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Saad v Saad

Saad v Saad

Case [2025] VSCA 29 7 March 2025

Stay of Proceedings

Appeal

Compensatory Damages

Civil Litigation & Procedure

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Saad v Saad

Details

AGLC: Saad v Saad [2025] VSCA 29
Case: [2025] VSCA 29
Decision Date: 7 March 2025

CaseChat Overview and Summary

The case of Saad v Saad involved a legal dispute between two parties, Saad and Saad, regarding the removal of a caveat over a property. The matter was heard in the court, which considered an application for a stay of orders requiring the removal of the caveat, or alternatively, an injunction. The case centred on the potential consequences of refusing the stay application and whether it might render a pending application for leave to appeal ineffective, as well as the likelihood of establishing the so-called House v King error.

The court was tasked with determining whether the refusal of the stay application would make the pending application for leave to appeal ineffective, and if a monetary remedy would be sufficient in this context. Additionally, the court had to consider the possibility of establishing the House v King error, a legal principle that could impact the proceedings. The court examined relevant statutes and case law, including Maher v Commonwealth Bank of Australia, Dolan v Dolan, Piroshenko v Grojsman, and Carbon Black Lab Pty Ltd v Launer, to guide its decision-making process.

The court found that the refusal of the stay application was not determinative of rendering the pending application for leave to appeal ineffective. It also concluded that a monetary remedy was likely to be sufficient in this situation and that it was unlikely the House v King error would be established. Consequently, the application for a stay, or alternatively an injunction, was refused.

The court's decision was based on its analysis of the legal principles and precedents that were relevant to the case. The court determined that the potential consequences of refusing the stay application did not warrant granting the stay, and the likelihood of establishing the House v King error was minimal. As a result, the application for a stay or injunction was denied.

Orders