Saad v Saad

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’) sworn 20 September 2024;

(g) the affidavit of Zafir Saad (‘Zafir’) sworn 20 September 2024;

(h) the affidavit of Khadigi Saad sworn 4 November 2024 (‘Final Affidavit’); and

(i) a written outline of submissions filed on 14 October 2024.

Waleed and Hala relied on:

(a) the affidavit of Waleed Saad affirmed 9 September 2024;

(b) the affidavit of Khaldoun Saad (‘Khaldoun’), also known as Khalid Saad, affirmed 9 September 2024;

(c) the affidavit of Hala Saad affirmed 29 October 2024; and

(d) a written outline of submissions filed on 8 October 2024.

Legal Principles

Pursuant to s 89(1) of the TLA, a caveat can only be lodged by a person claiming an estate or interest in the land. The estate or interest must be established to the requisite standard by the person who lodged the caveat, if the caveat is challenged.

The plaintiff’s application is made pursuant to s 90(3) of the TLA, where any person adversely affected by a caveat lodged under s 89 of the TLA is permitted to ‘bring proceedings in a court against the caveator for the removal of the caveat’. Section 90(3) of the TLA empowers a Court to ‘make such order as the court thinks fit’, and thus gives the Court a discretion. In an application for removal of a caveat, the Court applies tests equivalent to those applied in an application for an interlocutory injunction.[1]
[1]Eng Mee Yong v Letchumanan [1980] AC 331, 337 (Lord Diplock); Piroshenko v Gosjman (2010) 27 VR 489, 492–495 [12]–[23] (Warren CJ) (‘Piroshenko’); Goldstraw v Goldstraw [2002] VSC 491, [30] (Dodds-Streeton J).

In Carbon Black Lab Pty Ltd v Launer,[2] the Court of Appeal endorsed a two-stage test explained by Warren CJ in Piroshenko v Grojsman (‘Piroshenko’)[3] regarding applications under s 90(3) of the TLA, where her Honour said:[4]

Caveats under the Torrens system are treated by the courts as analogous to applications for interlocutory injunctive relief. In so far as their registration is an administrative act, it is when application is made for their removal that the onus falls on the caveator to satisfy the two-stage test used by the court when deciding whether to exercise its discretion to grant interlocutory injunctive relief. This approach has been established law in Australia since the decision of Lord Diplock in Eng Mee Yong v Letchumanan was approved by the Full Court of the Queensland Supreme Court in Re Jorss’ Caveat. This two-stage approach requires the caveator to establish that there is a serious question to be tried that they have the estate or interest which they claim in the land in question, and having done so, to establish that the balance of convenience favours the maintenance of the caveat on the Register of Titles until trial. This is still the approach taken by the courts in Victoria when deciding applications under s 90(3) of the Act.

[2][2015] VSCA 126.

[3]Piroshenko (n 1).

[4]Ibid, 491 [7], cited with approval in ANZ v Annesley [2015] VSC 781 (citations omitted).

In Olandezos v Bhatha,[5] Derham AsJ set out the applicable principles under s 90(3) of the TLA as considered by Warren CJ in Piroshenko, and summarised by Elliott J in Sylina v Solanki[6] in the following terms:[7]

The principles to be applied on an application to remove a caveat are well settled. There are numerous cases enunciating the approach the court must take. Relevantly, the authorities (See, for example Percy & Michele Pty Ltd v Gangemi [2010] VSC 530 [38]–[48] (Macaulay J); Piroshenko v Grojsman (2010) 27 VR 489, 491-492 [7]-[11], 492-494 [13]–[20] (Warren CJ); Schmidt v 28 Myola Street (2006) 14 VR 447, 457 [32] (Warren CJ); Goldstraw v Goldstraw [2002] VSC 491, [30] (Dodds-Streeton J)) establish as follows:
(1) The court’s power under s 90(3) of the Act is discretionary.
(2) A caveator bears the onus of establishing that there is a serious question to be tried that it does have the ‘estate or interest in land’ as claimed.
(3) If the caveator establishes a serious question to be tried in relation to the estate or interest claimed, the caveator must further establish that the balance of convenience favours the maintenance of the caveat until trial.
(4) There is a relationship between the strength of the case in establishing a serious question to be tried and the extent to which the caveator must establish the balance of convenience favours the caveator; the stronger the case in establishing a serious question, the more readily the balance of convenience might be satisfied. It is sufficient that the caveator show a sufficient likelihood of success that, in the circumstances, justifies the practical effect which the caveat will have on the ability of the registered proprietor to deal with the property in question in accordance with its normal proprietary rights.

[5][2017] VSC 234, [15]-[18].

[6][2014] VSC 2.

[7]Ibid, [43].

More recently, in AAGG Developments Pty Ltd v Saafin Constructions Pty Ltd & Ors,[8] Derham AsJ provided the following helpful summary that I respectfully adopt:[9]
[8][2020] VSC 768.
[9]Ibid, [8] (citations omitted). See also Chan & Anor v Liu & Anor [2020] VSCA 28.

(a)The application is in the nature of a summary procedure analogous to the determination of interlocutory injunctions. The procedure is consequently interlocutory in substance, even though it may give rise to a final order.
(b)The Court’s power under s 90(3) of the TLA is discretionary.
(c)The caveator bears the onus of establishing that there is a prima facie [case] that it does have the estate or interest in land as claimed.
(d)The prima facie case test is often used interchangeably with whether a serious question to be tried is established. The prima facie case test is to be preferred. That does not mean that the Caveator must show that it is more probable than not that at trial the plaintiff will succeed. The Caveator must show that they have a prima facie case with sufficient likelihood of success to justify the maintenance of the caveat, and the preservation of the status quo pending trial.
(e)If the caveator establishes a prima facie case to be tried in relation to the estate or interest claimed, the caveator must further establish that the balance of convenience favours the maintenance of the caveat until trial.
(f)There is a relationship between the strength of the case in establishing a prima facie case to be tried and the extent to which the caveator must establish the balance of convenience favours the caveator; the stronger the prima facie case, the more readily the balance of convenience might be satisfied. It is sufficient that the caveator show a sufficient likelihood of success that, in the circumstances, justifies the practical effect which the caveat will have on the ability of the registered proprietor to deal with the property in question in accordance with its normal proprietary rights.

Consideration of an application to remove a caveat involves two steps:[10]

(a) first, the caveator must establish that there is a prima facie case for the asserted legal or equitable rights or interest in the land; and

(b) second, assuming the first step is satisfied, the caveator must establish that the balance of convenience favours the maintenance of the caveat and that it is sufficient to justify the practical effect which the caveat has on the ability of the registered proprietor to deal with the property in question in accordance with their normal proprietary rights.

[10]Piroshenko (n 1), 493 [18] (Warren CJ).

It is well accepted that in considering an application to remove a caveat, the Court should make whichever order appears to carry the lower risk of injustice should it turn out at trial to have been wrongly made.[11]
[11]Brett Grimley Sales Pty Ltd v Petrovic [2015] VSC 716, [13] (Garde J).

If it is clear that the caveator is not entitled to maintain the caveat, there is no serious question to be tried. The application for removal should succeed and the caveat should be removed.[12]
[12]See Gurwitz v Gurwitz (1988) V ConvR 54-317. See also Colbran, S., Jackson, S. Caveats [Australia: FT Asia 1996], 343 and 469.

A ‘serious question’ is one which is reasonably arguable, such argument being of substance and not frivolous.

In determination of the ‘serious question’, the Court must have regard to all of the evidence before it, including evidentiary material from which it can conclude that the defence will succeed.[13]
[13]National Mutual Life v G. T. V.Corporation Pty Ltd & Ors [1989] VR 747, 751-754 (Ormiston J).

Factual Matters

The evidence given by and on behalf of the plaintiff and defendants in this application shows that there are fundamental disputes of fact. Whether one or other of the parties is mistaken, or not being entirely truthful, is not a matter that I can or should determine in this application.

Dealing first with the non-contentious facts, in or around late 1969, Khadigi and her late husband, Abboud Saad (‘Abboud’), migrated to Australia. They had 13 children, Waleed being the eldest son and Saad being the youngest son. Certain of the children of Abboud and Khadigi have filed evidence in respect of this application, namely: Saad, Bessim, the seventh eldest child, and Zafir, the second eldest child, on behalf of the plaintiff; and Khaldoun, the third eldest child, on behalf of the defendants.

On 22 December 1975, Khadigi and Abboud were registered as joint proprietors of the Land.

In or around 1982 Abboud retired. In the same year, Waleed commenced work as an apprentice electrician.

In or around November 1983, Waleed purchased and moved into a property at Barry Street in the State of Victoria.

In or around 1986, Abboud encouraged Waleed to purchase 181 Union Street, Brunswick West in the State of Victoria, being the land more particularly described in Certificate of Title Volume 08053 Folio 018 (‘181 Union Street’), being the property next door to the Land, his reason being that he wanted his eldest son to live next door.

On 10 October 1986, Waleed and Hala were registered as joint proprietors of 181 Union Street and commenced living at the property. At this time, 181 Union Street had its own driveway and a fence along the boundary with the Land.

In or around the late 1980s, Khadigi and Abboud determined to develop the Land by building a double story dwelling at the front of the Land and a granny unit at the rear of the Land (‘Development’).

In or around 1987, Abboud requested that Waleed provide 57.7 square meters of land from 181 Union Street to the Land so that he and Khadigi could realise the Development (‘Parcel of Land’).

