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[2025] NSWSC 563
Supreme Court of NSW
2025-06-02
Pike J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: 1128 CG Pty Ltd (ACN 662 166 645) as trustee for the 1128 CG Unit Trust v MH Affordable Homes on Kelly Pty Ltd (ACN 619 338 591) [2025] NSWSC 563
Hearing dates: 27 and 28 May 2025
Date of orders: 02 June 2025
Decision date: 02 June 2025
Jurisdiction: Equity - Real Property List
Before: Pike J
Decision: Specific performance granted. See paragraph [153] of the judgment.
Catchwords: LAND LAW – specific performance – alleged competing interest – where off the plan sales and subsequent sale of entire Lot without disclosure of earlier off the plan contracts – whether off the plan purchasers have an interest in land prior to registration of subdivision sufficient to compete with later bona fide purchaser for value without notice – consideration of nature of interest of off the plan purchaser prior to registration of subdivision – question of principle
LAND LAW – contract for the sale of land – proper construction of pre-sale contracts – whether pre-sale contracts are at an end after the expiry of Sunset Date – no question of principle
LAND LAW – competing priorities – whether postponing conduct of holder of earlier interest – no question of principle
LAND LAW – specific performance – whether purchaser ready, willing and able to perform – whether third parties would suffer hardship – no question of principle
Legislation Cited: Conveyancing Act 1919 (NSW)
Real Property Act 1900 (NSW)
Real Property Act 1974 (Qld)
Cases Cited: Australia Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd (2017) 18 BPR 36,683; [2017] NSWCA 99
Brown v Heffer (1967) 116 CLR 344; [1967] 116 CLR 344
Carydis v Merrag Pty Ltd (2007) 13 BPR 24,773; [2007] NSWSC 1220
Chu v Lin, Gold Stone Capital Pty Ltd (Trial Judgment) [2024] FCA 766
Dougan v Ley (1946) 71 CLR 142; [1946] HCA 3
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Forder v Cemcorp Pty Ltd (2001) 51 NSWLR 486; [2001] NSWSC 281
Gall v Mitchell (1924) 35 CLR 222; [1924] HCA 48
Ghannoum v Papadeas [2018] NSWSC 1883
GPT RE Ltd v Lendlease Real Estate Investments Ltd (2005) 12 BPR 23,217; [2005] NSWSC 964
Harrison v Lidoform Pty Ltd [1998] FCA 1487
Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326; [1983] HCA 30
HP Mercantile Pty Ltd v Hartnett [2016] NSWCA 342
IWC Industrial Pty Ltd v Sergienko (2021) 20 BPR 41,785; [2021] NSWCA 292
Jessica Holdings Pty Ltd v Anglican Property Trust Diocese of Sydney (1992) 27 NSWLR 140
Lendlease Real Estate Investments Ltd & Anor v GPT RE Limited [2006] NSWCA 207
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
Onesteel Manufacturing Pty Ltd v Bluescope Steel (AIS) Pty Ltd (2013) 85 NSWLR 1; [2013] NSWCA 27
Pianta v National Finance &Trustees Ltd (1964) 180 CLR 146; [1964] HCA 61
Re Bosca Land Pty Ltd’s Caveat [1976] Qd R 119
Re CM Group Pty Ltd’s Caveat [1986] 1 Qd R 381
Re Premier Freehold Ltd’s Caveat [1981] Qd R 547
Rofiza Pty Ltd v Gangley Pty Ltd [2002] NSWSC 986
Sama Zaraah Pty Ltd v 888 Projects Pty Ltd [2007] NSWSC 1041
Tran v Bakour [2025] NSWSC 101
Wedgwood v Adams (1843) 6 Beav. 600
Westpac Banking Corporation v Ollis [2008] NSWSC 824
Wright v Insert Pty Ltd [2022] VSC 1
Zhang v ROC Services (NSW) Pty Ltd (2016) 93 NSWLR 561; [2016] NSWCA 370
Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530; [2004] HCA 56
Texts Cited: Brendan Edgeworth, Butt’s Land Law (7th ed, 2017, Thomson Reuters)
Herzfeld and Prince, Interpretation (3rd ed, 2024, Thomson Reuters)
Category: Principal judgment
Parties: 1128 CG Pty Ltd (ACN 662 166 645) as trustee for the 1128 CG Unit Trust (Plaintiff)
MH Affordable Homes On Kelley Pty Ltd
(ACN 619 338 591 ) (First Defendant)
Mohamad Ausif Niyasudeen (Second Defendant)
Nasreen Banu Ansar (Third Defendant)
Mohsin Abdulrajjak Malek (Fourth Defendant)
Ali Hussein (Fifth Defendant)
Jamila Subedhar (Sixth Defendant)
Ali and Jamila Super Pty Ltd atf Super A & J (Seventh Defendant)
lnsiya Hussain (Eighth Defendant)
Hamza Majeed (Ninth Defendant)
Rana EI-Halabi (Tenth Defendant)
Md Firoz Alam (Eleventh Defendant)
Faria Tasnim Alam (Twelfth Defendant)
Mahmoud Halloum (Thirteenth Defendant)
Sana Halloum (Fourteenth Defendant)
Hayssam Zreika (Fifteenth Defendant)
Mohammad Abdul Gofur (Sixteenth Defendant)
Shammi Abdul Gofur (Seventeenth Defendant)
Md Mazharul Islam (Eighteenth Defendant)
Samia Nasrin (Nineteenth Defendant)
Mohammad Masum Zaman (Twentieth Defendant)
Mahmuda Akter (Twenty-First Defendant)
Tahmidul Momin (Twenty-Second Defendant)
Hashmi Gulam Mohammed (Twenty-Third Defendant)
Quatija Saba Fatima (Twenty-Fourth Defendant)
A B M Abeed Noor (Twenty-Fifth Defendant)
Rubya Tasmin Noor (Twenty-Sixth Defendant)
Mohamed Heebatulla Mohamed Hashim (Twenty-Seventh Defendant)
Siriyathul Kairiya Ahamed Sally (Twenty Eighth Defendant)
Alaa Awwad (Twenty-Ninth Defendant)
Dania Abu Jaradeh (Thirtieth Defendant)
Jalil-Ur-Rehman (Thirty-First Defendant)
Aaron Jay Lashmore ATF Aaron Kamar Super Fund, Thirty-Second Defendant (Thirty-Third Defendant)
Kamar Beyrouti ATF Aaron Kamar Super Fund (Thirty-Third Defendant)
Azadul Alam ATF Alam and Afroza Super Fund (ABN 47 995 733 668) (Thirty-Fourth Defendant)
Afroza Alam ATF Alam and Afroza Super Fund (ABN 47 995 733 668) (Thirty-Fifth Defendant)
Jenaya Wedrat (Thirty-Seventh Defendant)
Ayman Super Pty Ltd ATF Ayman Latif Super Fund (Thirty-Seventh Defendant)
Bassam El Jawad (Thirty-Eighth Defendant)
Jasmine Mustafa (Thirty Ninth Defendant)
Mohammad Farache (Fortieth Defendant)
Mahassen Farache (Forty-First Defendant)
Helal Nachar (Forty-Second Defendant)
Ahmad Abdullah Pty Ltd ATF Gulshan Superfund (Forty-Third Defendant)
Rozina Ashraf (Forty-Fourth Defendant)
Mehdi Benkabbour (Forty-Fifth Defendant)
Danielle Mariea (Forty-Sixth Defendant)
Representation: Counsel:
C Bova SC / Mr C Beshara (Plaintiff)
J Raftery (First Defendant)
A Kaufmann (Non-Rescinding Purchasers)
Solicitors:
Dentons (Plaintiff)
Birchgrove Legal (First Defendant)
Karnib Law Group (Non-Rescinding Purchasers)
Greenwood Lawyers (Rescinding Purchasers)
File Number(s): 2025/00167386
Publication restriction: Nil
These proceedings concern a claim for specific performance of a contract for the sale of a parcel of land at Austral in the south west of Sydney. The land is more particularly described as X Boyd Street, Austral (formerly X Boyd Street) and is contained in folio X/X/X (Property).
The plaintiff (Castle Group) seeks specific performance of a Contract for Sale of Land of the Property dated 11 October 2024 (Contract). The first defendant (MH Affordable Homes) is the registered proprietor of the Property.
The proceedings have a degree of commercial urgency to them in circumstances where, pursuant to the terms of a Settlement Incentive Deed dated 7 November 2024 (Incentive Deed), Castle Group receives a deduction in the purchase price of approximately $2.6 million if settlement occurs prior to 6 June 2025.
The second to forty-sixth defendant are the purchasers of lots to be created by a subdivision of the Property, under off the plan contracts (pre-sale contracts) entered into with MH Affordable Homes in the period between 2017 to 2020. There is now no dispute that Castle Group was not aware of these pre-sale contracts when it entered into its contract with MH Affordable Homes to purchase the Property.
Attached to these reasons is a schedule identifying the pre-sale contracts.
The second to forty-sixth defendants fall essentially into three groups.
The first (the R****escinding P****urchasers) have recently elected to rescind their contracts. The purchasers in this group are the second, third, 13th, 14th, 29th, 30th, 31st, 34th, 35th, 39th, 40th, 41st and 45th defendants. MH Affordable Homes has now refunded to them all of the moneys which they paid under their contracts.
On 27 May 2025, I made orders by consent ordering the Rescinding Purchasers to remove their caveats and otherwise dismissing the claims against them.
The second group constitutes the non-rescinding purchasers. All other defendants, save for the first, ninth, 38th, 27th, 28th and 46th defendants fall into this group (Non-Rescinding Purchasers).
By cross-summons filed 21 May 2025, the Non-Rescinding Purchasers seek a declaration that they each have an equitable interest in the Property in priority to Castle Group’s equitable interest.
The third group is a miscellaneous group. First, the ninth and 38th defendants who have taken no active role, although I am satisfied they have been served. Second, the 27th and 28th defendants who have not yet rescinded but will rescind if Castle Group’s claim for specific performance is granted. Third, the 46th defendant, who is now deceased. The 46th defendant purchased a lot with the 45th defendant, who is one of the Rescinding Purchasers.
(a) permitting Castle Group to file a Further Amended Summons – the amendments principally related to the machinery of payment into Court of surplus funds in the event the claim for specific performance is upheld; (b) ordering that the claims raised by paragraphs 2(a), (c) and (d) of the cross-summons be heard separately from and after all other issues in the proceedings.
Mr C Bova SC and Mr C Beshara appeared for Castle Group. Mr J Raftery appeared for MH Affordable Homes. Mr A Kaufmann appeared for the Non-Rescinding Purchasers.
Each party relied on affidavit and documentary evidence. There was no cross examination. Each party provided written submissions and made oral submissions. The proceedings were conducted efficiently for which the parties and their legal representatives are to be commended.
For the reasons set out below, Castle Group’s claim for specific performance succeeds. This is primarily for the reason that, as explained below, the Non-Rescinding Purchasers do not presently have any interest in the Property that defeats the interest of Castle Group.
The following overview of the facts is sufficient for determination of the issues in dispute.
On or about 5 June 2017, MH Affordable Homes first entered into a contract to purchase the Property for $12,500,000. The Property was purchased with an intention to develop it.
Between June 2017 and September 2018, $3,875,000 was paid towards the purchase price.
