Saad v Saad
[2025] VSCA 29
•7 March 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2025 0021 |
| WALEED SAAD | Applicant |
| and | |
| HALA SAAD | Applicant |
| v | |
| KHADIGI SAAD | Respondent |
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| JUDGES: | WHELAN JA and WATSON AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 March 2025 |
| DATE OF JUDGMENT: | 7 March 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 29 |
| JUDGMENT APPEALED FROM: | [2025] VSC 15 (Gobbo AsJ) |
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PRACTICE AND PROCEDURE – Stay – Application for stay of orders requiring removal of caveat over property, alternatively an injunction – Not determinative that refusal of application for stay may render pending application for leave to appeal nugatory – Monetary remedy likely to be sufficient – Unlikely that House v King error will be established – Application for stay, alternatively injunction, refused.
Transfer of Land Act 1958, s 90.
Maher v Commonwealth Bank of Australia [2008] VSCA 122; Dolan v Dolan [2023] VSCA 136; Piroshenko v Grojsman (2010) 27 VR 48; Carbon Black Lab Pty Ltd v Launer [2015] VSCA 126, discussed.
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| Counsel | |||
| Applicants: | Mr L Wirth | ||
| Respondent: | Dr O Bigos KC with Mr C Twidale | ||
Solicitors | |||
| Applicants: | RJ Legal | ||
| Respondent: | De Marco Lawyers | ||
WHELAN JA
WATSON AJA:
This is an application for a stay of orders made by Gobbo AsJ on 3 March 2025 pursuant to s 90(3) of the Transfer of Land Act 1958 (TLA), alternatively for an injunction restraining dealing with the relevant property.
The substantive order sought to be stayed requires the applicants on this application, being Mr Waleed Saad (Waleed) and Mrs Hala Saad (Hala), to remove a caveat placed over property at 179 Union St, Brunswick West (the Land).That order was stayed by consent for a period of 7 days from the date of the relevant orders. As that period is to expire on 10 March 2025, this application has been heard on an urgent basis.
Associate Justice Gobbo also ordered that the respondent, Mrs Khadigi Saad (Khadigi), pay the sum of $50,000 into Court.
The relevant factual issues
The relevant factual matters and issues,[1] in summary form, are as follows:
[1]This summary of the facts and issues is primarily drawn from the reasons of Gobbo AsJ: Saad v Saad [2025] VSC 15 (‘Reasons’).
(a)In December 1975, Khadigi and Mr Abboud Saad (Abboud) (now deceased) were registered as the joint proprietors of the Land. They are the parents of Waleed. He is the oldest son of their 13 children.
(b)In October 1986, Waleed and Hala were registered as joint proprietors of the property adjacent to the Land, being 181 Union St, Brunswick West.
(c)In the late 1980s Khadigi and Abboud decided to develop the Land to build a family compound, constituted of a large home at the front and a smaller granny flat at the rear of the property.
(d)In order to realise this development, in around 1987, Abboud asked Waleed to provide a strip of land abutting the boundary of the two properties, being approximately 57.7 square meters in total, from his and Hala’s property (the parcel of land). The transfer of the parcel of land occurred in January 1988. The documentary records show the parcel of land was transferred for a consideration of $500, that stamp duty of $70 was paid, and the land was valued at $5,000. The $500 was never paid.
(e)Khadigi says the land was gifted by Waleed.
(f)Waleed says that an agreement was reached between him and his father in 1987 (the 1987 agreement) that the parcel of land would be provided to his parents to permit the development to proceed, that he would contribute to the financial costs of the development by way of continuing to provide income to his father, and in return he would receive a proprietary interest in the Land commensurate to the parcel of land and the financial contributions he put towards its development. He says it was also agreed that if either he or Abboud decided to sell their property then the other was to be offered first right of purchase (Option to Purchase). On the option issue there was what Gobbo AsJ described as an unexplained ‘discrepancy’ between Hala and Waleed. Hala deposed that the arrangement was that if the Land were sold it would ‘eventually’ be sold to her and Waleed.
(g)In 1989 two mortgages were entered into by Khadigi and Abboud which included as security for the loans both the Land and the property at 181 Union St, Brunswick West. The details of these mortgages, including how they came to be in existence and how the proceeds were used, are contentious.
(h)In around April 2023 an incident occurred which led to a breakdown in the family relationship.
(i)In August 2023, Khadigi entered into a contract of sale of the Land with her youngest son, Saad Saad (Saad). The settlement date has subsequently been delayed on several occasions. Saad lodged a caveat over the Land in August 2023 as purchaser of the Land.
