Al Shaikhly v Haeri

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2022 05400

BETWEEN:

MOHAMMAD AL SHAIKHLY & ANOR (according to the attached Schedule)	Plaintiffs
v
RASHA HAERI	Defendant

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February 2025
DATE OF JUDGMENT:	25 March 2025
CASE MAY BE CITED AS:	Al Shaikhly v Haeri
MEDIUM NEUTRAL CITATION:	[2025] VSC 137

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PRACTICE AND PROCEDURE — Reinstatement of proceeding and summary judgment against the first defendant under Settlement Deed — Uncertainty about content of Settlement Deed due to amendments — Held, parties were ad idem as to final terms of Settlement Deed — Application for summary enforcement of Settlement Deed as amended and judgment in favour of plaintiffs granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms C Skeoch, solicitor	Aitkin Partners
For the Defendant	Mr S Stuckey KC of counsel	Appian Lawyers

TABLE OF CONTENTS

Introduction................................................................................................................................... 1
Materials relied upon................................................................................................................... 2
Circumstances surrounding the execution of the Second Deed............................................ 2
Legal principles relevant to summary enforcement of settlement agreements................... 7
Ms Haeri’s submissions.............................................................................................................. 10
Consideration.............................................................................................................................. 12
Conclusion.................................................................................................................................... 15

HIS HONOUR:

Introduction

This judgment is about the application by Mohammad Al Shaikhly and Zainab Al Shaikhly (the Al Shaikhlys) to reinstate the proceeding against Ms Rasha Haeri for the purpose of entering judgment against her in the amount of $480,000, the settlement sum agreed under a deed of settlement (Deed).

The proceeding has a rather lengthy history.

On 23 December 2022, the Al Shaikhlys commenced a proceeding against Rasha Haeri and Shokriah Saheb Achanghal involving an alleged breach of a loan agreement between Mohammad Al Shaikhly, as lender, and Rasha Haeri, as borrower. Ms Achanghal did not enter an appearance and, on 13 February 2023, the Court gave judgment against Ms Achanghal in favour of the Al Shaikhlys. On 16 March 2023, the Al Shaikhlys and Ms Haeri entered into a deed of settlement (First Deed) to resolve the proceeding under which Ms Haeri was to pay the Al Shaikhlys the sum of $815,000. Ms Haeri did not pay.

On 6 April 2023 the Al Shaikhlys filed a summons seeking judgment against Ms Haeri in the sum of $800,000, on the basis of the First Deed. Ms Haeri defended the Al Shaikhlys summons, alleging that she had entered into the First Deed under duress. The proceeding was set down for trial and referred for mediation. At the mediation the Al Shaikhly’s and Ms Haeri and Ms Achanghal entered into the furtherDeed under which Ms Haeri and Ms Achanghal agreed to pay the Al Shaikhlys the sum of $480,000 in settlement of the proceeding. Clause 3(b) of this Deed provided that, in event of default, the Al Shaikhlys could apply for the proceeding to be reinstated and for judgment in the terms of consent orders signed by the plaintiff (sic) and the first defendant and annexed to the Second Deed.

Pursuant to the Deed, on 3 October 2023, the Court made orders by consent dismissing the proceeding between the Al Shaikhlys and Ms Haeri with a right of reinstatement. Ms Haeri did not pay the settlement sum to the Al Shaikhlys. They have applied to reinstate the proceeding so that judgment may be entered against Ms Haeri.

Ms Haeri opposes the Al Shaikhlys’ application for reinstatement.

For the reasons that follow, I have decided to grant the Al Shaikhlys’ application for summary enforcement of the Deed as amended and grant judgment in favour of the plaintiffs in the amount of $480,000, inclusive of costs and interest.

Materials relied upon

In support of their application for reinstatement the plaintiffs relied upon the:

(a) affidavits of Bao Ngo filed on 17 October 2024 and 12 February 2025;

(b) affidavit of Mohammed Al Shaikhly filed 15 January 2025;

(c) affidavit of Zainab Al Shaikhly filed 15 January 2025;

(d) affidavit of Bingqi Zhou filed 12 February 2025; and

(e) written submissions filed on 6 December 2024 and 12 February 2025.

