? A. What do you mean? I didn't understand what you are trying to say. Q. The conversation that you claimed you had with Mr Orlando concerning the Bardwell property in November 2002, never happened? A. What do you mean never what happened? Which conversation, sorry? Q. I'm saying - I'm suggesting to you it never happened. Do you agree or disagree? A. I don't understand what conversation you're referring to. Q. The conversation that you set out in your affidavit of 27 May 2015 which starts off at page 139 of the court book-- A. Yeah. Q. -- it never happened, Mr Itawi? A. It did happen, Mr Frank."
6. Within that relatively short series of questions and answers in cross-examination, Ali gave inconsistent evidence about what he understood Orlando meant by the "shortfall" on the transfer of the Bardwell Property that, according to Ali, Orlando agreed he would pay to Ali. Ali initially said that he thought the shortfall was "anything he [Orlando] wants to pay me" and that Ali had no amount in mind and did not understand Orlando to have any amount in mind. A short time later, Ali described the shortfall as the "difference" between amounts that he said he had paid for "the $800,000 mortgage" secured against the Bardwell Property and the repayments for Ali's "$465,000 mortgage".
7. In relation to the second of Ali's two inconsistent answers, I note that there is no evidence of there being any mortgage secured against the Bardwell Property as at November 2002 other than the $464,000 mortgage securing the loan that Ali had taken out to purchase the property in November 2001, under which $464,310 was owing as at 31 December 2002. Moreover, there is no evidence of any $800,000 loan ever having been secured by mortgage against the Bardwell Property, even after the property was transferred to Orlando in January 2003. [101]
8. The second of Ali's two inconsistent answers is also inconsistent with Ali's affidavit affirmed on 10 November 2020 in which he disputed Orlando's evidence that he (that is, Orlando) had made the mortgage payments for the Bardwell Property only insofar as Orlando claimed to have done so for the period between Ali's purchase of the property in November 2001 and the transfer of the property to Orlando in January 2003. Ali did not suggest that he (that is, Ali) had paid the mortgage, or any part of the mortgage in the period after the Bardwell Property was transferred to Orlando. In cross-examination the day prior to giving the evidence set out at [96] above, Ali had given the following evidence: "… Orlando paid after he bought the house, the mortgage. I didn't have to pay after. Before … Before I paid it, after that I didn't have to pay. He has to pay." [102]
9. Orlando does not recall asking Ali to go into partnership with him. Indeed, he says that he would not have asked Ali to go into partnership with him because he liked Ali, but did not trust him. [103]
10. Orlando denied that he had needed to borrow money for the Fonseca businesses in late 2002 and denied the alleged November 2002 agreement. According to Orlando, his dealings with Ali about the Bardwell Property were on the terms referred to [54]-[56] above. He had allowed Ali to live at the Bardwell Property rent-free for many years, but he had never promised to give Ali the property. Orlando acknowledged that he would have said to Ali prior to November 2001 that he would help him to buy the Bardwell Property, but maintained that the way he was to help Ali was as part of the "deal" referred to [54]-[56] above. Orlando specifically denied telling Ali in November 2002 that the Bardwell Property would "still be yours" or that Ali would receive the Bardwell Property back with any mortgage repaid. [104]
11. In his 8 September 2017 affidavit, Orlando said that the Bardwell Property was transferred to him in January 2003 because, by that time, he was able to arrange finance to buy the property. [105] On the same date as the settlement of the sale of the Bardwell Property to Orlando, Joselyn (as settlor) and Orlando (as trustee) entered into a deed establishing a discretionary trust known as the 38 Dowling Street Trust and Orlando signed a resolution as trustee "to acquire/take transfer on behalf of the Trust the property at 38 Dowling Street, Bardwell Valley NSW". [106] In his 9 May 2019 affidavit, Ali deposed that Orlando did not tell him about this trust at any time prior to this proceeding, and he did not agree to Orlando holding the Bardwell Property on the terms of this trust. [107]
12. The contract for sale of the Bardwell Property from Ali to Orlando names Hancock Alldis as the solicitors acting for both vendor and purchaser. [108]
13. The purchase price stated in the contract is $808,000. [109] The purchase price was based on a valuation. [110]
14. As I have already mentioned, the transaction was settled on 21 January 2003. The contract was stamped with payment of duty in the amount of $31,850 on that date. [111] On 22 January 2003, Hancock Alldis wrote to Orlando reporting on the settlement the previous day. The letter stated: [112] "Re: Your Purchase from Itawi Property: 38 Dowling Street, ARNCLIFFE We are pleased to confirm that settlement of your purchase took place on 21 January 2003 and as of that date you are the legal owner entitled to possession of the property. At settlement a total of $528,354.26 was calculated (in the manner set out in the enclosed settlement sheet) as being due to the Vendors. Outgoings (rates etc.) were adjusted in accordance with the contract and set out in the settlement sheet. As current Council and Water rates are fully paid, you have made an allowance in favour of the Vendors for your proportion of the current period. Having been adjusted in this way, it will not be necessary for you to pay any rates until next assessment. … On settlement the title deed and transfer were handed to your mortgagee who, after registration of the transfer into your name and its mortgage, will retain the deed as security for the duration of the mortgage. Your mortgagee will contact you directly regarding the mortgage repayments. For your information we are enclosing the following: 1. Settlement Sheet. 2. Tax Invoice in respect of your purchase from Mr Itawi. We note these costs and disbursements have been paid. 3. Tax Invoice in respect of Mr Itawi's sale to you. We note your instructions that you would pay the Vendor's Costs on the sale and same have been paid. 4. Receipts in payment of both Tax Invoices. 5. Statement of Account."
15. Regrettably, neither the plaintiffs nor the defendants tendered evidence the settlement sheet referred to in Hancock Alldis' letter which would show how the amount of $528,354.26 was calculated as the amount owing to the vendor on settlement. In his affidavit affirmed on 18 December 2019, Orlando stated that he was unable to locate the settlement sheet. [113]
16. The statement of account enclosed with Hancock Alldis' letter states: [114] "STATEMENT OF ACCOUNT TO: Balance of Purchase monies $528,354.26 TO: Costs & Disbursements on Purchase (as per Tax Invoice herewith) $1,992.10 TO: Costs & Disbursements on Sale (as per Tax Invoice herewith) $1,800.70 TO: Costs & Disbursements re: Summons issued by Perpetual Trustees Victoria Ltd (as per copy Tax Invoice herewith) $746.90 TO: Stamp Duty on Contract & Transfer $31,854.00 TO: Bank Cheque fees $23.10

BY: Mortgage Advance $500,000.00 Less: Austar - Application fee $600.00 Austar - Valuation fee $300.00 First Title - Settlement fee $434.50 Establishment fee $1,650.00 Registration Fees $248.00 Stamp Duty on Mortgage $1,941.00 Ageucy [sic] fees to stamp Mortgage $27.50 $5,201.00 $494,799.00 BY: Amount received from you to complete settlement $11,893.55 $506,692.55 BY: Shortfall $58,078.51 $564,771.06 $564,771.06

As per Mr Itawi's written instructions we note that you will and Mr. Itawi will deal with the shortfall of $58,078.51 between yourselves."

1. The $528,354.26 balance of the purchase price together with the other monies paid on settlement as set out in the statement of account (Hancock Alldis' fees for acting on the sale and purchase and in relation to "Summons issued by Perpetual Trustees Victoria Ltd", the stamp duty on the contract for sale and transfer and bank cheque fees) amount to $564,771.06.
2. The statement of account then identifies the net proceeds of the new mortgage ($494,799) and an additional sum received from the purchaser ($11,893.55) as the sources of funds from which those monies were paid, noting the shortfall of $58,078.51 between the monies required to be paid and the available funds. I infer from the statement at the end of the statement of account that the entire amount of the shortfall was deducted from moneys that would otherwise have been paid to Ali on settlement as part of the "Balance of Purchase monies" and that the solicitors' costs, stamp duty and bank cheque fees were paid in full. The stamped contract and transfer in evidence confirm that the stamp duty was paid. [115]
3. The evidence given by Ali and Orlando confirms that Orlando borrowed $500,000 secured by mortgage over the Bardwell Property in favour of Perpetual Trustees and used the funds of this loan to repay the amount owing under Ali's mortgage to Perpetual Trustees. Orlando did not pay any other money to Ali directly at the time of settlement. [116]
4. On 11 February 2003, the mortgage that Ali had granted to Perpetual Trustees over the Bardwell Property in 2001 was discharged, the caveat that Vilma had lodged against the Bardwell Property on 11 December 2001 was withdrawn and the transfer of the property to Orlando was registered together with a new mortgage between Orlando (as mortgagor) and Perpetual Trustees (as mortgagee) securing the loan of $500,000. [117]
5. Orlando first referred to the Hancock Alldis letter and statement of account in his affidavit sworn on 8 September 2017. He acknowledged then that the letter referred to an amount of $528,354.26 as being due to Ali. He made no other comment about the amount of $528,354.26 or about Hancock Alldis' description of it as an amount due to Ali. [118] If Orlando disputed that any amount was payable to Ali for the Bardwell Property (that is, any amount over and above the $464,310 required to discharge Ali's mortgage), it is to be expected that he would have said so in his 8 September 2017 affidavit. That is because the notion that Orlando was required to make any payment to Ali for the Bardwell Property is entirely inconsistent with Orlando's evidence that Ali had purchased the Bardwell Property on behalf of Orlando in 2001 and that Ali was required to transfer the property to Orlando as soon as Orlando was able to borrow the money required to fund the purchase in his own name. [119]
6. In his 8 September 2017 affidavit, Orlando also acknowledged the reference in the statement of account to the shortfall of $58,078.51. Orlando said: [120] "This is an amount that I was supposed to owe Ali Itawi at settlement. I do not recall what Ali and I said to each other about the $58,078.51."
7. Thus, Orlando did not dispute that he owed Ali a shortfall at settlement in his 8 September 2017 affidavit.
8. Orlando made no further comment about the amount of $528,354.26 or the shortfall in his subsequent affidavits until his 18 December 2019 affidavit. In that affidavit, Orlando referred to the $528,354.26 sum payable on settlement and stated: "I do not recall exactly how that amount was calculated." [121] Orlando confirmed that he did not in fact pay any money directly to Ali on settlement of his purchase of the Bardwell Property in January 2003. Orlando continued: [122] "He [Ali] had not repaid the money that Vilma and I had lent him for his purchase of the property about a year and a quarter earlier. In addition, at the time of settlement of my purchase from him, 21 January 2003, I had been dealing with him for many years in connection with cleaning jobs that he, as an area manager of Prestige, allocated to me. When I was paying, or arranging to pay, extra money into his bank account so he could pay the workers he provided for the cleaning jobs he often said to me words to the effect: 'Can you pay me an extra $..[an amount] … and I will pay you back later. I really need it.' At the time of the settlement of my purchase from Ali, 21 January 2003, he owed me extra money that I had paid to him. I deducted that money, as well as money that Vilma and I had lent him to buy the property, from my purchase price of the property."
9. The underlined parts of the affidavit set out immediately above were objected to on the basis of form and were allowed as evidence of Orlando's contention. The bold emphasis is mine.
10. In his 18 December 2019 affidavit, Orlando deposed that he did not know why the amount of $58,078.51 was described as "shortfall". [123] To the extent that this was intended to convey a denial that any shortfall was payable, it is inconsistent with Orlando's 8 September 2017 affidavit referred to above.
11. In his affidavit of 12 February 2020, Ali denied that Orlando had deducted from the purchase price of the Bardwell Property in January 2003 extra amounts borrowed by Ali and money that Vilma and Orlando had lent Ali for his purchase of Bardwell Property in November 2001. [124] As I have referred to above, Ali claims that the $50,000 loan secured by mortgage and caveat over the Bardwell Property was forgiven by Orlando shortly after completion of Ali's purchase of the property and he denies having borrowed an additional sum of $60,000 in April 2002 or subsequently. Ali also denied borrowing extra amounts from Orlando from time to time that were deducted from the purchase price of the Bardwell Property in January 2003. Ali did not offer any explanation of how the $528,354.26 calculated by the solicitors as being payable to Ali on completion of the January 2003 sale was calculated, even though he acknowledged in cross-examination that he had received the solicitors' statement of account at the time of the transaction. [125]
12. In his affidavit sworn on 27 May 2015, Ali deposed that he could not recall signing any contract for sale of land in connection with the transfer of the Bardwell Property to Orlando. Ali deposed that Orlando asked him to "come to my solicitor in Hurstville to sign something in relation to the property", and that he then attended the offices of Hancock Alldis and signed a transfer. In cross-examination, Ali acknowledged that he had signed the contract in Hancock Alldis' offices and said that he had a good memory of doing so. However, according to Ali, Hancock Alldis were instructed by Orlando and Ali did not give them any instructions. [126] As I have already mentioned, Ali received a copy of the statement of account at the time of the transaction. There is no evidence that he disputed at that time the accuracy of the statement concerning his instructions about "the shortfall of $58,078.51". In cross-examination, Ali said for the first time that he had not seen the purchase price of $808,000 on the contract for sale that he had signed and that he had not given any instructions to Hancock Alldis about the "shortfall" referred to in the statement of account. [127] That is inconsistent with Ali's affidavit affirmed on 9 May 2019, in which he deposed to having a positive recollection that the purchase price of $808,000 was based on a market valuation. [128] In that affidavit, Ali had specifically responded to Orlando's evidence concerning the settlement of the contract for sale in January 2003 and the statement of account issued by Hancock Alldis. Ali had referred to the substance of the statement of account, and had not disputed the accuracy of the statement clearly recorded on that document that: "As per Mr Itawi's written instructions we note that you will and Mr Itawi will deal with the shortfall of $58,078.51 between yourselves."
13. The existence of a shortfall remaining to be paid by Orlando to Ali after completion of the transfer of the Bardwell Property to Orlando is consistent with aspects of Ali's own evidence about various conversations that he says that he had with Orlando in the following months and years. According to Ali, he said to Orlando during a conversation in September 2009: "You still owe me the rest of the purchase price on my house". Orlando replied: "Yes. The business can't afford to pay this at the moment. I agree it's owed, though". [129] In his affidavit affirmed on 27 May 2015, Ali gave evidence that he had included in a document that he claims to have prepared in September 2009 for signature by Orlando, Vilma, Jeffrey and Joselyn a statement that: "They [that is, the Fonsecas] owe Ali the rest of the money not paid when Ali handed over his house and this must be paid". [130]

Ali continues to reside in the Bardwell Property after 2003

1. Ali continued to reside in the Bardwell Property after it was transferred to Orlando in January 2003. He did not pay rent to Orlando. [131]
2. Ali's evidence of the alleged November 2002 agreement included a promise by Orlando to make payments from Ali's share of the profits of the alleged partnership to reduce the amount owing under the mortgage that he refers to as his (that is, Ali's) mortgage. [132] That evidence is inconsistent with Ali's evidence referred to at [77]-[78] above in which Ali embraced Orlando's evidence that he (Orlando) made the Bardwell Property mortgage repayments using funds of Endeavour in the period after the property was transferred to Orlando. Ali did not qualify that evidence by suggesting that the payments were deducted from Ali's share of profits. Indeed, Ali has given inconsistent evidence about whether he had even negotiated a share of profits as at 2003 or at any time prior to 2009. [133]
3. Both Ali and Orlando gave evidence that, from the time the Bardwell Property was transferred to Orlando in January 2003, Orlando in fact made the repayments under the Perpetual Trustees mortgage referred to at [111] above and the subsequent ING mortgage referred to below. Ali's evidence is that this was done in accordance with the alleged November 2002 agreement. [134] During the final hearing, Ali contended that Orlando deducted those mortgage payments out of a remuneration package of $15,000 per month that Ali was entitled to be paid by Orlando or the Fonseca businesses. [135] Again, that is inconsistent with Ali's evidence referred to at [77]-[78] above. In a conversation between Orlando, Ali and Laura on 18 March 2015 (to which I refer in more detail below at [330]-[345]) there was discussion of interest only mortgage repayments for the Bardwell Property having been deducted from a $15,000 monthly remuneration package for Ali. However, it is not clear from that conversation what period of time the parties were referring to. I note that, in the period from January 2003 until March 2009, Ali had full-time employment with Tempo and later Total Building Maintenance (TBM), as referred to at [86] above and [133] below.
4. Orlando's evidence is that he made the mortgage repayments after 2003 because he owned the property. He allowed Ali to continue living in the property without paying rent because he thought this was a good way to ensure that Ali would continue referring cleaning jobs to the Fonseca businesses rather than to their competitors. [136] However, in cross-examination, Orlando gave evidence that he had deducted rent for the Bardwell Property from Ali's remuneration. Orlando maintained that he paid the mortgage and denied that those deductions were mortgage payments made on Ali's behalf. [137]
5. No evidence was adduced by any party about the amount of rent that Orlando says he deducted from Ali's remuneration or the amount of the monthly repayments required to be made under the Bardwell Property mortgage in the period after January 2003. Nor was there any contemporaneous evidence of the amount or components of any remuneration paid to Ali by Orlando or any Fonseca business, except in respect of the period after November 2013 when Ali became an employee of CCG Projects. [138] As I have already mentioned, Ali was employed by Tempo and TBM during the period from 2003 to 2009. The notion that Ali was receiving or entitled to remuneration of $15,000 per month from Orlando or the Fonseca businesses from January 2003 is inconsistent with Ali's evidence referred to at [35] and [88]-[89] above and [131] below that he did not receive a share of profits for referring work to the Fonseca businesses prior to 2009. However, as I have already observed, that evidence is itself internally inconsistent.
6. The Bardwell Property mortgage was in default by September 2003 when Perpetual Trustees filed a statement of claim for possession in this Court. [139] On 12 August 2004, Orlando took out a new loan of $670,000 from ING Bank (Australia) Limited (ING). This loan was secured against the Bardwell Property, and its proceeds were used to discharge the amount of $494,174.27 then owing to Perpetual Trustees. The remaining proceeds of the loan, after payment of fees and stamp duty, were deposited into Orlando's nominated account. [140] In his 18 December 2019 affidavit, Orlando deposed that he made the payments of principal and interest under that mortgage from time to time until May 2014, but that he was substantially in arrears after that time and did not make any repayments after that date. [141]
7. Ali's affidavit evidence is littered with accounts of conversations during the period from 2003 until 2014 in which Orlando is said to have made statements to the effect that he was paying off Ali's mortgage, in which Ali and/or Orlando are said to have referred to the Bardwell Property as Ali's house, and in which Ali claims to have asked when the property would be transferred back to him and Orlando is said to have indicated that this would happen in the future. [142] Ali's evidence includes his account of a conversation that he says he had with Orlando in September 2009 in which Ali demanded that the Bardwell Property be transferred back to him at the same time as asserting: "You still owe me the rest of the purchase price on my house". According to Ali, Orlando agreed that he owed "the rest of the purchase price" and also agreed that he would soon transfer the Bardwell Property back to Ali. I have referred to this evidence, and Ali's attempt in cross-examination to explain the obvious inconsistency between those two propositions, at [147]-[157] below.
8. Orlando denies making statements to the effect referred to at [127] above. He gave evidence that, from time to time over many years, he made statements to Ali to the effect that he would make sure that Ali always had a roof over his head and that: "You are living in the house rent-free. That's what I promised you. I am paying the mortgage every month instead of paying you extra money. Before I die I will arrange everything so that, if you keep working for the business, you will always have a roof over your head." [143]
9. According to Ali, Orlando told him in 2013 (in Vilma's presence) that "the house is yours" and that he was "only waiting to do a transfer when I solve my problems with the tax office". [144] Orlando and Vilma deny that this conversation occurred. [145] Ali also gave evidence that Orlando re-assured him in 2014 that the house was "safe" despite the taxation matters for which the Australian Taxation Office were pursuing Orlando at that time. [146] Orlando denies that this conversation occurred. [147] Ali also gave evidence that Orlando said that he was making the mortgage repayments on the Bardwell Property from "my money". [148] Again, Orlando denies this. [149] As I have already mentioned above, Orlando denies that the mortgage repayments for the Bardwell Property were made, or were required or agreed to be made, from Ali's share of any profits derived from Orlando's businesses.
10. Ali gave evidence that he made improvements to the Bardwell Property at his own cost in the period after it was transferred to Orlando, including installing a new fence around the property in about 2003 or 2004, building a pergola in about 2005, tiling a balcony in about 2004, extending a sunroom in about 2005 and interior and exterior painting in about 2010. [150] Orlando gave evidence to the effect that Ali sought his permission to make improvements from time to time and that Orlando gave his permission. According to Orlando, he considered that it was up to Ali to look after the house and maintain it as he was living there rent-free. [151] Ali denies ever having sought Orlando's permission to make improvements to the house. He says that he made the improvements because he understood that it was his house. [152]

Ali's continued referral of work from Tempo to the Fonseca businesses: 2003 to 2004

1. As I have referred to at [86]-[90] above, it is not in dispute that Orlando periodically deposited money into Ali's account for Ali to pay, in cash, the wages of cleaning workers who carried out the work for which the Fonseca businesses invoiced Tempo. According to Orlando, the deposits also included a payment to Ali of 15 or 20 per cent of the profits earned by the relevant Fonseca business on those cleaning jobs. Ali has given inconsistent evidence about whether he was paid a share of profits during the period in which he worked for Tempo. [153]
2. Vilma and Orlando gave evidence to the effect that many of these deposits to Ali's bank account were made in cash. The defendants adduced evidence of bank transaction receipts for cash deposits made to Ali's account totalling $36,480 in 2003 and $165,880 in 2004. However, the defendants did not suggest that these receipts were a complete record of all cash payments made into Ali's account during those years. [154]

Ali's referral of work from TBM to the Fonseca businesses: 2005 to March 2009

1. In or about 2004 or 2005, Ali left Tempo and commenced employment with TBM. Ali gave evidence that he had worked for TBM "on pretty much the same basis I had done with Prestige and Tempo". [155] However, unlike Prestige and Tempo, TBM undertook building maintenance work as well as cleaning work. [156]
2. In his affidavit affirmed on 18 September 2018, Orlando deposed that he had a conversation with Ali to the following effect at about the time that Ali began working at TBM: [157] "ALI: I have moved to Total Building Maintenance. I am in charge of giving jobs to subcontractors. We can have the same arrangement as before. I will give you jobs to do for this company. I will provide the workers like before and I will supervise them. Total Building Maintenance will pay you and you will pay me so I can pay my workers. I will give you the time sheets like before. I still want the same percentage of the profits like before as well. I will let you know which jobs are 15% and which are 20%. ORLANDO: Okay."
3. Orlando deposed that he continued receiving workers' time sheets from Ali and continued paying money into Ali's bank accounts as he had done previously. [158]
4. With the exception of the profit share, Orlando's evidence is broadly consistent with Ali's evidence. Ali deposed that the Fonseca businesses continued to deposit funds into his account from which he paid the workers, although the workers were now both maintenance and cleaning workers. Ali gives evidence of specific examples of jobs referred to Fonseca businesses during this period, and the amounts that Ali says that he received or required from Orlando in order to pay the cleaning and maintenance workers for those jobs. [159] Ali's description of the workers that he paid under these arrangements during the period in which he worked for TBM as including cleaning and maintenance workers is inconsistent with his earlier evidence that, so far as he was aware, the Fonseca businesses only provided cleaning services until about 2010 and first added property maintenance to their service offering in 2010. [160] It is also inconsistent with evidence given by Ali in cross-examination, in which he asserted that the arrangements whereby Orlando paid large sums into Ali's account for the payment of workers, had only ever applied to cleaning workers and not to maintenance workers. [161]
5. In his affidavit affirmed on 9 May 2019 in which he responded to Orlando's affidavit affirmed on 18 September 2018, Ali did not dispute Orlando's evidence referred to at [134] above that he (Ali) had told Orlando when he began working with TBM that he wanted Orlando to pay him "the same percentage of the profits like before as well" and that "I will let you know which jobs are 15% and which are 20%". [162] However, as I have already mentioned, Ali has given inconsistent evidence about whether he was paid any profit share in the period prior to 2009. [163]
6. As I have referred to above, it is not in dispute that Orlando periodically caused cash deposits to be made into Ali's accounts. [164] The bank transaction receipts that were tendered in these proceedings record cash payments to Ali's bank accounts totalling $339,088 in 2005, [165] $46,030 in 2006, [166] $319,515 in 2007, [167] $207,040 in 2008, [168] and $14,000 during the period from 28 January 2009 to 3 April 2009. [169] During the 2005, 2006 and 2007 years, additional payments were made by Orlando or Fonseca businesses into Ali's accounts by electronic funds transfer. [170]

Change in Ali's role with TBM and continued referral of UNSW maintenance work from TBM to the Fonseca businesses: March 2009 to September 2009

1. In about March 2009, Ali ceased to be an employee of TBM and became a subcontractor to TBM though Swell Trades Pty Limited, which was incorporated in March 2009 with Ali as its sole director, secretary and shareholder (Swell Trades). [171]
2. In his affidavit affirmed on 9 May 2019, Ali deposed that, from about March 2009 until April 2010, Swell Trades ran jobs at the University of New South Wales (UNSW) as an independent contractor to TBM. TBM was, in turn, a subcontractor to Spotless P&F Pty Ltd (Spotless), which had the head contract with UNSW. [172]
3. TBM, or its associated entity Harvent Pty Ltd, paid consultancy fees directly into the Swell Trades bank account. [173]
4. According to Ali, the consultancy fee that TBM paid to Swell Trades comprised "a base wage plus money for the labour cost of workers at the UNSW site under my supervision". As I understand his evidence, Ali says there were only two workers under his direct supervision at UNSW at any given time from the commencement of his consultancy arrangement with TBM in March 2009 and also during the whole of the period after Cleaning Doctor was established in 2009. [174] Ali gave evidence that he made cash withdrawals from an automatic teller machine (ATM) at UNSW and paid those two workers in cash, but kept no receipts for those payments. [175]
5. Orlando gave the following evidence about the arrangements between himself and Ali during this period: [176] "… Ali was based at the University of New South Wales and he was responsible for managing the maintenance work to be done at the university. The arrangement between Ali and I continued. Instead of cleaning jobs, Ali would direct maintenance jobs to Clean & Clear. TBM would hire Clean & Clear to do maintenance work at the University. TBM would pay Clean & Clear for these jobs. The actual work would be done by men arranged by Ali. Ali would tell me how much to charge TBM for these jobs. He would do this by giving me a purchase order from TBM."
6. Purchase orders issued by TBM to "Endeavour" in March 2009 provide some support for Orlando's description of the arrangements whereby TBM engaged Fonseca businesses directly. [177]
7. As I understand the evidence of Ali and Orlando referred to above, the TBM maintenance jobs that Ali referred to the Fonseca businesses during this period were separate from the jobs that Swell Trades did for TBM at UNSW using the two workers under Ali's supervision. For those jobs done by Swell Trades, TBM paid consultancy fees to Swell Trades as referred to at [140]-[142] above.
8. As referred to at [137] above, Orlando caused large sums to be paid into Ali's bank accounts in cash during the period that Ali was an employee of TBM from 2005 to March 2009. Those cash payments appear to have ceased at the beginning of April 2009 [178] and there is no evidence of any other payments being made by Orlando or any Fonseca business to Ali during the period from 4 April to 22 June 2009. However, during the period from 22 June to 18 September 2009, Crew Hire made payments to Ali's bank account by electronic transfer totalling $61,300. These payments were made in varying amounts, and there is no regular pattern to the timing of the payments. [179]

