M & H Allen Services Pty Ltd v Blue Sea Container Storage Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2024 06389

BETWEEN:

M & H ALLEN SERVICES PTY LTD (ACN 006 193 497)	Plaintiff
and
BLUE SEA CONTAINER STORAGE PTY LTD (ACN 006 018 435) (AND OTHERS ACCORDING TO THE SCHEDULE)	Defendants

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JUDGE:	M Osborne J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 July 2025
DATE OF JUDGMENT:	31 July 2025
CASE MAY BE CITED AS:	M & H Allen Services Pty Ltd v Blue Sea Container Storage Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2025] VSC 463

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CONTRACT – Co-Owners Deed – Construction of terms – Clause 9 required mandatory sale of property within 36 months – Contract expressed time was of the essence – Expiry of deed date – No unanimous agreement to extend time - Whether failure to place land for sale constituted breach of clause 9 – Specific performance sought by unitholder to enforce sale of land – Alternative claims based on waiver and estoppel – Principles of contractual interpretation – Co-Owners Deed to be construed consistently with adopted legal and commercial structures – Preservation of Unit Trust Deed and commercial trust arrangements.

EQUITY – Trusts and trustees – Unit trust established by families as a vehicle for business and property investments – Trust assets – Whether property is wholly held on trust – Unit Trust Deed – Division of units - Trustee powers including power of sale – Dispute between directors of corporate trustee as to sale of property – Application brought by unitholder to compel sale – Land owned by trustee – Interference with trustee’s role – Opposition by other unitholder seeking to retain property – Option to acquire either side’s interest – Buyout offer and counter-offer - Whether deadlock in affairs of unit trust – Breakdown of commercial relationships – Court’s power to order sale – Application dismissed.

EQUITY – Claims for equitable relief – Discretionary nature of specific performance – Whether remedy available where time specified in clause 9 had expired – Term no longer capable of performance – Consideration of unitholder’s own contribution to delay – Whether waiver – Whether conduct of other unitholder amounted to waiver of right to insist on strict compliance with clause 9 – Correspondence between solicitors – No such representations made – Any waiver unilateral and ineffective - Whether equitable estoppel – Elements not established – No clear and unequivocal promise to abandon parties’ contractual obligation – No evidence of detrimental reliance – Whether forced sale of land necessary – Alternative mechanism available to purchase interest in property at fair value – Current ‘open’ offer – Claim dismissed – Commercial workaround available to parties.

CIVIL PROCEDURE – Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Ancillary bases for relief – Order 54 – Proceedings relating to trusts – Availability of relief without general administration – Scope and limitations – Whether Titles 2 and 3 of property held on trust – Order 55, r 55.02 – Court’s power to order sale of land – Whether rule confers a wide-ranging discretion to order sale – Not a free-standing power exercisable merely when ‘necessary or expedient’ – Express wording ‘for the purposes of the proceeding’ confines power – Historical development and operation of rule.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	D Aghion KC J Lindgren	Hall & Wilcox
For the Defendants	M Harvey KC L O’Rorke	Mills Oakley

HIS HONOUR:

Introduction

The plaintiff, M & H Allen Services Pty Ltd (‘Allen’), is the holder of 2,800 of the 10,000 issued shares in the first defendant, Blue Sea Container Storage Pty Ltd (‘BSCS’). BSCS is the trustee of a unit trust (‘Unit Trust’) established by a unit trust deed made on or about 7 September 1983 (‘Unit Trust Deed’). Allen is the owner of 2,800 units in the Unit Trust. The remaining 7,200 shares in BSCS and 7,200 units in the Unit Trust are owned by the third defendant, Dizane Holdings Pty Ltd (‘Dizane’).

Allen also owns 2,800 shares in the second defendant, Blue Sea Container Holdings Pty Ltd (‘BSCH’). Similarly, Dizane owns the remaining 7,200 shares in BSCH.

BSCS is the registered proprietor of a parcel of land located at 2B Somerville Road, Footscray being the land described in certificate of title volume 9825 folio 718 (‘Title 1’) which it acquired in May 1988.

BSCH is the registered proprietor of a parcel of land described in certificate of title volume 10114 folio 673 (‘Title 2’) which it acquired on 10 September 1993, and a third parcel of land described in certificate of title volume 10227 folio 700 (‘Title 3’) which it acquired in June 1995.

Titles 2 and 3 are adjacent to Title 1. Together, the three properties form part of the land known as 2B Somerville Road, Footscray (‘Blue Seas Property’). Of note, the Blue Seas Property is the only remaining property held on trust for the Unit Trust that has not yet been sold.

There are two directors of BSCS and BSCH; Murray Allen (‘Mr Allen’) who is also a director and shareholder of Allen and Anna Dizane (‘Mrs Dizane’) who is a director of both BSCS and BSCH. Mrs Dizane is also the sole director and shareholder of Dizane.

The only business carried on by BSCS is in its capacity as the appointed trustee of the Unit Trust. The business of the Unit Trust is confined to owning its part of the Blue Seas Property. BSCH likewise exists solely to hold its portion of the Blue Seas Property. There is an issue between the parties as to whether BSCH owns its parts of the Blue Seas Property as a co-trustee of the Unit Trust, as Allen contends, or whether it owns them on its own account as Dizane contends. However, little if anything turns on that distinction.

By originating motion filed 26 November 2024, Allen sought relief pursuant to ord 54, r 2(b)(iii), (c)(ii) and/or 55.02(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’) for approval of the sale of the Blue Seas Property and orders for the appointment of Cushman &Wakefield estate agents as agents (‘Selling Agent’) for the sake with a reserve price initially set at $32,450,000. Pursuant to orders made 30 May 2025, pleadings were filed, and in a statement of claim filed 4 June 2025, Allen sought additional further or alternative relief for specific performance of clause 9 of a deed entitled ‘Co-Owners Deed’ made 14 November 2019 between Mr Allen (and his wife Heather Allen), Allen, Dizane, Mrs Dizane, BSCH and BSCS (‘the Co-Owners Deed’).

BSCS which holds a power of sale under the Unit Trust Deed,[1] and BSCH, as the first and second defendants, did not defend the proceeding. The substantive defence filed 11 June 2025 was advanced by the third defendant, Dizane. Allen and Dizane (together, the ‘parties’) each filed affidavits in support of their respective positions, which constituted their evidence-in-chief. There was no cross-examination. A court book of documents was also tendered.
[1]Clause 30.2 of the Unit Trust Deed.

The crux of the dispute is that Allen wants the Blue Seas Property to be put to market and sold. Dizane, on the other hand, now wishes for the property to be retained. It is willing to acquire the shares owned by Allen in BSCS and BSCH, as well as Allen’s units in the Unit Trust, for an amount which is referable to Allen’s proportionate share of the estimated market value of the Blue Seas Property as determined by an independent valuation prepared by Brian Dudakov (‘Mr Dudakov’), a certified practising valuer. Mr Dudakov was appointed by the Court pursuant to s 65M of the Civil Procedure Act 2010 (Vic) (the ‘CPA’) and assessed the current market value of the Blue Seas Property at $22.69 million (exclusive of GST). Mr Dudakov also assessed the value of a special interest premium that may be paid for the property by a special interest buyer such as the sitting tenant in the amount of $311,431. These two figures total $23,001,431.

Although the claim set out in the originating motion, and Allen’s proposed orders submitted to the Court on the day before the trial referenced the provisions relied upon in the Rules as the basis for relief, at the hearing on 15 July 2025, Senior Counsel for Allen accepted that his client could only obtain the orders howsoever framed, if it succeeded in its claim for specific performance of clause 9 of the Co-Owners Deed.

Clause 9 of the Co-Owners Deed is headed ‘Sale of Property’ and reads:

It is agreed by the Parties that both the Blue Seas Property and the Bell Street Property will be placed for sale by the Parties within 36 months of date of this Deed or such other time as unanimously agreed to by the parties.
The parties envisage that the Blue Seas Property will be placed for sale in the next 12 to 18 months followed by the Bell Street Property.

Relatedly, and as part of its case, Allen otherwise submitted that Dizane waived, and/or, is estopped from relying on, strict compliance with the 36-month timing requirement in clause 9 of the Co-Owners Deed.

Before turning to the parties’ arguments in more detail, it is convenient to set out the relevant factual narrative that gives rise to the dispute.

Factual Narrative
Background

BSCS was incorporated on or about 11 May 1982. Amongst its initial directors was Nereo Dizane (‘Mr Dizane’), who later married Mrs Dizane. BSCS carried on a business involving the servicing and repair of shipping containers. At Mr Dizane’s request, Mr Allen joined the business in around 1983. When the Unit Trust was established on 7 September 1983, Allen was allocated 2,800 units in the Unit Trust, with Dizane allocated the balance of 7,200 units. Mr Allen was subsequently appointed as a director of BSCS on 1 July 1989.

In April 1986, Dizane and Allen jointly acquired a property at 34 Bell Street, Heidelberg Heights (‘the Bell Street Property’) as tenants in common.

In May 1988, BSCS became the registered proprietor of the land comprised in Title 1.

On or about 12 August 1988, BSCH was incorporated with Mr Allen, Mr Dizane and Kenneth Roy Harvie (Mr Dizane’s then-accountant and friend) as directors. BSCH’s issued share capital was held 72% by Dizane and 28% by Allen.

On 10 September 1993, BSCH acquired Title 2, which adjoined Title 1. In June 1995, it acquired Title 3, another adjacent title. Each of these three parcels was formerly Crown land.

Around 2003, Mr Dizane and Mr Allen sold the shipping container servicing business, to a third party, CC Containers. Although the business had been commercially successful, Mr Dizane wanted to step back and take a break from running the business. Since that time, the business of BSCS (as trustee of the Unit Trust) and BSCH has been limited to ownership of the Blue Seas Property, which has been leased to various parties including, relevantly, to Interport Services Pty Ltd (‘Interport’) from about 28 August 2014. Interport, in turn, subleased the property to Medlog Australia Pty Ltd (‘Medlog’) from July 2018.