In opposition to the plaintiffs’ application, the first defendant relied upon the:

(a) affidavit of Rasha Haeri filed 5 February 2025;

(b) affidavit of Norrie Strintzos filed 5 February 2025; and

(c) written submissions, filed on 12 December 2024 and 5 February 2025.

Circumstances surrounding the execution of the Second Deed

The Al Shaikhlys’ solicitor, Mr Ngo gave evidence on affidavit about the circumstances in which the Deed was negotiated and executed. In fact Mr Ngo affirmed two relevant affidavits. The First Ngo Affidavit was affirmed on 17 October 2024 and the Second Ngo Affidavit was affirmed on 12 February 2025.

In the First Ngo Affidavit, Mr Ngo deposed that ‘the parties’ executed the Deed on 27 September 2023. His affidavit exhibited a copy of the Deed. The exhibited copy of the Deed names the parties to the deed as ‘Mohammad Al Shaikhly and Zainab Al Shaikhly (Plaintiffs)’ and ‘Rasha Haeri and Shokriah Achanghal (Defendants)’. Relevantly, this version of the Deed contained handwritten amendments to clauses 3(b) and 5.1. Clause 6 permitted the Deed to be executed in counterparts.

It is convenient to set out some relevant clauses of the Deed here.

Clause 2 of the Deed provides that ‘the Defendants’ must pay the sum of $480,000 to the ‘Plaintiffs’ on or before 26 September 2024.

Clause 3 is entitled Court Orders and, with the handwritten amendments (shown below as struck through text and underlined text) initialled by Ms Al Shaikhly, Ms Haeri and Ms Achanghal provides:

(a)The parties agree that, following the execution of this Deed, they will instruct their solicitors to sign consent orders dismissing the Proceeding with no order as to costs and a right of reinstatement.
(b)~~On the execution of the Deed by each of the parties~~ In the event of default, the parties consent to judgment being made in the Proceedings pursuant to Rule 59.06 in accordance with the consent to judgment annexed to this agreement (the Consent Judgment).
(c)The parties agree to instruct their solicitors to sign the Consent Judgment at the same time as signing this Deed. The Consent Judgment shall be held by the Plaintiffs’ solicitor in escrow to be released only in accordance with clause 3(d) below.
(d)If the Defendants do not comply with clause 2, the Defendants authorise the Plaintiffs’ solicitor to:
a) File the Consent Judgment with the Supreme Court of Victoria;
b)Take all steps necessary to obtain judgment on the terms envisaged by this Deed and the Consent Judgment;

c) Enforce the Consent Judgment.

Clause 5 is entitled Caveat. Including the handwritten amendments (shown below as struck through text and underlined text) initialled by Ms Al Shaikhly, Ms Haeri and Ms Achanghal, it provides:

5.1The Defendant acknowledges that, subject to clause 5.2 below, the Plaintiffs will maintain the Caveat over the Property until the ~~judgment sum~~ settlement amount is paid in full.
5.2If the Defendants request that the Plaintiffs provide a caveators consent for the purposes of the Defendants subdividing the Property, the Plaintiffs shall immediately and in any event no later than 7 days provide such consent save that this clause does not require the Plaintiffs to remove the caveat.

In addition to the handwritten initialled amendments, this version of the Deed was executed by Ms Shaikhly whose signature is witnessed by Mr Ngo. Both Ms Haeri and Ms Achangal’s signatures appear on the execution pages of the document, witnessed by Mr Brian Burton. Mohammad Al Shaikhly’s signature does not appear on this version.

The consent order annexed to the Deed names the Al Shaikhlys as plaintiffs and Ms Haeri as defendant. The order is signed by Mr Ngo on behalf of the Al Shaikhlys and Mr Burton on behalf of Ms Haeri. Both of these signatures are dated 27 September 2023. The substance of the order is as follows:

By consent, the Court Orders that:
1.There be judgment in favour of the Plaintiffs in the amount of $480,000.00 inclusive of costs and interest.