On or about 21 December 2018, the initial contract was terminated by the vendors for non-completion.
Proceedings were then commenced by MH Affordable Homes seeking a refund of the amount paid in excess of the ten percent deposit. Those proceedings were settled on or about 17 June 2021 on the basis that a new contract to buy the Property would be entered into, this time for a purchase price of $16,000,000 with the amounts previously paid credited against this new purchase price.
The new contract completed on 14 July 2021, such that MH Affordable Homes has been the registered proprietor of the Property since this time.
It is convenient at this juncture to set out the details in relation to the pre-sale contracts.
Between about October 2017 and May 2020, MH Affordable Homes entered into contracts to sell, off the plan, 30 of the lots in the proposed development. It appears on the evidence, that the proposed plan of subdivision consists of in the order of 85 lots.
As referred to above, attached to these reasons is a schedule that summarises the relevant details in relation to the pre-sale contracts, including which of the groups they fall into.
To the extent that Castle Group has been able to ascertain – the pre-sale purchasers have paid approximately $7 million by way of deposits and instalments under the pre-sale contracts. The pre-sale contracts were entered into without the intervention of an agent and as such these amounts were paid directly to MH Affordable Homes. The moneys paid by the Rescinding Purchasers have now been refunded.
The pre-sale contracts are in broadly similar terms:
(a) the covering pages of each identify the specific division of the Property sought to be conveyed, in the following terms:
Lot [number] in attached draft plan of subdivision (being an unregistered plan of subdivision of land in Folio Identifier X/X/X) being part of the land situated at X Boyd Street, Austral, New South Wales 2179.
(b) the covering pages each identify the purchase price and deposit payable in varying amounts; (c) clause 2.8 of the Standard Conditions provides:
If any of the deposit of the balance of the price is paid before completion to the vendor or as the vendor directs, it is a charge on the land in favour of the purchaser until termination by the vendor or completion, subject to any existing right.
(d) clause 19.2 relevantly provides:
Normally, if a party exercises a right to rescind expressly given by this contract or any legislation –
19.2.1 the deposit and any other money paid by the purchaser under this contract must be refunded;
(e) clause 32.1 of the Further Provisions contains a number of definitions (clause 33.1 in some contracts). Relevantly:
…
Completion Date means the later occurring of the following dates:
(a) the date which is 14 days after the date the vendor notifies the purchaser of the registration of the Deposited Plan; and
(b) [date set out at particular to each contact];
…
Deposited Plan means the deposited plan substantially similar to the Draft Plan of Subdivision to be registered at LPI NSW including the s88B Instrument;
…
Development Site means the land contained in Lot X Section X in Deposited Plan X;
Draft Plan of Subdivision means the proposed plan of subdivision of the Development Site which is attached as Attachment A;
…
Sunset Date means 20 April 2022 unless otherwise extended under clause 35. [clause 36 in the case of the contracts for Lots 137 and 171]
(f) clause 34 (clause 35 in some contracts) provides:
34. Registration of the Deposited Plan
34.1 Completion is subject to and conditional on registration of the Deposited Plan at LPI NSW by the Sunset Date.
34.2 The vendor must use its reasonable endeavours to have the Deposited Plan registered at LPI NSW on or before the Sunset Date.
34.3 The vendor must notify the purchaser of the registration of the Deposited Plan as soon as possible following its registration.
34.4 If the Deposited Plan has not been registered by the Sunset Date then either party may rescind this contract by serving a notice on the other at any time prior to registration of the Deposited Plan and clause 19 will apply.
34.5 The purchaser must serve the form of transfer within seven days of the date upon which the vendor notifies the purchaser of the registration of the Deposited Plan.
(g) clause 35 (clause 36 in some contracts) provides:
35. Extension of Sunset Date
In the event that the registration of the Deposited Plan is delayed, or is likely to be delayed in the vendor’s reasonable opinion, as a result of any one or more of the following events:
(a) conditions or requirements being imposed by any act or law or any Authority not reasonably foreseen by the vendor;
(b) delay by any Authority in providing any necessary approvals or consents, if reasonable steps to obtain such approvals or consents have been taken;
(c) industrial disputes or strikes;
(d) inclement weather;
(e) any other cause beyond the control of the vendor;
then the vendor may from time to time by notice in writing to the purchaser or the purchaser’s solicitor extend the Sunset Date to take into account these delays provided that the Sunset Date may not be extended by more than 24 months in total.
(h) in clause 35 of the contracts for Lots 115,138 and 169, the period of “24 months” has been replaced by hand to “12 months”; (i) clause 45 provides:
45. No Caveat
The purchaser must not lodge a caveat on the title to the land of which the Property forms part until such time as the Deposited Plan is registered and a separate Certificate of Title is issued for the property.
(j) clause 47 of each of the pre-sale contracts provides for the balance of the purchase price, after payment of the deposit, to be paid in two instalments. First, on or before a particular date (which differed in each contract) and on or before completion. This explains why, as set out in the attached schedule, substantial amounts have already been paid by pre-sale purchasers notwithstanding none of the contracts have completed; and (k) clause 55.6(b) provides (clause 56.6(b) in some contracts):
55.6 Legal expenses and duty
…
(b) The purchaser must pay all duty (including all interest, fines and penalties except those arising from the default of another party) in respect of this contract and any transactions contemplated under this contract or otherwise arising out of, or incidental to, this contract.
66ZS Rescission under sunset clauses
(1) In this section—
subject lot means the residential lot being sold under an off the plan contract.
sunset clause means a provision of an off the plan contract that provides for the contract to be rescinded if the sunset event does not occur by the sunset date.
sunset date means the date set out in the off the plan contract as the latest date (subject to any extension provided for in the contract) by which the sunset event must occur.
sunset event means the creation of the subject lot, the issue of the occupation certificate in relation to the subject lot or another event prescribed by the regulations.
(2) For the purposes of this section—
(a) rescind includes terminate or otherwise bring to an end, and
(b) a lot is created when the plan creating the lot becomes a registered plan.
(3) A vendor may rescind an off the plan contract under a sunset clause, but only if—
(a) each purchaser under the contract, at any time after being served with the notice under subsection (4), consents in writing to the rescission, or
(b) the vendor has obtained an order of the Supreme Court under this section permitting the vendor to rescind the contract under the sunset clause, or
(c) the regulations otherwise permit the vendor to rescind the contract under the sunset clause.
(4) It is a term of an off the plan contract that a vendor who is proposing to rescind the contract under a sunset clause must serve each purchaser under the contract notice in writing at least 28 days before the proposed rescission that specifies why the vendor is proposing to rescind the contract and the reason for the sunset event not occurring by the sunset date.
(5) A sunset clause cannot automatically rescind an off the plan contract and, if it purports to do so, it is to be read as if it instead permits the contract to be rescinded on or after the sunset date in accordance with this section.
(6) The Supreme Court may, on the application of a vendor under an off the plan contract, make an order permitting the vendor to rescind the contract under a sunset clause, but only if the vendor satisfies the Court that making the order is just and equitable in all the circumstances.
(7) In determining whether it is just and equitable in all the circumstances, the Court is to take the following into account—
(a) the terms of the off the plan contract,
(b) whether the vendor has acted unreasonably or in bad faith,
(c) the reason for the sunset event not occurring by the sunset date,
(d) the likely date on which the sunset event will occur,
(e) whether the subject lot has increased in value,
(f) the effect of the rescission on each purchaser,
(g) any other matter the Court considers to be relevant,
(h) any other matter prescribed by the regulations.
(8) The vendor is liable to pay the costs of a purchaser in relation to the proceedings for an order under this section unless the vendor satisfies the Court the purchaser unreasonably withheld consent to the rescission of the off the plan contract under the sunset clause.
(9) Notice may be served on a purchaser by serving it on a person who is authorised under the off the plan contract as a representative of the purchaser.
(10) A provision in an off the plan contract has no effect to the extent that it is inconsistent with this section.
(11) Nothing in this section limits—
(a) the Court’s power to award damages against the vendor if an order permitting the vendor to rescind the contract under a sunset clause is made under subsection (6), or
(b) any right that a purchaser may have to rescind an off the plan contract under a sunset clause.
Castle Group is a residential land developer in Western Sydney.
On or about 6 September 2024, 1150 CG Pty Ltd (an associated entity of Castle Group) as trustee for the 1150 CG Unit Trust, as purchaser, entered into a contract with MH Affordable Homes, as vendor for 1150 CG to buy the Property. On 6 September 2024, 1150 CG Pty Ltd lodged a caveat on the title to the Property. That contract was rescinded for commercial reasons on 11 October 2024.
On 11 October 2024, Castle Group, as purchaser, entered into the Contract with MH Affordable Homes to buy the Property. The sale price is $29,000,000. On that day, Castle Group lodged a caveat on the title to the Property (Castle Group Caveat). Included as part of the attachments to the Contract is a title search dated 19 August 2024 which, of course, did not disclose any of the pre-sale contracts.
On 7 November 2024, a deed of variation in relation to the Contract was entered into. None of the amendments are relevant for present purposes.
Also on 7 November 2024, the Incentive Deed was entered into between Castle Group and MH Affordable Homes.
Clause 1 of the Incentive Deed provides:
1. Settlement Incentive
1.1. The parties agree and acknowledge that the purchaser may require the vendor to complete the Contract by giving two weeks notice.
1.2. The vendor agrees the Settlement Incentive Amount will be allowed to the Purchaser by way of a settlement reduction at the time of completion of the Contract provided that settlement takes place on or before the Early Completion Date.
1.3. The Settlement Incentive Amount shall be shown on the Settlement Adjustment Statement as a further deposit instalment.
1.4. For the avoidance of doubt, the parties agree, the Purchaser will not forfeit the benefit of the Settlement Incentive Amount where the Purchaser is ready to complete on the Early Completion Date but a delay in settlement arises due to the Vendor not being ready, willing and/or able to complete.
The Purchaser must then complete within five Business Days after the Vendor resolves the delay issue.
…
Early Completion Date means the date 6 June 2025 after the contract date.
…
Settlement Incentive Amount means the sum of $2,675,000.
There is no suggestion that at the time of these agreements that Castle Group was aware of the pre-sale contracts. Orders were made for each of Castle Group and MH Affordable Homes to give discovery of any documents on the question of notice but each filed an affidavit to the effect that neither had any documents.
Further, no evidence has been led on behalf of MH Affordable Homes as to why the pre-sale contracts were not disclosed.
The first time that Castle Group became aware of the pre-sale contracts was on or about 26 November 2024 in a telephone call between Ruchitha Perera (M****r Perera) (a director of Castle Group) and Mohammed Alamin (Mr Alamin) (a director of MH Affordable Homes). Mr Alamin asked if Castle Group would be happy to agree to cancel the Contract. This was not agreed to.
Thereafter, there was considerable correspondence between the parties’ respective solicitors. The solicitor for MH Affordable Homes provided to Castle Group’s solicitors, copies of the pre-sale contracts and indicated that MH Affordable Homes had been unable to procure the rescission of the pre-sale contracts.
