1. Section 90(3) of the Transfer of Land Act 1958 permits any person adversely affected by a caveat to 'bring proceedings in a court against the caveator for the removal of the caveat' and empowers the court dealing with such an application to 'make such order as the court thinks fit'. As this Court has previously observed,[8] the court's power under s 90(3) is discretionary, and therefore an applicant who seeks leave to appeal against an exercise of that discretion must establish an error of the kind identified in House v The King.[9]
2. It was also not in dispute that, when considering an application under s 90(3), the court applies the two-stage test used for determining an application for an interlocutory injunction. This is explained in a passage from Warren CJ's judgment in Piroshenko v Grojsman[10] as follows:

Caveats under the Torrens system are treated by the courts as analogous to applications for interlocutory injunctive relief. In so far as their registration is an administrative act, it is when application is made for their removal that the onus falls on the caveator to satisfy the two-stage test used by the court when deciding whether to exercise its discretion to grant interlocutory injunctive relief... This two-stage approach requires the caveator to establish that there is a serious question to be tried that they have the estate or interest which they claim in the land in question, and having done so, to establish that the balance of convenience favours the maintenance of the caveat on the Register of Titles until trial.[11]

1. In coming to the conclusion that the applicant's case did not have sufficient likelihood of success to justify the practical effect of the caveat, the judge, first, considered that the absence of initialling by Ms Pai meant that the prima facie case was 'weak'. This finding is relevant to ground 1(e).
2. It is true that the absence of Ms Pai's initials is a matter that a trial judge might consider in determining whether Ms Pai had really executed the 9 July Particulars. However, the judge was not required to consider this matter on an application to remove a caveat. Not only was this not required, it is ordinarily not appropriate for a judge to enter into a resolution of the underlying factual dispute on this sort of application at all.[12] This is particularly so where the resolution of the dispute will turn on findings as to the credit of witnesses. Thus, the judge was not in a position to assess the key issue as to whether the parties signed the 9 July Particulars or the first particulars document. In fact, the judge correctly acknowledged this given that she expressly stated that she was not required to resolve disputed facts or matters of credit.
3. However, notwithstanding the judge's careful acknowledgment, she has gone further than was appropriate, and has endeavoured to reach a finding about the strength of the key issue in the case. In so doing she has considered a discrete feature of the 9 July Particulars (the absence of Ms Pai's initials), without regard to the other evidence. Such other evidence included the direct sworn evidence of Ms Ek.
4. Even if the judge was in a position to assess the merits of the key issue, there could be no assessment on a prima facie basis, or otherwise, by having regard to only one isolated piece of evidence. In endeavouring to undertake an assessment of the case, the judge has hence used one piece of evidence in a selective and inappropriate way and has acted upon a wrong principle.[13] She thereby erred in her treatment of the evidence that the 9 July Particulars had only been initialled by the purchaser (ground 1(e)).
5. Turning then to grounds 1(a) and (b), the judge also considered that the ranges provided in respect of both the deposit (3-5 per cent) and settlement date (9-12 months) meant that the prima facie case on certainty was 'weak' because there were 'unresolved matters'.
6. However, it is only if the court is unable to put any definite meaning on a contract that it can be said to be uncertain.[14] Further, although it is an objection to a contract if one party is left to choose whether he or she will perform it,[15] this may be distinguished from a situation where a contract leaves one party with a latitude of choice as to the manner in which performance will take place.
7. This distinction is explained in the decision of the High Court in Thorby v Goldberg,[16] where an agreement was upheld although one party was given considerable discretion as to how it carried out its obligations. Kitto J (with McTiernan and Windeyer JJ agreeing) stated:

But an agreement is not void for uncertainty because it leaves one party or group of parties a latitude of choice as to the manner in which agreed stipulations shall be carried into effect, nor does it for that reason fall short of being a concluded contract. Nothing is here reserved for the determination by future agreement of the O and the G Groups. They have agreed upon all that they intend to be the subject of agreement between them. The case of Loftus v Roberts, which was much pressed upon us, has no application here. It decides only that where words which by themselves constitute a promise are accompanied by words which show that the promisor is to have a discretion or option as to whether he will carry out that which purports to be the promise, the result is that there is no contract on which an action can be brought. Such a situation does not exist in the present case.[17]

1. Thorby was more recently cited in Lewandowski v Mead Carney-BCA Pty Ltd,[18] where the NSW Court of Appeal held that a promise to pay a salary 'within a range of $7,000 and $9,000 per annum' was not illusory as the promise involved an obligation to pay a minimum salary of $7,000 per annum. In the lead judgment, Jacobs P considered that the case was analogous to the problem dealt with in Thorby and said:

The choice or discretion which is given to the defendant in selection of a salary arises directly from the form of the obligation which the defendant undertakes. This is an obligation to make an offer of employment at a salary within a certain range. There is implicit in these words, without any implication of a separate term of the contract, an obligation at least to offer the minimum salary. This would be a performance within the terms of the obligation.[19]