In the Second Ngo Affidavit, Mr Ngo deposes that he attended the mediation on 27 September 2023. The mediation was conducted in a hybrid fashion with Ms Al Shaikhly, Ms Haeri and Ms Achanghal attending in person and Mr Al Shaikhly attending virtually using Zoom.

Mr Ngo said that the defendants’ solicitor proposed amendments to clauses 3(b) and 5.1. of the Deed during the course of the mediation, which changes were mutually agreed by all parties. The defendant’s counsel agreed with the Al Shaikhlys’ counsel and Mr Ngo that Mr Al Shaikhly’s agreement to the amendments would be evidenced by Mr Al Shaikhly’s execution of the Deed which had been sent to him via DocuSign together with his confirmation by email of his agreement to the amendments.

Mr Ngo sent an email to Mr Al Shaikhly at 7.47pm seeking his consent to the proposed amendment to paragraph 3(b) to say ‘in event of default’. Mr Al Shaikhly responded at 7.48pm with ‘Yes I agree’. Mr Ngo sent Mr Al Shaikhly a further email at 8:10pm seeking confirmation of his agreement to the proposed change of the words ‘judgment amount’ to ‘settlement sum’ in clause 5.1. At 8:11pm Mr Al Shaikhly responded with ‘I agree’.

Mr Ngo deposed that once the Deed was executed by all parties and the consent orders executed and annexed, copies were provided to the attending parties and the Deed was read aloud to Ms Haeri by her counsel in the presence of her solicitor, Mr Burton and Mr Ngo.

On 28 September 2023, the day following the mediation, Mr Burton emailed Mr Ngo attaching proposed consent orders dismissing the proceeding with a right of reinstatement, with no order as to costs, signed by Mr Burton for Ms Haeri. Mr Burton’s email requested that Mr Ngo sign the proposed orders and file them with the Court.

On 3 October 2023 the Court wrote to Mr Burton and Mr Ngo requesting their confirmation be given that the parties did not require the Court to deal with outstanding costs applications before the consent dismissal orders would be made. Both Mr Ngo’s office and Mr Burton responded the same day, both indicating they did not require the Court to deal with outstanding costs applications. On receiving those confirmations the Court made the consent orders dismissing the proceeding.

Bingqi Zhou is a solicitor at Aitken Partners, the solicitors for the Al Shaikhlys. Ms Zhou affirmed an affidavit on 11 February 2025 in which she deposed that at 7.36pm on 27 September 2023 she emailed Mr Al Shaikhly the Deed to execute and uploaded the Deed to DocuSign. Ms Zhou said that at 7:45pm she received the executed Deed from Mr Al Shaikhly, which she sent to Mr Ngo to print and collate with the counter-executed Deed. Ms Zhou’s affidavit exhibited a copy of the unamended Deed ‘DocuSigned’ by Mr Al Shaikhly along with the DocuSign certificate of completion showing a timestamp of execution of 2.44am, being presumably the local time at Mr Al Shaikhly’s location.

Mr Al Shaikhly affirmed an affidavit on 15 January 2025 in which he deposed that he attended the mediation on 27 September 2023 virtually and executed the Deed via DocuSign. Mr Al Shaikhly deposes that as at the date of his affidavit neither he, nor Ms Al Shaikhly nor their solicitors had received the settlement sum. Mr Al Shaikhly’s affidavit exhibits a copy of the Deed executed by the parties. This version of the Deed contains the handwritten amendments initialled by Ms Al Shaikhly, Ms Haeri and Ms Achanghal. Interleaved between the body of the Deed and the execution page containing Ms Al Shaikhly’s signature is the page of the deed DocuSigned by Mr Al Shaikhly. The certificate of completion then appears after pages on which the Deed was executed by Ms Al Shaikhly, Ms Haeri and Ms Achanghal and the signed consent orders for judgment.