There was then considerable correspondence in which MH Affordable Homes sought removal of the two caveats on title, purportedly to allow MH Affordable Homes to refinance the Property. Castle Group agreed to withdraw the caveat lodged by 1150 CG Pty Ltd as it related to the earlier contract. Ultimately, on 19 December 2024, MH Affordable Homes accepted a caveator’s consent form from Castle Group in lieu of withdrawal of the Castle Group caveat
There was also correspondence in which MH Affordable Homes sought release of the second instalment of the deposit ($1.45 million), the first instalment already having been released. This included a “Notice to Perform” being sent by MH Affordable Homes’ solicitor to Castle Group’s solicitor on 4 February 2025 contending that Castle Group had failed to perform its obligations in relation to the second instalment. MH Affordable Homes subsequently threatened to commence proceedings in this regard.
As I understand it, the second instalment of the deposit remains held by the stakeholder.
On 4 April 2025, the solicitors for MH Affordable Homes sent a letter to the solicitors for Castle Group which stated, relevantly:
Due to the ongoing disputes, our client is of the view that the parties ought to mutually agree to rescind the contract. We are instructed our client will agree to a mutual rescission of this contract, on the following terms:
1.Refund of the due diligence fee in the amount of $100,000.
2.Refund of the deposit paid in the amount of $2,800,000.
3.Refund of the variation fee paid in the amount of $14,000.
4.Compensation of the legal fees paid by your client for this sale (figure to be confirmed by your office); and
5. Mutual release and indemnity of the parties.
We have received instructions that our client anticipates it will not be able to complete the Contract due to the inability to obtain consent from the purchasers of the off the plan sales to rescind their contracts.
On 1 May 2025 these proceedings were commenced.
On 13 May 2025, Castle Group issued a notice pursuant to cl 1.1 of the Incentive Deed requiring settlement of the Property on 5 June 2025.
Castle Group also put into evidence what appears to be a letter from MH Affordable Homes to purchasers under the pre-sales contracts, undated, but apparently sent on or about 15 May 2025. Given the lack of any proper evidence from MH Affordable Homes explaining its conduct, I am sceptical as to the reliability of the letter in certain respects. The letter states:
Dear Valued Clients,
As-salamu alaykum,
Following our previous communication, we would like to provide additional factual information regarding the challenges impacting the X Boyd Street (formerly known as X Boyd Street) project.
Since its commencement in 2017, the project has encountered several unforeseen and ongoing issues that have significantly delayed progress. Key hurdles include:
1. Settlement delays, which have impacted the overall project timeline.
2. Development Application (DA) refusal, requiring additional time for reassessment and resubmission.
3. Delays in securing sewerage connections from Sydney Water, which are critical for project advancement.
4. Completion delays in one of our other major projects, which has had a direct knock-on effect.
5. Financial constraints, stemming from the delay in proceeds expected from the aforementioned project, further affecting our ability to maintain momentum at Boyd Street.
Despite these challenges, we remain committed to resolving these matters and bringing the project to completion. We will continue to provide updates as we progress and appreciate your understanding and patience throughout this process.
1. Decision to Retain the Project
At this stage, we are actively pursuing the option to retain the project through legal intervention, including court proceedings where necessary. This action has been prompted in part by the strong support from many of our clients, who have clearly expressed a desire to continue with their original purchases and see the project brought to completion. We greatly value this trust and remain committed to progressing toward subdivision approval and moving the project into the construction phase.
As part of our broader strategy to retain the project, we are also actively working to arrange the necessary funding to pay out existing investors. This is a critical component of our plan.
Settling these outstanding financial obligations will allow us to regain full control over the project’s direction and eliminate the need to sell it under financial pressure. By securing these funds, we can protect the development from external sale and instead focus on delivering it as originally intended.
This financial restructuring effort is not just about keeping the project alive—it is about unlocking its long-term potential. Compared to our other developments, this project is significantly more attractive from both a financial and strategic standpoint. Its location, planning progress, and market demand position it as one of our most valuable assets.
Completing it would not only allow us to recoup part of the substantial losses we have already absorbed, but it would also deliver real benefits to all stakeholders—clients, lenders, and the broader community.
Additionally, a substantial amount of work has already been completed—such as planning approvals, technical studies, design work, and coordination with service authorities. This puts the project much closer to the construction stage than most new developments, reducing both time to delivery and upfront costs.
In summary, our intention to retain this project is driven by both a responsibility to our clients and a strategic effort to preserve and unlock long-term value. We are doing everything possible—legally and financially—to ensure the project continues, and we appreciate the continued support of those who share this vision.
2. Project estimated timeline and Fund Arrangement for Settlement
The property was settled on 12 July 2021, with the support of Shariah-compliant finance. At that time, we obtained approximately $11 million in Shariah-compliant finance from private investors. Since then, monthly rental payments on the finance and other associated expenses have significantly increased the total amount over the past four years.
When we embarked on this journey, we did so with optimism and a sincere commitment to deliver. However, significant delays—particularly in obtaining Development Application (DA) approval from Liverpool City Council and sewerage connection clearances from Sydney Water—have disrupted our original plans and timelines.
3. Lot Sales and Lot Ownership Status
There are 85 lots in this subdivision. To date, 30 lots have been sold, while the remaining 55 lots—nearly 65% of the project—remain under the ownership of MH Affordable Homes. This reflects that the finance was secured based on these retained lots, with the intention of repaying the finance amount through their future sale.
We are aware that some clients have raised serious concerns, including accusations that we may have sold land without proper authorization or acted in bad faith. We want to reassure all stakeholders that this is not the case, and we are committed to full transparency.
The funding we secured was based solely on the value of the land and our legal ownership rights. This financial arrangement was necessary to prevent the loss of the entire property due to mounting obligations. Without it, we risked forfeiting the land altogether, which would have resulted in even greater losses for everyone involved.
The eventual decision to sell the entire project was not made lightly. MH Affordable Homes holds a 65% majority ownership of the lots in the development, and this ownership gave us the authority to make strategic decisions in the best interest of all stakeholders. The primary goal of selling the project was to repay the finance obtained—this includes refunding client deposits. We believed this path would minimize the overall financial impact and offer the most viable resolution under the circumstances.
It is also important to highlight that, as a company, we have suffered significantly greater financial losses than any individual client. In addition to our 65% equity stake—which would be forfeited—we also carried the full burden of ongoing holding costs, legal and planning expenses, loan monthly rent for finance, land tax and other overheads throughout the life of the project. These outlays far exceed the value of individual client deposits. Our commitment to returning client funds, even while absorbing a substantial financial loss ourselves, reflects our intent to act with integrity and fairness.
We understand the frustration and confusion this situation may have caused, and we remain available to answer questions and provide further documentation to anyone seeking clarity.
4. Project Completion and Investor Agreements
The financing for this development was secured in 2021 with the intention of completing the project within two to three years, by 2023/2024. Unfortunately, as noted earlier, the timeline was significantly impacted by factors beyond our control—specifically, delays from Sydney Water and a DA Refusal.
We revised our original plan and included a target completion date of 2025. However, in light of the continued lack of essential infrastructure and ongoing regulatory delays, it has become clear that meeting this target is no longer feasible, particularly as the financing amount is required to be refunded by a very recent future.
After careful evaluation, we believed that the most responsible and ethical course of action was to refund purchaser deposits to minimise financial damage. Continuing the project in its current state was no longer financially viable.
5. Impact from Other Projects
The situation has been further strained by parallel issues with our other developments, particularly on Fourth Avenue and Gurner Avenue. We have structured our projects in sequential stages to manage resources and investment returns effectively.
Our first project, Fourth Avenue, had all civil works completed by May 2023. The only remaining step is lot registration, which has been delayed due to an outstanding Section 73 certificate from Sydney Water, which specifically depends on the sewer lead-in design approval and construction.
The second project, Gurner Avenue, has already progressed through remediation and earthworks. However, its continuation is dependent on the completion of the Fourth Avenue project. Once Fourth Avenue is finalised and registered, we will be able to begin full-scale construction at Gurner Avenue.
Gurner Avenue holds several assets, which are expected to generate revenue to be reinvested into the Kelly Street project, enabling its completion. Following Kelly Street, our Dickson Road project is set to begin, as it is the final stage in our project rollout.
Unfortunately, due to Sydney Water delays, the DA refusal, and other ongoing infrastructure challenges, we have been unable to adhere to this planned sequence. These delays have created a domino effect, significantly impacting timelines, finances, and our ability to deliver as originally intended.
6. Previous Reason for Decision to Sell the Project
The decision to sell the project was not made lightly and came after extensive evaluation of the financial, contractual, and regulatory circumstances surrounding its progress. Several critical factors contributed to this decision, all aimed at protecting both our clients and the company from further financial risk.
One of the primary reasons was the urgent need to prevent greater financial losses—both for the clients and for MH Affordable Homes. Due to the pressures from mounting financial obligations, we faced the very real risk of losing the entire land asset if the finance facility could not be repaid. This scenario would have resulted in the total loss of the property and, consequently, all client deposits associated with the project. By choosing to sell the project, we created a viable path to avoid this outcome and to preserve client funds wherever possible.
A key factor influencing this decision was MH Affordable Homes’ ownership of 65% of the lots within the development. This majority stake placed the responsibility on us to make decisions in the best interest of the project and its stakeholders. Selling the project enabled us to use the proceeds to repay the outstanding finance obligations, which include client deposits, accrued monthly rental for Finance, and holding costs. Our goal was to mitigate total losses and to manage the fallout in a controlled, transparent, and fair manner.
Another critical issue was the expiration of the Sunset Date as outlined in the sales contracts.
Clause 35 clearly states that settlement is conditional upon the registration of the Deposited Plan with Land Registry Services (LRS) NSW by the Sunset Date. Importantly, this date may not be extended beyond 24 months under the terms of the agreement. The inability to register the plan within this period legally restricted our ability to proceed with the original contract terms.
In addition, because the Deposited Plan was not registered within the contractual timeframe, the contract allows either party—the buyer or the seller—to rescind (cancel) the agreement prior to registration by issuing formal notice. Given that this right exists under the contract, and in light of ongoing regulatory delays and financial constraints, the client could have made the decision to terminate the contract and ask for a refund anytime. We had made the difficult but legally supported decision to exercise this right and proceed with the sale of the entire project.
In summary, the decision to sell was made in an effort to act within the boundaries of the law, preserve client investments, and prevent a worst-case scenario in which both the land and all funds would have been lost. It was a strategic, necessary step under very challenging conditions, and taken with the intention of minimizing harm to all parties involved.
7. Legal Support
We acknowledge that clients have understandable concerns regarding the current status and future of the project. In light of these concerns, and in recognition of the significant interest expressed by many clients in continuing with their contracts, we are actively working to retain the project through legal intervention and proceed with the subdivision process. Our goal remains to bring the project to completion and deliver the outcome clients initially signed up for.
To support this effort and to ensure fairness throughout the legal process, we are also assisting clients with their legal costs where appropriate. We understand that legal proceedings can be complex, intimidating, and costly—particularly for individuals who simply want their purchase to proceed as promised. By helping cover some of these costs, we are demonstrating our commitment to transparency, collaboration, and protecting our clients’ interests. This also ensures that all clients who wish to remain in the project have equal access to legal representation and the ability to participate meaningfully in the process.
Our intent is to create a united front in court that reflects the shared interest of both the company and many clients who wish to see the project completed. We believe this is the most constructive path forward—not only to safeguard your investment, but also to achieve a workable, long-term outcome for all stakeholders.