Unit Trust Deed

The Unit Trust Deed adopts a fairly standard form. Its key terms are summarised below.[2]
[2]The terms of the Unit Trust Deed are recorded at pages 79 to 115 of Exhibit MJA-1 contained in the first affidavit of Mr Allen (‘First Affidavit’) sworn on 22 November 2024.

It provides that the trust is to be known as the ‘Blue Sea Container Storage Unit Trust’ (clause 2), that the trustee is BSCS, and that the unitholders of the Unit Trust are Dizane and Allen as to 7,200 and 2,800 units respectively (see schedule).

The Trustee stands possessed of the Trust Fund and its income subject to the powers and provisions of the Trust Deed (clause 1). The ‘Trust Fund’, defined as comprising, inter alia, ‘all moneys, investments and property from time to time paid or transferred to and accepted by the Trustee as additions to the Trust Fund ...’ is held by the Trustee upon trust for the Unit Holders for the time being… in proportion to the number of Units held by them (clause 15.1); prior to the Termination Day, no Unit Holder is entitled to require the Trustee to pay to him any part of the trust fund, to transfer to him any of the assets or property of the Trust Fund, or to deal with any part of the trust fund otherwise than as provided for in the Deed (clause 15.2); no Unit Holder shall be entitled to interfere with or question the exercise or non-exercise by the Trustee of any of the trusts, powers or authorities or discretions conferred upon the Trustee by the Trust Deed (clause 15.3); the beneficial interest of the Unit Holders in the Trust Fund is divided into units but the units ‘shall not confer any interest in any particular part of the Trust Fund nor in any investment but only such interest in the Trust Fund as is conferred … under the… Deed’ (clause 15.4).

The ‘Termination Day’ is defined as the day the Trustee may, in his discretion, determine with the consent of the unitholders (clause 3.6), whilst the Termination Day specified in the schedule to the Trust is the 80^th anniversary of the date of the deed, which is also the same period as the perpetuity period (see schedule and clause 3.8).

Clause 12 provides that the exercise of any discretion or power conferred or imposed upon the Trustee or the making of any decision or determination by the Trustee shall, where the Trustee is a company, be made by resolution of the Board of Directors or the governing body of the Trustee.

Clause 13 provides that the Trustee may convene meetings of unitholders and that every question arising at such meetings shall be decided by a show of hands unless a poll is demanded, in which case on a poll every unitholder present in person or by proxy shall have one vote for every unit held by it (clause 13.1 and 13.5).

‘The consent of the Unit Holders’ is defined as a consent or direction of a simple majority of Unit Holders who hold a simple majority of units which give an entitlement to vote (clause 3.7).

Clause 24 sets out pre-emption rights which are to the effect that no Unit Holder shall transfer or agree to transfer any unit without first giving notice in writing to the Trustee, which notice shall state the number of units which that Unit Holder desires to transfer and the price at which the Unit Holder desires to transfer them (clause 24.1). Upon receipt of the transfer notice, the Trustee shall forthwith give a copy of the notice to each Unit Holder and if that Unit Holder wishes to acquire the units, the Unit Holder shall give written notice to the Trustee of that fact and state whether he is willing to pay the price mentioned in the transfer notice or desires that the price be determined pursuant to clause 22 as if an allotment was made on that date (clause 24.2).

The process for determining value in accordance with clause 22 provides for the Trustee to draw up a statement of assets and liabilities of the Trust Fund in accordance with accepted accounting principles, but with the value of all assets being at the current market value (clause 22.2.4).

Under clause 28, if a Unit Holder is aggrieved or disputes the price so determined by the Trustee, a valuation of the units can be made by an auditor appointed by the President of the Australian Society of Accountants (clause 28.3).

Co-Owners Deed

As noted above, on 14 November 2019, Mr and Mrs Allen, Allen, Ms Dizane, Dizane, BSCH and BSCS entered into the Co-Owners-Deed. By then, the Blue Seas Property was the only substantive asset of the Unit Trust. Clause 2 of the Co-Owners Deed, titled ‘Ownership’, contained an acknowledgement that the units in the Unit Trust and the shares in BSCH were owned as to 72% by Dizane and 28% by Allen, but that the Bell Street Property was owned by Dizane and Allen as tenants in common in equal shares.

By clause 8.2, the Parties agreed not to mortgage, encumber, sell, or otherwise deal with the Blue Seas Property and/or the Bell Street Property in any manner inconsistent with the Co-Owners Deed, unless agreed to unanimously by the Parties.

Clause 8.3 provided that the Parties agreed not to bring any application to any Court seeking partition, or partition and sale, of their interest in the Blue Seas Property and/or the Bell Street Property.

As noted earlier, clause 9 of the Co-Owners Deed provides:

It is agreed by the Parties that both the Blue Seas Property and the Bell Street Property will be placed for sale by the Parties within 36 months of date of this Deed or such other time as unanimously agreed to by the parties.
The Parties envisage that the Blue Seas Property will be placed for sale in the next 12 to 18 months followed by the Bell Street Property.

Relevantly, the period of 36 months from the date of the Co-Owners Deed, for the purpose of clause 9 above, expired on 14 November 2022 (‘the Deed Date’).

Clause 11, headed ‘Option’, provides:

Subject to clause 9 in the event that any party to this Deed wishes to sell their interest in the Blue Seas Property and/or the Bell Street Property (the Terminating Proprietor) by giving a 6 months written notice to the non-selling party (the Continuing Proprietor), they shall grant to the Continuing Proprietor an option to purchase the Blue Seas Property and/or the Bell Street Property and improvements which is exercisable by the Continuing Proprietors by providing a written notice to the Terminating Proprietor within three months from the date of notice of intention to sell being given to the Continuing Proprietors upon the following terms and conditions:
11.1The value of the land and improvements is determined by agreement between the parties, failing agreement as determined by the means of two (2) licensed valuers appointed by each of the parties, failing agreement as to the valuer as appointed by the nominee of the President of the Law Institute of Victoria, the means of two (2) valuer’s shall be binding on the parties and the parties shall each bear the costs of the valuation in accordance with their Entitlement.
11.2The parties shall enter into a standard LIV Contract of Sale of Real Estate with the Contract being executed within 14 days of determination of the valuation upon the following terms:
(a)The share of their Entitlement of the valuation of the Blue Seas Property and/or the Bell Street Property less their share in accordance with their Entitlement of any legal costs, valuation fees and any other associated costs shall be paid 60 (sixty) days from determination of the Value of the properties.
(b)In the event that the Continuing Proprietors do not exercise option to purchase the Blue Seas Property and/or the Bell Street Property then either or both property shall be sold by either public auction or private treaty at a price and conditions to be agreed to by the parties, failing agreement as determined by a licensed real estate agent appointed by the parties or failing agreement as to the real estate agent within 14 days as determined by a real estate agent appointed by the nominee of the President of the Law Institute of Victoria.

Clause 15, titled ‘Variation’, provides that the Co-Owners Deed can only be varied in writing by the unanimous agreement of the parties.

Clause 17, titled ‘General Matters’, provides that all parties undertake to execute all instruments and do all things necessary or expedient to carry out the objects of the Deed.

Clause 19 provides:

(a)Any indulgence by one party to another or failure to enforce a provision shall not prejudice the rights of that party under this Deed nor be deemed to be a novation hereof or a waiver of the party’s rights against the other.
(b)No variation modification or waiver of any provisions of this Deed (including this sub-clause) or consent to any departure herefrom shall be of any force or effect unless in writing signed by the parties.

Clause 23 provides that the parties agree that time is of the essence of the agreement.

Events of Late 2021 and 2022

On or about December 2021, the Bell Street Property was sold for $1 million by Dizane and Allen as contemplated by the Co-Owners Deed.

On 23 March 2022, at a meeting held at Mrs Dizane’s home and attended by a representative of the sub-lessee Medlog — its Chief Operating Officer, Ned Zver (‘Mr Zver’) — Mr Allen, Mrs Allen, their son-in-law, Aleks Petkovic (‘Mr Petkovic’) and Mrs Dizane, Medlog reiterated its interest in either entering into a direct lease of the Blue Seas Property (rather than via sub-lease) or alternatively purchasing it. Medlog had previously conveyed such interest at an earlier meeting attended by the same individuals on 12 August 2021.

It is common ground that the participants agreed to enter into a new lease with Medlog after negotiating terms. Mr Petkovic’s handwritten file note of the meeting held on 23 March 2022 records that MA (Mr Allen) and AD (Mrs Dizane) wished ‘to hold off’ and that ‘both agree now [was] not the time’ as the rent was likely to spike at renewal. His note otherwise records, against the initials AD: ‘sell to Medlog post new lease; need tenure in lease, worth more than now when lease short dated; max price to be realised post Aug 23.’

On 21 October 2022, Mrs Dizane emailed the solicitors who had prepared the Co-Owners Deed. Her email, containing the subject line ‘Dizane/Allen Agreement’, read:

Hi […….],
This Agreement has been playing on my mind. Firstly, I feel I cannot trust Murray. Which saddens me, as I believed we had an honest and open relationship. I should’ve realised it when he demanded the Agreement and on his terms, the sale of Bell Street, where I was not allowed to even think of buying the property myself. Now he decides he does not want to EVER sell and denying that he knew about the Agreement and said he NEVER wanted to sell. Not sure where I want to go with this. I must admit I’ve told him on a number of occasions I would like to buy. But never any comment. These are my thoughts. Also Adrian, no disrespect to you, but I will need to get another opinion on the next agreement that might be drawn up. If I can have an option to buy? Just a thought.
Thanks, Anna.