(j)In September 2023, Waleed and Hala also lodged a caveat over the Land. Associate Justice Gobbo referred to related proceedings in which Waleed and Hala contend their caveatable interest in the Land arises as a result of the principles of proprietary estoppel, or alternatively by reason of unconscionability, constructive trust or a common intention constructive trust.
(k)On 25 September 2023, Waleed and Hala’s former solicitors sent a letter to Khadigi’s solicitors. That letter was set out by Gobbo AsJ in the following terms (emphasis in original):[2]
[2]Reasons, [91].
OUR CLIENT’S INTEREST IN 179 UNION STREET, BRUNSWICK WEST VIC 3055
3. We are instructed that your client currently holds on trust for our client [sic] the portion of land at 179 Union Street, Brunswick West VIC 3055 (‘your client’s Property) consolidated on or about 31 January 1991.
4. We advise that our client’s [sic] portion has now been secured by caveat lodged by our office, dealing No. AX263942D.
5. We are instructed that your client has entered into a Contract of Sale for her Property. We note that the Purchase has been secured by a purchaser’s caveat prepared by your office, dealing No. AX184621P. This is despite one of the proprietors currently registered on title being deceased.
6. We are instructed that our respective client’s [sic] have reached an in-principal [sic] agreement in relation to our client’s [sic] interest as follows:
(i)Our client is [sic] to obtain a valuation in relation to their portion of your client’s property
(ii)Upon receipt of the said valuation, your client is to pay our client [sic] the said value.
(iii)Simultaneously with payment, our clients’ [sic] will withdraw their caveat.
(iv)Points (i)-(iii) are to be completed prior to or at settlement of the transfer to the purchase [sic] taking place.
7. We are currently in the process of drafting an Agreement outlining the above for signing by the parties’ [sic].
(l)In around October 2023, a further letter was sent by Waleed and Hala’s former solicitors to Khadigi’s solicitors which attached a draft deed. The relevant part of that deed was extracted by Gobbo AsJ as follows:[3]
RECITALS:
A. In or around January 1991, Hala Saad and Waleed Saad consolidated a portion of their land situated at 181 Union Street, West Brunswick VIC 3055 (‘Hala and Waleed’s Property’) to form part of Khadigi Saad’s property at 179 Union Street, West Brunswick VIC 3055 (‘Khadigi’s Property’).
B. The Portion of land consolidated amounted to a total of 57.706 squares (‘the Portion of Hala and Waleed’s land’).
C. It was the intention of the Parties’ that the Portion of Hala and Waleed’s land was to be held on trust for Hala and Waleed until such time that Khadigi’s Property was to be transferred out of the names of the late, Abboud Saad and Khadigi Saad- be that through the Estate or any other transfer.
D. Khadigi has now sold the property at 179 Union Street, West Brunswick VIC 3055 with an upcoming transfer for the sale due to take place.
E. Hala and Waleed have a registered caveat, No. AX263942D securing their resulting caveatable interest.
…
[3]Ibid [94].
2. Agreement
(a) In full and final settlement of the matter between the parties, Khadigi shall pay Hala and Waleed the total sum of $750, 000.00 (“Settlement Sum”), on or prior to the transfer of Khadigi’s property taking place.
(b) In exchange of [sic] the Settlement Sum, Hala and Waleed with [sic] withdraw their caveat from Khadigi’s Property
(m)The draft deed was never executed.
(n)In July 2024, Khadigi commenced this proceeding, applying for the removal of the caveat lodged by Waleed and Hala over the Land.
(o)Associate Justice Gobbo stated that the unchallenged expert evidence before her was that the value of the parcel of land was $50,000.
In relation to the balance of convenience, Khadigi deposed in paragraphs [29] to [30] of an affidavit dated 20 September 2024[4] as follows:
I confirm that I left the Property on or about 5 October 2023 because I did not feel safe in the Property and because I wanted to get away from Waleed and his family, including his pressure to terminate the contract of sale. My daughter, Afifa, rented a property in Hadfield and I moved in with her. I have not been to the Property since 5 October 2023…I am currently 82 years old and held no mortgage on the Property. My intention is to sell the Property to downsize and to purchase something smaller…At my age, it is not possible for me to obtain a mortgage, and I need the proceeds from this sale to purchase my next home…
[4]As cited in footnotes 17 and 19 of the ‘Respondent’s Submissions in Opposition to Application for Stay or Injunction’, 6 March 2025, 3.