It has come to our attention that the solicitor we recommended previously (Greenwood Lawyers) has only advised many clients to consider rescinding their contracts in order to seek a refund even for the client’s desire to stay. However, we are aware that many clients wish to remain in the contract and are happy to wait until the project is completed.
If you wish to remain in the contract and continue with the project, we encourage you to contact, KARNIB LAW GROUP, who is familiar with the project details and is assisting clients throughout this process.
…..
We understand the gravity of the situation and the concerns it raises. Please rest assured that we are doing everything within our capacity to protect the interests of our clients and minimize financial loss. We deeply appreciate your understanding, patience, and cooperation during this difficult time.
Best Regards,
Management Team
Castle Group gives evidence of its readiness, willingness and ability to perform the Contract. This includes already having paid the substantial stamp duty. None of the evidence of readiness, willingness or ability was contradicted, although as appears below, the Non-Rescinding Purchasers contended in closing submissions that specific performance should not be ordered in favour of Castle Group because it had not proved that it was ready, willing and able to complete.
Evidence was also adduced that the expected payout figure for the mortgage currently on title on the basis of a 5 June 2025 settlement is $18,763,361.
The evidence on behalf of MH Affordable Homes consisted of one affidavit of Mr Alamin.
The affidavit provided a brief overview of what has happened on the Property, including the grant of development consent by the Land and Environment Court on 24 April 2024.
Mr Alamin also deposed to the fact that the earliest available sewerage connection is now forecast for mid-2027.
Mr Alamin stated:
Affordable Homes’ intention is to complete the development and honour the contracts with the off the plan sales purchasers.
Evidence was also provided of the moneys paid by the Rescinding Purchasers being refunded to them.
Importantly, apart from the general statement of intention extracted above, nothing was said as to MH Affordable Homes’ ability to complete the development. Nothing was said as to why MH Affordable Homes entered into the Contract despite the pre-sale contracts and without disclosing them. Also, why did MH Affordable Homes seek to have Castle Group continue to honour its Contract, at least to the extent of authorising the release of the second instalment of the deposit, if MH Affordable Homes’ position was that it wished to continue with the development of the Property.
The Non-Rescinding Purchasers relied on an affidavit of the tenth defendant, who had purchased two lots in the development, apparently intending to live in one of them. The affidavit was short, annexing a Project Newsletter from MH Affordable Homes dated 19 July 2024, extracts from the websites of Castle Group, Bangladesh Circle and the Amin Property Group.
The 19 July 2024 Project Newsletter refers to development approval having been obtained but also to the lack of any sewerage connection. The newsletter continued:
We are continuing our investigation about feasibility and sustainability of this project and possible completion dates. So, we will update you in near future with more news how – to move forward with this project.
The respective contentions of the parties may be summarised as follows.
Castle Group’s primary contention was that the Non-Rescinding Purchasers do not have any equitable interest in the Property capable of defeating Castle Group’s entitlement to specific performance of the Contract. This was put on two bases.
First, properly analysed, the Non-Rescinding Purchasers do not presently have any interest that could be described as an equitable interest in the Property that competes with Castle Group’s interest. Such rights as the Non-Rescinding Purchasers presently have are in personam rights or mere equities, and not an interest in the Property.
Second, and alternatively, if the Court rejects the first argument above, the Court should hold that, properly construed, the pre-sale contracts are no longer on foot because the Sunset Date has come and passed, and cannot be further extended.
Alternatively to the above two arguments, it was contended that if the Non-Rescinding Purchasers in fact have an equitable interest in the Property, then Castle Group’s equitable interest is the better equity and thus takes priority over the equitable interest of the Non-Rescinding Purchasers. Principal reliance in this regard was placed on the fact that the Non-Rescinding Purchasers failed to lodge a caveat on the Property. This was said to amount to postponing conduct.
Further, Castle Group contended that specific performance should be ordered because damages would not be an adequate remedy. Reliance, in this regard, was placed on the usual authorities concerning specific performance of contracts for the sale of land.
MH Affordable Homes focussed on two issues. First, MH Affordable Homes contended that on the proper construction of the pre-sale contracts, if the Sunset Date passes and neither party rescinds, the purchaser and the vendor remain bound by the pre-sale contract. The vendor (MH Affordable Homes) remains obliged to register the Deposited Plan with the goal of settling the contract. So much is clear by the definition of Completion Date. MH Affordable Homes largely adopted the submissions of the Non-Rescinding Purchasers in this regard.
Second, MH Affordable Homes contended that specific performance should not be ordered in favour of Castle Group because damages would be an adequate remedy. To order specific performance would impose hardship on the third parties to the Contract – being the Non-Rescinding Purchasers.
The Non-Rescinding Purchasers joined with MH Affordable Homes in contending that, in the circumstances that have arisen, the pre-sale contracts may be, but have not in the case of the Non-Rescinding Purchasers, been rescinded. They remain on foot. Clause 34.1 of the pre-sale contracts (clause 35.1 in some pre-sale contracts) does not present any impediment to the Non-Rescinding Purchasers seeking specific performance of the pre-sale contracts.
In circumstances where these proceedings were brought on urgently and a decision is sought prior to the 5 June 2025 deadline for completion imposed by Castle Group, these reasons are necessarily somewhat truncated. I have sought to deal with the essence of the arguments advanced by each of the parties.
Whilst Castle Group and the Non-Rescinding Purchasers were apart on many issues, they were united on one point – namely in their criticism of the conduct of MH Affordable Homes. The Non-Rescinding Purchasers described MH Affordable Homes’ conduct as reprehensible – a description with which, given the lack of any explanation by MH Affordable Homes, I agree.
The absence of any explanation at all by MH Affordable Homes for its conduct is troubling. As set out above, whilst an affidavit was put forward by Mr Alamin, nothing was said about why MH Affordable Homes purported to sell the Property twice and why there was no disclosure to Castle Group of the existence of the pre-sale contracts or any disclosure to the pre-sale purchasers that MH Homes was selling the Property.
Mr Alamin did not even adopt the 15 May 2025 letter in his affidavit.
Whilst MH Affordable Homes’ conduct may be somewhat at the periphery of the legal issues which I need to determine, the absence of any explanation causes me to question its motives and view with scepticism any statements as to its desire or ability to continue to develop the Property.
It was not in dispute that the interest of the Non-Rescinding Purchasers is, properly viewed, a contingent one. Each of the pre-sale contracts makes it clear that what is being bought is a lot in a draft plan of subdivision. The relevant contingency is a condition imposed by law – namely, the subdivision of land necessary to create the separate lot to be transferred under the relevant contracts for sale. The only way that condition can be fulfilled is by the registration of a deposited plan, in the form of a plan of subdivision, in accordance with Div 3 of Pt 23 of the Conveyancing Act.
By contrast, it was not in dispute that Castle Group, as purchaser under the Contract, has an equitable interest in the Property prior to completion: see, for example, Australia Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd (2017) 18 BPR 36,683; [2017] NSWCA 99 (Linfield) at [93] per Ward JA (with whom McColl and Gleeson JJA agreed).
In support of the case they advance and in answer to the primary case advanced by Castle Group, the Non-Rescinding Purchasers place principal reliance on a number of decisions, including Forder v Cemcorp Pty Ltd (2001) 51 NSWLR 486; [2001] NSWSC 281 (Forder), which have held that a purchaser in a like position to the Non-Rescinding Purchasers has a sufficient equitable interest in land to support a caveat.
The essence of the debate between the parties in this regard reduced to whether those decisions should be confined to whether the interest is sufficient to support a caveat, or whether they establish that an interest exists sufficient to be considered in a priority fight with another holder of an equitable interest in land.
I was not referred to any authority that directly considered this point.
In my view, for the reasons set out below, the decisions relied upon by the Non-Rescinding Purchasers in this regard, properly analysed, consider only whether the interest of the purchaser under a contingent contract is sufficient to sustain a caveat. They do not go further and establish that an interest of a purchaser under a contingent contract for the sale of land, prior to the contingency being satisfied, has an equitable interest in the land itself, such that the purchaser is able, prior to satisfaction of the contingency/condition, to compete in a priority fight with the holder of an equitable interest in the property.
It is convenient to first consider the decision of Brownie J in Jessica Holdings Pty Ltd v Anglican Property Trust Diocese of Sydney (1992) 27 NSWLR 140. At 144, Brownie J framed the question for decision as (emphasis added):
It follows that for the purposes of this case, it may be of no practical significance at all whether or not the caveat is withdrawn but the stances adopted by the parties require me to give a ruling on the vexed question of whether a conditional contract for the sale of land gives rise to an interest in the purchaser which is capable of supporting a caveat.
Brown v Heffer (1967) 116 CLR 344 concerned land which was subject to the provisions of the Closer Settlement Acts, which required the consent of the Minister to be obtained to any transfer. After making a will leaving the land to his son, the testator contracted to sell the land to the son, but then died. Shortly afterwards, the Minister consented to the proposed transfer, and the question arose as to whether the devise had been adeemed. After pointing out that if, before his death, a testator became bound by a contract to convey or transfer land the subject of a devise, so that when he died he was a trustee of the land for the purchaser, and entitled only to receive money in place of the land, Barwick CJ, McTiernan, Kitto and Owen JJ said (at 349-350):
“… What is meant by a contract being so binding upon the testator as to effect a notional conversion of the land into money is that the state of affairs existing immediately before his death was such that a court of equity if applied to at that time would have ordered specific performance by him of his obligation under the contract to convey or transfer the land to the purchaser upon performance of such of the purchaser’s obligations as the contract required to be performed at or before settlement … As Lord Parker of Waddington observed for the Privy Council in Central Trust and Safe Deposit Co v Snider [1916] 1 AC 266”:
‘‘It is often said that after a contract for the sale of land the vendor is a trustee for the purchaser … But it must not be forgotten that in each case it is tacitly assumed that the contract would in a Court of Equity be enforced specifically … Their Lordships (in Howard v Miller [1915] AC 318) came to the conclusion that, though the purchaser of real estate might before conveyance have an equitable interest capable of registration such interest was in every case commensurate only with what would be decreed to him by a Court of Equity in specifically performing the contract, and could only be defined by reference to the relief which the Court would give by way of specific performance [1916] 1 AC, at 272.”
The argument submitted for the appellant in the present appeal relied upon cases such as Egan v Ross (1928) 29 SR (NSW) 382 for the proposition that under such contracts as those with which we are here concerned specific performance will be granted in favour of the purchaser even before the Minister’s consent has been obtained, and that therefore the land is notionally converted into money at the date of contract notwithstanding that unless the consent be given no effectual conveyance or transfer under the contract can ever be made. The first part of the proposition, however, is too widely stated and the second cannot be maintained. The specific performance which will be granted before the Minister’s consent has been obtained is not specific performance of the obligation to convey or transfer, for that obligation has not yet arisen: McWilliam v McWilliam’s Wines Pty Ltd (1964) 114 CLR 656, at 661. As Harvey CJ in Eq made clear in Egan v Ross the decree that will be made will go no further than directing that the proper steps be taken for the purpose of obtaining the Minister’s consent and, ‘if that is obtained’, to transfer the land to the purchaser: see also the more explicit form of order made by this Court in Kennedy v Verco (1960) 105 CLR 521, at 530, 531. Accordingly until the consent has been obtained the purchaser**’**s interest, being ‘commensurate only with what would be decreed to him’, does not extend to ownership of the land and the interest of the vendor is not yet converted into a right to receive money in place of the land. Many authorities on the topic are discussed in the valuable judgment of Callan J in In re Rudge; Curtain v Rudge [1949] NZLR 752.
