Plaintiff v Defendants

2 The application was heard on 31 July 2025. These reasons record the ex tempore ruling delivered on 1 August 2025.

3 The caveats were lodged by the first to ninth and eleventh to eighteenth defendants in circumstances described below. The tenth defendant is the Registrar of Titles, who did not appear, and by letters to the Prothonotary of this Court, advised that she did not intend to appear in this proceeding or claim costs. The first to fourth, sixth to eighth and eleventh to eighteenth defendants were represented, and the fifth and ninth defendants were self-represented in the proceeding. I have had regard to the evidence filed by the parties in coming to the fact findings that I now describe.

4 A company called Emanda Pty Ltd entered into a contract to acquire the Property in December 2014. After contracting to purchase the land, but prior to settlement, Emanda commenced offering interest in the land through arrangements for persons to acquire lots in the Property once it was sub-divided. The evidence of the defendants is that Emanda promoted the sale of these interests largely to the Muslim community. The sale terms were structured so as to enable the purchase without having to resort to interest-based lending or finance, and the evidence was that this is because of those principles of Islamic law which consider the charging of interest to be unjust.[1]

5 The interests were acquired over time by purchasers who entered into contracts for the sale of land, and in many cases, also Deeds of Joint Venture Agreement. Essentially, the Joint Venture Agreement provided that the land would be developed and subdivided, and the purchaser would acquire a nominated lot through the exercise of an option to purchase. Under the Joint Venture Agreement, the purchaser was obliged to pay amounts structured as contributions to the development project with respect to a nominated lot.

6 First, the Joint Venture Agreement provided by recital F that:

In exchange for the Contributor contributing to the venture costs and paying the additional contribution, the Contributor is herein granted an Option to Purchase the Nominated Lot and at the completion of the project and upon the Nominated Lot being available for sale, if the option to purchase is exercised by the Contributor, the additional contribution will be credited towards the purchase of the Nominated Lot by the Contributor (as Purchaser) upon settlement of the sale of the Nominated Lot pursuant to a Contract of Sale, to be entered into by the parties for the purchase of the Nominated Lot by the Contributor.[2]

7 More specifically, terms of the Joint Venture Agreement provided as follows. By clause 2.5, the Joint Venture Agreement stated that:

Emanda agrees to the Contributor joining the venture with Emanda to the extent of the Contributor contributing to the venture costs and paying the additional contribution in exchange for the Contributor being granted an option to purchase the Nominated Lot.[3]

8 Pursuant to clause 2.6 of the Joint Venture Agreement, a contract of sale would also be entered into, simultaneous with the execution of the deed.

9 The Joint Venture Agreement contained provisions as to how the contributions were to be structured. Clause 2.14.1 stated the parties' agreement that:

The additional contribution is the sum of money payable towards the venture by the Contributor equivalent to the agreed value of the Nominated Lot, which is monies that will later be deemed as payment (or part payment where monies are insufficient), of the Purchase Price for the Nominated Lot, if the herein option to purchase is exercised by the Contributor.[4]

10 The definitions of these amounts, the additional contribution and also of the ESVC amount were contained in clause 1.3 of the Joint Venture Agreement. 'Additional Contribution' was defined as meaning:

A sum of money payable toward the venture by the Contributor equivalent to the agreed value of the Nominated Lot, which is monies that will be later deemed as payment (or part payment if funds are insufficient) of the Purchase Price for the Nominated Lot if the herein option is exercised by the Contributor.

The share in venture costs payable by each Contributor, which is calculated based on the total of the venture costs divided equally between each Contributor (subject to the number of Lots nominated to each Contributor) ("ESVC amount").

The Contributor's contribution is payable as follows:

(a) an initial sum of money on signing of this Deed, as specified in the Schedule herein ("initial contribution");

(b) a further sum is to be paid by the date set out in the Schedule ("second contribution"); and

(c) the balance of the contribution payable by the Contributor is to be paid in instalments as set out in the Schedule herein ("subsequent contributions") with the first instalment being payable thirty (30) days following payment of the second contribution and thereafter in intervals, as set out in the Schedule herein for the term of the venture with any balance owed on the date to be scheduled for settlement of the sale of the Nominated Lot to the Contributor (as Purchaser under a Contract of Sale) if the herein option to purchase is exercised, to be paid in full at settlement.

13 Clause 2.33 set out the option to purchase, relevantly stating at subclause 2.33.1:

The herein mentioned option to purchase is available to be exercised or waived by the Contributor once the Contributor receives notice by Emanda of the Nominated Lot being available for sale.

14 There was evidence of the Joint Venture Agreements executed by various defendants. The schedule to the Joint Venture Agreements varied, as completed for an individual contributor, in each case.

