Ibtisam Fahd v Dollar World Flagship Warehouse Pty Limited

Texts Cited: N/A

Category: Procedural rulings

Parties: Dollar World Flagship Warehouse Pty Limited (Defendant/Applicant)
Ibtisam Fahd (Plaintiff/Respondent)

Representation: Counsel:
E Vuu (Applicant)
F Corsaro SC and M Hazan (Respondent)
Solicitors:
D’Agostino Solicitors (Applicant)
Memcorp Lawyers (Respondent)

File Number(s): 2025/00086996

Publication restriction: Nil

JUDGMENT

1. Before the court is the defendants’ notice of motion filed on 19 February 2026 (19 February Motion) seeking to vary Order 5(c)(iii) of the consent orders made by the court on 4 July 2025 (Consent Orders) to reduce the amount payable into court by the first defendant under that order from $75,368.34 to $28,425.83.

2. The Consent Orders set out an interlocutory regime regarding the rent payable under the lease the subject of the dispute in these proceedings pending the resolution of the proceedings. The lease provided that the leased premises would be progressively handed over by the plaintiff to the first defendant in 3 separate tranches, described as tranches 1, 2 and 3. Order 5(c)(iii) requires the first defendant to pay into court, on a monthly basis, the amount of $75,368.34, which represents the rent payable under the lease in respect tranches 2 and 3. The proposed variation to Order 5(c)(iii) will have the effect of discontinuing the first defendant’s obligation to pay into court the monthly rent for tranche 3.

3. The lease was entered into on 17 July 2023 and relates to premises at 326 Hume Highway, Bankstown. The plaintiff is the lessor, the first defendant is the lessee and the second defendant has given a guarantee of the lessee’s obligations under the lease. The plaintiff purported to terminate the lease on 13 December 2024 on the basis of the first defendant’s failure to pay rent and commenced these proceedings by summons on 5 March 2025. By her statement of claim filed on 26 June 2025 the plaintiff seeks various relief including a declaration that she had validly terminated the lease and an order that the first defendant immediately deliver up and provide vacant possession of the premises and judgment in respect of amounts said to be due in respect of unpaid rent.

4. On 2 July 2025 the plaintiff’s solicitors wrote to the defendants’ solicitors informing them that the plaintiff proposed to take steps to take possession of the premises. The solicitors for the defendants responded by letter on 3 July 2025 offering to pay a sum in respect of unpaid rent and that if the plaintiff failed to withdraw her threat to take possession of the premises, they would approach the Equity Duty Judge on 4 July 2025. The solicitors for the plaintiff responded by letter on 3 July 2025 which set out a proposal for resolving the matter if the first defendant made certain payments in respect of the overdue rent and future rent, including paying into court an amount of $111,943.34 on a monthly basis in respect of the future rent payable for tranches 1, 2 and 3.

5. The defendants’ solicitors responded to this proposal by an email sent late on 3 July 2025 stating that they intended to approach the Equity Duty Judge the following day seeking an injunction against the plaintiff’s proposed action to lock out the first defendant from the premises.

6. Consistently with this, at 10.21am on 4 July an email was sent to my associate, as I was the Equity Duty Judge, attaching a notice of motion dated 4 July 2025 (4 July Motion) and a short outline of submissions, requesting that the matter be listed urgently for consideration of the 4 July Motion. It appears that by the time this email was sent, the plaintiff had already taken steps to bar the first defendant from access to the premises on the morning of 4 July.

7. The affidavit of Mr Anthony Romeo of 4 July 2025 in support of the 4 July Motion set out at paragraph 32 the various grounds on which the defendants proposed to resist the plaintiff’s statement of claim as follows: (a) the plaintiff has not complied with her obligations under the lease; (b) the plaintiff has not effected handover of tranches 2 and 3 of the leased premises; (c) the plaintiff is not entitled to rental payments for tranches 2 and 3 of the leased premises; (d) the first defendant is entitled to a set-off by reason of the plaintiff’s failure to comply with her obligations under the lease; and (e) the plaintiff’s purported notice of termination dated 4 December 2024 is invalid. The defendants have now filed a cross-claim raising these matters, including the allegation that the plaintiff failed to hand over tranches 2 and 3 of the leased premises in a manner compliant with the terms of the lease.