Alleged agreement in September 2009

1. In his affidavit sworn on 27 May 2015, Ali deposed that he had a conversation with Orlando about September 2009 to the following effect: [180] "Orlando: 'Listen, I'm sorry you have not been getting paid what you are owed. We have lots of expenses but I want to show you I honour our agreement.' Ali: 'I want my property transferred back to me.' Orlando: 'I will do that soon. Just listen to me. It is better for you if our agreement is between a company of which you are a director and the cleaning business now. If you use a company, you don't have to pay any tax yourself.' Ali: 'Orlando, I feel really let down by the way things have gone.' Orlando: 'I want to encourage you to come and work directly with me. When you are ready. I want to show you that I keep my word. Look, I am paying your mortgage but what I am saying is this. I don't know exactly how much I owe you. Your records are bad. Here is what I am hoping we can agree on…' Ali: 'What's that?' Orlando: 'I'll get you a company. My accountant does them for us. We can call it the Cleaning Doctor or something like that, ok?' Ali: 'And?' Orlando: 'I'll set you up as the director and shareholder.' Ali: 'Mmm?' Orlando: 'I can take care of setting up a bank account for the company.' Ali: 'If I'm not getting money now, how does a company help?' Orlando: 'Listen, I said you would get 50% of the business if you came and worked directly with me. But I'm now offering you 50:50, from now going forward. Cleaning Doctor 50%, 50% my companies. The same deal automatically applies if I get any new company. I am offering this for two reasons: first, you have to agree to come and work directly with me by mid-next year. If we are working together like that, you can help us both by cutting out the middle-man. Second, before you start, the 50% is to pay what I owe you already. Your mortgage will still be paid: you haven't received anything else about a default since the problems in 2003, have you?' Me: 'You also still owe me the rest of the purchase price on my house.' Orlando: 'Yes. The business can't afford to pay this at the moment. I agree it's owed, though.' Ali: 'How will the 50:50 work?' Orlando: 'I'll make sure it's 50:50. Sometimes I might get a client to just pay your profit share into the Cleaning Doctor account. Other times, so I don't have to get customers to split payments, I'll transfer it to Cleaning Doctor after the expenses, ok?" Ali: 'Ok.' Orlando: 'Great. Do you agree with everything I've explained?' Ali: 'Yes. Listen, Orlando, I'm the one without a house in my name. I'm the one with the risky situation. I want you and your family members to guarantee this on their houses. It's only fair.' Orlando: 'Yes, no problem. Write up something if you want.'"
2. It is convenient to refer to this as the alleged September 2009 conversation.
3. In his affidavit sworn on 7 July 2015, Ali deposed that he had occupied the Bardwell Property on the basis that "Orlando told me that some of my share of profit from the Cleaning Doctor was used to pay the mortgage on the Bardwell Property." [181] I note that, as at September 2009, Ali had been occupying the Bardwell Property continuously since November 2001, including after the property was transferred to Orlando in January 2003. I also note that any agreement that the mortgage would be paid out of Ali's share of profits would have represented a significant departure from the arrangement under which, on one version of Ali's evidence, Orlando had been required to pay the mortgage from January 2003. [182] Ali's account of the alleged September 2009 conversation in which Orlando said, "Your mortgage will still be paid", does not include any agreement to change whatever arrangement then existed in relation to the Bardwell Property mortgage payments.
4. In his affidavit sworn on 8 October 2015, Ali claimed to have recalled further details of the conversation that he says he had with Orlando in September 2009. Ali repeated his account of the entire conversation, adding the further details that he deposed to being able to recall at the time of his 8 October 2015 affidavit but not at the time of his 27 May 2015 affidavit. [183] The version of the conversation set out in Ali's 8 October 2015 affidavit included the following exchange immediately before Ali says he asked Orlando and his family to "guarantee this on their houses" (with the additions in bold): "Orlando: 'I want you to look at how you can give me more work. Hopefully this will be a good incentive for you.' Ali: 'When I come and work with you, I have some good contacts and hopefully we'll be able to get into the real money. But I also need to live week to week. I want you to guarantee me that I'll get at least $2,500 per week.' Orlando: 'We will need to make some significant money to be able to fund that. I think we can do it though. If you bring in $25,000 per week in contracts, we will be able to guarantee that you get $2,500 per week in your account. We will split the $25,000 evenly after expenses. That will make sure there is enough out of your share to pay toward the mortgage and to fund your car payment and tax.' Ali: 'How much will go toward the mortgage?' Orlando: 'A minimum of $4,000 per week. Plus your car payment of about $1,200 per week.' Ali: 'Okay.' Orlando: 'Great. Do you agree with everything I have explained?' Ali: 'Yes, but I am the one without a house in my name. I'm the one with the risky situation. I want you and your family members to guarantee this on their houses. It's only fair.' Orlando: 'Yes no problem. Write something up if you want.'
5. For the reasons explained at [149] above, this additional element of the alleged September 2009 conversation concerning the mortgage payments being made out of Ali's share of profits is fundamentally inconsistent with an earlier version of Ali's account of the mortgage payment arrangements that had already been in place for approximately six and a half years prior to that conversation.
6. In his affidavit affirmed on 9 May 2019, Ali added to his account of the alleged agreement for guaranteed weekly payments of $2,500 by giving further evidence that, by September 2009 he had been wanting to secure from Orlando a reliable rate of pay of $2,500 per week, plus profits from UNSW jobs and other jobs undertaken by the Fonseca businesses. [184] Ali gave evidence in his 8 October 2015 affidavit that, "shortly after" the alleged September 2009 conversation and the opening of a bank account for Cleaning Doctor at the Menai Branch of Westpac (the CD Account), he began to work with the Fonseca family in what he described as a "partnership". Ali gave evidence that: "I would refer jobs to them and in return, I would receive $2,500 electronically transferred into my account on a weekly basis". However, Ali complained that those payments stopped after a few weeks or perhaps a month. [185]
7. In cross-examination, Ali said that the $2,500 weekly payment that he asked for in the alleged September 2009 conversation was intended to apply from the time that he began working with the Fonseca family. When reminded of his earlier evidence that he did not finish working with TBM and start working with the Fonseca family until April 2010, Ali then said (contrary to his earlier evidence) that he could not recall the time at which this occurred. [186] When confronted with the details of his earlier evidence, which included numerous statements that he had ceased working as a consultant to TBM (through Swell Trades) in April 2010, Ali reverted to agreeing that this had occurred "in or about" April 2010. [187] Ali then gave evidence that the $2,500 weekly payments had commenced when he started working with the Fonseca family. [188] After it was put to him that some payments of $2,500 were made to his personal bank account by Crew Hire during the period from 22 June to 18 September 2009 and not after September 2009 (as referred to at [146] above), Ali said: "I remember only when I start working with them, I start getting paid. The exact date, I don't have it." [189] Ali also said that the $2,500 weekly payments he was referring to were not made by Crew Hire. Ali said: "I never got paid by from True Hire [sic - Crew Hire] to my account", "I would have questioned [Crew Hire] payment to me" and "I never accept anything from [Crew Hire] into my personal account". [190]
8. The bank statements for Ali's account and Crew Hire's account show that Crew Hire did in fact make the payments to Ali totalling $61,300 referred to at [146] above, including some payments in the amount of $2,500. The payments were made during the period from mid-June to 18 September 2009. [191] When shown those bank statements in cross-examination, Ali accepted that he had in fact received payments from Crew Hire (contrary to his earlier strenuous denial referred to immediately above). He described those payments as his minimum share of profits earned by the Fonseca businesses, [192] yet maintained that he had not received profit shares until "after we set up the 2009 agreement" (that is, in September 2009 according to Ali's evidence referred to at [147] above). [193] Ali then claimed to be uncertain about the timing of the alleged September 2009 conversation, [194] notwithstanding that the document that he claims to have prepared at the time of that alleged conversation bears the date 22 September 2009. [195]
9. In cross-examination, Ali gave the following evidence about his account of the alleged September 2009 conversation in his 27 May 2015 affidavit: [196] "Q. What did you mean by 'you still owe me the rest of the purchase price'? A. We had our agreement and he dishonoured the agreement and that's why I was talking to him about my debt with him to be honoured. Q. Mr Itawi, you just said a short time ago that you didn't know what price was on the contract and that you and Orlando hadn't talked about any particular price-- A. I'm not talking about the price, sorry. Q. So, when you used the words - you say you used the words to him, 'You still owe me the purchase' - sorry - 'You also still owe me the rest of the purchase price on my house', what did you mean when you used the word 'purchase price'? A. Because he need to transfer the property back to me. Q. Are you saying that they are the same things, are you? A. They're the same thing. Q. I'm just-- A. Not the money thing. I think to sign the property back to me. [The cross-examiner then asked Ali about the alleged November 2002 conversation, as referred to at [94] above, before returning to the alleged September 2009 conversation.] Q. So, do you say now that your deal with him did not involve him paying you the balance of the purchase price that was on the contract? A. We didn't talk about the balance whatsoever, myself and Orlando. Q. You never said to him - you never said to him that he still owed you the rest of the purchase price, did you? A. What I meant by the purchase price, it's a different. I was paying for mortgage. If you can see when I start paying for the mortgage was $1,300, then I end up paying $15,000 a month for the mortgage, including the car rent and everything. That increased dramatically and that different, I only supposed to pay 1300 for I give my property at that time, not the whole amount for the money he borrowed under that house."
10. I note that there is no contemporaneous documentary evidence of the cost of the Bardwell Property mortgage, Ali's car "and everything" as at September 2009 when the alleged conversation occurred. I also note that the notion that Ali was supposed to pay part of the mortgage repayments for the Bardwell Property is inconsistent with one version of Ali's earlier evidence about the arrangements for mortgage repayments from January 2003 (namely, that Orlando was responsible for all of the mortgage repayments). [197]
11. The cross-examiner later put to Ali that he was making things up in the witness box by suggesting that Orlando paying him the balance of the purchase price for the Bardwell Property and transferring the property back to him were one and the same thing. Ali denied this. [198]
12. In his affidavit sworn on 27 May 2015, Ali gave the following evidence in relation to September 2009 (my emphasis): [199] "I cannot find this document … but at this time I did write up a document and got Orlando, Vilma, Jeff and Joselyn to sign it. I will keep looking but it said words to the effect of the following: 'Orlando, Vilma, Jeffrey, Joselyn and any company they are involved in such as Clean & Clear agree that: - The Cleaning Doctor is the owner of 50% of their business. - They must pay the Cleaning Doctor's share into a bank account for that company. - Ali is the true owner of his house at Bardwell Valley. - They owe Ali the rest of the money not paid when Ali handed over his house and this must be paid. - The mortgage payments on his house have to be kept up-to-date. - To make sure they do all of the above, they guarantee their houses or properties. Their houses and properties are at risk. - They want Ali to leave his job and start working with them and he will do that.' There definitely is this document they signed. I haven't seen it, though, since around the time it was signed."
13. I note that Ali's summary of this alleged document referred to immediately above plainly stated that the Fonsecas were responsible for paying Cleaning Doctor's share of profits from the alleged partnership or joint venture into the CD Account (without any qualifications about first deducting Bardwell Property mortgage repayments or any other amounts) and keeping the Bardwell Property mortgage payments up to date. That is consistent with Ali's first account of the alleged September 2009 conversation in his 27 May 2015 affidavit, [200] but inconsistent with the notion introduced by Ali in cross-examination that he remained responsible for part of the mortgage repayments for the Bardwell Property. [201] Ali adhered to the latter position in cross-examination when he gave the following evidence: [202] "A. … A calculation of the profit of 15,000 was taken out of all my jobs at UNSW, which is paid for a normal amount of mortgage that has to be paid on a monthly basis. Q. Sorry, a normal amount of mortgage, did you say? A. Of mortgage on my house. And then they deduct that 1,200 for the car I was using. Then after that, whatever money left from that profit that we create during the month, we go to The Cleaning Doctor, and when they accumulate a good amount they can put against my house so could be paid in five years. That's the reason for that account."
14. As I have already observed, there is no contemporaneous documentary evidence of the amount of the monthly repayments required to be made for the Bardwell Property mortgage as at September 2009 or at any time thereafter.
15. Returning to the document described by Ali at [158] above, Ali added in his affidavit sworn on 1 June 2015 that he had seen Jeffrey sign the document. [203] Ali made no change to his evidence about the time at which the document had been signed - namely, September 2009.
16. In his affidavit sworn on 1 July 2015, Jeffrey denied signing the document referred to in Ali's 27 May 2015 affidavit. [204] Vilma, Joselyn and Orlando also denied signing any such document in their affidavits sworn on 1 September 2017, 2 September 2017 and 8 September 2017 respectively. [205]
17. Orlando also denied having the conversation with Ali referred to in [147]-[148] above, [206] telling Ali that some of Ali's share of profit from the Cleaning Doctor was used to pay the mortgage on the Bardwell Property, [207] or telling Ali to leave the document with him to arrange for signing by the Fonseca family members. [208] Orlando gave evidence that he did have a conversation with Ali in September 2009 to the following effect, at a time when Ali was still referring TBM jobs to the Fonseca businesses: [209] "ORLANDO: 'I talked to my accountant. You're based at NSW Uni. You should set up a new company for yourself to operate as my subcontractor for the jobs you give me at NSW Uni. The new company should hire your workers. I will transfer money to the new company's bank account every week or fortnight and the new company can pay your workers and yourself. I will get my accountant to help set it up. You can call it the Cleaning Doctor.' ALI: 'Okay.' ORLANDO: 'Your money for giving me the jobs will be paid to the Cleaning Doctor bank account as well.'' ALI: 'Okay.'"
18. Ali denies this conversation. [210]
19. It was put to Orlando in cross-examination that Ali had already established Swell Trades when Orlando claims the conversation occurred in September 2009, that Orlando had made payments to Swell Trades for Ali and "his two permanent staff" at UNSW at about the same time as he began making payments to the CD Account and that all other workers who did maintenance work at UNSW sent tax invoices directly to Clean & Clear. Orlando could not recall when Swell Trades was established or whether he knew about Swell Trades at the time of this alleged conversation in September 2009. He recalled making payments to Swell Trades' bank account but could not recall the timing or amount of the payments, or the purpose of those payments. Orlando denied that all workers at UNSW other than Ali's "two permanent staff" invoiced Clean & Clear rather than receiving their payments in cash from Ali and maintained that the purpose of establishing Cleaning Doctor was as a vehicle for the payment of the workers and Ali's wages and profits. [211]
20. In an affidavit affirmed on 9 May 2019, Ali deposed that he had found the document described in his 27 May 2015 affidavit: [212] "… The agreement … has now been found … From the time I started these proceedings, I have been looking for the agreement. I have a weapons safe at home and a number of places that I keep my files. I checked those places and it was not there. I then checked the boxes in the garage. After that I generally looked around the house trying to find it. It was not able to find it. Early last year my wife fell pregnant with our third child, a son. This meant we were now going to have two sons, so we wanted to convert the children's playroom into the boys' bedroom. To do that we removed absolutely everything from the room. Under a seat in that room that is actually a chest was a concrete safe with a metal lid. I had looked here before, but I did not have the key and could not find it anywhere. As we stripped the room down, I found the key. I said to my wife, 'look I found a key'. I went to the safe and opened it with the key. Inside the safe was the document …"
21. Laura swore an affidavit on 10 May 2019 deposing that Ali had told her that he had found a key in about November 2018 when working on converting the playroom into a bedroom. [213]
22. The document that Ali claims to have created in September 2009 and to have found in his safe in 2018 was annexed to his affidavit affirmed on 9 May 2019. Although the timing and the manner of this document's creation are the subject of dispute, I will refer to it as the September 2009 document.
23. It is convenient to set out the terms of the September 2009 document in full: [214] "Who agrees: 1. Fonsecas: Orlando, Jeff, Vilma and Jocelyn, Clean & Clear Group, Clean & Clear Recycling and all Fonseca backed companies (including any new ones); and 2. Ali and Cleaning Doctor NSW. What we agree: 1. Ali will come and work with the Fonseca businesses. 2. Ali will bring in property maintenance work for the businesses through his contacts. 3. The Fonsecas agree that Cleaning Doctor NSW owns half of all cleaning and property maintenance businesses and 50% of profits. If Ali leaves the business, Cleaning Doctor NSW isn't entitled to any more profits from that point on. 4. The Fonsecas agree that if Cleaning Doctor NSW isn't paid directly for its share by customers, that they will pay Cleaning Doctor NSW's share into its chosen bank account. 5. Ali is the real owner of 38 Dowling Street, Bardwell Valley NSW 2207 and the Fonsecas promise to protect it for Ali. The Fonsecas can't borrow against Ali's property without Ali agreeing first. Orlando will transfer the property back to Ali as soon as the mortgage on there is repaid. Because Ali is the real owner, he will not have to pay to get the property back. 6. The Fonsecas share of the businesses are responsible for 50% of the mortgage repayments on Ali's house. 7. Each of the Fonsecas agree that any properties they own (including any new ones, ones in someone else's name, ones part of trusts or owned by companies) or control are security for Ali and Cleaning Doctor NSW to make sure the Fonsecas do everything this agreement says and pay all money owed. 22 September 2009"
24. Below the date "22 September 2009", signatures appear above each of the following typed names: "Orlando", "Jeff", "Vilma", "Jocelyn", "Clean & Clear Group", "Clean & Clear Recycling", "Ali" and "Cleaning Doctor NSW". The same signature appears above the names "Jeff", "Clean & Clear Group", "Clean & Clear Recycling", creating the impression that Jeffrey has signed the document for himself and on behalf of those two entities.
25. I note that the terms recorded in the September 2009 document differ from the terms that Ali deposed to in his 27 May 2015 affidavit in at least two respects.
26. First, the September 2009 document does not contain any term requiring the Fonsecas to pay to Ali the rest of the purchase price on the Bardwell Property.
27. Second, the September 2009 document requires the Fonsecas to pay 50 per cent of the mortgage payments on the Bardwell Property. In addition to being inconsistent with the terms of the document that Ali described in his 27 May 2015 affidavit, that is also is inconsistent with Ali's earlier evidence that the Bardwell Property mortgage repayments were to be paid out of "some of my shares of profit from the Cleaning Doctor". [215]
28. The defendants tendered a report of Ms Melanie Holt, a forensic document examiner, dated 9 June 2019. [216] Ms Holt examined the signatures appearing above the names "Jeff", "Vilma" and "Joselyn" in the September 2009 document (referred to as the questioned signatures), together with two specimen documents that had been signed by Jeffrey, Vilma and Joselyn (referred to as the specimen signatures). The September 2009 document and the two specimen documents examined by Ms Holt were photocopies. Ms Holt requested the originals, but she was informed that they were not available. Her examination of the September 2009 document and the two specimen documents was therefore limited to a pictorial assessment of the features of the questioned signatures in the September 2009 document and the corresponding specimen signatures to determine the level of similarity between them. Ms Holt described the unavailability of original documents as a limitation but said that it "did not overwhelm the examination to the extent that a conclusion could not be reached." Ms Holt assumed that the two specimen documents were genuine copies of original documents bearing genuine signatures of Orlando, Jeffrey and Vilma. [217]
29. Ms Holt concluded that each of the questioned signatures was "for all intents and purposes, identical" with the corresponding specimen signature. Ms Holt demonstrated this in her report by overlaying each questioned signature with the corresponding specimen signature. In each case, the extent of overlay was beyond that which would exist for "two naturally written signatures", leading Ms Holt to conclude that each questioned signature and its corresponding specimen signature "share a 'common source'". In Ms Holt's opinion, the most likely explanation was that all three questioned signatures had been copied from the specimen documents and pasted into the September 2009 document using digital scanning software. In other words, "while the questioned signatures appear to be genuine signatures of Mr Jeffrey Fonseca, Ms Vilma Fonseca and Ms Joselyn Fonseca, it is most likely that none of them actually signed the questioned document as it purports". [218] Ms Holt was unable to express an opinion about whether Orlando's signature appearing on the September 2009 document had been made directly on the September 2009 document or was also likely to be the result of a cut and paste manipulation. [219]
30. Ms Holt's report was served on the plaintiffs, and Ali read the report, in June 2019. Ali understood that Ms Holt had concluded that signatures appearing on the September 2009 document had been created by cutting and pasting signatures from other documents. [220]
31. In affidavits affirmed on 31 July 2019, each of the Fonseca family members denied having seen the September 2009 document before seeing it as an annexure to Ali's 9 May 2019 affidavit and denied having signed it. In addition, Joselyn noted the misspelling of her name "Jocelyn" in the September 2009 document and stated that she would not have signed above her misspelled name. [221]
32. Ali affirmed a further affidavit on 27 August 2019 in which he deposed that he had signed the document in September 2009 but then left the document with Orlando to sign and to arrange the signatures of the Fonseca family members. [222]
33. In his 27 August 2019 affidavit, Ali also gave evidence that he had a conversation with Jeffrey in 2014 in which Jeffrey asked whether Ali would continue working with the Fonseca businesses if Jeffrey would get him a signed copy of the September 2009 document. Ali deposed that Jeffrey had given him the document signed by all Fonseca family members at UNSW at some time during the period between October 2014 and December 2014. Ali went on to say that he did not know when he first put the September 2009 document in the safe at the Bardwell Property, but it must have been in late 2014 or early 2015. [223]
34. Jeffrey denies having any such conversation with Ali or providing him with the signed September 2009 document. [224]
35. As I have already mentioned, Ali's evidence in his 27 May 2015 affidavit was that he had "got Orlando, Vilma, Jeff and Joselyn to sign it" in September 2009. In his 1 June 2015 affidavit, Ali added that he had seen Jeffrey sign the document. After referring to paragraph 53 of his 27 May 2015 affidavit that I have set out at [158] above, paragraph 8 of Ali's affidavit affirmed on 1 June 2015 states: "I saw Jeff sign the document I have described."
36. In cross-examination, Ali gave the following evidence (my emphasis): [225] "Q. So, you never actually saw Orlando signing the document, did you? A. No. Q. You never actually saw Vilma signing the document, did you? A. No. Q. You never actually saw Geoff [sic - Jeff] signing the document? A. None, none of them. Q. You never actually saw Jocelyn signing the document? A. No, none of them. Q. And did you have a clear memory of that when you did your affidavit of 27 May 2015? A. No. Q. You didn't? A. No, no, I don't have a really good memory. Q. I'm talking about when you signed your affidavit of 27 May 2015, you're looking at it now? A. Yeah. Q. When you signed it were you clear in your mind that that's what happened? A. Yes. And I said exactly to the word that‑‑ Q. Just a moment Mr Itawi. I'll ask you a question in a moment. So, you know that on 28 May 2015 you started this case? A. Yes. Q. By the way, last week I was asking about, you used the words 'we started the case'; do you remember using the word 'we' in that passage? A. Me and my wife. Q. At about the middle of July 2015, you, through your lawyers, gave an undertaking to the Court to pay any damages that Jeffrey might suffer if the sale proceeds were frozen; this is the Oatley sale proceeds were frozen, right? A. Yes. Q. Would you accept from me that it was on 17 July 2015 that the Court, her Honour Bergen J [sic], made orders that effectively required the sale proceeds to be frozen once the settlement occurred? A. Yes. Q. And that was all done on your undertaking also to pay into Court $100,000 as security for your undertaking as to damages, yes? A. Yes. Q. You knew that you were conducting this Court case at the time, based on the evidence that you had put in your affidavit of 27 May 2015, and also subsequent affidavits that you had sworn, but it was always clear in your mind, was it, from the May 15 affidavit until her Honour made those orders, that you had never seen any of the Fonsecas sign it? A. No, I said, you didn't let me finish, Orlando took it off me, gave it to Jeff, Jeff signed something on the table, I don't know if he signed the paper or something else, that's what I said my affidavit. That's what I said exactly, nothing else, from day 1. Q. Just go to your affidavit at p 160, Mr Itawi? This is a short affidavit of yours of 1 June 2015, and if you turn the page to para 8, you refer to your first affidavit, and you say, 'I saw Jeff sign the document I've described'; do you see that? A. Yeah. Q. That was false, wasn't it? A. No. Q. You told me a few minutes ago that you handed the document to Orlando with your two signatures on it, right? A. Yes. Q. You told me that when you did that, there was no-one else's signature on it? A. That's true. Q. You also told me you never saw any of the four Fonsecas sign it? A. No. Q. You mean you didn't say that to me? A. I said that to you 100%. Q. And that wasn't true? A. Before you asked me question, I said how Orlando gave it to Jeff and said, 'make sure this is signed', and Jeff signed something, I don't know if he signed the paper or not, for me I thought he signed the paper, that's why I said. Q. I am really asking you whether you saw Jeff sign the document or you didn't see him? A. I saw Jeff signing, I didn't know if it was the document or not that time, because his father gave it to him to sign it. Q. When did you see Jeff sign it? A. At the office, signing, I saw Jeff signing at the office. Q. You never saw Jeff sign any such document, Mr Itawi? A. I did saw Jeff signing, I did see him."
37. The portions of Ali's evidence that I have highlighted above are inconsistent with one another. Ali attempted to explain the inconsistency by saying that, before the cross-examiner asked him the questions about whether he had seen any member of the Fonseca family sign the September 2009 document, "I said how Orlando gave it to Jeff and said, 'make sure this is signed', and Jeff signed something, I don't know if he signed the paper or not, for me I thought he signed the paper, that's why I said." The transcript reveals that Ali had not given the evidence the he claimed to have given at that earlier point in the cross-examination. On the contrary, Ali had given evidence that he had handed the September 2009 document to Orlando bearing Ali's signature and Orlando had simply said "Leave it with me". Ali had made no reference to Orlando asking Jeffrey to do anything, or to seeing Jeffrey sign a document. [226]
38. If Jeffrey had handed Ali the signed September 2009 document in late 2014 as Ali deposed in his 27 August 2019 affidavit, it is curious that Ali failed to mention this in his 27 May 2015 affidavit in support of his claim that the document existed and had been signed by Orlando, Vilma, Jeffrey and Joselyn. It is also curious that Ali failed again to mention this in his 9 May 2019 affidavit. Ali gave the following evidence about this in cross-examination: [227] "Q. But was it clear in your mind when you did your May 2015 affidavit that Geoffrey [sic - Jeffrey] had given you the document a few months before? A. Geoff [sic - Jeff] gave me the document in 2014. Q. I'm asking you whether it was clear in your mind in May 2015 that that happened? A. Yes. Q. Is there any reason why you didn't say that in your May 2015 affidavit? A. I said that we have an agreement in my affidavit. Q. I'm asking whether there's any reason why in your May 2015 affidavit you didn't say 'that in late 2014 Geoffrey [sic - Jeffrey] gave me this document'? A. I said I have an agreement, I didn't want to say more than that. I had to have an agreement. Q. You didn't say it because the episode you've described with Geoffrey [sic - Jeffrey] never happened Mr Itawi? A. It happened 100%."
39. If Jeffrey had handed Ali the signed September 2009 document in late 2014 as Ali deposed in his 27 August 2019 affidavit, it is also curious that Ali did not mention the signed document to Orlando during their meeting on 18 March 2015 to which I refer in detail later in these reasons. In cross-examination, Ali said that he and Laura had gone to the meeting with Orlando on 18 March 2015 "for him [Orlando] to confess that we have the house, that is our house." [228] He was then asked why he had not mentioned the existence of the September 2009 document, allegedly signed by the Fonseca family members and allegedly handed to Ali by Jeffrey just a few months before the March 2015 meeting, which stated (relevantly): "Ali is the real owner of 38 Dowling Street, Bardwell Valley NSW 2207 and the Fonsecas promise to protect it for Ali": [229] "Q. Well, you know, don't you, that neither you nor your wife said anything to Orlando at the 18 March 2015 meeting about this written agreement? A. I didn't have to. Q. And you didn't; correct? A. It wasn't found at that time, remember I said, in the meeting. It wasn't there. It wasn't found. Q. Because you found it in 2018? A. Yes, I find it in 2018. Q. Is that right? A. Yes."
40. The plaintiffs did not adduce any expert evidence in response to Ms Holt's report. Nor did the plaintiffs cross-examine Ms Holt at the final hearing.
41. By the time of the final hearing, the plaintiffs did not contend that Jeffrey, Vilma and Joselyn had signed the September 2009 document. The plaintiffs accepted that the signatures on the document that appear to have been made by Jeffrey, Vilma and Joselyn were photocopies of signatures that had been cut and pasted from other documents. The plaintiffs contended that Jeffrey had done this. This was put to Jeffrey in cross-examination and he strenuously denied it: [230] "Q. And I want to suggest to you, you see that your signature appears on this document at 1953 [referring to the 2009 document at page 1953 of the court book] in three places? A. I've never signed that document. Q. Did I ask you that? A. No. Yes, that is my signature there, as I can see. I don't know if it's my signature. Doesn't look like it. Q. Do you seriously suggest that the three occasions in which your signature appears on this document doesn't look like your signature? Is that your evidence? A. Well, what I'm trying to say is if I've never signed this document, they can't be my signatures, even though they look like my signatures, I've never signed this before. Q. Do you agree they look like your signatures? A. Yeah, they look like mine. Q. And I want to suggest to you that at least in two places, that is, on the first line, the far right‑hand side above the words 'Clean & Clear Group', that's your actual - copy of your actual signature that you placed on this document. Do you agree with that? A. No, I've never signed that document. Q. And I want to suggest to you that on the next line, above the words 'Clean & Clear recycling', I want to suggest you signed this document at that point too? A. I've never signed this document. Q. And I want to suggest to you that you gave that document to Mr Itawi, knowing that it has fraudulent signatures on it? A. I've never seen this document before. Q. And I want to suggest to you that you intended Mr Itawi to rely on that document? A. No. Q. And your intention, at all times, was that if Mr Itawi attempted to rely on the document, you'd be able to turn around and say, 'It's a forgery. I know nothing about it'? A. No."
42. Orlando denied placing his own signature on the September 2009 document and denied that he or Jeffrey had any involvement in pasting signatures from other documents onto the September 2009 document. [231]

Establishment of Cleaning Doctor and its bank account

1. Cleaning Doctor was incorporated on 16 September 2009, with Ali as its sole director and shareholder. [232] As I have already referred to above, Ali has given evidence to the effect that the company was established as the partner or joint venture partner with Orlando or an (unspecified) Fonseca business and that Cleaning Doctor was entitled to 50 per cent of the profits of the alleged partnership or joint venture. Orlando has given evidence to the effect that Cleaning Doctor was established as a subcontractor to the Fonseca businesses for work undertaken at UNSW and that it was responsible for paying wages to the workers who carried out that work.
2. The plaintiffs relied on an affidavit of Mr Sam Cassaniti of CAP Accounting, the former accountant for Orlando and the Fonseca businesses, in which Mr Cassaniti deposed that Orlando had said to him on about 10 September 2009: "Sam, I need you to set up a company. I am in partnership with another man called Ali and he needs a company so that we can make some more money". According to Mr Cassaniti he subsequently arranged for Cleaning Doctor to be incorporated. [233] However, in cross-examination, Mr Cassaniti resiled from his use of the word "partnership" except in the sense of "a loose word for we're going into business together in a company". Mr Cassaniti was unable to explain the inconsistency between that evidence, and his earlier evidence in his affidavit in which he had deposed that Orlando had told him that it was Ali (not Orlando and Ali together) who needed a company. [234] ASIC records for Cleaning Doctor establish that the company was incorporated with Ali as its sole director and shareholder. [235]
3. According to Orlando, he and Ali had a conversation to the following effect concerning the establishment of a bank account for Cleaning Doctor: [236] "Orlando: 'Now that the Cleaning Doctor is set up you should open a bank account for the company at Westpac Menai because all my accounts are there. You are based at NSW Uni. We are closer to Menai than you. It will be easier if Jeffrey or me withdraws the cash from the Cleaning Doctor account every week or fortnight and we give it to you at Kensington for you to pay your workers and yourself. Saves you travelling from Kensington to Menai all the time. I will keep the cheque book. You can sign all the cheques at once. You give me the workers' time sheets every week or fortnight and my office will work out the amounts to be paid. When we know how much has to be paid I will use the cheques to take out cash and give it to you to pay the workers and yourself.' Ali: 'Okay.' Orlando: 'When I transfer money into the Cleaning Doctor account I won't always know exactly how much cash I have to withdraw later. So I will probably put in a bit more to be safe. Any money left over after cash withdrawals is mine. You can give me the keycard for the account so I can use it to make small withdrawals and pay some expenses when there is enough left over to do that.' Ali: 'Okay.'"
4. Orlando gave similar evidence in cross-examination when he said that: "The agreement with Ali with that company [referring to Cleaning Doctor], is to put money there to pay the workers, and take his profit." [237] Orlando denied that Ali was entitled to 50 per cent of profits, and denied that the purpose of opening the bank account for Cleaning Doctor was to save money to pay down the Bardwell Valley mortgage. [238]
5. Ali denies that he had a conversation with Orlando to the effect set out at [191] above. [239]
6. In his affidavit sworn on 27 May 2015, Ali deposed that he and Jeffrey went to the Westpac branch in Menai in about October 2009 where Jeffrey introduced him to a teller at the branch and a bank account was established for Cleaning Doctor. [240]
7. Ali gave evidence that he had a conversation with Jeffrey on that occasion in which Jeffrey said to him: "Today, we have to open a bank account, so that we can save money as agreed with my father to help paying your house off." [241] Ali later gave further evidence about this conversation, in which he deposed that Jeffrey also said to him: [242] "Jeffrey: 'Because you work when the branch is open and I live close to the branch, we will get a cheque book for the account. You should sign each of the cheques so that way when we need to pay your mortgage my father or I can just fill out the cheque and we'll get the money out of the Cleaning Doctor's account to pay your mortgage." Ali: 'Okay that sounds good.'"
8. Jeffrey denies assisting Ali to open the CD Account, or going into the bank with Ali to open the account. [243] Jeffrey gave evidence that he "just took him [Ali] to the Menai bank so that he could do it" and that he drove his car to the Menai branch with Ali following separately in his own car. Jeffrey denied going into the branch with Ali. [244] Ali maintains that Jeffrey met him at the Westpac Menai branch and accompanied him inside to open the account. [245]
9. In his affidavit affirmed on 17 September 2018, Jeffrey gave an account of returning to the Menai branch of Westpac with Ali later on the same day that the account was opened in to withdraw $36,320 from the account. [246] It will be necessary to refer to this below.
10. Jeffrey denies suggesting to Ali that he should sign all of the cheques, and also denies suggesting that if Ali signed all of the cheques this would facilitate Orlando or Jeffrey paying the mortgage on the Bardwell Property. [247]
11. The Westpac documents relating to the establishment of the CD Account are dated 30 September 2009. [248] Ali was the only authorised signatory for the account. [249] The Westpac documents record that a 50 page cheque book and a debit MasterCard were issued for the CD Account. The Bardwell Property was recorded as the registered address of Cleaning Doctor, but the mailing address recorded was a post office box in Mortdale and the fax number was recorded as the fax number of the office of CCG Projects. The post office box was operated by Mr Duran, who is a friend of the Fonseca family and who has no relationship with Ali. Westpac established online access to the account for one user, namely Ali. [250] In cross-examination, Ali gave evidence that the online access for the CD Account was not for him but was for "the Fonsecas to keep a record of what they are doing with that account". Ali denied that he had online access to the CD Account. [251]
12. Ali gave evidence that he did not operate the post office box nominated on the account opening form and that he did not receive statements, cheque books, debit cards or "key cards" for the CD Account or any other documents relating to the CD Account. [252]
13. At the time the CD Account was opened at the Westpac Menai branch, Ali's company Swell Trades had an account at the branch at UNSW where Ali was based and the Fonseca businesses undertook cleaning and maintenance work. In cross-examination, Jeffrey was unable to explain why the CD Account was opened at the Menai branch of Westpac, where Jeffrey had other accounts and was known to the staff. Jeffrey denied discussing with Orlando that the CD Account should opened at the Menai branch. He denied that the branch was chosen because it would be easy for Jeffrey, who was personally known there, to withdraw large sums from the CD Account using cash cheques even though he was not a signatory on the account. [253] The cross-examination included the following exchange: [254] "Q. If Mr Itawi had a company account, bank account opened at the branch in University of New South Wales, are you aware of any benefit to Mr Itawi in this Cleaning Doctor account being opened in Menai with your office fax number and Mr Duran's post office box number? A. No. Q. Your father didn't ever tell you of what benefit there was to Mr Itawi of having this account opened in Menai with those office details? A. No."
14. Orlando also gave the following evidence in cross-examination: [255] "Q. Later in September 2009, you said, 'Now that the Cleaning Doctor is set up, you should open a bank account for the company at Westpac Menai because all my accounts are there.' Do you recall giving that evidence? A. I think so, yes. Q. Now, why, if the Cleaning Doctor, on your version of events, if the Cleaning Doctor was the subcontractor who was carrying out work for Clean & Clear at the University of New South Wales, what possible reason was there for opening a bank account at Menai? A. Why? Q. Yes, why? Why open a bank account at Menai when Mr Itawi worked at the University of New South Wales and already had a company with a bank account at the University of New South Wales? A. Because I need to be control Ali because it's a lot of money I put in his account and I have to control the money because he's a gambler. I have to be control because that's why I send people to take the money out to pay the people - the workers. Q. But if-- A. And suggest to Ali and ask him, 'We open the account in Menai?' He said, 'Yes.' Q. But if the Cleaning Doctor was a subcontractor to Clean & Clear, then all that Clean & Clear had to do was to make the payments to the Cleaning Doctor when the work was done. Why did you need to control that? A. To make sure Ali paid his workers because previous years, we have got a lot of problem with Ali because he doesn't pay the people when they put the money directly to his account. Q. You don't anywhere in any of your affidavits refer to the fact that you thought it was necessary to have the account in Menai to ensure that Ali paid his own workers. You don't say that anywhere in your affidavits, do you? A. But why I have to be put there in the affidavits? Q. What difference did it make to you if Mr Itawi didn't pay his own workers? You could always get another subcontractor, if you needed to, couldn't you? A. No, because the people come back to us, that's why I got a lot of problems before with Ali, people coming to our office, been working in this building, he's not being paid, he's not being paid, how can you lose the contracts? Q. You haven't referred to any evidence in any of your affidavits about any of employees not being paid and coming to you and complaining about it. It's just something you're making up, isn't it? A. Listen, if I'm making up, I can guarantee in one week or one month, I can get a thousand more peoples Ali never been paid for years. Q. Could you also have got thousands of people who claim to have been paid by the Cleaning Doctor for the work-- A. No, for the Cleaning Doctor, prior business with Ali. With Cleaning Doctor, we make sure we being paid all the people. Q. No, no, but I said to you earlier that isn't it correct that other than Ali and his two permanent staff who were paid by - who were paid through the Swell Trades' account, isn't it correct that all the remaining workers at the University of New South Wales sent tax invoices directly to you in their company or business name? A. That's not true. Q. Right. When you say you could get thousands of people, you are aware, aren't you, that Mr Itawi has produced many invoices for this work that are addressed from those subcontractors directly to Clean & Clear? You are aware of that, aren't you? A. Yes. Yes. Q. When you say you could get thousands of people, could you even get one maintenance worker who claimed to have been employed by the Cleaning Doctor, even one? A. Yeah. Q. And-- A. I can find you. Q. --you could get them and give evidence to this Court? A. Yes. Q. Why haven't you? A. Because it's not my interest to be find all these people and bring them to Court because how many people I have to bring in Court? Q. Well, I'm just asking you, if you could have got one, just one? A. Are you happy with one? Q. You could have got one? A. Yes. … Q. Now, Mr Fonseca, isn't the version you gave as to why the bank account was opened at Menai was because you say all your accounts are there, that's the reason that you say you gave Mr Itawi as to why the Cleaning Doctor account would be opened at Menai? A. Maybe. I can't recall. Maybe, yes, yeah. I have got all my accounts there. Yeah. Q. Then you said, 'It will be easier, because you're at the University of New South Wales' - this is you speaking to Mr Itawi - 'Because you are based at New South Wales Uni, we are closer to Menai than you, it will be easier if Jeffrey or me withdraws the cash from the Cleaning Doctor account every week or fortnight and we give it to you at Kensington for you to pay your workers and yourself, saves you from travelling Kensington, Menai all the time.' Do you recall giving that evidence? A. Yes. Q. There would have been no travelling time at all if Mr Itawi had simply opened the Cleaning Doctor bank account at the University of New South Wales; correct? A. Yes. Q. There would have been no travelling time at all if the payments for these, what you say were Mr Itawi's workers, was made to his Swell Trades' account; do you agree? A. I'm not agree because I need to be - have control of the money, that's why I open the account in Menai. Q. You do agree, don't you, that when you did open that account, you caused the bank account opening documents to be faxed through to the Westpac branch at Menai, didn't you? A. Can you ask again the question? Q. Yes. You were responsible - when the Cleaning Doctor bank account was opened in Menai, you were the person responsible for the information on that bank account being, on that application form, being filled out? A. Yes. Q. And you were the person who was responsible for ensuring that your company's or your business's fax number was on that bank account? A. That's correct. Q. And also, ensuring that the post office box was a post office box that you controlled? A. Yes. Q. I want to suggest to you that what you said to Mr Itawi was that you need an account that you could pay his share of the profits into, that's what you told him, wasn't it? A. What profits? Q. From the businesses - sorry - the profits that - I will start again - his share of the profits that Clean & Clear was making from the contract at the University of New South Wales? A. Can you ask the question again, please? Q. Yes. I suggest that what you said to Mr Itawi to get him to open up the Cleaning Doctor bank account was that he needed a bank account that you could pay his share of the profits from the Spotless contract at the University of New South Wales into? A. That's not only ..(not transcribable).. He have to be pay the workers, workers plus his profit."
15. I note the inconsistency between, on the one hand, Orlando's evidence that the CD Account was opened at the Menai branch so that Orlando could control the money and to avoid problems that had occurred in the past with Ali failing to pay workers and, on the other hand, the evidence of Orlando and Jeffrey that cash withdrawn from the CD Account was handed to Ali with nothing more than a verbal instruction to pay the workers. [256]
16. On the day that the CD Account was opened, a deposit of $36,320 was made into the account at the Menai Westpac branch and the same sum was immediately withdrawn from the account in cash. [257] The withdrawal slip, and Westpac's record of the denominations in which the $36,320 was paid in cash, were tendered in evidence. [258] The source of the deposit was a cheque drawn on the account of Crew Hire. [259]
17. In his affidavit affirmed on 17 September 2018, Jeffrey deposed that Ali telephoned him on 30 September 2009 and told him that he had opened the CD Account but that the cheque book would take a few days. Jeffrey then asked Ali to meet him at the bank so that they could make a withdrawal that day to enable Ali to pay the workers. Jeffrey deposed that they met at the bank, where Jeffrey told Ali that the amount they needed to withdraw was $36,320, Jeffrey transferred that amount from the Fonseca business to the CD Account and Ali withdrew the same amount from the CD Account using a withdrawal slip. Jeffrey saw Ali present the withdrawal slip to a teller and receive the sum of $36,320 in cash. Jeffrey then told Ali to make sure that he paid the workers that day. [260]
18. In his affidavit affirmed on 9 May 2019, Ali confirmed that he withdrew the $36,320 in cash on 30 September 2009, but said that the money was taken by Jeffrey. Ali said that he believed that it was to pay the mortgage and bills for the Bardwell Property, which he believed were in arrears at that time. [261] In cross-examination, Ali was asked to explain the basis for his understanding that Orlando required $36,320 in cash in the denominations that Ali withdrew from the CD Account on that occasion, including 120 five dollar notes and 200 ten dollar notes, to make a payment for the Bardwell Property mortgage. Ali did not offer any explanation. He simply continued to assert that he believed that Orlando would use the money to pay "my mortgage" and that it was not his business to ask why the cash was required at all or in those very small denominations. Ali denied that the withdrawal was made up in those small denominations because the money was to be paid to workers. [262]
19. Ali was cross-examined about his affidavit evidence that he did not authorise any withdrawals from the CD Account, including this withdrawal of $36,320: [263] "Q. Do you agree that in paragraph 29 [referring to Ali's affidavit affirmed on 8 October 2015] you said, and I quote, 'None of the debits or withdrawals from the Cleaning Doctor's account were authorise by me.'? A. Yes. Q. That's not true, is it? A. It is true. Q. So, when you went there and made the very first withdrawal which you just agreed with me you did, you want to say that you didn't authorise yourself to do that; is that what you're saying? A. I picked up the cheque, but not for me. Q. I'm not talking about a cheque. I'm talking about the first withdrawal which you know perfectly well was made by means of a withdrawal slip-- A. Yes. Q. --filled out by yourself, wasn't it? A. Yes, true. Q. And signed by yourself? A. Signed only by myself. Q. And you went to the bank personally-- A. I went to the bank-- Q. --filled out the withdrawal slip at the bank, signed the withdrawal slip and received approximately $36,000 in cash? A. Yes. Q. And you're not saying, are you, that you did not authorise that withdrawal? A. I did not authorise it, no. The cheque was written, I went to withdraw it, and I gave it back. Q. You mentioned the cheque again. What cheque are you talking about? Are you saying there's some cheque involved with this 36,000 withdrawal? A. Cheque? I didn't mention any cheques."
20. In his affidavit sworn on 8 October 2015, Ali deposed that he had signed a cheque book full of blank cheques on the CD Account at Orlando's request about one week after the account was opened. [264] As referred to at [195] above, Ali also gave evidence to the effect that Jeffrey had told him that he should do this so that Orlando and Jeffrey could complete the cheques and withdraw money from the CD Account to pay the Bardwell Property mortgage. Ali gave similar evidence in cross-examination. When asked what he thought the blank cheques were going to be used for, Ali said: "Whatever left in that account to pay for my mortgage to pay the house in five years' time so I can get it back." [265] Ali was given the opportunity to explain why, if funds from the CD Account were to be used to pay the mortgage, this required him to sign blank cheques rather than Orlando or Jeffrey transferring he funds to the mortgage account electronically. No rational explanation was forthcoming. [266]
21. When asked why he did not at least complete the name of the lender on the blank cheques that he signed, Ali said that he did not know the name of the lender and he did not ask Orlando for the name because "I would sign this on trust". [267] That is inconsistent with Ali's evidence in his 27 May 2015 affidavit that, by September 2009, "I didn't trust Orlando. I didn't consider him a man of his word." [268]
22. There is no dispute that Orlando asked Ali to sign all of the cheques and to leave the cheque book and debit card with Orlando. According to Orlando, they had a conversation in relation to this which I have set out above at [191] [269] although Ali denies that he had a conversation with Orlando in those terms. [270]
23. It was common ground that Ali gave the debit card for the CD Account to Orlando. [271] Ali gave evidence that he "didn't think what he [Orlando] was going to do with it", but denies authorising any ATM withdrawals from the CD Account using the debit card. [272]
24. Ali then gave the following further evidence in cross-examination (my emphasis): [273] "Q. I want to ask you about the debit card that I talked to you about last Friday, the debit card on the Cleaning Doctor account. … Q. But you happily signed the debit card and gave it to Orlando, didn't you? A. I signed the debit card and gave it to them. Q. You know that there's only one point in signing a debit card and that's to allow someone to use it, isn't it? A. No, I just signed it because I have to sign the debit card. Q. Are you saying Orlando twisted your arm and said you must sign this? A. I never said that. Q. Okay. So, you signed it freely? A. I signed it freely, the same way I signed the cheques. Q. It must have occurred to you there's some purpose to it? A. None at all. Q. You say you just signed it and you thought there was no point to it? A. No point to it at all whatsoever. Q. Did you say to Orlando, 'There's no point in my signing this'? A. I didn't ask him that at all. Q. You didn't ask him because you knew the purpose of it? A. No, I never knew the purpose of it at all. Q. Did you care? A. No, I didn't care. Q. Did you care that he might use the debit card? A. He's got the chequebook signed so the debit card is the same as a chequebook and why should I worry about the debit card when I didn't worry about the cheques because I knew what the purpose of all that from day 1. Q. Well, what's the purpose of signing the cheques then if you gave him the debit card? A. The cheques are for my mortgage. Q. What's the purpose of signing the debit card if you gave him the cheques? A. I didn't ask. Q. I don't see what the purpose of it was. A. I didn't ask at all, the same as I signed the cheque. The purpose for the cheque is the same purpose for the debit card. Q. You didn't have any conversation with him about the purpose of the debit card you say. Is that right? A. No, I don't have to. I signed the card the same way I signed the cheques."
25. Ali's evidence that he signed the debit card freely, without knowing why Orlando required the debit card for the CD Account, is very difficult to reconcile with his evidence that by September 2009, "I didn't trust Orlando. I didn't consider him a man of his word". [274] Moreover, Ali's evidence given in cross-examination referred to above developed stark inconsistencies in the course of answering those few questions. Ali initially said that he signed the debit cards without there being any purpose for him to do so ("none at all"; "no point to it at all whatsoever"), or at least no purpose that he knew or cared about. Ali then changed his evidence and said (in the emphasised answer) that he did know that the purpose was, and that it was the same as the purpose for which he says he signed the blank cheques, being to facilitate Orlando paying "my mortgage".
26. In his affidavit sworn on 8 October 2015, Ali deposed that he signed a second cheque book for the CD Account at the Fonsecas' office in or about December 2011 and a third cheque book at the gate of a loading dock at UNSW in or about October 2012. Ali deposed that he did this at the request of Orlando and Jeffrey, and that he felt compelled to do so for fear that Orlando would otherwise evict him from the Bardwell Property. [275] It is very difficult to reconcile this evidence with Ali's willingness to trust Orlando in October 2012 to rectify the deregistration of Cleaning Doctor and the resulting vesting of its property in the Commonwealth and stop on all transactions on the CD Account, as referred to at [268] below.