15 The structure of the schedule to the standard Joint Venture Agreement was as follows:

1. Nominated lot #:
2. Size of Lot:
3. Value of the Nominated Lot:
4. ESVC Amount:
5. Additional Contribution: The amount shown in Item 3.
6. Total Contribution: The total of Item 4 and Item 5
7. Contribution/s:

(a) Additional Contribution Total: The amount shown in item 5

(i) Initial Contribution: Amount:

Date Payable: on signing of this Deed being on

(ii) Second Contribution: Amount:

Date Payable:

(b) ESVC Amount Total: The amount shown in item 4

(i) Subsequent contributions: Instalment Amount:

Date payable: Weekly Fortnightly Monthly Quarterly

*circle appropriate one.

Date of payment of

First Subsequent

Contribution: Thirty (30) days after the payment of the Second Contribution being on

16 In many cases, item 7 (b) of the Joint Venture Agreement schedule was not completed, and in many cases, there was difficulty in reconciling the various amounts under the various headings. There was no real consistency in the way those schedules were completed.

17 Most buyers also entered into a contract of sale of land with respect to the nominated lot. The contract for the sale of land referred to a purchase price with a deposit and a balance payable. Clause 22 of the contract of sale's special conditions referred to 'Instalment payments outlined in deed of agreement', and stated:

The Purchaser and Vendor hereby agree that this Contract of Sale is subject to and conditional upon both parties entering into a deed of agreement for payments to be made by the Purchaser toward Development Costs.

18 There was no other evidence about whether that was a reference to the Joint Venture Agreement, but the defendants submitted that it must be inferred that that was the deed of agreement referred to, and I accept this. The evidence for both the plaintiff and the defendants showed that most parties had executed both a deed of Joint Venture Agreement and a contract of sale; some only executed one or the other.

19 Evidence was given that the defendants, at least those who were represented in the proceeding, had paid for amounts due under the contracts and deeds, and that those payments amounted to a total of just over $2million.

20 Emanda continued to offer interests in the land after settlement of the contract for the Property. The contributors over time, both prior to and after settlement, lodged caveats with respect to their interests in the Property. One group of caveators, the 1st to 9th defendants, described their interest as 'freehold estate'. This was largely caveators who had lodged their caveats in the years 2022 and 2023 and early 2025. Another group lodged caveats later, in July 2025, which described their interest as 'lienee', based on a 'purchaser's lien to secure repayment of money paid under a contract of sale'.[5]

21 Emanda became registered proprietor of the land on 19 January 2017. On around 1 July 2022, Emanda entered into a loan agreement with Perpetual Corporate Trust Limited and Balmain Fund Administration Limited in their capacities as trustees for the Kenning Road Sub-Trust. ACMC subsequently took an assignment of the debt under the loan agreement. The plaintiff's evidence was that Perpetual, Balmain and ACMC did not have any prior relationship with Emanda before entering into the loan agreement.

22 The plaintiff did give evidence of the negotiations for entry into the loan agreement in the period prior to July 2022. That evidence was from Mr Jarrod Logan, a partner and loan originator at Balmain Nb Corporation Ltd, given on behalf of ACMC.[6] Mr Logan gave evidence of his dealings with a mortgage broker acting for Emanda, Mr Ritesh Darjai of OneTouch Finance Solutions. Mr Logan's evidence was to the effect that after an approach from Mr Darjai acting for Emanda, Mr Logan provided an indicative funding proposal to Emanda on 24 May 2022. On 16 June 2022, Balmain received a valuation report which disclosed that several caveats had been lodged on the title to the Property.

23 Mr Logan's evidence was that upon becoming aware of the existence of multiple caveats lodged on the Property, Mr Jack Graham, Senior Analyst at Balmain, sent emails to Mr Darjai seeking clarification on whether there were third-party investors involved in the development of the Property, what the caveats related to, on what grounds they had been lodged, what type of agreements formed the basis of the caveats, and whether the caveators had an interest in the Property.

24 The evidence is that on 20 June 2022, Mr Darjai responded via email to Mr Graham advising that the caveators were all family members of Mr Lulu Seid, the director and primary representative of Emanda, and that there were no agreements in place between Emanda and the caveators.

25 Mr Darjai also responded that, following receipt of legal advice, the caveats were lodged to ensure that the best interests of Mr Seid and the development of the Property were met. He said that all caveats would be removed in order to facilitate the refinance of the mortgage, and that there were no third party investors involved in the development of the Property.

26 Mr Logan's evidence is that in or around late June 2022, he had numerous phone calls with Mr Darjai, in which he sought further clarification on the basis on which the caveats were lodged and whether there were any formal agreements in place between Emanda and the caveators that would entitle the caveators to lodge their caveats. His evidence was that he recalled Mr Darjai saying words to the following effect during those conversations:

(a) There were no agreements in place between the caveators and Emanda.

(b) The caveators were family members of Mr Seid, who were asked by Mr Seid to lodge caveats on title to protect Emanda's interests.