On 7 December 1987, Plan of Consolidation CP166940Y for the Land was prepared (‘Plan of Consolidation’).

On 4 January 1988, Transfer of Land N263086A for the Parcel of Land from Waleed and Hala’s property at 181 Union Street to Abboud and was signed (‘Transfer’). The Transfer records the sum of $500.00 as consideration for the transfer and stamp duty of $70.00 was payable on an assessed land value of $5,000.00.

On 19 January 1988, stamp duty on the Transfer was paid and the Transfer was registered on 29 January 1988.

On 4 April 1989, Khadigi and Abboud entered into Mortgage R199628U with Australia and New Zealand Bank (‘ANZ Bank’) as borrower and as mortgagor in respect of a loan for $62,000.00, with security for the mortgage being 181 Union Street and the Land (‘Mortgage R199628U’). Simultaneously, Khadigi and Abboud entered into Mortgage R199629R with ANZ Bank as mortgagor, providing collateral security for an advance of $33,200.00, with security for the mortgage being 181 Union Street and the Land (‘Mortgage R199629R’). Waleed and Zafir are the named customers in respect of Mortgage R199629R. Whilst the existence of the mortgages was not in dispute before me, whether the named parties in fact entered into the mortgages, the reason for the mortgages and the underlying debts which they secured was disputed.

On 17 April 1989, stamp duty of $212.00 was paid in respect of Mortgage R199628U.

On 31 January 1991, the Plan of Consolidation was approved and registered.

On 4 February 1991, ANZ Bank registered Mortgage R199628U and Mortgage R199629R on the titles of 181 Union Street and the Land.

In 2016, Abboud passed away.

In or around April 2023, an incident occurred at the Land between Waleed’s son and Saad causing a division in the family (‘April 2023 Incident’).

On 17 August 2023, Khadigi entered into a contract of sale in respect of the Land with a settlement date of 17 April 2024 (‘Contract of Sale’). Settlement was extended to 17 October 2024, then further extended to 15 November 2024.[14] When the matter came before me, Khadigi, through her Counsel, informed the Court that settlement could and would be further extended to a date to be fixed.[15]
[14]Transcript of Proceedings (7 November 2024) 6.12-6.15.
[15]Ibid, 7.28-8.7.

On 24 August 2023, caveat AX184621P was lodged on the title of the Land by Saad on the grounds of a purchaser’s contract.

On 15 September 2023, Waleed and Hala lodged the Caveat on the title of the Land and Khadigi was notified.

On or around 5 October 2023, Khadigi vacated the main dwelling on the Land and moved to reside with her daughter, Afifa, in a rental property in Hadfield in the State of Victoria.

On 14 November 2023, Khadigi lodged a survivorship application with respect to the Land.

On 30 January 2024, caveat AX685650N was lodged on the title of the Land by Khaldoun on the grounds of an ‘implied, resulting or constructive trust’. On 15 April 2024, Khadigi, via her solicitors, demanded of Khaldoun’s solicitors, Randles Cooper Lawyers, that Khaldoun’s caveat be removed. Shortly, thereafter, Khaldoun’s caveat was removed.

On 26 July 2024, this proceeding was commenced by originating motion.

On 31 October 2024, proceeding S ECI 2024 05843 was commenced by Waleed and Hala against Khadigi in relation to an alleged oral promise made by Abboud to Waleed in 1987 (‘1987 Agreement’), from which they say a caveatable interest in the Land arises in their favour through the principles of proprietary estoppel, or alternatively by reason of unconscionability, constructive trust or a common intention constructive trust (‘Related Proceeding’). The Related Proceeding was not before me. Despite this, Counsel for Waleed and Hala invited me to have regard to the documents filed with the Court in that proceeding. Counsel for Khadigi resisted this course, particularly as I was informed that the Related Proceeding had not yet been served on Khadigi. I have reviewed the file in the Related Proceeding. I note that the only document filed is an originating motion in which various declarations are sought which align with the arguments advanced by Waleed and Hala’s Counsel before me. There is no statement of claim before the Court which seeks to advance the terms of the alleged 1987 Agreement or the alleged implied, resulting or constructive trust claim over the Land which is the subject of the Caveat.

At the time of the hearing before me, no undertaking as to damages had been offered by Waleed and Hala. Khadigi, through her Counsel identified that pursuant to the Contract of Sale, Khadigi would be liable for damages to Saad should she be unable to settle.[16] The existence of that contractual liability was not challenged by Waleed and Hala. However, Waleed and Hala did challenge whether Saad would pursue a damages claim against his mother. Subsequently, during the course of the hearing, Waleed and Hala through their Counsel provided the usual undertaking as to damages in the event that I determined to maintain the Caveat.
[16]Ibid, 8.16-8.30.

Prima Facie Case

Waleed and Hala have the onus of establishing that they have a prima facie case with sufficient likelihood of success to justify the maintenance of the Caveat, or its equivalent, and the preservation of the status quo pending trial.[17]
[17]Piroshenko (n 1),494 [16] (Warren CJ).

They contend, based on the alleged 1987 Agreement, that they have a caveatable interest in the Land arising through the principles of proprietary estoppel, alternatively by reason of unconscionability, constructive trust or a common intention constructive trust.

The Alleged 1987 Agreement

Critically, the 1987 Agreement was deposed to by Waleed in the following terms:

In late 1987 on a date or in a month that I can no longer recall, I had a conversation with Abboud at 179 Union Street during which Abboud's [sic] told me about his intentions to develop 179 Union Street.
During this conversation Abboud showed to me a set of plans that had been prepared by his architect in relation to the proposed development of 179 Union Street (plans). The plans consisted of drawings of the proposed development, which were for the construction of a 2-storey, 7-bedroom house at the front of 179 Union Street (main house) and a 3-bedroom unit at the rear of 179 Union Street (rear unit) (together, the development).
Abboud said to me words to the effect that in order to construct the development as per the plans he needed additional land, namely a further approximately 1.22 metres running along the boundary parallel with Union Street, and for this to run the entire length (47.30 meters) of the boundary from Union Street to the rear boundary of the property (additional land). Abboud told me that the architect said if he didn't get the additional land, he would not be able to do the development. Abboud asked me to provide the additional land he needed to build the development of 179 Union Street by changing the then boundary between 179 Union Street and my property at 181 Union Street.
Abboud said to me words to the effect that the proposed development would provide a ‘family complex’ for the benefit of the entire family, aimed at keeping the family connected particularly in the future years as the family grew. He said to me that there would not be any fence between 179 Union Street and 181 Union Street but rather there would be a shared driveway and a communal gathering space for the family between the dwellings on 179 Union Street and 181 Union Street. At this time, a fence separated 181 Union Street from 179 Union Street, and 181 Union Street had its own exclusive driveway. He said both dwellings proposed for 179 Union Street as part of the development would be utilised for the benefit of the entire family.
Given that Abboud and Khadigi’s only income at this time was Centrelink benefits, Abboud asked me to continue to make financial contributions to the family to contribute to the costs of the proposed development of 179 Union Street. At this time, only the second oldest of my siblings, Zafir Saad (Zafir), was also employed and able to make any meaningful financial contribitions [sic] towards the costs of the proposed development.
Abboud said to me words to the effect that, if I provided the additional land he needed to proceed with the proposed development of 179 Union Street from my adjoining property at 181 Union Street, and contributed to the financial costs of the proposed development by continuing to provide Abboud my earnings, I would receive a proprietary interest in 179 Union Street, commensurate to the additional land and financial contributions I made towards its development. Abboud also said that, if either of us determined to sell our respective properties in the future, we were to offer the property to the other party for purchase in the first instance.
I said to Abboud words to the effect that I agreed to his proposal (1987 Agreement).
The 1987 Agreement was not documented. I trusted my father. We were a very close family whilst he was alive.
I have read paragraphs 5 to 8 of Khadigi' s affidavit in which she states that in 1988 she and Abboud requested that I gift them the additional land needed to completed the proposed development of 179 Union Street, and that I agreed to this request. I dispute this. The agreement we reached was as I have deposed to above. I have instructed my lawyers to obtain a copy of the Transfer of Land dated 4 January 1988 for the additional land maintained by Land Titles Victoria. I note the Transfer of Land records the transfer from Hala and I to Abboud and Khadigi was for consideration, not as a gift. The $500 consideration recorded was determined by Abboud. I did not receive $500 from Abboud and Khadigi for the transfer. Rather, in line with the 1987 Agreement, I received an interest in 179 Union Street. I further note that a stamp on the Transfer of Land records the additional land was assessed by the Titles Office as being valued at $5000, and duty of $70 was paid.
Although Khadigi had not been present during the conversation I had with Abboud in which the 1987 Agreement was struck, Khadigi was made aware of the 1987 Agreement by Abboud. Abboud told me that he had told Khadigi of the 1987 Agreement.
The 1987 Agreement was not a secret and was openly discussed within the family. I would make payment of my business earnings to Abboud, being financial contribution toward the costs of the development of 179 Union Street, in front of Khadigi. I recall Khadigi saying to me, after the development of 179 Union Street was completed, words to the effect that “if it wasn’t for you helping us with providing the land and money, then we wouldn’t be where we are“. On no occasion prior to April 2023 did Khadigi ever say to me that she had not agreed with the 1987 Agreement, nor did she refer to the additional land I had provided as being a “gift” from me, nor did Abboud tell me that Khadigi did not agree with the 1987 Agreement.
My entire family, including all my siblings, all learnt at various times as they grew older of the existence of the 1987 Agreement.