On the other hand, in written submissions before Gobbo AsJ, Waleed and Hala maintained that the balance of convenience favoured them as they would lose the benefit of what had been promised, and in particular would lose the opportunity to enjoy a ‘family complex’ which had been the original intention. [5] In that connection, they also contended that the sale to Saad was not bona fide and at an undervalue.
[5]Applicants, ‘Outline of Defendant’s Submissions’, 8 October 2024, 12-14 [22]-[29].
Decision of Gobbo AsJ
In her ruling, Gobbo AsJ set out the principles to be applied in determining the application before her.
She observed that s 89(1) of the TLA provides that a caveat can only be lodged by a person claiming an estate or interest in the land and, where a caveat is challenged, the estate or interest must be established ‘to the requisite standard’ by the caveator.[6]
[6]Reasons, [4].
In this regard, citing Carbon Black Lab Pty Ltd v Launer[7] and Piroshenko v Grojsman,[8] she said there is two-step process: the caveator must, first, establish a prima facie case for their asserted interest in the land and, second and assuming the first step is satisfied, establish that the balance of convenience favours the maintenance of the caveat such that it is sufficient to justify the caveat’s effect on the registered proprietor’s ability to deal with the property.[9]
[7][2015] VSCA 126 (‘Carbon Black’).
[8](2010) 27 VR 489; [2010] VSC 240 (‘Piroshenko’).
[9]Reasons, [6] and [9].
Associate Justice Gobbo set out[10] a summary of principles articulated by Elliott J in Sylina v Solanki[11] which provided, among other things, that there is a relationship between the strength of the prima facie case[12] establishing the interest in the land and the extent to which the caveator must establish that the balance of convenience favours the caveator; such that the stronger the prima facie case ‘the more readily the balance of convenience might be satisfied’.
[10]Ibid [7].
[11][2014] VSC 2, [43].
[12]Noting Elliott J uses the language of ‘serious question to be tried’ and not ‘prima facie case’. Associate Justice Derham has observed these tests have been used interchangeably and that the prima facie test is to be preferred. See: AAGG Developments Pty Ltd v Saafin Constructions Pty Ltd [2020] VSC 768, [8] (‘AAGG Developments’). Associate Justice Gobbo adopted the summary: Reasons, [8].
Her Honour observed that it is ‘well accepted’ that in determining an application for the removal of a caveat the Court should make the order that has the ‘lower risk of injustice should it turn out to have been wrongly made’,[13] and in determining whether there is a prima facie case the Court must have regard to all the evidence before it, including material ‘from which it can conclude that the defence will succeed’.[14]
[13]Reasons, [10] citing Brett Grimley Sales Pty Ltd v Petrovic [2015] VSC 716, [13] (Garde J).
[14]Ibid [13], citing National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747, 751–4 (Ormiston J).
Associate Justice Gobbo held that it was ‘impossible’ in the circumstances for the Court to be satisfied that Waleed and Hala had established a prima facie case ‘as to the alleged 1987 Agreement including the Option to Purchase – the existence of which is critical to Waleed and Hala’s position and maintenance of the Caveat’.[15]
[15]Ibid [122].
Her Honour concluded that there was no evidence before the Court from which she could ‘safely conclude’ that Waleed and Hala had established a prima face case in relation to Waleed’s alleged financial contributions to the development of the Land, and that events alleged by Waleed and Hala were ‘further problematic’ when considered in light of the letter and deed sent by their former solicitors in 2023.[16] In this regard, Gobbo AsJ accepted submissions from Khadigi’s counsel that the prima facie case must fail due to the inconsistencies in the evidence regarding the 1987 agreement, with it having been argued there were three inconsistent versions of the agreement in evidence: the September 2023 letter, the October 2023 deed, and what was said to be the conflicting affidavit evidence of Waleed and Hala.[17]
[16]Ibid [89], [90] and [105].
[17]Ibid [110]–[112].
Associate Justice Gobbo held that if she was wrong with respect to the prima facie case, in any event the balance of convenience favoured the removal of the caveat including because, without exhaustively recounting her Honour’s reasons, the maintenance of the caveat would be ‘unduly restrictive’ on Khadigi’s right to deal with the Land and because Khadigi had agreed to pay $50,000 into a trust account, this reflecting the amount determined by unchallenged expert evidence as being the value of the parcel of land.[18]
[18]Ibid [137]–[138].