Working relationship between Ali and the Fonseca businesses and transactions on the CD Account: October 2009 to April 2010

1. As referred to at [140]-[145] above, Clean & Clear was a subcontractor to TBM for maintenance work at UNSW prior to September 2009. TBM was itself a subcontractor to Spotless. Spotless had the head contract with UNSW. As referred to at [237]-[239] below, Spotless began to contract directly with Clean & Clear trading as "CCG Projects" at some time in 2010.
2. Orlando described Cleaning Doctor as a subcontractor to Clean & Clear, but Ali disputed this characterisation of Cleaning Doctor's role and gave evidence that Cleaning Doctor did not provide any workers for jobs at UNSW. [276]
3. Orlando described most of the cleaning and property maintenance work done by the Fonseca businesses at UNSW during the period from September 2009 to October 2012 as unskilled work for unqualified workers such as cleaners, labourers and general handymen. [277] Orlando's evidence about the nature of the work and the workers was not challenged in cross-examination.
4. Orlando gave evidence that: [278] "From about September 2009 to October 2012 I continued receiving workers' time sheets from Ali and I continued calculating the pay for Ali's workers, and also Ali's money, as I did before but, instead of paying money to Ali's bank account as I had been doing, I transferred money to the Cleaning Doctor's bank account regularly. Sometimes I did it personally. Most times I said to Jeffrey words to the effect: 'Transfer $[I stated the amount] to the Cleaning Doctor' and I left it to him to do the transfer."
5. Orlando gave further evidence that, on most occasions, he also instructed Jeffrey to cash a cheque on the CD Account for the relevant amount and to give the cash to Ali to pay the workers. [279]
6. In the select portions of Jeffrey's affidavit sworn on 1 July 2015 that were read by the defendants at the final hearing, Jeffrey deposed that: "I deny that I have ever drawn any money from Cleaning Doctor's bank account without the authority of Ali Itawi." [280] However, Jeffrey agreed in cross-examination that the following statement that he had subsequently made in his 8 September 2017 affidavit was true: "Mr Itawi did not instruct me to withdraw the amounts from the Cleaning Doctor's bank account in the sense that he gave me permission to do so. The permission to withdraw money was given by my father." [281] That part of Jeffrey's 8 September 2017 affidavit was not read by the defendants at the hearing. Jeffrey then deposed (in a part of the affidavit that was read) that Orlando told him that: "… it is your job to look after the transfer of money for wages for the Cleaning Doctor. After the wages have been calculated and transferred to the Cleaning Doctor, you will need to withdraw the money and give it to Ali so he can pay the subbies." Jeffrey gave evidence that he would transfer amounts from Clean & Clear's bank account to the CD Account electronically, and then write out those amounts on cheques drawn against the CD Account. Jeffrey described the usual practice as being that "I would write out the amounts on each cheque, withdraw the money and then hand it to Mr Itawi." [282] Jeffrey said in cross-examination that Ali was aware that he was withdrawing the money from the CD Account. [283]
7. In cross-examination, Jeffrey was asked about a statement he had made in his affidavit sworn on 1 July 2015 that, on each occasion when Jeffrey had made withdrawals from the CD Account using cheques written to cash, he had done so on the specific instructions of Ali and that Ali had not only signed but also written those cheques in Jeffrey's presence. Jeffrey was also asked about a statement that he had made in his affidavit sworn on 17 July 2015 to the effect that Ali had asked Jeffrey to write out some of the cheques, but only on a couple of occasions. Jeffrey said that he had made a mistake when he had made those statements in his affidavits sworn on 1 July 2015 and 17 July 2015. [284] He denied that, in making those statements, he had given false evidence about Ali writing the cheques. He denied changing that evidence only after the plaintiffs adduced evidence of the cheques and it was plain to Jeffrey that most of the cheques were written in his own handwriting. It was put to Jeffrey that he could not have forgotten writing over 40 cheques on the CD Account when he swore his 1 July 2015 affidavits and that he had knowingly given false evidence in those affidavits about who wrote the cheques. Jeffrey denied this and maintained that he had made a mistake or had forgotten that he had written the cheques at the time he swore those affidavits. [285]
8. Jeffrey also gave evidence that, when he cashed a cheque on the CD Account, he gave the cash to Ali. If Ali was with him at the bank when the cheque was cashed, he handed it to Ali in the bank. If not, then Jeffrey went from the bank to UNSW where he handed the cash to Ali without obtaining any receipt from Ali for the cash. Jeffrey gave evidence that he had seen Ali handing out cash to maintenance workers at UNSW on at least seven or eight occasions during the period from September 2009 to October 2012. [286]
9. In his 17 September 2018 affidavit, Jeffrey also deposed that, on about 15 or 20 occasions when he did not have the CD Account cheque book or he had run out of cheques, he attended the Westpac branch at Menai or Kingsford together with Ali and Ali made a cash withdrawal from the CD Account in the amount that Jeffrey stipulated. On some of these occasions they then travelled to UNSW together where Jeffrey saw Ali hand out cash to maintenance workers. [287]
10. As referred to at [293]-[296] below, Jeffrey also made withdrawals and payments from the CD Account for what he describes as personal expenses and business expenses of Clean & Clear.
11. Orlando gave evidence there were a few occasions on which he (rather than Jeffrey) cashed a cheque on the CD Account and gave the cash to either Ali or Jeffrey. On those occasions where Orlando gave the cash to Jeffrey, he says that he instructed Jeffrey to give it to Ali and to "[m]ake sure he pays the workers". [288]
12. Ali denies that deposits made to the CD Account were for the purpose of paying maintenance workers at UNSW. In his 9 May 2019 affidavit, Ali deposed that, during the period after Cleaning Doctor was established, Swell Trades paid the maintenance workers under Ali's direct supervision and "independent trades" were paid by Clean & Clear or "CCG Projects". [289] Earlier in the same affidavit, Ali described the payments by the Fonseca businesses to tradespersons directly as being "specialist trades" such as electricians, plumbers and painters. Ali added that those kinds of subcontractors will generally not accept cash. [290] Ali's evidence that "specialist trades" or "independent trades" were paid directly by Clean & Clear rather than being paid in cash is broadly consistent with Orlando's contention that it was only qualified tradespersons who were engaged and paid by Fonseca businesses directly. [291] As I have already noted, Orlando was not challenged in cross-examination about his evidence that most of the work at UNSW after September 2009 was unskilled work done by unqualified workers.
13. I note that the plaintiffs adduced evidence from five tradespersons who had undertaken work at UNSW that had been arranged by Ali. One witness described himself as a "maintenance contractor", [292] another witness described himself as a plumber, [293] two witnesses described themselves as electricians, [294] and one witness deposed that she was an employee of a company or business known as Quality Blinds. [295] Each of these witnesses deposed to having invoiced and been paid by CCG directly for the work undertaken at UNSW.
14. As referred to at [202] above, the defendants did not adduce evidence from any person who undertook cleaning or maintenance work at UNSW as an employee or contractor of Cleaning Doctor in the period after September 2009.
15. Although Jeffrey gave evidence that Cleaning Doctor was a subcontractor to Clean & Clear and that the payments made by Clean & Clear to the CD Account were payments in respect of that subcontract, and although it was his understanding that Clean & Clear would require a tax invoice from Cleaning Doctor in order to claim tax deductions for payments made to Cleaning Doctor under the subcontract, Jeffrey could not recall having seen a single tax invoice issued by Cleaning Doctor to Clean & Clear. [296] No such tax invoices were tendered by the defendants. I note that Jeffrey was the sole director of Clean & Clear at all relevant times until 25 November 2011. [297]
16. Orlando was also cross-examined about the absence of any evidence of Cleaning Doctor having issued tax invoices to Clean & Clear for the work that Orlando and Jeffrey say Cleaning Doctor did as Clean & Clear's subcontractor. He gave the following evidence: [298] "Q. If, indeed-- A. Mm. Q. --as you say it, the Cleaning Doctor was set up as a subcontractor to Clean & Clear for this work, you would have received tax invoices from the Cleaning Doctor for this work, wouldn't you? A. Tax invoices from who? Q. Cleaning Doctor? A. He never send anything to me. Q. You don't have any tax invoices from the - sorry - you never received any tax invoices from the Cleaning Doctor for what you claim was this subcontracting work-- A. That's correct. He dealing directly - directly with Mr Cassaniti, with the tax invoices, tax returns, everything. Q. You claim, do you, that you told Mr Itawi that he had to send the tax invoices directly to Mr Cassaniti? A. Yeah, because Mr Cassaniti, he set up the account for Cleaning Doctor. Q. But as far as your business went, Clean & Clear, you would have had needed to have received tax invoices for the moneys that you were paying to the Cleaning Doctor, on your version of events? A. That's all right, but that's what I said to you, the - the invoices had been sorted out with accountant. He send it to the accountant. Q. Nowhere do we see in any of your affidavits that you say that there was instructions to Mr Itawi to send the Cleaning Doctor tax invoices direct to the accountant. That's not in your affidavit, is it, and when Mr Cassaniti was-- HER HONOUR: Sorry, Mr Ashhurst, the transcript should note that the witness turned his hand up and shrugged his shoulders. WITNESS: Sorry. ASHHURST Q. And when Mr Cassaniti gave evidence in these proceedings, your counsel didn't put to him that he had received tax invoices from the Cleaning Doctor, did he? A. No idea, but still if he ..(not transcribable).. he doesn't want to tell you the true ..(not transcribable).. Q. You're just making this claim up about tax invoices coming from the Cleaning Doctor directly to Mr Cassaniti, aren't you? A. Not the first time this you be asking me before. Q. Why haven't you ever said that in your any of your other affidavits? A. I can't give you that answer. Q. See, the reason why you don't have tax invoices from the Cleaning Doctor to Clean & Clear but you do have tax invoices directly from the subcontractors to Clean & Clear for the work at University of New South Wales is the Cleaning Doctor was never a subcontractor to Clean & Clear, was it? A. That's not true."
17. Ali denies authorising cash withdrawals from the CD Account to pay workers. He denies accompanying Jeffrey to Westpac branches to make cash withdrawals from the CD Account, denies making withdrawals from the CD Account himself (with the exception of the $36,320 withdrawn on the day the account was opened, as referred to below), denied receiving cash from the CD Account and denies authorising withdrawals from the CD Account for any purpose other than to pay the Bardwell Property mortgage. [299] However, somewhat inconsistently with those sweeping denials, Ali also gave evidence that he had authorised Orlando and Jeffrey (or members of their family) to withdraw money from the CD Account for the purposes of paying to him the $2,500 per week that he says he negotiated with Orlando in September 2009 [300] and making repayments of $1,200 per week for his car loan. According to Ali's evidence, the $2,500 weekly payments began after he signed the CD Account cheque book and left it with Orlando, but the payments were only made on about four occasions. [301] As referred to at [150]-[154] above, the bank statements in evidence show that some payments of $2,500 were made to Ali's personal bank account before Cleaning Doctor was incorporated. Those payments had ceased in mid-September 2009, before the CD Account was opened.
18. The CD Account statements show that, after the initial deposit and withdrawal of $36,320 on 30 September 2009, the next transaction was a deposit of $8,000 made at the Menai branch on 16 October 2009. It appears that Crew Hire was also the source of this payment to Cleaning Doctor, as $8,000 was withdrawn by cheque from Crew Hire's account on 16 October 2009. The sum of $8,000 was withdrawn from the CD Account on the same day that it had been deposited into that account. [302] Thereafter, almost all deposits into the CD Account were by electronic transfer. During the period from October 2009 until October 2010, all of those deposits were made by Crew Hire, with the exception of a small number of payments made by Swell Trades into the CD Account. Neither Orlando nor Ali were able to explain those payments made by Swell Trades. [303]
19. The Crew Hire deposits paid into the CD Account were in varying amounts and were made frequently, sometimes daily. During the period up to the end of March 2010, a total amount of $381,610 was deposited into the CD Account by Crew Hire (including the initial deposits of $36,320 and $8,000 to which I have already referred). [304] After the initial two deposits, the deposits were generally made by electronic funds transfer. Typically, an amount equal or almost equal to each amount deposited was withdrawn from the CD Account the same day or the day following the deposit. Almost all of the withdrawals were by cheque. [305] I note that Jeffrey gave evidence that Cleaning Doctor was not a subcontractor to Crew Hire. He could not explain why Crew Hire had made payments into the CD Account and suggested that Orlando may be able to explain those payments. [306]
20. Orlando gave the following evidence: [307] "Q. … Now, on your version of events, if I understand it correctly, you say that the Cleaning Doctor was a subcontractor to Clean & Clear for the Spotless contract at the University of New South Wales? A. That's correct. Q. Correct. In those circumstances, there would not have been any reason for companies such as Crew Hire to have been paying money into the Cleaning Doctor account? A. Yes. Q. You are agreeing with me, there would have been no reason for Crew Hire to have been paying money into the Cleaning Doctor account? A. At least no money in Clean & Clear. We borrow money from the other companies to pay - to pay the subcontracting our workers."
21. The defendants did not identify any evidence supporting Orlando's assertion that Crew Hire and Link (another company through which the Fonseca Family operated a cleaning business [308] ) made payments to Cleaning Doctor because Clean & Clear lacked the funds to do so. On the contrary, as the plaintiffs submitted, the bank statements that were tendered for Clean & Clear, Crew Hire, Link and Cleaning Doctor show substantial payments made by Clean & Clear to Crew Hire or Link shortly before many of the payments made by Crew Hire and Link to Cleaning Doctor. [309]

Working relationship between Ali and the Fonseca businesses and transactions on the CD Account: April 2010 to October 2012

1. Ali gave evidence that his consultancy arrangement with TBM came to an end in April 2010 when TBM ceased its Sydney operations. [310] At that time, he "came to work with Orlando (and his family)", even though he "considered Orlando to be a 'snake'". According to Ali, he understood that he was working together with Orlando in a joint venture or profit-sharing arrangement. He says that he went into this arrangement despite his lack of trust in Orlando because TBM was closing its Sydney operations, he had agreed with Orlando in September 2009 that he would come to work with him within one year and he was hoping that Orlando would transfer the Bardwell Property to him and he "felt that if I just cut ties and told him I didn't want to have anything to do with him or his family, I would lose all chance of getting it back". Ali described this last reason (the Bardwell Property) as his main reason for working with Orlando after April 2010. Ali also said that he "felt as though I would have a better feeling for the business overall working from the inside. I felt that it was less likely that Orlando would try and deceive me about my entitlements". [311]
2. In his affidavit sworn on 8 September 2017, Orlando deposed that Clean & Clear had a large contract with Spotless for maintenance work at UNSW, where Ali was based. [312]
3. The plaintiffs read an affidavit of Mr Joseph Baraya, who was employed by Spotless Facility Services as a Senior Projects and Engineering Manager at UNSW from about 2008 to 2013. In the course of this work, Mr Baraya met Ali in about 2008. Mr Baraya gave evidence that, "[a]bout a year or so" after he met Ali, Ali told him that "he had joined another company by the name of CCG". According to Mr Baraya, Ali "asked me if I could give CCG a chance to perform some project work at UNSW". Mr Baraya understood that "CCG was one business among a number of businesses run by Mr Orlando Fonseca". As referred to at [11] above, the company CCG Projects was not incorporated until May 2013, but Clean & Clean registered the business name "CCG Projects" in April 2010.
4. Mr Baraya agreed to give "CCG" a chance. He attended to the formalities of registering "CCG" with UNSW and began allocating work to "CCG" on the basis that Ali would continue to manage the work as usual. Mr Baraya estimated that millions of dollars each year in general maintenance and projects had been allocated by Spotless to "CCG" and managed by Ali in accordance with this arrangement, with Ali being the person through whom all of Spotless' communications with "CCG" were directed. [313] The defendants did not cross-examine Mr Baraya.
5. According to Orlando, most of the cleaning and property maintenance work done by the Fonseca businesses at UNSW after April 2010 continued to be unskilled work for unqualified workers such as cleaners, labourers and general handymen. [314] This aspect of Orlando's evidence was not challenged in cross-examination.
6. Orlando gave evidence that, after Spotless paid Clean & Clear for maintenance work, Orlando arranged for the wages of the workers who had performed that work to be paid into the CD Account. The amounts paid into the CD account were calculated based on the number of hours worked by the workers, as recorded on time sheets prepared or signed off by Ali. Ms Monica Alvarado, who worked for the Fonsecas from about October 2011, helped to calculate the amounts based on the time sheets. Jeffrey was responsible for arranging the amount to be paid into the CD Account, and this was usually done by an online funds transfer. [315]
7. In her affidavit sworn on 8 September 2017, Ms Alvarado deposed that her duties at Clean & Clear included calculating wages for subcontractors based on a bundle of time sheets that she received each fortnight from Jeffrey or Orlando. The timesheets recorded the hours worked by a particular person, and Ms Alvarado's job was to add the numbers up and tell Jeffrey how much to pay them. [316] In her affidavit sworn on 26 September 2018, Ms Alvarado added that, when she was handed time sheets by Jeffrey or Orlando, they said to her words to the effect: "Here are the time sheets for the Cleaning Doctor…". [317] Ms Alvarado never saw any tax invoices issued by Cleaning Doctor to Clean & Clear and was never asked to reconcile the payments made by any of the Fonseca businesses to Cleaning Doctor with any tax invoices issued by Cleaning Doctor. [318]
8. Ms Alvarado gave no evidence about the method by which workers were paid the amounts that she had calculated. She deposed that she never saw bank accounts for Cleaning Doctor. [319]
9. As referred to at [216]-[230] above, Orlando and Jeffrey gave evidence about their roles in transferring funds to the CD Account that were then withdrawn in cash which they say was given to Ali to pay the workers. Ali issued no receipts for the cash and Cleaning Doctor issued no tax invoices to Clean & Clear in respect of the large sums deposited in the CD Account, unless Ali sent such tax invoices directly to the Fonseca family's accountants as Orlando suggested for the first time in cross-examination. According to Ms Alvarado, tax invoices issued by contractors to Fonseca businesses were generally kept at their offices and were not sent to the accountants even for the purposes of preparing quarterly accounts. [320]
10. In his affidavit affirmed on 18 September 2018, Orlando deposed that he had a conversation with Ali to the following effect in late 2010, when Ali was still based at UNSW and acting as the on-site manager for jobs on that site: [321] "Ali: 'I have a company that I own. It is called Swell Trades Pty Ltd. You should put my pay into its bank account. Also, any new jobs I get for you I want a percentage of the profit like before. I will tell you how much I want when I get the jobs. I will get my own workers for some of the jobs. I will let you know which ones and you can also transfer the money for their pay like before.' Orlando: 'Okay.'"
11. Orlando deposed that he (or Jeffrey, at his direction) transferred money from his business bank accounts into Swell Trades' bank account from about late 2010 until about June 2014. [322] He described these payments as "wages". [323]
12. Jeffrey gave evidence to the effect that he made electronic payments to Swell Trades' account from time to time after discussing the amounts with Orlando. [324]
13. The defendants tendered electronic transaction receipts which show that Clean & Clear made frequent payments to Swell Trades during the period from October 2010 to October 2012. [325] There is no regular pattern to the timing of the payments, which varied from daily to approximately fortnightly. Whilst the amounts of the payments varied, the amounts were typically less than the amounts of the payments made to the CD Account by CCG Projects, Link Cleaning and Link Group during the same period. The amounts of Clean & Clear's payments into Swell Trades' bank account during the period from October 2010 to October 2012 varied between $500 and $10,000, whereas the amounts of the payments made by the Fonseca entities to the CD Account during the same period varied between $250 to $30,000 and a significant number of payments exceeded $10,000. [326]
14. Some of the receipts bear handwritten notes that appear, on the face of them, to indicate that the purpose of the payments included putting funds into Swell Trades' bank account to pay the "staff" referred to by Ali in his evidence set out at [251] below. [327]
15. As referred to at [226]-[229] above, Ali denies that payments made to the CD Account were for the purpose of paying maintenance workers at UNSW and denies authorising cash withdrawals from the CD Account to pay subcontractors or workers. As referred to at [226]-[227] above, Ali gave evidence that, in the period after Cleaning Doctor was established, the two maintenance workers under his direct supervision were paid by Swell Trades and specialist independent trades were paid directly by the Fonseca businesses. [328]
16. In his 9 May 2019 affidavit, Ali referred to his "my new style of records for UNSW work from August 2010" [329] and continued: [330] "At coffee, each morning, I told Orlando how much I needed to have transferred from the Fonseca businesses to pay the maintenance staff that I supervised directly at UNSW and these amounts were received in the Swell Trades account. The staff were Issam (also known as Sam) and his brother, late 2009 until about mid-2011, and Mohammed and his brother was mid-2011 until about 2013. I paid the staff each week in cash, generally withdrawn from an ATM at UNSW."
17. Ali gave evidence that the payments made by Fonseca businesses to Swell Trades' bank account: [331] "… were to pay the maintenance staff that I supervised directly at UNSW: generally a subcontracted worker charged $150 per day for about five or six days per week, though sometimes this would vary." [332]
18. During the period from April 2010 until October 2010, all deposits into the CD Account were made by Crew Hire, as referred to at [232] above. The total amount deposited by Crew Hire during that period was $518,290. As before, the deposits were typically made by electronic funds transfer, were made in varying amounts and were made frequently, sometimes daily. [333] As referred to at [232]-[235] above, Crew Hire was not a subcontractor to Cleaning Doctor and there was no evidence explaining why Crew Hire had paid money into the CD Account, other than Orlando's speculation that Clean & Clear may have lacked funds at the time to make the payments that he says were for the wages of the workers who had done the work subcontracted by Clean & Clear to Cleaning Doctor.
19. From October 2010, money paid into the CD Account was paid by Clean & Clear (trading as CCG Projects) and Link. Clean & Clear paid a total amount of $1,145,567 and Link paid a total amount of $607,367 into the CD Account during the period from October 2010 to October 2012. [334]
20. As referred to at [229]-[230] and [242] above and [307] below, there is no evidence of Cleaning Doctor having issued any tax invoices to Clean & Clear in respect of the payments totalling $1,145,567 that Clean & Clear made into the CD Account. The defendants did not put to Ali in cross-examination that any such tax invoices had been issued. Nor did they put to Mr Cassaniti in cross-examination that his firm had received on behalf of Clean & Clear any tax invoices issued by Cleaning Doctor.
21. Cleaning Doctor was not a subcontractor to Link, and Link was not involved in any work at UNSW. Jeffrey was unable to explain why Link paid $607,367 into the CD Account. [335]
22. The pattern of funds being deposited frequently (but without any regular pattern to their timing) and in varying amounts, and being promptly withdrawn, continued throughout the whole of the period from April 2010 to October 2012. Almost all of the withdrawals were by cheque. [336]
23. It is necessary to mention Ali's evidence about one specific withdrawal from the CD Account during this period. Ali deposed that he authorised a withdrawal of $10,000 from the CD Account on 22 June 2011, and that he had made that withdrawal by cashing cheque number 200125 and handing the proceeds to Jeffrey. In his 8 October 2015 affidavit, Ali deposed that he did this at the request of Jeffrey, who told him that the money was needed "to pay expenses of the business". Ali said that he did not question this. [337] In cross-examination, Ali was asked why he did not question this, if he understood that funds were only supposed to be withdrawn from the CD Account for the purpose of paying the Bardwell Property mortgage. Ali gave an answer that initially suggested that he did not question it because "they were always claiming they have problems with Taxation Office and they always ask me to be patient because they need the money to cover their expenses." Ali said he had had conversations with Orlando to that effect "[m]ore than hundreds of times" during the period from about 2011 until 2015. However, he then clarified that those conversations were not about withdrawals from the CD Account. Rather, they occurred when Ali asked for money. [338]
24. Ali also gave the following evidence about this $10,000 withdrawal: [339] "Q. I see. When you went to the bank personally with a cheque drawn to cash for 10,000 and produced your driver's licence, and received the cash, are you saying you did not authorise that withdrawal? A. No, I didn't. Q. You were against it, were you? A. Not against it. Q. Were you in favour of it? A. I was asked to withdraw the money and give it back to them. I asked - I withdraw it. I give it back to them. Q. Were you in favour of doing the withdrawal? A. Doesn't mean I'm in favour or not. I knew that I'm taking the money and give it back to them. Q. Did you oppose doing the withdrawal? A. No, never. Q. So, you were in favour of it? A. I took the money. It didn't mean anything for me, because not my money. Q. But don't you agree that you authorised those withdrawals? A. I was - I authorise the signature. I signed the cheque. That's all I did. I signed the cheque. That's all. It ended there, when I signed the cheque. I never knew what's in there or there was nothing there. Q. Except that I have just given you two examples where you've agreed that you went to the bank personally and withdraw the money and received it? A. I didn't receive it. I withdraw the money, but not for me. I'm saying that from day 1. It wasn't my money. Q. You're saying, aren't you, that you withdraw the money, but handed it to Jeff? A. Straightaway, on the spot."
25. The cross-examiner gave Ali an opportunity to clarify this evidence the following day. Regrettably, no clarity emerged: [340] "Q. Could you go to page 310 of the transcript that I've handed you and go to line - about line 13 and this is part of a passage where I was talking to you about the $36,000-odd withdrawal - sorry, I withdraw that. This is part of a passage when I was asking about the $10,000 check that you took. On my transcript that starts at the end of 309. I asked you a few questions about it and then at about line 16 of my copy, I asked you, and I quote, 'So, you were in favour of it?' This is about the withdrawal. You answered and I quote, 'I took the money. It didn't mean anything for me, because it's not my money.' Then if you go a few lines further down, around about 27, you're still talking about the same withdrawal and you said, 'I'm saying from day one it wasn't my money.' Do you see that answer? A. Yes. Q. What do you mean that the money in the Cleaning Doctor account that you were withdrawing was not your money? What do you-- A. That's not right. That's not right what you're asking me. Q. If you go back to 310 at about line 16, do you accept that I was asking you there about the $10,000 withdrawal? A. Yes. Q. What did you mean when you say 'because not my money'? A. Not given to me, when I cashed it, not given to me personally, that's what I meant. Exactly what I meant. Not given to me personally. It wasn't my money to take in my pocket. That's exactly what it means. Q. Was the money in the Cleaning Doctor account - let's just say the Cleaning Doctor is you - you owned the Cleaning Doctor, didn't you? A. 100%. Q. So, for the time being, when I say to you, I mean the Cleaning Doctor-- A. Yes. Q. --you understand it, don't you? A. Yes. Q. So, was the money in the Cleaning Doctor your money? A. Of course, 100% my money, yeah. Q. When you take the money out and you hold it in your hands, is it still your money? A. No. If I hold my hands, not my money till I have it in my pocket, that's my money. Q. So, it changes ownership when you hold it in your hands, does it? A. No, it's not like that. Q. Well, if it's your money when it's in the account, what has happened to make it not your money when you hold it in your hands? A. Because it has to be paid against my mortgage. I can't take it and put it in my pocket and use it for myself. That's exactly what it means. Q. Is somebody stopping you? Is someone stopping you? A. Some? Q. Was someone stopping you? A. It's not for me to take it. They supposed to do the mortgage on my behalf. Q. You mean, you are not capable of doing things on your own behalf? A. I'm 100% capable of doing it, but it's not my job, that job that they would then to do the mortgage on my behalf, to pay my mortgage. Q. Was someone stopping you doing it on your behalf? A. No, Q. So, you thought, did you, that - by the way, when you took this cash out and you held it in your hands, that is the $10,000 cash, what did you do with it? A. I gave it back to who the person who took it off me. Q. Gave it what, sorry? A. Orlando or Jeff. I don't recall who I gave it to. One of them has to take the money off me. Q. Did you say you gave it back? A. Yeah, I gave back. I withdraw the money and I gave it to them. That's how I gave meaning back, I gave it to them. Q. What do you mean by "back"? A. I gave it to them. Q. So, when you say "back", you don't mean back? A. In my hand, back to them. Q. Well-- A. I didn't keep it. Q. --did they - did they hold it in the first place? A. Did they hold it? What do you mean they hold it? Q. When you use the words 'back to them', aren't you saying that they held it in the first place? A. No. When you take the money of the cash out the bank, you hold it in your hand and you give it back to someone. You don't keep in your hand. As simple as that. Q. Who did you give it to? A. I don't recall. Orlando or Jeff that time. I don't recall exactly now - now. Q. Did you have a conversation with whoever you gave it to, when you gave-- A. I might have. I don't recall it. I gave it back and said, 'Here's the money you asked me to withdraw for you.'"
26. Jeffrey denies asking Ali to withdraw the $10,000 to pay business expenses and denies that Ali gave him these funds. [341]
27. As referred to at [293]-[296] below, Jeffrey also made withdrawals and payments from the CD Account for what he describes as personal expenses and business expenses of Clean & Clear.

Cessation of payments to Cleaning Doctor and closure of the CD Account

1. In his affidavit affirmed on 18 September 2018, Orlando deposed that he was getting fewer jobs at UNSW by late 2012 and he ceased using Cleaning Doctor as a subcontractor in about October 2012. At that time, he stopped transferring money to or withdrawing money from the CD Account. [342]
2. As referred to at [238] above, Mr Baraya gave evidence to the effect that millions of dollars' worth of contracts were allocated by Spotless to Fonseca businesses during the period from 2010 until 2013.
3. The statements for the CD Account confirm that payments into and withdrawals from the account ceased in October 2012.
4. Ali gave evidence that, after October 2012, he "kept running the maintenance business as usual at the University of New South Wales". [343] That is consistent with the recitals to his employment agreement signed in November 2013 referred to at [297]-[303] below. Clean & Clear continued to make payments into the bank account of Swell Trades from November 2012 until shortly after Ali became an employee of CCG Projects in November 2013. Clean & Clear's payments made to Swell Trades during that year were approximately double the average annual payments made to Swell Trades during the previous two years (October 2010 to October 2012), but significantly less than the payments that Crew Hire, Link and Clean & Clear had made to the CD Account during that period. [344]
5. The CD Account was closed in January 2013. Ali, Jeffrey and Orlando each deny closing the account. Ali gave evidence that he did not know the account had been closed until he went to the bank in 2015 to ask for the statements for the account. [345]
6. The closure of the CD Account may be related to the deregistration of Cleaning Doctor in February 2012 for non-payment of ASIC fees. In or about October 2012, Ali received a letter from ASIC stating that Cleaning Doctor had been deregistered, that all of its property had vested in the Commonwealth, and that ASIC had written to Westpac to stop all transactions on the CD Account. [346] Ali gave evidence that he gave the letter to Orlando, who assured him that "I am fixing it". Ali deposed that, after this conversation, he didn't think much of the letter and assumed that Orlando would arrange for Cleaning Doctor to be re-registered. Ali never heard anything about it after that, and he did not follow up with Orlando to ask whether the problem had been fixed. Nor did he check with Westpac what had happened to the money in the CD Account. [347]
7. It is not clear from the evidence when Cleaning Doctor's registration was reinstated, but I assume that this occurred at some time prior to the commencement of these proceedings on 28 May 2015. No party suggested otherwise.

Matters emerging from evidence relating to the CD Account during the period September 2009 to October 2012

1. The following relevant matters are revealed by the evidence referred to at [189]-[268], considered as a whole.
2. First, the timing of the incorporation of Cleaning Doctor on 16 September 2009 and the opening of the CD Account on 30 September 2009 does not coincide with the timing of any of the changes in the working relationship that Ali and Orlando describe in their evidence. It was not until April 2010 that Ali says that he "came to work with Orlando" after Swell Trades' consultancy arrangement with TBM came to an end. The referral of large project and maintenance contracts from Spotless to Clean & Clear, facilitated by Ali, appears to have commenced in 2010 having regard to Mr Baraya's unchallenged evidence that the work was referred to "CCG Projects" and the timing of Clean & Clear's registration of that business name in April 2010. It was in late 2010 that Fonseca businesses began making payments to Swell Trades.
3. Second, the arrangements made with Westpac in establishing the CD Account meant that it was Orlando, and not Ali, who routinely received statements and other information concerning the account. It was open to Ali, as the sole director and shareholder of the account holder and as the authorised signatory on the account to request statements and information from Westpac at any time. Ali did not do so, as referred to at [286]-[289] below.
4. Third, during the period from the opening of the CD Account until October 2012 a total amount of $2,695,078 was paid into the account, of which: 1. $899,900 was deposited by Crew Hire during the period from October 2009 to October 2010; 2. $1,145,567 was deposited by Clean & Clear during the period from October 2010 to October 2012; and 3. $607,367 was deposited by Link during the period from October 2010 to October 2012.
5. An additional amount of $42,245 was deposited from sources not identified in the evidence. [348]
6. The defendants do not suggest that Cleaning Doctor was a subcontractor to Crew Hire or Link and the evidence does not explain why those companies made payments totalling $899,900 and $607,367 respectively to the CD Account.
7. The defendants describe Cleaning Doctor as a subcontractor to Clean & Clear, yet they adduced no evidence of Clean & Clear having received any tax invoices from Cleaning Doctor in respect of the amounts totalling $1,145,567 that Clean & Clear paid into the CD Account. The defendants say that those payments were for the wages payable to workers who performed the work at UNSW that Clean & Clear subcontracted to Cleaning Doctor. The evidence does not explain why Clean & Clear made payments to Swell Trades for "wages" during the period from October 2010 to October 2012 at the same time as Clean & Clear and Link were paying significant sums into the CD Account allegedly for the payment of workers' wages.
8. Fourth, the typical pattern of transactions on the CD Account was that a deposit would be followed by a withdrawal of the same or a similar amount on the same day or within a few days of the deposit. The amounts deposited and withdrawn varied significantly, with sums in excess of $30,000 being deposited and withdrawn on some occasions and sums as little as $250 being deposited and withdrawn on other occasions.
9. Fifth, the vast majority of withdrawals debited to the CD Account were made by cheques. Some withdrawals were made by branch assisted withdrawals, ATM withdrawals or retail point of sale withdrawals. There were also a small number of electronic payments made to third parties during November 2010, May 2011, September 2011 and October 2012. The evidence concerning these withdrawals is referred to in greater detail in [293]-[296] below.
10. The total amount withdrawn by cheque during the period from October 2009 to October 2012 was $2,205,617. Ali gave evidence identifying each of the cheques by which those withdrawals were made, confirming his signature on each of those cheques and denying that he had completed the payee, amount and other details on each cheque. Ali admits signing each of those cheques. Indeed, he signed whole cheque books full of blank cheques for the CD Account. Ali denies authorising the withdrawals [349] and says that neither Orlando nor Jeffrey had authority to withdraw any funds from the CD Account except for the purpose of repaying the Bardwell Property mortgage. [350] However, Ali also gave evidence that he allowed a $10,000 withdrawal that he was told was "to pay business expenses" without making any objection or protest. [351] In most instances, Jeffrey completed the details on the signed blank cheques and withdrew the cash at the Menai branch. He says that he made the withdrawals with the permission or on the instructions of his father, and that Ali was aware of the withdrawals. [352] Orlando gave evidence that he personally withdrew funds from the CD Account using a cash cheque at the Menai branch on about ten occasions. [353] Vilma wrote out one of Ali's signed blank cheques for the CD Account in the amount of $7,400 to be paid to cash on 13 May 2011. She gave the cheque to Jeffrey or Orlando, and it was cashed and debited to the CD Account on 13 May 2011. [354] Vilma completed another one of Ali's signed blank cheques for the CD Account in the amount of $40,000 to be paid to cash on 24 April 2012. Vilma could not recall what she did with that cheque after writing it, but the cheque was drawn on the CD Account on 24 April 2012 and the proceeds were deposited into Jeffrey's account three months after he had become bankrupt. [355] Joselyn was not challenged on her evidence that she was not aware that Cleaning Doctor operated a bank account. [356]
11. Sixth, although the defendants say that the purpose of the withdrawals from the CD Account was to provide cash to Ali to pay the workers who undertook work at UNSW that Clean & Clear subcontracted to Cleaning Doctor, the defendants adduced no evidence of any invoices issued by Cleaning Doctor to Clean & Clear in respect of that subcontracted work, as I have referred to above. Although Orlando gave evidence in cross-examination that it was necessary for the workers to be paid in this manner because Ali was a gambler and could not be trusted to pay them, the evidence of Orlando and Jeffrey is that the cash was simply handed to Ali with a verbal instruction to pay the workers and Ali was not required to provide any receipt for the cash. The evidence did not explain why workers were paid in cash via Ali rather than by payments made from the CD Account directly to the workers' bank accounts.
12. Seventh, Ali prepared no financial statements or tax returns for Cleaning Doctor, or for the partnership or joint venture that Ali claims Orlando and Cleaning Doctor agreed to enter into in September 2009. [357] Ali was unable to identify any contemporaneous document recording the profits made by the alleged joint venture or partnership, other than documents that he claims to have annotated with profit amounts and given to Orlando or the Fonseca businesses. Those documents were not in evidence. Ali offered no explanation for why he did not cause records of the alleged profits to be kept as part of Cleaning Doctor's records. [358] Ali gave evidence asserting that "on my estimate" the total amount of $2,695,078 deposited into the CD Account "does seem to amount to about 50% of profits from the trading of the business". [359] During the period from 30 September 2009 until the closure of the CD Account on 21 January 2013, all of those funds were withdrawn from the account. [360]
13. Eighth, Ali says that withdrawals from the CD Account were authorised only for the purpose of paying the Bardwell Property mortgage. The evidence does not reveal any reason why signed blank cheques would have been required for that purpose. Nor does the evidence reveal any reason why mortgage payments would have been made in cash rather than by electronic funds transfer to the relevant mortgage account or by cheque drawn in favour of the mortgagee.
14. Ninth, Ali denies receiving cash for himself from the CD Account. [361] In his affidavit affirmed on 9 May 2019, Ali deposed: [362] "With the money from the Cleaning Doctor, my wife and I wanted to buy another property in Sydney without any mortgage when I left the Fonsecas businesses and perhaps keep the Bardwell Valley house (which by then, should be paid off and transferred back to me) as a rental property. During the period of the Cleaning Doctor, we lived off the money coming in as wages (occasionally running short). We did not want a habit of drawing Cleaning Doctor money out as we how, in the long term, we intended to use those savings."
15. Ali gave a different reason for not withdrawing funds from the CD Account in his 27 May 2015 affidavit, in which he deposed that he did not withdraw from the account because Orlando said to him that he needed Ali to leave the money there "in case we need it". [363] It is very difficult to reconcile Ali's evidence of his willingness to leave money in the CD Account in case Orlando needed it with Ali's contention that the money in the account represented his or Cleaning Doctor's share of profits and was to be used to pay the Bardwell Property mortgage.
16. Orlando denies telling Ali to leave money in the CD Account "in case we need it". [364]
17. Tenth, Ali deposed in his 8 October 2015 affidavit that he often asked to see statements of account for the CD Account, and that Orlando would respond with threats to kick him out of the Bardwell Property. [365] As the sole director and shareholder of the account holder and the authorised signatory on the CD Account, Ali could have requested statements from Westpac. He did not do so at any time after September 2009. [366] In cross-examination, Ali said that he "didn't have to" ask for the account balance "because I knew that Mr Fonseca would honour what they had agreement to pay - what he had to pay." [367] That is inconsistent with Ali's evidence in his 27 May 2015 affidavit that, by September 2009, "I didn't trust Orlando. I didn't consider him a man of his word" [368] and that, by 2010, he considered Orlando to be a "snake". [369] It is also inconsistent with Ali's evidence referred to earlier in this paragraph that he did often ask to see statements for the CD Account. [370]
18. Ali's failure to make any inquiries with Westpac about the balance of the CD Account is difficult to reconcile with his evidence that he was in "significant financial difficulty" during the period from the end of 2013 until mid-2016 [371] and his evidence that, in March 2015, he understood that there was a lot of money in the CD Account that belonged to him and his family. [372] Although Cleaning Doctor was deregistered and the CD account was closed in January 2013, Ali claims to have been unaware of this until March 2015 at [329] below.
19. It was put to Ali in cross-examination that he did not make inquiries with Westpac about the balance of the CD Account because he already knew that there would be very little money in the account at any given point in time as the account was being used for Fonseca businesses to deposit workers' wages which were then withdrawn and paid to the workers in cash, in the same way that this had been done through Ali's personal bank accounts prior to September 2009. Ali denied this, saying that: "After 2009 it is not at all like it was before 2009." [373]
20. In re-examination, Ali was asked to explain the differences that he was referring to in that answer before and after 2009. Ali gave the following evidence: [374] "Q. … Can you please explain to her Honour what the differences were. Let's start with before 2009. How was your personal account and payments made to you by the Fonsecas operating before 2009? A. Before 2009 all the money that was coming to my account from CCG or any different name they had, was coming for the cleaning job that used to be done on several sites in Sydney. Then after 2009 the only money that's coming - Q. I'll just stop you there. Before you go there, the money is coming - which account of yours is that money, before 2009, going into? A. To my account Swell. Q. What did you do with that money after it came into your account before 2009? A. I took the money out and I gave it to be paid to the cleaners by the site managers. Q. Okay. The cleaners at what site? A. On several sites. … Q. What happened after 2009? A. After 2009 the money was deposited in my account, Swell Trades, for maintenance work done at UNSW - for maintenance work, for myself, as agreed, and for the two workers with me only. Q. Were they two permanent workers? A. Two permanent workers with me. Q. And was that the only money that the Fonsecas paid into your Swell account that that time? A. That is the only money. … Q. After 2009 who paid for the other maintenance workers who were operating on the New South Wales site? A. Any other subbies or workers at UNSW were paid by CCG office from their account. Q. Was that paid direct to the subcontractors at that site or were you involved? A. I wasn't involved at all. It was paid straight from CCG to the workers. Q. And after 2009 then, other than the two permanent employees you've referred to, did you receive any moneys from the Fonseca group of companies to on forward to any subcontractors? A. I never received any money from CCG for any other subcontractors."
21. Ali's evidence referred to immediately above is inconsistent with: 1. the objective evidence that Swell Trades was not even incorporated until March 2009; [375] 2. Ali's earlier evidence that TBM (not Orlando or any Fonseca business) made payments to Swell Trades to cover the wages for Ali and two workers during the period from March 2009 to April 2010; [376] 3. the banking records that do not reveal any payments made by Fonseca businesses to Swell Trades prior to October 2010; [377] and 4. Ali's earlier evidence that it was "specialised trades" or "independent trades" that were paid directly by Clean & Clear (noting that Orlando's unchallenged evidence that most of the work undertaken at UNSW was unskilled work done by unqualified workers). [378]
22. Eleventh, although Ali says that the money deposited in the CD Account represented his or Cleaning Doctor's share of profits, he was content to leave it to Orlando to attend to a letter that Ali received from ASIC in October 2012 stating that Cleaning Doctor had been deregistered, its property had vested in the Commonwealth and ASIC had written to Westpac to stop all transactions on the CD Account. Although Ali says that he did not trust Orlando, he did not follow up with him to check whether the matters raised in ASIC's letter had been addressed, and Orlando did not report back to Ali about it. [379] In April 2015, Ali described Cleaning Doctor as a company that Orlando had created fraudulently in Ali's name, as referred to at [356] below. Both the plaintiffs and the defendants denied the truth of that statement in these proceedings.
23. It was in October 2012, when Ali received the letter from ASIC and passed it on to Orlando, that transactions on the CD Account ceased.
24. Twelfth, as referred to at [278] above, there were some withdrawals from the CD Account in the period prior to October 2012 that were not made by cheque. The defendants do not contend that those withdrawals were made for the purpose of paying workers' wages.
25. In his 8 September 2017 affidavit, Jeffrey admitted making ATM withdrawals and EFTPOS transactions using the debit card for the CD Account at the Ivy Bar and Establishment Hotel (totalling $2,100 during the period from 29 November 2010 to 30 July 2012), at various locations in the vicinity of his residence (totalling $17,544.06 during the period from 11 March 2010 to 10 October 2012), at the Gold Coast in July and August 2010 and in June 2011 (totalling $1,400), to pay for airfares ($4,860.90 during the period from 15 December 2010 to 22 October 2012) and for other transactions during a period when Ali was overseas in December 2010 (totalling $2,920). [380]
26. In his 17 September 2018 affidavit, Jeffrey deposed that he made some ATM withdrawals of no more than $1,000 each at the request of either Ali or Orlando and gave the cash to Ali. [381] He made other ATM withdrawals of no more than $1,000 and used the cash to pay business expenses of Clean & Clear Group Pty Limited or private expenses. [382]
27. In his 17 September 2018 affidavit, Jeffrey also deposed that he used the debit card for the CD Account and made online transactions on the CD Account to pay business expenses of Clean & Clear and also to pay private expenses. He kept no records of the amounts he withdrew or paid out of the CD Account for those purposes. [383] In cross-examination, Jeffrey said that, by signing the debit card and leaving it with the Fonsecas, Ali had authorised him to use it. Jeffrey said Ali's signing of the blank cheques and handing over the debit card was "the authority for me … and the approval to go ahead". Jeffrey also said that Ali was "fully aware of what was going on" and that Jeffrey had the debit card and the cheques. Jeffrey did not claim to have sought specific authorisation from Ali for each of individual withdrawal or transaction. [384]

Ali's employment with the Fonseca businesses from late 2013

1. CCG Projects engaged Ali as an employee from about November 2013 and began paying wages into Ali's personal bank account. [385]
2. The signed employment agreement dated 11 November 2013 [386] records in Recital A that: "The Employer will or has previously and continuously employed the Employee as its On Site Manager at UNSW on the terms of this Agreement."
3. The schedule to the employment agreement set out a list of Ali's duties, which included organising jobs on site at UNSW, supervising staff, managing contractors and updating Spotless in relation to outstanding or ongoing works.
4. The benefits payable to Ali were recorded in the schedule to the employment agreement as an annual salary of $65,000 (gross) plus a Toyota vehicle. The salary equated to fortnightly payments of $2,500 (gross) or $1,974 (after tax). [387] The pay slips tendered in evidence record that the salary and fortnightly payments were reduced after about May 2014, but there is no evidence about the reasons for this. [388]
5. Ali did not deny signing the employment agreement, but contended that he was a partner and not an employee. [389]
6. Orlando contends that, from June 2014, Ali's sole relationship with the Fonseca businesses was as an employee of CCG. At that time, the Fonseca businesses ceased making payments to Swell Trades. [390]
7. Ali's employment concluded in April 2015 in circumstances [391] that I will refer to below.