Windeyer J said (at 351-352):
“While the question whether the Minister would consent was still pending, the testator or his executor was not at liberty to enter into any transaction inconsistent with an obligation to perform his contract with the purchaser. The purchaser’s rights to have the testator and his executor do nothing to his prejudice were enforceable in equity by injunction. But they did not create an equitable interest in the land.”
The starting point for the decisions in Bosca and Premier was the proposition that one decided whether a purchaser of land had an equitable interest in the land by inquiring whether a court of equity would order specific performance of the contract, and if so, on what terms. However, it seems to me that the statements quoted above, made in McWilliam and in Brown, must now be read more widely, so as to include specific performance, not just in the primary sense of enforcing an executory contract by compelling the execution of an assurance to complete it, but also in the extended sense that the court might by injunction order the vendor to do what was necessary to enable the purchaser to obtain any necessary consent: McWilliam; Hewett; Legione; Stern; Chan.
The circumstances which confronted Dowsett J in C M Group — that the decision in Bosca had then stood for almost ten years, and had been followed in other cases, and that it was consistent with the decision in Ovenden — apply today, perhaps with greater force, since it is now more than five years later, and having regard to the decisions in Dimbury and in Shanahan, and also to the decision of the Full Court of the Supreme Court of Queensland in Re Androma Pty Ltd [1987] 2 Qd R 134 where, when dealing with a rather different question, the reasoning in Bosca and C M Group was applied (by McPherson J, as he then was (at 147-150) and by Derrington J (at 158-161); Connolly J dealt with the question under consideration (at 138-139), but without citing these cases).
It is no doubt important that statutes such as the Real Property Act and its analogues in other States, and for that matter the local government legislation in the different States, be construed harmoniously, so far as is possible, and it is important that precedents by reference to which affairs have been arranged be routinely followed, but having regard to the series of statements I have mentioned preceding the decision in Chan and to that decision itself, it seems to me that I should do what Dowsett J had regarded himself as unable to do in C M Group**, namely hold that where a purchaser of land under a contract which contains a condition requiring some stranger to the contract to give some consent, or take some other step, before the contract can be regarded as unconditional, the purchaser in appropriate circumstances should be treated as having an interest within the meaning of s 74F of the** Real Property Act or its analogues; and in the present case, since the defendant has an interest which, for the reasons already stated ought to be protected by an injunction, it follows that the defendant has an interest which may be protected by a caveat. Of course, the injunction goes, not directly to compelling the plaintiff to take the necessary steps to register the deposited plan originally contracted for, but rather to the earlier step of preventing the plaintiff from registering a different deposited plan, but this distinction does not seem to me to be of any practical significance.
It is clear from Brownie J’s judgment that what his Honour was considering was the question of whether the interest was sufficient to sustain a caveat within the meaning of the relevant legislation: for example, s 74F of the Real Property Act 1900 (NSW) (RPA). This is clear from the highlighted text immediately above – “the purchaser in appropriate circumstances should be treated as having an interest within the meaning of s 74F”.
Next, one need turn to Ford**er itself. It is apparent from the first paragraph of Barrett J’s decision that the question for his Honour was whether the persons by whom the caveats had been lodged are properly regarded as having an estate or interest in the relevant land capable of supporting them in the context of s 74F of the RPA.
The essence of what his Honour was deciding, and the basis for his decision, emerge clearly from [23]-[29] of the judgment which are as follows (emphasis added):
[23] It is true, of course, that none of the cases so far mentioned concerned a lot in a proposed strata plan and, as Mr Hodges has put to me, there is much more to be done in bringing a strata plan to fruition than there usually is with a surface subdivision. For that reason, a purchaser or option holder in relation to a strata lot yet to be created stands in a more tenuous relationship to the land.
[24] In that connection, however, it is necessary to refer to the decision of the Full Court of the Supreme Court of Western Australia in Kuper v Keywest Constructions Pty Ltd [1993] WAR 419. That case concerned two contracts by the same purchaser to purchase lots in a proposed strata plan relating to a building which was in the course of construction when the contracts were made. At the date of contract, local government approval of the proposed strata subdivision had not been obtained and no strata plan had been registered. The purchaser under the uncompleted contracts lodged a caveat and a question arose as to whether the purchaser had an interest sufficient to support those caveats.
[25] Malcolm CJ with whom Pidgeon and Seaman JJ agreed, held that the purchasers did have a caveatable interest. The learned Chief Justice began with McWilliam v McWilliams Wines and Brown v Heffer and then proceeded via Legione v Hately, KLDE Pty Ltd, Stern v McArthur and the other more recent High Court authorities to the position that Dowsett J would have preferred to adopt in C M Group but felt constrained by comity to reject. Malcolm CJ then continued:
“In my opinion, in appropriate circumstances, a court would be prepared to protect a purchaser’s interest under a contract such as that in the present case, at the so-called inchoate stage, both by granting specific performance in the sense of requiring the vendor to do all things necessary to be done to procure registration of the strata plan as well as restraining the vendor by injunction from dealing with the land inconsistently with the purchaser’s right to specific performance of the contract, both in the special sense and, subject to fulfilment of a condition, in the ordinary sense: cf Pakenham Upper Fruit Co Ltd v Crosby (9124) 35 CLR 386 at 396-399, per Isaacs and Rich JJ.
In my opinion the estate or interest claimed by the purchasers under the contracts was sufficient to ground a caveatable equitable interest in the relevant land, notwithstanding the conditional nature of the contracts.”
As I said earlier, the conditional nature of the contracts there was such that not only were local government and titles office actions still to come, but indeed there was not yet any completed building to which the strata plan lots could be physically related.
[26] In the present case, Mr Forder has, by virtue of the deed and, in particular, the call option provision in clause 4.1 (as supplemented by the machinery provisions which follow it), a right to bring into existence at any time a contract in the form of the annexure “A” to the deed. Although registration of the exhibited strata plan is a condition precedent to completion, neither the deed nor the form of contract appears to impose upon Cemcorp an explicit obligation to proceed to obtain that registration and, if such a term cannot be implied, it may be that there is no basis on which Mr Forder can require Cemcorp to do everything necessary to effect the registration. But Mr Forder can, in any event, and by virtue of the deed, call upon the assistance of equity in two relevant ways: first, as secondly described by Malcolm CJ in Kuper, that is to restrain Cemcorp by injunction from dealing with the site as a whole inconsistently with his rights under the deed; and, second, as described by Brownie J in Jessica Holdings**, to restrain** Cemcorp from registering a strata plan which does not accord with the deed.
[27] To my mind, the decision of an intermediate court of appeal in Western Australia in Kuper involving a contract relating to a lot in an unapproved and unregistered strata plan, coupled with the decision of an intermediate court of appeal in Queensland in Henderson’s case**, albeit relating to a surface subdivision rather than a strata situation, provides a firm basis on which I may follow in this case of a proposed strata subdivision the approach which Brownie J took in the** Jessica Holdings case in relation to a proposed surface subdivision.
[28] I am satisfied that the effect of the deed of 6 October 2000 between Cemcorp and Mr Forder is such as to cause Mr Forder to have, in relation to Lots 49 and 50 in Deposited Plan 7413 (that is, the development site), an interest which may properly be the subject of a caveat under the Real Property Act**. He is therefore entitled to maintain his existing caveat**.
[29] In conclusion, let me quote what I consider to be apposite and sensible words from an article by Assistant Professor K L Liew in an article entitled Conditional Contracts and Caveatable Interests (1995) 14 UTasLR 63:
“The caveat system is supposedly designed to preserve the status quo pending resolution of the claim underlying the caveat. If this is the case, it does not seem logical to give a narrow interpretation to the word ‘interest’ in the provision dealing with the lodgment of caveats. If a vendor in breach of a conditional contract seeks to sell the land to another purchaser, even the availability of an injunction to the purchaser under the first contract of sale is of no assistance if he or she was not aware of the actions of the vendor (and there is a need to seek an injunction). The presence of a caveat on the register will at least give notice to a third party that there is an existence to someone who has had prior deals the property and is claiming an interest in it. At least until the contingency is determined this will give the purchaser a degree of protection prior to the fulfilment of the contingency and the opportunity of testing the claim in court.
The alternative conclusion is not satisfactory because it would undermine the interest of the purchaser under the contract of sale in that a vendor is able, subject to liability for breach of contract, to walk away and enter into a more lucrative contract of sale with another purchaser. This kind of conduct is clearly not desirable, nor should it be facilitated by a narrow interpretation of what may amount to a caveatable interest.”
Again, it emerges clearly, in my view, from Barrett J’s decision that his Honour was considering the relatively narrow question of whether an interest in land, sufficient to support a caveat, was established. Central, or at least an important matter in his Honour’s determination was the policy considerations underlying caveats – namely to give the world notice of the interest of the holder. This emerges most clearly from [28]–[29] of the judgment.
Forder was followed by Kunc J in Ghannoum v Papadeas [2018] NSWSC 1883 – again in the context of whether the plaintiff under a alleged contingent contract, had an interest sufficient to sustain a caveat prior to the condition being fulfilled.
Forder was distinguished by Gzell J in Sama Zaraah Pty Ltd v 888 Projects Pty Ltd [2007] NSWSC 1041. Gzell J referred (at [4]) with approval to the following observations of Hely J in Harrison v Lidoform Pty Ltd [1998] FCA 1487 at 10:
“The fundamental flaw in the applicant’s argument, in my view, is that any personal equity to be offered a substituted lot only becomes a proprietary interest when it attaches to an identifiable lot. There is no proprietary right or interest in the whole at the point at which there is merely a personal obligation on the vendor to select a part and to make an offer of it. Beneficial Finance v Multiplex Constructions Pty Ltd (1995) 36 NSWLR 510,524 supports this conclusion.”
These observations of Hely J reflect the traditional view, i.e. divorced from the question considered in the authorities above in relation to whether the interest under a conditional contract is sufficient to sustain a caveat, that until the condition is fulfilled, the purchasers do not have an equitable interest in the land. This view was clearly stated by Windeyer J in Brown v Heffer at 351-352. Windeyer J’s reasoning now appears to be the prevailing view, see: Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530; [2004] HCA 56 at 587 [158] per Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ.
The authorities in this regard were analysed by McLure P (with whom Newnes JA and Le Miere J agreed) in Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd (2012) 45 WAR 29 at [166]–[175]. McLure P (at 175) stated that her Honour proposed to follow Windeyer J’s analysis.
Nothing said in any of the cases that have considered whether a caveatable interest exists in relation to a purchaser under a conditional contract before the condition is fulfilled, cast any doubt on the traditional view stated by Windeyer J in Brown v Heffer. Whilst the caveat cases refer to the purchaser having a ‘legal or equitable estate or interest in land’, they do so in circumstances where they are the words used in the statute: see for example s 74F RPA. They are not referring to an equitable estate or interest in land in the general sense discussed in the non-caveat cases. Had it been intended to do so, the cases would have had to deal with the traditional view.