Applicants’ submissions
In the applicants’ written submission in support of the application before this Court the applicants relied on Kairouz v Jasper Nominees Ltd[19] where it was said that the general principles that govern the grant of a stay are ‘well settled’. An applicant for a stay must satisfy the Court of ‘special or exceptional circumstances’. It is possible to show that special circumstances exist where ‘the appeal will be rendered nugatory if a stay is not granted, or if the applicant will not be able to be restored to their former position if the judgment against them is executed’. Further, in Kairouz, Walker JA (Kennedy JA agreeing) explained that an applicant ‘should also demonstrate that there is at least an arguable ground of appeal’ although that ‘is a relatively low bar’.
[19][2024] VSCA 68, [9]-[10] (‘Kairouz’).
In addressing these general principles in their written submissions, the applicants submitted that there is an executory contract of sale on foot and, in the absence of the caveat, the title is liable to be transferred quickly and without notice which would seriously jeopardise, or potentially destroy, their claim. Further, they said the proposed grounds of appeal, and supporting written case, have been settled by experienced senior and junior counsel, and cover the ‘relatively low bar’ for the purposes of a stay application. Further, the applicants contended that the subject matter of this proceeding is a dispute in relation to an interest in land sought to be protected by a caveat, which distinguishes the facts of this proceeding from matters such as Kairouz which concerned a money judgment.
The applicants submitted that their claim for relief is based in equity, arising from their detrimental reliance on the promise they say was made by Abboud. They said their detrimental reliance is established on three bases: first, by their transfer of the parcel of land to enable the development; second by their funding of the development and repayments of the loan; and third by their permitting the development to occur which resulted in a communal space of three dwellings causing a loss of privacy and value due to the impermissibility (or impracticability) of erecting a fence between the properties. They said that resiling from Abboud’s promise will lead to the loss of the communal use of the two lots. They seek an order that the Land be transferred to them for fair consideration that takes into account their contributions, including the value of the parcel of land.
Finally, in the alternative, if a stay is not granted the applicants submitted that Khadigi should be restrained until further order from dealing with the Land. They contended they have a prima facie case that Gobbo AsJ erred in determining the caveat should be removed on the basis her Honour misapplied the ‘prima facie case’ test in determining the first-step in the process and failed to apply the ‘lower risk of justice’ test in determining the second-step of the process, and that the outcome was unreasonable or plainly unjust compared to the interest claimed in the caveat and the evidence led in support of it. In this regard, they submitted the risk to them if the status quo is not maintained is that any success they have on appeal would be rendered nugatory and the Court should grant an injunction rather than, in those circumstances, requiring the applicants to commence separate proceedings to unwind any transfer of title in the Land. They submitted the grant of an injunction in these circumstances would best facilitate the just, efficient and cost-effective resolution of the real issues in dispute.
In oral submissions counsel for the applicants emphasised the fact that refusal of a stay would render the application for leave to appeal nugatory. Counsel submitted that there was a unique aspect to the land in question here as it was intended to be a ‘family compound’ and that would be lost if the proposed sale went ahead. Counsel submitted that there was no urgency in the proposed sale and that there was no evidence that there was any urgency in relation to Khadigi’s position.
Counsel accepted that in order to succeed on the pending appeal it would be necessary to establish an error of the kind described in House v The King. It was submitted that while the Associate Justice had correctly stated the principles she had misapplied them and had reached a conclusion that was unreasonable and unjust.
Counsel for the applicants proffered an undertaking as to damages if a stay, or injunction, were ordered.
Respondent’s submissions
In the respondent’s written submissions, she contended that the Court should reject the applicants’ submission that special circumstances exist in that the sale of the Land would jeopardise, or destroy, their claims. Citing Palmer v Permanent Custodians Ltd[20] she submits that there is no evidence that the Land is of ‘irreplaceable or special significance’ such that damages would not ‘constitute adequate compensation in the event of success on any appeal’. Further, she submitted the uniqueness of real property is afforded less significance in the context of stays pending appeals, particularly where the property is not a family home of sentimental value[21] and that the Land is not the family home of Waleed and Hala. The respondent submitted the applicants would therefore be unlikely to be granted specific performance even if they were successful in their substantive claims.
[20][2009] VSCA 164, [62].