8. The substantive relief sought in the 4 July Motion comprised two orders. The first was an order restraining the plaintiff from asserting any right of entry or possession. The second was an order for the first defendant to pay into court (a) the amount of $887,256.73 (being an amount in respect of allegedly overdue rent); (b) the amount of $28,426.06 on a monthly basis (being the tranche 2 rent); and (c) the amount of $36,575 on a monthly basis (being the tranche 1 rent). In other words, the 4 July Motion sought an order preventing the plaintiff from taking possession of the premises in return for the first defendant agreeing to pay into court the rent payable in the future for tranches 1 and 2, but not the rent payable in the future for tranche 3.

9. Following the sending of the email to my associate on the morning of 4 July, there were discussions between the parties which ultimately resulted in agreement being reached as to the form of consent orders to be made by the court, being the Consent Orders.

10. At 2:10pm on 4 July the defendants’ counsel sent an email to my associate which stated relevantly:

The parties have resolved their differences, and by consent, have agreed to the attached orders.

Given the urgency, the parties propose that the order be made in chambers, but this is subject to his honour’s view.

If convenient, Mr Hazan (copied in) and I are available at 2:30pm to appear before his Honour in person.

11. Ultimately, both counsel appeared before me as Duty Judge at around 3pm that afternoon and handed up the form of the Consent Orders which I then made.

12. The Consent Orders contained a regime for the payment of rent in respect of the leased premises which differed from the regime proposed in the 4 July Motion in a number of respects, including:

(a) rather than paying the amount of $887,256.73 into court, first defendant was required to pay $110,000 to the plaintiff and the balance of $777,256.73 into court (orders 5(c)(i) and (ii)); (b) the first defendant agreed to pay into court on a monthly basis the amount of $75,368.34 (being the total of the monthly rent for tranches 2 and 3) rather than only $28,426.06 (being the monthly rent for tranche 2) (order 5(c)(iii)); and (c) the first defendant agreed to pay $36,575 per month to the plaintiff’s nominated bank account (being the monthly rent for tranche 1), rather than into court (order 5(c)(iv)).

13. The order which the defendants wish to vary is order 5(c)(iii), which provides:

5. Without admissions, in relation to the property situated at 326 Hume Highway, Bankstown NSW …, and upon the First Defendant giving the usual undertaking as to damages, order that:

…

(c) the First Defendant:

…

(iii) pay the sum of $75,368.34 into Court on or before the 17th day of each month, with such obligation to commence on 17 July 2025 until the earlier of:

1. the resolution of these proceedings by the Court; or

2. by written consent between the parties legal representatives.

14. By the 19 February Motion the defendants seek an order varying order 5(c)(iii) so that it reads as follows:

the First Defendant is to pay the sum of $28,425.83 into Court on or before the 17th day of each month, with such obligation to commence on the month following entry of this order until the resolution of these proceedings by the Court.

15. The effect of this variation would be to exclude the tranche 3 rent from the monthly amount payable into court, which is the position which the defendants originally sought to achieve in the 4 July Motion.

16. The court has a discretion to vary consent orders where it is in the interests of justice to do so. Generally, unless the consent orders are based on a contract between the parties, the rule of practice applied in exercising that discretion in the case of an interlocutory order which is contemplated to operate until final hearing is that the court would only vary the order if there has been a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application: see Brimaud v Honeyset**t Instant Print Pty Ltd (1988) 217 ALR 44 at 46 per McLelland J; Short v Crawley (No 42) [2009] NSWSC 1110 at [75] per White J.