Ms Al Shaikhly affirmed an affidavit on 15 January 2025 in which she deposed that she attended the mediation on 27 September 2023 in person where she executed the Deed and Mr Al Shaikhly executed the Deed electronically via DocuSign. Ms Al Shaikhly deposed that neither she, nor Mr Al Shaikhly nor their solicitors has received the settlement amount. The jurat to Ms Al Shaikhly’s affidavit shows that Ms Al Shaikhly signed the affidavit via an audiovisual link and the affidavit taker has used a scanned copy of the affidavit rather than the original. During the course of the hearing of the reinstatement application counsel for Ms Haeri drew the Court’s attention to the fact that the jurat did not include a certificate from an interpreter, notwithstanding that in the days before the hearing the solicitor for the Al Shaikhlys had written to my chambers indicating that Ms Al Shaikhly would need an interpreter if required for cross-examination, ‘as she does not understand and speak English sufficiently to enable her to understand and make adequate replies to questions, as her native language is Arabic’.

Ms Haeri affirmed an affidavit on 5 February 2025 in which she deposed that she attended the mediation at the conclusion of which she was handed a copy of the Deed exhibited to her affidavit. This version contains the handwritten and initialled amendments to clauses 3(b) and 5.1. It includes the execution pages signed by Ms Al Shaikhly, Ms Haeri and Ms Achanghal but does not include Mr Al Shaikhly’s DocuSigned execution of the Deed.

Mr Norrie Strintzos, a solicitor at Appian Lawyers, solicitors for Ms Haeri, affirmed an affidavit on 5 February 2025 in which he deposed that on 18 December 2024 he was copied into an email sent to my Chambers by Mr Ngo, attaching a document which Mr Ngo stated the Al Shaikhlys intended to rely upon. Mr Strintzos’ affidavit exhibited a copy of that document which includes a version of the Deed without the handwritten amendments to clauses 3(b) and 5.1. It includes Mr Al Shaikhly’s DocuSigned execution page and the certificate of completion. It does not include the execution pages for the other signatories to the Deed.

Mr Stintzos also deposed that on 23 December 2024 he sent an email to Mr Ngo seeking consent from his client in order to register a s 173 Agreement over the certificate of title to 13 Norcal Court, Greenvale. Mr Strintzos sent Mr Ngo follow up emails on 9 January 2025 and 13 January 2025. On 16 January 2025 Mr Strintzos received an email from Mr Ralph Davies of Aitken Partners confirming they were seeking their client’s instructions and would respond in due course. As at 5 February 2025, Mr Strintzos was yet to receive a substantive response.

Legal principles relevant to summary enforcement of settlement agreements

In Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd (Roberts),[1] the Court considered whether it is permissible for the Court to make orders enforcing a settlement agreement in the existing proceeding or whether the party seeking to enforce the settlement agreement is required to commence a separate proceeding.[2] The Court also considered the principes governing the exercise of the Court’s jurisdiction to enforce a settlement agreement summarily.[3] Smith J after reviewing the authorities and the history of the courts equitable jurisdiction to enforce a settlement agreement summarily, observed that while the passing of the Judicature Act meant that the Court should be able to exercise its summary jurisdiction more freely, the equitable principles relevant to the Court’s power to order specific performance should govern the exercise of the Court’s jurisdiction to enforce settlement agreements.[4] Smith J thought this was the case even where the proceeding the subject of the settlement agreement originated in the Courts’ common law jurisdiction.[5]
[1][1956] VLR 555. Recently cited in Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497 (Daly AsJ).
[2]Roberts 562.
[3]Ibid 561-562.
[4]Ibid 565-566.
[5]Ibid 566.

Smith J identified the critical question for the Court as being whether the Court can be satisfied that justice can be done by summary enforcement of a settlement agreement.[6] The extent to which the settlement agreement involved extraneous matters, how substantial the questions to be determined, whether issues of credibility are likely to arise and whether pleadings and discovery are desirable were all factors identified by Smith J as relevant to the question of whether justice can be done.[7]
[6]Ibid 562.
[7]Ibid 564.

Smith J then proceeded to identify a number of factors relevant to whether the Court should grant an application for enforcement of a settlement agreement. These included:

(a) whether the settlement agreement involved matters extraneous to the proceeding;

(b) whether the settlement agreement related solely to the conduct, stay or dismissal of the proceeding and involved the grant of the whole or part of the relief claimed in the proceeding;

(c) whether the settlement agreement contained an express provision to the effect that such an enforcement order could be made in the proceeding;

(d) whether urgent action was required;

(e) whether the party seeking to enforce the agreement had outstanding obligations to the other party to the agreement;

(f) whether there was a substantial question to be determined as to the terms of the agreement or its validity, such that a full trial was warranted.[8]

[8]Ibid 562-563.