1. The decision of Lewandowski has been cited in other cases.[20] We also do not accept (as the respondent submitted) that the case should only have application in an employment context. It is consistent with the general principles espoused by the High Court in Thorby.
2. Returning to the present case, it was not suggested that the 9 July Particulars leave the purchaser with a discretion as to whether to pay the deposit, or whether to settle the contract (which could be objectionable). Rather, the main complaint appeared to be the lack of identification of the person given the choice to determine the figure within the range specified. However, the identification of that person is capable of resolution, consistent with the general approach of upholding contracts.[21] There is authority, for example, that it is the promisor who usually has the right to elect which of the methods of performance they will choose[22] (although this may need modification in respect of the time for settlement, given this will depend on mutual obligations).
3. The specification of ranges for the deposit and settlement date may therefore mean that issues will arise in the construction of the 9 July Particulars. This must ultimately be determined by the trial judge, in accordance with orthodox contractual construction principles. However, it says nothing about whether the 9 July Particulars gave rise to a binding contract in the first place.
4. We are acutely aware that the judge made her decision in very urgent circumstances without the benefit of full argument. Further, that she has given her reasons ex tempore. Nevertheless, her conclusion that the prima facie case was 'weak' by reason of 'uncertainty' has apparently been reached without regard to the principles we have cited. She has thereby fallen into error by failing to have regard to relevant considerations.[23]
5. There was some debate about whether the judge also relied on a further factor in her assessment of the prima facie case, namely the mechanism by which 'market value' would be determined. For the sake of completeness, we do not consider this to be the case. However, it is unnecessary to deal with this matter since we are satisfied that each of the matters we have identified (being the absence of Ms Pai's initials and the specification of the ranges) played a significant, if not determinative, role in the assessment of the prima facie case. They also affected the judge's assessment of the balance of convenience.
6. In such circumstances, grounds 1(a), (b) and (e) were sustained, and it is unnecessary to consider ground 2. It is also unnecessary to consider a further submission made by the applicant during oral submissions to the effect that there was a binding contract on Ms Pai's version in any event for a contract price of $12.15 million (given that she executed the first particulars of sale which contained this price).
7. Rather, we determined that leave to appeal should be granted and that the appeal would be allowed.

1. Given the urgency of this case, and that this Court has before it the evidence and submissions that were before the judge, it is appropriate for this Court to exercise afresh the discretion under s 90(3) and determine whether the caveat should be removed. The parties generally accepted that this was the appropriate course.
2. In this context, the respondent invited the Court to decide for itself that the prima facie case was weak, relying on a number of features said to support this position. In particular, the respondent submitted that there was a failure to agree on the deposit, settlement date and mechanism for determining the market value to ascertain if the additional $300,000 was payable. This not only meant that critical terms were missing, but also suggested that there was no intention to be finally bound. The respondent also relied on conduct post-dating the date of the 9 July Particulars. This included a text message from Ms Ek on 24 July 2022, which asked Ms Pai to prepare the contract of sale as soon as possible and stated that there was 'no contract so far'. The respondent also relied on the failure to pay the deposit.
3. We have already dealt with the complaints about the deposit and the settlement date. The submission about the payment of the additional $300,000 also lacked merit. The courts are routinely called upon to determine the market value of properties and will readily supply machinery when parties have failed to state the basis on which a value is to be determined.[24]
4. Insofar as there was reliance on material which post-dated the contract, post-contractual conduct can be admissible on whether the parties intended a contract to be binding in limited circumstances.[25] Suffice to say for present purposes, however, that there was conflicting material which may again be the subject of cross-examination at trial. By way of example, on 1 August 2022, Ms Pai stated that the private 'agreement' between the parties was 'cancelled', which may support the existence of the agreement. Ms Ek has also provided an explanation for the non-payment of the full amount of the deposit (that she was awaiting bank account details) which can only be properly tested at trial.
5. It is again inappropriate to consider these matters further since this is not the occasion for the final determination of disputed factual issues. Suffice to say that the 9 July Particulars suggest that there is a serious question to be tried as to whether Ms Ek has the interest she claims.
6. Given there is an arguable case, the critical question rather turns on where the balance of convenience lies. In considering this issue, the following evidence of Ms Ek is significant:

Available commercial properties for sale in Box Hill are very rare, and particularly multiple adjoining properties. My intention is that the dental practice that I own, which operates from Level 2, 43 Carrington Road Box Hill would move to one of those tenancies (as one is self-occupied by the vendor). There is better foot traffic from the ground floor.