17. As Rees J noted in Guo v Xu [2021] NSWSC 460 at [162], the nature and quality of the consent underpinning the order will affect the court’s willingness to vary the order. In particular, in circumstances where a contract between the parties underpins a consent order, the court will generally only interfere with such an order on the same grounds as it would with any other contract, and consequently to interfere with such an order on some other basis would generally require exceptional or special circumstances: see Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185 at 189; Paino v Hofbauer (1988) 13 NSWLR 193 at 198; Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198; [2015] NSWCA 130 at [27]; Guo v Xu at [162]-[163].

18. In my view, the Consent Orders reflected a contract between the parties which resulted from a negotiation between them in the period leading up to the making of the Consent Orders on 4 July 2025 as to the performance by the parties of their obligations under the lease until the conclusion of the proceedings. This was in summary that in consideration for the plaintiff not exercising her right of re-entry under the lease for default in payment of rent, the first defendant would make the payments in respect of rent set out in the Consent Orders including in the case of the rent for tranches 2 and 3 by paying the relevant amounts into court rather than to the plaintiff. That this was intended to be a contract is indicated by the terms of Order 5(c)(iii) itself, which provides for the rent for tranches 2 and 3 to be paid into court until the earlier of resolution of the proceedings or written consent of both parties’ legal representatives. In other words, without the agreement of both parties, the arrangement was to continue until resolution of the proceedings by the court.

19. There is nothing in the terms of the Consent Orders to indicate that the parties intended that either would have liberty to apply to the court for a variation of the orders; to the contrary, the orders were to continue until they agreed to vary them which is the position which applies under a contract.

20. In my view, the defendants have not established that there are any exceptional or special circumstances to justify the variation of the orders. What is put forward is that reducing the amount payable into court under Order 5(c)(iii) would allow the first defendant to grow its business with no additional hardship visited upon the plaintiff. However, that is a matter which was just as relevant at the time the Consent Orders were made as it is now. In my view, Order 5(c)(iii) should not be varied because that would be to relieve the defendants from the bargain they freely entered into at the time the Consent Orders were made with no legal basis put forward to justify not enforcing that bargain or other circumstance which is exceptional or special.

21. The defendants relied upon the decision in Next Constructions Pty Ltd (subject to a Deed of Company Arrangement) v Ryan [2026] NSWSC 222 where Williams J varied freezing orders made by consent. However, that case is distinguishable because the orders themselves granted liberty to the parties to apply ‘with respect to the operation of the undertaking provided by the defendants’. That is not so in the present case. The presence of those words was important to her Honour’s conclusion at [31] that a reasonable business person in the position of the parties, understanding the nature of a freezing order for which the defendants’ undertakings were offered as a substitute, would not have understood the parties to have intended that the undertakings would effectively give the plaintiffs security for any future judgment in their favour irrespective of any resulting prejudice to the defendants’ ability to meet their expenses and liabilities, if the defendants’ financial circumstances changed during the course of the proceedings.

22. Further, the Consent Orders are quite different from the consent orders involved in Next Constructions which were undertakings in the nature of freezing orders to prevent the frustration of the court’s process. What the Consent Orders do is preserve the status quo in the dispute over a lease, by requiring the first defendant to pay the rent that it is obliged under the lease to pay to the plaintiff, albeit in a slightly different manner, for which it received a real advantage being that the plaintiff agreed to allow the first defendant to remain in possession until the proceedings were determined which was clearly of benefit to the first defendant in the conduct of its business. In those circumstances, the reasonable business person would in my view have understood the defendants to have agreed that the Consent Orders would continue until final conclusion of the proceedings unless the parties otherwise agreed, which is what the Consent Orders provided.

23. Based on this conclusion, it is not necessary to consider the rule of practice referred to earlier but I note that I am not satisfied on the basis of the evidence before the court on this motion that the defendants have established a material change of circumstances since the Consent Orders were made or the discovery of new material which could not reasonably have been put before the court when the Consent Orders were made.

24. For these reasons the 19 February Motion will be dismissed with costs.

Orders

25. The Court makes the following orders:

26. The Defendants’ notice of motion filed 19 February 2026 is dismissed with costs.

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