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Saad v Saad

Saad v Saad

Case [2025] VSC 15 31 January 2025

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2024 03867

BETWEEN:

KHADIGI SAAD	Plaintiff
v
WALEED SAAD	First Defendant
HALA SAAD	Second Defendant

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JUDGE:	Gobbo AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	7 November 2024
DATE OF JUDGMENT:	31 January 2025
CASE MAY BE CITED AS:	Saad v Saad & Anor
MEDIUM NEUTRAL CITATION:	[2025] VSC 15

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PROPERTY LAW – CAVEATS – Application for removal of caveat under s 90(3) of the Transfer of Land Act 1958 (Vic) – Plaintiff registered proprietor of residential property since 1975 – Family dispute – Defendants alleged implied, resulting or constructive trust – Alleged proprietary estoppel – Plaintiff has sold property – Date for settlement extended – Whether prima facie case demonstrated – Balance of convenience – Piroshenko v Grojsman (2010) 27 VR 489 – Carbon Black Lab Pty Ltd v Launer [2015] VSCA 126 – AAGG Developments Pty Ltd v Saafin Constructions Pty Ltd & Ors [2020] VSC 768 – Hatziminas v Hatziminas [2024] VSC 513 – McDonald v Dunscombe [2018] VSC 283 – Sidhu v Van Dyke (2014) 308 ALR 232.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Twidale of counsel	De Marco Lawyers
For the Defendants	Mr J Schulz of counsel	RJ Legal

TABLE OF CONTENTS

Legal Principles.................................................................................................................................. 2

Factual Matters................................................................................................................................... 5

Prima Facie Case................................................................................................................................. 9

The Alleged 1987 Agreement...................................................................................................... 9
The Plaintiff’s View of the 1987 Agreement........................................................................ 12
Dispute Surrounding the 1987 Agreement............................................................................. 12
The Defendants’ Case................................................................................................................. 14
The Plaintiff’s Case..................................................................................................................... 19
Prima Facie Case – Analysis and Consideration.................................................................... 23
Conclusion on Prima Facie Case............................................................................................... 39

Balance of Convenience.................................................................................................................. 40

The Defendants’ Case................................................................................................................. 40
The Plaintiff’s Case..................................................................................................................... 42
Balance of Convenience – Analysis and Consideration........................................................ 43

Conclusion......................................................................................................................................... 45

HER HONOUR:

This is an application by the plaintiff, Khadigi Saad (‘Khadigi’), to remove a caveat pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) (‘TLA’). The caveat sought to be removed is registered on behalf of the defendants, Waleed Saad (‘Waleed’) and Hala Saad (‘Hala’), in dealing number AX263942D (‘Caveat’) over the land at 179 Union Street, Brunswick West in the State of Victoria, being the land more particularly described in Certificate of Title Volume 10000 Folio 209 (‘Land’). Waleed and Hala are Khadigi’s son and daughter-in-law. The ground of claim stated in the Caveat is an interest in the freehold estate under an “implied, resulting or constructive trust” with an absolute prohibition.

The parties filed a significant volume of material in respect of the application. Khadigi relied on:

(a) the affidavit of Khadigi Saad sworn 25 July 2024;

(b) the affidavit of Samiksha Tuli affirmed 20 August 2024;

(c) the expert report of Darren Wingjan;

(d) the affidavit of Khadigi Saad sworn 20 September 2024 (‘Reply Affidavit’);

(e) the affidavit of Bessim Saad (‘Bessim’) sworn 20 September 2024;

(f) the affidavit of Saad Saad (‘Saad’)…

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] VSC 15
Case: [2025] VSC 15
Decision Date: 31 January 2025

CaseChat Overview and Summary

The case of Saad v Saad involves a dispute over the removal of a caveat from a residential property located in Victoria. The plaintiff, Saad, has been the registered proprietor of the property since 1975, and the defendants, who are family members, lodged a caveat against the property. The defendants argue that they hold an implied, resulting, or constructive trust or that proprietary estoppel applies to their claim. The plaintiff has since sold the property, and the settlement date has been extended. The primary legal issue before the court was whether the defendants had demonstrated a prima facie case for their claims and whether the balance of convenience favoured the removal of the caveat.

The court considered the criteria for removing a caveat under section 90(3) of the Transfer of Land Act 1958 (Vic) and assessed the evidence presented by both parties. The court examined the principles set out in Piroshenko v Grojsman (2010) 27 VR 489, Carbon Black Lab Pty Ltd v Launer [2015] VSCA 126, AAGG Developments Pty Ltd v Saafin Constructions Pty Ltd & Ors [2020] VSC 768, Hatziminas v Hatziminas [2024] VSC 513, McDonald v Dunscombe [2018] VSC 283, and Sidhu v Van Dyke (2014) 308 ALR 232. The court found that the defendants had not established a prima facie case for their claims and that the balance of convenience favoured the removal of the caveat. The court emphasised the importance of the plaintiff's vested interest in the property and the need to protect the integrity of the Torrens system.

The court ordered the removal of the caveat lodged by the defendants and dismissed their claims. The court's decision was based on the lack of evidence supporting the defendants' claims and the strong interest of the plaintiff in the property. The court also noted that the defendants' claims were speculative and did not meet the required standard of proof. The decision reinforces the importance of maintaining the efficiency and reliability of the Torrens system and protecting the rights of registered proprietors.

Orders