[21]Respondent, ‘Respondent’s Submissions in Opposition to Application for Stay or Injunction’ written submissions, 6 March 2025, 1 [3] citing Ozden v Commonwealth Bank of Australia [2013] VSCA 195, [83] to [93]; Tabet v Commonwealth Bank of Australia Ltd [2008] VSCA 197, [23] and [30]; Beeck v Kohlen [2013] WASCA 134, [18]; Raysun Investments Pty Ltd v Caruso [2013] WASCA 13, [15]; Costa v St George Bank - a Division of Westpac Banking Corporation [2013] WASCA 137, [11] to [12]; Nikoloff v Perpetual Trustee Company Limited [2021] WASCA 94, [33].
Further, the respondent submitted that even if the applicants’ claim is made out, equity would give no more than the minimum necessary remedy to relieve the conscience of the defendant. In this respect, she relied on the High Court’s recent decision in Kramer v Stone[22] to the effect that where the detriment suffered as a result of the detrimental reliance is a relatively small, quantifiable monetary outlay then the likely equitable relief ordered should be compensation in the amount outlaid.
[22](2024) 99 ALJR 126; [2024] HCA 48, [40].
In regards to the three allegations of detrimental reliance claimed by the applicants, the respondent contended that a monetary remedy could be fashioned with respect to both the transfer of the parcel of land, already valued at $50,000, and the funding towards the development of the Land provided by the applicants. As to the detriment said by the applicants to be caused by the communal dwellings and subsequent the loss of privacy, the respondent submitted that this loss has already occurred, cannot be undone, and therefore the remedy could only be found in a monetary remedy. The respondent also contends that if the value of the Land was undervalued, which she denies, if proven that could also be addressed through monetary relief.
The respondent submitted the Court should reject the submission that the merits of the proposed appeal overcome the bar of there being, at least, an arguable ground of appeal. It was submitted the applicants face insurmountable difficulties in overturning the findings below, both with respect to Gobbo AsJ’s findings with respect to the absence of the prima facie case and as to the balance of convenience favouring the removal of the caveat. The respondent contends the applicants bore the onus in establishing both tests, and failed to do so.
The respondent said she is an 82 year old widow who needs the proceeds from the sale of the Land to downsize and purchase a smaller home. Without the removal of the caveat, she says will be unable to proceed with the sale of the Land or to secure new housing. Further, it is submitted that there is a valid and enforceable contract of sale with Saad, who has accrued rights under the contract, and the Court should take into account the impact of third party rights when exercising their discretion.
Finally, the respondent submitted that the application for injunctive relief should be refused for the same reasons as the application for the stay and that, in any case, the balance of convenience weighs against the grant of an injunction, given the lack of merit in the proposed appeal.
In oral submissions counsel for the respondent accepted that dismissal of the stay application might well render the application for leave to appeal nugatory but that was not necessarily determinative. Counsel emphasised that any possibility of using the property as a ‘family complex’ had gone because of the ‘feud’. Counsel submitted that the claims evens even if established were claims for which monetary compensation would be an adequate remedy.
Relevant Legal Principles
Rule 64.39 of the Supreme Court (General Civil Procedure) Rules2015 relevantly provides that an application for leave to appeal shall not operate as a stay except so far as the Court of Appeal otherwise orders. Rule 66.16 provides that the Court may stay execution of a judgment.
The principles applicable on an application to this Court for a stay are well settled. In Maher v Commonwealth Bank of Australia,[23] Dodds-Streeton JA set out those principles in the specific context of a proposed appeal against an order under s 90(3) of the TLA removing a caveat.
[23][2008] VSCA 122.
Her Honour explained that prima facie a successful party is entitled to the benefit of a judgment obtained below and the presumption is that the judgment is correct. An applicant for a stay bears the onus of demonstrating that a stay is justified. The discharge of that onus requires the demonstration of the existence of special or exceptional circumstances which take the case out of the general rule. The fact that a refusal of a stay may render a pending appeal nugatory is potentially one such special circumstance. But her Honour then observed that the prospect that an appeal may be rendered nugatory had to be ‘balanced’ against the principle that the successful party is entitled to the fruits of the judgment.[24]
[24]Ibid [20], [22], [24], [27].
Section 90(3) of the TLA permits any person adversely affected by a caveat to bring proceedings for its removal and empowers the court in dealing with such a proceeding to ‘make such order as the court sees fit’.
The principles applicable on an application under s 90(3) are also well-settled. The principles were set out by Warren CJ in two decisions, being Piroshenko[25] and CFHW Pty Ltd v Burness.[26]
[25](2010) 27 VR 489; [2010] VSC 240.
[26][2014] VSC 451.
