HASHIMI -v- PETROVSKI [2025] WASC 483 (17 November 2025)

1. In determining whether to grant an interlocutory injunction the court must consider whether the plaintiff has made out a prima facie case and whether the balance of convenience favours the grant of the injunction.[1]
2. In order to establish a 'prima facie case', the plaintiff does not have to show that it is more probable than not that the plaintiff will succeed at trial. It is sufficient that the plaintiff shows a sufficient likelihood of success to justify the preservation of the status quo pending the trial.[2]
3. The court must also consider whether the inconvenience or injury that the plaintiff would likely suffer if an injunction was refused is outweighed by the prejudice that the defendant would suffer if an injunction was granted.[3] The question as to whether damages would be an adequate remedy is an aspect of the balance of convenience.[4]
4. The enquiries relating to a prima facie case and the balance of convenience are related, not independent enquiries.[5] As the strength of the plaintiff's case diminishes, the court will place more weight on considerations of balance of convenience and the practical consequences that flow from the granting of the injunction.

Have the plaintiffs made out a prima facie case?

1. The plaintiffs seek to make out a prima facie case in two ways: firstly, they seek to establish that they have an entitlement to exercise a right to extend the Sublease Agreement for a 3‑year term commencing on 2 November 2025 and secondly, they seek to establish that they have a prima facie case against the defendant based on proprietary estoppel.

1. The plaintiffs contend that they entered into a partly oral/partly written sublease agreement with the defendant in October 2022, by which the parties agreed:

(1) the rent would be $3,500 per month inclusive of GST and outgoings, payable as before the first day of each month;

(2) terms as to utilities, deposit and insurance;

(3) the initial term would commence from the date of signing a written agreement and would end on 1 November 2025;

(4) the plaintiffs would have an option to extend the lease term for a further 3-year term, after 1 November 2025 (Option to Renew);

(5) the parties would and did execute a basic agreement setting out all of the terms agreed save for the Option to Renew; and

(6) the defendant would prepare a more formal document which would include the Option to Renew, to be signed by the parties.

1. There is an issue as to whether evidence of oral statements and/or negotiations prior to the Sublease Agreement sought to be relied upon by the plaintiffs is admissible by reason of the parol evidence rule.
2. Generally, extrinsic evidence that seeks to add to, subtract from, vary or contradict the terms of a written contract is inadmissible, subject to certain exceptions.[6] However, as the plaintiffs contend that the sublease was a partly oral/partly written agreement, I have not, for the purposes of considering this chamber summons, ruled the evidence inadmissible.
3. The Property Law Act 1969 (WA) (Property Law Act) provides statutory guidance on the creation of interests in land, which must generally be in writing and signed by the relevant parties. Section 34(1)(a) of the Property Law Act reinforces the principle that interests in land cannot be created or disposed of except by writing signed by the person creating or conveying the interest. There is, however, an exception to this rule which the plaintiffs seek to rely upon - that being the doctrine of part performance. Section 36(d) of the Property Law Act provides that nothing in s 34 affects the operation of the law relating to part performance.
4. The doctrine of part performance provides an exception to the requirement that a lease must be in writing where it would be inequitable for the party to rely upon a lack of writing to avoid their obligations under an agreement. The acts which a party seeks to rely upon as invoking the doctrine of part performance must be unequivocally referable to some agreement as that alleged, that is those acts 'must be such as could be done with no other view than to perform some contract of the general nature of that alleged'.[7]
5. The plaintiffs seek to rely upon their execution of the Sublease Agreement as an act of part performance referable to some agreement of the general nature of the alleged partly oral/partly written sublease agreement entered into in October 2022.
6. In my view, there is no merit to this contention. If the act of signing a written agreement could be viewed as part performance referable to a partly oral/partly written agreement, then s 34 of the Property Law Act would be rendered redundant. The plaintiffs' act of signing the Sublease Agreement is, on one view, entirely consistent with performing a wholly written agreement. Therefore, it is not done with no other view than to perform some partly oral/party written agreement to sublease.
7. The plaintiffs have failed to establish a prima facie case that the Option to Renew is enforceable even though it is not in writing.
8. Another issue arising is whether the Sublease Agreement supersedes any oral sublease agreement.
9. The Sublease Agreement contains the following express written terms:

• - This Agreement shall be effective on the date of signing this Agreement (hereinafter referred to as the 'Effective Date' and will end on 01/11/2025.
• - Upon the end of the term of the Agreement, this Agreement will not be automatically renewed for a new term.

• - This Agreement contains the entire agreement and understanding among the Parties hereto with respect to the subject matter hereof, and supersedes all prior agreement, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. The express terms hereof control and supersede any course of performance and/or usage of the trade consistent with any of the terms hereof.

• - The parties agree that any amendments made to this Agreement must be in writing, where they must be signed by both Parties to this Agreement.