The same alleged agreement was, contrastingly, deposed to by Hala in the following terms:

During this visit, Abboud handed a document to me and asked me to sign it. As I had only been in Australia for about four years at that time, my English was limited, and I was not able to read or understand what I was signing. Abboud told me that it was a document to transfer a small part of the land between 179 Union Street and 181 Union Street (additional land) that he needed in order to complete a development at 179 Union Street. Abboud said that he intended to build these properties for the benefit of the family and that Waleed and my contributions would not be lost because we would have an ownership in 179 Union Street and if this property was ever to be sold, it would eventually be sold to us for a price that will take into account our contributions. (emphasis added)

There is a fundamental difference as to the terms of the 1987 Agreement as deposed to by Waleed and Hala. Hala does not allege there to be any trust – rather she alleges that if the Land was to ever be sold it would eventually be sold to them for a price that recognised their contributions. This discrepancy was not explained by Waleed and Hala nor was it addressed by their Counsel.

In his written outline, Counsel for Waleed and Hala distilled the terms of the alleged 1987 Agreement as follows:

(a) Waleed and/or Hala would receive an interest in the Land if Waleed agreed to provide Abboud and Khadigi with the Parcel of Land from 181 Union Street. Waleed and/or Hala’s interest was to be in the amount of the additional land contributed and any other financial contributions Waleed made to the costs of the Development; and

(b) Waleed and/or Hala would have the first option to purchase the Land in the event that Abboud and Khadigi determined to sell in the future (‘Option to Purchase’).

As to those alleged ‘other financial contributions’, the only evidence before me was that of Waleed:

…From 1982, I was the primary income provider for Abboud, Khadigi and my 12 siblings. I paid all my wages that I earned as an apprentice electrican [sic] to Abboud, as cash in my pay packets, who used this money to pay for all of the expenses of the family. This included property related expenses of 179 Union Street, such as rates and utitlities [sic].
Between 1982 and 1985, I was an apprentice earning approximately $250 - $300 per week. Between 1985 to 1987 I was earning approximately $350 - $380 per week. In July 1987 I became self-employed. From this point, I continued to pay my parents approximately 60-70% of my earnings, which were about $100,000 per annum. This continued until approximately 1996. Given they occurred over 20 years ago, I no longer have any records of making these payments. I estimate that I provided approximately $120,000 to my parents during this time.

The Plaintiff’s View of the 1987 Agreement

In contrast, Khadigi denied that Waleed and Hala were promised an interest in the Land. Khadigi contended that the Parcel of Land was provided to her and Abboud as a gift. She deposed to the arrangements in the following terms:

The First Defendant (“Waleed”) is my oldest son and my next-door neighbour. The Second Defendant is his wife. On a date I cannot now recall, but around 1988, my husband and I requested Waleed to gift us approximately 57.70 square metres of the defendants’ land next door at 181 Union Street, West Brunswick in the State of Victoria (“181 Union Street”).
…
We requested the portion of land because we needed the extra land to complete the construction of the double story dwelling and the granny-esque unit.
The First Defendant agreed to our request and it was agreed that there was no consideration to be exchanged.

Dispute Surrounding the 1987 Agreement

Before me, it was common ground that Abboud and Khadigi:

(a) encouraged Waleed and Hala to purchase 181 Union Street;

(b) wished to develop the Land;

(c) required the Parcel of Land in order to do so;

(d) requested Waleed and Hala provide the Parcel of Land to them; and

(e) were provided the requested Parcel of Land by Waleed and Hala.

The following was disputed:

(a) the terms on which the Parcel of Land was provided, namely as a gift or otherwise;

(b) whether Waleed and Hala contributed any money to the Development and if so, what amount and on what terms – in particular, were those alleged contributions intended to give rise to an interest in the Land and if so, to what extent?

(c) whether there was ever an Option to Purchase.

The principles relating to common intention constructive trusts were not in dispute.

In Hatziminas v Hatziminas,[18] Quigley J stated:[19]
[18][2024] VSC 513.
[19]Ibid, [81]-[85] (citations omitted).

A common intention constructive trust is a trust which is “construed” or “constructed” by a court to give effect to the common intent of the parties. The elements of a common intention constructive trust are very similar to that required for establishing proprietary estoppel such that its establishment as a class of constructive trust has been called in to question.
A common intention constructive trust may arise from an agreement or common intention arsing after acquisition of the relevant property. The common intention constructive trust creates substantive rights and is not merely a remedy arising when a court makes a declaration to that effect.
In Iman Ali Islamic Centre v Iman Ali Islamic Centre Inc, at [402]-[405] McMillan J set out the following elements which are needed to establish a constructive trust:
(a)there is an actual or inferred common intention of the parties as to their beneficial interest in a property;
(b)there has been detrimental reliance on that common intention by the plaintiff; and
(c)it would be an equitable fraud on the plaintiff to deny their beneficial interest in the property.

The onus of proof of such a trust lies on the party asserting the beneficial interest against the legal owner.
The parties’ intentions can be inferred from a party’s contemporaneous words or conduct having regard to the surrounding circumstances and context in which they were made or performed. The relevant intention may arise after the property was acquired. The intention does not need to designate a specific share of the property; it is sufficient that the plaintiff should have a beneficial interest.

The principles relating to proprietary estoppel were also not in dispute.

The Defendants’ Case

In written argument, Counsel for Waleed and Hala referred to the principles identified by McMillan J in McDonald v Dunscombe[20] in relation to proprietary estoppel. It is the doctrine by which a court of equity intervenes to redress the unconscionable conduct of a promisor departing from a promise, which promise has induced another to change his or her position to their detriment. Adapting the summary formulated by Kaye J who considered the principles of proprietary estoppel in Harrison v Harrison,[21] Counsel for Waleed and Hala submitted that they must establish that:
[20][2018] VSC 283, [14]-[18].
[21]Harrison v Harrison [2011] VSC 459, [362]-[370] (‘Harrison’), not questioned on appeal: Harrison v Harrison [2013] VSCA 170 (‘Harrison Appeal’).

(a) Abboud and Khadigi made a promise to them that they (Abboud and Khadigi) would confer an interest in the Land to them;

(b) they acted in reliance on that promise;

(c) they acted reasonably in so relying on the promise made to them;

(d) Abboud and Khadigi knew or intended they would rely on the promise; and

(e) they have or will suffer a detriment as a consequence of the failure by Khadigi to adhere to the promise.

The authorities show that on one key question of relevance to the facts in this case, the approach in equity is somewhat more flexible than the approach at law. That concerns the question of the certainty or specificity of the promise or representation relied upon.

In equity, a promise may form the basis of a proprietary estoppel claim even though not sufficiently certain or specific to satisfy the requirements of an enforceable contract at law.[22]
[22]Harrison (n 21), [374]–[376] (Kaye J); Harrison Appeal (n 21), [141]–[152] (Garde AJA) citing Ramsden v Dyson (1865) LR 1 HL 129; Flinn v Flinn [1999] 3 VR 712; Accurate Financial Consultants Pty Ltd & anor v Koko Black Pty Ltd & Ors (2008) 66 ACSR 325 (‘Accurate Financial Consultants’).

Additionally, in written submissions, Waleed and Hala’s Counsel relied on the decision in Sidhu v Van Dyke[23] for the proposition that the primary remedy where proprietary estoppel is established is specific performance of the promise in order to avoid the detriment the promisee would otherwise suffer having acted in reliance on the promise of the promisor.
[23](2014) 308 ALR 232.

Waleed and Hala contended that they acted in reliance on the alleged 1987 Agreement by:

(a) executing documents Abboud subsequently organised to affect the transfer of the Parcel of Land;

(b) making financial contributions to the Land by Waleed giving Abboud his earnings as an electrician which he estimates were $120,000.00 and those funds being used by Abboud and Khadigi towards the costs of the Development. On occasion, Waleed says that he paid tradespersons directly at the request of Abboud and Khadigi;

(c) agreeing to the demolition of the fence along the boundary of the Land and 181 Union Street and the separate driveway 181 Union Street had as part of the Development; and

(d) agreeing for 181 Union Street to be used by Abboud and Khadigi as further security for the $62,000.00 loan they obtained under Mortgage R199628U to fund the costs of the Development.

Waleed and Hala further contended that Waleed’s evidence shows that there is some probability that he and Hala will be found to have an equitable interest in the Land asserted by them in the Caveat.