It is instructive to also consider the decision of White J in GPT R**E L**td v Lendlease Real Estate Investments Ltd (2005) 12 BPR 23,217; [2005] NSWSC 964. In that case, the plaintiff succeeded to the rights and obligations of the grantor of a right of pre-emption contained in a joint venture agreement. The defendant was the grantee of the right. The relevant provisions of the agreement provided that the plaintiff would not “deal with” its interest except as agreed and if it wished to deal with its interest, it would serve a notice to that effect. The issue which White J considered was whether the entry into a put and call option by the plaintiff’s predecessor involved the plaintiff dealing with its property. White J held that the plaintiff had not parted with an interest in property and did not alienate its interest and did not, therefore, “deal with” its interest or breach the terms of the joint venture agreement.
At [56]–[57] White J, having earlier referred to the decisions of the High Court which held that a purchaser which has contracted to acquire property, but is not entitled to specific performance of the vendor’s covenant to convey, has an equitable interest in the property, falling short of beneficial ownership, to the extent that it is entitled to equitable relief to protect its interest, stated (emphasis added):
[56] Given that the option in the present case is in the form of an irrevocable offer, the equitable relief to which Westfield would be entitled against GPT until the option is exercised, is an injunction restraining a purported revocation of the offer or dealing with the property which was inconsistent with the put and call option deed, a declaration or order establishing the invalidity of a purported revocation (Lennox v Cameron (1997) 8 BPR 15,939 at 15,954 ), and an order to compel GPT to do what was reasonably necessary to procure the fulfilment of the conditions precedent.
[57] On the basis of these authorities, Westfield must be taken to have acquired a contingent equitable interest in the property commensurate with its right to obtain equitable relief to restrain conduct in breach of the put and call option deed and to enforce its promise to do what was reasonably necessary to procure the fulfilment of the conditions precedent. I confess to difficulties in conceptualising a proprietary interest in terms of the availability of equitable relief to enforce the contract, where the consent of a third party is required before an obligation to transfer the property can arise, and that consent cannot be compelled: McWilliam v McWilliam’s Wines Pty Ltd (1964) 114 CLR 656 at 660–1 ; Brown v Heffer (1967) 116 CLR 344 at 350–1 ; [1968] ALR 89 at 92 . Those difficulties become acute when I turn to the question whether it is a corollary of Westfield having acquired such a contingent equitable interest, that GPT has disposed of or parted with an interest in the property.
[60] For the reasons I gave in Redglove Projects Pty Ltd v Ngunnawal Local Aboriginal Council (2004) 12 BPR 22,319 ; [2004] NSWSC 880 at [26]–[35] and the authorities there cited, the mere fact that GPT has entered into a contract, which is enforceable by injunction, not to deal with the property in a way inconsistent with the put and call option deed, does not mean that it has disposed of or alienated a part of its interest. Nor would its amenability to mandatory injunction, or limited form of specific performance to enforce its obligation to attempt to procure a waiver of Lend Lease’s pre-emptive rights, mean that it had already given up part of its beneficial interest.
[61] Lend Lease submits that if Westfield has acquired a contingent equitable interest in GPT’s share of the property, GPT must have disposed of or alienated part of its interest.
[62] In Stern v McArthur, Deane and Dawson JJ (at CLR 523), when referring to the position of a purchaser under an unconditional contract of sale, but whose right to a transfer was contingent on the payment of the purchase price, said that the purchaser had acquired an equitable interest in the land measured by the protection which equity would afford him, and to that extent the vendor’s beneficial interest was diminished. I do not consider that it follows from the extrapolation of this statement to conditional contracts, that the measure of protection which equity would afford Westfield means that GPT has already parted with or disposed of an interest in the property. Accepting, as I must, that Westfield has acquired a contingent equitable interest, its equitable interest is imposed on, not carved out of, the legal estate: DKLR Holding Co (No 2) Pty Ltd v Cmr of Stamp Duties [1980] 1 NSWLR 510 at 518–20 ; (1980) 10 ATR 942 at 948–50 ; Re Transphere Pty Ltd (1986) 5 NSWLR 309 at 311 ; 10 ACLR 776 . GPT remains the owner of its interest. It has not parted with the beneficial ownership. Such contingent equitable interest as Westfield has is commensurate with its right, which equity will protect, to compel GPT to honour its contract. It operates as an imposition on GPT**’s title, not as a subtraction from it.**
[63] In my view, GPT has not parted with an interest in the property. …
White J’s analysis was upheld on appeal: see Lendlease Real Estate Investments Ltd & Anor v GPT RE Limited [2006] NSWCA 207 at [21] – [35] per Spigelman CJ (McColl and Basten JJA agreeing).
To a similar effect, in Chu v Lin, Gold Stone Capital Pty Ltd (Trial Judgment) [2024] FCA 766, Jackman J recently stated (at [197]):
197 Dealing first with the MVLC Loan Agreement, as I have indicated at [110] above, the Mortgaged Property in Item 6 of the Schedule was a unit in an unregistered strata plan. However, a lot in an unregistered strata plan is not “real property”. It has been held that a purchaser’s interest under a contract of sale for a lot in a proposed but unregistered strata plan, in appropriate circumstances, would be protected by a court by granting specific performance to require the vendor to do all things necessary to be done to procure registration of the strata plan, as well restraining the vendor by injunction from dealing with the land inconsistently with the purchaser’s right to specific performance of the contract, and accordingly the estate or interest claimed by a purchaser under a contract for such a lot may be sufficient to ground a caveatable equitable interest in the relevant land: Kuper v Keywest Constructions Pty Ltd [1990] 3 WAR 419 at 432 (Malcolm CJ, with whom Pidgeon and Seaman JJ agreed). That decision was followed by Barrett J in Forder v Cemcorp Pty Ltd [2001] NSWSC 281; (2001) 51 NSWLR 486 at [27]–[29], expressly on the basis that the caveat system is designed to preserve the status quo pending resolution of the claim underlying the caveat, and accordingly a narrow interpretation should not be given to the word “interest” in the relevant provision dealing with the lodgement of caveats. The reasoning in those cases says nothing about the ability to grant a mortgage or charge over a lot in an unregistered strata plan, which I do not regard as “real property”. In my view, the so-called Mortgaged Property in the MVLC Loan Agreement did not create any mortgage or charge over any real property, or any of the other kinds of assets as set out in cl 20.4.
Having regard to the authorities above, I find that the Non-Rescinding Purchasers do not presently have an equitable interest in the Property sufficient to compete in a priority fight with Castle Group’s undisputed equitable interest in the Property. The rights of the Non-Rescinding Purchasers may more accurately be described as in personam rights or “mere equities”. So much emerges from the decision of Einstein J in Westpac Banking Corporation v Ollis [2008] NSWSC 824.
At [33] Einstein J set out the traditional view that “an equity regarding the purchase of a respective lot in a subdivision only becomes a proprietary interest when it attaches to an identifiable lot”. In the present case, this would not occur unless and until the plan of subdivision is registered. More importantly, on the question of priorities, Einstein J stated at [73]–[77] (emphasis added):
[73] The exact dividing line between a proprietary interest that is a “mere equity” and a full equitable estate in land has not been settled in the authorities: see Mills v Ruthol Pty Ltd [2002] NSWSC 294 at [121] & [125] per Palmer J. None of the justices in Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq*)* (1965) 113 CLR 265 attempted to give an authoritative definition of either category of interest: see Double Bay Newspapers Pty Ltd v AW Holdings Pty Ltd (1996) 42 NSWLR 409 at 425 per Bryson J. In that case, Bryson J drew the following conclusion from Latec Investments:
“… a mere equity, meaning a claim to have an equitable interest which can only be enforced by succeeding in some claim to a court for equitable relief (such as a claim for rectification, a claim to set aside a conveyance obtained by fraud or (as I think) a claim the enforcement of which depends on the doctrine of part performance) does not participate in competitions of priorities with equitable interests which have been acquired in good faith, for valuable consideration and in a manner which can be clearly shown without obtaining any decision of the court upholding them.”
[74] Latec Investments shows clearly that an equity which requires the assistance of a court if it is to be established at all does not enter into a competition of priorities with an equitable interest which was obtained for value and without notice of it.
[75] In Mills v Ruthol Pty Ltd [2002] NSWSC 294 at [131], Palmer J stated that the basic principle in the following way:
“…where the holder of a prior equitable interest needs the assistance of the equity court to perfect his or her title to it, that equitable interest will be defeated if, before the title is perfected, a third party takes an equitable interest for value without notice”.
[76] Although his Honour was reversed on appeal, the Court of Appeal assumed (without deciding) the correctness of this statement or principle: Ruthol Pty Ltd v Mills [2003] NSWCA 56 at [87] per Sheller JA (Meagher JA & Cripps AJA agreeing).
[77] The critical difference, then, is between an “equity” – an in personam right in equity – which requires the intervention of the court to flower into a full equitable estate, and an equitable interest which does not because it already consists of such estate. As the Court of Appeal has unanimously held in Evans v European Bank Ltd at [113] – [115] (extracted above), it is clear that the charge in the present case falls into the latter category: the charge arose as soon as the stolen funds were wrongfully converted.
Against the possibility that I am wrong in relation to Castle Group’s primary argument, I turn now to consider the first fallback argument which hinges on the proper construction of the pre-sale contracts.
The essence of Castle Group’s contention in this regard is that the Non-Rescinding Purchasers no longer have a “contingent interest” or “protective injunctive right” against MH Affordable Homes in circumstances where the Sunset Date under the pre-sale contracts has passed and cannot be extended. The lapsing of the Sunset Date and the maximum time by which it could be extended means that it is impossible for the pre-sale contracts to progress to completion.
MH Affordable Homes and the Non-Rescinding Purchasers disputed this analysis and contended that, properly analysed, the pre-sale contracts remain on foot, although each of the parties has a right to rescind, excepting that in the case of MH Affordable Homes (as vendor) it would need to seek Court approval under s 66ZS of the Conveyancing Act.
There was no factual dispute – it was accepted that the date to which the Sunset Date could be extended had passed.
The question is one of construction. The relevant principles were not in dispute.
Three core principles emerge from what French CJ, Hayne, Crennan and Kiefel JJ said in Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35]:
The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean.
That requires consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. That, in turn, is facilitated by an understanding of the genesis of the transaction, the background, the context and the market in which the parties are operating.
Unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption that the parties intended to produce a commercial result. The contract is to be construed so as to avoid it making commercial nonsense or working commercial inconvenience.
Notwithstanding these three core principles, as French CJ, Nettle and Gordon JJ stated in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [48], “[o]rdinarily this process of construction is possible by reference to the contract alone”.
As Allsop P observed in Onesteel Manufacturing Pty Ltd v Bluescope Steel (AIS) Pty Ltd (2013) 85 NSWLR 1; [2013] NSWCA 27 at [61], the analysis is an objective one that can produce only one true meaning. The process of construction is not a process necessarily concluded by logical reason or a priori analysis. It involves the weighing of differing considerations partly logical and partly intuitive (though rational) leading to a choice. Analysis of competing arguments assists in that process, but the “correct” answer is not arrived at merely by seeing which side has the greater number of “good” points.
…The process of working through the consequences of the competing literal or grammatical meanings enables a court to assess whether either party’s preferred legal meaning gives rise to a result that is more or less internally consistent and avoids commercial absurdity.
(see also Zhang v ROC at [80]-[87]).
I have set out the relevant terms of the pre-sale contracts above.
I do not accept the contentions advanced by Castle Group in this regard.