The principles in Roberts have been referred to and applied on numerous occasions in this Court. In Seachange Management Pty Ltd v Pital Business Pty Ltd,[9] the Court of Appeal stated:

In summary, therefore, the net effect of the authorities to this point seems to be that, although the power summarily to enforce a compromise is discretionary and is wider now that once was the case, it is not to be invoked unless the court is “clearly satisfied that justice can be done”; and whether justice can be done is a question of degree. Consistently with the equitable origins of the power, one must weigh among other competing considerations the extent to which enforcement would involve extraneous matters, how substantial the questions to be determined as a precursor to enforcement may be, and procedural considerations like the desirability of pleadings and discovery and substantial cross-examination.

[9](2009) 23 VR 396, [40] (Maxwell P and Nettle JA).

In Bell v Knight 34 Langdon Road Pty Ltd,[10] Daly AsJ surveyed the authorities and listed the following other matters relevant to the Court’s consideration of whether justice can be done:
[10][2022] VSC 497, [57].

(a)whether the settlement agreement concerned included a term allowing the reinstatement of the proceeding and the entry of judgment upon default;

(b) whether all interested parties were before the court;
(c)whether the facts were uncontested and/or whether there was any dispute about quantum, and, to the extent there were such disputes, whether the resolution of those disputes turned upon the credibility of witnesses;
(d)whether requiring the issue of a new proceeding would cause further delay and expense; and
(e)whether there has been any unexplained delay on the part of the applicant for summary enforcement in seeking relief.

[citations omitted].

Ms Haeri’s submissions

Ms Haeri opposed the Al Shaikhly’s application on three main bases. The first was that the Court could not be satisfied that justice can be done in circumstances where the Al Shaikhly’s case about how they acquired the rights they seek to summarily enforce keeps changing. The second basis of opposition was that the documents sought to be relied upon by the Al Shaikhlys raised extraneous issues that made summary enforcement procedurally inappropriate. The third basis was that the Al Shaikhlys were not, at the time of the their application for summary enforcement, ready, willing and able to perform their obligations under the Deed. Each of these bases requires some elaboration.

Counsel for Ms Haeri submitted that the Al Shaikhlys had provided a variety of different cases in the course of prosecuting their reinstatement application such that the Court could not be satisfied they had established a proper basis for summary enforcement. Counsel relied on the following to make good this argument:

(a) in the First Ngo Affidavit, Mr Ngo said that the parties executed a deed of settlement but the Deed exhibited to that affidavit was not signed by all parties because it did not include Mr Al Shaikhly’s signature, nor any explanation for its absence;

(b) Ms Al Shaikhly deposed that she executed the Deed personally and Mr Al Shaikhly executed the Deed via DocuSign. Counsel submitted Ms Al Shaikhly’s evidence was therefore that both she and Mr Al Shaikhly had both signed the same form of the document;

(c) Mr Al Shaikhly’s evidence was that he executed the Deed via DocuSign and Ms Al Shaikhly executed the Deed personally. Counsel submitted that this evidence again suggested that they were both executing the same document because there was no suggestion that Mr Al Shaikhly was referring to two different versions and the version exhibited to Mr Al Shaikhly’s affidavit contains the hand written amendments and the signatures of all parties;

(d) the version of the Deed Mr Ngo sent by email to my chambers on 18 December 2024 did not contain the handwritten amendments and was DocuSigned by Mr Al Shaikhly but not the other parties;

(e) the difference between the version of the Deed exhibited to Mr Al Shaikhly’s affidavit and the version sent to the Court on 18 December 2024 leads to the inescapable inference that someone, when preparing Mr Al Shaikhly’s affidavit has combined parts of two documents into a single exhibit.