In particular, their Counsel submitted that:

(a) Waleed’s evidence about his real property contributions to the Land provides context and a basis for why the 1987 Agreement representations were made. Of Abboud and Khadigi’s 13 children, Waleed was the only one who contributed his land and agreed to irreversible alterations being made to his own property in order for Abboud and Khadigi to achieve their vision as to the Development;

(b) Khadigi’s assertion that Waleed’s contribution of the Parcel of Land was a “gift” is inconsistent with the contemporaneous documentary evidence of the transaction, being the Transfer dated 4 January 1988. Abboud organised for the Transfer to be prepared, and Khadigi executed it, recording the Transfer was for consideration of $500.00. Abboud and Khadigi paid stamp duty on the Transfer. It was submitted that it would be highly doubtful the transaction would have been recorded as being for consideration if the agreement had been, as Khadigi now maintains, that the Parcel of Land was gifted to her and Abboud;

(c) Khadigi’s assertion that Waleed was unwilling and did not make any financial contributions to her and Abboud is at odds with the evidence of Waleed’s willingness to not only provide his parents the additional land they required, but also proffer his own property as security for Mortgage R199628U and Mortgage R199629R. Khadigi, it was submitted, provided no explanation for Mortgage R199628U;

(d) in light of other circumstances such as the Plan of Consolidation not being registered until 1991, the Court should accept for interlocutory purposes Waleed’s evidence that $62,000.00 was borrowed by Abboud and Khadigi to further finance the Development, that his property at 181 Union Street was required by the bank as further security before they would lend to Abboud and Khadigi, and the Development was not completed until 1990. Khadigi’s statement in her Reply Affidavit that ‘my late husband and I paid out the loan with ANZ’, it is contended, appears to admit that she and Abboud personally had liabilities to make repayments to ANZ, which it was said did not accord with the single loan taken out by Waleed and Zafir; and

(e) Khadigi acknowledges there was an agreement made by Abboud and her that is very similar to the 1987 Agreement deposed to by Waleed; namely, that a son was to receive the Land. However, on Khadigi’s version, the son was ‘required to pay some form of consideration for it’. It was submitted that it is far more probable that the son in question was Waleed, the eldest, who contributed the Parcel of Land that made the Development of the Land possible, rather than Saad when he was only 16 years old at the time, had presumably made no contributions to the Land, and in circumstances which were plainly not a declaration of testamentary intent given the requirement that he pay consideration for the transfer. It was further submitted that Khadigi’s evidence on this matter ought to be assessed cautiously through the prism of the April 2023 Incident, the falling out between Waleed and the majority of the family, and the highly emotive evidence Khadigi gave of her “great regret” for having assisted Waleed, “great disappointment” that Waleed would not acknowledge Saad after the April 2023 Incident, and to wanting “[Waleed’s] family out of [her] life”.

Waleed and Hala otherwise relied on the affidavit of Khaldoun, one of Waleed’s brothers. The essence of Khaldoun’s affidavit, in so far as it concerns the alleged 1987 Agreement is as follows:

(a) he discussed with his father, Abboud, the need for Waleed to transfer a portion of Waleed’s land at 181 Union Street so that the Land could be developed;

(b) Abboud told him that Waleed would be contributing towards the construction costs of the Development;

(c) on numerous occasions between 1989 and 1996 he witnessed Waleed giving cash to Abboud for the purposes of the construction costs associated with the Development and for the repayment of an ANZ loan; and

(d) he was not privy to any discussions between Abboud and Waleed regarding the Option to Purchase. Despite this, he deposed that ‘it was always common knowledge between my parents and my siblings that, in accordance with traditional Lebanese customs, Waleed would be the sibling who had the first right to purchase [the Land] as the eldest son of the family’.[24]

[24]Affidavit of Khaldoun Saad affirmed 9 September 2024, [7].

Khaldoun’s affidavit is entirely silent as to the circumstances of him lodging a caveat over the Land on 30 January 2024 on the basis of an alleged implied, resulting or constructive trust, and subsequently withdrawing that caveat on 15 April 2024. Waleed and Hala’s evidence was similarly silent on this point despite the possibility that the interest Khaldoun claimed under his caveat was inconsistent with the rights Waleed and Hala asserted. Khaldoun’s affidavit was otherwise challenged by Khadigi in her Final Affidavit.

I do not consider that Khaldoun’s affidavit is of any persuasive value. It is contradicted by Waleed’s own evidence, particularly as to the nature of the Option to Purchase and how that arose. Moreover, the very fact that Khaldoun lodged a caveat over the Land, which he later withdrew and has not explained, suggests that his caveat lacked any proper basis. Of more relevance, however, is how Khaldoun’s alleged caveat sat as against the interest claimed by Waleed and Hala. None of Khaldoun, Waleed or Hala addressed this issue.

The Plaintiff’s Case

Khadigi submits that there is no serious question to be tried in this matter for four reasons.

First, in the written submissions filed on behalf of Khadigi, it was submitted that taking Waleed and Hala’s evidence at its highest, the Court could not conclude that the Caveat, lodged by both defendants, demonstrated a probability that they will be held to have the asserted equitable rights or interest. In this regard, it was submitted that Waleed’s evidence is to the effect that the alleged 1987 Agreement was reached between he and Abboud. It was not said to have involved Hala. Notwithstanding this, the Caveat was registered by both of them. This was submitted to be fatal to Waleed and Hala’s application.

Second, it was submitted that the alleged 1987 Agreement was vague and uncertain. Particular focus was placed on the asserted terms of that agreement, namely the Option to Purchase cast in the following language: “if either of us determined to sell our respective properties in the future, we would offer the property to the other party for purchase at first instance.” Counsel for Khadigi drew attention to the fact that the terms of the alleged 1987 Agreement lacked particulars as to whether an offer should be at a reserve amount, a market price or otherwise.

Third, it was contended that the alleged 1987 Agreement was contradicted by Waleed and Hala’s own former solicitors, FJR Lawyers. Critically, in a letter dated 25 September 2023 (‘Solicitor’s Letter’), Waleed and Hala’s then solicitors, FJR Lawyers, stated:

We refer to the above matter and confirm that we hold instructions to act on behalf of Mr. Waleed Saad and Mrs. Hala Saad…
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 consolidated on or about 31 January 1991.

It was submitted that in contrast to the Solicitor’s Letter, Waleed’s evidence of the alleged 1987 Agreement was to the effect that the Parcel of Land, together with his labour and money, created an interest in the entire Land for his and Hala’s benefit.

Additionally, Counsel for Khadigi drew attention to the fact that the Solicitor’s Letter made no reference to Waleed and/or Hala having the alleged Option to Purchase. Those allegations, it was submitted, only appeared for the first time in Waleed’s affidavit.

It was further contended that the substance of the Solicitor’s Letter was then repeated in a draft deed (‘Deed’) prepared by FJR Lawyers, presumably also on the instructions of Waleed and Hala.

Notably, Waleed does not explain why the Solicitor’s Letter was sent, other than to invite the Court to infer that it was sent without proper instructions. Similarly, he does not deny instructing FJR Lawyers to prepare the Deed. His evidence is simply that he did not see it before it was sent.[25] Hala’s affidavit made no mention whatsoever of either the Solicitor’s Letter or the Deed. No affidavit was provided by FJR Lawyers. The plaintiff’s Counsel invited the Court to infer, in the absence of an explanation from FJR Lawyers, that they acted consistently with their obligations under clause 8.1 of the Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015.
[25]Affidavit of Waleed Saad affirmed 9 September 2024, [49] (‘Waleed’s Affidavit’).

Finally, it was submitted that Waleed and Hala’s case is weak by reason of the corroborating affidavit material filed by Saad, Bessim and Zafir.

The essence of Saad’s affidavit insofar as it concerns the alleged 1987 Agreement was that:

(a) in 1998 Abboud told him that the Land was to be transferred to him upon the death of Abboud and Khadigi. He deposed to that promise having been repeated to him by his parents regularly from then on and that his parents’ wishes were known to his twelve siblings, his nieces, nephews, aunties, uncles, cousins and community members;

(b) he was never told of the alleged 1987 Agreement or heard his parents say that the Land was to be transferred to Waleed; and

(c) he assisted his parents with money towards their bills, insurance and rates between 2009 and 2018. In 2013 and again in 2018 he assisted with renovations to the Land. He says that these contributions did not give him a proprietary interest in the Land as the contributions were made for the benefit of his parents and that it is unheard of in Lebanese culture to assist ones parents with the intent of receiving a monetary or proprietary interest in their property.

The essence of Bessim’s affidavit insofar as it concerns the alleged 1987 Agreement was that:

(a) he gifted approximately $20,000.00 to Abboud and Khadigi for them to use for an overseas holiday together with other monies, including monies towards the construction of a house in Lebanon. He did this without asking questions of his parents and not in the expectation of having an interest in the Land. Waleed, he contended, was the only one of 13 children who refused to contribute to the construction of the house in Lebanon; and

(b) he was never told of the alleged 1987 Agreement. Rather he deposed that he and his siblings were always told that the Land would go to Saad.

The essence of Zafir’s affidavit insofar as it concerns the alleged 1987 Agreement was that:

(a) in 1987, Zafir was told by Abboud and Khadigi of their intention to develop the Land. At the time, Zafir was living at 16 Millward Street, Brunswick in the State of Victoria (‘Millward Property’). Abboud and Khadigi told Zafir to sell the Millward Property so that they could use the proceeds to fund the Development. The Millward Property was subsequently sold by Zafir for around $135,000.00 in 1998 with the proceeds deposited into Abboud and Khadigi’s bank account. Notwithstanding this, Zafir had no expectation of any interest in the Land;

(b) he recalled Abboud asking Waleed to contribute a portion of his land at 181 Union Street to enable the Development. He otherwise denied the existence of the alleged 1987 Agreement and deposed that it is unheard of Lebanese culture for a son to request money or any form of consideration from their parents;

(c) although Waleed contributed labour as an electrician to the Development, he never saw Waleed give his parents any money to assist with the Development;

(d) in 1991 Waleed and Zafir went to ANZ Bank and took out a loan secured by a mortgage over the Land. The loan was to enable Zafir and his paternal uncle, Ahmad Saad (‘Ahmad’), to purchase a fruit shop in the Preston Market. The fruit shop was sold in 1996 whereupon the loan was discharged with the remaining indebtedness to ANZ Bank of $20,000.00 repaid by a loan procured by Abboud and Khadigi from a family friend, Ahmed Yehya;

(e) he recalled Abboud informing the family in 1998 that the Land would be gifted to Saad upon Aboud and Khadigi’s passing, and thereafter recalled Abboud regularly talking about this until his death in 2016. He deposed he was never told of the alleged 1987 Agreement and/or the Option to Purchase; and

(f) on 8 September 2024, Waleed requested that he submit an affidavit in support of Waleed and Hala’s position, which he refused to provide.