Whilst clause 34.1 (35.1 in some contracts) clearly states that completion is subject to and conditional on registration of the deposited plan “by the sunset date”, that clause is not to be read in isolation. Importantly, clause 34.4 (clause 35.4 in some contracts), clearly suggests, in my view, that the contract is not at an end if registration of the deposited plan does not occur by the Sunset Date. This emerges most clearly from the words “at any time prior to registration of the Deposited Plan” in clause 34.4. Those words would be completely otiose if there were no ongoing obligations after the Sunset Date.
The definition of Completion Date is also not tied to the Sunset Date but rather, to the registration of the deposited plan. This reinforces what, in my view, is plain from the ordinary meaning of the words in cl. 34.4.
Having regard to the relevant provisions of the pre-sale contracts, a reasonable person in the position of the parties, would not regard the contractual obligations as at an end if the deposited plan is not registered by the Sunset Date, but rather would regard each party, after the Sunset Date, as having a right to rescind prior to the deposited plan being registered. Once the deposited plan is registered, the right to rescind is lost. The contract should be completed.
I accept that such a construction may result in the pre-sale contracts remaining on foot for a considerable period of time. The present case is a prime example of that. I do not regard such an outcome as absurd so as to commend the alternate construction pressed by Castle Group. Each of the parties to the pre-sale contract is able to bring it to an end, prior to the registration of the deposited plan. True it is in the case of MH Affordable Homes as vendor that this is subject to Court approval under s 66ZS of the Conveyancing Act, but the right still exists.
In light of this conclusion, I do not need to consider the alternate contention advanced by the Non-Rescinding Purchasers in this regard that, assuming the construction advanced by Castle Group to be correct, the parties should nonetheless be taken to have agreed, by their conduct to keep each of the pre-sale contracts on foot. This would involve difficult factual issues, including construing what is in fact conveyed by the 15 May 2025 letter from MH Affordable Homes. I doubt also whether the Court has sufficient evidence before it to enable a conclusion to be reached in relation to each of the Non-Rescinding Purchasers. I only have before me some brief evidence in relation to one of the Non-Rescinding Purchasers.
In light of the conclusion I have reached above to the effect that the Non-Rescinding Purchasers do not have an equitable interest in the Property sufficient to compete with the interest of Castle Group, it is strictly unnecessary for me to consider the priorities question, which obviously proceeds on the Non-Rescinding Purchasers having an equitable interest in the Property.
Against the possibility that I am wrong in relation to my primary conclusion above, I now deal with the priorities question.
At general law in determining priority between competing equitable interests, it is traditional to begin with the maxim “qui prior est tempore potior est jure” – the first in time has the better right: see Brendan Edgeworth, Butt*’*s Land Law (7th ed, 2017, Thomson Reuters) at [12.1160] 912.
The modern view, however, is not to apply this maxim mechanically, but rather to adopt a more general and flexible approach giving preference to what is a better equity in an examination of relevant circumstances: see Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326; [1983] HCA 30 at 339 and 341 per Mason and Deane JJ. The authorities were comprehensively analysed by Gleeson JA (with whom Bathurst CJ and Ward JA agreed) in IWC Industrial Pty Ltd v Sergienko (2021) 20 BPR 41,785; [2021] NSWCA 292 at [62]ff.
As Ward JA (with whom McColl and Gleeson JJA agreed) observed in Linfield at [253], the approach of the joint judgment of Mason and Deane JJ confirms the longstanding position of courts of equity that all the circumstances must be taken into account and that strict, technical rules are inappropriate in this context.
At [233] in Lindfield Ward JA stated:
[233] In the leading case of Rice v Rice, Kindersley VC, having said (at 648) that what is meant by saying that one party has the better equity than another is only that “according to those principles of right and justice which a Court of Equity recognises and acts upon, it will prefer A to B, and will interfere to enforce the rights of A as against B”, went on to emphasise that, in looking for the “better equity” a court will look to:
… the nature and condition of their respective equitable interests, the circumstances and manner of their acquisition, and the whole conduct of each party with respect thereto. And in examining into these points it must apply the test, not of any technical rule or any rule of partial application, but the same broad principles of right and justice which a Court of Equity applies universally in deciding upon contested rights. [my emphasis]
It is also clear that if a later equitable interest-holder has notice of the earlier interest, he or she cannot prevail over the earlier interest. As set out above, this has no application here.
In searching for who has the better equity, the critical feature in the present case is, in my view, the failure of the Non-Rescinding Purchasers to place caveats on the title to the Property. Whilst I accept that the inquiry is to consider all relevant circumstances, this, in my view is the decisive one.
It is no answer in my view, for the Non-Rescinding Purchasers to rely on cl. 45 of the pre-sale contracts – which prohibited them from placing caveats on title – in circumstances where they agreed to such a clause. It is the agreement to the clause in the first place that constitutes the postponing conduct. It does not then lie in the mouth of the purchaser to rely on a clause the purchaser agreed to, as a reason for not lodging a caveat.
It is clear that, as one would expect, title searches were carried out prior to Castle Group entering into the Contract. A copy of a title search, dated in August 2024 is included in the Contract. It is no answer, in my view, for the Non-Rescinding Purchasers to point to the absence of any later title search. Had the Non-Rescinding Purchasers placed caveats on title at the time of their relevant contracts they would have shown up in the August 2024 title search.
In these circumstances, had the case come down to a true priorities fight, I would have held that the Non-Rescinding Purchasers engaged in postponing conduct such that they lost the priority which they had by being first in time.
MH Affordable Homes and the Non-Rescinding Purchasers contended that if, as I have found, Castle Group has otherwise established that it takes priority over any interest of the Non-Rescinding Purchasers, the Court should, nonetheless, in the exercise of its discretion, refuse to order specific performance.
Two bases were advanced in this regard.
First, counsel for the Non-Rescinding Purchasers raised, for the first time in closing submissions, that Castle Group had not satisfied its onus of demonstrating that it was ready, willing and able to complete.
Second, both MH Affordable Homes and the Non-Rescinding Purchasers contended that specific performance should not be ordered because to do so would cause hardship on third parties to the Contract – namely the Non-Rescinding Purchasers, and in any event, damages would be an adequate remedy.
I deal with each of these arguments in turn. Neither is persuasive.
First, it is clear that in order to obtain an order for specific performance, a plaintiff must satisfy the Court that the plaintiff is ready, willing and able to complete. I recently analysed what is required in this regard in Tran v Bakour [2025] NSWSC 101 at [85]–[86] (Tran v Bakour), by reference to the decision of Brereton J in Carydis v Merrag Pty Ltd (2007) 13 BPR 24,773; [2007] NSWSC 1220 (Carydis) at [33]–[38].
What is required is that the Court be persuaded on balance that the purchaser wishes, intends and in substance has the ability to complete.
In the present case, Mr Perera of Castle Group gave uncontradicted evidence of Castle Group’s readiness, willingness and ability to complete. There is also evidence, introduced by the Non-Rescinding Purchasers themselves, of the fact that Castle Group is a significant developer in the Western Sydney region.
I am persuaded, on all of the evidence, that Castle Group wishes, intends and in substance has the ability to complete. Had I not been so satisfied, I would have adopted the course referred to in the cases, including Carydis, of requiring completion by a particular date, with liberty to relist the matter if completion does not occur, so that an order for rescission of the relevant contract could be made.
In relation to the question of hardship, counsel for MH Affordable Homes relied on the decision of the High Court in Gall v Mitchell (1924) 35 CLR 222; [1924] HCA 48, and in particular the passage from the judgment of Isaacs J at 228, quoting from Wedgwood v Adams (1843) 6 Beav. 600 at 605:
I conceive the doctrine of Court to be this, that the Court exercises a discretion, in cases of specific performance and directs a specific performance unless it should be what is called highly unreasonable to do so. What is more or less reasonable, is not a thing that you can define, it must depend on the circumstances of each particular case.
Hardships of third persons entirely unconnected with the property are immaterial. But I do not think that rule excludes the case of third persons so connected with the defendant that, by reason of some legal or moral duty which he owes them, it would be “highly unreasonable” for the court actively to prevent the defendant from discharging his duty.
As I understood the argument, ordering specific performance would impose hardship on the Non-Rescinding Purchasers in that they would no longer receive the property which they contracted to buy, being, in the case of at least one of them, a property which they intended to live in.
I also recently analysed in Tran v Bakour the hardship principle in relation to specific performance. This was in the context of hardship allegedly suffered by one party to the contract, as opposed to third parties in the present case.
I only have evidence from one of the Non-Rescinding Purchasers. This is perhaps explicable by the fact that the proceedings were commenced and then brought on for hearing on an urgent basis. I would of course infer from the fact that they do not wish to rescind, that each of the Non-Rescinding Purchasers wish to acquire the land they agreed to buy under their contracts. I would not infer, however, that each also had a particular attraction to the land they contracted to buy or a desire to live there.
I am not satisfied in the circumstances that any hardship suffered by any Non-Rescinding Purchasers provides a basis for specific performance to be refused. The evidence in this regard was quite scant. As set out above, all there was is evidence from one of the Non-Rescinding Purchasers to the effect that of the two lots that had been acquired they intended to live in one of them.
The extent of any hardship must also be considered in the context of the present circumstances – including that the Non-Rescinding Purchasers entered into their contracts at least five, and up to eight, years ago. It is presently quite unclear if, and even then, when, any development will in fact occur. Further, each of the Non-Rescinding Purchasers will be entitled to a refund of the moneys paid by them to MH Affordable Homes. It was not in dispute that the surplus proceeds from completion of the Contract after payment out of the first mortgagee, are to be paid into Court so as to enable the Non-Rescinding Purchasers to seek refund of the moneys that they have paid. Given the likely payout figure for the first mortgagee and the fact that the Rescinding Purchasers have already been paid by MH Affordable Homes, it did not appear to be in dispute that the moneys likely to be paid into Court would be sufficient to enable the Non-Rescinding Purchasers to be refunded in full. Those purchasers may also have a damages claim against MH Affordable Homes.
Turning now to the adequacy of damages, it appeared to be common ground between the parties that a contract for the sale of land is ordinarily one that is considered a proper subject of specific performance, because damages at law would generally be an inadequate remedy where no two pieces of land are identical. Of the many authorities, see Dougan v Ley (1946) 71 CLR 142; [1946] HCA 3 at 150 per Dixon J.
Ordinarily, if a party can establish that it has a prima facie case that it has an enforceable contract for the sale of land, that will be enough for there to be a prima facie case for an order for specific performance, land being of a sufficiently unique character such as to make damages an inadequate remedy, even in the case of land purchased as part of the business of a property developer.
Against this, the Non-Rescinding Purchasers and MH Affordable Homes placed reliance on the comment made by Campbell J in Rofiza Pty Ltd v Gangley Pty Ltd [2002] NSWSC 986 where his Honour went no further than saying that there was some “force in the submission” that land bought by a developer as “trading stock might lack the unique associations” that justify an order for specific performance.
I am not satisfied that the fact that Castle Group is a developer, obviously developing the Property with a view to seeking to make a profit, provides a reason for the Court to refuse to order specific performance.
Accordingly, I am satisfied that Castle Group’s claim for specific performance succeeds and orders for specific performance, and the other machinery orders agreed between the parties, should be made.