The winding up of Clean & Clear and the fate of that company's records

1. As referred to at [11] above, Clean & Clear was wound up by order made by the Federal Court of Australia on 4 April 2014. Mr Geoffrey Granger and Mr Peter Krejci were appointed joint and several liquidators. [392]
2. In his affidavit sworn on 17 September 2018, Jeffrey deposed: [393] "I have not thrown out or destroyed business records. Whatever records I had concerning the business of Clean & Clear Group Pty Ltd I gave to the liquidator of the company after it went into liquidation on 4 April 2014."
3. Jeffrey gave the following evidence in cross-examination (my emphasis): [394] "Q. Now, can you read paragraph 66? A. Yes. Q. Now, can we take it from what you've said in paragraph 66 of this affidavit that you were the person who had the records of Clean & Clear Group Pty Limited? A. No. Q. Sorry? A. I didn't have the records. Q. Well, it says, or you swore, 'Whatever records I had concerning the business of Clean & Clear Group, I gave to the liquidator'? A. Yeah, it doesn't mean I threw them out. Sorry, what was that, 66, down the bottom? Q. Yes. I'm not asking you yet - I'm not yet asking you whether you threw them out. I'm asking you, should we understand the words, 'Whatever records I had concerning the business of Clean & Clear Group, I gave to the liquidator of the company after it went into liquidation' to mean that you were the person who had the records of Clean & Clear Group at the time it went into liquidation? A. No. It just means that whatever was there, we gave to them. Q. Well, it doesn't-- A. Doesn't necessarily - sorry. Q. Doesn't refer to 'we.' It says 'I.' Do you see that? A. Well, whatever, I had in the possession of the office, that's what we gave in - I gave in. Q. Right. So-- A. So, I did not have all the documentation, if that's what you're asking. Q. You didn't have - at the time the company went into liquidation, you didn't have all the Clean & Clear Group's company records. Is that what you're telling the Court? A. Yep. Q. You say you gave some of them to the liquidator? A. Whatever I had, yes. Q. To your knowledge, what records didn't you have? A. I don't recall. Q. And how do you know you didn't have all of them? A. I think - I think at one stage, they asked us for more documentation, and I'm like, 'Well, I don't have any more documentation.' I don't recall. Q. You are aware, aren't you, that the liquidator has said he hasn't received any company records of Clean & Clear Group Pty Limited? A. I was not aware. Q. But in any event, you certainly, at some point in time, had in your custody, the company records, at least some of the company records of Clean & Clear Group Pty Limited? A. At the office? Q. Yes? A. Yes. Q. And if you didn't have them in your custody, who would have had them at the time the company went into liquidation? A. Well, they would have been at the office. I couldn't tell you that. Q. Well, who could? Would your father have had ultimate custody and control of those records? A. Everyone that was working at the office had access to that. Q. I'm not asking who had access. Who had control of them; your father? A. What do you mean by control? Q. If somebody was to give a direction as to what was to happen to those books and records, would that have been your father who gave that direction? A. He would have probably, yes. Q. And you say you've got no knowledge of what happened to the books and records of Clean & Clear Group Pty Limited? A. Correct. Q. But you expect, do you, that your father would know what's happened to the records - books and records of Clean & Clear Group? A. I'm not sure. You'd had to ask him."
4. Orlando was also cross-examined about what happened to the records of Clean & Clear and, in particular, any invoices that Clean & Clear had received from its subcontractors in the course of its business. Orlando gave evidence that all of Clean & Clear's records had been sent to Mr Sam Cassaniti on a regular basis and no records or copies of records had been kept in the office of the Fonseca businesses. Orlando said that this had been done by Ms Alvarado and during the period that she worked for the Fonseca businesses and "different ladies work there" at other times. [395] As I have already referred to at [242] above, Ms Alvarado gave evidence that tax invoices and primary business records were not amongst the documents given to CAP Accounting on a quarterly basis. CAP Accounting "would only request reports from the system". According to Ms Alvarado, any tax invoices stayed in the office of the Fonseca businesses. [396] However, Mr Durado, who worked at CAP Accounting, recalls invoices from the Fonseca businesses being provided to CAP Accounting. Mr Durado worked on the preparation of draft financial statements for the Fonseca family members and their companies during the period from December 2006 until 2012. His work in that role included entering invoices that CAP Accounting received from the Fonseca businesses into CAP Accounting's software. He does not recall seeing any invoices that had been issued by Cleaning Doctor. [397]
5. The cross-examiner returned to the subject on the second day of Orlando's cross-examination. On that occasion, Orlando gave the following evidence: [398] "Q. And you're aware, aren't you, that none of the books and records of Clean & Clear Group were provided to the liquidator of this company? A. That question you have to ask to Mr Cassaniti. He's got all the books. He's got all the information for all of our companies. Q. And what I want to suggest to you is that firstly, you didn't ask Mr Cassaniti to provide any books and records to the liquidator of Clean & Clear Group Pty Limited, did you? A. I'm asking because we received the letter. He said he's going to be supply all the information for the liquidator. Q. You kept books and records of Clean & Clear at the offices that you worked from; correct? A. Yes, but when the time they went into liquidation, we hand up all the documents to Cassaniti's office. Q. You say you took all the books and records of the Clean & Clear Group, and sent them to Mr Cassaniti's office when the company went into liquidation? A. Yes, that's correct. Q. Now, you understand that Jeffrey Fonseca, your son, actually claims that he gave those books and records to the liquidator? A. I can't remember if he's give him some documents, but I gave some documents to Sam. Q. I'm suggesting to you, Mr Fonseca, that you're just making this up? A. That's not true."
6. Orlando's evidence referred to immediately above that Clean & Clear's records were kept at the office of the Fonseca businesses but were given to Mr Cassaniti when the company went into liquidation, and his acceptance of the possibility that Jeffrey may have given some of those records to the liquidator, is inconsistent with this evidence the previous day that all Clean & Clear records were routinely sent to Mr Cassaniti by Ms Alvarado and other employees.
7. Mr Sam Cassaniti was called by the plaintiffs to give evidence in these proceedings. He was cross-examined by the defendants before the suggestion that all of Clean & Clear's records had been given to his firm emerged during the Orlando's cross-examination. It was not put to him that Clean & Clear's books and records had been sent to CAP Accounting.
8. In an affidavit affirmed on 23 November 2020, Mr Durado gave evidence that he had located books and records of Clean & Clear in CAP Accounting's archives. The archived books and records include bank statements, invoices and tax returns. Mr Durado did not recall the liquidators of Clean & Clear having made any request for the records to be produced to them. [399]
9. The plaintiffs tendered a letter from Mr Granger, one of the former joint and several liquidators of Clean & Clear, which stated: [400] "The director of the Company [referring to Clean & Clear], Luis Emerson Duran, has not cooperated with the Liquidators and has not provided any of the Books and records of the Company. The director was prosecuted by ASIC and issued a fine of $1,500 in the Local Court of New South Wales in February 2016."

Financial affairs of the Fonseca family members and their related entities during the period 2009 to 2015

1. Mr Sam Cassaniti was the accountant for the Fonseca family and their related entities from about July 2008 until about late 2012 or mid-2013. Mr Cassaniti is also a consultant for Reliance Financial Services Pty Limited (Reliance), which facilitates short-term loans. [401]
2. On 2 July 2010, the Fonseca family members and various related entities (referred to as "the Clients") entered into a Deed of Retainer and Loan with Reliance and Armstrong Scalisi Holdings Pty Ltd (ASH) as trustee for the ASH Discretionary Trust trading as CAP Accounting. The recitals to the deed record an outstanding amount of $895,000 owing to Reliance and $476,216 owing to CAP Accounting. Under clause 6 of the deed, the Clients granted a charge of any real property owned by them to secure moneys owing to Reliance and agreed to grant Reliance and CAP Accounting a legal mortgage to secure payment of any moneys owing. The Clients appointed Mr Cassaniti as their attorney for the purpose of executing, stamping and registering the charge or mortgage. Pursuant to clause 9 of the deed, each of the Clients guaranteed the amounts owing to Reliance and CAP Accounting. [402]
3. On 17 January 2011, the same Fonseca family members and related entities entered into a Deed of Retainer and Loan with Reliance and ASH as trustee for the ASH Discretionary Trust trading as CAP Accounting. This deed is in the same terms as the deed dated 2 July 2010. [403] The evidence does not explain why this second deed was entered into.
4. Orlando was made bankrupt on 7 March 2011 and discharged from bankruptcy on 8 March 2014. [404]
5. Vilma was made bankrupt on 22 March 2011 and discharged from bankruptcy on 23 March 2014. [405]
6. Joselyn was made bankrupt on 13 July 2011 with an expected date of discharge of 14 July 2014. [406] However, Joselyn's bankruptcy was discharged on 4 November 2011. [407]
7. Jeffrey was made bankrupt on 25 January 2012 and discharged from bankruptcy on 26 January 2015. [408]
8. On 16 June 2014, the Fonseca family members and entities who had entered into the deeds in July 2010 and January 2011 referred to above entered into a Deed of Release with ASH as trustee for the ASH Discretionary Trust and Reliance. [409]
9. The recitals to the Deed of Release referred to (relevantly) the Deed of Retainer and Loan dated 2 July 2010 (defined as "the Primary Deed") and the Bardwell Property of which Orlando was the registered proprietor subject to a first registered mortgage in favour of ING Bank (Australia) Ltd. Clauses 4 to 10 of the Deed of Release provided for the transfer of the Bardwell Property from Orlando to Reliance and for ASH and Reliance to receive the difference between the value of the Bardwell Property and the amount secured by the ING mortgage. This difference was referred to as the "Primary Consideration". Pursuant to clauses 14 to 17, the Fonseca family members and entities were released from their obligations under the Primary Deed conditional upon ASH and Reliance receiving the Primary Consideration and ASH receiving certain monies out of the proceeds of sale of a property at Peakhurst. I note that the defendants contend that the releases were conditional and that the conditions were not fulfilled, or that there is no evidence that the conditions were fulfilled and that litigation between the parties to the Deed of Release was settled on the terms of another deed in November 2018. [410]
10. Ali gave evidence that, whilst he knew that the Fonseca family were having financial problems and problems with the Australian Taxation Office, he did not know until 2015 that they had been bankrupt. [411]
11. In his affidavit sworn on 27 May 2015, Ali said that, from about the time of the Fonseca family bankruptcies, Orlando said to him: [412] "I'm really sorry. The ATO is chasing us for $17 million. Your money and your property is safe. As I have said, your property is in a trust and no one can touch it. They are looking at everything. We can't do anything until this is sorted out."
12. Orlando denies saying this to Ali. [413]

Transfer of the Bardwell Property to Goodman Court Pty Ltd in January 2015 and the resulting dispute between Ali and Orlando in March 2015

1. Goodman Court Pty Ltd (Goodman Court), a company associated with Mr Cassaniti's family, became the registered proprietor of the Bardwell Property in about January or early February 2015. [414] I note that there is a dispute between the parties about whether this was referable to the Deed of Release dated 16 June 2014. [415]
2. On 4 March 2015, Goodman Court wrote to "The Occupier" of the Bardwell Property notifying its intention to commence proceedings in this Court for possession of the Bardwell Property unless an agreement could be reached for the occupants to vacate the property within a reasonable period of time. [416]
3. According to Ali, he first became aware that Orlando had sold the Bardwell Property when he received that letter on about 5 March 2015. Ali gave evidence that he had conversations with Orlando on 5 and 6 March 2015 in which Orlando made statements to the effect that this had occurred due to a fraud by Mr Cassaniti, that he was trying to negotiate for Ali and his family to be able to remain in the property for another year and that he would "buy you another property very soon". [417]
4. Orlando denies that these conversations occurred but agreed that he did have conversations with Ali at this time. According to Orlando, he told Ali that he would try and negotiate with Mr Cassaniti for him (Orlando) to pay rent in order for Ali and his family to be able to continue living in the Bardwell Property and that Mr Cassaniti subsequently agreed to this. However, Orlando stopped paying rent once Ali commenced the present proceedings. [418] This aspect of Orlando's evidence is consistent with Mr Cassaniti's evidence. [419]
5. Ali also gave evidence that he met with Mr Cassaniti on 13 March 2015 and expressed disbelief that this could happen and told Mr Cassaniti that "I own this property" and "I'm the director of the Cleaning Doctor as well, you know there is a lot of money in that company that belongs to my family". According to Ali, Mr Cassaniti did a company search during this meeting and informed him that Cleaning Doctor had been deregistered because ASIC fees had not been paid. [420] Mr Cassaniti's evidence about his meeting with Ali on 13 March 2015 included Ali saying that he owned the Bardwell Property, but did not include any reference to Cleaning Doctor. [421]
6. In his affidavit affirmed on 7 July 2015, Ali mentioned for the first time that he and his wife Laura had met with Orlando at his office in Peakhurst on 18 March 2015 to discuss the Bardwell Property. The extent of Ali's evidence about that meeting in his 7 July 2015 affidavit was that: [422] "The conversation traversed numerous issues but we had words to the following effect: I said: 'Why did we receive this letter from the court kicking us out of our house?' Orlando said: 'It's a long story but the accountant is the one taking your house …' I said: 'But you were taking some of my share to pay the mortgage on my house. It is my house.' Orlando said: 'I will leave you the house. I want to give you back your house. The court documents are not authentic and they are forged. Sam forged those Supreme Court documents.'"
7. Laura gave her own version of what said at that meeting in her affidavit sworn on 13 July 2015. According to Laura, she and Ali had a conversation with Orlando to the following effect: [423] "Ali said: 'What's going on? You told me you're paying my mortgage from my share of profit from Cleaning Doctor.' Orlando said: 'Look, Ali. What I tell you is true. Yes, we will pay your mortgage. Ali, you're like my son. You keep working with us and we are going to help you with your house in Bardwell Valley. That's what I tell you. If I tell you this is it, even if I'm dying, I will do it.' I said: 'What happened to all the money you promised to pay for our mortgage?' Ali said: 'Yes, that's what I have been telling Laura. I want to make everything clear here because Laura does not believe anymore.' Orlando said: 'Well, the accountant stole your house, he is a crook. The documents from the Supreme Court are a forgery. Ali, I lost 42 properties in Queensland because of the tax office. Ali, can you work it out how much money I pay for your house monthly? This is the part of our deal. I will give you the house back. I want to give you your house.' I said: 'So now, what is going to happen? What is going to happen to Ali and me? I have a newborn baby and another is going to be born soon.' Orlando said: 'Ali, if you stay and keep working with my family, we will give your house back to you and Laura. Give me some time. In 6 months, I will fix the bank and the house will be under your name. This is what I am promising you here.' Ali said: 'We want to clear things.' Orlando said: 'I will get more work to make more money so that I can pay for your mortgage. That way you can get the house back.' Ali said: 'That is why we have been patient because of your promise.' Orlando said: 'Ali and Laura, within a year, you will come to me and say thanks Orlando. I guarantee that my family and I will give your house back. If we make a profit of 1 dollar, it is 50 cents for you and 50 cents for me. I will help you get your house back. The last thing I want is to lose your house in Bardwell Valley.' Orlando said: 'Laura, Ali is like my son.' "
8. Orlando disputed the evidence given by Ali and Laura in relation to this meeting. According to Orlando, the conversation at the meeting was to the following effect: [424] "Ali: 'What has happened? We are being kicked out of our house! We have a new baby on the way. We don't know what to do.' Me: 'Sam has taken the house. We have lost all of our properties to Sam. I will try to put you back there. Give me some time.' Ali: 'What if that doesn't work?' Me: 'When things are better, I'll buy another house and you can live there'."
9. In their affidavits made on 9 May 2019 and 10 May 2019 (respectively), Ali and Laura disclosed for the first time that Laura had recorded their conversation with Orlando on 18 March 2015 and gave further, more detailed, accounts of that conversation. [425] The audio recording of the conversation was exhibited to their subsequent affidavits made on 11 July 2019 and 21 February 2020, with the version exhibited to their 21 February 2020 affidavits described as the complete audio recording.
10. The audio recording of the conversation was played in Court during the hearing [426] and a transcript of the recording, including a translation of parts of the conversation during which Orlando and Laura were speaking in Spanish, was tendered. [427] As I will refer to below, there was a dispute between the parties about the accuracy of some words recorded in the transcript, and about what words were spoken during parts of the conversation that the transcript records as unintelligible. The dispute arises due to the heavy accent with which the participants in the conversation speak in English, and the fact that they speak over the top of one another at times and there are also some background noises. In the transcript, Orlando is referred to as "OF".
11. After initial greetings, the conversation began with the following exchange (my emphasis): [428] "ALI: Can I, can I, can I say something … since I received that letter from … I don't know who, from that … Court, whatever. The letter I gave you… OF: Hmm ALI: …things have turned upside down. [Unintel] We've been, from day one, [Unintel] been saying, the house, the house, the house, we're working hard, we're doing this OF: Ali, look ALI: YeahOF: I know where you're coming from. I lost my house. Four million dollars. I lost the other properties. Forty-two properties in [Unintel]. Do you think I wanna lose that house? No, because I promised I want to give you that house. … OF: The, the accountant, he's the one he's take the house, hm your house you, you have. Laura: Is that Sam? OF: Sam. Yeah."
12. There is then a discussion in which Orlando complains about having lost everything at the hands of the "tax department", the trustee in bankruptcy and the accountant. The conversation continues (my emphasis): [429] "ALI: That um, I understand all that. But the problem is, when it comes to my family, from day 1 (Noise blocks voice) ALI: From day 1 we are paying the mortgage, as part of my deal with you. OF: Ali, that's what I tell you and that's true ALI: Yeah OF: But we've been paying your wages too, Ali. No, bec, because ALI: You told me (Overlap) ALI: You always told me, you always told me, um, um, you're costing me 15 thousand a month. OF: That's correct. ALI: That's what you always told me. And part of it, you're paying for the mortgage … … OF: Ok. At the end of the day, Ali, that's what I promised. You work with us, we're going to help you with the house. ALI: Hmm. OF: That's what I tell you, yes or no? Ali: Yeah. That's what I wanted clear. Because Laura doesn't believe me anymore. We're at the stage that all these, all these years of, I have to say too, that if we don't solve it today, me, I'm affecting my family big time. OF: No, but Ali, look, Ali, you know, look, how long you know me? Ali: 1997. OF: [Unintel] years. Look I don't know nothing about ah (Overlap) OF: Ok. Ali: 1997. 1997 OF: When I promise something to you, always I did, always I did it. Ali: Yeah. OF: Ok. Now, I tell you. The house is gone. I lost (50?/15?) Million dollars, Ali. Now, I tell you, we're going to buy a property in her name. We're going to help you to buy a other house. Alright?"
13. Ali then complains of being unable to sleep and needing to "clear it" and Orlando repeats that he will help Ali and Laura to buy a house. The conversation continues (my emphasis): [430] "Laura: How? How that happen, How will that happen? OF: What? Laura: How, how you're going to get a new place? What's the plan? OF: Li, listen, the plan is, I want to be, six months, put some money in your account, and get a loan and you buy a house in your name. Laura: Under my name. OF: Yeah. Laura: And what happened to all the money Ali paid in the mortgage? OF: What, what money? Laura: The mortgage. The mortgage [Unintel] OF: But what money you want me to give you now? What you want me to give you now? Laura and Ali: Ah, no, no. We don't want. No, no, no. OF: Ali, listen. Can you work it out, how much money I paid for that house monthly? Laura: No, I don't know how much money [Unintel]. OF: Ok, check it out with one bank, how much cost the repayment. Ali: What Laura is coming from and what she's asking me, is part of the deal, you and me. OF: Ali, that's exactly, yeah, that's part of the deal. Ali: Part of the deal. OF: I give you that house, I want to give you a house, Ali. Ali: Yeah, but you told me, that's what you're telling me. That's what I've been telling, Laura. I'm costing you 15 thousand a month. Yeah? OF: Yeah, that's correct. How much I [Unintel] Ali: From those 15 thousand, you pay me the wages, you pay me the, eh, the car OF: Eh, the car, wages and [Unintel] (Overlap) Ali: You deduct, you deduct the mortgage from the house. OF: Ok, for the last 4 years, if you want I work it out, how much I've paid you, Ali: hmm OF: How much money we have paid you because [Unintel] two thousand, five thousand here and there, and this the money is there (Overlap) OF: If you're happy we can count now or [Unintel] the money we've pay. You know when you buy a house, if you buy in your name, the first 10 or 15 years, you pay just interest? Laura: Really? OF: OK? Put it this way. We pay five thousand or 4,800 a month. OK. This are red. 1 thousand dollars red a week. Laura: A thousand dollars a week?"
14. According to Ali, when referring to one thousand dollars red a week, Orlando wrote down the figure $1,000 on a piece of paper in red ink and showed the paper to Ali and Laura. [431] Laura's evidence did not refer to Orlando writing anything down at this point in the conversation, in red ink or otherwise. Laura said in cross-examination that she understood that Orlando was referring to "minus money". [432] The defendants contend that what sounds like "red" is in fact, "rent".
15. There was then a further discussion about Orlando losing money and property to "The government. The police, even the trustee" before the conversation turned to Mr Cassaniti who Orlando described as "a smart crook". The conversation continued (my emphasis): [433] "Laura: From now, from now on, what is going to happen? OF: What do you mean? Laura: With the house. What's going to happen to us? To Ali and I? OF: To you? To you, I don't know. But with Ali, if he stay with us, we're going to help him to, to buy a house. Laura: And, and the money Ali has been paying for the mortgage is gone OF: What mortgage? You understand? Is interest what you've been paying all these years. Laura: Yeah, all right, the pay interest for the OF: I'm going to ask is for the bank, the statement from the day we bought the house until now, how much money I've paid and it's all in interest. Ali: But you lost all that, you say OF: Yeah! I lost everything Laura: That's what you're saying, lost all the money for (Overlap) OF: Or you think I've got the money? What I tell you Ali, when you left the house, demolish, I don't give a shit. All the money I've been paying, the interest, or that Ali's been paying, the money because … I buy a house. I give you example Laura: The, the because I haven't eh, been here for long OF: You're going to buy a house in six months. In 2015. In 10 years' time you have paid the loan in time. In 15 years' time you can see the money you paid is only interest, Laura. Laura: Hmm OF: But if the repayment is 4 thousand a month, and you pay 6, 6 thousand or 5.50, that's where you reduce, reduce the loan, Laura. You know what I mean? Laura: Yes. So we didn't do that. So we didn't pay more. We only paid interest. OF: Interest. Yeah. Laura: So, Ali has been paying interest only. OF: [Unintel] Ah, uh, uh, us. Ok? Now, that's true, what he's told you, now, the house I promise to Ali [Unintel] living there, he's been living there 11 years or 12 years? Ali: 2001 OF: Anyway, I never ask Ali, 'do this or that' because that's what I'm promising to him and now the house gone but I don't know what's happen to me tomorrow. That's why I want to put house in your name."
16. There was then a discussion between Orlando and Laura in which Orlando repeated that he would "start to put money in your account" in six months' time and explained "that way the bank can do the loan for you". Laura indicated she understood that this was "to show like it's a deposit and then I get the loan" but that she would not be able to buy the Bardwell Property because "It's gone". [434] Orlando referred to things having been "tough" and said: "… the last thing I want is to lose that house. Always I say to Ali, 'everything alright, everything alright'. But with these people, Ali, I don't know even what's going to happen to this warehouse." [435] Orlando then spoke further about all of the properties and money he had lost and complained that the problem had "started from Mark" who had been "robbing to the Tax department". [436] The conversation then continued: [437] "OF: … And now we gone under. But this not, but this not the end of the day, that's what I said. I am still with Ali… and I, look. What I tell you now, in 6 months, we buy the house and you're going to control the money. Whatever we make we put in your account and you make the repayments. Something, you lose everything, and then I say Ali, no. Not allowed because for ever always ask Ali. If you are promise something, but now the things different. We put in your name. Anything happens to me or [Unintel] (Noises block voice) Laura: Hmm. That was sort of the deal you had with Ali, before me, that was sort of the deal you had with him. (Overlap) OF: [Unintel] years, Laura. Ali: Since 1997. OF: 1997. Before the [Unintel]. I said, before I die, I leave you a roof."
17. Orlando then referred to having helped another person by paying for them to go to see their family every year. He then addressed Laura: [438] "OF: But not have a problem with Ali because of a house or money. The money is nothing. You've got a beautiful family. Beautiful husband. Laura: Thank you OF: Alright. Blame me, yes, I've been wrong. But not him. He's nothing to [Unintel]. (Baby noises) OF: And the same thing I can tell you, I guarantee you. In six months I'm help you to buy a house, Laura. (Baby screams) OF: In your name."
18. Orlando then reverted to complaining about the "tax department", the trustee and his accountant before Laura the conversation continued: [439] "Laura: Orlando, and what is the warranty you give that that's are going to happen? OF: What warranty, of what? Laura: For the things that you say, that … sort of like what I understand is that in [Unintel] time, you say 6, 6 months, it could be more, it could be less but whatever. It's up to the business. (Overlap) OF: It depends on the business. Laura: Exactly. OF: Now the business is divided in 2. JEFF, he has to look after the city and he has to make his wages there. And now I'm working with Ali in Uni, [Unintel] 5 o'clock there. All the big jobs, we're going to make money, we get more money from the business. Laura: Mm hmm. Ali: Now, with, with, we're going to be paying 650 in rent a week. Any you know, we OF: We increase your wages, because I don't pay the house anymore, we increase your wages. Ali: Yeah, alright, Ok."
19. Orlando then addressed himself to Laura in Spanish: [440] "OF: [Unintel] What can I do? You think we want to lose everything? You think we want to lose everything to fuck people up? No, Laura, it's not like that. I show you everything we lost and poor boy doesn't' have anything. Seriously, Laura. I swear on my children. He, the [Dil/deal?], I told him, 'I give you this'. If you have a look, it was more or less 12 thousand dollars that I was giving him. It was more when I was giving him two thousand per fortnight. But things got progressively worse. I mean at the university, there is no work, no work, no work. Like now. So, those were the reasons we had to cut the salary. Suddenly, if you do the numbers, let's say, the five thousand for the house, OK? 4,800. The part for the cars. Plus what I give him in cash. He was [Unintel] making 12 thousand per month, Laura. Here one does not make 12 thousand dollars [Unintel] at the university. I have been losing money there for over a year. But I cannot leave him without money either. Laura: Hmm. OF: So, I deposit the money to you, in your account. Laura: Hmm. Fine, but why not in Ali's account? Is there something there that … OF: No. No, no. No. What I want is for you to have the savings. Laura: Ah, for … yes. OF: If you like, I deposit it to his account. We as men, I see it this way, we spend more. Laura: Hmm. Yes, true."
20. The following exchange occurred during Orlando and Laura later during their conversation in Spanish: [441] "OF: … I know that, let's say, you say 'ufff, but Ali was working and made the house repayments.' I made them, Laura. The house repayment. But all that was interest, Laura. Do you understand me? Because I never paid more money. I paid the instalment, the instalment, the instalment. And then we would start to pay the debt 12, 15 years later. Laura: Hmm OF: Do you understand me? Laura: Yes, yes. OF: It's not that I was not making payments. Do the numbers, how much money do you think I lost? I lost around 700 thousand dollars there. Laura: Hmm OF: Do you understand me? And, and I promised him, I told Ali, 'I am going to give you a roof over your head, if you keep working with me.' Do things right. And he has been very dedicated but the work got progressively low, progressively low. As I told him just now, if you want more money, we have to put our skates on to get more work. Laura: Of course. OF: And, and monthly, he comes here, we look, this much was made, this much was spent, this much is left for you, and this much for me. Because I already split this and if he wants more money he has to go and get work."
21. The conversation between Orlando and Laura then continued with a discussion about the price of the house or unit that Laura should be looking to buy once Orlando has paid enough into her account for a deposit. Orlando stipulated a price of $700,000 or $800,000 and said: "We cannot do for more than 800." [442] The conversation then concludes with a further exchange spoken in English between Orlando, Ali and Laura and a short further conversation between Orlando and Laura in Spanish.
22. As I have mentioned at [330]-[333] above, Ali and Laura did not refer to the existence of the audio recording of the 18 March 2015 meeting in their affidavits made in July 2015. They first disclosed the existence of the audio recording after Orlando had responded to their account of the conversation between them on 18 March 2015. When asked in cross-examination why he had not referred to the recording in his 7 July 2015 affidavit, Ali answered: [443] "Because I wanted to say whatever I say after that, to say whatever he [Orlando] want to say so I can face him after that with the recording to show that he's not saying the truth."
23. At all times after the recording was made, Ali and Laura had a copy of the recording. [444] Nevertheless, Ali affirmed his 7 July 2015 affidavit and Laura swore her 13 July 2015 affidavit including an inaccurate account of the conversation with Orlando on 18 March 2015. Contrary to Ali's 7 July 2015 affidavit, Ali did not say to Orlando: "But you were taking some of my share to pay the mortgage on my house. It is my house". Contrary to Ali's and Laura's July 2015 affidavits, Orlando did not say that he wanted to "give you back your house" or "give your house back" (my emphasis). Rather, as set out in detail at [336]-[345] above, Ali referred to the Bardwell Property mortgage being paid "as part of my deal with you" and Orlando confirmed that he treated interest only mortgage payments for the Bardwell Property in which Ali was living as part of a $15,000 monthly package for Ali, which also included car repayments and wages. When asked by Laura (in English, and during part of the conversation in which Ali was participating) "And what happened to all the money Ali paid in the mortgage?", Orlando replied "What, what money?". In that part of the conversation where he was conversing with Laura in Spanish, Orlando referred to the package as $12,000 per month and including mortgage payments, car payment and cash. Orlando also said (during parts of the conversation in English) that he had promised Ali "to help you with the house", that he had wanted to "give" Ali the house to leave him with a roof over his head and that he would now help Ali earn the money for a deposit on another house that could be purchased in Laura's name. Laura acknowledged that that this would be a different house or unit and that they could not purchase the Bardwell Property because it was "gone". There was no reference to Ali and Laura getting the Bardwell Property "back". Contrary to Laura's 13 July 2015 affidavit, there was no mention of Cleaning Doctor during the 18 March 2015 conversation. [445]
24. When these inconsistencies between Ali's account of the 18 March 2015 conversation in his 7 July 2015 affidavit and the audio recording of that conversation were put to him in cross-examination, the only explanation offered was that he had put in his affidavit the words that he had meant and what he had understood by the words used by Orlando. [446] However, Ali's affidavit purports to give an account of the words spoken during the conversation.
25. Laura's explanation for her inaccurate evidence that Cleaning Doctor had been referred to in the 18 March 2015 conversation was that this was her best recollection at the time she swore her affidavit on 13 July 2015. [447] If that evidence is accepted, this significant discrepancy between Laura's recollection of the conversation only three months after it had occurred on the one hand and the audio recording on the other hand strongly suggests that Laura's ability to recall events and conversations that occurred during this period is very poor.
26. There were also inconsistencies between Orlando's account of the conversation in his affidavit sworn on 8 September 2017 and the audio recording and translation. [448] Whilst those inconsistences may be attributable to the two and a half years that had passed between the conversation and Orlando's affidavit, the same cannot be said for the inaccuracies in Ali and Laura's accounts of the conversation in their July 2015 affidavits made relatively soon after the conversation occurred and at a time when they had the audio recording available to them.
27. It was put to Ali in cross-examination that he did not say to Orlando during the meeting on 18 March 2015 that he (Ali) owned the Bardwell Property. Ali answered that he had not said that because "he [Orlando] knows I'll own the house", "I didn't use [the words 'I own this property'] because I own the house" and "it was the reason for the meeting because my property". [449]
28. Even though Ali gave evidence that he had discovered shortly before the 18 March 2015 meeting that Cleaning Doctor remained deregistered, there was no mention of Cleaning Doctor, payments into the CD Account or what had become of money paid into that account. When this was raised with Ali in cross-examination, he gave the following answers that were inconsistent with one another and, in some instances, inconsistent with his evidence that he had said to Mr Cassaniti just days before the meeting with Orlando that there was "a lot of money in that company [Cleaning Doctor] that belongs to my family": [450] "Q. You didn't mention The Cleaning Doctor in your meeting with Orlando five days later, did you? A. Why do I mention it, when he knows it? Q. You didn't mention to Orlando that there's a lot of money in that company that belongs to either you or your family, did you? A. He knows that exactly, I don't have to mention it. Q. But do you agree with me that you didn't mention it? A. Not mention it, no, I didn't mention it but he knows exactly what I'm there for. Q. Go over the page in paragraph 90 of your affidavit. This is where you say that Sam told you that the company is deregistered and you said to him that you weren't aware of that. Do you see that? A. Yes. Q. In your meeting with Orlando, just five days later, you never mentioned the deregistration of the company, did you? A. Well, the same answer. Q. When you had your meeting with Orlando five days later, did you still believe the company was deregistered? A. Of course. Of course, yes. Q. So, you went to this meeting with Orlando on 18 March and you were aware the company as still deregistered but you felt it wasn't necessary to say a word to him about it. Is that right? A. Very, very necessary. Of course, it was very, very necessary. Q. But you didn't say a word to him about it? A. I didn't say it at that time, no. Q. Well, you'd never said it to him? A. I say it all the time for him. Q. You said what all the time to him? A. All the time I discuss with him about everything to do with my money, with a taxation problem, with everything, we always discuss my house. Q. I've only asked you now about the deregistration of The Cleaning Doctor. Do you understand? A. Yes. Q. When you had this meeting with Sam on 13 March, was it a shock to you to learn that the company was deregistered? A. No, it wasn't a shock as a shock. I was surprised but it wasn't a shock, already everything happened, the house is gone. Q. Never mind the house, we're talking about The Cleaning Doctor? A. That's what I'm there for, for the house. That's the most major thing of my being there at Sam's and being there at Orlando's. It's the house and nothing else but the house. Q. Even though according to you you thought there should be a lot of money in that company? A. Money was paid monthly according to me and to Orlando. Q. But you claim you told Sam Cassaniti that there is a lot of money in that company? A. Yes. As I said before he asked me to be patient and wait on the rest of the money because he's got problems with the Taxation Office. Q. So, although at this meeting with Sam Cassaniti you understood there was a lot of money in the company and you understood the company is deregistered but it wasn't necessary to mention anything about that to Orlando five days later. Is that it? A. I know Orlando very well. I lived with Orlando for over 15 years and I know how to talk to Orlando to get him to say what I want him to say."
29. Later in his cross-examination, Ali was referred to that part of the transcript of the 18 March 2015 conversation in which Orlando asked "But what money you want me to give you now", and Ali and Laura replied "Ah, no, no. We don't want. No, no, no". The cross-examination continued: [451] "Q. Now, you agree that both you and Laura were quite adamant in your response that you don't want any money now? A. Yes. Q. Why didn't you take that opportunity to say that you wanted the money that Orlando put into the Cleaning Doctor account? A. We went there for the house, not for the money. Q. Why didn't you take the opportunity to say that you wanted Orlando to give you the money so that you could buy another house? A. He didn't have money to give me at that time, and as you see, he asked me for six months to give me the money back."
30. The bold emphasis in the two passages above is mine. On the one hand, Ali gave evidence that he understood there was a lot of money in the Cleaning Doctor that belonged to him or his family and that Orlando knew that. On the other hand, Ali gave evidence [452] that Orlando did not have the money (meaning that the money was no longer in the CD Account) and had asked him to be patient and wait for the rest of the money over and above what he and Orlando had paid themselves on a monthly basis. I note that Ali's reference to money being divided between him and Orlando monthly is consistent with Orlando's description of the arrangements to Laura referred to at [344] above. The final part of Ali's last answer set out at [353] is incorrect. As set out in detail above, the transcript of the 18 March 2015 records that Orlando had proposed six months not as the time period within which he would "give back" money that had been withdrawn from the CD Account, but as the time period within which he would pay some money into an account for Laura to use as a deposit on a $700,000 or $800,000 house or unit to be purchased in her name. Orlando spoke about the need for the business to earn enough money for him to be able to do this.
31. Within a couple of days after the meeting on 18 March 2015, Ali had cut his ties with Orlando and taken a job with another company. [453]
32. Ali and Laura claim to have received threatening phone calls from Orlando and Vilma in April 2015. They reported their claims to the police at the time and, on 28 April 2015, Laura signed a form setting out grounds on which she wished to make an application for an apprehended personal violence order against Orlando and Vilma for the protection of herself and Ali. The form contains the following statement: "Mr Fonseca has been fraudulently creating company names in the name Ali Itawi. Lawyers are involved." [454] In cross-examination, Ali gave evidence that he had provided that information to the person who completed the form. [455] He also gave evidence that there were only two companies in his name at that time, namely Cleaning Doctor and Swell Trades, but he was not referring to Swell Trades when he said that Orlando had fraudulently created companies in his name. [456] The cross-examination continued: [457] "Q. Were you saying that Orlando fraudulently created The Cleaning Doctor? A. Maybe I said at that time, yes. Q. Maybe? A. Yeah, it was new, it just happened. Q. Do you know what companies your talking about when you gave that information to the person who prepared this? A. Yeah. Q. Which companies were you talking about? A. All the companies that under his name what I was told. Q. Not his name, we're talking about your name? A. My name, only one company I said was Orlando. Cleaning Doctor. Q. Look, you've got the plural there, names, plural, you see that, don't you? A. You trying to put words in my mouth. I'm talking about his companies and my problem with him on that day only, so please, stop putting words in my mouth. You been doing that all day, stop putting it in my mouth. No, not true. HER HONOUR: Mr Itawi, the words on the page say 'Mr Fonseca has been fraudulently creating company names in the name of Ali Itawi'. WITNESS: That's true, your Honour. HER HONOUR: Those words on the page that Mr Carnovale is asking you about. Would you please listen to the question and answer the questions about the words on the page? WITNESS: Okay. CARNOVALE: Q. So those words refer to more than one company name, don't they? A. Yes. Q. So, I'm asking you what are the company names that you said Fonseca had been fraudulently creating in your name? A. If I said that's all, about Cleaning Doctor. Q. You meant one company name, did you? A. Yes Q. You say he created that company fraudulently? A. As I was upset, I said it. Q. But it wasn't true? A. What I said there, no. I said to the police that I've got a problem with him with the law. Q. Just pause there. I just want to know whether you now say that what you told the persons who wrote those words on this form was not true? A. At that time, no. When I read it now, I haven't read that one before, but I read it now, no. Q. And this is part of the things that you told the person who was preparing this form so that the application for an AVO could proceed, right? A. No."
33. Ali's answer to the last question immediately above is inconsistent with his evidence a short time earlier that the source of the statement in the form that "Mr Fonseca has been fraudulently creating company names in the name Ali Itawi. Lawyers are involved" was information that he had provided to the person who completed the form. [458]

