Applicant v Respondents

Mr D Rodrigo (solicitor) (on 11 February 2026 only)

Mr M Motherwell (solicitor) on 11 February 2026 only

Abhigam Kanaiyalal Mehta appeared in person by video link

For the Twelfth to Thirteenth and Sixteenth to Twenty-‍fourth and Twenty-‍sixth Respondents

Appeared in person by video link on 11 February and 27 March 2026

Appeared in person on 11 February and 27 March 2026

Appeared in person on 11 February and 27 March 2026

Appeared in person by video link on 11 February and 27 March 2026

1. This proceeding relates to claims of a number of parties to be entitled to funds which were paid into Court pursuant to s 77(3) of the Transfer of Land Act 1958 (Vic)[1] and s 69 of the Trustee Act 1958 (Vic).
2. The funds were paid into Court by Holding Redlich acting for Australian Commercial Mortgage Corporation Pty Ltd (ACMC) in its capacity as trustee for the Balmain Opportunity Trust. The funds were the surplus proceeds of the sale of a property located at 1700 Sewells Road, Mount Cottrell in Victoria (the Mount Cottrell Property). ACMC held a mortgage over the Property and had sold it as mortgagee in possession. The sale proceeds paid into Court were $1,146,872.69. There are currently 41 persons who claim to have an entitlement to the funds,[2] in amounts which far exceed the amount paid into Court.
3. Over the course of this proceeding, it has become evident that the applicant and respondents are affected by an underlying property development venture which failed, and has left them without the interest in land for which they had paid money some years ago. Many of them had acquired the interest intending to build a family home on it.[3] There are some potential complexities to the interests claimed given the way in which their interests in the land were structured and the way in which the development venture unfolded.
4. The claims are of such significant amounts that if successful, the claimants could only potentially receive from the funds in Court a small proportion of the amount to which they claim to be entitled. The proof of interests and determination of priorities has the potential to be very time consuming and to involve the expenditure of significant legal costs which risk being very disproportionate to the sums that the claimants may, if successful in their claims, be expected to receive. In these circumstances I have had close regard to the interest of claimants to receive any funds to which they are entitled as soon as possible, and without disproportionate expenditure on legal costs. I have had regard to the Court's obligations under ss 7, 8 and 24 of the Civil Procedure Act 2010 (Vic).[4]
5. In these circumstances, I have determined that it is appropriate to consider and determine a specific issue about the interests of one claimant, Mr Esrael Maru, who initially made a claim to be entitled to the entirety of the funds in Court, with the objective that this may narrow the remaining issues in dispute.

1. Rule 79.02(2) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) provides that:

Subject to paragraph (3), money paid into court and any interest allocated or received in respect of that money shall not be paid out except by order of the Court.

1. What a party seeking payment of funds held in court must establish has been discussed in several cases in New South Wales, where r 55.11(1) of the Uniform Civil Procedure Rules 2005 (NSW) is expressed in very similar language to the Victorian provision.[5]
2. In Commonwealth Bank of Australia v Estate of the Late Mahmoud Slieman[6] Slattery J stated the requirements that a party seeking payment out of court funds must demonstrate to a Court. His Honour first referred to the need to identify persons entitled to any funds in Court and the basis of that entitlement, and to give appropriate notice of the application. His Honour then said:

The second matter that needs to be proved by a claimant is that he or she is not merely an unsecured creditor against the person primarily entitled to the fund but is a person who has [a] beneficial interest in the very fund that has been paid into Court. The same evidence that demonstrates a person's primary entitlement to the funds in Court often establishes this second matter.

Thirdly, it is necessary for an applicant to identify the other potential claimants to the fund in Court and to prove that those persons were notified of its claim. Those persons may consent to the claim. Alternatively, the applicant may prove that those persons either do not have valid claims against the fund or that their claims do not have priority over the applicant's claims.

The court requires strict proof as to who has the entitlement to the funds in Court. There is a heavy burden placed on a party seeking payment of money out of court under Trustee Act s 98 and UCPR r 55.11. It is necessary for that party not only to prove his or her entitlement to the funds but also to prove that all other potential claimants to the funds in Court have been properly notified. Otherwise there is a risk of incorrect payments being made.[7]

1. In the present case, I am satisfied that all appropriate steps have been taken to notify other potential claimants; that they have had an opportunity to be heard, and that it is open to proceed to consider the claim made by Mr Maru.

The background to the payment into Court of the funds

1. An affidavit of a solicitor of Holding Redlich, Anthea McGurty, was filed in support of the payment into Court by ACMC.[8] That affidavit identified that the circumstances in which ACMC came to sell the Mount Cottrell Property as mortgagee were that ACMC had lent money to a company called Emanda Estate Pty Ltd, secured over the Mount Cottrell Property. As registered proprietor of the Property, Emanda Estate had mortgaged the property to ACMC in a loan arrangement which was related to a development project for the property initiated by a related company, Emanda Pty Ltd. The director of those companies was a Mr Lulu Seid. Both of those companies now have receivers and managers appointed.[9]
2. Ms McGurty's affidavit explained what Holding Redlich had ascertained in relation to the development project and the Mount Cottrell Property. In summary, between May 2018 to February 2019, Emanda had entered into Deeds of Joint Venture Agreements with numerous individuals pursuant to which the individuals, identified in the agreements as 'Contributors', would obtain an interest in nominated lots on the Mount Cottrell Property. The recitals of the Joint Venture Agreements set out that Emanda would become registered proprietor of the Mount Cottrell Property pursuant to a contract for the purchase of the property on or about December 2021, and that Emanda intended to subdivide and develop the land. Emanda would then sell lots in the subdivided land. The Contributors would, in return for paying a sum towards the venture equivalent to the agreed value of a lot, and a contribution to the costs of the venture, be granted an option to purchase the lot at completion of the project and upon the lot being available for sale. The amounts already paid would be credited towards the price of the nominated lot. The Contributors were not given any security over the land as part of the transaction. However, many of them placed a caveat on the Mount Cottrell Property to reflect their interest.[10]
3. The Mount Cottrell Property was ultimately purchased not by Emanda but, in breach of the Joint Venture Agreements, the related company Emanda Estate, which became registered proprietor in February 2021. In July 2022, Emanda Estate entered into a loan agreement with Perpetual Corporate Trust Ltd, which was secured by a mortgage over the Mount Cottrell Property. Emanda Estate defaulted on the mortgage. Perpetual assigned the secured debt to ACMC which appointed a receiver and manager. The Mount Cottrell Property was then sold pursuant to a contract of sale dated 28 March 2024, which settled on 28 March 2025.[11] ACMC procured the removal of the caveats to facilitate the sale.[12]
4. After the Land was sold, ACMC corresponded with Contributors (who had not been repaid their contributions by Emanda nor by Emanda Estate) with respect to the surplus proceeds. ACMC and the Contributors were unable to resolve how the surplus proceeds of the sale should be distributed. An application was then made by ACMC for the funds to be paid into Court.[13]
5. At the time of Ms McGurty's affidavit, ACMC and Holding Redlich were aware of 28 parties who had asserted an interest in the sale proceeds, and information was included in the affidavit about the nature of the interests claimed, which were primarily pursuant to Joint Venture Agreements.[14]