The application to remove a caveat is treated by the Court as being ‘analogous’ to an application for interlocutory relief. This requires a two stage approach under which the caveator must establish a serious question to be tried or a prima facie case, and, having done so, establish that the balance of convenience favours maintenance of the caveat.
It has been observed that there is no real difference between a serious question to be tried and a prima facie case, but the prima facie case test is now to be preferred.[27]
[27]AAGG Developments [2020] VSC 768, [8] (Derham AsJ).
The Chief Justice in Piroshenko cautioned that, although the courts had adopted the analogy of an interlocutory injunction and the consequent two stage process, the section itself is broadly drafted. The two stage ‘test’ should only inform whether the court should exercise the discretion. It should not subsume or restrict the power conferred by the statute.[28]
[28]Piroshenko (2010) 27 VR 489, 491–2 [11]; [2010] VSC 240.
This Court endorsed the Chief Justice’s analysis, including the caution set out above, in Carbon Black.[29]
[29][2015] VSCA 126, [35]–[37] (Santamaria, Ferguson and McLeish JJA).
In Carbon Black this Court went on to observe:
The authorities make it clear that the power of the Court under s 90(3) is discretionary. In these circumstances, the applicant seeks leave to appeal against an exercise of a discretion, and to succeed on the appeal must establish error of the kind identified in House v The King.[30]
[30]Ibid [39] (citations omitted).
In Dolan v Dolan,[31] this Court adopted what was said in Carbon Black, including Warren CJ’s statement of the principles in Piroshenko,[32] and confirmed that the relevant decision is a discretionary one which can be impugned only if an error of the kind explained in House v The King is established.[33]
[31][2023] VSCA 136 (‘Dolan’).
[32]Ibid [51] (Niall, Osborn and Kaye JJA).
[33]Ibid [83] (Niall, Osborn and Kaye JJA).
Analysis
It is true that the refusal of a stay may well, in this case, render nugatory the pending application for leave to appeal. That is a significant consideration, but it is not necessarily determinative of the application.
In the circumstances here, we have concluded that the stay should be refused, notwithstanding the consequence that the application for leave to appeal may well thereby be rendered nugatory.
Our reasons are as follows:
(a)The decision sought to be appealed is a decision from a discretionary judgment. The appeal could only succeed if an error of the kind described in House v The King were established. It is clear that the Associate Justice was aware of, and purported to apply, the correct legal principles. The contention on any appeal could only be that, while she stated the principles accurately, she did not apply them, or that her decision is so unreasonable or unjust that error of the requisite kind can be inferred. On our reading of the reasons, we consider that it will be very difficult to persuade the Court of that contention.
(b)The existing decision, and the refusal of a stay, do not determine any issue against the applicants. The decision is interlocutory. There is no issue estoppel or res judicata.[34]
(c)The applicants did establish a prima facie case for relief in relation to the parcel of land. But monetary compensation is very likely to be the appropriate remedy for that aspect of the claim, and the Associate Justice’s order addresses that issue by the order for payment into Court.
(d)The material relied upon which lends strength to the claim concerning the parcel of land, includes the solicitor’s letter in September 2023 and the draft deed in October 2023. That letter and deed, while fortifying the claim in relation to the parcel of land, is entirely inconsistent with the further claims made by the applicants in relation to additional contributions and the Option to Purchase.
(e)In our opinion, it is most unlikely that any error of the requisite kind will be found in the Associate Justice’s conclusion that the applicants had not established a prima facie case in relation to the Option to Purchase. The existence of such an option is starkly inconsistent with the solicitor’s letter and the deed; on this issue the applicants were not consistent with each other; and, on any view of their evidence, the agreement alleged is almost devoid of content.
(f)In relation to the applicants’ case based upon their contributions beyond the transfer of the parcel of land, the case is, at the least, vague and uncertain. Even if that claim were established, monetary compensation may well be the appropriate relief.
(g)The Land is said to be unique because of its character as a family compound. The evidence of what was referred to as ‘the feud’ strongly suggests that that feature of the property has already been lost, at least insofar as it relates the extended family.
(h)The balance of convenience strongly favours refusal of a stay. The caveat is preventing the elderly registered proprietor from dealing with the Land. If the applicants’ claims are eventually established it seems to us that monetary compensation is very likely to be an adequate remedy.
[34]Ibid [61] (Niall, Osborn and Kaye JJA).
In the circumstances the application for a stay will be refused. The alternative application for an injunction is refused for the same reasons.
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