The affidavits of Bessim, Zafir and Saad ought to be, it is submitted, contrasted by third party material relied upon by Waleed and Hala, being the affidavit of Khaldoun.

Prima Facie Case – Analysis and Consideration

In commercial litigation, contemporaneous documents ‘generally furnish the most reliable source of evidence as to what occurred or, at the very least, provide a generally reliable reference point from which to assess the reliability of witness testimony’.[26]
[26]ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128, 132-133 [25]-[29] (Bell P, Bathurst CJ agreeing).

Here the contemporaneous documents record that:

(a) on 7 December 1987 the Plan of Consolidation was prepared;

(b) on 4 January 1998 the Transfer was signed;

(c) the Transfer records that:

(i) the sum of $500.00 was payable as consideration for the Parcel of Land; and

(ii) stamp duty of $70.00 was payable on an assessed value of $5,000.00;

(d) on 29 January 1998, the Transfer was registered;

(e) Mortgage R199628U:

(i) is dated 4 April 1989;

(ii) was stamped with duty of $212.00 on 17 April 1989;

(iii) was registered on 4 February 1991;

(iv) is for a loan for $62,000.00;

(v) provides both the Land and 181 Union Street as security; and

(vi) lists Abboud and Khadigi as the borrowers and mortgagors;

(f) Mortgage R199629R:

(i) is dated 4 April 1989;

(ii) was registered on 4 February 1991;

(iii) is for a loan for $33,200.00;

(iv) provides both the Land and 181 Union Street as security;

(v) lists Abboud and Khadigi as the mortgagors; and

(vi) records Waleed and Zafir as the customers.

Khadigi’s evidence was that the Development was completed in 1988. She deposed that the sum of $500.00 recorded as being payable as consideration for the Parcel of Land was merely recorded for stamp duty purposes and that $500.00 was never paid to Waleed and Hala. In this context, Khadigi contended that the Parcel of Land was a gift. This is at least in part consistent with Waleed’s evidence where he deposed that he did not receive $500.00 from Abboud and Khadigi for the Transfer. However, he alleged that, in line with the 1987 Agreement, he received an interest in the Land in lieu of payment.

Khadigi further deposed that the first she knew of the alleged 1987 Agreement was when Waleed’s affidavit in this proceeding was translated to her.

Khadigi contended that the construction of the Development was funded from the proceeds of sale of the Millward Property, which Khadigi deposed was sold in 1988 for around $135,000.00. Any other monies needed to fund the Development were, according to Khadigi’s evidence, funded from loans from family and friends. Khadigi’s evidence on this point was consistent with Zafir who deposed that the proceeds of sale of the Millward Property were deposited into Abboud and Khadigi’s bank account and that those monies were used for the Development.

Khadigi deposed that neither she nor Abboud applied for a construction loan with ANZ Bank. Despite this, she and Abboud are named as the mortgagors and borrowers on Mortgage R199628U. Khadigi attempted to explain this by asserting that the loan was used as collateral was for the purchase of a fruit shop in Preston by Zafir. That loan she deposed was ultimately paid out in 1996 using funds from Zafir and Ahmad’s fruit shop and a loan of around $20,000.00 from a family friend.

Zafir sought to corroborate Khadigi’s evidence deposing that in 1991 he and Waleed went to ANZ Bank to obtain a loan so that he could purchase a fruit shop in the Preston Market. He deposed that the shop cost $120,000.00 to purchase of which he was required to fund $60,000.00. Zafir’s evidence was that those monies were borrowed from ANZ with the Land used as collateral and that the income generated from the fruit shop was then used to pay down the mortgage.

Even if that were the case, neither Khadigi nor Zafir’s accounts explain why the mortgages were dated in 1989, particularly if the ANZ Bank was not approached by Zafir and Waleed for a loan until 1991. Moreover, the mortgage on which Waleed and Zafir are listed as the borrowers, being Mortgage R199629R, is for the sum of $33,200.00. The mortgage of $62,000.00, being Mortgage R199628U and the approximate sum required by Zafir for the fruit shop, has Abboud and Khadigi listed as borrower and as mortgagor. However, Khadigi does not carry the burden of establishing that she has a prima facie case. No amount of criticism of her evidence by Waleed and Hala alters this position.

Conversely, Waleed and Hala contended that approximately $20,000.00 of the construction cost of the rear unit in the Development was funded by Abboud and Khadigi using Waleed’s earnings which he contended he continued to pay to Abboud. The remaining costs, it was alleged, were funded by Zafir, who had funds available at the time after selling the Millward Property. Waleed deposed that after approximately three months, construction of the rear unit in the Development was completed, which was in about late 1989.

Waleed further contended that construction of the main house in the Development commenced almost immediately after the completion of the rear unit, in about late 1989. The total construction cost of the main house was approximately $130,000.00. He deposed that approximately $70,000.00 of the cost of the construction of the main house in the Development was funded by Abboud and Khadigi using his earnings which he says he continued to pay to Abboud.

Waleed and Hala alleged that at least one ANZ loan was procured for the development of the main house on the Land and repaid using Waleed’s earnings, via Abboud. Waleed deposed that he attended a meeting at ANZ Bank with Abboud where he was told that in order to grant a loan to Abboud and Khadigi for the development of the Land, he would need to provide 181 Union Street as security, which he says he agreed to do. His affidavit is silent as to when this alleged meeting occurred. Waleed’s evidence is that construction of the main house on the Land commenced in around 1989 yet the mortgages to ANZ Bank were not registered for around two years, until 1991, which he explained as following the approval and registration of the Plan of Consolidation.

Whilst recognising that it is neither necessary nor appropriate in this application to determine disputed questions of facts, it is necessary to be satisfied that Waleed and Hala have a sufficient likelihood of success that justifies the practical effect of maintaining the Caveat. Without the letters of offer, loan agreements from ANZ Bank and/or the loan statements for the accounts operated in connection with the two mortgages it is impossible to reconcile the ANZ Bank mortgages with either the evidence of Waleed and Hala on the one hand and Khadigi and Zafir on the other. It was open to Waleed and Hala to seek the production of these documents from ANZ Bank. Neither parties’ version of events is consistent with the mortgage documents in evidence before me.

Waleed’s explanation of the two ANZ Bank mortgages is, however, problematic when a careful examination of the chronology he deposed to is considered. Waleed’s primary contention was that the alleged 1987 Agreement included a trust claim based on the contributions Waleed and Hala allegedly made to the Land. To this end, Counsel for Khadigi urged me not to accept the evidence filed by Waleed and Hala as it rose no more than to the level of assertion.[27] Counsel for Khadigi submitted, with some force, that it was open to Waleed to at least have led evidence of who he worked for at the time of the alleged contributions, how much he was paid and to obtain from the former employer a statement to that effect. Alternatively, it was submitted that it was open to Waleed to explain what efforts he had made to obtain such information, if any. Waleed identified in his affidavit that his former employer in 1986 was Paul Cave and that Mr Cave provided a loan of five percent to Waleed for him to purchase 181 Union Street in 1986 with the balance of the purchase price funded by a loan from ANZ Bank. There was no evidence before the Court from which I can safely conclude that Waleed and Hala have demonstrated a prima facie case as to Waleed’s alleged financial contributions to the Development. I am fortified in my view as to the inherent unlikeliness of the version of events contended for by Waleed because of the following:
[27]Transcript of Proceedings (7 November 2024) 22.7-22.8, 22.17-22.24.

(a) Waleed deposed that he purchased 181 Union Street in 1986 with money loaned from his employer and ANZ Bank. His evidence does not suggest that he had a deposit of his own saved. I note the title search for 181 Union Street records a mortgage being granted in favour of ANZ Bank in 1986 which was discharged on 9 April 1989;

(b) Waleed’s evidence was that he was self-employed from July 1987;

(c) Waleed deposed that, in reliance on the alleged 1987 Agreement, he paid his parents 60 to 70 percent of his earnings from July 1987 to 1996. However, he subsequently deposed that he “continued to provide Abboud with [his] entire wages and earnings”;

(d) given Waleed had his own loans to Mr Cave and ANZ Bank between 1986 and 1989, I find it implausible that Waleed could have, in that period, provided his ‘entire wages and earnings’ to Abboud; and

(e) whether Waleed provided contributions either between 1986 and 1989, or thereafter, was simply not established by him on the evidence before me.

Turning then to the Solicitor’s Letter and Deed, the version of events contended for by Waleed and Hala in respect of the existence of the alleged 1987 Agreement are further problematic.

On 25 September 2023, FJR Lawyers, Waleed and Hala’s former solicitors wrote to Khadigi’s solicitor informing her that Waleed and Hala had lodged the Caveat over the Land. The Solicitor’s Letter was in the following terms:[28]
[28]Emphasis added.

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].