1. The applicant's solicitor, Ms Tran, also confirmed that the applicant still wishes to purchase the Properties so that she can relocate her dental practice into one of the shops on the title. Further, she maintains that it is 'very rare' to find three adjacent commercial tenancies in the heart of Box Hill's retail zone and Ms Ek does not know if she will find a similar property at any time in the future.
2. The respondent sought to criticise this evidence, suggesting that it was mere 'opinion' and/or 'assertion'. In particular, it suggested that the Properties were surrounded by similar commercial properties; that there was no claim that the Properties were unique; that the applicant conceded it was difficult to quantify the hypothetical advantage she relied on; and that the applicant was willing to walk away from the purchase if the price was not right. The respondent also highlighted the interests of the purchaser, Jun Chen, and the dissipation of funds to third parties, including the estate agent.
3. It is proper to have regard to the interests of the other purchaser, although there was no evidence that the Properties were of particular value to Jun Chen (given that there was no affidavit from this purchaser). It is also true that the vendor has dissipated funds to third parties, though the applicant's undertaking as to damages may be called upon in this respect. As indicated already, the applicant has also undertaken to pay an amount equal to five per cent of the purchase price of $11.85 million, and further undertook to expeditiously commence and prosecute a proceeding for specific performance of the alleged contract.
4. Moreover, the evidence of Ms Ek, and her solicitor, was unchallenged, and not the subject of objection. It suggested that available commercial properties for sale in Box Hill like this were very rare and that the foot traffic would be better for Ms Ek's existing dental practice. The absence of ready quantification is also not helpful to the respondent since it suggests that damages are not adequate. Further, the fact that a business woman would negotiate to obtain a more favourable price says little about the importance of the Properties to her.
5. The matter is finely balanced. However, we are of the view that the lower risk of injustice[26] is to maintain the caveat until a proper determination can be made of the interests of all relevant parties.
6. We therefore made the following orders:[27]

(1) Leave to appeal is granted.

(2) The appeal is allowed.

(3) Paragraphs 3 and 4 of the orders of the County Court made on 21 October 2022 are set aside, and in lieu thereof there be orders that:

(a) the plaintiff's application is dismissed; and

(b) the plaintiff pay the defendant's costs of the proceeding on the standard basis.

(4) The respondent pay the applicant's costs of the application for leave to appeal and of the appeal on the standard basis.

[2] (1954) 91 CLR 353; [1954] HCA 72.

[3] Ibid 360-1 (Dixon CJ, McTiernan and Kitto JJ).

[4] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165, 182 [47] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); [2004] HCA 52.

[5] The reason for the confusion with number 15 appears to be that in Carrington Road, two neighbouring properties are both numbered 15. The sign on the property at number 13 is numbered 15.

[6] At 45-8 of the Revised Ruling given ex tempore on 21 October 2022.

[7] The following two grounds were abandoned at the hearing:

(c) the fact that the parties had not agreed on a mechanism by which 'market value' would be determined;

(d) the fact that the whole of the deposit had not been paid on time, where no notice of rescission had been given by the vendor/respondent;

[8] See Carbon Black Lab Pty Ltd v Launer [2015] VSCA 126, [39] (Santamaria, Ferguson and McLeish JJA); Lee v Yap [2021] VSCA 297, [78] (Kyrou, McLeish and Walker JJA) ('Lee').

[9] (1936) 55 CLR 499; [1936] HCA 40 ('House').

[10] (2010) 27 VR 489; [2010] VSCA 240.

[12] Lee [2021] VSCA 297, [80] (Kyrou, McLeish and Walker JJA).

[13] House (1936) 55 CLR 499, 504-5 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.

[14] Meehan v Jones [1982] HCA 52; (1982) 149 CLR 571, 578 (Gibbs CJ); [1982] HCA 52 ('Meehan').

[15] Ibid 589-90 (Mason J), 581 (Gibbs CJ).

[16] (1964) 112 CLR 597; [1964] HCA 41 ('Thorby').

[17] Ibid 605, citing Loftus v Roberts (1902) 18 TLR 532; see also Menzies J (Owen J agreeing) at 613.

[18] [1973] 2 NSWLR 640 ('Lewandowski').

[19] Ibid 642 (Hardie and Bowen JJA agreeing).

[20] See, eg, Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130, 136 (Kirby P); see also 151 (McHugh JA).

[21] Meehan [1982] HCA 52; (1982) 149 CLR 571, 589 (Mason J); [1982] HCA 52.

[22] Timmerman v Nervina Industries (International) Pty Ltd [1983] 2 Qd R 261, 262 (Douglas J, with Kelly and Sheahan JJ agreeing); Malago Pty Ltd v AW Ellis Engineering Pty Ltd [2012] NSWCA 227, [27] (Macfarlan JA, with Bathurst CJ and Meagher JA agreeing).

[23] House (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.

[24] Sudbrook Trading Estate Ltd v Eggleton [1983] 1 AC 444, 465; citing Milnes v Gery [1807] EngR 448; (1807) 14 Ves Jun 400; Talbot v Talbot [1968] Ch 1; Brown v Gould [1972] Ch 53.

[25] Molonglo Group (Australia) Pty Ltd v Cahill [2018] VSCA 147, [132] (Maxwell ACJ, Whelan and Kyrou JJA); citing Queensland Phosphate Pty Ltd v Korda [2017] VSCA 269, [37] (Tate and Beach JJA and Sifris AJA).

[26] Bradto Pty Ltd v State of Victoria [2006] VSCA 89; (2006) 15 VR 65, 73 [35] (Maxwell P and Charles JA); [2006] VSCA 89.

[27] These orders are subject to the undertakings given by the applicant, as described above.