Counsel submitted that apart from being inappropriate, this interleaving of two separate documents had led the parties to dispute ‘whether or not the parties were ever ad idem as to the final form of the agreement’. It was clear on the evidence that Mr Al Shaikhly, while deposing to signing the same document as the other parties to the Deed, did not. Contrary to what the Al Shaikhlys deposed in their affidavits, the parties did not sign the same deed. According to counsel, these unexplained circumstances made very clear why this was not an appropriate case for summary enforcement of the deed. Counsel further submitted that given the Al Shaikhlys seemed to concede the parties to the Deed never all executed a deed in the same format, the Al Shaikhlys should be required to plead the agreement they seek to rely upon so that Ms Haeri is not left guessing how the Al Shaikhlys put their claim to a completed agreement.

In relation to the second basis of opposition, the inclusion of extraneous matters in the Deed, counsel submitted that clause 2 of the deed requires both Ms Haeri and Ms Achanghal to pay the settlement sum and so any proceeding for summary enforcement of the Deed must include Ms Achanghal as a party. Counsel submitted that the proceeding should be stayed pending Ms Achanghal’s joinder because to proceed in her absence would mean that Ms Achanghal would not be bound by any finding of the Court that there is an obligation to pay.

Counsel’s submitted that the Al Shaikhlys were ineligible to enforce the Deed because they were not ready, willing and able to perform their obligations under it. Specifically counsel referred to Mr Strintzos’ evidence that the Al Shaikhlys had not, despite a request made in December 2024 and repeated in January 2025, given their consent to registration of a s 173 Agreement over the certificate of title to 13 Norcal Court, Greenvale, as required by clause 5 of the Deed.

It is convenient to set out here Ms Skeoch’s, solicitor for the Al Shaikhlys, response to this aspect of Ms Haeri’s counsel’s submission. Ms Skeoch submitted that the Al Shaikhlys’ obligations under clause 5.2 of the Deed had not been enlivened. Ms Skeoch submitted that the Deed did not require the Al Shaikhlys to consent to the s 173 Agreement, which was a private agreement between the registered proprietor of the land and the relevant authority but rather, as caveators, to consent to the executed s 173 Agreement being lodged through the PEXA system. There was no evidence before the Court that such an agreement had been executed and was ready for lodgement. According to Ms Skeoch, this meant there was no evidence before the Court that the Al Shaikhlys were not ready, willing and able to comply with their obligations under the Deed. Additionally, Ms Skeoch noted that the request for the Al Shaikhlys consent had come after Ms Haeri had failed to pay the settlement sum by the due date.

For the sake of completeness I note that counsel for Ms Haeri made some submissions about the absence in Ms Al Shaikhly’s affidavit, of evidence that the contents of the affidavit had been translated or interpreted for her prior to her executing the document. These submissions did not seem to rise so high as to suggest that the Court should disregard that evidence. As I understood the submission it was put that this was a further troubling aspect of the state of the evidence before the Court about which version of the Deed the parties had agreed at the mediation.

Consideration

In my view, counsel for Ms Haeri overstated the extent of uncertainty about the content of the agreement made on 27 September 2023. I am satisfied that the parties were ad idem as to the final terms of the Deed. I have reached this view for the following reasons.

First, the evidence taken as a whole, supports the mediation having occurred with Ms Al Shaikhly, Ms Haeri and Ms Achanghal in physical attendance and Mr Al Shaikhly in virtual attendance. At the mediation, the legal representatives of the Al Shaikhlys and Ms Haeri and Ms Achanghal agreed that Mr Al Shaikhly would execute the Deed electronically and evidence his consent to the amendments by email, which he did.

Second, Ms Haeri does not dispute that she executed the Deed with its handwritten amendments. Nor does she dispute that she was subject to the obligation to pay the settlement sum by 26 September 2024. Ms Haeri’s evidence is limited to confirming her attendance at the mediation and her receipt at the conclusion of the mediation of the handwritten amended Deed executed by the three parties in physical attendance. Further, Ms Haeri does not dispute that she has not paid the settlement amount.

Third, there is no evidence refuting Mr Ngo’s evidence that at the mediation the parties agreed that Mr Al Shaikhly’s agreement to the amendments would be evidenced by his emails expressing his consent.