1. After the funds were paid into Court, on 5 June 2025, the applicant, Mr Hiep Minh Truong, filed an originating motion seeking release from the funds of an amount of $221,036.98 plus costs of the proceeding` but had been told in July 2022 that the development was not going ahead.[15] He had not received any refund of any of the amounts paid.
2. On 19 June 2025, Judicial Registrar Burgess held a directions hearing in the proceeding, in which orders were made requiring interested parties who wished to make a claim file an appearance supported by an affidavit setting out the basis of the claim.[16] Both before and following that hearing, enquiries were made with both the Court Registry and JR Burgess' Chambers by other parties who had not originally been identified in Ms McGurty's affidavit.[17]
3. Affidavits were filed by numerous interested parties in which they also claimed an interest in the funds in Court. The interests were identified as arising from Deeds of Joint Venture Agreement with respect to the Mount Cottrell Property of the kind identified by Ms McGurty in her affidavit and claimed by Mr Truong.[18] These Deeds were entered into over the period from February 2018[19] to December 2020.[20]
4. Four of the interested parties[21] also had entered into a 'Deed of Covenant Creating a Caveatable Interest' with Emanda and Emanda Estate and Lulu Seid and Abdul Oumer as directors.[22] I will return to the nature of the interests said to have been created by that Deed below.
5. One party, Mr Maru, filed an affidavit sworn on 20 August 2025 in which he gave evidence, relevantly that:

(a) In around October 2018, he met Lulu Seid, the director of Emanda and Emanda Estate and learnt in conversations with Mr Seid that the companies were proposing to develop and subdivide land at 1070 Tarneit Road (Tarneit Land) and also the Mount Cottrell Property.

(b) In May 2022, Mr Seid approached him and requested a loan, as the companies were struggling to meet repayments under a loan to Bligh Finance No.1 Pty Ltd, a finance company.[23]

(c) He had advanced amounts pursuant to the three Loan Deeds, described as:

(i) the sum of $98,860.00 on 19 May 2022, being the funds advanced under the First Loan Deed;

(ii) the sum of $279,100.00 on 3 June 2022, being the funds advanced under the Second Loan Deed; and

(iii) the sum of $56,255.00 on 18 July 2022, being funds advanced under the Third Loan Deed.

(d) The Loan Deeds were exhibited to the affidavit and showed that the terms included that:

(i) Mr Maru as lender agreed to advance a specific sum 'by way of loan for such amounts and on such dates as are agreed by the Lender from time to time solely for us by the Borrower for the purpose contained n the Schedule';[24]

(ii) the term of the loan was two months;[25]

(iii) Emanda Estate and Emanda as borrowers, and Mr Seid as guarantor, charged their right, title and interest in the Mount Cottrell Property and the Tarneit Land to Mr Maru;[26] and

(iv) the interest rate was 1.8% per month (21.6% per annum) and the default rate of interest was 3.6% per month (43.2% per annum) until the loan was paid.

1. Mr Maru gave evidence that he placed a caveat on the Mount Cottrell Property pursuant to the Loan Deeds, and that the loans were not repaid.[27]
2. Mr Maru also gave evidence that prior to entering into the loan deeds, in the period from 1 March 2021 to 29 September 2021, he had 'advanced the total sum of $50,000 to [Emanda Estate and Emanda] in the form of paying invoices issued' to the companies.[28]
3. After the filing of these affidavits by the respondents, the matter was mediated by a Judicial Registrar of the Court in October 2025, but did not resolve.

Orders for filing of affidavits and submissions relating to Mr Maru's claim

1. Following the mediation, Burgess JR identified that Mr Maru claimed a secured interest over the sale proceeds which he contended gave him a priority claim and that this interest was in an amount which exceeded the funds in Court.[29] At a directions hearing on 20 November 2025, the Judicial Registrar notified the parties that it was appropriate for Mr Maru to:

have an opportunity to make further submissions in support of his claim and for any other party to respond, after which the proceeding will return for a directions hearing before a Judge of the Court, at which the presiding Judge may determine the appropriate next steps.[30]

1. Following the directions hearing before Burgess JR, Mr Maru filed a further affidavit sworn on 17 December 2025 in support of his claim to be entitled to the funds held in Court, in which he again gave evidence that he had advanced amounts pursuant to the three Loan Deeds, described as:

(a) the sum of $98,860.00 on 19 May 2022, being the funds advanced under the First Loan Deed;

(b) the sum of $279,100.00 on 3 June 2022, being the funds advanced under the Second Loan Deed; and

(c) the sum of $56,255.00 on 18 July 202,2 being funds advanced under the Third Loan Deed.

1. The affidavit stated that it exhibited '[a] copy of the branch deposit receipts evidencing the three sums advanced'.[31] These receipts did not reflect that these amounts had been deposited. Instead, they showed that the following amounts had been paid into a Commonwealth Bank account ending in #2653:

(a) $91,000 on 19 May 2022;

(b) $256,260 on 6 June 2022; and

(c) $50,000 on 18 July 2022.

1. In the affidavit, Mr Maru also said he was aware that the surplus proceeds of the sale of the Tarneit Land, $18,195.83, had been paid into Court. He said he had not commenced a proceeding to seek payment from those funds, notwithstanding that to the best of his knowledge, no other potential claimants had made a claim for those funds. Mr Maru stated that he had 'elected to not commence separate proceedings to those funds at this stage', because of 'the nominal value of the proceeds of sale, the costs likely associated in making an application and the pending outcome of this matter'.[32]
2. Mr Maru also exhibited to that affidavit a calculation of the loan amount that he asserted to be outstanding pursuant to the three loan deeds, which calculated interest at the default interest rate of 3.6% per month, as follows:

1. Monthly calculations accompanied the above table.

1. Several respondents also filed affidavits in response to Burgess JR's orders made on 20 November 2025.[33] In the affidavits, several respondents took issue with Mr Maru's claims, primarily on the basis that he had been involved in the joint venture development with the Emanda companies, which had failed and caused the loss of the amounts invested in the Joint Venture, and should not be able to claim from the sale proceeds in priority to them.
2. Several respondents filed affidavits which gave evidence about Mr Maru's involvement with the Joint Venture, and made submissions that he was in part responsible for the failure of the development project and the loss of the funds contributed by them. The evidence was as follows.
3. Mr Maru had been involved in the management of the joint ventures relating to the Mount Cottrell Property and the Tarneit Land.[34] In particular, invoices were exhibited to two affidavits showing that tax invoices for surveying, and engineering and design works which were issued to Emanda were addressed to Mr Maru or marked 'Attention: Esrael Maru'.[35]
4. Mr Maru was a party to an 'Acquisition of Ownership Interest Agreement' dated 18 April 2022, between him, Emanda, Emanda Estate and Lulu Seid, the director of those two companies. The terms of that Agreement provided for Mr Maru to purchase a 10% share in each of Emanda and Emanda Estate, and that on signing the Agreement, the companies would enter Mr Maru on their share registers, and MR Maru would also be entitled to become a director at his request. The consideration for the 10% interest was stated in the Agreement to be as follows:[36]

The Purchaser not to seek additional compensation or payment for the work the Purchaser performed for EMANDA PTY LTD and EMANDA Estate Pty ltd since August 2020 to the date of this agreement. The seller acknowledges the purchaser's extra ordinary effort to date in preventing major and significant loss to the EMANDA PTY LTD and EMANDA Estate Pty Ltd. The 10% allocation of ownership interest in these two Companies is in lieu of the purchaser's past contribution and the purchaser's continued assistance for these two Companies and are made without the purchaser's financial contribution.

The Purchaser not to seek additional compensation or payment for the work the Purchaser will perform for EMANDA PTY LTD and EMANDA Estate Pty Ltd for the duration of this agreement.

1. Pursuant to the Agreement, Mr Seid and the companies also agreed by clause 7 that:

Upon signing of this agreement, the Seller agrees to give access to the Purchaser all the bank accounts in the name of EMANDA PTY LTD and EMANDA Estate Pty Ltd. The Seller also agrees to share all past, current, and future company records, agreements with other parties, undertakings kept in hard copy or electronic copy with the Purchaser.

1. Mr Maru was shareholder and director of a company called EM & NB Investment Group Pty Ltd between 6 June 2018 and February 2023 (when the company was deregistered). Emanda Estate was also a shareholder of that company.[37] Statements from the Commonwealth Bank account of Emanda[38] showed numerous payments from Emanda to EM & NB Investment Group in the period from no later than 1 July 2020 to 31 December 2021.[39] These payments were described as totalling approximately $755,150[40] and had entries such as 'City West Water'; 'Calibre Engineering'; 'traffic engineering' and 'project management' as descriptors for the transactions.[41]
2. Bank account statements of Emanda also showed a total of $77,000 in payments which appeared to be to Mr Maru personally.[42]
3. Submissions were made by interested parties to the following effect:[43]

(a) The evidence of Mr Maru did not establish that he had advanced the sums referred to in the loan agreements, and showed that the amounts he relied on as being advances for the loans were less than the loan amounts. The deposit receipt which Mr Maru relied on as evidence of the second loan advance stated 'Tarneit 2 lots' which was said to show that this was not a loan but an acquisition of lots in the Tarneit property.

(b) The Loan agreements were shams and did not reflect the real reason why he had advanced money to Emanda. He had paid money to Emanda for other reasons, including to secure lots in the Tarneit land.

(c) Mr Maru did not have clean hands with respect to the Mount Cottrell transaction and could not claim any equitable interest in the surplus.

(d) The Contributors under the Deeds of Joint Venture Agreement had an interest in the funds based on a Quistclose trust,[44] in circumstances where the funds had been contributed for a specific joint venture. The Contributors had a beneficial interest in the moneys contributed, which were not Emanda's moneys to deal with as they sought fit, and were entitled to the funds when Emanda breached the clauses in the Deeds of Joint Venture as to how the monies were to be used, and the joint venture failed. It was submitted that the deposit monies were used for the acquisition costs of the Mount Cottrell Property.[45]

1. On 11 February 2026, I heard a directions hearing. By that time, there were thirty four respondents, each making a claim to the funds, and four more interested parties who I ordered be joined as respondents on that day.[46]
2. I made the observations to the following effect in that directions hearing:[47]

(a) The matter is a complex one, with the potential for a time consuming and complex trial in order properly to determine whether the interests claimed are enforceable, and if so how the interests rank in priority.

(b) Given the very large numbers of persons claiming an interest in the funds, which are a small proportion of the amounts said to have been advanced by them, it is necessary to seek to identify ways to resolve the issues as efficiently as possible.

(c) If the matter was to be resolved by a full hearing, with evidence from each interested party with a view to resolving the various claimed interests, the costs of the hearing and the time it would take would be likely to be very substantial.

(d) It appeared from the affidavits filed that first, Mr Maru claimed to have a priority interest, and claimed an amount from the funds in Court which would exhaust the entire amount if his interest did in fact have priority over other interests.

(e) I was of the preliminary view, having regard to the evidence, that Mr Maru's loan agreements on their face gave rise to issues as to their enforceability, and also whether the interest rates constituted penalty interest which would be unenforceable. I referred to specific factual matters affecting the loan agreements and Mr Maru's involvement which had been raised by the respondents' affidavits.[48]

(f) In these circumstances, and to seek to facilitate the most efficient resolution of the matters at the lowest expense, it would be appropriate to seek to resolve the issue of Mr Maru's interest first. Depending on the outcome of that process, it may either resolve the entirety of the claim to the funds in Court, or it may mean that he was not entitled to participate in the distribution of those funds.

1. Following the directions hearing and my associated orders on 12 February 2026, Mr Maru filed an affidavit sworn on 4 March 2026 (Maru March Affidavit), in which he set out his response to the issues raised by the respondents and interested parties in this proceeding relating to his involvement with Emanda Estate and Emanda.
2. In the affidavit he gave evidence for the first time that he had been involved with Emanda Estate and Emanda in the management of the Tarneit and Mount Cottrell Land development projects.[49] He gave evidence (as he had in a previous affidavit)[50] that he met Lulu Seid and Abdul Oumer, the then directors and shareholders of Emanda and Emanda Estate in around October 2018 and that prior to that time he did not personally know, nor had he met, Lulu or Abdul.[51]
3. He also gave evidence that between 2018 and 2022, prior to him advancing loans to these companies under the Loan Deeds, he had been involved in numerous ways in the 'management of the Tarneit property and the Sewells property'.
4. Mr Maru also asserted in his affidavit that he had paid an amount of $10,000 on July 2018 for an initial deposit on his own lot at the Sewells property.[52] He did not explain in this or any other affidavit how he had come to make that deposit in July 2018 if he had not met Mr Seid or Mr Oumer prior to October 2018, as he had stated twice in his evidence. [53]
5. Mr Maru accepted that he had signed the Acquisition of Ownership Interest Agreement, which had occurred on 18 April 2022 after he and Mr Seid 'were in discussion about my remuneration and possible profit share arrangement for assisting the Emanda entities with the Tarneit Property and the Sewells Property'. He said that although the agreement had been signed by Mr Seid and himself, and despite the term that he would then become a shareholder, this did not occur. It was agreed instead by Mr Seid that 'the issue of my remuneration and profit share arrangement for assisting the Emanda entities would be discussed once the caveat issues affecting the Tarneit property were resolved.'[54] Mr Maru also stated that the issue of his remuneration and profit share arrangement was not revisited and that he was not paid for the services he provided.
6. Mr Maru also acknowledged that he had been appointed an attorney for the Emanda entities from 27 April to 2 June 2022. This occurred during the period in which one of the Loan Deeds on which he relied was signed. The loan deed was not signed for Emanda or Emanda Estate by him, and was rather signed by Mr Seid.[55]

1. Mr Maru claimed to have advanced the amounts stipulated in the loan deeds of $98,860 for the 19 May 2022 loan deed, $279,100 for the 3 June 2022 loan deed and $56,255 for the 18 July Loan Deed. He did not explain why the amounts were different from the deposit receipts he had exhibited to his December affidavits as proof that he had advanced the funds pursuant to the Loan Deeds. The amounts were all less than the stipulated loan amounts, other than to say in passing that each amount was 'less legal fees and two months interest'. No source in the loan deed was identified for that deduction.[56]
2. Mr Maru gave evidence that the funds for the loans were obtained from a family member,[57] and unnamed family friends,[58] and were drawn down from his own mortgage.[59] He said that he understood that the loan funds that he advanced were then applied to repay a loan owing to Bligh, a third party lender, which was in default. The terms of that loan agreement were in evidence and showed a high rate of interest.[60]
3. Mr Maru's evidence referred to messages he said confirmed that the first loan amount, which he described as $98,000, was shown as having been paid to an account which he believed belonged to Bligh. He based that belief on a WhatsApp message showing a photograph of a deposit receipt.[61] There was no evidence that the account referred to in that receipt was in fact that of Bligh. Further, the WhatsApp message related to a different amount, $90,728.70.
4. Mr Maru said that the second loan was used to pay an overdue land tax bill. He referred to another WhatsApp message showing a bank transfer for 'land tax assessment' for $256,356.69 referring to 'Emanda Pty Ltd' but giving no details of what account the amount was paid to other than an unexplained account number.[62] He said that the third amount was paid to FJR Lawyers to facilitate the removal of caveats. Again, the amount paid to the lawyers was different to the amount the subject of the loan.[63]
5. Over the time preceding this loan, Emanda's bank account statements which were in evidence through both Mr Maru and other parties show that various payments were being paid to Mr Maru and to his company EM & NB Investment Group. Mr Maru set out the sums of these payments in his affidavit. He asserted that he used those funds to pay for invoices for the Emanda entities, and exhibited numerous invoices made out to Emanda to the attention of Esrael Maru.[64] However, he did not provide evidence of the EM & NB Investment Group accounts to demonstrate how this payment of the invoices had occurred. Mr Maru said that to provide assurances that the amounts would be paid by EM & NB Investment Group, the Emanda companies would take a 20% shareholding EM & NB Investment Group. Again this was not the subject of any documentary evidence.
6. With respect to the largest of the loans which he had said were advanced, which he said was evidenced by the deposit slip stating 'tarneit rd 2 lots', Mr Maru denied that the funds were in fact for two lots in the Tarneit Land. He said that they were a loan advance for the second loan. He said:

The payment of $256,260.00 to the Emanda entities were funds advanced pursuant to the Second Loan Deed. The branch deposit slip produced notes that the Depositor Name is 'tarneit rd 2 lots' because I arranged for a friend of mine to make the deposit at the Caroline Springs branch on my behalf. The teller who spoke to my friend was concerned that he may have been a victim of a scam. My friend informed the teller that the deposit related to two lots at 1070 Tarneit Road, Tarneit VIC 3029, and the teller incorrectly recorded this as the Depositor's name.[65]

1. There was no evidence from this friend.
2. Mr Maru said that the payments totalling $77,000 paid to him personally by Emanda in September and October 2021 before the loan deeds each related to 'partial refund of the deposit I had paid for my own lot at the Sewells property'. [66] He did not explain the circumstances in which he had been able to obtain a refund from Emanda for amounts paid towards lots in Sewells Road (the Mount Cottrell Property). The evidence on which he relied to assert that he had paid amounts as deposits for a lot in the Mount Cottrell Property were simply handwritten statements on a cheque book in the name of EG Maru and bank account statements referring to cheques being drawn.[67] They did not show that the money had in fact been paid to Emanda nor that it had been paid for the purpose described by Mr Maru.
3. Mr Maru submitted that he had an equitable charge on the Mount Cottrell Property arising from the loan deeds, and thus a claim over the funds in Court. He accepted, prior to the hearing in an email to chambers, and again in the hearing (although not in any of his affidavits or his two sets of written submissions) that the interests of the parties to the Deed of Covenant ranked in priority to his interest.[68] However he submitted that the remaining respondents' claims under the Joint Venture Agreements had the critical defects that:

(a) the Joint Venture Agreements had been entered into with Emanda and not Emanda Estate (which had become the owner of the Mount Cottrell Property) and

(b) The Joint Venture Agreements had no charging clause; and

(c) The Quistclose trust and Barnes v Addy claims made for these respondents could not be established as they could not prove that

(i) their moneys were taken by Emanda;

(ii) passed to Emanda Estate; and

(iii) invested in the property.[69]

1. Mr Maru did not give any evidence as to what had occurred with the funds which had been received by Emanda.[70] He also did not give evidence or make submissions as to what the source was for the deposit and purchase funds for the Mount Cottrell Land.

Conclusion - Mr Maru's evidence does not establish on the balance of probabilities that he advanced moneys from third parties pursuant to the loan deeds

1. Ultimately, I cannot be satisfied in the context of all the evidence of the financial transfers between Mr Maru and his company, EM & NB Investment Group, and Emanda, that Mr Maru did advance funds pursuant to the loan agreement rather than for some other purpose. There is no clear evidence that shows that these funds were advanced for the loan agreement and I do not accept Mr Maru's explanations by which he sought to show that the loan fund amounts had been advanced. In the context of the evidence of funds being transferred by Emanda to Mr Maru and his company EM & NB Investment Group, I cannot be satisfied that the funds said to have been transferred for the loan did not involve funds coming from Emanda itself.
2. The belated evidence of Mr Maru in his March affidavit seeking to explain how the funds were advanced in compliance with the Loan Deeds is not convincing. It is deficient in making clear that the funds were advanced for that purpose in circumstances where Mr Maru has been given ample opportunity to provide evidence of his entitlement.
3. Secondly, even if it could be accepted (which I do not) that some or all of the amounts shown in deposit slips on which Mr Maru relies were paid to Emanda for the purpose of compliance with the Loan Deeds, they do not reflect the payment of the sums owing under the Deed clauses.
4. In C & F Nominees Mortgage Securities Ltd v Karbotli,[71] the Court of Appeal acknowledged that a loan agreement providing for security may not give rise to effective security if the amount required to be lent is not advanced:

In many cases, where on a proper construction the mortgage was held to secure nothing, the covenant was directed to a transaction or loan that did not exist or was different to that embraced by the covenant. The covenant must be compared and assessed in accordance with the facts. If, to take a simple case, the mortgagor covenants to pay an amount advanced to X and no amount was advanced to X the covenant secures nothing. Of course, the covenant may not be so narrow; it may not refer to a particular transaction or loan between identified parties. The covenant may more broadly refer to all amounts owing or it may simply identify an amount secured without reference to the underlying transaction or loan.[72]

1. In the circumstances, Mr Maru has not established his interest in the funds in Court to the necessary degree of certainty, notwithstanding the clear and repeated opportunities he has had to prove his interest.
2. I find that he does not have a claim to the funds arising from the Mount Cottrell Property arising from the Loan Deeds.
3. Mr Maru may have an interest in funds separately paid into and held in court from the sale of the Tarneit Land but I do not need to say anything further about that.

1. As noted above, there are four respondents who invested in the Tarneit Land, and who acquired an equitable charge over both that property and the Mount Cottrell Property under a Deed of Covenant dated 31 March 2021.[73]
2. The Recitals of that Deed of Covenant referred to the four interested parties as purchasers and recounted that:

Emanda, without the Purchaser's knowledge or consent, has borrowed moneys (approximately $4.5 million) from a third-party lender and which borrowings are secured against the Tarneit Land. These borrowings were used by Emanda to purchase the Mount Cottrell Land in the name of Emanda Estate.

The Purchasers have concerns with respect to the monies borrowed by Emanda and Emanda's ability to repay the third-party lender and discharge the mortgage over the Title of the Tarneit Land.

The Purchasers also have concerns relating to Emanda's ability to achieve completion of the development of the Tarneit Land in a timely manner so that the Tarneit Land may be subdivided, and the subdivided Titles transferred to respective purchasers.

Emanda, Emanda Estate and its directors being Mr Abdul Oumer and Mr Lulu Seid in their personal capacity (collectively hereinafter referred to as the "Vendor Parties") have agreed, jointly and severally, to the below terms in order to give comfort to the Purchasers.

1. The Deed then contained terms that in consideration of the purchasers 'refraining, on an interim basis, from further pressing the Vendor Parties for details concerning where their respective payments have been deposited', the Vendor Parties charged their legal and equitable interest in the Mount Cottrell Land to the Purchasers.
2. As noted above, Mr Maru accepted prior to the 27 March 2026 hearing and at the hearing, that the equitable charge created by the Deed of Covenant took priority over the later created interests that he claimed under the Loan Deeds.

The Contributors' interests under the Deeds of Joint Venture- is there any claim against the funds in Court?

1. Mr Maru urged the conclusion that the other respondents whose interests arose pursuant to the Deeds of Joint Venture only (the Contributors) could not establish any claim to the funds in Court, so that the priority dispute arose only between himself and the four parties to the Deeds of Covenant.
2. I consider that it is not open to determine that this group of respondents has no interest in the funds. Unlike the specific opportunity given to Mr Maru to make good his claim, those respondents have not been directed to put on all possible evidence to support their claims. At this point, the evidence is not such as to positively exclude their claims. Rather, as submitted for Mr Maru, there is an absence of evidence which would permit the Court to be sufficiently satisfied of the claims.[74]
3. The basis which was been put forward for the claims by counsel for those clients represented by Bentleys Barristers and Solicitors (the Bentleys' clients) is a Quistclose trust.[75] Mr Maru submits that the argument in favour of a Quistclose trust is insufficiently specific, that claims by other parties to implied, resulting or constructive trusts are made at too high a level of generality, and that there is no evidence tracing the Contributors' funds to the Mount Cottrell Land, the surplus from the sale of which constituted the funds in Court.[76] However, taking into account the limited scope of evidence to which the respondents have had access, and the fact that many of them are doing their best as self-represented persons to identify the relevant legal and equitable concepts, I consider that there remains a claim to be tried for those respondents.
4. In particular, I consider that there is an arguable case that a Quistclose trust arises.
5. The circumstances in which a Quistclose trust arises are summarised by Lord Millett in the United Kingdom House of Lords case of Twinsectra Ltd v Yardley in a passage very helpfully raised for the Court by counsel for Mr Maru:

[68] Money advanced by way of loan normally becomes the property of the borrower. He is free to apply the money as he chooses, and save to the extent to which he may have taken security for repayment the lender takes the risk of the borrower's insolvency. But it is well established that a loan to a borrower for a specific purpose where the borrower is not free to apply the money for any other purpose gives rise to fiduciary obligations on the part of the borrower which a court of equity will enforce. In the earlier cases the purpose was to enable the borrower to pay his creditors or some of them, but the principle is not limited to such cases.

[69] Such arrangements are commonly described as creating 'a Quistclose trust', after the well-known decision of the House in Barclays Bank Ltd v Quistclose Investments Ltd [1968] 3 All ER 651, [1970] AC 567 in which Lord Wilberforce confirmed the validity of such arrangements and explained their legal consequences. When the money is advanced, the lender acquires a right, enforceable in equity, to see that it is applied for the stated purpose, or more accurately to prevent its application for any other purpose. This prevents the borrower from obtaining any beneficial interest in the money, at least while the designated purpose is still capable of being carried out. Once the purpose has been carried out, the lender has his normal remedy in debt. If for any reason the purpose cannot be carried out, the question arises whether the money falls within the general fund of the borrower's assets, in which case it passes to his trustee in bankruptcy in the event of his insolvency and the lender is merely a loan creditor; or whether it is held on a resulting trust for the lender. This depends on the intention of the parties collected from the terms of the arrangement and the circumstances of the case.[77]

1. In the present case, funds were contributed by the Contributors pursuant to the Deeds of Joint Venture specifically for the joint venture of the subdivision and development of the Mount Cottrell Land by Emanda as purchaser and developer of the Land. Emanda was not entitled, pursuant to the Deeds of Joint Venture, being the terms on which the funds were advanced, to use the funds for other purposes. I am satisfied, in the language of Lord Millett in Twinsectra, that the Contributors acquired a right, enforceable in equity, to see that the funds were applied for the purpose in the Deeds of Joint Venture Agreement, and to prevent their application for any other purpose.
2. The Mount Cottrell Land was not purchased by Emanda, in breach of the Deeds of Joint Venture Agreement, and was not developed or subdivided as contemplated by the Deeds. It was ultimately sold by a third party financer pursuant to a mortgagee's right of sale. The joint venture thus failed. It is arguable in my view that in the present case, a resulting trust thereby arose to the benefit of the Contributors.
3. I accept the submission of counsel for Mr Maru that it is not sufficient simply to establish a Quistclose trust, but that it would be necessary also for the relevant respondents to be able to trace their funds to the purchase of the Mount Cottrell Land, in order to be able to properly make any claim to the funds in Court. I also accept the submission that there is little evidence on that issue. However, there is also little evidence as to how the Mount Cottrell Land was paid for, and what was in fact done with the Contributors' funds. I cannot exclude the possibility that it was paid for by funds including the Contributors' funds.
4. A solicitor representing a number of the respondents who entered Deeds of Joint Venture as Contributors, Mr Constantine Stamopoulos of Bentleys Barristers and Solicitors, swore an affidavit stating that:

The basis of my clients' claim to the funds in Court is as follows:

(viii) Emanda used the Trust Fund to finance in part the purchase by Emanda Estate of the Mount Cotterell [sic] Land, and did so without procuring from Emanda Estate an executed assignment in contravention of the Primary Trust and clause 2.27.2 of the Deeds of Joint Venture.[78]

1. Counsel for the Bentleys' clients also prepared detailed submissions both with respect to the defects in Mr Maru's claims, and setting out the basis for his clients' interests in the funds in Court. Relevantly, the submissions state:

[9] When Abdul Oumer and Lulu Seid entered into the agreement to purchase the Mount Cottrell Land, the deposit was paid by Emanda from contributions received from Bentleys' Clients. ....

[10] On 12 February 2021, Emanda Estate became the registered proprietor of the Mount Cottrell Land. The Mount Cottrell Land was purchased by Emanda Estate for $5,700,000. The purchase was funded:

(a) By a borrowing of $4.5 million from a third-party lender secured against the Tarneit Land. ....

(b) As to the balance from monies paid by Emanda from funds supplied by, inter alia, Bentleys' Clients.

1. This evidence is very limited and is not, in my view, a sufficient basis on which I could determine that the funds paid by the respondent Contributors could be traced to the purchase of the Mount Cottrell Land. However, it remains the case on the evidence currently available that the source of funds for the purchase of the Mount Cottrell Land is unclear. Equally, what occurred with the funds provided by contributors under the Deeds of Joint Venture and whether they were used to purchase the Mount Cottrell Land remains open .
2. Despite Mr Maru's submission that these contributors could not trace their funds to the purchase of the Mount Cottrell Land, he did not put on evidence which assisted in determining how the Mount Cottrell Land was purchased, nor what happened with the funds paid by the Contributors pursuant to the Deeds of Joint Venture. He was the respondent who was most likely to have had access to information about what had occurred with these funds, and how the Mount Cottrell Land had been financed, given that he was directly involved in the Joint Venture, had access to information about Emanda and Emanda Estate's finances and accounts, and was, in the period from 27 April 2022 to 2 June 2022, appointed as an attorney for both Emanda entities. Mr Maru had, from between 2018 and 2022, on his own evidence, assisted extensively in the management of both the Tarneit Land and the Mount Cottrell Land.[79]
3. In these circumstances, there is insufficient evidence at this point to be satisfied that the respondent Contributors have an equitable interest in the surplus from the sale of the Mount Cottrell Land which has been paid into Court. But there is an arguable claim to those funds that they currently make, which may be made good if further investigation is possible of the way in which their funds were used, and into the source of funds used to purchase the Mount Cottrell Land. I will not make the finding sought by Mr Maru that this group of respondents have no interest, but will provide further opportunity for evidence to be filed in support of those claims.
4. I will first, however, order that Mr Truong and the respondents parties attend a further mediation, in the hope that it may be possible to resolve the claims to the funds in Court without the necessity of further hearings.

[1] Section 77 makes provision for the exercise of the power of sale under a mortgage or a charge. Section 77(3) stipulates how the purchase money received from the sale is to be applied, with first priority going to sale costs, secondly to payment of moneys due or owing under the mortgage or charge, thirdly to payment of amounts due under subsequent mortgages and charges. Section 77(3)(d) provides for payment of the residue (if any) into the Supreme Court pursuant to s 69 of the Trustee Act 1958 (Vic), 'for the benefit of the parties who are or become entitled to the residue of the deposited money'.

[2] The applicant and 40 respondents, as at the date of this ruling.

[3] See for example Affidavit of Bonsa Dawe sworn 13 August 2025, [6]-[7]; Affidavit of Amjad Mohamed sworn 11 July 2025, [15].

'The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.' (s 7(1)) and by s 8(1) that 'A court must seek to give effect to the overarching purpose in the exercise of any of its powers, or in the interpretation of those powers, whether those powers in the case of the Supreme Court, are part of the Court's inherent jurisdiction, implied jurisdiction or statutory jurisdiction; or ... arise from or are derived from the common law or any procedural rules or practices of the court.'

Section 24 provides that 'A person to whom the overarching obligations apply must use reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate to the complexity or importance of the issues in dispute and the amount in dispute'. (s 24).

1. [5] Uniform Civil Procedure Rules 2005 (NSW) r 55.(1): 'Funds that have been paid into court may only be paid out of court pursuant to the directions of the Supreme Court.'

[6] [2010] NSWSC 661.

[7] Slieman, [8]-[11] (emphasis added). Approved in Re C & L Cameron Pty Ltd [2012] NSWSC 676 at [121] (Ward J).

[8] Affidavit of Anthea Susan McGurty affirmed 17 April 2025 (McGurty Affidavit).

[9] See ASIC historic searches exhibited to the Affidavit of Constantine Stamopoulos, sworn 21 August 2025 (Stamopoulos Affidavit).

[14] McGurty Affidavit, [6]. See also orders of Burgess JR dated 19 June 2025.

[15] Affidavit of Hiep Minh Truong, sworn 4 June 2025, [6]; [14]-[15]; [23].

[16] Orders of Burgess JR made on 19 June 2025, Order 2.

[17] Orders of Burgess JR made on 19 June 2025, Other Matters, [C].

[18] All interested parties filed affidavits referring to their claimed entitlements. Some detail of the events leading to the payment into Court was contained in affidavits of Tilahun Kelemework sworn 21 August 2025, Affidavit of Sufian Osman and Abdurazak A Boru sworn by Sufian Osman on 19 August 2025 (which I have treated as evidence of Mr Osman, who swore the affidavit on Mr Boru's behalf (at [2]) (Osman August 2025 Affidavit); Stamopoulos Affidavit on behalf of Foziya Yusef, Rafiq Adam, Alfia Abbas and Rumia Abbas.

[19] See, for example, Affidavit of Yohannes T Gizaw sworn 30 July 2025, exhibiting Deed of Joint Venture signed 7 February 2018.

[20] Affidavit of Bonsa Dawe sworn 13 August 2025, [3].

[21] Azhar Habib, Sufian Osman, Tilahun Kelemework and Abdurazak A Boru. See McGurty Affidavit [36]-[45].

[22] Osman August 2025 Affidavit. Mr Osman gave evidence of his interest and that of his brother-in-law Mr Boru. See [31]-[33] and Exhibit SAOB-1.

[23] The Loan Agreement with Bligh Finance No.1 Pty Ltd and the Emanda Entities was Exhibit 1to the Affidavit of Esrael Affidavit sworn 4 March 2026. \

[24] Clause 5. The Schedule did not contain any clause identifying the 'business purpose'.

[27] Affidavit of Esrael Maru sworn 20 August 2025 (Maru August Affidavit), [12]-[13].

[29] Orders of Judicial Registrar Burgess made on 20 November 2025, Other Matters, D.

[30] Orders of Judicial Registrar Burgess made on 20 November 2025, Other Matters, D.

[31] Affidavit of Esrael Maru sworn 17 December 2025 (Maru December Affidavit), [4].

[32] Maru December Affidavit, [5]-[7].

[33] Affidavit of Hiep Minh Truong sworn 11 December 2025 (Truong Affidavit), Osman August 2025 Affidavit; Affidavit of Sufian Osman sworn9 February 2026 (Osman February 2026 Affidavit); Affidavit of Azhar Habib sworn 3 February 2026 (Habib Affidavit).

[34] Osman August 2025 Affidavit, [35], [38], [39], [42]; Habib Affidavit, 2; Truong Affidavit, [3]-[8].

[35] Truong Affidavit, Exhibits HMT-2, HMT-3; Habib Affidavit, Exhibit AH-2 (Invoices and correspondence from Land Graphique addressed to 'Emanda Pty Ltd c/- EM & NB Investment Group Pty Ltd... Mr Esrael Maru'; and City West Water addressed to Mr Maru titled 'Intention to Proceed to a Development Deed', which identified Mr Maru as the 'Development (owner)' and signing on behalf of the 'Developer' on 7 May 2021.

[37] Osman February 2026 Affidavit 3. Habi Affidavit, Exhibits AH-6; AH-8 (ASIC searches).

[38] Account number 06 3132 11612653. These bank account statements were exhibited in full to the Affidavit of Sufian Osman sworn 13 February 2026(13 February Osman Affidavit).

[39] See bank statements exhibited to the Habib Affidavit.

[40] 13 February Osman Affidavit, [11], [13].

[41] Habib Affidavit, Exhibit AH-3; 13 February Osman Affidavit Exhibit E-2.

[42] 13 February Osman Affidavit, [10]; [12], Exhibit E2 (payments of $44,000 and $33,000 to Esrael Maru on 20 September 2021 and 12 October 2021); Habib Affidavit, Exhibit AH-4.

[43] Submissions of Alito Vom, 27 January 2026; Submissions of Sufian Osman filed 9 February 2026; Submissions of Hiep Minh Truong filed 28 December 2025; Bentleys' Clients Outline of Submissions filed 6 February 2025, for Fozia Yusuf, Rafik Adam, Alfia Abbas and Rumia Abbas; Submissions of Tilahun Kelemework filed 10 February 2026.

[44] Referring to Barclay's Bank Ltd v Quistclose Investments Ltd [1970] AC 567; Australasian Conference Association Ltd v Mainline Constructions Pty Ltd (in liq) [1978] HCA 45; (1978) 141 CLR 335, 353 (Gibbs CJ, (Jacobs and Murphy JJ concurring)).

[45] Bentleys' Clients Outline of Submissions, [24]-[35].

[46] Orders of Harris J made on 11 February 2026, Order 4.

[47] Transcript 11 February 2026T8.20-T10.02; T11.09-14; T11.31-T14.03.

[48] Transcript 11 February 2026, T11.27-T15.23.

[49] Affidavit of Esrael Maru sworn 4 March 2026 (Maru March Affidavit), [11].

[53] Maru August Affidavit, [6]; Maru March Affidavit, [8].

[54] Maru March Affidavit, [12]-[16].

[55] Maru March Affidavit, [18]-[23]. This was responsive to the Power of Attorney which was exhibited to the Habib Affidavit, AH-1.

[57] This was with respect to $77,100. The family member was identified as Mr Sisays Endris but there was no evidence from that person. See Maru March Affidavit, [25(a)(i)].

[58] With respect to the amount of $279,100 for the second loan and $50,000 for the third loan: Maru March Affidavit [25(b) and (c)]. There was no evidence from these unnamed family friends to confirm that this was the source of the funds.

[60] Maru March Affidavit, [26]; Exhibit EM-1, Loan Agreement between Bligh Finance No 1 Pty Ltd, Emanda and Emanda Estate; Schedule C contained the interest rates of 1.50% per month 'Discounted Interest Rate' and the 'Standard Rate' of 3% per month.

[62] March Maru Affidavit, Exhibit EM-1, p 387.

[64] Maru March Affidavit [36]-[37]. Exhibit EM-1 p 404-478. Many invoices were marked to Emanda 'C/o EM & NB Investment Group Pty Ltd'. See eg pp 406, 410, 415, 421, 430, 432, 466, 472, 475, 478, (invoices from Land Graphique) and 407, 409, 414, 427, 473, (invoices from Calibre Engineering), p 425 (invoice from Nature Advisory) p 429 (invoice from onemilegrid Traffic Engineering);

[66] Maru March Affidavit, [33(a)-(b)].

[67] Maru March Affidavit, EM-1 p 396. Photographs of cheque book stubs with handwritten entries dated 12/7/2018 and 09/10/2018. See also at EM-1 p 397-400 bank account statements referring to the cheques for $10,000 (on 16 July 2018 and $140,000 on 9 October 2018 but not to the payees (the details of the payee were redacted from the account statements exhibited).

[68] Email to chambers dated 17 March 2026 from DCM Lawyers, solicitors for Mr Maru.

[69] Supplementary Outline of Submissions of Esrael Maru dated 6 March 2026, [13].

[70] The deposit of which was shown by Emanda's bank account statements which were in evidence - see [70] above.

[71] (2021) 64 VR 218.

[72] Karbotli, 246 [112] (Kyrou, McLeish and Sifris JJA).

[73] Osman August 2025 Affidavit, Exhibit SAOB-1, 73-77.

[74] Supplementary Outline of Submissions of Esrael Maru, [21].

[75] Bentleys' Clients Outline of Submissions, 6 February 2026, [24]-[33].

[76] Outline of Submissions of Esrael Maru, 17 December 2025, [22]; Supplementary Outline of Submissions of Esrael Maru, [20]-[21].

[77] Twinsectra Ltd v Yardley [2002] UKHL 12; [2002] 2 AC 164, 184, [68]-[69] (emphasis added).

[79] Affidavit of Esrael Maru, 4 March 2026, [11]. He described his involvement as including 'advancing unsecured funds or attending to payment of invoices issued to the Emanda entities on their behalf' acting as liaison between the Emanda entities and the project manager and civil contractors for the Tarneit property and the [Mount Cottrell] property developments, and assisting the Emanda entities in communicating with their solicitor, finance brokers and other engaged professionals.