The Solicitor’s Letter referenced Waleed and Hala’s alleged interest in the Land. The Solicitor’s Letter was otherwise silent on the alleged Option to Purchase or in respect of Waleed (and/or Hala) having a claim to the entire Land as opposed to a portion of it. Notably, Waleed did not deny instructing FJR Lawyers to send the Solicitor’s Letter nor did he depose that the content of the Solicitor’s Letter was incorrect. Hala’s evidence ignored the existence of the Solicitor’s Letter entirely.

On 28 September 2023, Khadigi’s solicitors responded to the Solicitor’s Letter demanding that the Caveat be removed. The letter also foreshadowed an application to remove the Caveat pursuant to ss 89A and 118 of the TLA.

Thereafter, on a date which was not ascertainable from the material before me other than it having occurred in October 2023, FJR Lawyers sent a further letter to Khadigi’s solicitors in which they enclosed the Deed and advised Khadigi that Waleed and Hala would remove the Caveat if Khadigi paid them $750,000.00. The Deed contained the following relevant recitals and terms:

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.
…

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

There was no evidence before me as to how the sum of $750,000.00 demanded in the Deed had been calculated.

As to the content of the Deed, Hala’s Affidavit was silent whilst Waleed did not depose that the Deed was incorrect or that it did not accord with his instructions or that he did not agree with its content. Rather, he deposed to no more than it not having been seen by him before being sent and otherwise sought to diminish its relevance by stating that Khadigi did not agree to its terms. Critically, his affidavit was in the following terms:[29]

On 1 September 2023, I received a letter from De Marco Lawyers which stated that Khadigi intends to construct a fence on the pre-1991 boundary title between 179 Union Street and 181 Union Street (De Marco Letter). A fencing notice under the Fencing Act 1968 (Vic) was also served under cover of the De Marco Letter.
On or around 5 September 2023, I learnt from Khoder Yehya, a cousin of mine, that Khadigi had sold 179 Union Street to Saad. Several days later I, accompanied by my brother Zafir, met with Khadigi at 179 Union Street in which I attempted to convince her to stop the sale of 179 Union Street to Saad, as it was contrary to the 1987 Agreement. During this conversation, Zafir said to Khadigi words to the effect that any sale of 179 Union Street should be to me, as this was in line with the 1987 Agreement. However, Khadigi maintained that 179 Union Street would be sold to Saad. I said to Khadigi words to the effect that I would be taking steps to protect my interest in 179 Union Street.
Although I know Saad to be the purported purchaser of 179 Union Street, a matter of fact confirmed by the purchaser’s caveat registered on the title of 179 Union Street on 24 August 2023 by De Marco Lawyers, Khadigi has annexed a redacted version of the Contract of Sale to her affidavit, concealing the purchaser’s identity. I have instructed my solicitor to obtain an unredacted version of the Contract from Khadigi's solicitors, however, this request has been refused.
On about 14 September 2023, I spoke to a solicitor at FJR Lawyers. I was told that there was a purchaser’s caveat registered on the title of 179 Union Street lodged by De Marco Lawyers on behalf of Saad Saad (as the purchaser) on 24 August 2023. This caveat showed that Saad had purportedly purchased 179 Union Street from Khadigi pursuant to a contract of sale of real estate dated 17 August 2023. I instructed FJR Lawyers to lodge a caveat on 179 Union Street, to protect my interest in 179 Union Street arising out of the 1987 Agreement and my reliance on it (Caveat). The Caveat was lodged on the title of 179 Union Street by FJR Lawyers on 15 September 2023.
…
I refer to paragraph 16 of Khadigi's affidavit. Whilst I did instruct FJR Lawyers to prepare and provide Khadigi's lawyers with a proposed deed of settlement, I was not shown a copy of the deed prior to it being sent, and the proposed settlement was not accepted by Khadigi in any event, as she states in her affidavit. At this time I was unaware of my full rights regarding having a proprietary interest in 179 Union Street. I have since sought alternative legal advice and representation in relation to this matter.

[29]Waleed’s Affidavit, [44]-[47], [49].

It is notable that on Waleed and Hala’s version of events, all 13 siblings together with the entire family knew of the alleged 1987 Agreement. Despite this, Waleed and Hala’s evidence is uncorroborated (save for attempt in Khaldoun’s affidavit) and at complete odds in significant respects with the evidence given by Khadigi. Leaving aside that no evidence was called by Waleed and Hala from Waleed’s other 11 siblings as to the existence of the alleged 1987 Agreement, it was somewhat surprising that if there was such a clear agreement in 1987 as alleged, that there would have been the need for the subsequent agreement referred to in the Solicitor’s Letter or the entry into the arrangements contemplated by the Deed. This was unexplained by Waleed and Hala.

On 26 March 2024, Khadigi’s solicitors made a further demand of FJR Lawyers for Waleed and Hala to remove the Caveat on the basis that Khadigi disputed that the Land was held on trust for the benefit of Waleed and Hala and otherwise foreshadowed the commencement of this proceeding. Relevantly, the letter said the following in relation to the alleged 1987 Agreement:

3. On or about 31 January 1991, a portion of your client’s property at 181 Union Street, West Brunswick was consolidated into our client’s property at 179 Union Street, Brunswick West in the State of Victoria (“the Consolidated Land”).
4.The Consolidated Land was gifted to our client and her late husband, Abboud Saad, outright and unconditionally to allow them to construct a granny flat on the rear of the property, and a double-storey residence on the front of the property. The land was also gifted to our client and her late husband:
(a)in recognition of the significant contributions they made to your client’s wedding and acquisition of his then property at 27 Barry Street, Brunswick in the State of Victoria; and
(b)out of the duty your client owed to his parents to assist them with whatever they required in line with traditional Lebanese customs.

5.Per the above, our client and her late husband did not, and are not, holding the Consolidated Land on trust for your client. No elements of a trust (object, subject) are established to support your contention that your client has beneficial interest in the Consolidated Land.

There was no response to that letter.

Thereafter, on 24 April 2024, FJR Lawyers advised Khadigi’s solicitors that their ‘client’s (sic) position has been reiterated on a number of occasions, and we don't have any intention of repeating same. We confirm that we hold instructions to accept service on behalf of our client (sic)’.

On 3 June 2024, Khadigi’s solicitors engaged Western Port Property Consultants to value the Parcel of Land.

By expert report of Darren Wingjan of Western Port Property Consultants the Parcel of Land was valued at $50,000.00. The expert report of Mr Wingjan was not challenged by Waleed and Hala. There was not answering material filed save for the three unsworn property estimates in relation to the Land which were akin to kerbside appraisals, from real estate agents that were exhibited to Waleed’s affidavit. They are of little persuasive value.

Central to Waleed and Hala’s position was the contention that:

(a) Waleed made financial contributions to the Land, which he estimated to be around $120,000.00 which were the subject of the alleged 1987 Agreement; and

(b) Khadigi and Abboud gave Waleed and Hala the option, alternatively right of first refusal, to purchase their interest in the Land, if Khadigi and/or Abboud determined to sell.

There are a number of inconsistencies with the contentions advanced by Waleed and Hala.

For the reasons expressed earlier, I am unable to safely conclude, based on the evidence before me, that Waleed has established that he made any financial contributions to the Land pursuant to the alleged 1987 Agreement or otherwise.

Turning then to the Option to Purchase as a term of the alleged 1987 Agreement, I note the Land was sold on 17 August 2023. On 15 September 2023, FJR Lawyers lodged the Caveat. At the time of doing so, FJR Lawyers had presumably obtained Waleed and Hala’s instructions in respect of the basis upon which the Caveat was to be lodged. However, just days later on 25 September 2023, Waleed and Hala had FJR Lawyers send the Solicitor’s Letter and advise Khadigi’s solicitors that an agreement had been reached between the parties. As I have already observed, nowhere in Waleed and Hala’s sworn evidence do they dispute the content of the Solicitor’s Letter. The Solicitor’s Letter is inconsistent with the rights that Waleed and Hala now assert.

Thereafter, Waleed admitted to instructing his solicitors to send the Deed to Khadigi’s solicitors. The Deed relevantly set out Waleed and Hala’s position, it having been drafted by their solicitors, FRJ Lawyers. Waleed and Hala’s position in the Deed is inconsistent with the position they advanced before me.

The explanation proffered by Waleed as to the circumstances surrounding the Deed does not address the issue. Waleed deposed that an agreement was reached with Khadigi in respect of any claim over the Land (despite the alleged 1987 Agreement being known and understood by the entire family). That subsequent agreement was allegedly formed after the Land was sold. To suggest, as Waleed and Hala did, that the alleged 1987 Agreement also included the Option to Purchase is wholly inconsistent with:

(a) the terms of the Solicitor’s Letter;

(b) the Deed Waleed and Hala’s solicitors prepared; and

(c) the demands Waleed made of Khadigi to not go through with the sale to Saad, which he did not deny making.

Further, the demand for payment of $750,000.00 is inconsistent with the terms of the alleged 1987 Agreement. If in fact the alleged 1987 Agreement existed, and a central term of that agreement was the Option to Purchase, it is inexplicable how a demand for the payment of $750,000.00 accords with that alleged 1987 Agreement. Moreover, and critical to veracity of Waleed and Hala’s argument as to why the Caveat ought to be maintained, the effect of the Deed was to permit the sale to Saad to proceed. That is to be contrasted with the evidence of Waleed and Hala before me where they both stated that the removal of the Caveat would work an injustice as they would not be able to readily establish their intended family complex on the Land and 181 Union Street elsewhere, or cater for Hala’s particular physical needs. Waleed and Hala’s own evidence before me established that for a payment by Khadigi of the sum of $750,000.00, Waleed and Hala were prepared to abandon the creation of a family complex on the Land and were otherwise able to manage Hala’s physical needs.