Fourth, the only possible person who might argue he did not agree to the handwritten amended version of the Deed is Mr Al Shaikhly, whose signature does not appear on that version of the Deed. Mr Al Shaikhly does not make that assertion. Indeed, he seeks to enforce the Deed in its amended form.

Fifth, Ms Haeri’s solicitor, in reliance on the Deed, notwithstanding that he must have known Mr Al Shaikhly had not executed the handwritten amended version, sought to enforce the Deed the day after the mediation by requesting Mr Ngo sign and file consent orders dismissing the proceeding.

Given my view that the weight of the evidence supports the Al Shaikhlys case that all parties agreed to the terms of the Deed, to require pleadings would, in my view, cause unnecessary delay and cost to all parties.

I am not satisfied that it is necessary to stay this proceeding until Ms Achanghal is joined. While I accept that in any future contribution proceeding by Ms Haeri against Ms Achanghal, Ms Haeri could not rely on a finding made by this Court as to Ms Achanghal’s liability to pay the settlement sum under the Deed, in enforcing the Deed, the Court is not asked to and it is not necessary for this Court to make findings against Ms Achanghal. Ms Achanghal’s liability to the Al Shaikhlys is the result of the default judgment entered against her on 13 February 2023. There was no suggestion that Ms Haeri, by her execution of the Deed, is not liable to pay the Al Shaikhlys the settlement sum herself. The Al Shaikhlys only seek to enforce the Deed against Ms Haeri.

Under s 173 of the Planning and Environment Act 1987 (Vic) a relevant responsible authority may enter into an agreement with a land owner. Such an agreement can be recorded on a property title to bind future owners and occupiers of the land. The obligation on the Al Shaikhlys under clause 5.2 of the Deed is to provide a caveators consent for the purposes of the ‘Defendants’ subdividing the property, within 7 days of a request being made. Mr Strintzos’ affidavit exhibited correspondence he sent to Mr Ngo on 23 December 2024 in the following terms:

Our client is in the process of lodging a section 173 Agreement on the title. Could you please provide consent from the caveator in order for our client to attend to the registration.

I do not accept Ms Skeoch’s submission that the effect of the request was that the Al Shaikhlys were being asked to consent to the s 173 Agreement itself rather than its registration. The evidence of the request for consent is uncontested and there is no evidence from the Al Shaikhlys about their instructions in relation to the request nor, if instructions have not been provided, why not. However I accept that the original request was made by Mr Strintzos in the days leading to Christmas when many lawyers are on holiday. By this time the Al Shaikhlys had filed their application for enforcement of the Deed on the basis that Ms Haeri had not paid the settlement sum. I also accept that Mr Strintzos’ request did not include a copy of the executed s 173 Agreement nor any concrete timeframe for its registration. While the Al Shaikhlys’ lack of consent is clearly relevant to the exercise of the Court’s discretion, in my view, when considered in all the circumstances of this case, I am not satisfied that it is sufficient to mean that summary enforcement is inappropriate.

It follows that I am satisfied that justice can be done by enforcing the Deed as against Ms Haeri.

Conclusion

For the reasons given above, I have decided to grant the Al Shaikhlys’ application for summary enforcement of the Deed as amended. I will order that there be judgment in favour of the plaintiffs in the amount of $480,000 inclusive of costs and interest.

My preliminary view, subject to any submissions the parties wish to make, is that costs should follow the event such that Ms Haeri should pay the Al Shaikhlys’ costs of the summons filed 17 October 2024 on a standard basis. I request the parties confer on the question of costs. If the parties are unable to reach agreement on costs within 7 days of the date of this judgment, the proceeding will be relisted for oral submissions on costs.

SCHEDULE OF PARTIES

S ECI 2022 05400
BETWEEN:
MOHAMMAD AL SHAIKHLY	First Plaintiff
ZAINAB AL SHAIKHLY	Second Plaintiff
- v -
RASHA HAERI	First Defendant
~~SHOKRIAH SAHEB ACHANGHAL~~	~~Second Defendant~~

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Citations

Al Shaikhly v Haeri [2025] VSC 137

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Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497

[2025] VSC 137

25 March 2025