Commencement of these proceedings

1. These proceedings were commenced on 28 May 2015.

Claims and defences relating to the Bardwell Property

1. Ali claims that he acquired the Bardwell Property in November 2001, with some financial assistance from Orlando and Vilma, and that he transferred the Bardwell Property to Orlando in February 2003 for Orlando to hold on trust for Ali. [459]
2. Ali's principal contention is that the trust was an express trust on the terms of the alleged November 2002 agreement. [460]
3. Alternatively, Ali contends that "[s]hould the express trust that is set out in Agreement fail (denied), the beneficial interest in the Bardwell Property was held on resulting or implied trust for Ali." [461]
4. As a further alternative, Ali contends that a resulting trust is presumed from the transfer of the Bardwell Property to Orlando for no consideration for Ali's equity (or for a "false consideration"), in circumstances where there was no intention by Ali to make a gift of the Bardwell Property to Orlando. [462] It is necessary to explain how this contention evolved during the course of the hearing.
5. Ali's pleaded case was that the Bardwell Property had been transferred to Orlando "without consideration" or "without good consideration" flowing to Ali and that Orlando had received the Bardwell Property as a volunteer. The defendants denied that the transfer had been "without consideration" or "without good consideration". [463]
6. It was plain from the evidence served prior to the trial that there was no dispute that, on settlement of the transfer of the property to Orlando in January 2003, Orlando had paid the amount owing under the loan that had been taken out by Ali and secured by mortgage against the property in 2001 (the 2001 mortgage and the 2001 transaction). This was confirmed at the beginning of the trial. [464] Orlando had taken out a loan in his own name and used the proceeds of that loan to discharge the 2001 mortgage. The loan obtained by Orlando was then secured by mortgage against the Bardwell Property that was registered at the same time that Orlando became the registered proprietor in February 2003 (the 2003 mortgage and the 2003 transaction). [465]
7. In closing submissions, senior counsel for the plaintiff properly acknowledged that the transfer of the Bardwell Property to Orlando was not without consideration because the discharge of the 2001 mortgage provided some consideration. However, it was submitted that the Bardwell Property had been transferred to Orlando for no consideration for "Ali's equity" in the property. The plaintiffs' submissions treated the allegation that there was no consideration for "Ali's equity" as akin to an allegation of no consideration for the transfer of the Bardwell Property. The submissions failed to grapple with the reality that a registered proprietor's "equity" in real property is simply the value of their legal and beneficial interest after deducting the amount owing under any loan secured by mortgage or charge against the property. The "equity" is not something that can be transferred (with or without consideration) independently of the registered proprietor's legal and beneficial interest. [466]
8. In oral closing submissions in reply, the plaintiffs referred instead to what was described as a "false consideration principle", relying on Wirth v Wirth (1956) 98 CLR 228 at 237 (Dixon CJ). [467] The consideration was described as "false" because Ali contends that he received no part of the $808,000 consideration referred to in the contract for sale of land and in the transfer other than the amount that Orlando paid directly to the mortgagee to discharge the 2001 mortgage.
9. The defendants objected to the plaintiffs relying on the unpleaded "no consideration for Ali's equity" and "false consideration" contentions. [468] For the reasons explained at [520] below, I have determined that the plaintiffs should be permitted to advance those contentions.
10. The defendants' further written closing submissions provided on 10 December 2020 (after the conclusion of both parties' oral closing submissions) also relied on s 44 of the Conveyancing Act 1919 (NSW) as an answer to Ali's "no consideration" or "false consideration" resulting trust claim. Section 44 had not been pleaded. The plaintiffs submitted that the defendants should not be permitted to rely on it as it had taken the plaintiffs by surprise. [469] For the reasons explained at [521] below, I have determined that the defendants should be permitted to rely on s 44.
11. As a further alternative to the express trust and resulting trust claims, Ali claims that the Bardwell Property was transferred to Orlando for the purpose of Orlando organising loans to be secured against the Bardwell Property whilst holding it on trust for Ali, that purpose failed when Orlando agreed to transfer the property to Goodman Court in order to secure discharges of mortgages securing monies owed by the Fonseca family and their related entities to ASH and Reliance, and that a Quistclose trust therefore arose at the time of Orlando's agreement to transfer the property to Goodman Court. [470]
12. Ali relies on the alleged November 2002 agreement as evidence of the purpose for which he claims the Bardwell Property was transferred to Orlando, being the basis of his Quistclose trust claim. [471]
13. Ali's pleaded contention that Orlando held on trust for him the renovations that Ali claims to have made to the Bardwell Property at his own cost in the period after the February 2003 transfer was not referred to in closing submissions and is therefore taken to be abandoned. [472] However, Ali relies on those renovations as supporting his contentions concerning the alleged November 2002 agreement and the alleged mutual intention or purpose of the February 2003 transfer. [473] Those contentions are the basis of the claimed express trust, resulting trust or Quistclose trust.
14. Ali claims that Orlando breached the alleged express, resulting or Quistclose trust by transferring the Bardwell Property to Goodman Court Pty Limited in January 2015 in order to discharge $1,317,216 of debts secured against certain properties owned by the Fonseca family. Ali claims a constructive trust over the benefits allegedly received by Orlando and other members of the Fonseca family as a result of the removal of those mortgages from properties owned, directly or indirectly, by members of the Fonseca family. [474]
15. Insofar as Jeffrey and Joselyn are concerned, this claim relies on the first limb of Barnes v Addy. Ali alleges that Jeffrey and Joselyn knew that Orlando held the Bardwell Property on trust for Ali and that when the Bardwell Property was transferred to Goodman Court in exchange for the discharge of mortgages over their properties, Jeffrey and Joselyn knowingly received the benefit of the Bardwell Property that was held on trust for Ali. [475]
16. Alternatively, Ali claims that a fiduciary relationship arose between Ali and Orlando when Ali transferred the Bardwell Property to Orlando in February 2003 with the mutual intention that it would not form part of Orlando's assets and would be held on trust for Ali and used only for the purpose of securing loans. Ali relies on the alleged November 2002 agreement as evidencing that mutual intention. Ali contends that, by transferring the property to Goodman Court, Orlando benefitted from the Bardwell Property without Ali's consent and Orlando holds that benefit on constructive trust for Ali. Ali claims that Jeffrey and Joselyn had actual knowledge of the alleged breach of fiduciary duty and also hold the benefits that they personally received as a result of the breach on constructive trust for Ali. [476]
17. Alternatively, Ali claims that each member of the Fonseca family benefitted from Orlando's transfer of the Bardwell Property to Goodman Court as a volunteer and that they hold those benefits (or their traceable proceeds) on constructive trust for Ali. [477] Ali contends that, if those volunteers claim to be bona fide purchasers of those benefits for value, they bear the onus of proving that claim and they have failed to discharge that onus. [478]
18. Ali also relies on the doctrine of proprietary estoppel. Ali claims that he transferred the Bardwell Property to Orlando in February 2003 assuming that Orlando would reconvey the property to him, that Orlando induced him to make this assumption and knew that he was relying on it, that he acted reasonably in relying on the assumption, and Orlando's departure from the assumption by transferring the Bardwell Property to Goodman Court was unconscionable. Ali relies on the alleged November 2002 agreement as evidencing the assumption that he claims to have made, encouraged by Orlando. [479]
19. The relationship between Ali's reliance on proprietary estoppel and his trust claims is not clear from the Third Further Amended Statement of Claim. The plaintiffs' closing submissions clarified that Ali contends that Orlando is estopped from denying the trust. I understand this to be a reference to the alleged express trust. [480]
20. Ali also pleaded promissory estoppel and estoppel by convention, [481] but his reliance on these doctrines was abandoned in closing submissions. [482]
21. Ali claims that the following properties (or a certain amount of equity in the properties or proceeds of sale of the properties) are held for him on constructive trust by on the basis that the registered proprietor is liable either as a knowing recipient of the proceeds of Orlando's alleged breach of trust or fiduciary duties with respect to the Bardwell Property or as a volunteer: [483] 1. the Oatley Property (formerly owned by Jeffrey); 2. the Broadbeach Property (formerly owned by Jeffrey); and 3. the property at 147 Holt Road, Sylvania Waters (referred to by the parties as the "Second Sylvania Waters Property") (owned by the seventh defendant, HRPL).
22. In the alternative to his constructive trust and tracing claims, Ali claims equitable compensation against Orlando and against the registered proprietors of the abovementioned properties. [484]
23. Orlando denies that he held the Bardwell Property on express trust for Ali. Orlando contends that Ali acquired the Bardwell Property in his name in November 2001 pursuant to the alleged September 2001 agreement, and that Ali transferred the property to Orlando in February 2003 in accordance with that agreement. [485] Orlando denies the alleged November 2002 agreement [486] and denies that the mutual intention or purpose of the February 2003 transfer alleged by Ali. [487] Orlando also denies that the Bardwell Property was transferred to him for no consideration. He relies on the consideration of $808,000 stated on the contract for sale, and contends that the evidence points to the parties having made various adjustments to that price prior to settlement. [488] Orlando therefore also denies that the Bardwell Property was the subject of a resulting trust or Quistclose trust in favour of Ali and that he is estopped from denying the alleged express trust. [489]
24. The defendants deny that other members of the Fonseca family had knowledge of Ali's alleged interest in the Bardwell Property (which is denied). [490]
25. In addition to denying the existence and breach of the alleged trusts and the alleged fiduciary duty, the defendants contend that there is no evidence of the benefits that Ali alleges the Fonseca family members received from the transfer of the Bardwell Property to Goodman Court. That contention was put in three alternative ways. First, Ali relied on the Deed of Retainer and Loan dated 2 July 2010 and the Deed of Release dated 16 June 2014 as evidence of the indebtedness of the Fonseca family members and related entities to Reliance and ASH and the terms on which the Bardwell Property was transferred to Goodman Court. The two deeds had not been stamped at the time of the hearing. The defendants submitted that, notwithstanding that the two deeds were admitted into evidence, they "are not evidence of the transactions they appear to embody" until they are stamped. [491] Second, the defendants submitted that the debt described in the Deed of Retainer and Loan dated 2 July 2010 and referred to in the recitals to the Deed of Release dated 16 June 2014 was extinguished by a Deed of Retainer and Loan dated 17 January 2011. [492] Third, the defendants submitted that the release or discharge of debts and mortgages under the Deed of Release dated 16 June 2014 was conditional on certain other payments being made to ASH and Reliance and satisfaction of certain other conditions stipulated that deed, and that there is no evidence that those payments were made or that those conditions were satisfied. [493]
26. Further or in the alternative to their contentions referred to immediately above, the Fonseca family members deny that they were volunteers in respect of any benefits they received as a result of the transfer of the Bardwell Property to Goodman Court on the terms of the Deed of Release dated 16 June 2014. [494]
27. The defendants dispute the premise, which underlies Ali's constructive trust and tracing claims in relation to the First and Second Sylvania Waters Properties, that the First Sylvania Waters Property should be treated as Joselyn's property because she was the sole shareholder of the registered proprietor, Sylvania Waters Pty Limited. [495] The issues raised by the defendants include that Sylvania Waters Pty Limited owned the First Sylvania Waters Property on trust for the Sylvania Waters Trust. [496]
28. In closing submissions, the defendants abandoned their pleaded change of position defence in respect of any benefits that they may be found to have received from the transfer of the Bardwell Property to Goodman Court. [497]
29. The defendants also abandoned their pleaded unclean hands defence and limitation defence in relation to Ali's claims concerning the Bardwell Property. [498]
30. The defendants also abandoned any reliance on their pleaded contention that Orlando, Vilma and Jeffrey had been released from Ali's claims against them in relation to the Bardwell Property upon their discharge from bankruptcy prior to the commencement of these proceedings. [499]

Claims and defences relating to the CD Account

1. Cleaning Doctor claims that a total amount of $2,695,078.51 was withdrawn from the CD Account during the period from September 2009 to November 2012 by Jeffrey, Orlando and other persons acting on their instructions without authorisation from Ali as Cleaning Doctor's sole director, secretary and shareholder. Cleaning Doctor pleads that it was the legal and beneficial owner of the money on deposit in the CD Account at all times during this period and that the money withdrawn from its account was stolen. [500]
2. The total amount of $2,695,078.51 allegedly comprises: 1. amounts totalling $1,860,730 withdrawn by Jeffrey and Orlando by cheque, ATM or debit card withdrawals or electronic funds transfers; [501] 2. an amount of $7,400 withdrawn by cheque by Mr Luis Duran on the instructions of Jeffrey or Orlando; [502] 3. amounts totalling $337,487 withdrawn by cheque by Jeffrey and Orlando or by other persons at the direction of Jeffrey and Orlando; [503] 4. amounts totalling $2,100 withdrawn from ATM machines at the Ivy or Establishment Hotels by Jeffrey and Orlando or by other persons at the direction of Jeffrey and Orlando; [504] 5. amounts totalling $17,544 withdrawn from or debited at locations close to Oatley by Jeffrey and Orlando or by other persons at the direction of Jeffrey and Orlando; [505] 6. amounts totalling $1,400 withdrawn from or debited at locations on the Gold Coast by Jeffrey and Orlando or by other persons at the direction of Jeffrey and Orlando; [506] and 7. payments totalling $4,860.90 made to airlines by Jeffrey and Orlando or by other persons at the direction of Jeffrey and Orlando. [507]
3. Whilst the defendants do not dispute that the total amount debited to the CD Account during the period September 2009 to November 2012 was $2,695,078.51, there is a problem with the plaintiffs' maths in that the categories of withdrawals referred to at [390] above amount to $2,231,521.90, approximately $460,000 less than the allegedly stolen amount of $2,695,078.51. [508]
4. Cleaning Doctor makes the following claims in relation to the allegedly stolen money.
5. First, Cleaning Doctor claims that: "The defendants are liable to the Cleaning Doctor by way of a trust and, in the alternative, by damages and in the alternative by way of an account in common form." This claim relies on Black v S Freedman & Co (1910) 12 CLR 105, in which O'Connor J stated (at 110): "Where money has been stolen it is trust money in the hands of the thief, and he cannot divest if of that character. If he pays it over to another person, then it may be followed into that person's hands." The remedy sought by the Cleaning Doctor is an order requiring Jeffrey and Orlando to provide an account in common form accounting for the money they received from the CD Account and their disbursement or distribution of that money. [509]
6. Second, Cleaning Doctor claims to be entitled to recover the allegedly stolen money from the defendants who received it as money had and received. The claim is put as a restitutionary claim on the basis that the defendants have been unjustly enriched by receiving the allegedly stolen moneys. [510]
7. Third, Cleaning Doctor claims that damages for conversion of the cheques used to make withdrawals from the CD Account, and the notes and coins paid to the recipient on the occasion of each withdrawal. [511]
8. In relation to the cheques, Cleaning Doctor contends that the signed blank cheques were fraudulently obtained by Orlando because they were given to him for the purpose of paying the Bardwell Property mortgage, Orlando admits that he did not use the cheques for that purpose and it is clear from the evidence that he never intended to use the cheques for that purpose. Cleaning Doctor submits that the drawer of a cheque obtained by fraud remains the true owner of the cheque, that Cleaning Doctor was therefore entitled to immediate possession of each cheque at all times, and that Jeffrey and Orlando converted the cheques by completing them and presenting them to the bank to make the withdrawals from the CD Account. [512]
9. In relation to the notes and coins, Cleaning Doctor contends that it was the owner of the money in the CD Account, and it is therefore the owner of notes and coins withdrawn from that account. It is submitted that Jeffrey and Orlando "converted that money to their own use" when they withdrew the money from the CD Account allegedly without authorisation. Alternatively, Cleaning Doctor contends that, even if it were unable to prove that it owned the money in the CD Account (which is denied), "its possession of the money gives it greater title than Jeffrey and Orlando" who do not admit that Cleaning Doctor owned the money in the CD Account but make no claim to ownership of that money themselves. The "greater title" of Cleaning Doctor is said to be sufficient for the Jeffrey and Orlando to be liable in conversion. [513]
10. Cleaning Doctor claims damages for conversion in the sum of the amounts withdrawn from the CD Account. [514]
11. Fourth, Cleaning Doctor claims that the alleged conversion was carried out by fraudulent means because Orlando and Jeffrey committed a fraud on the bank or deceived the bank by falsely representing that they were authorised to make the withdrawals and concealed the withdrawals from Ali by destroying records and threatening him if he wished to investigate the CD Account. Cleaning Doctor alleges that this constituted deceit and also misleading or deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) and s 18 of the Australian Consumer Law by which Cleaning Doctor suffered loss and damage. In closing submissions, Cleaning Doctor made the further allegation that Orlando engaged in misleading or deceptive conduct by representing to Ali that any withdrawal would go to paying down the mortgage on the Bardwell Property. Cleaning Doctor claims damages at general law and pursuant to s 82 of the Trade Practices Act and s 236 of the Australian Consumer Law. [515]
12. Cleaning Doctor's pleaded claim that Jeffrey and Orlando engaged in unconscionable conduct in allegedly stealing the money from the CD Account and by engaging in the alleged concealment referred to above was not mentioned in the plaintiffs' closing submissions. This claim was pleaded separately to and in addition to the allegation of theft. It is assumed to have been abandoned. [516]
13. The defendants do not admit that Cleaning Doctor was the legal and beneficial owner of the money on deposit in the CD Account at the time of the withdrawals during the period from September 2009 to November 2012. [517]
14. The defendants admit that: 1. Jeffrey and Orlando made the withdrawals from the CD Account totalling $1,860,730; [518] 2. Mr Duran made the $7,400 withdrawal on the instructions of Jeffrey and Orlando; [519] 3. other persons made the other withdrawals referred to at [390(3)]-[390(7)] above, and that those withdrawals were made on the instructions of Jeffrey and Orlando with the exception of specific withdrawals totalling $83,899.55 plus unspecified bank charges in respect of which they deny giving instructions. [520]
15. In their Further Amended Defence, the defendants denied that Jeffrey and Orlando and members of the Fonseca family were not authorised by Ali, [521] and positively contended that Jeffrey and Orlando were authorised by Ali, [522] to make withdrawals from the CD Account. The defendants also denied that the withdrawals were made for an unauthorised purpose. [523]
16. The Further Amended Defence did not plead or particularise facts, matters or circumstances relied on in support of the pleaded contention that Jeffrey and Orlando were authorised to make withdrawals from the CD Account. It is common ground that Ali gave signed blank cheques and the debit card for the CD Account to Orlando, but there is a dispute about the purpose for which he did so. [524] Much of the evidence on which the defendants relied at trial was directed to their contention that they withdrew money from the CD Account for the purpose of paying workers who carried out the jobs at UNSW that the defendants say Clean & Clear subcontracted to Cleaning Doctor, and for the purpose of paying to Ali his "profit share" for those jobs.
17. However, the defendants did not put this forward as the only purpose for which they contend they were authorised to withdraw money from the CD Account. As referred to at [210] above, Orlando gave evidence that he discussed with Ali that: "Any money left over after cash withdrawals is mine." As referred to at [296] above, Jeffrey gave evidence to the effect that the blank signed cheques that Ali provided and the debit card that he handed over constituted general authority for Orlando and Jeffrey to withdraw from the CD Account.
18. Cleaning Doctor casts the defence as limited to authority to make withdrawals for the purpose of paying workers' wages, [525] referring to: 1. Orlando's evidence that: "I say that I was authorised to withdraw money from the bank account of the Cleaning Doctor because the money that was put into that bank account came from Clean & Clear and was put there for the purpose of paying wages to the subcontractors"; [526] and 2. Jeffrey's evidence that: "Mr Itawi did not instruct me to withdraw amounts from the Cleaning Doctor's bank account in the sense that he gave me permission to do so. The permission to withdraw money was given by my father." [527]
19. Cleaning Doctor contends that, in circumstances where the defendants do not claim to have owned the money in the CD Account and admit having made the withdrawals, Cleaning Doctor's claims must succeed if the defendants fail to prove that they were authorised to make withdrawals for the purpose of paying workers, and that they did in fact withdraw and apply the money for that purpose. [528]
20. The defendants submitted that, by reason of s 18(1) of the Cheques Act 1986 (Cth), Orlando is presumed to have been authorised to complete the blank cheques in any way that he saw fit, unless Cleaning Doctor proves to the contrary. [529] In reply, Cleaning Doctor objected to the defendants relying on this statutory provision which had not been pleaded and further submitted that a statutory presumption of authority did not assist the defendants in circumstances where Ali, as the sole director of Cleaning Doctor, had given evidence that the completion of the blank cheques was not authorised except for the purpose of paying the Bardwell Property mortgage. [530]
21. The pleading point taken by Cleaning Doctor resulted in the defendants applying for leave to amend during closing submissions. The final iteration of the proposed amendment, which was served after the completion of closing submissions, involves the following contentions: 1. Ali delivered pre-signed blank cheques on the CD Account to Orlando so that Orlando could fill them up as complete cheques; 2. by reason of s 18(1) of the Cheques Act, Orlando is presumed to have had authority to fill up the cheques as payable to cash on the dates and in the amounts that were in fact written on the cheques; 3. once completed in that manner, the cheques became bearer cheques and Orlando (or his agents) was the bearer and the holder of the cheques within the meaning of s 3 of the Cheques Act; 4. by reason of s 36 of the Cheques Act, Cleaning Doctor is presumed to have received value for the cheques; and 5. by reason of s 71(1)(a) of the Cheques Act, Cleaning Doctor undertook by drawing the cheques that they would be paid according to their tenor on due presentment.
22. The plaintiffs opposed the application for leave to amend. The parties were content for me to determine the application at the same time as delivering the principal judgment. For the reasons explained at [555]-[559] below, leave to amend is refused.
23. As I have already mentioned, the defendants do not admit that Cleaning Doctor was the legal and beneficial owner of the money on deposit in the CD Account. They deny Cleaning Doctor's claims that the moneys withdrawn from the account were stolen. They deny that the moneys withdrawn were held on trust for Cleaning Doctor and further deny that they are liable for money had and received or to pay damages for conversion, deceit or misleading or deceptive conduct. [531]
24. Orlando, Vilma and Jeffrey contend that, to the extent that they may owe any debt or have any liability to Cleaning Doctor (which is denied), they were each released from that liability on the discharge of their bankruptcy. [532]
25. The defendants' pleaded defences of illegality and unclean hands and their limitation defence were not pressed in relation to the Cleaning Doctor claims. [533]

Observations in relation to witnesses

1. The principal witnesses in these proceedings - Ali, Orlando and Jeffrey - have each given evidence of events and conversations that occurred up to 14 years before they first made affidavits for the purpose of these proceedings and up to 19 years before the hearing.
2. In assessing the evidence of these witnesses, it is necessary to be mindful of the following well-known observations of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319 in assessing the evidence: "… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."
3. The factors referred to by his Honour require primary emphasis on the objective surrounding facts that are either undisputed or established by contemporaneous documents, and the inherent probabilities and improbabilities: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[31] (Gleeson CJ, Gummow and Kirby JJ); Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [77] (Bell P, Leeming JA and Emmett AJA agreeing). Indeed, in any commercial litigation, contemporaneous documents "generally furnish the most reliable source of evidence as to what occurred or, at the very least, provide a generally reliable reference point from which to assess the reliability of witness testimony". Although the accuracy and reliability of witness testimony must be treated with caution given the fallibility of human memory, witness testimony may still be of value and importance, including by providing evidence of the context in which relevant documents and events must be understood: ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24 at [25]-[29] (Bell P, Bathurst CJ agreeing).
4. In addition, the following observations of Hammerschlag J in John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [94]-[96] [534] are relevant to assessing the evidence given by Ali and Orlando about the basis or terms on which Ali transferred the Bardwell Property to Orlando in January 2003: "Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. Moreover, in the case of contract, the court must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences … The sensation of feeling an actual persuasion, after a contest, that an event has happened or that something exists is one which is well known and recognised by experienced trial judges for what it is. [The plaintiff] has the onus of establishing the agreement for which it contends. This entails proving to the reasonable satisfaction of the court that the words said to give rise to the agreement were actually said, and that the alleged consensus was capable of forming a binding agreement and was intended by the parties to be legally binding."
5. In this case, it is Ali who seeks to rely on words allegedly spoken in November 2002 in support of his cause of action relating to the Bardwell Property.
6. A further reason for placing primary emphasis on undisputed objective matters, contemporaneous documents and the inherent probabilities and improbabilities in the present case is that both key witnesses - Ali and Orlando - were most unsatisfactory witnesses. As senior counsel for the plaintiffs very candidly and properly acknowledged in closing submissions: "… your Honour will have concerns about the credit of just about any of the witnesses in the - or the majority of the witnesses in these proceedings. Mr Itawi included". [535]
7. Ali's evidence given in his affidavits and in cross-examination was riddled with irreconcilable inconsistencies. The explanations that he offered when confronted with those inconsistencies in cross-examination were inherently implausible. I refer to the following matters in particular: 1. Ali's inconsistent evidence about whether Orlando or Fonseca businesses made payments to him in the period prior to 2009 return for his procurement of cleaning and/or maintenance subcontracts from his employers (Prestige, Tempo and TBM) to the Fonseca businesses; [536] 2. Ali's evidence about whether, under the alleged November 2002 agreement, Orlando was responsible for paying all of the Bardwell Property mortgage repayments, or whether Ali was responsible for part of that mortgage and therefore part of those repayments [537] and whether any repayments that Orlando did make were deducted from moneys payable by Orlando or the Fonseca family to Ali (noting that Ali has given inconsistent evidence about whether any such moneys were payable to him prior to 2009, as referred to immediately above) or from Ali's "share of profits from the Cleaning Doctor" in the period after September 2009; [538] 3. Ali's inconsistent explanations about what he understood Orlando meant by "the shortfall" that Ali claims was discussed in the conversation that he relies on as evidencing the alleged November 2002 agreement; [539] 4. in attempting to explain his own evidence that, in the period after the Bardwell Property was transferred to Orlando, Ali had demanded that Orlando transfer the property back to him (for no consideration) and at the same time demanded that Orlando pay him "the rest of the purchase price" for the property, Ali asserted that those two separate demands that he claimed to have made in the same conversation meant the same thing; [540] 5. Ali's inconsistent evidence about when, and for what reason, he received payments of $2,500 from the Fonseca family; [541] 6. Ali's inconsistent evidence about when the September 2009 document was signed by members of the Fonseca family and whether he saw Jeffrey signing the document in his presence in September 2009 and his attempt to overcome that inconsistency in cross-examination by incorrect assertions about the substance of the evidence that he had previously given; [542] 7. Ali's inconsistent evidence about whether all workers who worked on UNSW jobs in the period after September 2009 invoiced Clean & Clear and were paid directly by Clean & Clear (with the exception of the two workers that Ali refers to as his workers), or whether that arrangement applied only to "specialised trades" or "independent trades"; [543] 8. Ali's inconsistent evidence about why he gave Orlando the signed debit card for the CD Account; [544] 9. the inconsistency between, on the one hand, Ali's claims to have given Orlando signed blank cheques and the debit card for the CD Account and to have refrained from obtaining statements for the CD Account from Westpac because he trusted Orlando and, on the other hand, Ali's evidence that he did not trust Orlando at that time; [545] 10. Ali's inconsistent evidence about why he says that he did not make withdrawals from the CD Account; [546] and 11. Ali's inconsistent evidence about whether he believed in March 2015 that there was "a lot of money in [Cleaning Doctor] that belongs to my family". [547]
8. Ali had no hesitation in making assertions that were plainly contrary to the objective facts. For example: 1. when confronted with his response to a notice to admit facts in these proceedings in which he had denied signing the $50,000 mortgage in respect of the Bardwell Property, Ali asserted that he had "never denied" signing the $50,000 mortgage "from day 1"; [548] and 2. Ali asserted that he had "never" received payments from Crew Hire and that he "would have questioned" any payment coming to him from that entity, when his own bank statements reveal numerous payments into his account from Crew Hire. [549]
9. Both Ali and Laura were prepared to swear in their July 2015 affidavits to an account of their conversation with Orlando on 18 March 2015 that included words that were not said, as revealed by their secret recording of that conversation that was in their possession at the time they swore those affidavits without revealing the existence of the recording. Ali's explanation for this was wholly unsatisfactory and revealed that he had given an account of the conversation in his 7 July 2015 affidavit that recorded not what was said, but what Ali claimed to have intended by the words that he had said and what Ali claimed to have understood by the words that Orlando had said. Ali's 7 July 2015 affidavit did not disclose that what was put forward was an interpretation of the conversation, which by its very nature must be consciously or subconsciously affected by Ali's perception of his interests in these proceedings, rather than an account of what Ali recalled being said in that conversation. [550] It is plain from Ali's evidence that he wanted to lure Orlando into giving evidence inconsistent with the recording before disclosing its existence and that Ali treated giving evidence as a game in which he would try and outsmart Orlando rather than as a process of telling the truth to the best of his recollection. [551] Ali fell into his own trap by giving evidence of the conversation that was inconsistent with the recording.
10. I have not overlooked the fact Ali's first languages are Arabic and French and that he did not learn English until he arrived in Australia in 1997. [552] I have also taken into account that Ali had been living and working in Australia continuously for 23 years by the time of the hearing and that he is represented by solicitors and by very experienced senior and junior counsel. Ali affirmed eleven affidavits. Many of those affidavits were lengthy and contained his detailed narrative account of relevant events and his detailed responses to the defendants' affidavits. None of those affidavits had been interpreted for him in French or Arabic before he affirmed them. I assume that his solicitors (and counsel if they had been briefed at the time each affidavit was affirmed) would have arranged for the affidavits to be interpreted if they had any concern about his ability to communicate his evidence in English. Similarly, I have no doubt that his solicitors and counsel would have applied for Ali to give his oral evidence through an interpreter if they had any concern about his ability to understand questions put in English and to answer in English. No such concern was raised at any time during his lengthy cross-examination. Ali did not express any confusion or difficulty in understanding the questions put to him except for the occasional question that had been framed in an unclear manner. Those occasions were the very kind of miscommunication that does happen from time to time during any cross-examination, and did not reflect any language difficulty. To my observation, Ali answered questions put to him quickly and confidently.
11. Orlando's evidence was also plagued by inconsistencies. I refer in particular to: 1. Orlando's inconsistent evidence about the reason he says his broker gave in 2001 for his advice that Orlando could not take out a loan to buy the Bardwell Property at that time and would need to wait about six months; [553] 2. Orlando's inconsistent attempts to explain in cross-examination why the alleged September 2001 agreement was not documented by the solicitors that he arranged to act in relation to the acquisition of the Bardwell Property in 2001; [554] 3. the inconsistency between Orlando's affidavit evidence that he and Vilma lent a total amount of about $110,000 to Ali in connection with the purchase of the Bardwell Property in 2001, and his upwards revision of his financial contribution to that transaction to $150,000 in cross-examination; [555] and 4. the inconsistency between Orlando's evidence that he needed to control the CD Account and the payments to workers at UNSW because Ali was a gambler who could not be trusted to pay them, and Orlando's evidence that he told Jeffrey to give the large sums withdrawn from the CD Account in cash to Ali with nothing more than a verbal instruction to pay the workers. [556]
12. Orlando was frequently argumentative in cross-examination. On occasion, Orlando put forward explanations for matters or events about which he was being cross-examined that had not been mentioned in his many affidavits read in these proceedings. When confronted with the absence of any evidence to support the assertions he was making in the witness box, Orlando's usual response was to insist that he could obtain that evidence (although the defendants had not done so in the five years between the commencement of the proceedings and the final hearing) or to complain that he should not have to produce that evidence. I refer, for example, to Orlando's evidence that I have set out in detail at [65]-[66], [82]-[83], [202] and [230] above.
13. I have taken into account that English is not Orlando's first language and he spoke English with a heavy accent. However, my observations in relation to Ali at [421] above apply equally to Orlando, save that he has been living and working in Australia for longer than Ali.
14. In addition, each of Ali and Orlando has lied about significant matters relevant to these proceedings where he considered that it was in his interests to do so.
15. For the reasons explained at [446]-[468] below, Orlando lied about the alleged September 2001 agreement.
16. For the reasons explained at [512] below, Ali lied about the September 2009 document.
17. Ultimately, having regard to their willingness to lie about those matters and the inconsistencies within their evidence, I do not accept the evidence of either Ali or Orlando about any disputed matter, except where the evidence is inherently probable, corroborated by a contemporaneous document or the evidence of a reliable witness, or where the evidence was contrary to his own interests.
18. I do not regard Jeffrey as a reliable witness capable of corroborating Orlando's evidence. The frequency with which Jeffrey answered "I don't recall" during his cross-examination indicates that he has a poor recollection of events. Jeffrey was even unable to recall the source of $40,000 paid into his bank account three months after he became bankrupt. [557] As the plaintiffs submitted, that is an unusual event that a person would ordinarily be expected to remember. Jeffrey's "I don't recall" answers occasionally bordered on farcical. For example, he was adamant that he did not have all of the records of Clean & Clear when that company had gone into liquidation, yet he could not recall what records he did not have or why he knew that he did not have all the records. [558]
19. To the extent that he claimed to be able to recall things, Jeffrey had a tendency to try and avoid answering the question by making a statement in his own interests that did not address the question. [559] When asked why he had not taken steps that were inherently likely to have been taken by someone in his position (if his account of events were to be believed), Jeffrey frequently responded with an assertion that it was not his job to take the relevant step or unfounded speculation that someone else might have done so. [560]
20. Like Orlando, Jeffrey was willing to lie where he perceived that it was in his or his family's interests for him to do so. Jeffrey no longer disputes that he filled out the date, the amount and the payee "cash" of the signed cheques and presented them to the bank in order to withdraw funds from the CD Account. As referred to at [221] above, Jeffrey swore an affidavit in these proceedings on 1 July 2015 in which he deposed that Ali had filled out the pre-signed cheques in his presence. Jeffrey later retracted that evidence and said that he had made a mistake. The retraction came only after the plaintiffs had produced copies of the cheques bearing handwriting that Jeffrey had to acknowledge was his own. Jeffrey's attempted explanation in cross-examination that, when he swore his 1 July 2015 affidavit, he had not only forgotten writing out almost 40 cheques himself for significant sums in cash but also had a mistaken positive memory of having seen Ali fill out those cheques, is so implausible as to be fanciful. I find that Jeffrey lied in his 1 July 2015 affidavit when he claimed that the cheques had been written out by Ali in his presence. Jeffrey lied again in cross-examination when he claimed to have made a mistake about this in that affidavit. [561]
21. For those reasons, I take the same approach to Jeffrey's evidence as I have described at [430] above in relation to the evidence of Ali and Orlando.
22. I acknowledge the plaintiffs' submissions [562] that Orlando and Jeffrey are not witnesses of credit because they transferred assets in breach of freezing orders made by this Court in May 2019. I do not consider it necessary or appropriate to make findings in relation to those serious allegations solely for the purposes of credit having regard to the views that I have otherwise formed at [430] and [434] above.
23. I do not regard Laura as a reliable witness capable of corroborating any aspect of Ali's evidence. Laura was not involved in most of the events and conversations relevant to these proceedings. To the extent that she was involved, Laura has not demonstrated any ability to accurately recall those events and conversations. [563]
24. When assessing the evidence as a whole in relation to each disputed matter, including the evidence of witnesses and any documentary evidence, I have had regard to the following observations made by Hodgson JA (with the agreement of Beazley JA, as Her Excellency then was), in Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 at [14]-[15]: "… in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision. … In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so… As stated by Lord Mansfield in Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970: '… [A]ll evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.'. …"

Findings of fact in relation to the Bardwell Property

The parties' submissions

1. I have considered all of the parties' extensive written and oral submissions. [564]
2. The submissions made on behalf of the plaintiffs acknowledged the two very different accounts given by Ali and Orlando of Ali's acquisition of the Bardwell Property in November 2001 and his transfer of the property to Orlando in January 2003. The plaintiffs submitted that "one of the explanations proffered by these two protagonists must be accepted by the Court because there is no other rational explanation for the unclaimed shortfall in the purchase price of the Bardwell Property by Orlando". The plaintiffs further submitted that a close analysis of the transcript of the recorded meeting between Ali, Laura and Orlando supports Ali's account. It was submitted that the Court should accept Ali's evidence about the Bardwell Property transactions on the basis of that transcript and the matters that the plaintiffs characterised as "the objective facts". [565]
3. The plaintiffs identify the following "objective facts" - characterised in the plaintiffs' submissions as either "critical facts" or "non-critical facts" - that they submit are proved by the evidence and support Ali's account of the Bardwell Property transactions in November 2001 and January 2003: [566] 1. Ali acquired the Bardwell Property in his own name (a "critical fact"); 2. by the time Ali transferred the Bardwell Property to Orlando, it had a "notional value" of $808,000 (a "critical fact"); 3. Ali and Orlando had a close personal relationship (a "non-critical fact"); 4. Orlando paid nothing to Ali for Ali's equity in the Bardwell Property when the property was transferred to Orlando in January 2003 (a "critical fact"); 5. Ali and Orlando made an agreement in 2002 that Orlando would get the Bardwell Property as security and Ali would get his mortgage paid under the agreement (a "critical fact"); 6. Ali did renovations to the Bardwell Property while Orlando was the registered proprietor (a "non-critical fact"); 7. Orlando borrowed money against the Bardwell Property while he was the registered proprietor (a "non-critical fact"); 8. Orlando transferred the Bardwell Property to Goodman Court Pty Limited in exchange for the release of mortgages against properties owned by Fonseca family members or related entities (a "critical fact"); 9. in response to the loss of the Bardwell Property in March 2015, Orlando promised to provide an alternative house to Ali and Laura (a "non-critical fact"); and 10. Joselyn and Jeffrey had actual knowledge that the Bardwell Property was Ali's house (described as a "critical fact on knowing receipt claim only").
4. The defendants submitted that the Court is not constrained to accept one of the two protagonists' accounts of the Bardwell Property transactions and that the Court should make the following findings on the basis of the evidence: [567] 1. Orlando and Ali had a conversation in September 2001 in which they agreed that: 1. Ali would purchase the Bardwell Property in his name with a mortgage loan and funds provided by Orlando; 2. Orlando would make the mortgage payments; 3. Ali would transfer the property to Orlando about one year after the initial purchase at which Orlando would pay out Ali's mortgage; and 4. Ali could live at the property rent-free provided that he directed cleaning work to Orlando. 1. Ali purchased the Bardwell Property for $580,000 in September 2001 and became the registered proprietor of that property on 1 November 2001; 2. the purchase was financed in part by a third party loan of $464,000 secured by mortgage against the Bardwell Property on completion of Ali's purchase; 3. the balance of the funds required for the purchase were provided by Orlando; 4. Orlando made the mortgage repayments for the Bardwell Property from completion of Ali's purchase in about November 2001; 5. on 11 December 2002, Ali and Orlando entered into a written contract for the sale of the Bardwell Property to Orlando for $808,000 and that contract was completed on 21 January 2003 following which Orlando became the registered proprietor of the property on 10 February 2003; 6. approximately $470,000 was owing under Ali's mortgage on completion and Orlando discharged that mortgage on completion; 7. reductions were made to the $808,000 purchase price as a result of which the amount owed by Orlando to Ali on completion was $58,078.51, but Ali gave written instructions to the solicitors acting for both parties that he and Orlando would deal with that shortfall between themselves; 8. Orlando therefore "did not pay any money to Mr Itawi himself in respect of the sale"; 9. by the time of execution of the transfer of the Bardwell Property from Ali to Orlando, there was no shortfall owing because, on the face of the transfer, Ali acknowledged receipt of the full contract price of $808,000; and 10. after January 2003, Ali continued to live in the Bardwell Property rent-free and continued directing work to the Fonseca businesses.
5. It is difficult to reconcile: 1. the findings for which the defendants contend in relation to the adjustments to an $808,000 purchase price payable by Orlando to Ali, the shortfall between the funds available on completion and the amount payable to Ali as vendor and the agreement between Ali and Orlando to deal with the shortfall between themselves; and 2. the findings that the defendants ask the Court to make in relation to the alleged September 2001 agreement.
6. Counsel for the defendants submitted that the alleged September 2001 agreement is one potential explanation for the adjustments reducing the balance of payable to the vendor on settlement to $528,354.26 and the shortfall of $58,078.51 in January 2003. [568] It will be necessary to return to that submission below.

Findings

1. Contrary to the plaintiffs' submission, the Court is not compelled to accept either Ali's account or Orlando's account of the Bardwell Property transactions. That submission was based on the contention that, unless one of those accounts is accepted, there could be "no other rational explanation for the unclaimed shortfall in the purchase price of the Bardwell Property by Orlando". That contention is wrong for reasons that I will explain below.
2. As the defendants submitted, Ali, as the plaintiff prosecuting the Bardwell Property claims, bears the onus of proving that he transferred the property to Orlando in January 2003 to be held on trust for Ali, for no consideration (or no consideration for Ali's equity in the property), or for a purpose that subsequently failed (being the purpose of Orlando borrowing funds for the Fonseca businesses against the security of the property). [569] For the reasons explained below, Ali has failed to discharge his onus.
3. I refer to my summary of the evidence relevant to the purchase of the Bardwell Property in September 2001 at [37]-[85] above.
4. The contemporaneous documentary evidence establishes that Ali purchased the Bardwell Property in his own name for $580,000 in September 2001 and became the registered proprietor of the property on 1 November 2001.
5. The contemporaneous documents also establish that the purchase was financed, in part, by a third party loan of $464,000 that was secured by mortgage over the property.
6. Taking into account the deposit of $14,500 paid on exchange of contracts and the third party loan amount, additional funds of approximately $101,500 were required to be paid to the vendor on completion. That amount does not take into account stamp duty, registration fees and legal fees payable by the purchaser or any adjustments as between purchaser and vendor on completion.
7. Ali now accepts that Orlando provided funds of up to $50,000 in connection with the purchase of the Bardwell Property, as reflected in the mortgage securing a loan of $50,000 from Vilma to Ali over the Bardwell Property. [570] This included the $14,500 deposit that was paid by Orlando and the fees of the solicitors that Orlando arranged and paid to act in relation to the purchase.
8. Ali claims he contributed $105,000 of his personal funds to the purchase of the Bardwell Property by paying this sum in cash directly to the vendor.
9. Orlando claims that he paid $105,000 directly to the vendor over and above his contributions referred to above. In his affidavit evidence, Orlando claimed to have lent a total amount of $110,000 to Ali in connection with the purchase of the Bardwell Property. In cross-examination, Orlando revised his total claimed contribution to the transaction in 2001 to approximately $150,000. [571]
10. I accept Ali's evidence that he contributed $105,000 of his own personal funds in cash to the purchase of the Bardwell Property. I reject Orlando's evidence that he made a total contribution of $150,000, including $105,000 that he claimed to have paid directly to the vendor.
11. I accept Ali's evidence because it is consistent with his instructions as recorded by the solicitors acting on the purchase at the time. A settlement sheet prepared by those solicitors establishes that they acted on those instructions in calculating the amount to be paid to the vendor on settlement of the purchase, and there is no evidence (documentary or otherwise) to suggest that the solicitors subsequently revised their settlement calculations to remove the allowance for $105,000 paid in cash to the vendor.
12. It is inherently improbable that Hancock Alldis would have recorded and acted on Ali's instructions if they had any reason to doubt the accuracy of those instructions. Orlando had arranged for Hancock Alldis to act and was paying their fees. If Orlando had contributed $105,000 to the purchase price of the Bardwell Property, it is inherently likely that he would have informed the solicitors about this and that they would have recorded the contribution as having been made by him rather than by Ali, or that they would have documented a total contribution by Orlando of approximately $150,000. As the plaintiffs submitted, that did not occur in September 2001. Instead, Hancock Alldis documented a mortgage securing a loan of $50,000 from Vilma to Ali. As the plaintiffs' submitted, and as I have referred to at [64] above, Orlando was unable to explain this discrepancy between the contribution of $110,000 or $150,000 that he now claims to have made to the purchase of the Bardwell Property in September 2001 and the contemporaneous documentation created by the solicitors whose fees he paid.
13. As the plaintiffs submitted [572] and as I have referred to at [67]-[68] above, Orlando's claim to have personally paid $105,000 directly to the vendor of the Bardwell Property was advanced for the first time in cross-examination. That claim is inconsistent with Orlando's earlier affidavit evidence that he had not dealt with the vendor directly. It is also inconsistent with the contemporaneous records of the solicitors referred to above. Moreover, Orlando was unable to offer any plausible explanation for his alleged $105,000 payment to the vendor before settlement. The only reason he offered in cross-examination was that it was necessary to pay the $105,000 before settlement because "it's like the deposit". I reject that explanation. As the cross-examiner put to him, Orlando had already paid the $14,500 deposit required by the contract. There was no evidence of any contractual requirement to make any additional payment to the vendor prior to settlement. [573]
14. Orlando relied on the alleged $60,000 loan referred to at [59]-[67] above as part of his claimed $150,000 contribution to the purchase of the Bardwell Property. As the plaintiffs submitted, there is no evidence to support any such loan having been made at the time the Bardwell Property was purchased in Ali's name in September 2001. The alleged loan was first mentioned in the solicitors' letter to Vilma in April 2002 referring to an "additional advance" and "variation of mortgage". It is not necessary to make any finding about whether that alleged loan was in fact made in 2002.
15. For completeness, I reject the defendants' submissions that criticised the credibility of Ali's evidence about that part of the $105,000 cash fund that he had received from his father as USD$75,000 before he left Lebanon. Those submissions turned on a particular reading of a few words in one of Ali's affidavits giving rise to an alleged inconsistency within his evidence about whether he carried USD$75,000 with him on his journey from Lebanon to Australia in the form of a bank cheque or in cash. I do not accept that the defendants' reading of the relevant words was the only reading reasonably open or that the alleged inconsistency arises. I accept that is unusual for a person to keep an amount as large as AUD$105,000 at their home in cash as Ali said that he had done for some considerable time in Australia before paying that sum to the vendor of the Bardwell Property. However, it is no more unusual than the defendants' payments of considerable sums of cash to Ali over that same period of time in connection with the cleaning work that Ali referred from his employer to the Fonseca businesses. Ali plainly had a general preference for dealings in cash. For those reasons, I do not find his evidence about keeping the $105,000 in cash to be implausible, notwithstanding that his conduct may be considered to be unusual by ordinary standards. [574]
16. I reject Orlando's evidence concerning the alleged September 2001 agreement. [575]
17. It is inherently implausible that Ali contributed $105,000 of his own funds to the purchase of a property that he agreed to acquire in his own name on the basis that he would transfer it to Orlando when required to do so for no consideration other than Orlando paying out the third party mortgage, as Orlando claims to have agreed with Ali in September 2001.
18. Orlando gave evidence that, after making the September 2001 agreement, he told Ali that he would ask the solicitors to prepare "all of the documents". Yet the alleged September 2001 agreement was not documented and, as the plaintiffs submitted, Orlando was unable to offer any plausible explanation for this. Orlando's attempted explanations during cross-examination were inconsistent and entirely unconvincing. [576] Moreover, as the plaintiffs submitted, the documents created by Hancock Alldis in relation to the transfer of the property to Orlando in December 2002 and January 2003 are inconsistent with the alleged September 2001 agreement. I discuss those documents in the context of that transaction below.
19. Orlando gave evidence that he made the alleged September 2001 agreement with Ali rather than simply purchasing the Bardwell Property for himself in September 2001 because his broker told him that he (Orlando) needed to save more money before he could obtain a loan to buy the property. As the plaintiffs submitted, that evidence is inconsistent with his claim to have contributed $150,000 to the purchase of the property in Ali's name. It is implausible that Orlando was unable to borrow sufficient funds to purchase the property if he had $150,000 (representing 26 per cent of the 2001 purchase price) available to pay towards the purchase. As the plaintiffs submitted, it is equally implausible that Orlando intended to acquire the Bardwell Property for his own benefit from 2001 and structured the acquisition in the manner that he alleges, which would require him to pay both stamp duty and legal fees twice within a period of six to twelve months.
20. I reject the defendants' submission that the evidence supports a finding that Orlando made the mortgage repayments from the time of completion of Ali's purchase of the Bardwell Property. The evidence, which I have set out in detail at [73]-[85] above, does not provide a sufficient basis for me to make any finding on the balance of probabilities about who made the mortgage repayments during the period from the completion of Ali's purchase until the transfer of the property to Orlando. Ali gave inconsistent evidence about this subject. Orlando claims to have made the payments from funds of an entity that did not exist at the time the payments were made. Orlando failed to produce any documents supporting his claim to have made the payments, despite a call for those documents during the hearing. Each of Ali and Orlando had an interest in claiming to have made the mortgage repayments. Neither of them have adduced any evidence corroborating their respective claims. Contrary to the plaintiffs' submissions, the statement for the mortgage account in Ali's name does not support his evidence that he made the repayments. The account statement does not identify the source of the payments. I do not accept Ali's evidence or Orlando's evidence about this matter for the reasons explained at [415]-[430] above.
21. On Orlando's own evidence, he made regular payments to Ali in the period prior to Ali's purchase of the Bardwell Property in return for Ali's referral of cleaning work from his employer to the Fonseca businesses. Ali was not challenged in cross-examination about his evidence that Orlando provided him with benefits in other forms. Thus, even if I had found that Orlando made the mortgage repayments in the period prior to January 2003 when it is common ground that Ali was referring work to the Fonseca businesses, this would not have overcome the implausibility of the alleged September 2001 agreement.
22. Finally, the alleged September 2001 agreement was not mentioned in the first affidavit served by the defendants in these proceedings for the purpose of resisting the plaintiffs' application for freezing orders. That first affidavit was sworn by Jeffrey, who obtained information from Orlando for that purpose. Orlando was aware of the proceedings and the allegations made by Ali about his beneficial ownership of the Bardwell Property at all times. It is inherently unlikely that Orlando made the alleged September 2001 agreement with Ali yet failed to inform Jeffrey about this when Jeffrey was preparing that first affidavit. It would have been an obvious and important matter to mention in that affidavit. I infer from the absence of any reference to the alleged September 2001 in Jeffrey's first affidavit that Orlando had not told him about such agreement before Jeffrey swore the affidavit. Taking this together with implausibility of the alleged September 2001 agreement as referred to at [460]-[462], I infer that this is because it is a story that Orlando developed after Jeffrey's first affidavit was sworn in an effort to further what Orlando perceived to be his interests in defending Ali's claims relating to the Bardwell Property. I reject the defendants' submission that the matters referred to herein are insufficient to support that inference. [577]
23. For all of the reasons at [447]-[465] above, I find that Ali purchased the Bardwell Property for himself in September 2001, with a third party loan of $464,000 secured by mortgage over the property and financial assistance of approximately $50,000 from Vilma and Orlando which was the subject of an unregistered mortgage securing repayment of that amount. Ali paid the balance of the purchase price from his own funds. Ali and Orlando did not enter into the alleged September 2001 agreement in relation to the Bardwell Property. As I have already said, it is not necessary to make a finding about whether Vilma and Orlando made a further loan of $60,000 to Ali in about April 2002, approximately six months after his purchase of the Bardwell Property. I decline to make the finding for which the defendants contend that Orlando made the mortgage repayments for the Bardwell Property during the period from about November 2001 while the property was registered in Ali's name. The evidence does not provide a sufficient basis for the Court to make any finding of fact in relation to that issue.
24. I find that Orlando's evidence about the alleged September 2001 agreement was a lie invented after Jeffrey's first affidavit was served in these proceedings to manufacture an explanation for the subsequent transfer of the Bardwell Property to Orlando in January 2003. Orlando's claim in his affidavit evidence to have contributed $110,000 (or $150,000) to the purchase of the Bardwell Property in September 2001 was a further lie, reverse engineered from the $50,000 mortgage document and the subsequent documents relating to the disputed $60,000 loan even though the earliest documents relating to the $60,000 loan post-date the purchase of the Bardwell Property by about six months.
25. That lie, and the resulting damage to Orlando's credibility, was entirely unnecessary because, for the reasons I that I will explain below, Ali has failed to prove that Orlando held the Bardwell Property on trust for him after the legal title was transferred to Orlando in January 2003.
26. For completeness, I note that the plaintiffs submitted that the recording of the meeting between Ali, Laura and Orlando on 18 March 2015 demonstrates that Orlando's claims regarding the 2001 purchase of the Bardwell Property are incorrect. In my opinion, the recording of that meeting casts no meaningful light on the 2001 purchase or the transfer of the property to Orlando in 2003. I will return to this issue below insofar as it relates to the 2003 transaction.
27. I refer to my summary of the evidence relevant to the transfer of the Bardwell Property to Orlando in January 2003 at [92]-[130] above. I also refer to my summary of the evidence concerning the meeting between Ali, Laura and Orlando on 18 March 2015 at [330]-[354] above.
28. It is plain from the documentary evidence there referred to that: 1. Ali and Orlando signed a contract on or about 11 December 2002 for the sale of the Bardwell Property to Orlando for the price of $808,000; 2. Hancock Alldis acted as the solicitors for both Ali and Orlando in relation to the contract and attended to settlement on 21 January 2003; 3. at the time of settlement, the amount owing under the mortgage that secured the loan taken out by Ali in September 2001 was approximately $464,310; and 4. the transfer of the Bardwell Property to Orlando was registered on 11 February 2003, together with a discharge of the 2001 mortgage and a new mortgage between Orlando (as mortgagor) and Perpetual Trustees (as mortgagee) securing a loan of $500,000.
29. I make findings to the effect set out immediately above. In doing so, I reject Ali's evidence denying that Hancock Alldis acted as his solicitors in relation to the 2003 transaction. [578] It is inherently unlikely that solicitors would have recorded on the contract for sale of land that they were acting for both vendor and purchaser if they were not satisfied that they had instructions to act for both parties to the transaction. The plaintiffs emphasise that Orlando paid Hancock Alldis' fees in relation to the 2003 transaction. It does not follow that they did not act for Ali, or that they did not adequately protect his interests. Orlando had also paid Hancock Alldis' fees for acting for both Ali (as purchaser) and Vilma (as mortgagee) in relation to the 2001 transaction. As I have mentioned above, Hancock Alldis' conduct in the context of that earlier transaction reveals the care taken to record and act on Ali's instructions. For the reasons addressed at [419]-[423] and [429]-[430] above, I do not accept Ali's denial that Hancock Alldis were his solicitors for the 2003 transaction. That denial is uncorroborated, inconsistent with contemporaneous documents and inherently improbable for the reasons I have just explained.
30. On the basis of the evidence of Ali and Orlando referred to at [110] above, about which there is no dispute, I find that the proceeds of the 2003 mortgage funded the discharge of the 2001 mortgage and that Orlando did not pay any additional money directly to Ali at the time of settlement.
31. However, on the basis of the 22 January 2003 letter and the statement of account referred to at [105]-[109] above, together with Ali's evidence that he received that statement of account at the time, [579] I find that Hancock Alldis (as the solicitors for both parties) calculated an amount of $528,354.26 as the "Balance of purchase monies" payable by Orlando to Ali on settlement of the contract for sale of the Bardwell Property on 21 January 2003 and attended to completion of the contract on that basis.
32. There is no evidence demonstrating how the "Balance of purchase monies" was calculated. That is because the settlement sheet referred to in Hancock Alldis' letter of 22 January 2003 is not in evidence. As senior counsel for the plaintiffs fairly accepted, the settlement sheet would disclose how the "Balance of purchase monies" was calculated to be $528,354.26 at the time of the transaction. [580] It is an amount greater than the amount owing under the 2001 mortgage at the time. There is no evidence that Ali or Orlando objected at the time of the settlement or at any time after they received the statement of account to the accuracy of the calculation or to the notion that monies were payable by Orlando to Ali on settlement in excess of the amount required to pay out the 2001 mortgage.
33. I further find that Hancock Alldis (as the solicitors for both parties) settled the contract for sale notwithstanding there was a shortfall of $58,078.51 between the funds required to be paid by Orlando to complete the transaction and the funds provided by Orlando (including the proceeds of the 2003 mortgage) at settlement. For the reasons explained at [109] above, I find that the whole of that shortfall was deducted from money that would otherwise have been payable by Orlando to Ali on settlement, and that Ali instructed Hancock Alldis that he and Orlando would deal with that shortfall of $58,078.51 between themselves. I note that the amount of the shortfall is very close to the difference between the "Balance of Purchase monies" of $528,354.26 and the amount of $464,310 owing under the 2001 mortgage as at 31 December 2002.
34. I find that Ali provided Hancock Alldis with the written instructions recorded in their statement of account that the shortfall would be dealt with between Ali and Orlando. It is inherently improbable that solicitors would have recorded written instructions that they did not receive. Moreover, as referred to at [119] above, Ali referred to the statement of account in some detail in his 9 May 2019 affidavit and made no objection to the accuracy of the statement concerning his written instructions. His denial that he gave those specific instructions emerged for the first time in cross-examination and was plainly consistent with what Ali perceived to be in his interests at that time. I reject the denial as inconsistent with the contemporaneous record created by the solicitors and for the reasons explained at [419]-[423] and [429]-[430] above. I also note that Ali claims to have pursued Orlando for payment of "the rest of the purchase price on my house" in the period after January 2003 until at least September 2009 [581] and those efforts are consistent with the existence of a shortfall at the time of settlement of the transaction in January 2003.
35. Contrary to the plaintiffs' submissions, the evidence does not support a finding on the balance of probabilities that the $808,000 price stated in the contract for sale of land signed by Ali and Orlando was merely a "notional value" or was "fictional". Whilst the evidence does not disclose how the "Balance of Purchase monies" was calculated, there is no basis for the Court to make the finding contended for by the plaintiffs that the contract price of $808,000 was not the starting point for the calculation undertaken by the solicitors acting for both parties. The plaintiffs' submissions in support of such a finding invited the Court to speculate, as senior counsel for the plaintiffs acknowledged at one point. [582]
36. In oral closing submissions in reply, senior counsel for the plaintiffs endeavoured to narrow the speculation to three possibilities and eliminate two of those possibilities, urging the Court to find the third possibility - namely, that the sale of the Bardwell Property to Orlando for $808,000 was a "sham" and that Hancock Alldis' calculation of the "Balance of purchase monies" payable by Orlando on settlement of the 2003 transaction was wrong because their clients had not told them the truth about that transaction. [583]
37. I reject those submissions for two reasons.
38. First, in endeavouring to eliminate one of these three possibilities, senior counsel for the plaintiffs submitted that the difference between the contract price of $808,000 and the amount of $528,354.26 payable by Orlando to Ali on settlement could not be attributable to an adjustment for loans that had been made to Ali prior to settlement because the evidence established that only $40,000 had been paid to Ali by the Fonseca family members and Fonseca businesses in the period prior to December 2002. That submission misstates the evidence. Deposit slips evidencing cash payments totalling approximately $40,000 into Ali's bank accounts were exhibited to Vilma's affidavit sworn on 1 September 2017. Vilma, who was responsible for making the cash payments, deposed that she did not believe that these were a complete record of all payments made to Ali during that period. Vilma was not challenged about this aspect of her evidence in cross-examination. [584] It is unsurprising that the defendants were unable to produce a complete record of payments made 13 years before these proceedings were commenced.
39. Second, the submission did not identify any rational reason why Orlando or Ali would not have told their solicitors "the truth" about the 2003 transaction. Nor did the submission identify any rational reason why Orlando or Ali would have given the solicitors instructions that involved a "Balance of purchase monies" of any amount being payable by Orlando on settlement in excess of the amount required to discharge the 2001 mortgage if either of their competing versions of the "the truth" advanced in these proceedings were to be believed.
40. In the course of attempting to identify a reason why Hancock Alldis may not have been told the truth by either of their clients (whilst maintaining that it was not necessary to consider the reason), senior counsel for the plaintiffs advanced a theory that if Orlando had set out to dupe Ali into transferring the Bardwell Property to him, then this would explain why he would not tell the solicitors the truth about the transaction. The evidence provides no support for that theory. The theory makes no sense it unless it is understood as conjuring a possibility that Orlando told both Ali and the solicitors that he would pay some money for the Bardwell Property in excess of the amount required to discharge the 2001 mortgage. This was not put to Orlando in cross-examination. Rather, it was put to Orlando that he had a conversation with Ali in the terms of the alleged November 2002 agreement, albeit that the discussion about a "shortfall" in Ali's version of the alleged November 2002 (which is inconvenient for the plaintiffs' case for the reasons discussed at [501]-[504] below) was omitted from the version put to Orlando in cross-examination. [585]
41. Having rejected the plaintiffs' submissions referred to at [479]-[483] above for the reasons there explained, I need not address the defendants' objection to the plaintiffs' failure to plead an allegation that Orlando had "duped" Ali and the plaintiffs' response to that objection. [586]
42. Contrary to the plaintiffs' submissions, Ali's burden of proving that the Bardwell Property was transferred to Orlando on the terms of the alleged November 2002 agreement or otherwise for no consideration for Ali's equity in the property is not discharged by pointing to Orlando's failure to adduce evidence of the settlement sheet prepared by Hancock Alldis. In circumstances where Hancock Alldis acted for both parties and Ali gave evidence that he received the statement of account at the time, there is no basis for inferring that Ali did not also receive the settlement sheet. The failure to adduce evidence of the settlement sheet is just as much a failure of Ali as it is a failure of Orlando. Orlando gave evidence that he had been unable to find the settlement sheet. That is a plausible explanation in relation to a transaction that occurred 12 years before the commencement of these proceedings and 17 years before the final hearing. Ali offered no explanation.
43. The only evidence relied on by the plaintiffs in support of the submission that the $808,000 price was "notional" or "fictional" was: 1. Ali's evidence in cross-examination that he and Orlando had "[n]ever agreed on any price on the house" [587] and that he had signed the contract for sale without reading it, without being aware of the $808,000 purchase price stated on the contract and without knowing the market value of the property as at December 2002; [588] 2. Orlando's evidence in cross-examination that he didn't pay Ali anything for the transfer of the Bardwell Property because the transfer was made in accordance with the alleged September 2001 agreement; [589] and 3. the plaintiffs' failure to produce any valuation in respect of the Bardwell Property prior to the 2001 and 2003 transactions in response to a call made by the defendants during the hearing. [590]
44. As I have already identified at [119] above, Ali's evidence on which the plaintiffs rely is inconsistent with the signed contract and with his affidavit affirmed on 9 May 2019. In that affidavit, Ali deposed to having a positive recollection that the purchase price of $808,000 was based on a market valuation. [591] Ali also responded specifically to Orlando's evidence concerning the settlement of the contract for sale in January 2003 and the statement of account issued by Hancock Alldis. Ali referred to the substance of the statement of account and did not dispute the accuracy of the reference to a balance of purchase monies being payable on settlement. Ali acknowledged that the balance stated exceeded the amount then owing under the 2001 mortgage that was required to be discharged on settlement. Ali did not dispute the statement clearly recorded in the statement of account that: "As per Mr Itawi's written instructions we note that you will and Mr Itawi will deal with the shortfall of $58,078.51 between yourselves." I do not accept Ali's evidence on which the plaintiffs rely for those reasons and the additional reasons explained at [419]-[423] and [429]-[430] above.
45. Orlando's evidence does not assist the plaintiffs because I have found it to be untrue. The parties did not enter into the alleged September 2001 agreement.
46. I do not consider that any meaningful inference can be drawn from the plaintiffs' failure to produce during the trial, without prior notice, documents that (if they existed) would have been created between 17 and 19 years before the trial. It is odd that the Court is asked on behalf of the plaintiffs to draw an inference that no valuation was obtained prior to the 2003 transaction, when that inference would be contrary to Ali's evidence in his 9 May 2019 affidavit referred to above.
47. Contrary to the plaintiffs' submissions, the evidence does not support a finding that Orlando "paid nothing for Ali's equity" in the Bardwell Property. The "Balance of purchase monies" in the amount of $528,354.26 was clearly recorded on the statement of account received by both Orlando and Ali. There is no evidence that either of them disputed the accuracy of that amount at the time of the settlement or, indeed, at any time thereafter prior to the final hearing of these proceedings. Ali raised no issue about the accuracy of the $528,354.26 amount when addressing the figures in the statement of account in his affidavit affirmed on 9 May 2019. [592] The statement of account records that Orlando was obliged to pay the "shortfall" of $58,078.51 at a time and in a manner to be agreed between Ali and Orlando without the involvement of their solicitors. The calculation of the shortfall amount was derived from the balance of purchase monies of $528,354.26. The fact that Orlando subsequently failed to pay the shortfall to Ali in accordance with the contract for sale and the solicitors' calculation of the amount payable to Ali on settlement does not establish that the Bardwell Property was transferred to him for no consideration other than the amount required to discharge the 2001 mortgage. The contractual obligation to pay the purchase price stipulated in the contract, including the shortfall amount calculated by the parties' solicitors, stands as consideration: Radoman Pty Ltd v Vexapu Pty Ltd [2008] NSWSC 8 at [40]-[43]. Although Ali did not take legal action to enforce Orlando's obligation to pay the shortfall, he did make demands after settlement for Orlando to pay to him "the rest of the purchase price on my house". [593] Those demands are entirely inconsistent with Ali's contentions about the 2003 transaction in these proceedings. In closing submissions, senior counsel for the plaintiffs was unable to explain Ali's evidence about these demands other than by construing them in a manner that is entirely inconsistent with the plain language used in Ali's evidence, or by submitting that the Court should treat Ali's evidence about the demands (one of the few matters about which he gave consistent evidence) as unreliable. [594] I reject the plaintiffs' submission that the shortfall (which they deny existed) was "never paid (or asked for)".
48. In support of their submission referred to at [439] above that either Ali's version or Orlando's version of the Bardwell Property transactions must be accepted because "there is no other rational explanation for the unclaimed shortfall in the purchase price of the Bardwell Property by Orlando", the plaintiffs submitted that: [595] "Firstly and most importantly, Ali does not claim that there was an actual 'shortfall'. What he claims is that if the January 2003 transfer was a legitimate transfer for $808,000 then there would be an apparent unexplained shortfall of either $233,000 or $293,000. The fact that this apparent shortfall was never paid and the admissions Orlando made about this apparent shortfall demonstrates that the purported transfer in January 2003 for $808,000 was not a bona fide transaction. The second point is the admission that Orlando made was that there was no apparent shortfall or debt because the January 2003 transaction was not a legitimate transfer for $808,000. … …Orlando was admitting that he never paid Ali the apparent shortfall on the stated contract price not because there was some prior setoff or adjustment (as the Defendants are now submitting) but because the property was at all times (so Orlando claims) beneficially the property of Orlando and the January 2003 transfer price was therefore a sham to give effect to this earlier arrangement."
49. With respect, this submission is misconceived for three reasons.
50. First, the submission is premised on the existence of an "apparent unexplained shortfall of either $233,000 or $293,000" [596] if the transaction was in truth a sale of the Bardwell Property for $808,000. In oral closing submissions, senior counsel for the plaintiffs referred to the notion that there was a "missing" $293,000 or $233,000 as an "objective fact". [597] For the reasons explained at [473]-[490] above, the evidence does not establish that premise as an "objective fact".
51. Second, for the reasons explained at [490] above, the evidence does not support the characterisation of the shortfall (whether in the amount referred to in Hancock Alldis' statement of account or in the amount referred to in the plaintiffs' submissions) as "unclaimed". The plaintiffs ignore Ali's own evidence that he demanded that Orlando pay him "the rest of the purchase price on my house" at various times after January 2003.
52. Third, Orlando's "admission" on which the plaintiffs rely is his evidence that he did not pay Ali anything for the transfer of the Bardwell Property in January 2003 because the transfer was made in accordance with the September 2001 agreement. [598] The plaintiffs dispute the alleged September 2001 agreement and I have found that Orlando's evidence about it was a lie for the reasons explained above. It is not open to the plaintiffs to decouple the first part of Orlando's evidence from the lie to which it was attached and then to re-cast the first part of that evidence as an admission that assists the plaintiffs.
53. For those reasons, the evidence does not support a finding that the contract for sale of land dated 11 December 2002 for a purchase price of $808,000 and the subsequent transfer of the Bardwell Property to Orlando was a "sham". Contrary to the plaintiffs' submissions, declining to make such a finding does not involve drawing any inference in favour of the defendants. Rather, it involves: 1. declining to draw any inference about the starting point for Hancock Alldis' calculation of the "Balance of purchase monies" payable by Orlando to Ali on settlement of $528,354.26, including the inference for which the plaintiffs contend that the calculation had some starting point other than the $808,000 price stated on the contract for sale of land and transfer. Any inference would be speculation; 2. declining to find that, contrary to the solicitors' note of Ali's instructions recorded in the statement of account (and not disputed until Ali's cross-examination), there was in fact no shortfall on settlement because it was never intended by the parties that Orlando would pay any amount to Ali for the transfer of the Bardwell Property in excess of the amount required to discharge the 2001 mortgage; 3. declining to ignore, or to adopt a fanciful interpretation of, Ali's repeated demands after January 2003 for Orlando to pay him "the rest of the purchase price on my house"; and 4. declining to accept the uncorroborated evidence of either Ali or Orlando about the 2003 transaction.
54. For completeness, I reject the defendants' submission that, following Ali's execution of the transfer containing an acknowledgement of receipt of the purchase price of $808,000, there was no shortfall owing. The submission, which was not developed, appears to be based on conventional estoppel. However, a clause acknowledging receipt of money does not found an estoppel that precludes a party from adducing evidence that the money was not in fact received:: Greer v Kettle [1938] AC 156 at 170-172; Peterson v Moloney (1951) 84 CLR 91 at 100; Gas & Fuel Corporation of Victoria v Barba [1976] VR 755 at 763; Cousens v Grayridge Pty Ltd [2000] VSCA 96 at [57]-[58] (Batt JA, Charles and Chernov JJA agreeing);; Radoman Pty Ltd Vexapu Pty Ltd [2008] NSWSC 8 at [40]-[45] (Barrett J, as his Honour then was).. In the present case, the evidence of the acknowledgement is contradicted by the evidence of the statement of account recording the shortfall and Ali's written instructions in relation to the shortfall, Orlando's evidence that the shortfall was "an amount that I was supposed to owe Ali at settlement", [599] and the evidence of both Ali and Orlando that the shortfall amount was not paid to Ali at the time of settlement. [600]
55. Having declined to find that the contract for sale of land was a "sham" and having rejected the plaintiffs' submission that I must accept either Ali's version or Orlando's version of the 2003 transaction, I now turn to their conflicting evidence about that transaction.
56. It follows from my rejection of the alleged September 2001 agreement as a lie that I also reject Orlando's evidence that the Bardwell Property was transferred back to him in January 2003 in accordance with that alleged agreement. As referred to at [443] above, the defendants submitted that the alleged September 2001 agreement was a potential explanation for Hancock Alldis' calculation of the "Balance of purchase monies" payable by Orlando on settlement as $528,354.26. That submission did not identify how that calculation was rationally consistent with or explicable by reference to the alleged September 2001 agreement. To the extent that an explanation was attempted, it did not rise above the level of speculation. [601] The fact that there was any money or any "Balance of purchase monies" payable by Orlando on settlement over and above the amount of approximately $464,310 required to discharge the 2001 mortgage is fundamentally inconsistent with the alleged September 2001 agreement.
57. As referred to at [360]-[370] and [374] above, Ali relies on the alleged November 2002 agreement in support of his claims that Orlando held the Bardwell Property on trust for him and owed fiduciary duties to him in relation to the Bardwell Property.
58. The only evidence of the alleged November 2002 agreement is the evidence given by Ali. [602]
59. According to Ali, the agreement required Orlando to pay to Ali "the shortfall on the transfer of the property" and also to transfer the Bardwell Property back to Ali in five years' time with the mortgage repaid. It is inherently unlikely that Orlando agreed to do both of those things. That is because "the shortfall on the transfer of the property" plainly refers to an amount payable by Orlando to Ali in consideration for the transfer of the Bardwell Property that would be deferred rather than paid at settlement.
60. In cross-examination Ali offered two inconsistent alternative explanations for his reference to the deferred payment of "the shortfall" in his account of the alleged November 2002 conversation. [603] I reject both inconsistent explanations. The first - that it was up to Orlando to choose whether he wanted to pay anything and how much he would pay - is so implausible as to be fanciful. It is also inconsistent with Ali's claims to have subsequently pursued Orlando for the shortfall. [604] The second - that the shortfall referred to the difference between the repayments under the 2001 mortgage and the repayments under Orlando's proposed mortgage for a larger loan - is inconsistent with the words that Ali attributed to Orlando ("the shortfall on the transfer of the property") As I explained earlier in these reasons, [605] the second explanation is also inconsistent with other aspects of Ali's evidence and with the objective evidence about the amount of the loans that were secured by mortgage against the Bardwell Property after January 2003. The stark inconsistency between the two alternative explanations advanced by Ali in this part of his cross-examination revealed a willingness to make things up as his evidence unfolded in the witness box if he thought it would assist his case.
61. For those reasons, and the reasons explained at [419]-[423] and [429]-[430] above, I do not accept Ali's evidence concerning the alleged November 2002 agreement. I am therefore not satisfied, on the balance of probabilities, that Ali and Orlando entered into the alleged November 2002 agreement.
62. The fact that there was a "Balance of purchase monies" payable by Orlando to Ali on settlement of the contract for sale of the Bardwell Property in January 2003 in excess of the amount required to discharge the 2001 mortgage, and that there was any "shortfall" on settlement that Ali and Orlando agreed to defer and that Ali says he periodically chased Orlando to pay in the years following settlement, is fundamentally inconsistent with all bases of Ali's claim in these proceedings that Orlando held the Bardwell Property on trust for him.
63. The plaintiffs' submissions rely on highly selective extracts from the recording of the 18 March 2015 meeting between Ali, Laura and Orlando as supporting Ali's contention that Orlando held the Bardwell Property on trust for him at all times after January 2003. [606] I have set out a much fuller account of the evidence of the meeting at [334]-[345] above. Read as a whole, the evidence of the meeting does not support Ali's contention and the statements relied on by the plaintiffs are ambiguous when considered in context. For example, Orlando described his payment of the Bardwell Property mortgage out of Ali's remuneration package of $15,000 per month as honouring "what I promised. You work with us, we're going to help you with the house." Ali agreed that this is what Orlando had told him. Ali also agreed that, with Orlando's statement that "When I promise something to you, always I did, always I did it." [607] Laura asked a question about "the money that Ali has been paying the mortgage". Orlando responded "What mortgage? You understand? Is interest what you've been paying all these years", but then immediately said that he would ask the bank for "the statement from the day we bought the house until now, how much money I've paid and it's all in interest". In response to this second statement by Orlando, Ali said: "But you lost all that, you say". Orlando replied: "Yeah! I lost everything." [608] Later in the discussion, Orlando told Ali that he would "increase your wages, because I don't pay the house anymore" and Ali agreed. [609] Towards the end of the conversation, Orlando said to Laura in Spanish: "I know that, let's say, you say 'uff, but Ali was working and made the house repayments.' I made them, Laura. The house repayment. But that was all interest, Laura." [610]
64. Orlando said during the meeting that he would help Ali and Laura by depositing money that he and Ali were going to make from "the big jobs… from the business" into an account in Laura's name so that she could save a deposit and buy another house in her name. He was very specific that the money would be paid into an account in Laura's name. When Laura asked why it would not be paid into Ali's account, Orlando replied: "No. No, no. No. What I want is for you to have the savings. … If you like, I deposit it to his account. We as men, I see it this way, we spend more". [611] The plaintiffs relied on this as a "non-critical" fact supporting Ali's contentions that Orlando held the Bardwell Property on trust for him at all times from January 2003. The plaintiffs' submission did not articulate why this was so. I do not consider that the assistance that Orlando offered in the meeting supports Ali's contentions.
65. Ali did not put it to Orlando during the 18 March 2015 meeting that Ali owned the Bardwell Property or that Orlando had been obliged to transfer the property back to Ali. As the defendants submitted, this would have been the most natural thing for Ali to say to Orlando if Ali truly believed that he was the beneficial owner or "true owner" (to use Ali's own words) [612] of the Bardwell Property. The ambiguous, rambling discussion at the meeting does not assist Ali's claims in relation to the Bardwell Property despite his boast in cross-examination that "I know how to talk to Orlando to get him to say what I want him to say". [613] On balance, the transcript of the recording is more consistent with Orlando's evidence that he told Ali in the period after 2003: "You are living in the house rent-free. That's what I promised you. I am paying the mortgage every month instead of paying you extra money. Before I die I will arrange everything so that, if you keep working for the business, you will always have a roof over your head." [614]
66. The plaintiffs' submissions also rely on Ali's renovations to the Bardwell Property as a "non-critical fact" supporting his contention that Orlando held the property on trust for him. The plaintiffs submitted that the renovations cost $76,000 and that "[a] person who does not own a house would not do so much capital work on it" (my emphasis). However, whilst Ali's contention as to the cost of the work was before the Court, there was no evidence of the cost, as noted at [130] above. Accordingly, the evidence does not support the plaintiffs' submission, even if Ali's evidence that he carried out the renovations were to be accepted. However, his evidence is uncorroborated and, as the defendants submitted, [615] Ali offered no plausible explanation in cross-examination for allegedly carrying out the capital work on the house despite the threats that he claims were made by Orlando over the same period of time to evict him from the Bardwell Property and change the locks. [616] For those reasons and the reasons at [419]-[423] and [429]-[430] above, I am not satisfied on the balance of probabilities that the alleged improvements were made by Ali.
67. Another "non-critical fact" relied on by the plaintiffs as supporting Ali's contentions in relation to the 2003 transaction is that Orlando did obtain loans secured against the Bardwell Property. The plaintiffs submitted that those loans were "in line with" the alleged November 2002 agreement. I reject that submission. The loans referred to by the plaintiffs were taken out in August 2004 [617] and July 2010. [618] The timing of those loans - almost two years and eight years respectively after the alleged November 2002 agreement - points overwhelmingly to the conclusion that they had nothing to do with any plan by Orlando in November 2002 to borrow money to hire more cleaning workers for the Fonseca businesses. Indeed, the documents recording the July 2010 loan establish that it related to moneys owed by the Fonseca family members and Fonseca businesses to their accountants.
68. As referred to at [440] above, the plaintiffs also submitted that the Court should find that Jeffrey and Joselyn knew that the Bardwell Property was "Ali's house". I reject that submission. The only evidence identified by the plaintiffs in support of the submission is uncorroborated evidence of Ali. I do not accept that evidence for the reasons explained at [419]-[423] and [429]-[430] above.
69. The September 2009 document does not assist the plaintiffs. Ali has told a series of lies about this document. He initially gave clear evidence that he had seen Jeffrey sign the document on the occasion that Ali gave it to Orlando in September 2009. After the defendants served the report of Ms Holt, which establishes that Jeffrey's signature (and the signatures of Vilma and Joselyn) were cut and paste manipulations using genuine signatures from other documents, Ali changed his evidence to say that Jeffrey had given him the document in late 2014 bearing the signatures of the Fonseca family members. I reject Ali's changed evidence for the following reasons. First, the notion that Jeffrey cut and paste his own signature, and the signatures of his mother and sister, on a document that contains statements that are vehemently disputed by the Fonseca family members is inherently implausible. Second, If Jeffrey had in fact handed the signed document to Ali in late 2014, that is a matter that would have been highly relevant (and helpful to the plaintiffs' case) for Ali to mention when he referred to the document in his 27 May 2015 affidavit and in his 1 June 2015 affidavit and again in his 9 May 2019 affidavit. It was not mentioned, and Ali was unable to offer any meaningful explanation for this in cross-examination. [619] Third, Ali gave evidence in his 1 June 2015 affidavit that he had seen Jeffrey sign the document. In endeavouring to explain away the inconsistency between that evidence and his later evidence that Jeffrey had handed him the document in late 2014 bearing the cut and paste signatures, Ali lied about the substance of his earlier evidence. [620] I find that Ali lied when he claimed to have seen Jeffrey sign the document in September 2009, he lied again when he claimed that the document had been given to him by Jeffrey in late 2014 bearing the signatures of Jeffrey and the other Fonseca family members (which Ali now accepts were cut and paste manipulations) and that he lied yet again in cross-examination when seeking to re-cast the substance of the first version of his evidence on this subject in a way that he perceived suited his purposes during the cross-examination.
70. For all of the reasons explained above, Ali has failed to establish on the balance of probabilities that the Bardwell Property was transferred to Orlando in January 2003 on terms that it was to be held on trust for Ali, or that it was transferred to Orlando for no consideration for "Ali's equity" or for "false consideration", or that it was transferred to Orlando for the limited purpose of being used as security for business loans and on the basis that it would be transferred back to Ali at a later time for no consideration.
71. As referred to at [440] above, the plaintiffs submitted that the Court should find (as a "non-critical fact") that Ali and Orlando had a close personal relationship. The plaintiffs' submissions did not articulate the relevance of any such relationship to the 2003 transaction. A close personal relationship between the two men (assuming that it existed) would not alter my conclusion that Ali has failed to discharge his onus of proof in relation to the 2003 Bardwell Property transaction for all of the reasons explained above.
72. As referred to at [313]-[325] above, Orlando and other members of the Fonseca family entered into a Deed of Release on 16 June 2014 pursuant to which Orlando agreed to transfer the Bardwell Property to Reliance in consideration for members of the Fonseca family and their associated entities being released from certain obligations. Goodman Court Pty Ltd, an entity associated with Mr Sam Cassaniti's family, became the registered proprietor of the Bardwell Property in about January or February 2015. Having regard to the findings that I have made above, I do not consider that it is necessary to address the defendants' submissions concerning the application of s 304 of the Duties Act 1997 (NSW) to the Deed of Release or to make findings about whether the registration of Goodman Court Pty Ltd as the proprietor resulted from a transfer from Orlando in exchange for releases of mortgages against properties owned by Fonseca family members under the Deed of Release dated 16 June 2014. As I have noted earlier in these reasons, the defendants submit that the releases were conditional and that the conditions were not satisfied and that there is no evidence linking the transfer to Goodman Court Pty Limited to the provisions of the Deed of Release. [621]

Ali's claims in relation to the Bardwell Property

1. Ali's oral express trust claim referred to at [360] fails because he has failed to prove the alleged November 2002 agreement on the balance of probabilities.
2. For the same reason, Ali cannot succeed on his alternative claims referred to at [362] above that Orlando held the Bardwell Property on trust for him pursuant to an implied or resulting trust that arose on the failure of the alleged express trust or pursuant to a Quistclose trust. The alleged November 2002 agreement, which the plaintiffs failed to prove, was the principal evidence relied on by the plaintiffs to establish the purpose for which they contended the Bardwell Property was transferred to Orlando in January 2003. The objective evidence of the loans subsequently taken out by Orlando and secured against the Bardwell Property do not support Ali's contention about the purpose of the transfer for the reasons explained at [510] above.
3. Ali's proprietary estoppel claim referred to at [376] above also depended on the alleged November 2002 agreement. That claim also fails because that alleged agreement has not been proved.
4. I now turn to Ali's contentions referred to at [365]-[367] above that a resulting trust arose because Orlando provided no consideration for Ali's "equity" in the Bardwell Property or because the consideration was "false consideration".
5. I reject the defendants' submission that the plaintiffs should not be permitted to advance these unpleaded contentions. Although I respectfully consider that both contentions are misconceived for the reasons explained immediately below, they emerged from the evidence served prior to trial and adduced at trial that the Orlando discharged the 2001 mortgage on settlement of the 2003 transaction. In making the pleading objection, the defendants identified no prejudice that they would suffer if the plaintiffs were permitted to advance the contentions. In the circumstances of this particular case, to uphold the defendants' pleading objection would be unjust and would erroneously elevate the pleadings to "an end in themselves" rather than "a means to the ultimate attainment of justice between the parties to litigation": see Re BBY Limited (Receivers and Managers Appointed) (in liq) and BBY Holdings Pty Ltd (Receivers and Managers Appointed) (in liq) (No 2) [2022] NSWSC 30 at [22]-[27] (Gleeson J) and the authorities there referred to.
6. I also reject the plaintiffs' submission that the defendants should not be permitted to rely on s 44 of the Conveyancing Act 1919 (NSW) in response to the "no consideration for Ali's equity" and/or "false consideration" resulting trust claim. In my opinion, it would be unjust to permit the plaintiffs to advance these iterations of the resulting trust claim, yet deny the defendants the opportunity to rely on a statutory provision that they contend negates any presumption of resulting trust that may arise if the plaintiffs succeed in establishing that a presumption otherwise arises. The plaintiffs' submissions did not identify any prejudice that they would suffer if the defendant were permitted to rely on s 44, save that they would wish to make some additional submissions about the construction and operation of s 44. As will become apparent below, s 44 is not determinative of the plaintiffs' claims and I therefore did not consider it necessary for call for such additional submissions from the plaintiffs.
7. I now turn to the substance of the "no consideration for Ali's equity" or "false consideration" resulting trust claim.
8. The "no consideration for Ali's equity" resulting trust claim fails because consideration was provided for the transfer of the Bardwell Property in that (at least) Orlando paid out the 2001 mortgage. "Ali's equity" is not something that was transferred, and in respect of which consideration was required, separately from the title to the Bardwell Property. In any event, for the reasons explained at [471]-[496] above, Ali has not established that no consideration was provided for his equity because he has not established that the discharge of the 2001 mortgage was the only consideration moving from Orlando for the transfer of the Bardwell Property.
9. The "false consideration" resulting trust claim relied on the judgment of Dixon CJ in Wirth v Wirth (1956) 98 CLR 228. The parties in that case were former husband and wife. They had purchased a property in Queensland as joint tenants and, prior to their marriage, the husband had transferred his undivided interest as joint tenant to his future wife for a consideration that was expressed in the transfer as £100. However, his future wife had not paid him that monetary sum. Chief Justice Dixon held that there was no presumption of resulting trust because the transfer was made in contemplation of marriage and a presumption of advancement arose. In the course of his reasons for judgment, the Chief Justice referred to differing opinions about whether the expression of a substantial consideration precludes a resulting trust, and said (at 236-237, my emphasis): "But it must be remembered that if the consideration expressed was one agreed upon though it was in fact unpaid or unsatisfied, the consequence is not a resulting trust but a lien in favour of the grantor. If on the other hand it is a false consideration, the reason for inserting it will bear directly upon the true character of the transaction and from that it will appear whether or not it was intended to transfer the beneficial interest as well as the legal estate. The present is not a case in which one can be sure that the consideration expressed was a mere sham. It is at least clear that before a presumption of resulting trust can arise upon a transfer expressing a consideration, it must be shown that the expression of the consideration was false and the transfer was intended as a voluntary assurance. I am not prepared to say that the meagre evidence on the subject satisfactorily establishes so much."
10. As is clear from that passage, and from subsequent cases in which the courts have considered whether a presumed resulting trust arises from a transfer of property for "false consideration", the reference to false consideration is a reference to a consideration that is expressed in a contract or transfer notwithstanding that the parties intend that no consideration will move from the transferee and that the transferee will receive the property as a volunteer. When referring to Wirth v Wirth in Calverley v Green (1984) 155 CLR 242, Gibbs CJ described it as a case of a voluntary transfer (at 249). The plaintiffs submissions referred to Re Association for Visual Impairment The Homeless and The Destitute Inc [2014] VSC 183 and Donaghue v Donaghue [2015] QSC 54 as cases in which the "false consideration principle has been applied". [622] In the first case, the transfer stated a substantial consideration but there was no intention that any consideration would be paid (and no consideration was in fact paid). In the second case, the Court rejected a "false consideration" resulting trust claim because, although the consideration was falsely stated, there was consideration in the form of the transferees paying out the transferor's existing mortgage.
11. In the present case, the consideration of $808,000 was not "false consideration" in the sense referred to by Dixon CJ in Wirth v Wirth. Even assuming in the plaintiffs' favour that no consideration moved from Orlando other than the payment of the amount owing under the 2001 mortgage, no presumed resulting trust arises.
12. The conclusion renders it unnecessary to determine whether s 44 of the Conveyancing Act precludes a presumption of resulting trust arising from a voluntary transfer of Torrens title land in New South Wales, as the defendants submitted. Section 44 applies where there is an absence of consideration. There is no absence of consideration in this case. If there had been an absence of consideration, I would have held that no resulting trust was implied from the transfer without consideration by reason of s 44, respectfully adopting the reasons of Hamilton J in Bhana v Bhana [2002] NSWSC 117 and the observations of Barrett J (as his Honour then was) in Singh v Singh [2004] NSWSC 109 at [33]-[36] and Ward J (as her Honour then was) in Drayson v Drayson [2011] NSWSC 965 at [57]-[60], with which I agree.
13. The fiduciary claim referred to at [374] above fails for the same reasons as the claims referred to at [516]-[518] above have failed.
14. It follows from the failure of all of these claims that Ali has also failed prove that members of the Fonseca family are liable to him as volunteers on the basis that they benefitted from Orlando's transfer of the Bardwell Property to Goodman Court Pty Limited: see [375] above. That conclusion does not depend on the merits of the parties' respective submissions about the terms and effect of the Deed of Release dated 16 June 2014.
15. In light of those conclusions, I need not address the plaintiffs' submissions concerning constructive trusts and tracing remedies.

Cleaning Doctor's claims in relation to the allegedly stolen money

1. I have considered all of the parties' extensive written and oral submissions. [623]
2. Cleaning Doctor's contention that it was the legal and beneficial owner of the money in the CD Account is wrong as a matter of law. Money deposited in the CD Account became the property of the bank, which was under an obligation to pay an equivalent sum to Cleaning Doctor on demand and to pay any amount due by the bank to Cleaning Doctor as its customer against the written order of the customer addressed to the bank. Cleaning Doctor's only property in respect of the CD Account was a chose in action, being the right to recover from the bank on demand a sum equivalent to the amount standing to the credit of the account at any given time. Cleaning Doctor was neither the legal owner nor the beneficial owner of "the money" in the CD Account: Foley v Hill (1848) 2 HL Cas 28 at 36; 9 ER 1002 at 1005; Joachimson v Swiss Bank Corp [1921] 3 KB 110 at 127; Croton v R [1967] HCA 48; (1967) 117 CLR 326 (Croton) at 330-331; R v Parsons [1999] HCA 1; (1999) 195 CLR 619 (Parsons) at [17]; Citigroup Pty Ltd v National Australia Bank Ltd (2012) 82 NSWLR 391; [2012] NSWCA 381 at [41].
3. Contrary to the plaintiffs' submissions, the defendants' pleaded non-admission of Cleaning Doctor's allegation that it was the legal and beneficial owner of the money in the CD Account does not constitute an admission that Cleaning Doctor was the owner of that money or an admission that the defendants were not the owner of that money. It is simply a non-admission of a proposition that is incorrect as a matter of law. The bank was the owner of the money.
4. As I have referred to above, the bank's obligations in respect of the CD Account included an obligation to pay any part of the sum standing to the credit of the account against the written order of Cleaning Doctor addressed to the bank.
5. A cheque, as defined in s 10 of the Cheques Act, is an unconditional order addressed to a bank by its customer (the drawer of the cheque) requiring the bank to pay the amount specified in the cheque on demand. In order to be an unconditional order, a cheque must indicate a sum certain to be paid. That sum is payable either to the person specified in the cheque as the payee or indorsee or to the bearer of the cheque: Cheques Act, ss 10-24. A cheque does not assign to the holder or bearer any funds that are available in the hands of the bank to honour the cheque: Cheques Act, s 88. Nor does a cheque operate as an assignment to the holder or bearer of the drawer's chose in action against their bank or any part thereof. Rather, a cheque is a mandate addressed by the drawer to their bank "to effect a pro tanto satisfaction of the indebtedness of the banker to the drawer by honouring the cheque drawn on the banker": Parsons at [27].
6. In the present case, there is no dispute that Ali, the sole director of Cleaning Doctor, signed an entire cheque book of blank cheques within one week of the CD Account being opened, a second book in about December 2011 and a third book in about October 2012. According to Westpac records, one cheque book contained 50 cheques. Ali also signed the debit card for the CD Account and left it with Orlando. [624]
7. The documents in each cheque book, although signed by Ali as Cleaning Doctor's sole director, [625] were not unconditional orders to pay unless and until the sum certain to be paid was completed. By delivering the signed blank documents to Orlando, Ali plainly authorised Orlando to complete the documents so as to create "cheques" within the meaning of the Cheques Act that would operate as an order to pay when presented to the bank. That is the only available inference and Cleaning Doctor did not submit to the contrary. It is the scope of the authority that is in dispute.
8. In those circumstances, each of Cleaning Doctor's causes of action referred to at [392]-[399] above requires Cleaning Doctor to establish on the balance of probabilities that the scope of that authority did not extend to the completion of each cheque with the amount specified on the cheque made payable to cash, and the withdrawal of those amounts by presentation of the completed cheques. Paragraphs 20 to 22 of the plaintiffs' pleading correctly reflect that the alleged lack of authority is an element of Cleaning Doctor's claims.
9. Whether the completion and presentation of the cheques amounted to "theft" of "the money" in the CD Account turns on whether the defendants acted outside the scope of their authority. The allegation that the money obtained by completing and presenting the cheques was "stolen" is the foundation of Cleaning Doctor's Black v S Freedman & Co trust claim and its claim for moneys had and received. [626]
10. Cleaning Doctor's claim in conversion in respect of the cheques requires it to establish that it had an immediate right to possession of the cheques and that Orlando and/or Jeffrey acted in a manner repugnant to that right by presenting each completed cheque to the bank: Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420; [2011] NSWCA 342 at [124] (Allsop P, Giles and Macfarlan JJA agreeing); and see Parsons at [32]-[33] in relation to the availability of a claim in conversion in respect of negotiable instruments such as cheques. Here, the blank instruments signed by Ali as sole director of Cleaning Doctor and delivered to Orlando were not cheques until they were completed and became unconditional orders to pay. In my opinion, whether Cleaning Doctor had an immediate right to possession of each cheque at the time it came into existence turns on the scope of the defendants' authority to complete the cheques (and present them to the bank) and whether they acted outside that authority in completing each cheque, thereby conferring on Cleaning Doctor a right to possession of the completed cheque. [627]
11. To the extent that Cleaning Doctor's claim in conversion relates to "notes or coins withdrawn from its bank account", the claim is misconceived. [628] As I have already explained, "the money" in the CD Account was not a chattel to which Cleaning Doctor had any right of possession. The credit balance of the account represented a chose in action of Cleaning Doctor against the bank. Nor did Cleaning Doctor have possession, or a right to possession, or any notes or coins that the bank paid to any person presenting a cheque drawn on the CD Account to the bank for payment: Croton at 330-331.
12. Cleaning Doctor's claims for alleged fraud, deceit and misleading or deceptive conduct turn on the proposition that Orlando and Jeffrey knew that they were not authorised to make the withdrawals made by presenting the completed cheques, and that they committed a fraud on the bank or misled the bank as to their authority to make the withdrawals, thereby causing loss to Cleaning Doctor. [629] Again, the scope of authority conferred on Orlando (and his agents, including Jeffrey) by the delivery of the signed blank cheques (and the signed debit card) is central to the determination of these claims.
13. I reject Cleaning Doctor's submission that its claims must succeed if the defendants fail to establish on the balance of probabilities that they were entitled to withdraw from the CD Account for the purpose of paying workers' wages, and that the withdrawals were in fact made and the money withdrawn was in fact used for that purpose. [630] That submission is based on the contention that the defendants' defence was one of authority to make withdrawals for that purpose only. As I have already explained at [403]-[405] above, that misstates the scope of the pleaded defence and the defendants' evidence. The evidence of Jeffrey and Orlando concerning the payment of workers' wages occupied much time in cross-examination during the hearing. However, it is clear from the pleadings and the affidavit and oral evidence as a whole that the contentions that they were authorised to and did withdraw money from the CD Account to pay workers' wages did not constitute the whole of their defence to Cleaning Doctor's claims. On the contrary, the defendants contend that, by signing and delivering blank cheques for the CD Account together with the signed debit card, Ali was conferred general authority on Orlando and Jeffrey (or on Orlando who, in turn, authorised Jeffrey) to withdraw funds from the CD Account.
14. Cleaning Doctor contends that Orlando and Jeffrey had authority to make withdrawals from the CD Account only for the purpose of making repayments under the Bardwell Property mortgage. For the following reasons, Cleaning Doctor has failed to establish on the balance of probabilities that the authority conferred on Jeffrey and Orlando by the delivery of the signed blank cheques and the signed debit card was so limited.
15. First, the only evidence that the payments made by the Fonseca businesses into the CD Account represented Cleaning Doctor's share of profits from a partnership is the uncorroborated evidence of Ali. [631] No accounts or tax returns were prepared for either Cleaning Doctor or the alleged partnership. I do not accept Ali's uncorroborated evidence for the reasons explained at [419]-[423] and [429]-[430] above.
16. Contrary to the plaintiffs' submissions, the evidence of Mr Cong Hoang and Mr Raphael Grossman does not establish or support the proposition that the CD Account was the repository for Cleaning Doctor's share of profits from the alleged partnership. It was submitted on behalf of Cleaning Doctor that this proposition was supported by the evidence of Ali, who estimated that the amount deposited into the CD Account represented approximately 50 per cent of profits of the alleged partnership between Cleaning Doctor and the Fonseca businesses. I reject those submissions. Ali gave evidence of the workbooks in which he recorded the amounts of invoices issued by the Fonseca businesses to Spotless for work at UNSW during the period of the alleged partnership with Cleaning Doctor. However, Ali's evidence as to the percentage of those invoiced amounts that represented profit for the alleged partnership, and his estimate of the 50 per cent share of profits that he claims Cleaning Doctor was entitled to, did not rise above the level of bare assertion and was admitted into evidence subject to a limiting order under s 136 of the Evidence Act 1995 (NSW). [632] Mr Hoang is an accountant who performed a calculation of profits based on the invoice amounts in Ali's workbooks for the period from 2010 to 2015 and assuming a profit margin of 65 per cent. As the defendants submitted, Mr Hoang's evidence does not assist Cleaning Doctor because his calculation relates to a five year period that extends beyond the three year period in which deposits were made to the CD Account. In addition, as the defendants submitted, Mr Hoang's calculation assumes a profit margin that the plaintiffs have failed to prove. [633]
17. Second, it is inherently improbable that Ali would have signed blank cheques for the CD Account in order to facilitate cash withdrawals from that account by Orlando in order to pay the Bardwell Property mortgage. The signing of blank cheques and handing over of a signed debit card required a high degree of trust in Orlando if he was permitted to withdraw from the CD Account for a limited purpose, as Ali acknowledged in his evidence. Yet Ali's own evidence is that he did not trust Orlando in September 2009 when he signed the first book full of 50 cheques and handed over the signed debit card for the CD Account without asking any questions about why Orlando required this. It is inherently probable that, if Ali had understood and agreed with Orlando that money from the CD Account would be used to pay the Bardwell Property mortgage from September 2009 onwards, Ali would have made those payments electronically from the CD Account to Orlando's mortgage account (the details which he would have sought from Orlando) or would have required Orlando to use the online access to make those payments electronically. [634] That is particularly so in circumstances where Ali's evidence is that he paid the Bardwell Property mortgage directly from his account in the period before the property was transferred to Orlando. [635]
18. Third, it is also inherently implausible that Ali believed that the sum of $36,320 that he withdrew from the CD Account in cash and handed to Jeffrey on 30 September 2009, in denominations as little as $5 and $10, was being withdrawn in order to pay the Bardwell Property mortgage. [636]
19. Fourth, the timing of the establishment of Cleaning Doctor and the opening of the CD Account, and the commencement of substantial payments by the Fonseca family into the CD Account, does not coincide with any relevant change in the capacity in which Ali was involved in cleaning and/or maintenance work at UNSW. [637]
20. Fifth, whilst there is no evidence of a conversation between Ali and Orlando in which Ali (on behalf of Cleaning Doctor) expressly conferred general or unlimited authority on Orlando to make withdrawals from the CD Account, the objective evidence of Ali's conduct during the period after the incorporation of Cleaning Doctor and the opening of the CD Account points strongly to the conclusion that Cleaning Doctor did confer such authority on Orlando. I refer, in particular to: 1. the evidence that Ali permitted the CD Account to be established on terms that Westpac would send statements and other information concerning the account to a post office box and/or fax number that Ali did not operate or control; [638] 2. the evidence that Ali treated the online access to the CD Account as being for the use and benefit of the Fonseca family and not for him as the sole director of Cleaning Doctor; [639] 3. the evidence that Ali handed over the signed debit card for the CD Account to Orlando and signed three cheque books full of blank cheques that he gave to Orlando "on trust" at a time when, according to his own evidence, Ali did not trust Orlando; [640] 4. the evidence that Ali made no inquiries with Westpac at any time about the balance of the CD Account or transactions on the CD Account. I reject Ali's explanation that he made no such inquiries because he trusted Orlando, because it is inconsistent with other evidence he has given that he did not trust Orlando; [641] 5. the evidence that Ali made no objection to a withdrawal of $10,000 from the CD Account that Ali says he was told would be used "to pay business expenses" [642] ; 6. the evidence that Ali left it to Orlando in October 2012 to attend to the fact that Cleaning Doctor had been deregistered and its property vested in the Commonwealth, and that ASIC had written to Westpac to stop all transactions on the CD Account. In circumstances where Ali's evidence is that he did not trust Orlando, this conduct is irreconcilable with Ali having any interest in knowing what was happening to monies paid into the CD Account or holding any genuine belief that Cleaning Doctor (and he, as sole shareholder of Cleaning Doctor) stood to benefit from any money standing to the credit of the CD Account; [643] and 7. Ali's evidence that, in April 2015, and in the context of providing information for the purpose of applying for an apprehended violence order against Vilma and Orlando, Ali claimed that Orlando had created Cleaning Doctor fraudulently in Ali's name. I reject Ali's evidence that this was not true and that he said it because he was upset. If Ali had been upset by the transfer of the Bardwell Property to Goodman Court and the deregistration of Cleaning Doctor (which he claims he had only recently discovered) and had genuinely believed (as he says he told Mr Cassaniti) that there was a lot of money in the CD Account that belonged to him and his family, it is inherently improbable that he would have ventilated his distress by claiming that Orlando had fraudulently created Cleaning Doctor in Ali's name. Such a claim is fundamentally inconsistent with Ali's claim to have been entitled to any money in the CD Account as the sole shareholder of Cleaning Doctor. [644]
21. The evidence does not support a finding that Orlando and Jeffrey made the withdrawals from the CD Account for the purpose of paying workers' wages, or that the moneys withdrawn were used for that purpose. In particular, if Cleaning Doctor was a subcontractor to Clean & Clear as Orlando and Jeffrey claimed, it is inherently implausible that Clean & Clear would have paid in excess of $1,000,000 to Cleaning Doctor without tax invoices on which Clean & Clear could rely to substantiate claims for tax deductions. The evidence referred to at [229], [242] and [307] above strongly suggests that no such tax invoices were issued. If Cleaning Doctor tax invoices had been amongst the Clean & Clear archived records located at CAP Accounting, [645] it would have assisted the defendants to obtain those invoices (on subpoena or otherwise) and tender them. They did not do so. The defendants do not suggest that Cleaning Doctor was a subcontractor to any other Fonseca business and there is no evidence that explains payments totalling approximately $1,500,000 that Crew Hire and Link made to Cleaning Doctor in the period from October 2009 to October 2010. The notion that these amounts were paid into the CD Account by Crew Hire, Link and Clean & Clear for the purpose of Orlando and Jeffrey withdrawing cash from the CD Account and handing it to Ali to pay workers may resemble the unorthodox practice adopted by Ali and Orlando prior to September 2009, but it is inherently implausible in circumstances where Orlando claims that Cleaning Doctor was a subcontractor to Clean & Clear in the period after September 2009 and that Ali could not be trusted to pay workers because he had a gambling problem and had failed to pay them in the past.
22. This is a most unusual case. The parties' competing claims about the scope of the authority conferred on Orlando and Jeffrey were based on the uncorroborated evidence of Ali on the one hand and Orlando and Jeffrey on the other hand. The evidence of each witness suffers from the difficulties referred to at [414]-[437] above. The defendants' failure to prove the authority on which they relied for most of the withdrawals and which they claimed in their evidence was expressly conferred on them in conversations between Orlando and Ali does not result in Cleaning Doctor's claims succeeding. The Court is not constrained to accept either Cleaning Doctor's evidence or the defendants' evidence where both parties' evidence is inherently implausible and the objective evidence referred to at [550] above points to a conclusion that is contrary to both parties' contentions.
23. For those reasons, Cleaning Doctor has failed to discharge its onus of proving that the withdrawals from the CD Account were made without the authority of Cleaning Doctor. It follows that all of Cleaning Doctor's claims fail.
24. That conclusion does not turn on the application of any presumption under s 18(1) of the Cheques Act.
25. In my opinion, the defendants' application for leave to amend [646] their defence to plead reliance on the presumption in s 18(1) was misconceived. Section 18(1) must be read in the context of section 18 as whole, which provides: "(1) Where the drawer of an instrument that is signed, but is otherwise wanting in a material particular necessary for the instrument to be, on its face, a complete cheque, delivers the instrument to another person in order that the instrument may be filled up as a complete cheque, any person in possession of the instrument shall be presumed, unless the contrary is proved, to have authority to fill up the instrument as a complete cheque in any way the person sees fit. (2) Subject to subsection (4), an instrument to which subsection (1) applies is not enforceable against the drawer or a person who becomes an indorser of the instrument before the instrument is filled up as a complete cheque unless the instrument is filled up within a reasonable time and strictly in accordance with the authority given. (3) Reasonable time, for the purposes of subsection (2), is a question of fact. (4) An instrument of the kind referred to in subsection (1) that has been filled up as a complete cheque shall, as regards a holder in due course, be conclusively presumed: (a) to have been delivered to another person in order that the instrument might be filled up as a complete cheque; and (b) to have been filled up within a reasonable time and strictly in accordance with the authority given."
26. By reason of s 18(2), the position as between the drawer of the cheque and the holder of the cheque turns on actual authority, unless the holder is a holder in due course. The evidence does not establish that Orlando or Jeffrey was a holder in due course because the "cheques" were blank save for Ali's signature when they took possession of them: Cheques Act, s 50.
27. Even if I am wrong about this and Orlando and Jeffrey are entitled to the statutory presumption under s 18(1), my conclusion has been reached independently of any presumption under s 18(1) and is based on consideration of the evidence adduced by the parties over the three week hearing. As I have explained above, Cleaning Doctor bears the onus of proving that Orlando and Jeffrey lacked authority to make the withdrawals.
28. The defendants' proposed amendments were also misconceived insofar as they invoked s 36 and s 71(1)(a) of the Cheques Act. For the reasons I have already explained, the success or failure of Cleaning Doctor's claims turned on the question of the scope of the defendants' authority to withdraw money from the CD Account and not on whether Cleaning Doctor received (or is presumed by reason of s 36 to have received) valuable consideration for any authority conferred on the defendants by delivery of the signed blank cheques. Section 71(1)(a) provides that, by drawing the cheque, the drawer undertakes to the holder that the cheque will be paid on presentment. As I have already explained, the signed blank cheques in this case did not become cheques drawn by Cleaning Doctor until they were completed to meet all of the elements of the definition of a cheque in Part II of the Cheques Act. Thus, s 71(1)(a) merely confirms that the central inquiry in this case is the scope of the defendants' authority to complete the cheques and present them to the bank.
29. For those reasons, I do not consider that it would be in the interests of justice and consistent with ss 56-58 of the Civil Procedure Act 2005 (NSW) to grant leave for the defendants to amend after the conclusion of the hearing to raise matters that are not relevant to the real issues in dispute between the parties in relation to Cleaning Doctor's claims. The defendants' informal application for leave to amend made by email to my Associate on 4 December 2020 is therefore dismissed.
30. It is not strictly necessary to consider whether, if Cleaning Doctor's claims had succeeded, Orlando and Jeffrey would have been released from any liability to Cleaning Doctor on the discharge of their bankruptcies on 8 March 2014 and 26 January 2015 (respectively). I would ordinarily be inclined to express a view about that lest my dismissal of Cleaning Doctor's claims be overturned in any subsequent appeal. However, I do not think it is appropriate to do so in this case because I did not have the benefit of any submissions as to whether any liability of Orlando or Jeffrey under any of the Cleaning Doctor's claims (if any liability had been found) would be a debt provable in their respective bankruptcies within the meaning of s 82 of the Bankruptcy Act 1966 (Cth). I refer in particular to the provisions of s 82(2) of that Act. [647]

Conclusion and Orders

1. For all of the foregoing reasons, all of the plaintiffs' claims fail and the proceedings must be dismissed.
2. I am not aware of any reason why costs should not follow the event, but I will hear the parties in relation to costs and in elation to any orders in addition to those set out below that any party contends is necessary to finally dispose of the proceedings (including orders relating to previous freezing orders and an money paid into court).
3. I make the following orders: 1. Proceedings dismissed. 2. The costs of the proceedings are reserved to be determined on the papers. 3. Direct that each party file and serve written submissions in relation to costs and any other order sought consequential of the dismissal of the plaintiffs' claims for relief by no later than 4pm on 18 March 2022, such submissions not to exceed five pages in length. 4. Direct any party wishing to respond to any submission filed and served by the other in accordance with order 3 above to file and serve their responsive written submissions not exceeding five pages in length by 1 April 2022.

Endnotes

1. Orlando 18/9/18, paragraphs 22-27. Footnoted references to affidavit evidence adopt the convention: deponent name, date of affidavit in the format mm/dd/yy, specific paragraph reference.
2. Orlando 18/9/18, paragraph 22; Orlando 8/9/17, paragraphs 3-8.
3. Exhibit 3, pp 7218-7219.
4. Orlando 8/9/17, paragraphs 3-8; Exhibit 3, p 7214.
5. Orlando, 18/9/18, paragraph 24; Exhibit 3, pp 7209-7213; T625.41-625.42.
6. Exhibit 3, pp 3927, 7327.
7. Orlando 8/9/17, paragraphs 3-8; Exhibit 3, pp 7173-7189; Exhibit 12, Exhibit 15.
8. Exhibit 3, p 7172.
9. Orlando, 18/9/18, paragraph 24; Exhibit 3, pp 7196-7203.
10. Orlando, 18/9/18, paragraph 24; Exhibit 3, pp 7232-7234.
11. Orlando 8/9/17, paragraphs 3-8; Exhibit 3, pp 7160-7170.
12. Ali 27/5/15, paragraph 10.
13. Ali 27/5/15, paragraphs 12-13.
14. Ali 27/5/15 paragraphs 13-17; T252.42.
15. Ali 27/5/15 paragraphs 13-17.
16. Ali 27/5/15, paragraph 20.
17. Ali 27/5/15, paragraph 20.
18. Orlando 8/9/17, paragraphs 14-15.
19. Orlando 18/9/18, paragraph 31-32.
20. Orlando 18/9/18, paragraphs 28-29.
21. Orlando 18/9/18, paragraph 30.
22. Orlando 18/9/18, paragraph 33.
23. Ali 9/5/19, paragraphs 32-40.
24. T255.11-255.17.
25. T253.47-254.8.
26. T259.30-260.33, 266.5-266.10.
27. Ali 9/5/19, paragraphs 135-138.
28. T260.34-261.18.
29. T264.50-265.25.
30. T351.15-351.25.
31. Exhibit 3, pp 655-656, 7304.
32. Exhibit 3, p 656.
33. Ali 27/5/15, paragraph 26(iii); Orlando 8/9/17, paragraph 35.
34. Ali 27/5/15, paragraph 26(iii); Orlando 18/9/18, paragraph 9.
35. Ali 9/5/19, paragraph 73; Orlando 18/9/18, paragraph 9.
36. Exhibit 3, p 657.
37. Ali 23/2/17, paragraphs 26-43.
38. Exhibit 3, p 654.
39. Exhibit 5.
40. Exhibit 3, p 655; Exhibit 5.
41. Exhibit 5.
42. Ali 27/5/15, paragraph 26(ii).
43. Ali 23/2/17, paragraphs 20-42.
44. T207.25.
45. T172.20-182.10, especially at 174.35-174.48 and 177.45-177.50; T312.19-313.30.
46. T207.9-207.25.
47. Ali 27/5/15, paragraph 26(ii)-(iii); Ali 7/7/15, paragraph 10; Ali 23/2/17, paragraph 20.
48. Ali 9/5/19, paragraphs 74-76.
49. T193.15-198.50, 237.38-237.49; affidavit of Mimi Kappos sworn 30 August 2018; report of Melanie Holt dated 11 July 2018 at Exhibit 3, pp 6169-6214.
50. T188.35-189.43.
51. Plaintiffs' closing submissions (25/11/20), paragraph 19.
52. Exhibit 3, pp 6932-6933.
53. Exhibit 3, pp 659-661, 7304.
54. Orlando 8/9/17, paragraph 31.
55. Orlando 8/9/17, paragraph 31.
56. Orlando 18/9/18, paragraph 8.
57. T691.23-692.6 (incorporating the parties' agreed transcript corrections).
58. Orlando 8/9/17, paragraphs 34-42, 59-61 and 64; Orlando 18/9/18, paragraph 9.
59. Exhibit 3, pp 662-663.
60. Exhibit 3, p 664.
61. Exhibit 3, p 670 (the spelling and grammatical errors are in the original text); Vilma 1/9/17, paragraph 15; Vilma's evidence at T777.21 ("I do the letter").
62. Ali 9/5/19, paragraph 77.
63. T693.5-694.35 (incorporating the parties' agreed transcript corrections).
64. T695.25-696.15.
65. T696.24.
66. Orlando 8/9/17, paragraphs 34-42, 59-61 and 64; Orlando 18/9/18, paragraph 9; T689.19-689.40
67. T689.40-689.50.
68. T690.1-690.42 (incorporating the parties' agreed transcript corrections).
69. Orlando 8/9/17, paragraph 34.
70. T687.19-687.40, 688.25-689.2.
71. T622.20-, 625.31, 683.20-685.24.
72. T699.6-699.10.
73. Ali 9/5/19, paragraphs 69-70, 132.
74. Orlando 8/9/17, paragraphs 34-35.
75. Orlando 8/9/17, paragraphs 3-8; Exhibit 3, pp 7209-7214.
76. Ali 9/5/19, paragraph 72.
77. T214.41-215.5.
78. Ali 10/11/20, paragraph 5.
79. Ali 10/11/20, paragraphs 5 and 7; T209.30-211.13.
80. T213.38-213.43.
81. T696.38-697.39.
82. T697.40-697.45.
83. Ali 27/5/15, paragraph 104; Ali 9/5/19, paragraphs 26-27.
84. Ali 27/5/15, paragraph 19; Ali, 9/5/19, paragraph 47.
85. Orlando 8/9/17, paragraph 21; Orlando 18/9/18, paragraphs 31-32.
86. Ali 9/5/19, paragraphs 45-51.
87. Orlando 18/9/18, paragraph 33.
88. Ali 9/5/19, paragraph 138.
89. Orlando 18/12/19, paragraph 8.
90. Ali 12/2/20, paragraph 11.
91. Vilma 1/9/17, paragraphs 10-11; Orlando 8/9/17, paragraph 16; Vilma 18/9/18, paragraphs 4-5; Exhibit 3, pp 7829-7867; Ali 9/5/19, paragraphs 40-41.
92. Exhibit 3, p 7071 and 7859.
93. Exhibit 3, p 671.
94. Exhibit 3, p 6935.
95. Exhibit 3, pp 703-705.
96. Ali 27/5/15, paragraph 18.
97. Ali 27/5/15, paragraph 26(vi).
98. Ali 27/5/15, paragraph 26(vi).
99. Ali 27/5/15, paragraph 26(vi).
100. T242.1-245.24.
101. See [79], [107] and [126] below.
102. T211.10-211.12.
103. Orlando 8/9/17, paragraph 58; Orlando 18/9/18, paragraph 3(a).
104. Orlando 8/9/17, paragraphs 62-64; T699.6-699.15.
105. Orlando 8/9/17, paragraph 43.
106. Orlando 18/9/18, paragraphs 12-13; Exhibit 3, pp 679-702.
107. Ali 9/5/19, paragraph 103.
108. Exhibit 3, p 671.
109. Exhibit 3, p 671.
110. Orlando 8/9/17, paragraph 44; Ali 9/5/19, paragraph 78.
111. Exhibit 3, p 671.
112. Orlando 8/9/17, paragraphs 48-49; Exhibit 3, pp 703-704, 6935.
113. Orlando 18/12/19, paragraph 6.
114. Exhibit 3, p 6935.
115. Exhibit 3, pp 671 and 705.
116. Ali 27/5/15, paragraph 26(vii)-(xi); Orlando 8/9/17, paragraphs 43-46; Ali 9/5/19, paragraphs 78-79; T717.13-719.29.
117. Exhibit 3, pp 677, 705-709, 7304.
118. Orlando 8/9/17, paragraph 48.
119. Orlando 8/9/17, paragraph 31.
120. Orlando 8/9/17, paragraph 49.
121. Orlando 18/12/19, paragraph 7.
122. Orlando 18/12/19, paragraphs 8-9.
123. Orlando 18/12/19, paragraph 7.
124. Ali 12/2/20, paragraphs 11-12.
125. T222.19-224.7
126. Ali 27/5/15, paragraphs 23-25 and 26(viii); T216.13-224.7.
127. T223.20-224.7.
128. Ali 9/5/19, paragraph 78.
129. Ali 27/5/15, paragraph 51.
130. Ali 27/5/15, paragraph 53.
131. Ali 27/5/15, paragraph 27; Orlando 8/9/17, paragraph 50.
132. See [94] above.
133. See [35] and [89] above.
134. T210.40-201.41, 211.10-212.12, 215.10-215.45; Ali's affidavit affirmed on 10 November 2020 took issue with Orlando's evidence that he had paid the mortgage only insofar as Orlando maintained that contention in relation to the period while Ali was the registered proprietor of the Bardwell Property.
135. T699.11-699.35.
136. Orlando 8/9/17, paragraphs 50 and 65; Exhibit 3, pp 720-724; Ali 27/5/15, paragraphs 28-29.
137. T699.11-702.42.
138. See [297]-[303] below.
139. Orlando 8/9/17, paragraph 65; Exhibit 3, pp 720-724; Ali 27/5/15, paragraphs 28-29.
140. Orlando 18/12/19, paragraphs 13-15 and Exhibit 3, pp 677, 706, 745, 749-752.
141. Orlando 18/12/19, paragraphs 16-17.
142. Ali 27/5/15, paragraph 33; Ali 8/10/15, paragraph 6; Ali 12/2/20, paragraph 8.
143. Orlando 18/12/19, paragraph 21.
144. Ali 12/2/20, paragraphs 24-27.
145. Vilma 3/3/20; Orlando 3/3/20, paragraph 8.
146. Ali 12/2/20, paragraph 9.
147. Orlando 3/3/20, paragraph 4.
148. Ali 12/2/20, paragraph 15.
149. Orlando 3/3/20, paragraph 6.
150. Ali 9/5/19, paragraphs 26-27.
151. Orlando 8/9/17, paragraphs 84-85.
152. Ali 9/5/19, paragraph 112.
153. T274.39-277.14, 351.17-351.25
154. Vilma 1/9/17, paragraphs 10-11; Orlando 8/9/17, paragraph 16; Vilma 18/9/18, paragraphs 4-5; Exhibit 3, pp 7071-7073 and 7829-7867.
155. Ali 27/5/15, paragraph 19; Exhibit 3, p 880.
156. Ali 9/5/19, paragraph 47; purchase orders at Exhibit 3, pp 1695-1697 confirm that TBM was undertaking both cleaning and maintenance work; Orlando 8/9/17, paragraph 22.
157. Orlando 18/9/18, paragraph 35.
158. Orlando 18/9/18, paragraph 36.
159. Ali 9/5/19, paragraphs 47-56.
160. Ali 27/5/15, paragraph 13.
161. T354.12-354.20.
162. Ali 9/5/19, paragraphs 131-150.
163. See [35], [89] and [131] above.
164. Vilma 1/9/17, paragraphs 10-11; Orlando 8/9/17, paragraph 16; Vilma 18/9/18, paragraphs 4-5; Exhibit 3, pp 7829-7867.
165. Exhibit 3, pp 7073-7076.
166. Exhibit 3, p 7076.
167. Exhibit 3, pp 7076-7078.
168. Exhibit 3, pp 7078-7080.
169. Exhibit 3, p 7080.
170. Exhibit 3, pp 7074-7078.
171. Ali 9/5/19, paragraph 57; Exhibit 3, pp 1740-1753, 7028.
172. Ali 9/5/19, paragraphs 57-58.
173. Ali 9/5/19, paragraph 58.
174. See [289] below.
175. Ali 9/5/19, paragraph 59.
176. Orlando 8/9/17, paragraph 22.
177. Exhibit 3, pp 1773, 1799.
178. Exhibit 3, p 7080.
179. Exhibit 3, pp 7080 (summary), pp 10111-10134 (Crew Hire bank account statements) and pp 10359-10376 (Ali's bank account statements).
180. Ali 27/5/15, paragraph 51; referred to above at [96] and [120].
181. Ali 7/7/15, paragraph 6; see also T163.16-163.40.
182. See [77]-[78], [99] and [122] above.
183. Ali 8/10/15, paragraph 10.
184. Ali 9/5/19, paragraph 29.
185. Ali 8/10/15, paragraphs 15-17.
186. T335.25-337.39.
187. T337.40-338.50.
188. T339.25-339.30.
189. T339.41-342.12.
190. T342.40-343.11.
191. Exhibit 3, pp 10111-10134 (Crew Hire bank account statements) and pp 10359-10376 (Ali's bank account statements).
192. T349.35-349.40.
193. T351.17-351.39.
194. T351.40-352.25.
195. See [158]-[169] below.
196. T243.26-245.24.
197. See [99] and [149]-[151] above.
198. T313.31-316.4.
199. Ali 27/5/15, paragraph 53.
200. See [147] above.
201. See [155]-[156] above.
202. T494.27-495.495.30.
203. Ali 1/6/15, paragraph 8.
204. Jeffrey 1/7/15, paragraph 20.
205. Vilma 1/9/17, paragraph 24; Josleyn 2/9/17, paragraphs 13-16; Orlando 8/9/17, paragraph 69.
206. Orlando 8/9/17, paragraphs 68, 91-92.
207. Orlando 8/9/17, paragraph 86.
208. Orlando 18/12/19, paragraph 34.
209. Orlando 18/9/18, paragraph 41.
210. Ali 9/5/19, paragraphs 108, 139.
211. T713.40-713.45, 719.50-721.34, 722.45-722.50.
212. Ali 9/5/19, paragraphs 155-157.
213. Laura Martin 10/5/19, paragraphs 24-25.
214. Exhibit 3, p 1953.
215. See [149]-[151] above.
216. Exhibit 3, pp 6642-6697.
217. Paragraphs 8-16 of Ms Holt's report at Exhibit 3, p 6644-6645.
218. Paragraphs 18-38 of Ms Holt's report at Exhibit 3, pp 6646-6654.
219. Paragraph 41 of Ms Holt's report at Exhibit 3, p 6654.
220. T476.4-476.26.
221. Orlando 31/7/19, paragraph 2; Jeffrey 31/7/19, paragraph 2 and CB 535; Vilma 31/7/19, paragraph 2; Joselyn 31/7/19, paragraph 2 .
222. Ali 27/8/19, paragraph 2.
223. Ali 27/8/19, paragraphs 4-8.
224. Jeffrey 17/12/19, paragraph 28.
225. T467.45-469.40.
226. T466.41-467.45.
227. T483.16-483.35.
228. T475.1-475.2.
229. T475.4-475.16.
230. T642.10-646.1 (the quoted transcript is at T645.10-646.1).
231. T746.1-746.40.
232. Exhibit 3, pp 1977, 7285-7286.
233. Cassaniti 10/5/19, paragraphs 22-24.
234. T568.24-570.37; see also re-examination at T583.9-583.18.
235. Exhibit 3, pp 7280-7286.
236. Orlando 18/9/18, paragraph 42; Orlando 16/1/20, paragraph 3; see also Orlando 8/9/17, paragraph 53.
237. T713.40-713.45; see also [163]-[165] above.
238. T726.16-726.38.
239. Ali 9/5/19, paragraph 138; T323.8-323.31.
240. Ali 27/5/15, paragraph 54.
241. Ali 27/5/15, paragraph 54.
242. Ali 8/10/15, paragraph 12.
243. Jeffrey 1/7/17, paragraph 21.
244. Jeffrey 8/9/17, paragraphs 11, 23-25; Jeffrey 17/9/18, paragraph 2(c); Jeffrey 17/9/18, paragraph 36; Jeffrey 15/1/20, paragraph 2; T629.45-631.47.
245. Ali 9/5/19, paragraph 117.
246. Jeffrey 17/9/18, paragraphs 36-41.
247. Jeffrey 8/9/17, paragraphs 11, 23-25; Jeffrey 17/9/18, paragraph 2(c).
248. Ali 27/5/15, paragraph 55.
249. Exhibit 3, pp 1963-1965.
250. Exhibit 3, pp 1973-1974; T625.41-626.40, 627.36-628.4.
251. T288.38-290.10.
252. Ali 27/5/15, paragraphs 56 and 59.
253. T628.16-629.44.
254. T632.19-632.27.
255. T721.42-724.13.
256. See [191] above and [210], [218]-[225] below.
257. Exhibit 3, 7339.
258. Exhibit 3, p 1988.
259. Exhibit 3, p 10135.
260. Jeffrey 17/9/18, paragraphs 36-41.
261. Ali 9/5/19, paragraph 122.
262. T361.40-365.8.
263. Ali 8/10/15, paragraph 29 ; T307.27-308.15.
264. Ali 8/10/15, paragraphs 13-14; Ali 23/2/17, paragraph 53.
265. T292.8-292.10.
266. T290.40-294.15.
267. T294.16-294.40.
268. Ali 27/5/15, paragraph 51.
269. Orlando 18/9/18, paragraph 42; Orlando 16/1/20, paragraph 3; see also Orlando 8/9/17, paragraph 53.
270. Ali 9/5/19, paragraph 138; T323.8-323.31.
271. For example, Ali (8/10/15), paragraphs 12-13, 22-26 and 47; Orlando (18/8/18), paragraph 42; T283.30-286.22.
272. Ali 8/10/15, paragraphs 48-67; T286.16-286.36.
273. T323.8-324.29.
274. Ali 27/5/15, paragraph 51.
275. Ali 8/10/15, paragraphs 22-25; Ali 23/2/17, paragraph 53.
276. Orlando 18/12/19, paragraph 30; Ali 12/2/20, paragraph 16.
277. Orlando 18/12/19, paragraphs 28-30.
278. Orlando 18/9/18, paragraph 43.
279. Orlando 18/9/18, paragraphs 45-46.
280. Jeffrey 1/7/15, paragraph 3.
281. T607.28-607.35.
282. Jeffrey 8/9/17, paragraphs 18-19, 26.
283. T607.14-607.35.
284. The defendants did not read those parts of those affidavits at the hearing.
285. T606.26-614.45.
286. Jeffrey 18/9/18, paragraphs 43-54; T617.27-618.40.
287. Jeffrey 18/9/18, paragraphs 50-51.
288. Orlando 18/9/18, paragraph 44.
289. Ali 9/5/19, paragraph 106.
290. Ali 9/5/19, paragraph 64.
291. Orlando 18/12/19, paragraphs 31; Ali 12/2/20, paragraph 16.
292. Mr Kevin Canning, who affirmed an affidavit on 7 May 2019.
293. Mr Alfred Weber, who affirmed an affidavit on 8 May 2019.
294. Mr Nicholas Inglezakis, who affirmed an affidavit on 8 May 2019, and Mr Issam Majed, who also affirmed an affidavit on 8 May 2019.
295. Ms Silvana De La Croix, who affirmed an affidavit on 16 May 2019.
296. T619.11-619.26, 633.41-637.50.
297. See [11] above.
298. T725.10-726.15.
299. Ali 9/5/19, paragraphs 107, 111, 118, 123-128, 141; see also Ali 8/10/15, paragraph 29 and Ali 23/2/17, paragraph 19.
300. See [150]-[151] above.
301. Ali 23/2/17, paragraph 7; Ali 8/10/15, paragraphs 15-21.
302. Exhibit 3, pp 7339, 10140.
303. Exhibit 3, pp 2139, 2172, 6198, 7353-7365; Orlando 18/9/18, paragraphs 6(n), 7(c) and 47-48; Ali 9/5/19, paragraph 105.
304. Exhibit 3, pp 7058-7059.
305. Exhibit 3, pp 7339-7393.
306. T638.1-638.25.
307. T730.25-730.39.
308. See [11] above.
309. The documentary evidence is identified in a schedule submitted by the plaintiffs on 10 December 2020 in accordance with orders made on 3 December 2020.
310. Ali 9/5/19, paragraph 58; T322.14-322.21
311. Ali 27/5/15, paragraphs 61- 63.
312. Orlando 8/9/17, paragraph 51.
313. Affidavit of Joseph Baraya sworn 11 February 2020.
314. See [217] above; Orlando 18/12/19, paragraphs 28-30.
315. Orlando 8/9/17, paragraphs 51-52; Orlando 8/9/18, paragraphs 43 and 45.
316. Monica Alvarado 8/9/17, paragraphs 8-10 and 13.
317. Monica Alvarado 26/9/18, paragraph 3.
318. T794.17-794.30.
319. Monica Alvarado 8/9/17, paragraph 12.
320. T794.20-794.41.
321. Orlando 18/9/18, paragraphs 51-52.
322. Orlando 18/9/18, paragraphs 51-53.
323. Orlando 8/9/17, paragraphs 93 and 95and paragraphs 23-26.
324. Jeffrey 17/9/18, paragraphs 64-65.
325. Exhibit 3, pp 7868-7942.
326. Exhibit 3, pp 7065-7070, 7868-7942, 7936-7504.
327. For example, the word "wages" is written on the receipts at Exhibit 3, pp 7874-7875, 7885, 7897, 7898, 7902, 7910, 7912, 7918; the receipt at Exhibit 3, p 7871 bears the handwritten notation "Sam not worked 1 week"; the receipt at Exhibit 3, p 7877 bears the handwritten notation "Sam finishing".
328. Ali 9/5/19, paragraphs 65 and 106.
329. Ali 9/5/19, paragraphs 61-64.
330. Ali 9/5/19, paragraphs 65-67.
331. Exhibit 3, pp 7065-7070.
332. Ali 9/5/19, paragraph 65.
333. Exhibit 3, pp 7059-7064.
334. Exhibit 3, pp 7060-7064, 7396-7504.
335. T638.1-638.25.
336. Exhibit 3, pp 7339-7393.
337. Ali 8/10/15, paragraphs 44-46; Ali 23/2/17, paragraph 7.
338. T370.20-370.46.
339. T308.15-308.50.
340. T327.10-329.8
341. Jeffrey 17/9/18, paragraph 2(c).
342. Orlando 18/9/18, paragraph 50.
343. Ali 9/5/19, paragraph 150; Exhibit 2, pp 4353-4355.
344. Exhibit 3, pp 7065-7070, 7943-8006.
345. Ali 9/5/19, paragraph 130; Jeffrey 17/9/18, paragraph 63; Orlando 18/9/18, paragraph 50.
346. Ali 12/2/20, paragraphs 37-38.
347. Ali 12/2/20, paragraphs 37-38; T382.49-383.10, 384.36-386.15.
348. Exhibit 3, pp 7058-7064.
349. Ali 8/10/15, paragraphs 27-40; see also Ali 23/2/17, paragraph 53.
350. T292.8-292.10
351. See [258]-[260] above.
352. See [220]-[223] above.
353. Orlando 18/9/18, paragraphs 44-45
354. Vilma 18/9/18, paragraph 7; Exhibit 3, p 7427.
355. Exhibit 3, pp 4055, 7477; T663.30-664.35, 775.34-776.10.
356. Joselyn 2/9/17, paragraphs 21-22; Joselyn 18/9/18, paragraphs 3-4.
357. Nor did Ali prepare any financial accounts or tax returns for Swell Trades: T400.40-402.26.
358. T300.21, 402.38-403.10, 497.18-498.4, 504.10-504.15. In re-examination, Ali did identify one page of his contemporaneous workbooks in which he had recorded the cost of some of the jobs in addition to recording the amount to invoiced by the Fonseca business to Spotless for those jobs. Ali gave evidence that he could calculate the profit for each of those jobs as the difference between the amount to be invoiced and the cost. However, no other entries in his contemporaneous workbooks were identified as recording the cost or evidencing the profit of the jobs entered: see T504.35-506.39.
359. Ali 27/5/15, paragraphs 60 and 67 ; T276.27-277.14, 297.40-297.50.
360. Exhibit 3, pp 7058-7064, 7085-7098 and pp 7339-7515.
361. Ali 8/10/15, paragraphs 29-30; Ali 27/2/17, paragraph 19.
362. Ali 9/5/19, paragraphs 110, 124.
363. Ali 27/5/15, paragraph 63.
364. Orlando 8/9/17, paragraph 71.
365. Ali 8/10/15, paragraph 25.
366. I infer that Ali was excluding from this answer his request for the CD Account statements and other documents in 2015, which resulted in copies of the bank statements and cheques for the CD Account being tendered in these proceedings.
367. T297.18-297.30.
368. Ali 27/5/15, paragraph 51.
369. Ali 27/5/15, paragraphs 61-62.
370. Ali 8/10/15, paragraph 25.
371. Ali 23/2/17, paragraphs 82-83.
372. See [329] but also [352]-[354] below.
373. T290.15-290.40.
374. T492.45-494.27; see also T495.30-497.7.
375. See [139] above.
376. See [140]-[142] above.
377. See [248] above.
378. See [226] above.
379. See [268] above.
380. Ali 8/10/15, paragraphs 49-67; Jeffrey 8/9/17, paragraph 27.
381. Jeffrey 17/9/18, paragraphs 55-56.
382. Jeffrey 17/9/18, paragraph 57.
383. Jeffrey 17/9/18, paragraphs 58-60; T618.47-622.20.
384. T620.38-622.20.
385. Orlando 8/9/17, paragraph 27; Orlando 18/9/18, paragraphs 55-58.
386. Exhibit 3, pp 5011-5017.
387. Exhibit 3, pp 8007-8019.
388. Exhibit 3, pp 8020-8031.
389. Ali 9/5/19, paragraphs 68, 148 and 151.
390. Orlando 18/9/18, paragraphs 56-57; Exhibit 3, pp 7067-7070, 7943-8006.
391. Orlando 18/9/18, paragraph 58.
392. Exhibit 15.
393. Jeffrey 17/9/18, paragraph 66.
394. T638.29-640.11.
395. T733.10-733.50.
396. T794.31-794.41.
397. Durado 23/11/220; T800.4-800.21, 802.8-802.30.
398. T744.2-744.30.
399. T799.31-800.5.
400. Exhibit 12.
401. Mr Cassaniti's affidavit sworn on 10 May 2019, paragraphs 1-18.
402. Exhibit 3, pp 2516-2527.
403. Mr Cassaniti's affidavit sworn on 10 May 2019, paragraph 26; Exhibit 3, pp 3026-3054.
404. Exhibit 3, pp 3184, 3259-3260, 7333.
405. Exhibit 3, pp 3229, 3319-3320, 7336.
406. Exhibit 3, pp 3506, 3565-3566.
407. Exhibit 3, pp 3681, 7330.
408. Exhibit 3, pp 3927, 7327; Jeffrey 1/7/17, paragraph 15.
409. Mr Cassaniti's affidavit sworn on 10 May 2019, paragraph 33; Exhibit 3, pp 5339-5351.
410. Exhibit 3, pp 6348-6355; defendants' submissions at T814.25-817.10.
411. Ali 27/5/15, paragraph 45; Ali 9/5/19, paragraph 4.
412. Ali 27/5/15, paragraph 64.
413. Orlando 18/9/18, paragraph 3(a).
414. Orlando 18/9/18, paragraphs 14-17; Exhibit 3, p 7307.
415. Defendants' submissions at T814.25-816.29.
416. Ali, 27/5/15, paragraph 84 ; Exhibit 3, p 5673.
417. Ali 27/5/15, paragraphs 84-87.
418. Orlando, 18/9/17, paragraphs 81-82; Orlando 18/9/18, paragraph 3(a).
419. Mr Cassaniti's affidavit sworn on 10 May 2019, paragraph 36.
420. Ali 27/5/15, paragraphs 89-90.
421. Mr Cassaniti's affidavit sworn on 10 May 2019, paragraph 31.
422. Ali 7/7/15, paragraph 17.
423. Laura 13/7/15, paragraph 4.
424. Orlando 8/9/17, paragraph 88; Orlando 18/9/18, paragraph 3(b).
425. Ali 9/5/19, paragraphs 82-102.
426. T139.
427. Exhibit 3, pp 5737-5765.
428. Exhibit 3, p 5738.
429. Exhibit 3, p 5739.
430. Exhibit 3, pp 5740-5741.
431. T415.27-416.17.
432. T524.31-526.36.
433. Exhibit 3, pp 5741-5742.
434. Exhibit 3, pp 5742-5743; T417.25-417.39; 527.25-528.4.
435. Exhibit 3, p 5743.
436. Exhibit 3, p 5744.
437. Exhibit 3, p 5744.
438. Exhibit 3, p 5745.
439. Exhibit 3, pp 5745.
440. Exhibit 3, pp 5746-5752, 5758-5763 at 5758-5759.
441. Exhibit 3, p 5759.
442. Exhibit 3, pp 5759-5763.
443. T406.25-406.43.
444. T406.44-406.47.
445. T511.36-512.40.
446. T409.1-410.27.
447. T511.36-512.40.
448. See [332] above.
449. T403.34-404.20.
450. T404.32-405.50.
451. T425.14-425.35.
452. Which he reinforced in re-examination: T502.36-502.45.
453. T449.30-449.44.
454. Exhibit 3, pp 5788-5795; T450.45-463.22.
455. T461.25-461.34.
456. T461.44-462.13.
457. T462.14-463.22.
458. T461.25-461.34.
459. Plaintiffs' closing submissions (25/11/20), paragraph 2.
460. Plaintiffs' closing submissions (25/11/20), paragraphs 61-65; Third Further Amended Statement of Claim filed on 25 November 2019 (3FASOC), paragraphs 73-77A.
461. 3FASOC, paragraphs 83-86; Plaintiffs' closing submissions (25/11/20), paragraphs 66, 73-75.
462. Plaintiffs' closing submissions (25/11/20), paragraphs 67-72; 3FASOC, paragraphs 79-82.
463. 3FASOC, paragraphs 78-82; Further Amended Defence filed on 6 December 2019 (FAD), paragraph 3.
464. See, for example, plaintiffs' written opening submissions (12/10/20), paragraphs 40-43 and oral opening submissions at T11.25-11.27.
465. See [110] above.
466. T834.40-836.15; plaintiffs' closing submissions (25/11/20), paragraphs 67-72.
467. T958.15-963.31; plaintiffs' further closing submissions (11/12/20, paragraph 6).
468. Defendants' closing submissions (28/11/20), paragraphs 387-388; defendants' closing submissions (10/12/20), paragraphs 16-18.
469. Defendants' further closing submissions (10/12/20), paragraphs 19-20; plaintiffs' further closing submissions (11/12/20), paragraph 10.
470. Plaintiffs' closing submissions (25/11/20), paragraphs 76-83; 3FASOC, paragraphs 87-88.
471. 3FASOC, paragraphs 84-88.
472. 3FASOC, paragraphs 119-120.
473. Plaintiffs' closing submissions (25/11/20), paragraph 38.
474. Plaintiffs' closing submissions (25/11/20), paragraph 2; 3FASOC, paragraphs 94-102, 121-125.
475. Plaintiffs' closing submissions (25/11/20), paragraphs 2 and 60; 3FASOC, paragraph 102; Amended Reply, paragraph 4.
476. Plaintiffs' closing submissions (25/11/20), paragraphs 84-88; 3FASOC, paragraphs 89-93.
477. Plaintiffs' closing submissions (25/11/20), paragraphs 89-98; 3FASOC, paragraphs 96-102.
478. Plaintiffs' closing submissions (25/11/20), paragraphs 97-98.
479. Plaintiffs' closing submissions (25/11/20), paragraphs 2, 99-108; 3FASOC, paragraphs 103-108.
480. Plaintiffs' closing submissions (25/11/20), paragraph 2.
481. 3FASOC, paragraphs 103-118.
482. T847.30-847.35.
483. Plaintiffs' closing submissions (25/11/20), paragraphs 89-96, 166-182 and Appendix 1; T844.21-846.36; 3FASOC, paragraphs 97-98 and 125.
484. 3FASOC, paragraph 130; T844.20-847.29.
485. Defendants' closing submissions (28/11/20), paragraphs 233-252, 385; FAD, paragraph 3.
486. The defendants' further pleaded contention that the alleged November 2002 agreement was illegal and unenforceable (if made) and his defences relying on s 23C and s 54A of the Conveyancing Act 1919 (NSW) were abandoned in closing submissions: FAD, paragraphs 20 and 27-28; T902.20-902.40.
487. Defendants' closing submissions (28/11/20), paragraphs 309, 393; FAD, paragraph 3
488. Defendants' closing submissions (28/11/20), paragraphs 311, 335-337, 345-346, 387-388; FAD, paragraph 3.
489. Defendants' closing submissions (28/11/20), paragraph 386, 390; FAD, paragraphs 3, 9 and 10.
490. Defendants' closing submissions (28/11/20), paragraph 396; FAD, paragraphs 3 and 22.
491. Defendants' closing submissions (28/11/20), paragraphs 360, 370-371.
492. Defendants' closing submissions (28/11/20), paragraph 374.
493. Defendants' closing submissions, paragraph 375.
494. Defendants' closing submissions, paragraphs 394 and 400; FAD, paragraphs 3 and 23.
495. Defendants' closing submissions, paragraph 399.
496. FAD, paragraph 15.
497. FAD, paragraph 24; T901.5-902.40.
498. FAD, paragraphs 25-26; T901.5-902.40.
499. FAD, paragraphs 16-19; T901.5-902.40.
500. 3FASOC, paragraphs 17-41.
501. 3FASOC, paragraph 19.
502. 3FASOC, paragraphs 24-26.
503. 3FASOC, paragraph 27(i).
504. 3FASOC, paragraph 27(ii).
505. 3FASOC, paragraph 27(ii).
506. 3FASOC, paragraph 27(iii).
507. 3FASOC, paragraph 27(iv).
508. FAD, paragraph 6.
509. Plaintiffs' closing submissions (25/11/20), paragraphs 140-141, 162-164; 3FASOC, paragraphs 17-41 and prayer 9. Cleaning Doctor did not press its pleaded claims for declarations of constructive trust in respect of properties into which the allegedly stolen monies were said to be traceable: T864.3-864.10.
510. Plaintiffs' closing submissions (25/11/20), paragraphs 142-149; 3FASOC, paragraph 42.
511. Plaintiffs' closing submissions (25/11/20), paragraphs 150-155; 3FASOC, paragraphs 43-50 and prayer 1. The plaintiffs pleaded claims for aggravated and exemplary damages were not mentioned in closing submissions and are therefore assumed to have been abandoned.
512. Plaintiffs' closing submissions (25/11/20), paragraph 155.
513. Plaintiffs' closing submissions (25/11/20), paragraphs 150-154.
514. Plaintiffs' closing submissions (25/11/20), paragraphs 150-155; 3FASOC, paragraphs 43-50 and prayer 1.
515. Plaintiffs' closing submissions (25/11/20), paragraphs 156-161; 3FASOC, paragraphs 51-65 and prayers 1 and 4. The plaintiffs pleaded claims for aggravated and exemplary damages were not mentioned in closing submissions and are therefore assumed to have been abandoned.
516. 3FASOC, paragraphs 66-71 and prayer 5.
517. FAD, paragraph 2.
518. FAD, paragraph 1 (admitting paragraph 19 of the 3FASOC) and paragraphs 7 and 31.
519. FAD, paragraph 1 (admitting paragraphs 23-24 and 26 of the 3FASOC) and paragraphs 7 and 31.
520. FAD, paragraphs 5, 7 and 31.
521. FAD, paragraph 3 (denying paragraphs 20-22 of the 3FASOC).
522. FAD, paragraph 4.
523. FAD, paragraph 8.
524. For example, Ali (8/10/15), paragraphs 12-13 and 22-26 [CB1/182-183]; Orlando (18/8/18), paragraph 42 [CB2/468]; T286.4-286.22.
525. Plaintiffs' submissions (25/11/20), paragraph 128.
526. Orlando 8/9/17, paragraph 70 (first two sentences). These sentences were not read by the defendants but were tendered by the plaintiffs: Exhibit 36, item 5.
527. T607.29-607.34.
528. Plaintiffs' closing submissions (25/11/20), paragraphs 110-112.
529. Defendants' closing submissions (28/11/20), paragraph 402-409.
530. Plaintiffs' closing submissions in reply (30/11/20), paragraph 38; T858.32-858.45.
531. FAD, paragraph 3.
532. FAD, paragraphs 16-19; T901.20-901.27, 939.27-939.44.
533. FAD, paragraphs 21, 25 and 26; T939.45-940.15.
534. Citations omitted.
535. T852.35-852.38.
536. See [35], [89], [125], [137] and [154] above.
537. See [94], [96]-[99] and [123] above. I note that it was put to Orlando in cross-examination, presumably on instructions from Ali, that Orlando told Ali in 2002 that he (Orlando) would make the mortgage repayments whilst the property was in Orlando's name: T699.11-699.25.
538. See [123]-[125], [149]-[151], [158]-[159] above.
539. See [96]-[99] above.
540. See [147155]-[157] above.
541. See [152]-[154] above.
542. See [169]-[161] and [166]-[183] above.
543. See [226]-[228] above.
544. See [211]-[213] above.
545. See [209] and [286] above.
546. See [283]-[284] and [287] above.
547. See [329] and [353]-[354] above.
548. See [50] above.
549. See [153]-[154] above.
550. See [347]-[350] above.
551. See [346] above.
552. T486.1-486.6.
553. See [68] above.
554. See [58] above.
555. See [61]-[67] above.
556. See [202]-[203] above.
557. See [279] above and T650.8-651.8, 663.30-664.25.
558. T638.32-639.26.
559. For example, T606.31-607.35, 644.4-645.26.
560. For example, T617.28-620.17, 635.36-637.17, 640.21-640.35.
561. See [221] above.
562. Plaintiffs' closing submissions (25/11/20), Appendix 2.
563. See [349] above.
564. Plaintiffs' closing submissions dated 25 November 2020; defendants' closing submissions dated 28 November 2020; plaintiffs' closing submissions in reply dated 30 November 2020; defendants' additional closing submissions dated 30 November 2020; plaintiffs' submissions in reply to defendants' additional closing submissions dated 2 December 2020; both parties' oral submissions made on 2 and 3 December 2020; defendants' further closing submissions dated 10 December 2020; plaintiffs' submissions in reply to the defendants' further closing submissions dated 11 December 2020.
565. Plaintiffs' closing submissions (25/11/20), paragraphs 2-12.
566. Plaintiffs' closing submissions (25/11/20), paragraphs 16-60.
567. Defendants' closing submissions (28/11/20), paragraphs 227-252, 288-292; T872.49-873.17.
568. T876.8-876.46.
569. T872.49-873.17.
570. Plaintiffs' closing submissions (25/11/20), paragraph 19.
571. See [61]-[67] above.
572. Plaintiffs' reply submissions (30/11/20), paragraphs 5-7.
573. See [67] above.
574. Defendants' closing submissions (28/11/20), paragraphs 17-20, 238-240.
575. See [55]-[59] above.
576. See [58] above.
577. Defendants' closing submissions (28/11/20), paragraph 326.
578. See [119] above.
579. See [118] above.
580. T826.30-826.35.
581. See [120] above.
582. T826.36-826.40.
583. T958.15-962.10.
584. Exhibit 3, p 7171; Victoria Carollo (17/9/18), paragraph 2 (tab 80); Vilma (1/9/17)
585. T699.6-699.35.
586. Defendants' written closing submissions (10/12/20), paragraphs 2-10; plaintiffs' written closing submissions (11/12/20), paragraphs 1-5.
587. T241.49
588. T233.33-223.40.
589. T718.32.
590. T686.24.
591. Ali 9/5/19, paragraph 78.
592. Ali 9/5/19, paragraph 79.
593. See [120] above.
594. T836.16-839.16.
595. Plaintiffs' closing submissions in reply (30/11/2020), paragraph 22.1.
596. Calculated as the $808,000 contract price less the amount paid to discharge the 2001 mortgage and the total amount of either $50,000 or $110,000 lent to Ali by Vilma and Orlando during 2001 and 2002: see plaintiff's closing submissions in reply (30/11/20), paragraph 20.1
597. T827.40-827.50, 831.16-831.41, 833.40, 837.39-837.56, 961.35-962.10.
598. T718-719.
599. See [113] above.
600. See [110] above.
601. T876.8-878.8, 888.25-889.35.
602. See [94] above.
603. See [96]-[99] above.
604. See [121] above.
605. See [98]-[99] above.
606. Plaintiffs' closing submissions (25/11/20), paragraph 35 and Appendix 3; plaintiffs' closing submissions in reply (30/11/20), paragraphs 22.5-22.7.
607. See [336] above.
608. See [339] above.
609. See [342] above.
610. See [344] above.
611. See [343]-[345] above.
612. Ali 27/5/15, paragraph 53.
613. T405.49-405.50.
614. See [128] above.
615. Defendants' closing submissions (28/11/20), paragraphs 60-63.
616. T246.43-249.28.
617. See [126] above.
618. See [314]-[315].
619. See [184] above.
620. See [158]-[186] above.
621. Plaintiffs' closing submissions (25/11/20), paragraph 43-50; defendants' closing submissions (28/11/20), paragraphs 359-378; T842.41-844.20, 814.25-816.29, 891.6-900.50, 902.41-904.12; see also [383] above.
622. T962.20-962.35.
623. The submissions referred to at [438] above and, in addition, the parties' written submissions received between 4 December 2020 and 18 December 2020 concerning the defendants' application for leave to amend the defence.
624. See [199], [208]-[209] and [211]-[214] above.
625. Corporations Act 2001 (Cth), s 198B.
626. Plaintiffs' closing submissions (25/11/20), paragraphs 140-149.
627. Plaintiffs' closing submissions (25/11/20), paragraph 155.
628. Plaintiffs' closing submissions (25/11/20), paragraphs 150-154.
629. Plaintiffs' closing submissions (25/11/20), paragraph 157.
630. Plaintiffs' closing submissions (25/11/20), paragraphs 110-112, 128-129.
631. See [147]-[154] and [158]-[159] above.
632. Ali (27/5/2015), paragraph 67; Ali (9/5/19), paragraphs 9 to 11.
633. Affidavit of Mr Cong Hoang (10/5/19).
634. See [208]-[209] and [211]-[213] above.
635. See [81] above.
636. See [205]-[207] above.
637. See [271] and [288]-[290] above.
638. See [199] and [272] above.
639. See [199] above.
640. See [208]-[214] above.
641. See [272] and [286]-[288] above.
642. See [279] above.
643. See [291] above.
644. See [291] and [356] above.
645. See [311] above.
646. See [410] above.
647. FAD, paragraphs 16-19; T901.20-901.27, 939.27-939.44.

Amendments 11 March 2022 - Coversheet 15 March 2022 - At [543] amend 'The Cleaning Doctor's defence' to read 'the defendants' defence' pursuant to reg 36.17 of the Uniform Procedure Rules (2005). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 March 2022