At the request of the parties, I will not consider the question of costs, but will make directions for the parties to seek to agree costs, failing which I will make directions when the matter is back before me for the issue to be dealt with on the papers. The proceedings otherwise need to be listed for directions in relation to payment out of moneys that will be paid into Court, and for the claims in the cross summons reserved for later determination to be progressed.
The orders of the Court are:
Declare that the Plaintiff is entitled to have the following agreements specifically performed and carried into effect:
(a) the Contract for the Sale and Purchase of Land at X Boyd Street, Austral NSW 2179 (the Property) dated 11 October 2024, between the Plaintiff as purchaser and the First Defendant as vendor (as varied by the Deed of Variation dated 7 November 2024); and (b) the document titled “Settlement Incentive Deed” dated 7 November 2024 between the Plaintiff as purchaser and the First Defendant as vendor, (the Transaction Agreements).
(a) the Transaction Agreements be specifically performed and carried into effect under the supervision of the Court; and (b) in furtherance of order 2(a) above, the First Defendant execute all such instruments and do all such things as are necessary to specifically perform and carry into effect the Transaction Agreements.
(a) the First Defendant, by a solicitor or other member of PEXA, accept the Plaintiff’s invitation to the PEXA Workspace; (b) the First Defendant complete the sale of the Property in the PEXA Workspace by not later than 4pm on 5 June 2025 (Settlement Date), in accordance with the Transaction Agreements; (c) the Plaintiff submit the Settlement Adjustment Statement (as defined in cl 4 of the Settlement Incentive Deed dated 7 November 2024) to the First Defendant’s solicitor two business days prior to the Settlement Date; (d) the First Defendant confirm the Settlement Adjustment Statement one business day prior to the Settlement Date; (e) the First Defendant do all things necessary in the PEXA Workspace to ensure completion can occur on the Settlement Date; (f) the First Defendant do all things necessary in the PEXA Workspace to ensure completion can occur on the Settlement Date; (g) the Plaintiff pay the balance of the monies due under the Transaction Agreements at the Settlement Date (taking into account the Settlement Incentive Amount as defined in cl 4 of the Settlement Incentive Deed, to be allowed to the Plaintiff by way of a settlement reduction at the time of completion in accordance with cl 1.2 of that Deed), that would otherwise be payable to the First Defendant, to the trust account maintained by the solicitors for the Plaintiff in return for the First Defendant conveying title to the Property to the Plaintiff through PEXA; and (h) upon receipt of the funds into trust referred to in 3(g) above, the solicitors for the Plaintiff are to pay those funds into Court, such funds to be held pending determination of the respective entitlements (if any) of the Defendants.
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Annexure A: Pre-Sale Contract Details
| Defendant(s) | Purchaser(s) | Position | Caveat | Contract Date | Lot | Amount paid | Sunset Date | Maximum extension | | 2nd, 3rd | Mohamad Ausif Niyasudeen & Nasreen Banu Ansar | Rescinding | | 12 Oct 2017 | 159 | $275,800 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 4th | Mohsin Abdulrajjak Malek | Not rescinding | 19 – AV65577 | 5 Dec 2017 | 160 | $191,900 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 5th, 6th, 7th | Ali Hussein, Jamila Subedhar & Ali & Jamila Super Pty Ltd atf Super A & J | Not rescinding | | 20 Oct 2017 | 117 | $235,150 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 8th | Insiya Hussain | Not rescinding | 17 – AV61406 | 18 Oct 2018 | 115 | $171,550 | 20 Apr 2022 (cl 32.1) | 12 months / 21 Apr 2023 (cl 35) | | 9th | Hamza Majeed | Unknown | | 5 Dec 2017 | 119 | $334,100 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 10th | Rana El-Halabi | Not rescinding | 15 - AV61397 | 18 Oct 2017 | 130 | $347,900 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 10th | Rana El-Halabi | Not rescinding | 12 – AV57700 | 16 Feb 2020 | 137 | $340,000 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 36) | | 11th, 12th | Md Firoz Alam & Faria Tasnim Alam | Not rescinding | | 12 Oct 2017 | 120 | $217,500 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 13th, 14th | Mahmoud Halloum & Sana Halloum | Rescinding | 9 – AV56225 | 19 Jan 2018 | 135 | $169,800 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 15th | Hayssam Zreika | Not rescinding | | 18 Oct 2018 | 138 | $323,000 | 20 Apr 2022 (cl 32.1) | 12 months / 21 Apr 2023 (cl 35) | | 16th, 17th | Mohammad Abdul Gofur & Shammi Abdul Gofur | Not rescinding | | 24 Aug 2017 | 147 | $259,950 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 18th, 19th | Md Mazharul Islam & Samia Nasrin | Not rescinding | | 21 Oct 2019 | 157 | $222,700 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 20th, 21st | Mohammad Masum Zaman & Mahmuda Akter | Not rescinding | | 21 Oct 2019 | 158 | $187,800 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 22nd | Tahmidul Momin | Not rescinding | | 21 Oct 2019 | 166 | $245,000 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 23rd, 24th | Hashmi Gulam Mohammed & Quatija Saba Fatima | Not rescinding | 22 - AV53915 | 5 May 2020 | 171 | $284,100 | 20 Apr 2022 (cl 33.1) | 24 months / 20 Apr 2024 (cl 36) | | 25th, 26th | A B M Abeed Noor & Rubya Tasmin Noor | Not rescinding | | 19 July 2018 | 173 | $179,000 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 27th, 28th | Mohamed Heebatulla Mohamed Hashim & Siriyathul Kairiya Ahamed Sally | Rescinding | 16 – AV61399 | 6 Nov 2018 | 181 | $229,340 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 29th, 30th | Alaa Awwad & Dania Abu Jaradeh | Rescinding | 13 – AV56929 | 5 June 2018 | 174 | $260,250 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 31st | Jalil-Ur-Rehman | Rescinding | 20 – AV76805 | 19 July 2018 | 154 | $330,000 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 32nd, 33rd | Aaron Jay Lashmore & Kamar Beyrouti as Trustees for Aaron Kamar Super Fund ABN 26 893 355 88 | Not rescinding | | 6 Feb 2018 | 156 | $172,000 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 34th, 35th | Azadul Alam as the Trustee for Alam and Afroza Super Fund & Afroza Alam as the Trustee for Alam and Afroza Super Fund (ABN 47 995 733 668) | Not Rescinding Rescinding | 23 - AV85904 | 6 Feb 2018 | 164 | $158,000 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 36th | Jenaya Wedrat | Not rescinding | | 28 Nov 2018 | 165 | $183,700 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 37th | Ayman Super Pty Ltd ACN 623 335 53 atf The Trustee for Ayman Latif Super Fund | Not rescinding | 11 – AV56927 | 2 Feb 2018 | 169 | $174,000 | 20 Apr 2022 (cl 32.1) | 12 months / 21 Apr 2023 (cl 35) | | 38th | Bassam El Jawad | Unknown | | 19 July 2018 | 167 | $343,000 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 39th | Jasmine Mustafa | Rescinding | 10 – AV56143 | 5 Dec 2017 | 172 | $155,800 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 40th, 41st | Mohammad Farache & Mahassen Farache | Rescinding | 21 – AV77421 | 12 Oct 2017 | 176 | $299,000 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 42nd | Helal Nachar | Not rescinding | | 20 Oct 2017 | 183 | $318,000 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 43rd | Ahmad Abdullah Pty Ltd as trustee for Gulshan Superfund | Not rescinding | 14 – AV61383 | 20 July 2017 | 178 | $272,000 | 20 Apr 2022 (cl 32.1) | 24 months / 20 Apr 2024 (cl 35) | | 44th | Rozina Ashraf | Not Rescinding | | Unknown | 129 | $146,700 | Unknown (MH cannot locate contract) | | 45th, 46th | Mehdi Benkabbour and Danielle Mariea | Rescinding | 18 – AV64900 | 1 Sept 2017 | 170 | $182,590 | Unknown (MH cannot locate contract) |
1128 CG Pty Ltd (ACN 662 166 645) as trustee for the 1128 CG Unit Trust
MH Affordable Homes on Kelly Pty Ltd
(1967) 116 CLR 344
(1946) 71 CLR 142
(2014) 251 CLR 640
(2001) 51 NSWLR 486
(1924) 35 CLR 222
(1983) 154 CLR 326
(1992) 27 NSWLR 140
(2015) 256 CLR 104
(2013) 85 NSWLR 1
(1964) 180 CLR 146
(2016) 93 NSWLR 561
(2004) 218 CLR 530
(1964) 114 CLR 656
(1960) 105 CLR 521
(1995) 36 NSWLR 510
(2012) 45 WAR 29
(1986) 5 NSWLR 309
(1965) 113 CLR 265
(1996) 42 NSWLR 409
The hearing of the proceedings was due to commence on 27 May 2025, but at the commencement of the hearing the parties requested, by consent, that the hearing commence on 28 May 2025 to allow disclosure to be given by Castle Group and MH Affordable Homes on the issue of whether Castle Group had any notice, actual or constructive, of the pre-sale contracts.
The hearing proceeded on 28 May 2025. At the commencement of the hearing, I made orders by consent:
Further, the Non-Rescinding Purchasers have an equitable interest in the Property, capable of protection by an injunction restraining the vendor from dealing with the land inconsistently with the purchaser’s right to specific performance of the Contract.
It was thus contended that both the Non-Rescinding Purchasers and Castle Group have an equitable interest in the Property as purchasers under exchanged contracts.
In those circumstances, it was contended that the Non-Rescinding Purchasers prior equitable interest has priority over that of Castle Group, and there was no postponing conduct in the mere failure to lodge a caveat, particularly where cl. 45 of the sale contracts expressly prevented the Non-Rescinding Purchasers from doing so.
As Leeming JA observed in Zhang v ROC Services (NSW) Pty Ltd (2016) 93 NSWLR 561; [2016] NSWCA 370 (Zhang v ROC) at [53], the starting point is to determine the literal or grammatical meaning or meanings of the clause. Second, one determines the legal meaning of the clause. Whereas here, there are several clauses of the agreement to be construed, it is clear that every provision must be read, together and construed with the others, so as to render, as far as possible, the provisions harmonious with each other: see Herzfeld and Prince, Interpretation (3rd ed, 2024, Thomson Reuters) at [22.30] and the cases cited therein. This is with a view to the legal meaning reflecting a measure of internal coherence: see HP Mercantile Pty Ltd v Hartnett [2016] NSWCA 342 (HP Mercantile) at [134] per Leeming JA.
Where there is more than one available legal meaning, a court looks at the text, context and purpose with a view to determining which potential meaning best accords with those considerations. An iterative process is called for – checking each of the rival meanings against the other provisions of the document and investigating its commercial consequences.
As Leeming JA further observed in HP Mercantile at [134]:
Castle Group also placed reliance on the seriously considered dicta of Barwick CJ (with whom Kitto and Windeyer JJ agreed) in Pianta v National Finance & Trustees Ltd (1964) 180 CLR 146; [1964] HCA 61 (Pianta), where Barwick CJ said that the proposition that damages are an adequate remedy for a developer such as Castle Group is “without foundation in law, even if the respondent had had no other business than that of subdividing and selling land and had made a decision to subdivide and sell the subject land”.
Reliance was also placed on the following observation of M Osborne J, by reference to Pianta in Wright v Insert Pty Ltd [2022] VSC 1 at [89]: