Al-Jaradat v Ghunmat

Decision date: 30 October 2025

Jurisdiction: Equity - Duty List

Before: Slattery J

Decision: See paragraph [40]

Catchwords: LAND LAW — Caveats — Removal of caveat – plaintiff’s application to remove defendant’s caveat – where the parties have settled family law proceedings – where the form of the caveat insufficiently describes defendant’s interest in the property – where the defendant allegedly filed the caveat by reason of the plaintiff’s default of the family law settlement orders - where both parties are in breach of the settlement agreement – relief granted to the plaintiff, conditional on the defendant having the opportunity to challenge allegations against the plaintiff about undervaluing the property.

Legislation Cited: Real Property Act 1900, ss 74K(2), 74L
Real Property Regulations 2019

Cases Cited: ATF Group Pty Limited v Melek [2023] NSWSC 333
Brose v Slade [2022] NSWSC 1785
Comserv (No 210) Proprietary Limited v Ristevski [2022] NSWSC 821
Rahman v Rahman [2025] NSWCA 219
Sutherland v Vale [2008] NSWSC 759
Woodsman Pty Ltd v Jozic [2018] NSWSC 1311

Texts Cited: Nil

Category: Procedural rulings

Parties: Plaintiff: Ahlam Nayef Mahmoud Al-Jaradat
Defendant: Laith Mohammad Othman Ghunmat

Representation: Counsel:
Plaintiff: G Edwards
Defendant: M Mando
Solicitors:
Plaintiff: Sterling Legal
Defendant: (direct brief)

File Number(s): 2025/406635

Publication restriction: Nil

EX TEMPORE JUDGMENT

1. The plaintiff and the defendant in these proceedings are, respectively, the wife, Ahlam Mayef Mahmoud Al Jaradat, and the husband, Laith Mohammad Othman Ghunmat, in certain family law proceedings. The proceedings come to this Court by way of a Summons seeking the removal of a caveat from one of the properties owned by the marital couple, a property in Strathfield ("the Strathfield property").

2. The husband and the wife agreed to resolve their differences in relation to their marital property by way of a settlement agreement on 15 April 2025 ("the settlement agreement"), disposing of all remaining issues between them under Family Law Act 1975 (Cth), s 79. A dispute has now broken out between them about the implementation of the settlement agreement, which led to the husband lodging caveat number AT501608 over the Strathfield property on 9 October 2025. The wife now applies for its removal, so that a sale transaction can take place.

3. Some background is required. The proceedings came on for hearing yesterday afternoon at about 4pm in the Equity (Duty) List. Ms G Edwards of counsel appears for the wife, instructed by Sterling Legal and Mr M Mando of counsel for the husband, by a direct access brief. The Court has been much assisted by the legal representatives on both sides.

4. Although this case presents as a contest about a caveat, as will be seen, the Court is attempting to take a broader view to try to reduce further conflicts between the parties. The Court has been told that the family law proceedings other than the caveat issues have been relisted for urgent hearing this afternoon of any remaining family law issues before Anderson J in the Federal Circuit and Family Court of Australia, Division 1. As this Court has heard and considered the contest, it is useful for the Court to set out its reasons for decision to better inform and assist the Family Court.

5. This Court is exercising a well-established jurisdiction in relation to the removal of caveats. The availability of that jurisdiction, even if it overlaps with jurisdiction under the Family Law Act 1975 (Cth), was recently discussed by the Court of Appeal in Rahman v Rahman [2025] NSWCA 219.

Recent events between the parties

6. As indicated, the settlement agreement was made on 15 April 2025. That agreement provided for the parties to dispose of all their mutually held property. The husband and the wife also jointly conducted a childcare business. They owned two residential properties at the time of their separation: one at Yagoona ("the Yagoona property"); and the Strathfield property.

7. The settlement agreement provides for: the payment to the wife of a settlement sum of $7.4 million by 16 June 2025 (cl 1), and simultaneously, the settlement agreement provided for the transfer of the Strathfield property, which is held in the name of the wife, to the husband; the transfer of the Yagoona property to the husband; the transfer of the wife's shareholding in the childcare centre to the husband; the resignation of the wife from various companies associated with the childcare centre and the husband; and various other implementation provisions to support those transfers (cl 2).