1. In the case of Equuscorp Pty Ltd v Glengallen Investments Pty Ltd,[8] the High Court held that where a written agreement is inconsistent with a prior oral agreement, the written agreement generally prevails, subject to claims of fraud, misrepresentation or mistake. There is a strong, but rebuttable presumption that a written agreement is presumed to embody the entirety of the parties' intentions.[9] In order to rebut this presumption, there must be clear evidence to the contrary.
2. In my view, there is not clear evidence to the contrary. On the basis of the evidence before the court, the only reasonable inference open is that the parties intended for the written agreement to comprehensively record their intentions. Rather, I find that the evidence filed in support of, and in opposition to, the chamber summons strongly supports the drawing of an inference that the parties did not agree at any time to a 3‑year option to renew the Sublease Agreement.
3. In my view, it is inherently implausible in all of the surrounding circumstances, that the parties would have included all of the relevant terms in a written Sublease Agreement, save for the Option to Renew. The Sublease Agreement does not bear the hallmarks of a 'rough draft' - it appears to be a comprehensive, but plainly written, document.
4. The following matters support the finding that there was no agreement by the defendant to grant the plaintiffs the Option to Renew:

(1) Mario Petrovski, on behalf of the defendant, sent the second plaintiff an email on 29 October 2022 attaching the Sublease Agreement 'for your records that we will sign together in person', and referred to the premises that 'we are sub-leasing to you for the next three years'[10] - there is no mention of the agreement being a 'rough draft' or there being a 'more detailed agreement' to follow and there is no responsive email from either of the plaintiffs to this email;

(2) the Sublease Agreement does not bear the hallmarks of a 'rough draft' - it is a plainly written document that contains the clause headed 'TERM' which does not include an option to renew the Sublease Agreement;

(3) in my view, it is implausible that the plaintiffs would have signed the Sublease Agreement without inserting an option to renew clause, particularly in light of the first plaintiff's evidence that he would not have signed the Sublease Agreement if the plaintiffs did not have the Option to Renew;

(4) there is no evidence of anything in writing, for example in the form of emails or text messages, which supports the plaintiffs' contention that the defendant agreed to later provide them with a formal written lease or that they were proceeding on the understanding that they had the right to exercise a 3‑year option to renew the Sublease Agreement. The first time the plaintiffs refer in writing to the Option to Renew is by email to the defendant on 15 August 2025.[11] This email was sent after Mario Petrovski had emailed the first plaintiff on 14 June 2025, advising him that the Sublease Agreement was due to expire on 1 November 2025.[12] During that two month period from June to August, the plaintiffs did not respond to the email from Mario Petrovski. If the plaintiffs had in fact agreed with the defendant in October 2022 that a 3‑year option to renew would be included in a formal written lease, it would be unusual for the plaintiffs to not send an email or a text message to the defendant to follow up on the formal lease agreement or to confirm the agreement to the Option to Renew throughout the entire period from October 2022 to August 2025, and especially after receiving the 14 June 2025 email confirming the expiry of the sublease on 1 November 2025; and

(5) throughout July and August 2025, the defendant sent the first plaintiff several text messages of 'property for rent' advertisements - the inference I draw from this evidence is that the plaintiffs and the defendant were operating on the understanding that the sublease would expire on 1 November 2025. The plaintiffs did not respond to those texts at all, let alone assert the existence of the Option to Renew.

1. I find therefore, that the plaintiffs have failed to establish a serious question to be tried as to whether any oral agreement survives the written Sublease Agreement.
2. To the extent that the plaintiffs rely upon a cause of action in misleading, deceptive or unconscionable conduct in contravention of the Australian Consumer Law (ACL), s 236 of the ACL provides that a party may recover damages for the loss and damages suffered as a result of a contravention of the ACL.
3. The measure of damages is generally calculated by reference to tortious principles, that is to place the plaintiffs in the position they would have been had the conduct not been engaged in.[13] The measure of damages is not, as the plaintiffs seem to contend by reason of the relief they seek, to place the plaintiffs in the position they would have been had the misrepresentation been true or the unconscionable conduct not have occurred.
4. Further, I find that the plaintiffs have not established a serious question to be tried for misleading, deceptive or unconscionable conduct because there is insufficient evidence capable of establishing that the plaintiffs relied on the alleged representation of the defendant that he would grant the plaintiffs a 3-year option to renew the Sublease Agreement. In my view, by signing the written Sublease Agreement which did not contain the Option to Renew, the plaintiffs evinced an intention not to rely on any earlier representation to the contrary.
5. In summary, given the Option to Renew is not in writing, the weight of the evidence supporting the finding that the defendant did not agree to the Option to Renew and the lack of reliance on any representation made by the defendant to the plaintiffs about the Option to Renew, I find that the plaintiffs have not made out a prima facie case that they have an entitlement to exercise a right to extend the Sublease Agreement for a 3‑year term commencing on 2 November 2025.

1. The plaintiffs submit that it has made out a prima facie case of proprietary estoppel in that:

(1) the plaintiffs relied on the representations by the defendant about the Option to Renew;

(2) a reasonable person in the position of the defendant is likely to have expected or intended reliance on the representation;

(3) the plaintiffs relied on the representation by proceeding with the leasing arrangements and would not have done so but for such reliance; and

(4) the plaintiffs will be left in a worse position if the promise had not been made in that they would not have proceeded with the arrangements and incurred the capital expenses of $95,000.

1. For the reasons I have identified when considering whether the plaintiffs made out a prima facie case on misleading, deceptive and unconscionable conduct, I find that the plaintiffs did not rely upon the alleged misrepresentation as to the Option to Renew. In the absence of such reliance, the plaintiffs have not made out a prima facie case of proprietary estoppel.

Another issue - futility of relief sought by the plaintiffs

1. The plaintiffs seek the following relief in relation to the Option to Renew:

(1) a declaration that the Subleasing Agreement includes a term by which the plaintiffs would have an option to extend the sublease term for a further 3-year term at the expiration of the initial 3‑year term; and

(2) orders for specific performance by the defendant of the term referred to above by the execution of an agreement to lease on terms providing for the grant of an option to extend the term of the sublease for a further 3-year term and otherwise on the terms of the Sublease Agreement.

1. The plaintiffs commenced these proceedings by Writ of Summons filed on 4 November 2025. Even on the plaintiffs' case, the Sublease Agreement had already expired. The plaintiffs do not assert that they purported to exercise the Option to Renew during the term of the Sublease Agreement. An order for specific performance of an Option to Renew in a sublease that has already expired, is, in my view, futile.

1. Having found that the plaintiffs have not established a prima facie case, the chamber summons must be dismissed. Although, I am not required to consider the balance of convenience, I am satisfied in any event that the balance of convenience favours the refusal of the interlocutory injunction sought by the plaintiffs because:

(1) the plaintiffs are no longer in possession of the Bayswater Premises - they seek to reverse, not preserve, the status quo;

(2) the plaintiffs have merely asserted that they will suffer loss and damage if the injunction is not granted - there is no quantification of any loss of profit or business and no independent evidence of the costs of relocating premises;

(3) the defendant intends to use the Bayswater Premises to store cars he has purchased and to conduct refurbishment work. The estimated cost of storing 15 cars at alternative premises is $7,425 per month;[14]

(4) the first plaintiff deposes that 'the directors are not in a financial position to personally borrow additional funds to cover relocation or set up costs',[15] which he estimates to be approximately $50,000. This causes me to doubt whether the plaintiffs have the capacity to pay a sum in the range of the alternative storage costs for the defendant in performance of their undertakings as to damages. The fact that the first plaintiff owns a property does not persuade me to take a different view, given that property is owned jointly with another person and has a mortgage registered against the title;[16] and

(5) the plaintiffs have, in my view, unjustifiably delayed commencing these proceedings and filing the chamber summons, having been aware of the defendant's intention to take possession of the Bayswater Premises pursuant to the Sublease Agreement since at least 25 June 2025 and not taking any action until after the Sublease Agreement had ended.

1. The plaintiffs have failed to establish that they have a prima facie case. The chamber summons is dismissed. Subject to hearing the parties as to final orders and costs, my preliminary view is that costs should follow the event and the plaintiffs be ordered to pay the defendant's costs of the chamber summons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [87].

[2] Mineralogy Pty Ltd v Sino Iron Pty Ltd [87].

[3] Mineralogy Pty Ltd v Sino Iron Pty Ltd [87].

[4] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 [130] - [131].

[5] Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] - [12].

[6] Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337.

[7] Lighting By Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2008] WASCA 23; (2008) 35 WAR 520 [73] (Buss JA & Le Miere AJA) (Lighting By Design).

[8] Equuscorp Pty Ltd v Glengallen Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471.

[9] S & K Investments Pty Ltd v Cerini [2016] WASC 233.

[10] Mario Petrovski 11 November 2025 Affidavit, Annexure 'MP-2'.

[11] Mario Petrovski 11 November 2025 Affidavit, Annexure 'MP-6'.

[12] Mario Petrovski 11 November 2025 Affidavit, Annexure 'MP-7'.

[13] Warwick Entertainment Centre Pty Ltd v Alpine Holdings Pty Ltd [2005] WASCA 174; (2005) 224 ALR 134.

[14] Mario Petrovski 11 November 2025 Affidavit [48] - [51], Annexure 'MP-13'.

[15] Hashimi 10 November 2025 Affidavit [22].

[16] Hashimi 10 November 2025 Affidavit [26].