Counsel for Khadigi urged on me that the prima facie case failed for two reasons. First, the evidence was contradictory. It was submitted that there were three versions of the 1987 Agreement. Second, the 1987 Agreement, if it exists, was vague, ambiguous and uncertain such that it would not be enforceable.

The three versions of the 1987 Agreement identified by Khadigi’s Counsel were that which was:[30]
[30]Transcript of Proceedings (7 November 2024) 24.25-25.6.

(a) the subject of the Solicitor’s Letter;

(b) recorded in the Deed, in particular recital C; and

(c) the subject of Waleed and Hala’s sworn affidavits, including the contradictory evidence each gave as to the terms of the alleged 1987 Agreement.

For the reasons that I have identified, I accept Counsel for Khadigi’s submissions as to the inconsistent evidence concerning the alleged 1987 Agreement. Waleed and Hala failed in their affidavits to explain how the position they now advance as to the terms of the alleged 1987 Agreement are so different to the terms of that agreement as it was articulated in either the Solicitor’s Letter or the Deed, in particular Recital C of the Deed.

Additionally, Khadigi’s evidence that following the April 2023 Incident Waleed had been pressuring her to sell the Land to him is instructive. She deposed that in the context of these demands, there was no mention of the alleged 1987 Agreement. This was not denied by Waleed.

Turning then to the terms of the Option to Purchase (were it a term of the alleged 1987 Agreement), Counsel for Khadigi submitted that it lacked certainty such that I should not guess nor infer the terms of the 1987 Agreement. As Counsel submitted: [31]

We’re not told if an offer shall be at a prescribed or reserve amount. Offer each for a dollar. What are the bare minimums. We’re not told it has to be at market price. We’re not told otherwise. How can it be of any benefit to a party if there’s no sort of ground rules established as to what this agreement is?

[31]Ibid, 25.16-25.22.

It is uncontroversial that a contract will not be binding and enforceable if one of its essential terms has not been agreed upon.[32]
[32]Mirvac (Docklands) Pty Ltd v La Rocca [2006] VSC 48, [114] (Hargrave J).

It is similarly uncontroversial that it is the duty of a Court in construing a commercial contract to approach its task in a commonsense way in an endeavour to give effect to the bargain reached between the parties. It is only where the Court encounters a level of ambiguity which is so obscure as to indicate that the parties did not in fact reach agreement that a Court should hold an agreed contractual provision to be void for uncertainty.[33]
[33]Ibid, [116]; Unique Lifestyle Investments Pty Ltd v Robertson [2005] VSC 347, [88] (Dodds-Streeton J).

It is not the Court’s role in those circumstances to ‘spell out, to an unacceptable extent, that to which the parties have themselves failed to agree… nor will the Court clarify that which is irremediably obscure’.[34]
[34]Biotechnology Australia Ltd v Pace (1988) 15 NSWLR 130, 136 (Kirby J) (‘Biotechnology Australia’).

In Toll (FGCT)Pty Ltd v Alphapharm Pty Ltd,[35] Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ stated:[36]

It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.

[35](2004) 219 CLR 165.

[36]Ibid, 179 [40] (citations omitted).

In Thorby v Goldberg,[37] Menzies J discussed the distinction between a party having a choice as to how to perform a contractual term and a term under which a party has a discretion as to whether or not to perform the term at all. Menzies J said:[38]

It is an objection to a contract if one party is left to choose whether he will perform it but it is an entirely different matter if there is an obligation to do a specified thing of a general description but it is left to the party who is to perform it to choose the particular thing that he will do in performance of it. An arrangement with an artist that he should for a specified fee paint a portrait of a particular person if the artist, upon seeing the proposed sitter, should decide to do so would be no contract to paint a portrait whereas an arrangement that the artist would for a specified fee paint a portrait of such person as he, the artist, should choose would be a contract.

[37](1964) 112 CLR 597.

[38]Ibid, 613.

In John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd,[39] Hammerschlag J (as the Chief Judge in Equity then was) made the following observations which are apt in the present matter:[40]

Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. ... Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences...

[39][2015] NSWSC 451.

[40]Ibid, [94] (citations omitted).

Whilst neither party addressed me on this point, in Accurate Financial Consultants Pty Ltd & Anor v Koko Black Pty Ltd & Ors,[41] Dodds-Streeton JA said the following: [42]

Where necessary to inhibit unconscionability, equity will construe a representation robustly in context, to determine its meaning as reasonably understood by the addressee. In my opinion, the standard of certainty, clarity and completeness required of the representation cannot sensibly be determined in isolation from other elements of proprietary estoppel in the circumstances of each particular case.

[41]Accurate Financial Consultants (n 22).

[42]Ibid, 350 [178].

There is no issue before me as to the identification of the Land said to be the subject of the alleged 1987 Agreement. The real issue was whether the alleged 1987 Agreement created an interest in the whole of the Land or an interest limited to the Parcel of Land or an interest limited to the Parcel of Land and the contributions by Waleed. However, on any scenario, the terms of what was said to constitute the Option to Purchase were entirely absent. Even if the Court were minded to have regard to extrinsic evidence[43] or to construe robustly the alleged representations of the Option to Purchase in order to try to accept that Waleed and Hala have made out a prima facie case in relation to the alleged 1987 Agreement, the difficulty for the Court is this: there was no substance offered by Waleed or Hala as to the terms of the Option to Purchase. For example, they did not depose to how the option was to work. Was there a time period which applied? Was there an amount that needed to be stipulated by Abboud and/or Khadigi? How was that amount to be calculated? By whom? What was to occur if the option was exercised by Waleed and Hala for example? What was to occur if they did exercise the Option to Purchase and were then incapable of settling? Similarly, they did not address how the Option to Purchase ought to be reconciled with the content of the Solicitor’s Letter and Deed. It is, in the circumstances, impossible for the Court to be satisfied that Waleed and Hala have 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.
[43]Biotechnology Australia (n 34).

On this point, I also note that at no time have Waleed and/or Hala filed a statement of claim which sets out the precise terms of the alleged 1987 Agreement and in which proper particulars are given of the alleged discussions that took place between Waleed and Abboud. For example, where did the alleged discussions occur? When? Who was present? What were the words that were spoken? How does that evidence reconcile with the evidence given by Hala as to the terms of the alleged 1987 Agreement and Option to Purchase which she has deposed to in paragraph 6 of her affidavit? These matters were not addressed.

Abboud passed away in 2016. Based on Recital C in the Deed, Waleed and Hala have effectively been on notice since 2016 of the need to perfect any claim that they might have pursuant to the alleged 1987 Agreement. Certainly at the point where either the Contract of Sale was entered into, or their Caveat was lodged, or when Waleed’s overtures to have Khadigi cancel the Contract of Sale were made, or when the Deed was not signed by Khadigi, Waleed and Hala ought to have known of the need to take action to perfect their alleged interest in the Land. And, at the very latest, by 26 July 2024 when Khadigi commenced this proceeding, they should have been in a position to immediately advance their alleged interest in the Land. Other than filing the Related Proceeding shortly prior to the hearing before me, which does not include a statement of claim, they have taken no active steps to do so.

The only matter in respect of which I can be satisfied that Waleed and Hala have established a prima facie case is in relation to the transfer of the Parcel of Land, although not necessarily pursuant to the terms of the alleged 1987 Agreement. Putting Waleed and Hala’s position at its highest, there was a transfer of the Parcel of Land and clear argument on the evidence before me as to whether that transfer was a gift or was to be the subject of later compensation. However, that prima facie case and Waleed and Hala’s interest in the Land is necessarily limited to the value of the Parcel of Land in respect of which they led no evidence. The unchallenged expert evidence before me was that the value of the Parcel of Land was $50,000.00. That being the case, I am not persuaded that it would be appropriate to permit the Caveat to be maintained when Waleed and Hala’s interest in the Land can be quantified in monetary terms and can be protected by the sum of $50,000.00 being paid into trust pending determination of the terms on which the Parcel of Land was transferred.

Finally, I note that Counsel for Khadigi made a point in submissions of highlighting that the Caveat was recorded in the names of both Waleed and Hala yet on Waleed’s evidence, the 1987 Agreement which it was said gave rise to the implied, resulting or constructive trust interest in the Land, was only discussed between Waleed and Abboud. Given the familial and cultural issues relevant to the parties, I do not consider this to be a determinative point. However, I accept that it is a further inconsistency in the version of events advanced by Waleed and Hala.

Conclusion on Prima Facie Case

Throughout the hearing, both parties took the Court through various parts of the affidavit material filed. Even in the absence of a pleading by Waleed and Hala, the evidence relied upon by them to demonstrate the existence and terms of the alleged 1987 Agreement is ambiguous and of a level of generality insufficient to establish a prima facie case save in respect of the transfer of the Parcel of Land. In particular, I note:

(a) there is a clear dispute as to the existence of the alleged 1987 Agreement;

(b) there is a further clear dispute as to the terms of the alleged 1987 Agreement (were it to exist) and whether:

(vii) Waleed and Hala have an interest in the Land or just Waleed;

(viii) any interest in the Land (held by Waleed and/or Hala) is an interest in the whole of the Land or whether that interest is limited to:

(A) the value of the Parcel of Land; and/or

(B) the value of the alleged financial contributions made by Waleed to the Land;

(ix)there is a term of the alleged 1987 Agreement that includes the Option to Purchase.

It is clearly established law that where the caveator establishes a prima facie case but there is a conflict of testimony, the Court will not order a caveat to be removed but may order the caveat to be removed unless steps are taken to establish the caveator’s title within a certain time.[44] However, in the circumstances, and having regard to the evidence before me, I am not satisfied that Waleed and Hala have established that there is a prima facie case that they have an implied, resulting or constructing trust over the whole of the Land in the terms of the alleged 1987 Agreement.
[44]Nicholas Olandezos v Bhatha & Ors [2017] VSC 234, [20] (Derham AsJ).

Balance of Convenience
The Defendants’ Case

The primary position of Waleed and Hala was that there being no other hardship or prejudice identified by Khadigi beyond the Caveat generally impeding her from selling the Land, the Court ought find the balance of convenience lies in favour of Waleed and Hala and dismiss Khadigi’s application.

To this end, Waleed and Hala contended that the balance of convenience lies in their favour. They submitted that it would work an injustice and unfairness to them if the Caveat were to be removed, permitting Khadigi to sell the Land to another party, if they were ultimately to succeed at trial in establishing that they have a proprietary interest in the whole of the Land arising by reason of the alleged 1987 Agreement and the surrounding circumstances. They relied on the terms of the alleged 1987 Agreement, in particular the Option to Purchase, and noted that Waleed deposed to his intention and willingness to purchase Khadigi’s interest in the Land, so that it could be used by his family, which includes his four children and 12 grandchildren, in the manner of a “family complex” as Abboud had represented to him, permitting his children and grandchildren to live next door to 181 Union Street which has been specifically renovated to accommodate Hala’s physical disabilities. They submitted (despite the terms of the Deed and proposed payment to them of $750,000.00) that such an arrangement could not readily be established at another property.

Waleed and Hala further submitted that withholding a sum from the proceeds realised through any sale of the Land, pending final determination of whether Waleed and Hala have an interest in the whole of the Land, would not be adequate to compensate them for the loss of what they say was promised to them pursuant to the alleged 1987 Agreement. Their loss, it was contended, was not a mere commercial one to be easily measured in money, but would include the loss of an opportunity for which there were said to be no ready alternative, namely to enjoy a family complex that includes retaining the Land. It was submitted that there were no means by which Waleed and Hala could be compensated for the loss of this opportunity. This submission was made despite the terms of the Deed and payment of $750,000.00 to which I have referred.

Waleed and Hala further contended that it was not apparent that there was any significant hardship or prejudice that would be suffered by Khadigi if the Caveat were maintained until the determination of the question of whether Waleed and Hala have an interest in the Land. They made that submission despite not having put before the Court a statement of claim setting out their alleged interest in the Land. They submitted that as Khadigi had left the Land and was residing with her daughter in a rental property there was no reason why that arrangement, which commenced on or around 5 October 2023, could not continue indefinitely.

Additionally, they submitted that the Court ought to have serious disquiet and reservations about the Contract of Sale. To this end, they emphasised that Khadigi had concealed the name of the purchaser under the Contract of Sale in this proceeding for privacy reasons despite the historical title search of the Land exhibited to her affidavit, revealing that Saad lodged a purchaser’s caveat on the Land on 24 August 2023. Notwithstanding what was contended to be a lack of candour and transparency, Khadigi asked the Court to accept her evidence that she is ‘deeply concerned that if settlement does not occur as scheduled in October 2024, the purchaser, who are [sic] keen on the property, will charge penalties/damages for each day that Property does not settle’. It was submitted that this evidence was entirely at odds with her evidence in her Reply Affidavit where she described Saad as a “dutiful son” who has financially assisted her over many years. Saad’s affidavit was silent on whether he intends to charge his mother penalties/damages for each day the Contract of Sale does not settle.

It was further submitted that the Court should form a dim view of Khadigi’s refusal to be candid around who the purchaser under the Contract of Sale was, and of her attempt to have the Court infer she may be prejudiced if the Caveat is not removed by Saad imposing penalties or damages claims upon her, thereby diminishing her financial resources to purchase another property in the future. To this end, it was urged on me that I ought to reject entirely that there was any genuine arms-length good faith purchaser of an interest in the Land who may be adversely affected by the Caveat, or that there was any risk whatsoever of penalties being imposed on Khadigi pursuant to the Contract of Sale should the Caveat be maintained with Waleed and Hala relying on:

(a) the manner in which this application was brought. They submitted that despite the Contract of Sale stating settlement was to occur on 17 April 2024, and Khadigi being notified of their Caveat on 25 September 2023, no application to remove the Caveat was brought until 26 July 2024, over three months after settlement was to have taken place;

(b) the fact the purchase price stated in the Contract of Sale was between $700,000.00 to $1million below the indicative valuations of the Land obtained by Waleed from three real estate agents; and

(c) the complete absence of any evidence that the deposit of $152,250.00 has been paid.

The Plaintiff’s Case

Notwithstanding that Khadigi contended that there was no serious question to be tried, she observed that when considering the balance of convenience, the proper test is not whether damages would provide her with an adequate remedy but rather, whether it is just, in all the circumstances, that she should be confined to her remedy in damages.[45] I accept Counsel’s submission that this is the proper test to be applied.
[45]State Transport Authority v Apex Quarries Ltd [1988] VR 187, [193] (Kaye J).

Khadigi further contended that an award of damages would not, in the circumstances, sufficiently compensate her as she:

(a) is the registered proprietor of the Land and ought to be able to deal with her Land as she determines; and

(b) wishes to sell the Land in order to move into a property which is more suitable for her in her advanced years. Before me, there was no evidence that she had in fact taken any steps to do so. For example, she had not purchased another property. However, she has moved out of the Land and is presently residing in a rental property with her daughter where she has not security of tenancy. However, on this point it is noteworthy that Khadigi’s evidence is that she moved out of the Land on or around 5 October 2023 because she did not feel safe and wanted to get away from Waleed and his family, including his pressure to have her terminate the Contract of Sale.

Balance of Convenience – Analysis and Consideration

Even if I am wrong in relation to whether there is a serious question to be tried, I find that the balance of convenience favours the removal of the Caveat.

I am of this view because:

(a) the Land has been sold with settlement having now been extended on three occasions. I accept, however, that there is no evidence before me that any penalties or damages might apply in respect of the uncompleted sale to Saad;

(b) Khadigi, who is 82 years old, has vacated the Land and is living with her daughter in a rental property in circumstances where she has no security of tenancy (either by reason of the property being a rental or by reason of her living with her daughter). Her evidence that she desires to sell the Land in order to secure a more appropriate manageable property for her advanced years was not challenged. She deposed that she needed to sell the Land first to know what funds she would have available to purchase another property as she was not in a position to obtain a mortgage;

(c) Khadigi has agreed to pay into a solicitors’ trust account or into Court the value of the Parcel of Land which was the subject of the Plan of Consolidation, being the portion of Land valued independently at $50,000.00 and the subject of unchallenged expert evidence;[46]
[46]Transcript of Proceedings (7 November 2024) 74.5-74.10, 81.26-81.30.

(d) to the extent that the dispute between Khadigi and Waleed and/or Hala relates to the payment of $50,000.00 or some other larger unquantified sum (interpolating as I do from the affidavits filed on behalf Waleed and Hala that talk in general terms as to their alleged financial contributions to the Land of approximately $120,000.00) in recompense of amounts spent by them on the Land, maintenance of the Caveat would be unduly restrictive on Khadigi’s right to deal with her Land, where the Caveat as registered seeks to prohibit dealings absolutely and where the sum of $50,000.00 will be paid into trust; and

(e) whilst Hala raised concern as to her ability to continue to access 181 Union Street if the Land is sold and a fence erected due to her required use of a wheelchair, I am persuaded that the photographs that were in evidence in Mr Wingjan’s expert report demonstrate that there would still be vehicle access to 181 Union Street and that Hala would continue to be able to drive in or reverse into her driveway and access 181 Union Street. I also note that Khadigi’s Counsel raised the likelihood that Waleed and Hala would have, at a minimum, an implied easement for access going forward. And I otherwise reiterate my earlier observations as to the inconsistent position advanced by Waleed and Hala as to Hala’s need to be able to continue to access 181 Union Street without a fence dividing it from the Land with the payment of $750,000.00 demanded by them under the Deed which provided her with no right of access; and

(f) whilst Waleed and Hala contended that they desire to purchase the Land in order to develop their own family compound, and that doing so elsewhere would not be possible, I am not persuaded that this desire should countermand Khadigi’s entitlement to deal with her Land and, at 82 years of age, secure premises that are suitable to her advanced years. There was no evidence before me as to the potential for Waleed and Hala to, for example, develop a family compound at one of the four properties they own. Moreover, there was no explanation as to how apparent the desire for the creation of a family compound on the Land and 181 Union Street could be reconciled with the terms of the Deed that would have seen the Caveat removed upon payment by Khadigi of $750,000.00.

Conclusion

Having regard to the matters set out in these reasons, the Court considers it appropriate to order that the Caveat be removed.

The parties are directed to confer as to an appropriate form of order to give effect to these reasons, including in respect of the payment by Khadigi of the sum of $50,000.00 into Court, and the costs of the application. In the event the parties are unable to reach agreement about those matters, the matter will be listed for a brief further hearing and the parties will be required to set out their respective positions in short written submissions.

[2025] VSC 15

31 January 2025