8. The settlement agreement provides for the parties to retain their other existing property (cll 6 and 7). Special mechanisms are provided for the transfer of the childcare centres to the husband (cll 9 to 14). All of these transfers were scheduled to take place by 16 June 2025 under the settlement agreement. The settlement agreement was not adhered to perfectly by either side. The husband defaulted in paying the settlement sum on 16 June 2025. The wife's transfer of her interests in the childcare centres and the Yagoona property, although now complete, did not occur on the appointed date either, but have now been completed.

9. Between July and October 2025, correspondence took place between the wife and the husband concerning a default provision in the settlement agreement, cl 15, which provides as follows:

Default sale provisions

Strathfield Property

15 That in default of payment of the Settlement Sum by the Respondent, the parties shall do all acts and things and sign all necessary documents to effect the sale of the Strathfield Property as follows:

a. The Strathfield Property shall be listed for sale with such real estate agent as is agreed between the parties, and failing agreement within 14 days from the date of these Orders, the Respondent will nominate three real estate agents and the Applicant will select one within 7 days thereafter, with the nomination and selection to be made in writing;

b. The list price of the property shall be such amount as is agreed between the parties and failing agreement within 14 days of the date of default, the list price will be as nominated by the real estate agent;

c. The parties are to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer;

d. the proceeds of sale of the property shall be paid in the following manner and priority:

i. To discharge the mortgage to Bank.

ii. Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale.

iii. Payment of the legal costs relating to the sale.

iv. Payment of any amount remaining to the Applicant of the Settlement Sum; and

v. The balance to the Respondent.

10. Clause 15 provided a sound, well thought out and reasonable mechanism for the parties to resolve any default in the performance of the settlement agreement. Further default provisions in clause 16 allow for the auction of the Strathfield property. What has occurred since 16 June, regrettably, has not conformed with the cl 15 mechanism. The correspondence that the Court has been shown need not be detailed. But in summary, once the wife performed her obligations under the settlement agreement she began, understandably, to demand the husband perform his side of the agreement by paying the $7.4 million.

11. He did not. She informed him that she was going to sell the Strathfield property. Unfortunately, however, she did not take steps to sell the Strathfield property in accordance with cl 15. The husband was in default of his obligations under cl 1. But the steps that the wife has taken to sell the Strathfield property, which will be detailed below, were also in breach of the settlement agreement.

12. The wife did not consult with and seek the agreement of the husband on the various points which cl 15 requires. She did not attempt to agree with the husband upon a real estate agent for the parties; to seek the husband's nomination of three agents; to select one of those three agents; to list the property at an amount agreed with the husband; and, in the default of agreement, to accept the listing price nominated by a real estate agent. What the wife appears to have done is to engage an agent to sell the property directly, without involving the husband. This has led to conflict.

13. The parties separated in 2023, in unhappy circumstances in which the wife was required to take out an Apprehended Violence Order against the husband. The wife initially moved into the Strathfield property. But by 17 April 2025 she was able to purchase, for a price of $3.8 million, a property in Roselands for herself and the couple's children to live in. She moved into that property on 11 June 2025, under license from the vendor. Settlement of the purchase of the Roselands property in her name was scheduled for 17 October 2025. Settlement did not take place on that date, and the vendor issued a notice to complete on 21 October 2025.

14. That notice to complete expires in eight days' time, on Friday, 7 November 2025. The plaintiff has paid a deposit of $330,000, which is at risk of being forfeited if she does not complete that contract. The wife has arranged her finances so that she can sell the Strathfield property and use the proceeds of sale to assist her in completing the purchase of the Roselands property. The wife has now commenced her own childcare business. In May 2025 she acquired a new business in Roselands.

15. The wife has taken steps to effect the sale of the Strathfield property. The parties are fortunate in that the Strathfield property is not subject to a mortgage to any financial institution. The plaintiff has not yet entered into a binding contract for sale for the Strathfield property but the Court is told that once signed, it could settle early next week.