On or about 8 November 2022, Mr Allen, his wife and Mrs Dizane met with the solicitors. Following that meeting, the solicitors wrote to them. The letter, among other things, enclosed a copy of the Co-Owners Deed. Relevantly, the letter continued:

We refer to your recent attendance at our office.
We confirm you have an existing co-owners agreement in place dated 14 November 2019 (copy enclosed for ease of reference).
A co-owners agreement is an agreement that regulates the management, ownership and enjoyment of the property.
Such an agreement is beneficial where parties own real property as tenants in common instead of as joint proprietors.
A co-owners agreement allows for the parties: …
•to have a lock-in mechanism not to mortgage/sell or encumber the property in contravention of the agreement or to bring any court application seeking to partition or sell the property …

• have mechanism to terminate their respective interests in the property
…
We note you wish to review your current co-owners agreement to remove clause 9 in relation to the proposed sale of the property, as you have agreed that you do not wish to sell the property at this stage.
We confirm clause 11 gives either of Murray or Anna an option to acquire the other’s interests should one party wish to sell. The co-owners agreement provides that two sworn valuations are to be obtained and the value shall be the means of the two valuations.
We note you wish to amend the existing co-owners agreement so that in the event Anna or Murray pass away, the survivor would have the right to acquire the deceased party’s interest, again using the means of two sworn valuations as the purchase price of the interest being acquired. If the survivor does not wish to acquire the interest, then the property is to be sold.
We note Murray may wish to consider whether it is on the passing of the last to survive of he and Heather
We note it was agreed for Anna on behalf of all of you to engage CVA Real Estate to provide a valuation to consider.
Once the valuation has been obtained, we recommend we meet again to discuss your thoughts.

On 9 November 2022, Mills Oakley solicitors, which had now been retained by Dizane and Mrs Dizane sent a letter by express post to Mr and Mrs Allen, to Allen, and to BSCS and BSCH at the respective addresses for service of notices set out in the Co-Owners Deed. The firm also emailed a copy of the letter to Mr Allen on 10 November 2022 confirming that the original letter of 9 November 2022 had been sent the previous day. The covering email also recommended that Mr Allen obtain legal advice before responding, as the letter affected his legal rights.

Relevantly, the letter from Mills Oakley after referencing the Co-Owners Deed and in particular clauses 9 and 23 — confirmed that the 36-month period referred to in clause 9 expired on the Deed Date. The letter then stated the following:

Purchase
3In light of recent developments and in the current circumstances, our clients no longer envisage that it is appropriate that our clients and you continue to conduct business together in relation to the Blue Seas Property. Whilst our clients have enjoyed working with you in the past, she has decided that it would be wise to finalise the partnership.
4We are instructed that our clients, or their nominee, are willing to purchase the balance of the interests in the Blue Seas Property that they do not currently hold, either directly or indirectly.
5If you are willing to sell your interest in the Blue Seas Property, or are otherwise willing to cause all interest in the Blue Seas Property to be transferred, to our clients or their nominee, please let us know within 14 days of the date of this letter, in which case, the parties can commence negotiations for the transfer of the Blue Seas Property to our clients or their nominee.

Clause 9 of the Deed
6If you are not willing or otherwise do not agree to transfer the Blue Seas Property to our clients or their nominee as described above, then we are instructed that our clients hereby invoke clause 9 of the Deed, albeit that they do so reluctantly, given the matters set out above.
7Accordingly, the parties must take immediate steps to cause the Blue Seas Property to be placed for sale by the Deed Date, particularly bearing in mind clause 23 of the Deed, whereby time is of the essence.
8In that regard, our clients are willing to engage Ian Angelico from CVA for that purpose.
9Please let us know by the close of business on Friday, 11 November 2022 whether you agree to the appointment of any of the real estate agents nominated above. If you do not agree with any of the real estate agents nominated by our clients, then please provide us with the names and contact details of the real estate agent(s) that you propose be engaged so that the parties can comply with clause 9 of the Deed.
10We are instructed that if the Blue Seas Property is placed for sale in accordance with clause 9 of the Deed, then the parties ought to engage with an appropriate real estate agent to assist to facilitate the sale of the Blue Seas Property but which sale should not take place until a new lease is executed with the current tenant at the Blue Seas Property. We are instructed that the current lease expires in around May 2023 and that negotiations for a new lease with the current tenant may shortly commence.
11Please let us know if you have any queries about placing the Blue Seas Property for sale.
12For completeness, we note that this letter is provided in accordance with clause 22 of the Deed.

Mr Petkovic responded to Mills Oakley’s email of 10 November 2022 at 9:40pm on that same day.

After introducing himself, requesting that all future correspondence be directed to him (with Mr Allen copied), and expressing disappointment that Mrs Dizane had opted to issue a ‘legal demand’ and take a path divergent from their previously close partnership, Mr Petkovic wrote:

Notwithstanding this, the first Murray and Heather have heard of this is this evening (via your email, and have yet to receive any physical letter).
As such we will need to take the required time to consider our options and come back with our feedback once we have considered our legal position. Clearly, this will not be by your deadline, which we find absolutely predatory and inconsistent with us aiming to reach a sound and informed decision.
In the interim, we reserve all our rights and do not approve any action being taken without our express agreement.

On Sunday, 20 November 2022, Mr Petkovic wrote to Mills Oakley. Mr Petkovic’s email commenced by referencing the meeting which had occurred on 23 March 2022 to discuss the Blue Seas Property and his notes from that meeting. His email continued:

Anna’s explicit statement at the time was that her desired way forward was:
(a)       get the new lease signed, which as you say is due for expiry next May;
(b)       collect the rent for a few months;
(c)       sell the property.
(a)On the same day Anna, Murray and myself had a call with Ned Zver, who is the COO of Medlog Oceania, and our key contact re the lease;
(b)Ned stated that they are very eager to extend/renew the lease upon maturity;
(c)In that same meeting, Ned stated that Medlog are interested in making us an offer on the property, should we wish to sell:
(i)He has also made this comment previously, in a zoom meeting attended by Anna, Murray and myself.

I have also conferred with everyone present in the meeting at [the solicitors] earlier this month, where the key agenda item was the Blue Seas Property. The key outcomes and action items were:
(a)Barry Northfield to commence the lease renewal process, which is likely to take months.

(b) Anna to liaise with Ian Angelico to get a property valuation.
(c)Intention to remove clause 9, as neither party wishes to sell at the moment.

I have reviewed the minutes from this meeting (which Anna presumably also has received), and there is not even a reference to Anna offering to purchase Murray’s share or wanting to take any immediate action with regard to the ownership structure. The key plan and action items are per above.
So, I am not clear what your/Anna’s updated position is.
If this lease renewal is due for May, are you suggesting that Anna wishes to put it on the market prior to this?

Mills Oakley responded by email sent on 29 November 2022. The email acknowledged, among other things, Mr Petkovic’s email of 20 November 2022 and referenced Mills Oakley’s earlier letter of 9 November 2022 in respect of which Mills Oakley asserted that they had not received a substantive response. They maintained that the meetings referenced in Mr Petkovic’s 20 November 2022 email were irrelevant in the context of the Co-Owners Deed and that their client’s position was clearly set out in the letter dated 9 November 2022, which was said to answer each of the queries set out in the 20 November 2022 email. The email requested Mr Allen’s response to that letter and advised Mr Allen to obtain legal advice before responding, as the matters set out in the letter affected the legal rights of both Mr Allen and Allen.

Mr Petkovic replied by email on 30 November 2022. After noting that Mr Allen was currently ill, Mr Petkovic asserted that the deadlines imposed by Mills Oakley were inappropriate and not conducive to ‘making an informed decision’ (including having sufficient time to seek legal advice which was an issue that had already been flagged). The email then continued:

Be that as it may, please see my responses below:
1If Anna wants to make us an offer, she has every right to do so, and we will consider it. To be clear, we are not interested in a protracted negotiation, but she can put in an offer that matches the substance of the property and the appetite and intent of Medlog (amongst others) to purchase the property.
2Should the need arise for one, I find it perplexing that you impose a 24 hr deadline to nominate a real estate agent.

You may not be aware of this, but the property is very unique and would require a specialist skillset. As part of this, any sensible person would naturally speak to/interview multiple agents, understand their expertise in this field, their fee structure, before nominating a preferred candidate. Again, I am not sure how a 24 hr window is suitable for this, or allows us to make an informed decision.
The agents I have spoken to have all reiterated the same feedback:
•The property generates a fantastic income stream and the tenant is arguably the most bankable private entity in Australia, generating a profit in excess of $10b annually.
•The location is amongst the most compelling sites in the country, being strategically located within the largest port in Australia and will grow its value for as long as ships are used for transport.
•To maximise the sale price, the best time to sell is once the lease is agreed and income stream is known to all prospective buyers.
•Geelong Port (which is substandard to Melbourne), was sold this month at a capitalisation rate of 2.5%.

I look forward to receiving Anna’s offer.

By emails sent by Mr Petkovic to Mr Patrick on 21 December 2022 and 29 December 2022, Mr Petkovic chased up a response to his email of 30 November 2022. In his 29 December 2022 email, Mr Petkovic noted that it had been more than a month since his previous email and he had not received an acknowledgement or answer. Emphasising that the property was of very great value to him and his family, and that the current uncertainty was causing undue stress to Mr and Mrs Allen, he continued in his email in the following terms:

Anna is free to make an offer, or not if she doesn’t want to, but we should be told either way. To have us just sitting around without any clue what is happening to a very significant financial asset is grossly unfair, and makes it impossible to plan for our future.

On 17 January 2023, Mills Oakley wrote to Mr Petkovic. The subheading to the letter referenced the Blue Seas Property and leasing issues. The letter is not directly relevant for present purposes, save that it references discussions between Mr Allen and estate agents from CVA Property Consultants Pty Ltd (‘CVA’) on 15 and 16 December 2022 relating to the proposed extension of the lease with Medlog and affirmed that it was in all parties’ interests that the lease extension was properly negotiated and secured, for reasons which, in the firm’s view, were self-evident. The letter noted that the lessor of the property was BSCS and BSCH jointly, with Mrs Dizane and Mr Allen being the current directors. It also observed that ‘as you know, there is a current deadlock between the parties’. The letter then reiterated that only Mrs Dizane and Mr Allen acting together could authorise the companies to give instructions and otherwise bind the companies in respect of the lease extension. The letter then proposed for the appointment of an independent lawyer to act for the companies in respect of the lease extension.

On 25 January 2023, Mills Oakley emailed Mr Petkovic, observing that despite numerous emails there had been no response to the matters raised in Mills Oakley’s initial letter dated 9 November 2022. The email stated:

To ask our client whether she is willing to make an offer or not to purchase the balance of the Blue Seas Property distracts from the matters raised in our letter. In that regard, we request that you please, as contemplated by paragraphs 4-5 of our letter, indicate whether Murray and Heather (and their respective corporate entities) are willing to sell or otherwise cause their interests in the Blue Seas Property to be transferred to our clients or their nominee, in which case negotiations for the transfer of the Blue Seas Property can commence shortly.
We request that you please respond to the matters within 14 days of the date of this email.

On 25 January 2023, Mr Petkovic responded to Mills Oakley by email in the following terms:

We are willing to consider Anna’s offer in good faith. It’s clear that one way or another, this asset and relationship will cease shortly, and I would imagine that Anna would have already thought about the price she values the property at.
I again must reiterate the stress and anxiety this is causing Murray and Heather, both personally and financially.
Either Anna should make an offer, or tell us that she isn’t interested, and Murray and Heather can have clarity where their income is coming from and know the property will be put on the market later in the yr

On 4 February 2023, Mr Petkovic sent a follow-up email enquiring as to whether there was any update. The email noted that the parties had ample time to consider their options, and continued:

We are willing to hear an offer up until close of business Thursday the 9^th of February.
If Anna is unable or unwilling to make an offer by this date, please be advised that we will retain our interest in the property.

On 8 February 2023, Mills Oakley responded to Mr Petkovic. The email dealt with two matters, identified by the two subheadings ‘Offer’ and ‘Renewal of Lease’. The ’Renewal of Lease’ section related to matters in connection with the proposed new lease with Medlog. The email noted that the current lease was due to expire in a few months, and that ‘the current tenants wishes to renew the lease’[3].
[3]In fact, Medlog was the sub-tenant.

Under the subheading ‘Offer’, the email stated:

We are instructed that our client intends to shortly engage a valuer to value the Blue Seas Property.
Once our client has engaged a valuer, we anticipate that it may take at least 6 weeks to obtain a valuation. We will then seek instructions about the terms of our client’s offer to purchase Murray and Heather’s interests in the property.
We will be in touch when we receive instructions in that respect.

A series of emails then followed between Mr Petkovic and Mills Oakley in May 2023, in which Mr Petkovic chased up whether Mrs Dizane intended to make an offer or not. Mills Oakley sent an email on 12 May 2023 explaining that there had been difficulties with the valuer obtaining access to the property for the purpose of the valuation, but that in any event the valuation was likely to be received some time that week, at which time Mrs Dizane would then need some time to consider the valuation and what offer (if any) she was willing to make.

Mr Petkovic responded by an email sent on 14 May 2023 at 9:04pm. Under the subheading ‘Mediation’, he wrote the following:

2 Mediation
I have no idea how we go forward, with an asset that is a very significant investment for both parties, but absolute uncertainty with regards to each party’s intentions, who are now not even on speaking terms, and there are now unfortunately clear trust issues. As a result, we would like to request a mediation session to consider next steps with regards to the management of the property (including financial management above), but also if we can get on the same page with regards to the future direction and potential intention to sell.
As Anna will recall, Medlog has on multiple occasions expressed an interest in buying the property – what is our approach with them? There is an argument to suggest that our maximum leverage will be before we execute a new lease – should we consider this?
We are trying very hard to be pragmatic here and I’m not sure that it is helpful to anyone to have one party unilaterally decide to put the property on the market without even a basic consultation with the other shareholder. Whilst both parties can do so legally, we would view it as irresponsible and unreasonable. Surely, a level of transparency and discussion will allow everyone to consider their personal circumstances, and make plans or restructure their affairs.

Can you consider and advise.

On 15 May 2023, Mills Oakley replied, stating that any mediation was premature, including because Mrs Dizane could not form a view about whether and how she intended to make an offer until she had time to consider the offer valuation, which had been delayed due to access/operational issues at the property.

On 6 June 2023, Mills Oakley wrote to Mr Petkovic in response to a request that had been made on 25 May 2023 regarding various pending items. The email referred to various topics relating to the ownership of the property, but relevantly, for present purposes, under the subheading ‘Next Steps’, Mills Oakley wrote:

Next Steps
We are instructed that:
1To provide Heather and Murray with certainty, our client has requested that we inform you that she will formulate and provide to you, for Heather and Murray’s consideration, an offer in relation to the Blue Sea Property;
2However, before our client finalises and conveys any offer to you, our client thinks that it is in all parties’ interests that the lease negotiations be finalised and that the new lease be executed before any offer is conveyed. That timing will permit the parties to know precisely what the lease is and the consequences that will have in respect of the Blue Seas Property. We understand that those negotiations should commence shortly; and
3Our client notes your views about the parties remaining free to trigger a sale of the Blue Seas Property, as set out in your email. In that regard, we are instructed to refer to the Co-Owners Deed dated 14 November 2019 (Deed), in particular:
1Clause 9 which provides that the Blue Seas Property would be placed for sale within 36 months of the date of the Deed or such other time as unanimously agreed to by the parties. In that respect, we refer to our letter to Heather and Murray dated 9 November 2022; and
2Clause 11 which provides a process by which a party to the Deed may sell their interest in the Blue Seas Property to the other parties to the Deed.

In light of the matters expressed in your email, to which we have referred above, our client is willing to draft and provide to you for Heather and Murray’s consideration a document that amends the Deed and otherwise provide further certainty for the parties about the parties’ respective rights in relation to any future potential sale of the Blue Seas Property. Please let us know if Heather and Murray would like us to prepare a draft document for that purpose.
We are otherwise instructed that our client will continue to work constructively with you, Heather and Murray in relation to the finalisation of the new lease in relation to the Blue Seas Property, following which our client will convey an offer to Heather and Murray about the Blue Seas Property.

Mr Petkovic responded by email later that day, advising that he would come back more fully via separate email, but in the interim requesting that Mills Oakley ‘proceed with an updated document that governs the relationship and respective rights’.

A new lease was executed with Medlog on 15 August 2023 (‘the 2023 Lease’).

On 16 November 2023, Mills Oakley wrote to Mr Petkovic referring to the emails sent by Mills Oakley on 6 June 2023 and confirming that negotiations for the lease of the property had now been concluded. Mills Oakley advised that that ‘our client’ is in a position to commence the process of revisiting the agreement for the potential sale of the property. Mills Oakley requested confirmation that Mr Petkovic’s position had not changed and queried whether he and Murray were still willing to consider amending the Co-Owners Deed to provide further certainty for the parties about the parties’ respective rights in relation to any future potential sale of the Blue Seas Property.

In the event of confirmation, Mills Oakley advised that they would commence preparing an amended document for Mr Petkovic’s review.

On 20 November 2023, Mr Petkovic responded by email, advising: ‘We’ have been considering our position in this matter and would like to propose that ‘we’ (or an entity nominated by us) purchase Anna’s share of the property.’ The offer was said to be subject to two conditions; first, that Mrs Dizane nominate her asking price as per the valuation completed earlier in the year and, secondly, that Mr Petkovic and others meet with the accountants who had otherwise been handling the tax and accounting compliance issues for BSCS and BSCH. Mr Petkovic’s email expressed a desire to meet with them in order to understand ‘the embedded tax credits and various other financial details as they relate to the entities’. The final offer by Mr Petkovic (and presumably Mr Allen) was said to be subject to both of those matters. Mr Petkovic’s email concluded by stating that in those circumstances it was not necessary, for the time being, to prioritise the updating of the Deed.

Mills Oakley responded by email on 27 November 2023. In that email, they expressed gratitude on behalf of Mrs Dizane for receipt of the offer to purchase her share in the Blue Seas Property, but stated that Mrs Dizane was not currently in a position to sell her interests in the property and as such politely declined the offer. The email concluded by Mills Oakley advising that Mrs Dizane ‘would prefer that the parties preserve their rights to sell or otherwise deal with their respective interests in the Blue Seas Property, consistent with the Co-Owners Deed, at some time in the future’ and to that end advised that they had been instructed to prepare a draft deed for review.

By email sent on 4 December 2023 at 11:50am, Mr Petkovic emailed Mr Patrick stating that:

We remain very unclear about the process, both in terms of timing to date, as well as where we go from here: We are unclear as to what the proposed document will include, as our advice is that the existing agreement works fine, and the only change may need to be a recalibrated date (even this is arguable) – We are also unclear as to why this could not have been completed earlier – it is not dependent on the lease (which itself was completed 3 ½ months ago). … So before we consider any documentation, we would like to understand Anna’s intentions – we do not wish to engage in a cryptic and mysterious process where our financial future may be significantly impacted without even the basic courtesy of being notified.
As you are aware, both parties are free to make a unilateral decision, but frankly this seems like the least sensible option for all parties.

Communications in 2024 and the commencement of legal proceedings

On 27 February 2024, the parties participated in a private mediation, which was unsuccessful and later engaged in further without prejudice communications.

On 28 June 2024, Hall & Wilcox, on behalf of Allen, wrote to Mills Oakley. The letter referred to the email from Mills Oakley sent on 10 November 2022 stating that Dizane was willing to sell the Blue Seas Property in accordance with clause 9 of the Co-Owners Deed, noted careful consideration of a proposed draft deed and respective rights and responsibilities of the parties, but advised that Allen was not willing to engage further in that process. The letter continued by requesting that the Blue Seas Property be listed on the market for sale in accordance with clause 9 and otherwise proposed some machinery provisions in relation to the sale.

By letter dated 19 July 2024, Mills Oakley wrote back to Hall & Wilcox, inter alia, advising that Dizane was not presently minded to put the Blue Seas Property up for sale via a public auction, disputed any contractual entitlement on behalf of Allen to unilaterally require that the property be sold or otherwise rely upon clause 9 of the Co-Owners Deed. The letter also noted that Dizane was content to continue with the current ownership and management arrangements in respect of the Blue Seas Property and entities.

By letter dated 7 August 2024, Mills Oakley again wrote to Hall & Wilcox referring to the 6 August 2024[4] correspondence and relevantly restating that clause 9 of the Co-Owners Deed could not be relied upon, as clause 9 required the property to be placed for sale by no later than 14 November 2022 and thereafter required unanimous agreement. The letter further noted, for the sake of completeness, that the parties had not agreed ever to change the 14 November 2022 date.
[4]On 6 August 2024, Hall & Wilcox had written a further letter to Mills Oakley seeking a response to the Hall & Wilcox letter of 28 June 2024, complaining that there had been no open response to that letter. This was disputed by Mills Oakley in their 7 August 2024 letter, which pointed back to their earlier correspondence of 19 July 2024.

Further, the letter referred to the mechanism set out in clause 11 of the Co-Owners Deed and expressed the willingness of Dizane to purchase Allen’s interest in the property, stating that a public sale was unnecessary in the given circumstances and that there was an appropriate mechanism available in the Co-Owners Deed by which Allen would be paid fair value for its interest in the property.

In November 2024, Mr Petkovic made enquires on behalf of Mr and Mrs Allen with Cushman & Wakefield estate agents to see if they would be willing to act as agents in connection with a sale of the property. They advised that they would, provided proposed commission and advertising budgets and estimated the sale price at between $32,450,000 and $35,750,000.

On 26 November 2024, Allen commenced this proceeding.

Offers by Dizane and Allen

On 22 January 2025, Mills Oakley wrote to Hall & Wilcox providing an open offer to the effect that Dizane was willing to purchase Allen’s interest in the properties (comprising the shares and units), and to be bound by an independent valuation of the property by a qualified valuation expert, either to be agreed by the parties or appointed by the Court (‘Dizane Offer’).

By orders made 7 February 2025, the Court set down the proceeding for trial on 15 July 2025 and also referred it to mediation. Additionally, the Court made orders for the appointment of a valuer to undertake a valuation of the property, with the identity of that valuer to be agreed or, failing agreement, to be appointed by the Court, with each party forwarding the names of their proposed valuer to the Court.

The parties could not agree on the valuer and as a result, by order made 14 March 2025, the Court appointed Allen’s nominee, Mr Dudakov, as the Court-appointed valuer. Mr Dudakov valued the Property at $22,690,000 and stated that there would be a premium from a special-interest buyer, such as Medlog of approximately $311,431.

On 9 May 2025, Mills Oakley sent a letter to Hall & Wilcox containing an open offer to resolve the proceeding on the basis that Dizane buy out Allen’s interest in the property (sic) for $7 million payable within 90 days. The offer also extended to paying Allen’s standard costs of the proceeding to date.

By letter dated 28 May 2025, Hall & Wilcox responded, rejecting the open offer of $7 million. Instead, they proposed to settle the proceeding on the basis that Allen would buy out Dizane’ interest in the property for $18 million.

Attempts to Appoint a Third Director

Subsequently, Dizane convened by notice, general meetings of BSCS and BSCH to vote on a proposed resolution for each company that a third director be appointed. The first meeting was convened for 16 June 2025. Allen did not attend the meeting, with the consequence that the general meeting was inquorate and as such no resolution was passed at the meeting.

A further shareholder meeting was convened Dizane for 14 July 2025, once again for the purposes of considering a proposed resolution to appoint a third director. Details of the proposed third director and his experience were provided in advance of the meeting. Once again, Allen did not attend, with the consequence that the general meeting was inquorate and as such no resolution was passed at the meeting.

The Plaintiff’s Case
Introduction

As noted earlier, although Allen framed its case on three bases — first, pursuant to ord 54, r 2 of the Rules; secondly, pursuant to ord 55, r 2 of the Rules; and thirdly for specific performance of clause 9 of the Co-Owners Deed, at trial Allen accepted that, if it did not succeed in its claim for specific performance (if necessary by reference to notions of waiver and estoppel), ords 54 and 55 did not provide an independent basis for relief.

Insofar as Dizane seeks to rely upon the expiration of the 36-month period referred to in clause 9 of the Co-Owners Deed, Allen submits that Dizane is estopped from insisting upon strict compliance with that clause, or alternatively, has waived its right to do so.

The estoppel and waiver claims rely on the same underlying matters[5]: the statement by Mrs Dizane at the meeting held on 23 March 2022, as recorded in Mr Petkovic’s file note, to the effect that ‘she wanted to wait until a new lease was entered into with Medlog before selling [the Blue Seas Property]’; her reiteration of that position at a meeting held at RNG Lawyers on 2 November 2022; and the letter from Mills Oakley dated 9 November 2022, which urged Allen to comply with clause 9 of the Co-Owners Deed. The statement of claim also refers to the response letter from Mills Oakley dated 19 July 2024 to the letter from Hall & Wilcox dated 28 June 2024. Although these two letters were pleaded as evidencing a deadlock and/or breakdown in the parties’ business relationship, Counsel clarified in closing submissions that they were also relied upon in relation to the estoppel claim as they identify the point at which Dizane resiled from the representation and the point at which Allen suffered detriment.
[5]The waiver claim is found in paragraph 50 of the statement of claim filed 4 June 2025, whilst the estoppel claim is found in paragraph 51. Both refer to the matters alleged in paragraphs 31, 32, 35, 36 and 37.

Orders 54 and 55

Order 54, r 2(b) and (c), and ord 55, r 2 provide as follows:

54.02   Relief without general administration
…
(2)       Without limiting paragraph (1), a proceeding may be brought for—
…
(b)       an order directing an executor, administrator or trustee to—
(i)        furnish and, if necessary, verify accounts;
(ii)       pay funds of the estate or trust into court; or
(iii)      do or abstain from doing any act;

(c) an order—
(i)approving any sale, purchase, compromise or other transaction by an executor, administrator or trustee; or
(ii)directing any act to be done in the administration of an estate or in the execution of a trust which the Court could order to be done if the estate or trust were being administered or executed under the direction of the Court.

55.02 Power to order sale
In any proceeding relating to land, where it is necessary or expedient for the purposes of the proceeding, the Court at any stage of the proceeding—
(a) may order that the whole or any part of the land be sold; and
(b)may further order that any party in receipt of the rents or profits of the land or otherwise in possession of the land deliver possession to such person as the Court directs.

The approach at trial

It is convenient at this point to make some observations about the course Allen’s case has taken.

Allen’s narrowing of the case to one of specific performance of clause 9 of the Co-Owners Deed, and, if necessary, recourse to waiver and estoppel as opposed to pressing a separate entitlement to relief under ords 54 and 55 was prudent for reasons explained below.

However, it must be acknowledged that the case which Dizane had come to meet was one framed in the wider sense by reference to the claims made in the originating motion as subsequently pleaded out in the statement of claim. As Dizane rightly emphasised, it is important in the context of the plea of estoppel, that Allen be held to its pleaded case. I accept that forensic decisions, such as whether to cross-examine deponents of affidavits, were likely made on the basis of the estoppel claim as articulated in the statement of claim. Dizane’s written outline of opening submissions was clearly prepared by reference to that pleaded case. Similarly, there was nothing in Allen’s written outline of opening submissions which suggested any widening of the estoppel case. That said, I did not discern any departure of great moment from the case as pleaded.

The claim for specific performance of clause 9 of the Co-Owners Deed

Allen submitted that, in construing the Co-Owners Deed, it is necessary to bear in mind both the context and the purpose for which the agreement was made. In that respect, Allen identified the following seven matters:

(a) All of the relevant actors were advanced in years with Mrs Dizane being around almost 70 years of age, Mrs Allen around 75 years of age and Mr Allen around 80 years of age;

(b) The business previously operated by the individuals from the Blue Seas Property had been sold in 2003, and the other jointly held property in Francis Street had been sold in 2014, leaving only the Bell Street and Blue Sea properties, both of which were passively held as investments, as the only assets remaining;

(c) It was abundantly clear that, in November 2019, when the parties entered into the Co-Owners Deed, they were intending to bring about the end of their remaining business relationship, and, to that end, contemplated an orderly wind down of three years to do so;

(d) They envisaged a three-year timeframe within which the parties would bring their relationship to an end;

(e) The Co-Owners Deed was a mechanism to implement a controlled wind down of their operations — and indeed their relationship;

(f) The Co-Owners Deed was intended to be, and was, a clear fetter on the parties’ existing relationship and structure, as evidenced by the corporate structure and the Unit Trust Deed;

(g) The Co-Owners Deed was intended to, and did, deal exclusively with land which is a unique asset with special standing when it comes to matters of specific performance.

The process of interpretation of a commercial document is well known and was not in issue. The rights and liabilities of parties are determined objectively by reference to text, context and purpose. Similarly, in Australian Broadcasting Commission v Australasian Performing Right Association Ltd[6] Gibbs J said:

1It is trite law that the primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied.

[6](1973) 129 CLR 99, 109 (in a dissenting judgment; however, this passage has been followed many times).

In determining the meaning of a term of a contract it is necessary to ask what a reasonable business person would have understood the terms to mean. This inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract [7]and the commercial purpose or objects to be secured by the contract.
[7]Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, [46]-[49].

Ordinarily, the process of construction is one which occurs, or is capable of occurring, by reference to the contract alone. Indeed, if an expression in the contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (that is events, circumstances and matters external to the contract) cannot be adduced to contradict its plain meaning.[8]
[8]Ibid [48].

Whilst a number of the matters identified by Allen are uncontroversial, I do not accept that they are material to the necessary task of construing the agreement. The words of clause 9 have a plain and clear meaning. Further, whilst some or all of the matters might have motivated some or all of the parties to enter into the Co-Owners Deed, the reasonable person in the parties positions would have understood that the Co-Owners Deed was entered into against the background of the commercial and legal structures by which the parties had chosen to conduct their commercial affairs since around 1983. Absent valid amendments to the Trust Deed, it was not open to the parties to ignore the structures and provisions of the Trust Deed simply because they no longer suit.[9] Nor can they be ignored because of any misunderstanding of the nature and effect of the Trust and the provisions of the Trust Deed when entering into the Co-Owners Deed.
[9]David & Ros Carr Holdings Pty Ltd v Ritossa [2025] NSWCA 108, [37].

These subsisting commercial and legal structures render the advancing years of Mr and Mrs Allen, and for that matter Mrs Dizane, of limited significance. Mr and Mrs Allen’s commercial interest was held through Allen a company which held shares and units in BSCS and the Unit Trust. That company’s subsistence was not linked to the lifespan of Mr and Mrs Allen Further, Allen was the trustee of a family trust, the terms of which were not in evidence but to the extent it matters, may reasonably be supposed to those of the standard discretionary family trust. The Unit Trust was structured such that, absent a determination made by the trustee (BSCS), with the consent of all the unitholders, the Trustee was to remain in possession of the trust fund (which relevantly comprised the Blue Seas Property) until 7 September 2063.[10] The units in the Unit Trust were not jointly owned by individuals of advancing years; they were owned by Allen as trustee of a family trust and Dizane. The unit holdings did not confer an ownership interest in any part of the Blue Seas Property entitling Allen to relief akin to an order for partition and sale. Rather, the units were held in a Unit Trust, governed by the terms of the Unit Trust Deed. Certain powers were reposed in BSCS, as trustee. As a company, those powers in a practical sense would be exercised by BSCS through its directors, of whom Mr Allen was one, and, if necessary, by the shareholders in general meeting. As a Unit Holder, Allen (but not Mr Allen personally) held certain rights under the Unit Trust Deed, including the right to redeem its units. A Unitholder could exit the Trust by giving notice to the remaining unitholder, provided the latter was willing to acquire those units. If not, the units could be acquired by another person or entity. As Trustee, BSCS owed a duty to administer the Trust Fund (which, relevantly, comprised the Blue Seas Property) in accordance with the provisions of the Unit Trust Deed. No Unit Holder was permitted to interfere with or question the exercise or non-exercise by the Trustee of its powers or discretions. The sale of the Blue Seas Property would not in fact and of itself bring the parties’ commercial relationship to an end; it would merely change the nature of the Trust Fund from a property asset to cash. The relationship of the Unit Holders would not end unless there was unanimous agreement to vest the Unit Trust early and then distribute the net trust assets to Unit Holders, or one Unit Holder chose to exit in accordance with the mechanism provided in the Unit Trust Deed (clause 24). Similar considerations applied in relation to any assets held by BSCH, otherwise than as trustee.
[10]Refer to clause 15.2 of the Unit Trust Deed.

The Co-Owners Deed, although recognising that the Blue Seas Property was owned by BSCS in its capacity as trustee of the Unit Trust, nevertheless proceeds on the premise that the parties — Mr Allen, Mrs Allen, Allen Services, Mrs Dizane, BSCH, BSCS and the Unit Trust — had agreed to deal with the Blue Seas Property (which formed part of the Trust Fund) in accordance with the provisions of the Co-Owners Deed, not the Unit Trust Deed. It further proceeds on the premise that the Blue Seas Property was an asset jointly owned by the ‘parties’ (whoever they might be), as was the case with the Bell Street Property. Whilst that is correct with the Bell Street Property where Allen and Dizane owned the property as tenants in common, it was not with the Blue Seas Property except if it was referring to the collective ownership of Titles 1, 2 and 3 by BSCS and BSCH or it was referring to joint ownership in an imperfect and colloquial sense. Notably, the Co-Owners Deed does not purport to expressly vary, set aside or otherwise deal with the Unit Trust Deed.

This imperfect understanding of the nature of the Unit Trust and the legal significance of the Blue Seas Property being held as part of the trust fund of the Unit Trust is clear from the terms of the Co-Owners Deed itself. For example, the parties’ mutual promise not to bring any application to any court seeking partition or partition and sale of their interest is understandable in relation to the Bell Street Property, but makes no sense in the case of the Blue Seas Property, which was held by BSCS as trustee with the interests of Allen and Dizane confined to their respective holdings in the Unit Trust. The ‘Option’ clause set out in clause 11 of the Co-Owners Deed, including the reference to the parties entering into a standard LIV contract of sale of real estate where one party had agreed to sell their interest in the Blue Seas Property to the other, proceeds on a similarly mistaken basis.

Against that background, the proper task of interpreting the Co-Owners Deed is not so much one which requires the interpretative process to proceed on the basis that the Co-Owners Deed fetters or alters the rights of the Trustee and the Unitholders of the trust, and more pertinently the duties imposed on the Trustee by the Unit Trust Deed, but rather is one which requires the Co-Owners Deed to be construed in a manner which is harmonious with the underlying relationships between Mr Allen, Mrs Dizane, Allen, Dizane, BSCS and BSCH.

It is in that light that Allen’s primary argument must be considered. As indicated earlier, Clause 9 of the Co-Owners Deed provides that ‘it is agreed by the Parties that … the Blue Seas Property will be placed for sale by the Parties within 36 months of date of this Deed [14 November 2022] or such other time as unanimously agreed to by the parties.’

Allen argues that, because the Blue Seas Property was not placed for sale by BSCS and BSCH within 36 months of the date of the Co-Owners Deed, there was a breach by BSCS and BSCH of clause 9 and as a party to the Co-Owners Deed, Allen is now entitled to sue for specific performance, compelling the sale of the property.

Allen contends that the situation is analogous to one where a purchaser has agreed to purchase a property pursuant to a contract of sale of real estate, the purchaser is ready, willing, and able to do so, but the vendor refuses to complete. In such circumstances, Allen argues that the Court would make an order for specific performance notwithstanding that the Deed Date has passed even where time is of the essence, provided the contract remains on foot.

The analogy is inapt. In the ordinary case of a contract for the sale of land, the obligation of the purchaser as putative plaintiff is to pay the purchase price at settlement, at which time the vendor as the putative defendant is required to provide a transfer but does not do so or intimates that it will not do so. That is not this case; there is no act of performance on the part of Allen proffered in exchange for the act of the party now said to be in default.

In any event, the parties said to be in breach are BSCS and BSCH. The reason why BSCS and BSCH ‘breached’ clause 9 was because the two directors of the companies, one of which was Mr Allen did not want to place the property for sale within the 36-month time period specified. So much is reflected in the letter from the solicitors dated 8 November 2022, sent after the meeting on 2 November 2022. This letter expressly recorded the consensus of Mr Allen, Mrs Allen and Mrs Dizane that none wished to sell the property at that stage. Indeed, the three wanted to remove clause 9 from the Co-Owners Deed altogether.

The position changed slightly on 9 November 2022 when Mills Oakley in the letter of 9 November 2022 sent on behalf of Mrs Dizane and Dizane made clear that whilst Mrs Dizane’s preferred course was to buy out Allen, as an alternative, she wanted to place the property on the market for sale in time to ensure compliance with clause 9. The letter was written with the timing imperative in clause 9 at its forefront. So much is clear from the reference to clause 23 stipulating that time is of the essence, and from the urgency within which Mills Oakley sought the agreement of Allen and Mr Allen’s to place the Blue Seas Property for sale in short order.

In oral submissions, Allen emphasised paragraph 10 of the Mills Oakley letter, which stipulated that the sale of the Blue Seas Property should not occur until a new lease was executed with the current tenant of the Blue Seas Property. However, that part of the letter needs to be read in the overall context of paragraphs 6-12 under the subheading ‘Clause 9 of the Deed’ and in particular paragraph 7, which underlined the imperative that the parties take immediate steps to ensure the Blue Seas Property was placed for sale by the Deed Date. It seems clear that the author had in mind the perceived need for the directors of BSCS to authorise the engagement of an estate agent as a matter of urgency, so as to enable the Blue Seas Property to be placed for sale by the Deed Date, albeit with instructions to the agent not to finalise any sale until such time as the new lease was in place.

The response from Mr Allen and Allen Services was dismissive of the timeframes set out in the Mills Oakley letter and, in any case, was not a response which acceded to the placing of the property for sale within the time stipulated in clause 9.

The reason BSCS and BSCH did not place the Blue Seas Property for sale by the Deed Date was, in the first instance, due to both directors Mr Allen and Mrs Dizane, not wanting it to be sold— as communicated to the solicitors at the meeting held on 2 November 2022 and confirmed in the 8 November 2022 letter from the firm. That position was then subsequently reinforced by Mr Allen’s unwillingness to embrace the proposal put forward by Dizane and Mrs Dizane in the letter from Mills Oakley dated 10 November 2022.

Allen now seeks an order for specific performance of a term of an agreement which provided for the sale of the property by 14 November 2022, the performance of which is no longer possible, because the stipulated date for compliance has long since passed, and where Mr Allen initially jointly and then on his own was the reason why this did not take place. Equity will not ordinarily grant specific performance of a term which is no longer capable of performance.[11] This may have been no answer if Dizane or Mrs Dizane had brought about the failure to perform, but that is not alleged here and nor is it the case. The contrary is true. Courts of equity will not assist a person where the equitable right the court is asked to invoke was brought into existence by the claimant’s own wrongful conduct.[12]
[11]McMahon v Ambrose [1987] VR 817.
[12]Meyers v Casey (1913) 17 CLR 90, 124.

As a result, on its plain wording once the 36-month time period lapsed, clause 9 of the Co-Owners Deed had no work to do unless there was unanimous agreement between the parties as to another date. There is no suggestion of such agreement. As such, the clause ceased to have any practical effect. The Blue Seas Property continued to be held by BSCS in accordance with the provisions of the Unit Trust Deed. Whilst those powers conferred upon the Trustee, acting through its duly authorised directors, various powers which included the power to place the property on the market for sale, there was no obligation to do so.

That leaves for consideration the argument based on waiver and/or estoppel.

Waiver and Estoppel

Allen submitted that Dizane by its conduct, represented that it would not insist upon strict compliance with clause 9 of the Co-Owners Deed and that it accordingly waived any right to rely upon such compliance. Relatedly, and further, or in the alternative, Allen argued that by the same conduct, Dizane is estopped from insisting on strict compliance with clause 9.

Waiver

Even if the matters relied upon gave rise to a representation that Dizane would not insist on strict compliance with clause 9 of the Co-Owners Deed (which, in any case, I do not accept), then the waiver pleaded was of a unilateral nature. There are only limited circumstances in which a gratuitous waiver cannot be withdrawn.[13] The only circumstances here which have any apparent relevance are those which would found an estoppel or an agreement being reached as to a new time in which the Blue Seas Property would be placed for sale. Absent such circumstances, any waiver was revocable.
[13]Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2022) 277 CLR 445, [29]-[31].

In any event, there was no plea — nor any facts to support such a plea — that Dizane had waived its right to rely upon clause 19(b) of the Co-Owners Deed, which provides that no waiver was effective unless in writing signed by the parties.

For that reason, in closing submissions, Allen proffered a case based on mutual waiver and pointed to the Mills Oakley letter dated 9 November 2022, in the first instance, as evidencing waiver of the time stipulation in clause 9 by Dizane and to the letter sent by Hall & Wilcox to Mills Oakley dated 28 June 2024 as evidencing such conduct by Allen.

Turning first to the Mills Oakley letter of 9 November 2022: it does not expressly purport to waive any requirement of clause 9. Allen relies on paragraph 10 of the letter, which stated:

We are instructed that if the Blue Seas Property is placed for sale in accordance with clause 9 of the Deed, then the parties ought to engage with an appropriate real estate agent to assist to facilitate the sale of the Blue Seas Property but which sale should not take place until a new lease is executed with the current tenant at the Blue Seas Property.

By drawing the distinction between the placing of the property for sale with the agent and the proposed instruction to the agent that the sale should not take place until the new lease was entered into, Allen argues that Dizane was waiving the express time stipulation. But when read in context, the letter points to the contrary. Clause 9 requires the property to be ‘placed for sale’, not that it be sold. The letter recognised that distinction and was written with the time stipulation requiring the property to be placed for sale at the forefront. It did so by making express reference to clause 9 and the time stipulation within it emphasising that ‘the parties must take immediate steps to cause the Blue Sea Property to be placed for sale by the Deed Date, particularly bearing in mind clause 23 of the Deed whereby time is of the essence’. The letter is the antithesis of the waiver alleged. That is sufficient to defeat any reliance on waiver.

In any event, the letter from Hall & Wilcox dated 28 June 2024, sent some 18 months later, does not materially assist either. It amounts to nothing more than a statement on behalf of Allen following extended negotiations, proposing that the Blue Seas Property now be listed on the market for sale in accordance with clause 9 of the Co-Owners Deed. That entreaty was rejected by Mills Oakley in its letter to Hall & Wilcox dated 19 July 2024. In that letter, Mills Oakley observed that it was not open to Allen to unilaterally require that the property be sold or otherwise rely on clause 9, presumably because of the passing of the Deed Date.

Equitable Estoppel

Allen relied upon an equitable estoppel, the requirements and application of which are not in dispute and relevantly comprise:

(a) a ‘clear and unequivocal’ promise made by the party estopped (promisor) to the party who relies upon the promise (the promisee);

(b) a reasonable person in the promisor’s position must have expected or intended (or the promisor actually did expect or intend) that the promisee would rely upon the promise by some action, omission or course of conduct;

(c) the promisee must have relied upon the promise by acting or omitting to act in the general manner that would have been expected;

(d) the consequence of the promisee’s reliance must be that the promisee will suffer detriment if the promise is not fulfilled, in the sense that the promisee will be left in a worse position, as a consequence of reliance upon the promise, than if the promise had not been made.[14]

[14]Kramer v Stone (2024) 99 ALJR 126, [36]-[41].

Turning first to the requirement of a clear and unequivocal statement made by the promisor to the promisee, Allen relies on three matters: first, Mrs Dizane’s statement made after the video conference meeting on 23 March 2022 to the effect that she wished to wait until a new lease was entered into with Medlog before selling the Blue Seas Property as this could foster competitive tension between Medlog and prospective buyers; second, a similar statement said to have been made by Mrs Dizane at the meeting with the solicitors held on 2 November 2022; and, third, the matters set out in the Mills Oakley letter of 9 November 2022, and in particular those parts set out in paragraphs 6-12 of that letter.

At their highest, the statements go no further than a statement by Mrs Dizane of a wish to wait until a new lease was entered into with Medlog before selling the Blue Seas Property. That may well have been her intention and desire at the time the statements were made and the letter was sent. But it is one thing for her to have had that intention and communicated it to Mr Allen. It is another thing entirely for such statements to amount to a clear and unequivocal representation to the effect that Mrs Dizane would bind herself to such a course, and as part of doing so, correlatively not require compliance with clause 9 of the Co-Owners Deed.

Certainly, at the meeting held on 2 November 2022, as summarised in the letter from the solicitors of 8 November 2022, there was no statement said to be attributed to Mrs Dizane to the effect that she would not insist on strict compliance with clause 9. Rather, Mrs Dizane, along with Mr Allen, apparently shared a quite different intention, namely, to remove any obligation to sell whatsoever, hence the joint desire to remove clause 9 from the Co-Owners Deed. The letter records an apparent consensus to delete clause 9, and then to amend the Co-Owners Deed at some time in the future, once Mr Allen and Mrs Dizane had given further consideration to relevant matters, including the obtaining of a fresh valuation from CVA Real Estate.

In any case, the Mills Oakley letter of 9 November 2022 is quite inconsistent with a representation of the kind alleged. Paragraphs 6-12 of that letter, and the express reservation of rights set out in the letter, make it clear that Mrs Dizane and hence Dizane were acutely aware of the time constraints in clause 9 and wanted to deploy the mechanism contained in that clause — albeit with an instruction not to conclude any sale until a later time, assuming that Mr Allen was not willing to entertain a transfer of his interest (sic) in the Blue Seas Property to Mrs Dizane and Dizane.

Nor is there any evidence of reliance in the sense pleaded (or indeed of any nature). The reliance pleaded is that Allen did not take steps to enforce clause 9 of the Co-Owners Deed before it expired in November 2022. Whilst it is true that no such steps were taken by Allen, Allen had the opportunity to join with Mrs Dizane by acceding to the proposal set out in the Mills Oakley letter and thereby to facilitate placing the Blue Seas Property for sale. Mr Allen’s affidavits neither point to an understanding of anything that Dizane did to engender a belief on the part of Allen that Dizane would not insist upon strict compliance with clause 9, or that Mr Allen acted or refrained from acting accordingly. On the contrary, the evidence points in another direction. Relevantly, on 20 November 2022 (after the time period in clause 9 had expired), Mr Petkovic wrote to Mills Oakley, inter alia, confirming the parties’ intention to remove clause 9, as neither party wished to sell at that time. Similarly, in Mr Petkovic’s email response of 30 November 2022, he invited Mrs Dizane to make Mr Allen an offer for his ‘interest’ as he did to similar effect on 25 January 2023 and 4 February 2023. On 20 November 2023, Mr Petkovic expressed a wish to make an offer to acquire Mrs Dizane’s interest in the property and otherwise, Allen appeared to be of the view that both parties were ‘free to make a unilateral decision’, as conveyed in Mr Petkovic’s email of 4 December 2023.

More broadly, Allen argued that, by the 10 November 2022 correspondence from Mills Oakley, Dizane proffered two options for Allen’s consideration in light of the recent developments and circumstances at that time: the first being that Dizane would buy out Allen, or, the second which is that the property would be sold pursuant to clause 9 of the Co-Owners Deed. Allen submitted that this willingness to accommodate these two options endured until it was withdrawn by Mills Oakley’s letter of 19 July 2024. Whilst the two options were proffered in the 10 November 2022 letter, neither was accepted by Allen and the second option necessarily was time-limited because of the 36-month period specified in clause 9. Thereafter, the correspondence shows the parties contemplating various options – a buyout by Dizane; a buyout by Allen; proposals to sell the property — none of which ultimately came to fruition.

I do not accept that the estoppel has been established.

The claims based on Orders 54 and 55

Given that the claim based on ord 54 was not pressed by Allen, and that ord 55 was only relied on as an additional source of power to make procedural orders as part of the decree for specific performance of clause 9, it is strictly unnecessary to say anything further about them. However, as they were addressed in the parties’ written submissions, I will make some brief observations. These observations confirm the merit of Allen’s decision to not seek to rely upon any perceived entitlements under either order as an independent basis for obtaining the relief sought.

Order 54 is a broad provision which enables a party, including the beneficiary of a trust, to bring a proceeding in relation to a trust for any relief which could be granted in an administration proceeding.

Are Titles 2 and 3 held by BSCH as trustee of the Unit Trust?

In the present case, ord 54 had potential application in relation to two areas of controversy. First, whether Titles 2 and 3 were held on trust by BSCH as Allen contended, or whether only Title 1 was held on trust, it being undisputed that BSCS was the registered proprietor of Title 1 and held that asset in the Unit Trust and on the terms of the Unit Trust Deed.

Had Allen pressed its case for an order for sale based on ord 54, any conclusion that Titles 2 and 3 were not held on trust would have prevented any order for sale based on ord 54 for those parts of the Blue Seas Property, not held by BSCS.

I do not accept that Titles 2 and 3 are held by BSCH as trustee for the Unit Trust. First, as the Unit Trust Deed makes clear, the trustee of the Unit Trust since establishment on 7 September 1983 was BSCS. Clause 11.1.2 of the Unit Trust Deed provides for the appointment of additional trustees with the consent of the unitholders, but there was no evidence from Mr Allen or Mrs Dizane, or any record of the trust, which evidenced any appointment by BSCS of BSCH as an additional trustee.

Secondly, there is evidence to the contrary. BSCS acquired Title 1 in May 1988. In August 1988, BSCH was registered with three directors, which included Mr Allen as well as the late Mr Dizane and one other. Titles 2 and 3 were not acquired by BSCH until 10 September 1993 and June 1995 respectively. BSCS was therefore in existence and acting as the trustee of the Unit Trust when Titles 2 and 3 were acquired. This notwithstanding, a conscious choice appears to have been made for Titles 2 and 3 to be registered in the name of a separate corporate entity. The mere fact that common directors chose to register Titles 2 and 3 in the name of BSCH and not BSCS is evidence of an intention for Titles 2 and 3 to be held outside the Unit Trust. Mr Allen did not address this in any of his affidavits.

Allen relies on the fact that the financial statements for the Unit Trust show that all rental income was received by BSCS and none by BSCH. It also points to the 2023 Lease, which was executed by both BSCS and BSCH through the signatures of their directors, Mr Allen and Mrs Dizane, and which records that both BSCH and BSCS were trustees of the Unit Trust.

However, whilst the 2023 Lease describes BSCS and BSCH in that way, both earlier leases, those dated 28 August 2014 and 18 July 2018, do not describe BSCS and BSCH in that way and make no reference to a trust at all.

Further, whilst it is true that all rent is accounted for in the financial statements as income of the Unit Trust rather than of BSCH, there are some contrary indicators in the financial statements. For example, the financial statements for BSCH from 30 June 2018 onwards record as a ‘receivable’, amounts owing by the Unit Trust to BSCH which suggests a distinction between BSCH and the Unit Trust.

The limited evidence relied upon is wholly insufficient to establish that Titles 2 and 3 are held in the Unit Trust.

Deadlock

Order 54 may also have had relevance that a deadlock had arisen with respect to the affairs of the Unit Trust, arising from the wish of one director of the trustee, Mr Allen, to sell the Blue Seas Property and the opposition of the other director, Mrs Dizane, to that course.

Had it been necessary to decide the issue, I would not have found that there was in fact any relevant deadlock, much less one that required the Court’s intervention in the affairs of the Unit Trust. The asserted deadlock arose because only one of the two directors wished to sell the sole asset of the Unit Trust, thereby transforming the composition of the trust fund from a property asset into cash. However, this transformation otherwise had no effect on the operation of the Unit Trust, which continued to operate in accordance with the provisions of the Unit Trust Deed.

As noted earlier, the business of the trustee comprises it being possessed of the Trust Fund (however that trust fund may be constituted) and the income derived from that trust fund until such time as the termination day arises which is in September 2063.

Whilst the differing positions taken by Mr Allen and Mrs Dizane as to the sale meant that a resolution could not be passed by a board meeting of directors of the trustee as presently constituted authorising the sale, the Unit Trust was established with two unit holders, and a trustee which was a company with the two unitholders as shareholders. At inception it was likely to have been appreciated that decisions could only be made if there was agreement. The absence of agreement as to sale of a trust asset simply means that the affairs of the Unit Trust will continue as they have been since 2006. Otherwise, the two director ‘problem’ could have been broken by the appointment of a third director. As stated earlier, Dizane sought to convene two annual general meetings of unitholders for the purpose of appointing a third director. However, those meetings were inquorate because Allen did not attend. Accordingly, this potential resolution of any deadlock, assuming one existed, was not availed of as a result of Allen’s own failure to attend the meetings. A party cannot complain of a deadlock where they have brought that deadlock about.[15]
[15]Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692.

Order 55

In its written submissions, Allen asserted that no underlying cause of action or entitlement was required for ord 55 to be invoked, and that ord 55, r 2 conferred a widely expressed power on the Court to order a sale of land. Allen argued that the words ‘necessary or expedient’ were words of the widest and most flexible kind.[16]
[16]Riddle v Riddle (1952) 85 CLR 202.

I do not accept that ord 55, r 2, gives the Court a wide-ranging discretion to order the sale of land. Such a proposition is discordant with the language of ord 55 and r 55.02, which includes the qualifying words ‘for the purposes of the proceeding’ as well as with the history and operation of the rule.

As currently framed, r 55.02 of the Rules provides:

Power to order sale
In any proceeding relating to land, where it is necessary or expedient for the purposes of the proceeding, the Court at any stage of the proceeding –
(a) may order that the whole or any part of the land be sold; and
(b) may further order that any party in receipt of the rents or profits of the land or otherwise in possession of the land deliver possession to such person as the Court directs.

Order 55 of the Rules is derived from s 55 of the Chancery Procedure Act 1852 (Imp) which is also referred to as 15 & 16 Vict. c.86.

The Judicature Act 1883 (Vic), an Act to extend and apply the Law of England to the colony of Victoria, provided in s 9(5c):

If after an action shall have been instituted in relation to any real estate, it shall appear to the Court that it will be necessary, or expedient, that the said real estate or any part thereof should be sold for the purposes of such action, it shall be lawful for the Court to direct the same to be sold at any time after the institution thereof …

The notes to s 9(5c) reference s 55 of 15 & 16 Vict. c.86.

The rule then appears in the same form in ord 51, r 1 of the Rules of the Supreme Court 1884, referencing s 9(5c) of the Judicature Act.

The Rules of the Supreme Court 1906 evidence a change to ord 51, r 1, notably the omission of the words ‘for the purposes of such action’:

If in any cause or matter relating to any real estate it shall appear necessary or expedient that the real estate or any part thereof should be sold, the Court or a Judge may order the same to be sold, and any party bound by the order and in possession of such estate, or in receipt of the rents or profits thereof, shall be compelled to deliver up such possession or receipt to the purchaser, or such other person as may thereby be directed.

The rule remained in the same form in the Rules of the Supreme Court 1937. It seems that the Rules of the Supreme Court made between 1962 and 1996 are not currently available online.[17] However, it appears from decisions made in this time period that the rule continued to omit the words ‘for the purposes of such action’.
[17]See Emma Poole, Rules of the Supreme Court of Victoria to January 2025 (Victorian Bar, 2025).

In 1986, in First National Finance Ltd v Labertouche Sands Pty Ltd (‘First National’),[18] Tadgell J considered ord 51, r 1 of the then Rules of the Supreme Court (Vic). That rule is reproduced in the judgment:[19]

If in any cause or matter relating to any real estate it shall appear necessary or expedient that the real estate or any part thereof should be sold, the Court or a Judge may order the same to be sold and any party bound by the order and in possession of such estate, or in receipt of the rents or profits thereof, shall be compelled to deliver up such possession or receipt to the purchaser, or such other persons as may thereby be directed.

[18](Supreme Court of Victoria, Tadgell J, 24 June 1986) BC8600278.

[19]Ibid.

The re-introduction of the words ‘for the purposes of the proceeding’ appears in the Supreme Court Rules of 1996, where the power of the Court to order the sale of land was found in r 55.02:

In any proceeding relating to land, where it is necessary or expedient for the purposes of the proceeding, the Court at any stage of the proceeding may order that the whole or any part of the land be sold, and may further order that any party in receipt of the rents or profits of the land or otherwise in possession of the land delivery possession to such person as the Court directs.

Rule 55.02 appeared in the 2005 Rules in the same form as it currently appears.

In King Investment Solutions v Hussain[20] Campbell J noted that the equivalent rule in New South Wales is derived from s 55 of the Chancery Procedure Act 1852 (Imp), and reference is also made to s 14 of the Equity Act 1901.
[20][2005] NSWSC 1076.

In Parker’s Practice in Equity (New South Wales),[21] s 14 of the Equity Act 1901 is set out in the following terms:

If in any suit instituted in relation to real estate it appears to the Court that it will be expedient that the same or any part thereof should be sold for the purposes of such suit, the Court may at any time direct the same to be sold …

[21]G.P. Stuckey and C.D. Irwin, Parker’s Practice in Equity (New South Wales): being the Equity Act 1901-1947 and other statutes) (Lawbook Co of Australasia, 2^nd ed, 1949), 21-2.

The notes to the section record:

This section is taken, with merely verbal alterations from the 55^th section of the 15 & 16 Vict. C.86; and cf O. LI., r. 1 which has been held not to give the Court any power to direct a sale in a case in which it had no power to do so previously.[22]
Scope of Section. – The section is intended to apply only to those cases in which, for the protection of the property or other like cause, it is necessary to come to the Court.[23]
(underlining added).

[22]In re Robinson (31 Ch. D. at p. 249).

[23]Prince v Cooper (16 Beav. 546); Tulloch v Tulloch (L.R. 3 Eq. 574).

Two key authorities cited by the learned authors in these notes were also cited by Tadgell J in First National in his consideration of ord 51, r 1 as it stood in 1986:[24]

Counsel for the plaintiff placed reliance upon the decision in Tulloch v Tulloch LR 3 Eq 574 in which the Vice-Chancellor, Sir Richard Malins, held, in effect, that under s 55 of the Chancery Amendment Act, which was a forerunner of but different in terms from the present O.51 r 1, the Court has power to order a sale before the hearing of a suit where it is for the protection or benefit of the estate. That case involved a deceased estate, an asset of which was an uninhabited house in London. Pending a determination of the rights under the estate it was regarded as expedient that the house be sold rather than it should deteriorate by virtue of its being unoccupied and unmaintained.
As against that, Mr Perkins for the defendant referred to the decision of Pearson J, in the case of In re Robinson 31 Ch D 247. That concerned the extent of O.51 r 1 of the English Rules of Court as they stood in 1885. There was, as junior counsel for the plaintiff pointed out this morning, some difference between the rule as it then stood and s 55 of the Chancery Amendment Act. Nevertheless, it does appear from the report that the terms of the O.51 r 1 as they were considered by Pearson J, in In re Robinson are identical with the terms of our present O.51 r 1.
At p.249 of the report, Pearson J, said:– “That rule is taken from s 55 of the Act 15 & 16 Vict. C.86, from which it differed by the omission of the words ‘for the purposes of such suit.’ Those are, no doubt, important words, and the appellant is fully entitled to rely on their omission as shewing that the Court has now a larger power than it had under s 55. Jessel MR, laid it down that those words meant ‘for the purposes of the suit only.’ But still I think the rule means that the Court may order a sale whenever it is necessary for the purposes of the action and that it was not intended to enable the Court to sell real estate when otherwise it had no power to do so.” It is submitted, therefore, for the defendant in this case that I ought not to exercise power under O.51 r 1 unless it was necessary for the purposes of the action. I agree with that submission, and the question is whether it is so necessary.
(underlining added).

[24]BC8600278 at 6-7.

These authorities remain relevant to the operation of the current rule.

Both the plain wording of the rule and its historical origins, make clear that ord 55 can only be invoked where the applicant is able to establish some legal right or recognised equity entitling the applicant to an order for sale.[25]
[25]Such as where an equitable chargee seeks an order for the sale of secured property Hycenko v VHY Enterprises Pty Ltd (‘Hycenko’) [2020] VSC 834, [48]; O’Neil v Hart [1906] VLR 14 (Madden CJ).

Unsurprisingly, in those circumstances, there was no authority cited by Allen in its written outline of submissions where ord 55 had been deployed as an independent source of power absent some recognised legal or equitable right to an order for sale of the property.

As such, the approach taken at trial to eschew reliance on ord 55 for that purpose was prudent and appropriate.

Conclusion

Given the conclusions above, the claim is dismissed.

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[2025] VSC 463

31 July 2025