Ghaemi v Opal Capital Pty Ltd

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
GHAEMI & ORS v OPAL CAPITAL PTY LTD & ANOR
[2023] SASC 153
Judgment of the Honourable Justice Stein
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT - IN ACTIONS FOR SPECIFIC PERFORMANCE
EQUITY - EQUITABLE REMEDIES - SPECIFIC PERFORMANCE - GENERALLY
BANKING AND FINANCE - INSTRUMENTS - CHEQUES
The applicants and the respondents resolved proceedings at mediation and entered into a deed of settlement. The respondents did not perform some obligations under the deed. The applicants commenced these proceedings seeking summary enforcement of the deed. The application was defended. Mr Aeini asserted the applicants were in breach of obligations under the deed by failing to make the last instalment payment by the required deadline as a consequence of which the respondents did not have to comply with their remaining obligations under the deed.
Held, granting the application for summary enforcement of the deed:
1.The respondents do not have a reasonable basis for defending the claim for breach of deed. The applicants paid the fourth instalment within the time required by the deed. The deed did not require payment to be made by EFT and the cheque was tendered and accepted before the deadline.

2. It is appropriate in the circumstances to grant specific performance.
Corporations Act 2001 (Cth) ss 175, 1322(4); Uniform Civil Rules 2020 (SA) r 144.2, referred to.
National Australia Bank Ltd v KDS Construction Services Pty Ltd (1987) 163 CLR 668; Tilley v Official Receiver in Bankruptcy (1960) 103 CLR 529; Fuji Xerox Australia Pty Ltd v Thoi [2018] VSC 483; Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117; General Credits (Finance) Pty Ltd v Fenton Lake Pty Ltd [1985] 2 Qd R 6; Wardle v Agricultural & Rural Finance Pty Ltd; Agricultural & Rural Finance Pty Ltd v Brakatselos [2012] NSWCA 107; George v Cluning (1979) 28 ALR 57; Homes v Smith [2000] Lloyd’s Rep Bank 139; Petroleo Brasileiro SA v ENE Kos 1 Ltd (2009) EWCA Civ 1127; In the matter of Alon Pty Ltd [2021] NSWSC 1021, considered.

GHAEMI & ORS v OPAL CAPITAL PTY LTD & ANOR
[2023] SASC 153
Civil: Application

STEIN J: After successfully resolving proceedings CIV-22-012592 (the “primary proceedings”) at mediation, the parties have fallen into further dispute giving rise to this application for summary judgment. The primary proceedings were settled by the parties on the entry on 16 March 2023 into a Deed of Settlement and Release (“Deed”). After part performance of some of the obligations contained in the Deed, the respondents did not perform other specified obligations. The applicants assert the respondents are in breach of the Deed. The respondents deny any breach and contend the applicants failed to comply with the provisions of the Deed resulting in termination of the Deed.
This action CIV-23-010064 (the “new proceedings”) was commenced seeking, among other things, enforcement of the terms of the Deed. The applicants to the new proceedings (the “Ghaemi parties”) seek summary judgment in respect of claims made in the statement of claim in the new proceedings apart from the question of any damages flowing from the alleged breaches of the Deed.
I have determined to grant summary judgment and make an order for specific performance. I set out below my reasons for this conclusion.
Background
The primary proceedings arose out of disputes between the parties concerning joint ventures to construct dwellings being undertaken by two companies, 244 Sturt Road Pty Ltd (“244 Co”) and 301 Sturt Road Pty Ltd (“301 Co”) at 244 Sturt Road and 301 Sturt Road in Marion. A number of third party purchasers entered into sale and purchase contracts with 244 Co and 301 Co to purchase dwellings. At the time the primary proceedings were commenced, construction of the dwellings on one property had commenced. The disputes in relation to the joint ventures impeded the ability of the parties to progress the developments to the potential detriment of the third party purchasers. Accordingly, the proceedings were listed for an urgent trial to commence in April 2023. The trial did not proceed as a result of the settlement.
The terms of the Deed addressed not only the resolution of the primary proceedings, but also the resolution of District Court proceedings[1] between Ipad Building Services Pty Ltd (“Ipad”) and Opal Capital Pty Ltd (“Opal”) (the “District Court proceedings”). It also resolved disputes notified in writing, but not the subject of proceedings, relating to a development project to be undertaken by Sturt Developments Pty Ltd (“Sturt Developments”) on two properties known as the 309 Property and the 882 Property (the “Sturt Developments dispute”).
[1] CIV-22-011801.
On 27 July 2023, the Ghaemi parties filed an application in the primary proceedings seeking orders to enforce the terms of the Deed. The Ghaemi parties asserted that they had fully complied with their obligations pursuant to the Deed but the respondents, while having part performed certain aspects, had refused to comply with their obligations under the Deed. The Ghaemi parties sought orders for enforcement in the primary proceedings by summary relief, submitting that the respondents’ default was causing and continuing to cause substantial prejudice to them. The Ghaemi parties contend there was sufficient basis for the Court to enforce the settlement in the primary proceedings. However, in circumstances in which the Deed addressed disputes beyond those the subject of the primary proceedings, the Ghaemi parties chose to issue the new proceedings to enforce the Deed.
While the respondents, Mr Aeini and Opal (“Opal parties”), were represented by experienced solicitors and counsel during the proceedings and in the negotiation of the settlement terms, they ceased to act for the respondents after the application for enforcement was filed. Different solicitors acted for a short time but thereafter the respondents were self represented. I initially gave Mr Aeini, leave to appear on behalf of Opal on the basis he was a director of Opal. However, after I became aware that Mr Aeini ceased to be a director in July 2023, I gave Opal the opportunity to obtain legal representation, which it did. Opal did not make submissions on the application for summary judgment.
New proceedings
On 6 September 2023, the Ghaemi parties commenced the new proceedings against the Opal parties asserting they are in breach of the Deed. The Ghaemi parties seek to enforce the terms of the Deed and claim damages against the Opal parties for breach of contract.
Statement of claim
By the statement of claim, Ghaemi parties plead that they entered into the Deed to resolve disputes or potential disputes involving the parties in the District Court proceedings, the primary proceedings and in connection with the Sturt Developments dispute. The statement of claim pleads the Deed was subject to conditions precedent which are pleaded as having been satisfied on 30 March 2023.
The statement of claim pleads that by the Deed, the Ghaemi parties were obliged to make four instalment payments totalling $894,000 (“total sum”), such instalments to be paid into the trust account of Commercial & Legal (the solicitors then acting for the respondents). The statement of claim pleads the instalments were payable on 6 April, 20 April, 29 May and 28 June 2023 and the Deed allowed the Ghaemi parties a seven day grace period to remedy any default in payment of any instalment and permitted the Opal parties to elect to give notice rescinding the Deed in the event such default was not remedied. However, such notice was only capable of being given within a further period of seven days.
The statement of claim pleads that the Deed also provided that at a certain point in time, Ipad was required to consent to the Registrar-General releasing the sum of approximately $40,000 to Opal in connection with the District Court proceedings. The Ghaemi parties plead that on 5 June 2023, in part performance of the Deed, Ipad consented to the release to Opal of the sum of approximately $40,000 held by the Registrar-General.
The Ghaemi parties plead that they complied with the Deed by paying all four instalments and that payment of the last instalment, and thus the total sum, was effected on 5 July 2023 by acceptance by the respondents’ solicitors of a cheque delivered by hand on behalf of the Ghaemi parties.
The Ghaemi parties plead that the respondents breached the Deed in a number of respects including by failing to lodge a withdrawal of caveat “forthwith” over the 244 Property after receiving share transfer forms and an escrow transfer executed by Ms Ghaemi on 5 May 2023; by Mr Aeini failing to resign forthwith, or at all, as a director of each of Sturt Developments, 244 Co and 301 Co; by failing to forthwith, or at all, transfer to Ms Ghaemi for no consideration Opal’s shares in Sturt Developments and 301 Co and by failing forthwith, or at all, to lodge a withdrawal of caveats registered over the 301 Property, the 309 Property and the 882 Property.
The Ghaemi parties plead that the Opal parties’ breaches have prejudiced the Ghaemi parties’ ability to obtain bank finance including to undertake or complete developments of the various properties.
The Ghaemi parties seek orders including orders to compel the Opal parties to comply with obligations under the Deed.
Defence
The Opal parties admit a number of paragraphs of the statement of claim including the entry into the Deed, that the Deed was subject to conditions precedent and the satisfaction of the conditions precedent on 30 March 2023. The Opal parties admit that the Deed provided for instalment payments totalling $894,000 and admit the total sum was to be paid into the trust account of Commercial & Legal in instalments. However, the Opal parties say cl 1.2(h) of the Deed required payment of the instalments by electronic funds transfer only as payment was to be made to the BSB and account number of Commercial & Legal’s trust account.
The Opal parties admit that cl 1.4 of the Deed allowed the Ghaemi parties a seven day grace period to remedy any default in payment and permitted the Opal parties to elect to give notice rescinding the Deed in the event such default was not so remedied. The Opal parties plead that if default in payment of the total sum was not remedied within seven days then Mr Aeini would automatically resume being an active director of each of Sturt Developments, 244 Co and 301 Co. The Opal parties admit the payment of the first three instalments but do not admit that payment of the fourth instalment constituted full payment of the 244 Second Payment and the 301 Payment and part payment of the 309 Payment.
The Opal parties do not challenge the statement of claim to the extent it pleads that Mr Vozzo, solicitor for the Ghaemi parties, delivered a cheque by hand on behalf of the Ghaemi parties to Mr Graham of Commercial & Legal, who was at that time the solicitor for the Opal parties, but deny that Mr Graham accepted the cheque on behalf of the Opal parties and say that Mr Graham only received the cheque. The Opal parties deny that payment of the total sum was effected on 5 July 2023 by Mr Graham’s acceptance of the cheque. The Opal parties admit that Commercial & Legal banked the cheque on 6 July 2023 but deny that the cheque cleared into the trust account on 6 July and say it cleared on 10 July 2023. The Opal parties admit the pleaded obligations including the obligation to withdraw a caveat forthwith and to give Ms Ghaemi an executed share transfer form for all the shares held by Opal in 244 Co from Opal to Ms Ghaemi. The Opal parties admit the receipt of share transfer forms and the escrow transfer. However, the Opal parties deny failing to lodge the withdrawal of caveat over the 244 Property forthwith and say that the withdrawal of caveat was registered on 15 May 2023.
The Opal parties admit that Mr Aeini has not resigned as a director of Sturt Developments, 244 Co and 301 Co; that Opal has not transferred its shares in Sturt Developments and 301 Co to Ms Ghaemi and admit Opal has not lodged a withdrawal of caveat in relation to the 301 Property, the 309 Property and 882 Property. However, the Opal parties otherwise deny the allegations and say the Opal parties did not have to comply with the Deed because the Ghaemi parties did not pay the fourth instalment in accordance with the Deed. In particular, the Opal parties plead that the Ghaemi parties did not pay the fourth instalment electronically, notwithstanding that the Deed set out a BSB and account number; did not provide the cheque for the fourth instalment until 14 days after the fourth instalment was due and the cheque for the fourth instalment did not clear until 10 July 2023. The Opal parties accordingly deny any breaches of contract. The Opal parties plead that the normal remedy for breach of contract is recovery of damages and damages are an adequate remedy.
The Deed
In general terms, the Deed provides for Ms Ghaemi to take over the respondents’ interests in 244 Co and 301 Co and the Sturt Developments. Payments were to be made to Opal representing refunds of certain monies paid towards the contribution of the purchase of, and in some cases, the development of properties.
The terms of the settlement, among other things, required the Ghaemi parties to make a number of payments by instalment on dates set out in the settlement Deed. A sum paid by Opal to the Registrar-General of the Lands Titles Office to remove a worker’s lien over a property was to be repaid to Opal with the consent of Ipad.
Upon receipt of the total sum payable, Mr Aeini was required to forthwith resign as director of the three companies being 244 Co, 301 Co and Sturt Developments and to promptly sign all necessary documents for that purpose. Opal was required to lodge a withdrawal of caveat over the 244 Property and deliver an executed share transfer in relation to all of the shares held by Opal in 244 Co. Opal was required to transfer to Ms Ghaemi or have cancelled (at Ms Ghaemi’s election) its shares in Sturt Developments and 301 Co. The Opal parties agreed to renounce any right they may have as beneficiary of any trust of which 244 Co and 301 Co is trustee. Opal was required to lodge withdrawals of caveats over certain properties. As soon as practicable after a specified payment, all applications for non party discovery were to be withdrawn or dismissed by consent. Ipad was required to sign all documents to enable a sum to be released to Opal by the Registrar General.
The provisions of the Deed particularly relevant to the determination of the summary judgment application are as follows.
Clause 1.1(a) sets out two conditions precedent to the Deed. The first is settlement being reached in writing between Opal and the sixth, seventh, tenth to thirteenth, eighteenth and nineteenth third parties being the subject of Opal’s cross claims in the primary proceedings. The second is National Australia Bank (“NAB”) confirming in writing that it will (upon Mr Aeini ceasing as a director and Opal ceasing as a shareholder of Sturt Developments) unconditionally release the Opal parties from all guarantees and securities provided in relation to the loans and facilities obtained by Sturt Developments from NAB for the purposes of the purchase of the 309 Property and the 882 Property.
Clause 1.2 of the Deed provides that, subject to the terms of the Deed, Ms Ghaemi is to take over the respondents’ interests in both 244 Co and 301 Co. Ms Ghaemi, Mr Mehr and Ipad are jointly and severally liable to repay to Opal the sum of $60,000 (defined as the 244 First Payment) paid by or on behalf of Opal to Mehr or Ipad towards funding the cost of construction of townhouses on the 244 Property. Ms Ghaemi, 244 Co and Mr Mehr are jointly and severally liable to refund and pay to Opal the sum of $470,000 (defined as the 244 Second Payment) in respect of monies contributed by or on behalf of Opal to 244 Co in relation to the cost of purchase and the development of the 244 Property. Ms Ghaemi, 301 Co and Mr Mehr are jointly and severally liable to pay to Opal the sum of $100,000 (defined as the 301 Payment) in respect of monies contributed by or on behalf of Opal to 301 Co in relation to the cost of purchase and development of the 301 Property. Sturt Developments, Ms Ghaemi and Mr Mehr are jointly and severally liable to refund and pay to Opal the sum of $150,000 (defined as the 309 Payment) contributed by or on behalf of Opal towards purchase of the 309 Property. Sturt Developments, Ms Ghaemi and Mr Mehr are jointly and severally liable to refund and pay to Opal the sum of $114,000 (defined as the 882 Payment) towards the purchase of the 882 Property.
By cl 1.2(h) of the Deed, each of the payments totalling the sum of $894,000 were to be paid into the trust account of Commercial & Legal (with BSB and account number specified). Those payments were to be made in instalments set out in cl 1.2(h)(i)-(iv) of the Deed as follows:
(i)$225,000 within seven days of the date of satisfaction of the last of the conditions precedent;
(ii)$225,000 within 21 days of the date of satisfaction of the last of the conditions precedent;
(iii)$222,000 within 60 days of the date of satisfaction of the last of the conditions precedent; and
(iv)$222,000 within 90 days of the date of satisfaction of the last of the conditions precedent.
Clause 1.2(i) of the Deed sets out the manner of application of the payments which were to be applied first, towards payment of the 244 First Payment, then towards payment of the 244 Second Payment, then towards payment of the 301 Payment then towards payment of the 309 Payment and then towards payment of the 882 Payment. The manner of application of payments is relevant to the consequences provided for by the Deed in the event of failures to pay. A failure to pay the fourth instalment would be a failure to pay part of the 309 Payment and the whole of the 882 Payment.
Clause 1.2(j) of the Deed provides that the Ghaemi parties and the Opal parties agree that, from the date of the Deed until receipt by Opal of the total sum, Ms Ghaemi was appointed by Mr Aeini, with the approval of Sturt Developments, 244 Co and 301 Co, as an alternate director for Mr Aeini of each of those companies and Mr Aeini would cease to be an active director while Ms Ghaemi was acting as an alternate director in his place. Pursuant to cl 1.2(k) of the Deed, if any default in payment of the total sum was not remedied within seven days in accordance with cl 1.4, then Ms Ghaemi would immediately and automatically cease to be an alternate director for Mr Aeini and Mr Aeini would immediately and automatically resume being an active director of each of Sturt Developments, 244 Co and 301 Co.
Clause 1.2(l) of the Deed provides that upon receipt by Opal of the total sum, Mr Aeini will forthwith resign as a director of each of Sturt Developments, 244 Co and 301 Co and will promptly sign all necessary documents for that purpose.
Clause 1.2(m) of the Deed provides that on receipt by Opal of instalments totalling $450,000 (that is, the first two instalment payments), Opal would forthwith at its cost lodge a withdrawal of caveat form in relation to the caveat registered by Opal over the 244 Property and, subject to and upon receipt of the escrow transfer, deliver to Ms Ghaemi a duly executed share transfer form transferring to Ms Ghaemi for no consideration the whole of the shares held by Opal in 244 Co.

Clause 1.2(n) of the Deed provides that if and only if there was a default in payment when due of either of the third and fourth instalments which default was not remedied within seven days, the escrow transfer will take immediate effect and Opal will immediately resume being a 70 percent shareholder in 244 Co.
Clause 1.2(o) of the Deed provides that upon receipt by Opal of the entirety of the total sum, Opal’s shares in Sturt Developments and 301 Co are to be transferred to Ms Ghaemi or, at Ms Ghaemi’s election, cancelled forthwith and for no consideration. The Opal parties will, without more, renounce any right they may have as a beneficiary or object of any trust of which either 244 Co or 301 Co is or may be a trustee and Opal will forthwith at its cost lodge withdrawal of caveat forms in relation to caveats registered by Opal over the 301 Property, the 309 Property and the 882 Property.
Clause 1.2(q) of the Deed provides for all applications for non-party discovery in the primary proceedings to be forthwith withdrawn or dismissed by consent as soon as practicable after the 244 Second Payment.
By cl 1.2(r) of the Deed, the parties agree that the sum of $40,049.20 paid by Opal to the Registrar-General in respect of the District Court proceedings is to be released and paid to Opal as soon as possible after the satisfaction of the conditions precedent by no earlier than the due date of the 244 Second Payment.
Clause 1.4 of the Deed sets out the consequences of any default in payment. Clause 1.4(a) provides that if the 244 First Payment or the 244 Second Payment are not paid to Opal in accordance with cls 1.2(b), (c) and (h) and that default is not remedied within a period of seven days from the date of default, then by written notice given by the Opal parties to the Ghaemi parties via their solicitors within a further seven days, the Opal parties may rescind the Deed void ab initio at their own election and sole discretion.
Clause 1.4(c) provides that if the 309 Payment or the 882 Payment is not made to Opal in accordance with cls 1.2(f), (g) and (h) and that default is not remedied within a period of seven days from the date of default, then the provisions of the Deed insofar as they relate to, and limited to the extent that they relate to, Sturt Developments, the Sturt Developments dispute, the 309 Property and the 882 Property will be void ab initio, save for cl 1.2(k) which will continue to apply, upon the Opal parties giving written notice to the Ghaemi parties via their solicitors within a further seven days, which notice may be given at the election and sole discretion of the Opal parties.
Clause 1.4(d) of the Deed provides that for the avoidance of any doubt the provisions of the Deed that will be void ab initio to the extent that they relate to Sturt Developments, the Sturt Developments dispute, the 309 Property and the 882 Property, if the Opal parties give notice under sub-cl 1.4(c), include the clauses specifically set out in cl 1.4(d) and those clauses will be void ab initio only to the extent that each of the specified clauses relate to Sturt Developments, the Sturt Developments dispute, the 309 Property and/or the 882 Property and on the basis that any parts of the clauses that do not relate to Sturt Developments, the Sturt Developments dispute, the 309 Property and/or the 882 Property remain fully effective and binding.
Clause 1.4(e) of the Deed provides that in the event a notice is given by the Opal parties to the Ghaemi parties under cl 1.4(c), the parties will be restored to their positions insofar as the Sturt Developments dispute, the 309 Property and the 882 Property are concerned as if the Deed was not made in respect of the Sturt Developments dispute, the 309 Property and the 882 Property including without limitation by the prompt refund by Opal of any amounts paid to it in respect of the 309 Payment and the 882 Payment.
Clause 1.4(e)(ii) of the Deed provides that Sturt Developments and the Ghaemi parties acknowledge in the event of such a notice that the caveats registered over the 309 Property and the 882 Property will not be discharged under cl 1.2(o)(iii) and Opal may seek declaratory relief with respect to constructive trusts over the 309 Property and the 882 Property.
Clause 1.4(e)(iii) provides that the Deed will otherwise remain in full force and effect in particular in relation to the settlement of the primary proceedings and the District Court proceedings.
Clause 1.4(f) of the Deed provides that subject to sub-cls 1.4(a) to (e) and any notices given by the Opal parties to the Ghaemi parties under sub-cls 1.4(a) or (c), if any part of the total sum is not paid to Opal in accordance with the requirements of the Deed by the due date and that default is not remedied within seven days from the date of the default, such amounts in respect of the 244 First Payment, the 244 Second Payment, the 301 Payment, the 309 Payment and the 882 Payment that have not been paid to Opal at that date will become immediately due and payable in full and Opal will be entitled to a consent Court judgment against the parties in default for such amounts of the payments as are unpaid plus interest at a specified rate.
Summary judgment application
By interlocutory application (FDN 3) dated 6 September 2023, the Ghaemi parties seek summary judgment in relation to paragraph 39.1 of the statement of claim, that is, to compel the Opal parties to comply with their obligations under the Deed and to carry out all actions at their cost to give effect to the requirements of specified clauses of the Deed.
While the Ghaemi parties also sought injunctive orders to prevent the Opal parties dealing with the escrow transfer, it was not necessary for the Court to address that aspect of the application as Mr Aeini gave an undertaking not to execute or in any way deal with the escrow transfer pending the determination of the application.
The interlocutory application is supported by an affidavit of Ms Tiffany Irving affirmed on 4 September 2023 (FDN 2) (“Irving affidavit”). In support of the application the Ghaemi parties relied on the Irving affidavit, the affidavit of Mr Vozzo dated 2 August 2023 in the primary proceedings (FDN 89) (“Vozzo affidavit”) and the respondents’ submissions (FDN 103) which were said to contain admissions.
In the Irving affidavit, Ms Irving deposes to the satisfaction of the conditions precedent contained in the Deed. Ms Irving deposes to participating in settlement negotiations and related correspondence which resulted in the execution of two separate deeds with third party purchasers, one of which was finally executed on 29 March 2023 and the other of which was finally executed on 30 March 2023. Ms Irving also deposed to the satisfaction of the NAB condition precedent and exhibited to her affidavit a copy of an email chain including a release signed by Mr Stevens of NAB dated 21 March 2023.
Ms Irving deposes to the payment by the Ghaemi parties of all instalment payments required by the Deed and to her belief that there is no controversy that the Ghaemi parties paid to the Opal parties and the Opal parties accepted payment of each and every amount required to be paid by the Ghaemi parties pursuant to the provisions of the Deed.
Ms Irving exhibited to her affidavit documents said to prove each of the instalment payments.
In relation to payment of the fourth instalment, Ms Irving referred to and relied upon the Vozzo affidavit. Ms Irving deposed to believing a cheque in the amount of the fourth instalment was delivered by Mr Vozzo by hand to Mr Graham, then solicitor for the respondents, on 5 July 2023 at about 6.00 pm and that Mr Graham accepted the cheque. Ms Irving stated that at no time has notice been received by the solicitors or any of the Ghaemi parties from the Opal parties in accordance with cl 1.4(a) of the Deed.
Ms Irving deposed to sending an email to Mr Graham on 5 May 2023 attaching a share transfer form and an escrow transfer form executed by Ms Ghaemi on 5 May 2023 in accordance with the Deed. Ms Irving deposes to receiving, on 5 June 2023, an email from the respondents’ solicitors requesting confirmation that Ipad would consent to the release to Opal of the sum of approximately $40,000 held by the Registrar-General and Ms Irving responding by email confirming Ipad’s consent.
Ms Irving deposed to telephone discussions with Mr Graham regarding delay by the Opal parties in withdrawing applications for non-party discovery and suggesting a meeting to facilitate the exchange of documents to address the performance of the terms of the Deed. Ms Irving deposed to that potential meeting to exchange documents not proceeding. Ms Irving deposed to failures by the Opal parties to comply with the terms of the Deed including the failure of Mr Aeini to resign as a director, to transfer Opal’s shares in Sturt Developments and 301 Co and to lodge a withdrawal of caveat in respect of the 301 Property, the 309 Property and the 882 Property.
Ms Irving exhibited to her affidavit correspondence between the solicitors including an email sent to Mr Graham noting the fourth payment under the Deed had been paid and requesting copies of duly executed documents by 10 July 2023. Ms Irving deposed to taking steps to contact Mr Graham and to attempting to obtain completion by the Opal parties of the terms of the Deed.
Ms Irving’s affidavit deposed to an urgent need to address the summary judgment application including because of the potential for the default by the Opal parties to cause delay in completing construction of residential developments on the 244 Property and 301 Property which may in turn prejudice the interests of third party purchasers of those properties.
The Vozzo affidavit referred to attempts to arrange a number of meetings to address performance of the respective obligations of the parties. Mr Vozzo deposed to sending an email to Mr Graham on 5 July 2023 confirming the Ghaemi parties were ready, willing and able to pay the fourth instalment. Mr Vozzo deposed to a discussion with Mr Graham in relation to the possibility of the fourth instalment payment being paid by exchanging a cheque for the required documents as opposed to EFT and that Mr Graham said words to the effect that he would try to get Mr Aeini to sign the documents that evening but he might not be able to do so including because Mr Aeini was preoccupied with a sick child. Mr Vozzo deposed to Mr Graham saying words to the effect that if the cheque was a personal as opposed to a bank cheque, provision of the documents could not occur until the cheque cleared.
Mr Vozzo stated that he personally delivering the cheque to Mr Graham on 5 July 2023 at about 5.45pm and that he handed the cheque to Mr Graham and said words to the effect that his client could effect the transfer immediately by EFT if required by Mr Graham’s clients, but his view was that acceptance of the cheque amounted to payment and there was no stipulation in the Deed for cleared funds or any particular method of payment. Mr Vozzo deposed to Mr Graham saying words to the effect that he needed to speak to his firm’s accounts manager and confirm the payee details were the correct details for the firm’s trust account. Mr Graham then left the room and thereafter returned and said words to the effect of “this is fine”. Mr Vozzo deposed to Mr Graham saying that he was meeting with Mr Aeini later that night with the ASIC documents for execution and that Mr Aeini was at the hospital as his son was sick.
Mr Vozzo deposed on information and belief to the cheque amount leaving his client’s account on 7 July 2023. He deposed to speaking with Mr Graham by telephone on 11 July and Mr Graham saying words to the effect that he did not manage to meet with Mr Aeini on 5 July.
Mr Vozzo stated that at no time during the meeting on 5 July or the phone call on 11 July did Mr Graham ask for the payment to be made by EFT.
Affidavit of Mr Aeini
Mr Aeini’s affidavit (FDN 7) (“Aeini affidavit”) in response to the summary judgment application asserts summary judgment will have the outcome of limiting his ability to present a defence to the claim.
Mr Aeini exhibited correspondence he sent to the solicitors for the Ghaemi parties in which he set out reasons why he did not consider the Ghaemi parties would be successful in seeking orders to enforce the settlement agreement. Mr Aeini’s email includes the following assertions:
1.Final payment was due on 20 June 2023. The final payment covered the sum of the 309 Payment and all of the 882 Payment. The payment was not made on that date, resulting in the Ghaemi parties being in breach. The Ghaemi parties had seven days to make the payment, that is, by 28 June 2023.
2.If the Ghaemi parties did not pay after a further seven days, the Deed was terminated.
3.The fourth instalment had to be paid to the trust account of Commercial & Legal into the account with the BSB and account number specified in the Deed. The payment of the fourth instalment by cheque was a breach of the settlement agreement.
4.The funds were not paid into the bank account within the required 90 days as the cheque was not banked until after 5 July 2023.
5.As a consequence of the asserted breaches, the Opal parties were entitled to terminate the settlement agreement.
6.By 8 July 2023, when the monies had not been received, Mr Aeini told his solicitor to send a letter terminating the agreement.
7.Opal was required to transfer the shares and Mr Aeini was to resign as a director if Opal received the total sum, but the sum was received by Commercial & Legal. If any payment of the total sum was not remedied within seven days, then Mr Aeini automatically became a director again. If the Ghaemi parties were in default, Opal was entitled to a constructive trust over the Sturt Development properties.
8.Mr Aeini asserts that because of a failure to pay the fourth instalment payment on time, he had to raise more funds for another property he was purchasing causing him to suffer loss.
Mr Aeini exhibited to his affidavit a trust receipt, copy of a deposit slip for a cheque banked on 6 July 2023 together with a transaction history screenshot of the deposit and an email received on 9 August 2023 from NAB containing information about dates of cheque clearance. Those documents were attached to an email from Ms Claudia Fernandez of Commercial & Legal which states that the first working day the funds were cleared was 10 July 2023. Mr Aeini also exhibited an email from Mr Graham of Commercial & Legal confirming the cheque was deposited on 6 July 2023 after it had been received the previous day and funds cleared into the firm’s trust account by 10 July 2023.
Submissions
Ghaemi parties’ submissions
The Ghaemi parties submit the evidence establishes that they have complied fully with the terms of the Deed including making all payments required under it. The Irving affidavit deposes to the satisfaction on 30 March 2023 of the conditions precedent contained in the Deed. The affidavit exhibits evidence of payments made to the Opal parties and evidence of Ipad’s consent to the release of the amount paid to the Registrar-General to Opal. The affidavit of Ms Irving provides evidence of the steps taken by the Ghaemi parties to endeavour to obtain performance from the respondents.
The Ghaemi parties contend that the Opal parties have failed to comply with all of their obligations under the Deed. The failures include that Mr Aeini has refused to resign as a director of 244 Co and 301 Co and has not transferred to the applicant his shares in Sturt Developments Pty Ltd and 301 Co.
The Ghaemi parties submit the Deed is unconditional and has been fully performed by the Ghaemi parties. It was negotiated and executed by the Opal parties with the benefit of advice from experienced solicitors and counsel.
The Ghaemi parties submit that Mr Aeini’s refusal to resign as a director of 244 Co and 301 Co is preventing documents being executed in accordance with the Corporations Act 2001 (Cth) (“Corporations Act”), with consequential impact on the companies’ ability to progress developments, including obtaining bank finance.
The Ghaemi parties submit I have the power summarily to enforce a deed of settlement and to correct the ASIC register upon application of an aggrieved person pursuant to s 175 of the Corporations Act.
The Ghaemi parties rely on the Opal parties’ admissions in the defence including that the primary proceedings were settled by the Deed. In relation to the conditions precedent, the Ghaemi parties point to the admission by the Opal parties of the satisfaction of the conditions precedent. As the instalment payments had to be made in timeframes following satisfaction of the last of the conditions precedent, the date of satisfaction of the last condition precedent is important. The Ghaemi parties observe that the Opal parties admit paragraph 13 of the statement of claim in which the Ghaemi parties plead that the last of the conditions precedent was met on 30 March 2023.
Observing that the Opal parties admit the first three instalment payments, the Ghaemi parties submit the contest relates to whether the Ghaemi parties complied with the Deed in making the fourth instalment. The Ghaemi parties rely on the Irving affidavit and the Vozzo affidavit as evidence of the circumstance in which the fourth instalment was paid. The Ghaemi parties submit the payment was made by the provision in person of a cheque to Mr Graham which was handed by Mr Vozzo to Mr Graham and accepted by Mr Graham. The Ghaemi parties refer to the email exhibited to the Aeini affidavit in which Mr Graham stated the cheque was received the day before (that is, on 5 July 2023). The Ghaemi parties dispute the Opal parties’ assertions that the cheque was not provided until 14 days after the fourth instalment was due and point to the admission by the Opal parties that the fourth instalment was due by 28 June 2023 through the respondents’ admission of paragraph 15 of the statement of claim. The Ghaemi parties also rely on the evidence contained in the Aeini affidavit which demonstrates that the fourth instalment was banked into the Opal parties’ solicitor’s trust account on 6 July 2023 and appears to have cleared on 10 July 2023. Further, the Irving affidavit deposes to no notice under the Deed ever being received and the Opal parties not adducing any evidence that such a notice was given.
The Ghaemi parties submit that the payment was made when Mr Vozzo handed the cheque to Mr Graham and Mr Graham accepted the cheque. The Ghaemi parties rely on authorities supporting well established principles concerning payment by cheque including to the effect that payment is complete at the time when the tendered cheque is accepted.[2]
[2] National Australia Bank Ltd v KDS Construction Services Pty Ltd (1987) 163 CLR 668; Tilley v Official Receiver in Bankruptcy (1960) 103 CLR 529; Fuji Xerox Australia Pty Ltd v Thoi [2018] VSC 483 at [55] per Riordan J.
The Ghaemi parties submit that in determining whether to summarily enforce a settlement agreement, the Court should consider whether any defences to the contention the settlement agreement is valid and binding have any real prospects of success and consider, having regard to the usual equitable principles, whether it is possible to conclude on a summary basis that it is appropriate to order specific performance. Then the Court should consider whether the Court can otherwise be satisfied that justice can be done by enforcing the settlement agreement or whether there are other matters which would detract from that state of satisfaction.[3]
[3] Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497.
The Ghaemi parties submit that the defences proffered by the Opal parties are hopeless and bound to fail for the following reasons.
1.While the Deed identified Commercial & Legal’s trust account by reference to its BSB and account number, it said nothing about the mode of payment. It did not expressly require payment electronically by EFT. The Ghaemi parties submit that the Deed provisions accurately identified the account and permitted, but not mandated, the making of payments by EFT. The Ghaemi parties contend that if the parties had required payment only by EFT they could have and would have specified that form of payment. The Ghaemi parties contend there is no basis for any implication of other terms.
2.The Ghaemi parties contend that, as a matter of law, the payment was made when the cheque was accepted by Mr Graham and the evidence shows the cheque was made payable to, and then deposited into, the correct account. The account details which appear on the banking records correspond to those set out in the Deed. The Ghaemi parties submit that nothing in the evidence supports the notion the cheque was merely received and not accepted and the fact the cheque was banked on 6 July corroborates its acceptance on 5 July. Mr Vozzo’s evidence of Mr Graham accepting the cheque is unchallenged. The Ghaemi parties contend that Mr Graham could have refused to take the cheque but that did not occur.
3.In any event, the Ghaemi parties submit that even if there was a breach of the Deed, the Deed codified the respondents’ right to rescind. In particular, those rights were strictly limited and required the Opal parties to rescind by notice within seven days.
4.The Ghaemi parties dispute that they should only have a remedy in damages. They submit they were entitled to, and did, make an election to seek to enforce compliance with the Deed. While a court may be reluctant to order specific performance where the court would be required to monitor or supervise on an ongoing basis, the Ghaemi parties submit that this would not be required in this case as the orders sought are succinct and temporally limited and once made and complied with, will not require further supervision.
5.Further, the Ghaemi parties submit that a compelling consideration favouring specific performance being granted over an award of damages is the potential prejudice to which innocent third party purchasers continue to be exposed. An award of damages would leave the parties in a state of limbo in relation to the control of 244 Co and the completion of the partly built dwellings.
Mr Aeini’s submissions

Mr Aeini’s submissions replicate the matters set out in Mr Aeini’s correspondence with the solicitors for the Ghaemi parties as set out above. In essence, they are that the last instalment was not paid within 14 days of the required date; the payment had to be made by EFT not cheque, the cheque was not accepted by Mr Graham, the cheque did not clear until after the requisite date and the provisions of the Deed automatically result in Mr Aeini being restored as a director of the relevant companies. Mr Aeini submits that he instructed his solicitor to send a notice terminating the Deed. Mr Aeini also made submissions about asserted factual matters which were not in evidence before the Court, some of which I understood related to underlying disputes between the parties, including the Sturt Development dispute.
Summary judgment – principles
Rule 144.2 of the Uniform Civil Rules 2020 (SA) enables the Court, on application by a party, to give summary judgment in favour of an applicant on a claim or cause of action in a claim if there is no reasonable basis for defending the claim or cause of action or on a separate issue if there is no reasonable basis for contesting that issue.
The exercise of the power requires a practical assessment of whether the applicant has real, and not merely fanciful, prospects of success.[4] The Court does not embark on a mini trial but will assess the claim in a summary way. The power should not be exercised lightly. While it is not necessary for the Court to determine that the proceeding will necessarily fail, the Court must be cautious not to do injustice particularly in circumstances of disputed issues of fact or law simply because the claim is unlikely to succeed.[5] The Court will reject an application for summary enforcement unless clearly satisfied that justice can be done.[6]
[4] Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117 at [59]-[60] per Doyle J.
[5] Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117 at [59]-[60] per Doyle J.
[6] General Credits (Finance) Pty Ltd v Fenton Lake Pty Ltd [1985] 2 Qd R 6.
Summary enforcement of settlement contracts - principles
In determining whether it is appropriate to summarily enforce a settlement agreement, the Court should firstly consider whether there is any defence with a real prospect of success to the contention that the settlement agreement is valid, binding and enforceable.[7] If the settlement agreement is valid and enforceable, the Court should consider whether, on a summary basis, it is possible to conclude that it is appropriate to order specific performance.[8] The Court will have regard to the standard equitable principles governing the availability of the remedy of specific performance. If the Court considers it is appropriate to make such an order, the Court ought consider whether it can otherwise positively be satisfied that justice can be done in enforcing the settlement agreement or whether there are other matters which would detract from that conclusion.[9] In considering whether specific performance is an appropriate remedy, relevant considerations will include whether the grant of the remedy would prejudice third parties or whether damages would be an adequate remedy for breach of the settlement agreement and whether undue supervision of the Court will be required.[10] Other relevant considerations include whether enforcement of the settlement agreement would have impact on other parties, whether it would resolve many, if not all, of the outstanding issues in the proceedings and whether further investigation and evidence is required to determine the issues in the application.[11] If a party seeking specific performance of a settlement agreement satisfies the Court on a summary basis that the settlement agreement is valid and enforceable, damages would not be an adequate remedy, the applicant is ready, willing and able to perform their obligations and has come to court with clean hands and third parties would not unduly and unfairly be prejudiced by the enforcement of the settlement agreement, there would need to be a good reason not to enforce the settlement agreement.[12] Further, there is a strong public interest in enforcing agreements reached at mediation in the absence of evidence suggesting events occurred that vitiated the mediation.[13]
[7]   Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497 at [87] per Daly AsJ.
[8]   Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497 at [87] per Daly AsJ.
[9]    Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497 at [87] per Daly AsJ.
[10] Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497 at [116] per Daly AsJ.
[11] Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497 at [136] per Daly AsJ.
[12] Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497 at [89] per Daly AsJ.
[13] Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497 at [55] per Daly AsJ.
Payment by cheque
In Wardle v Agricultural & Rural Finance Pty Ltd; Agricultural & Rural Finance Pty Ltd v Brakatselos,[14] the Court of Appeal stated some well established principles concerning payment by cheque including as follows:
1.Unless a contract requires payment by cheque, a creditor may refuse tender. However, if the creditor takes the cheque without objecting to it, the creditor is taken to have accepted the cheque as payment.[15]
2.Where a cheque is accepted as tender for a debt, the debt is discharged conditional on the cheque being met on presentment.[16] Payment is complete at the time when the cheque is accepted by the creditor.[17]
[14] [2012] NSWCA 107 at [160]-[165] per Campbell JA (with whom Barrett JA and Sackville AJA agreed). See also Fuji Xerox Australia Pty Ltd v Thoi [2018] VSC 483 at [55] per Riordan J.
[15] George v Cluning (1979) 28 ALR 57.
[16] Tilley v Official Receiver in Bankruptcy (1960) 103 CLR 529.
[17] National Australia Bank Ltd v KDS Construction Services Pty Ltd (1987) 163 CLR 608.
As long as a cheque is tendered and accepted before a payment deadline, the payment will be in time despite the fact the cheque cannot be presented for payment before the expiry of the deadline.[18]
[18] Homes v Smith [2000] Lloyd’s Rep Bank 139; Petroleo Brasileiro SA v ENE Kos 1 Ltd (2009) EWCA Civ 1127.
Correction of the ASIC Register
Section 175 of the Corporations Act provides that a company or a person aggrieved may apply to the Court to have a Register kept by a company corrected. If the Court orders a correction of the Register, the company must lodge notice of the correction with ASIC. The relief under s 175 is equitable in nature and the Court has a discretionary power to grant such relief.[19]
[19] In the matter of Alon Pty Ltd [2021] NSWSC 1021 at [57] per Rees J.
Section 1322(4) of the Corporations Act also enables the Court on application by any interested person to make orders directing the rectification of any Register kept by ASIC.
Consideration
The factual substratum upon which the summary judgment application is based is largely admitted and the issues in dispute are discrete and narrow, relating to whether payment of the fourth instalment occurred in accordance with the terms of the Deed.
Conditions precedent
The Irving affidavit establishes that the conditions precedent were satisfied and that the last condition precedent was satisfied on 30 March 2023. The Opal parties admit that allegation. Accordingly, the time frames for payment of the instalment payments set out in the Deed are to be calculated by reference to 30 March 2023. The last instalment payment was to be made 90 days from the date of satisfaction of the last of the conditions precedent. A period of 90 days commencing on 30 March 2023 ends on 28 June 2023. I do not agree with the submission put by the Opal parties that the 90 day period ended on 20 June 2023. It follows that under cl 1.2(h)(iv) of the Deed, the last instalment was payable by 28 June 2023.
By reason of cl 1.4(c) of the Deed, the Ghaemi parties had a period of seven days from 28 June 2023 to remedy the failure to make the 309 Payment or the 882 Payment by 28 June 2023. Accordingly, the Ghaemi parties had until 5 July 2023 within which to make payment of the fourth instalment. The respondents’ defence based on the calculation of the date for payment of the final instalment does not have real, rather than simply fanciful, prospects of success.
Payment of the fourth instalment
The payment of the first three instalments is admitted.
The Opal parties accept that a cheque in the sum of $222,000, representing the final instalment, was delivered by Mr Vozzo to Mr Graham by hand on 5 July 2023. However, the Opal parties do not admit that there was acceptance of the cheque.
The documents exhibited to the Irving affidavit and the Aeini affidavit evidence the banking of the cheque on 6 July 2023. It appears there is no dispute that the cheque cleared on Monday 10 July 2023.
Whether there was a breach by the Ghaemi parties in late payment of the fourth instalment, and if so the consequences, thus depends on the construction of the Deed, characterisation of the provision of the cheque and consideration of authorities on when payment occurs by cheque. In my view, for the reasons below, there is no real as opposed to fanciful basis on which the Opal parties can defend the claim that the fourth instalment was paid on 5 July in accordance with the provisions of the Deed.
Payment by cheque or EFT?
Payment was made by cheque. Mr Aeini maintains that it was not consistent with the provisions of the Deed and that payment could only be made by EFT. I do not agree and I accept the Ghaemi parties’ submissions. The defence based on this contention does not have real, rather than simply fanciful, prospects of success. While cl 1.2(h) refers to the trust account by BSB and account number, the clause does not specify a required manner of payment. The reference to the bank account details identifies the account into which payment was to be made and thus facilitated, but did not mandate, payments to be made by electronic funds transfer. Accordingly, in my view, a defence based on payment by cheque being in breach of cl 1.2(h) of the Deed does not have real, rather than simply fanciful, prospects of success.
When was payment made?
Mr Aeini submits that the cheque was only received and not accepted. There is no evidence to support that contention or to support a submission that Mr Graham’s authority did not extend to accepting payment on behalf of the Opal parties. The fact the instalment payments were to be made into the trust account of the Opal parties’ solicitors suggests a contrary position. The email from Mr Graham exhibited to the Aeini affidavit which refers to the receipt and banking of the fourth instalment is also inconsistent with the submission. The Opal parties have not adduced evidence to contradict or otherwise sought to challenge the Vozzo affidavit. The defence based on this contention does not have real, rather than simply fanciful, prospects of success.
Mr Aeini submits that payment was not made into the trust account by 5 July 2023 because the cheque did not clear until 10 July 2023. While that is factually correct, as set out above, the law relating to payment by cheque does not treat payment as having been made upon funds being cleared. It follows from the authorities to which I have referred above that the provision of a cheque on 5 July 2023 and the acceptance of the cheque on that day constituted payment on 5 July 2023. I have considered whether the reference to the payment being paid “into the trust account” in cl 1.2(h) of the Deed means that payment was only made once the cheque was accepted, banked and the funds cleared. However, the words used in the Deed are readily attributable to the identification of the account into which payment was to be made and I do not consider they are sufficiently clear to evidence an intention to depart from the usual principles which apply in the context of payment by cheque. Accordingly, the payment of the fourth instalment was in accordance with the terms of the Deed. It follows that the defence based on this contention does not have real, rather than simply fanciful, prospects of success.
As a consequence of the conclusion that the fourth instalment was paid in accordance with the terms of the Deed, in accordance with cl 1.2(l) of the Deed, Mr Aeini was obliged to forthwith resign as a director of each of Sturt Developments, 244 Co and 301 Co and to promptly sign all necessary documents for that purpose. Further, Opal was required by cls 1.2(m) and 1.2(o) of the Deed to deliver to Ms Ghaemi a duly executed share transfer form transferring to Ms Ghaemi for no consideration the whole of the shares held by Opal in 244 Co and to transfer Opal’s shares in Sturt Developments and 301 Co to Ms Ghaemi for no consideration. The Opal parties’ failures to do so were in breach of the Deed.
The Opal parties contend that because the funds were not cleared until 10 July 2023, the Deed is void ab initio. Even if there had been a failure to pay on time contrary to my conclusion above, I consider the defence based on the asserted consequences of breach by the Ghaemi parties does not have real, rather than simply fanciful, prospects of success in light of the clear language of the Deed.
The consequence of certain provisions of the Deed being void ab initio do not automatically follow from breach. Rather, the Deed expressly requires the Opal parties to give notice to the Ghaemi parties within the further seven days grace period provided for by the Deed. Whether or not Mr Aeini instructed his solicitor to send such a notice is not relevant. What is relevant as between the parties is whether notice was given in accordance with the Deed. There is no evidence to suggest or support a conclusion that any such notice was given. Further, there is no suggestion of any attempt by the Opal parties to refund the 309 Payment and the 882 Payment.
It is clear from cl 1.4(c), (d) and (e) of the Deed that if written notice had been given, the provisions of the Deed which would have been rendered void ab initio are only those that relate to the Sturt Development disputes and the 309 Property and the 882 Property. All of the remaining parts of the Deed remain fully effective and binding and the Deed remains in full force and effect in relation to the settlement of the primary proceedings and the District Court proceedings. Accordingly, even if the payment was not made within the period allowed for remedy of default and even if notice had been given, the settlement of the primary proceedings and the District Court proceedings and the consequences following from those settlements would remain in full force and effect.
Summary enforcement
There is no challenge to the validity and enforceability of the Deed. In my view the Opal parties do not have real, as opposed to fanciful, defences to the allegations of breach of the Deed and accordingly they do not have a reasonable basis for defending the claim. The Ghaemi parties have performed their obligations and there is no evidence they have come to this Court without clean hands. I am satisfied that summary enforcement will not result in injustice. Accordingly, the Ghaemi parties are entitled to a remedy. The question is whether an order for specific performance is warranted in the circumstances. In my view, such an order should be made.
The Opal parties contend that damages would be an adequate remedy. However, I accept the Ghaemi parties’ contention that in the absence of an order for specific performance, the control of the development will remain in suspension with the potential for further prejudice to innocent arm’s length, third party purchasers. The consequence of the ongoing control of the development remaining uncertain, contrary to the purpose and content of the agreement reached by the parties at mediation, is undesirable. Further, it has the potential to cause further prejudice to innocent third parties already adversely impacted by the primary proceedings. Those considerations strongly support the grant of specific performance. An order for specific performance will not require the ongoing supervision of the Court. The Court’s attention has not been drawn to any potential for prejudice to arise to third parties in the event such an order is made. I thus consider it is in the interests of justice that an order for specific performance be made.
Orders
I will hear the parties on the form of the required orders to give effect to my reasons and in relation to costs.

[2023] SASC 153

20 October 2023