16. Not all the circumstances are before the Court as to all the steps taken by the wife in relation to the proposed sale of the Strathfield property. But the following can be said: she engaged an agent, a sale contract has been issued, a potential purchaser has been identified who is prepared to sign a contract for sale so soon as the subject caveat has been removed, the purchase price is said to be $6 million. The Court has been told, from the bar table, that the wife obtained advice from a real estate agent that the range of current market values for the Strathfield property is in the range $5.9 - $6.3 million and therefore the sale price is within that market range.

17. The Strathfield property was not publicly marketed. There was no proposal to auction it, another option available under cl 16 of the settlement agreement. The Court has not seen the wife’s valuations, nor has the husband. There is a suggestion that the purchaser is a real estate agent, presumably one known to the agent who was engaged to sell the property. Such a possible association between the agent for the vendor and the purchaser raises a question as to whether the sale was at market value. The wife asserts that it is. The husband has doubts.

18. The Court cannot answer that question on the available evidence. But it is foreseeable that the husband will contend at some future time on the basis of a reasonably arguable case that the wife has breached cl 15 of the settlement agreement - not withstanding his breach – by selling the property at an undervalue. None of these things are being determined now. But the issues are being identified.

19. The wife has obtained bridging finance for the purchase of the Roselands property. This will not be needed for an extensive period if the Strathfield property is sold. The Strathfield property can be exchanged and completed, the Court is told, in time to realise sufficient funds to meet the wife's obligations to complete the Roselands contract. The bridging finance will not be necessary for very long in those circumstances. But should the sale of the Strathfield property not go ahead, the bridging financier proposes to take a charge over the Strathfield property and would record a caveat on it to secure its bridging finance. Whether that is a breach of the settlement agreement the Court will not inquire. The wife's conduct in obtaining finance on that basis certainly raises that question. Not one which the Court has explored.

20. The parties face the following dilemma: if the Court does not remove the caveat, the wife will almost certainly not be able to complete the sale of the Roselands property because she will not have the funds available from the Strathfield property. Upon default on that contract, she will lose a valuable deposit.

21. On the other hand, if the Court lifts the caveat, then as matters are presently structured, she would propose to sell the Strathfield property. If that sale is at undervalue, the loser from the undervalue will be the husband who is entitled under the settlement agreement to any proceeds of sale over and above $7.4 million. Both of these outcomes are undesirable and involve financial risk for each party. The Court would endeavour to avoid that risk. The Court will now turn to the substance of the caveat.

22. The caveat filed on 9 October claims an interest in the Strathfield property as follows:

Estate in Fee Simple

By virtue of: Agreement

Between LAITH MOHAMMAD OTHMAN GHUNMAT

And AHLAM NAYEF MAHOUD AL-JARADAT

Details supporting the claim: Equitable interest; Registered Proprietor holding 50% share on trust for caveator as agreed at time of purchase.

23. The wife contends that this caveat is defective. The husband contends that it is valid. Without reciting both parties' submissions, the relevant submissions will appear sufficiently from the Court's analysis of this contest. In the Court's view, the caveat is defective in form and should be removed.

24. The applicable legal principles are well-established. Where removal of a caveat is sought and a counter-claim for its extension is made, the Court must be satisfied under Real Property Act 1900*,* s 74K(2) that "the caveator's claim has or may have substance". If the Court is not so satisfied, then the Court must dismiss the application for extension of the caveat: Sutherland v Vale [2008] NSWSC 759 at [10]-[12].

25. A central concept of the Real Property Act and regulations is that "the nature of the estate or interest claimed" by the caveator under the Real Property Regulations must be fully and precisely articulated, as was explained by Brereton J in Sutherland v Vale at [12]:

12 The starting point, however, is to consider whether or not this caveat has or may have substance. In order to judge that, it is necessary to turn first to the caveat itself and the claim stated in it. As I have recorded, that claim is for merely "an equitable interest". In Hanson Construction Materials Pty Ltd v Vimwise Civil Engineering Pty Ltd [2005] NSWSC 880; (2006) NSW ConvR ¶56-137, Campbell J explained why a caveat which claimed merely "an equitable interest" was insufficient to specify the interest claimed by the caveator as required by the relevant provisions of the Real Property Act and (NSW) Real Property Regulation 2003 [see also Circuit Finance Pty Ltd v Crown & Gleeson Securities Pty Ltd [2005] NSWSC 997; (2006) NSW ConvR ¶56-143]. Real Property Regulation provides, by clause 7, that a caveat must specify the particulars as set out in Schedule 3 in relation to the estate or interest to which a caveator claims to be entitled. A central concept in the Act and the Regulation is that of "the nature of the estate or interest claimed" by the caveator: it is that claim that the Court must be satisfied has or may have substance before making an order. The characterisation and description of the nature of the estate, interest or right claimed by a caveator is more than a mere formal requirement of the provisions of the Act, but goes to the heart and substance of their operation, because without a description of the estate, interest or right claimed, neither the Registrar-General nor a person reading the caveat can know whether a dealing would adversely affect the estate claimed, nor can the Court tell whether the caveator's claim has or may have substance. As I endeavoured to explain in Circuit Finance, the insufficiency of a description as "an equitable interest" is further illustrated by Schedule 3, sub-cl 10 of the Real Property Regulation, which provides that it is not necessary to specify whether the estate or interest claimed is legal or equitable (at [28]); it would follow that if a caveat claiming an equitable interest were sufficient, then so would be one which merely claimed an “interest”. Yet that of course would not at all describe the nature of the estate or interest claimed.

26. Williams J further explained in Comserv (No 210) Proprietary Limited v Ristevski [2022] NSWSC 821 at [65], the ameliorating provision of s 74L, which allows the Court to disregard failures of the caveator to comply strictly with the requirements of s 74K and regulations, does not permit the Court to overlook the fact that if the caveat claims a different estate or interest than that asserted on the hearing of the application to extend the caveat or fails to give sufficient particulars of the estate of interest, then s 74L is not available to save it: see also Woodsman Pty Ltd v Jozic [2018] NSWSC 1311 at [11]-[17].

27. No concession has been made on behalf of the husband that the caveat is invalid. But in the Court's view the claim of an estate in fee simple is more than a mere matter of form. That is so for the following reasons. The caveat claims an estate in fee simple, contradicting the details supporting the claim that assert "an equitable interest". An equitable interest is not an estate in fee simple. An estate in fee simple, described in those terms, is a claim to the legal estate in the whole of the property. Whereas the detail supporting the claim indicates that it is an equitable interest in part of the property which is sought.

28. These contradictions raise immediate questions. The validity of a caveat must be assessed from the point of view of a person observing the Register. The Court is in that position and cannot work out what the nature of the claim is. Nor, unsurprisingly, has the husband been able to articulate what it is and how the caveat can be reconciled with what is sought at the hearing. If it is not an estate in fee simple that is claimed, what is it that is claimed? The caveat gives no assistance.

29. The details supporting the claim do not resolve whether the "50% share on trust for the caveator as agreed at the time of purchase" represents a written agreement, an oral agreement or an agreement implied by conduct, or whether the trust concerned is express, constructive or resulting. Each of those possibilities would send the inquirer down a different pathway. None of those pathways are signposted in this caveat.

30. But there can be ways such ambiguities can be resolved. It is possible in some cases for explanatory memoranda or documents to be attached to a caveat, which would create certainty, as was considered by Peden J in ATF Group Pty Limited v Melek [2023] NSWSC 333 at [42] and Kunc J in Brose v Slade [2022] NSWSC 1785.

31. For these reasons, the caveat suffers from a material misdescription of substance. The defect cannot be remedied by s 74L and the deficiency cannot be overcome certainly by any amendment proffered on behalf of the husband.

32. In those circumstances the Court will order the removal of the caveat. The Court has a discretion when ordering removal of a caveat. Because of the competing interests identified by the Court earlier, the Court will only remove this caveat upon terms that protect the interests of the parties pending hearing. A number of matters are to be noted. The Family Court is a specialist jurisdiction, rather than this Court, which should work out how the settlement agreement should be performed. Whatever this Court does should be interim to permit the parties to go back to the Family Court, particularly as it is now clear that the parties have obtained an urgent hearing this afternoon.

33. The Court can identify a mechanism which will allow the parties' interests to be protected and will impose that structure as a condition of the removal of the caveat. The Court will lift the caveat subject to the conditions identified below.

34. The first condition is that the removal of the caveat will occur by close of business on Monday 3 November.

35. Upon the lifting of the caveat, if the wife proceeds with the purchase of the Roselands property financed by the sale of the Strathfield property in accordance with her current proposal, then the husband's right to contest whether the Strathfield property has been sold at market value will be protected by security against the Roselands property by way of a charge after the first mortgage finance obtained by the wife to complete that acquisition. It could also be protected by way of either quarantining a portion of the proceeds of sale of the Strathfield property agreed between the parties that is sufficient to compensate the husband for any shortfall between the sale price and the market value of that property or by reduction in the settlement amount of $7.4 million to reflect the gap between market value and sale value by way of security.

36. In order for the parties not to be engaged in further perpetual contests, the Court will also require the parties to agree to immediately engage a mechanism for them to work out whether or not the Strathfield property has been sold at an undervalue, so that they do not have to conduct further litigation about that.

37. The Court's suggestion is that the parties re-engage the mechanism which they sensibly agreed in cl 15 of the settlement agreement by the husband nominating three estate agents, or such other number as the parties agree, and the wife selecting one of them to give an opinion, if the parties cannot agree on the market value of the property.

38. Two other incidental issues arise: questions of costs and the relationship between these orders and the Family Court of Australia.

39. The Court wants to make clear that these orders will be made subject to such variations as, within its jurisdiction, the Family Court of Australia might wish to make this afternoon.

40. I am going to make the following directions:

41. ORDER that subject to the conditions imposed by these orders the defendant shall remove caveat AT501608 ("the caveat") over the property identified in paragraph 1 of the summons ("the Strathfield property") by 5 PM on Monday 3 November 2025 upon.

42. ORDER that upon the lifting of the caveat, if the wife proceeds with the purchase of the Roselands property, financed by the proceeds of sale of the Strathfield property, then the husband's right to contest whether the Strathfield property has been sold at market value will be protected either

(a) by the imposition by these orders of a charge over the Roselands property with priority immediately after any first mortgage finance obtained by the defendant/wife that is necessary for her to complete her acquisition of the Roselands property, or (b) by quarantining a portion of the proceeds of sale of the Strathfield property at a quantum agreed between the parties, or determined by a court, that is reasonably sufficient to compensate the husband for any likely shortfall between the sale price and the market value of the Strathfield property and any likely legal costs ("the shortfall"), or alternatively by reduction in the settlement amount of $7.4 million payable under the settlement agreement between the parties dated 15 April 2025 that is equivalent to the quantum of the shortfall.

3. ORDER the parties shall avoid unnecessary conflict about the quantum of the shortfall by cooperating in taking the following further steps to ascertain that quantum, modelled on clause 15 of a settlement agreement:

(a) the defendant will nominate three real estate agents within seven days of today to ascertain the shortfall, (b) the plaintiff will select one of those real estate agents within a further seven days, and (c) the real estate agent so selected will be instructed to provide within a further seven days all an opinion as to the current market value of the Strathfield property.

4. ORDER that if the wife does not proceed with the purchase of the Roselands property financed by an immediate sale of the Strathfield property then the parties should negotiate a mechanism equivalent to that provided for in orders 2 and 3.
5. NOTE that these conditions may be varied when the matter is remitted to the Federal Circuit and Family Court of Australia.
6. DIRECT the plaintiff to provide to the defendant and the Court by Monday, 3 November 2025 the memorandum of fees of counsel and solicitors recording all the fees that if she is successful in obtaining a costs order for these proceedings against the defendant that she will seek to recover.
7. DIRECT the defendant to provide to the plaintiff and the Court by 7 November 2025 his objections to the fees provided by the plaintiff pursuant to direction 6.
8. RESERVE for consideration in chambers whether a costs order will be made against the defendant, the fixing of a sum for costs under Civil Procedure Act 2005, s 98(4)(c), and whether the defendant will be ordered to pay a percentage of those costs.
9. These orders may be entered forthwith.

**********

Amendments

19 January 2026

[2] second last line, caveat number amended. [27] second line, "caveat claimed, but in the Court's view is is that" changed to "caveat is invalid. But in the Court's view the claim" [27] fourth line, delete "that" before "the details"; fifth line, delete "a caveat and is not" before an estate in fee simple. [32] third last line, add "to" before "permit" [35] fifth last line, delete "the" before "quarantining" and add "that is" before "sufficient to compensate"