(c) This was on the basis that a previous financier, Oak Capital Wholesale Fund Pty Ltd (Oak Capital), had been charging high penalty interests rates under a previous loan secured by mortgages on title to the Property and [another property owned by Emanda].

(d) Mr Seid was concerned that Bligh Financial would charge high penalty interest rates under its loan. It was Mr Seid's understanding that the caveats would prevent any mortgagee from doing so.[7]

27 Mr Logan's evidence was that, based on what Mr Darjai had told him, he understood that the caveators on title to the Property at the time did not have any estate or interest in the Property, and that they had not entered into agreements or contracts with Emanda for presales or otherwise.[8]

28 The evidence establishes that Balmain, Perpetual and Emanda executed the loan agreement, and that the mortgage was subsequently registered by Perpetual on title to the Property on 12 August 2022. This was done following orders made by this Court in August 2022 in an application brought by Emanda for the removal of the caveats.[9] The orders also provided that the caveators could relodge their caveats on the Property again after the mortgage of Perpetual had been registered.

29 Emanda ultimately defaulted on the loan, and that debt was then assigned to ACMC by Perpetual on around 25 September 2023. ACMC appointed Mr Ken Whittingham of Fort Restructuring as receiver and manager over the assets of Emanda on 24 October 2023,[10] and ACMC then exercised its power of sale as mortgagee and entered into a contract to sell the land to Allam Land No.17 Pty Ltd on 23 December 2024.

30 The plaintiff did not, in its original material, or in the period prior to the application being heard, disclose the sale price nor the amount of the mortgage debt. The sale price and outstanding mortgage debt were ultimately disclosed in an affidavit filed on the day of the hearing on 31 July 2025.[11]

31 The evidence was that the outstanding mortgage debt was, as at 11 August 2025, approximately $7,020,714.05. With the various costs to be deducted from the sale proceeds, including GST, land tax, agent's commission and costs of the proceeding, there would be very little, if any, surplus. The evidence was also that the sale price for the property was $8.4million. This outcome, that there was likely to be minimal, if any, surplus funds available to the caveators at settlement, was something that did not appear to have been known to any of the defendants prior to this hearing.

32 So with that background, I turn to the application. The application is made under s 90(3) of the Transfer of Land Act, which provides that:

Any person who is adversely affected by any such caveat may bring proceedings in a court against the caveator for the removal of the caveat and the court may make such order as the court thinks fit.

33 In an application under s 90(3), the authorities establish that there are two issues for the Court, on which the caveator bears the onus. The first is whether there is a serious question to be tried, that the caveator has the estate or interest in the land to which they claim under the caveat. The second is that the balance of convenience favours maintenance of the caveat on the register of titles until final determination of the disputed facts or claims the caveat seeks to protect at trial. I refer to Piroshenko v Grojsman,[12] which has been approved on numerous occasions by the Court of Appeal, including in AE Brighton Holdings Pty Ltd v UDP Holdings Pty Ltd[13].

34 The plaintiff was represented by senior and junior counsel and filed comprehensive written submissions and made oral submissions at the hearing on 31 July 2025 before me and at a mention on Wednesday, 30 July 2025. The first to fourth, sixth to eighth and eleventh to eighteenth defendants were represented by solicitors and counsel. I heard from the solicitor for those defendants at the mention on Wednesday, who also provided comprehensive written submissions in advance of the hearing. The defendants' counsel had also made comprehensive oral submissions at the hearing on 31 July 2025.

35 The defendants' position as put by counsel was, first, that there was a serious question to be tried, that all of the defendants have an equitable interest in the Property in the form of purchasers' liens. These liens arise on the basis that the defendants had paid money to Emanda as vendor under the contracts of sale and the Joint Venture Agreements, and on termination of those agreements the vendor was required to repay the money paid by the defendant contributors. The equitable lien therefore arising secures the payment of that money owing. This principle is referred to in Hewett v Court[14] and has been applied since. The plaintiff also acknowledged the authorities on this principle and accepted that a purchaser's lien could arise and would give rise to an equitable interest to secure payment of moneys paid.

36 Counsel for the defendants also submitted that the caveats that had been placed to secure a freehold interest in the Property were valid, notwithstanding that the only interest secured or the only interest at the time was in a lot of unsubdivided property.

37 The plaintiff accepted that it is possible to have a caveatable interest in the unsubdivided land until the subdivision is registered, at which time the caveatable interest will be limited to the lot the subject of the contract of sale. Authority to that effect is found in Lintel Pines v Nixon.[15]

38 It was also accepted by the plaintiff that purchaser's liens could arise and would give rise to an equitable interest to secure payment of moneys paid. Originally in written submissions provided at a time when evidence had not yet been filed by the defendants, the plaintiff took the position that that equitable interest would arise only when the contracts of sale were lawfully terminated.

39 There was subsequently evidence filed by the defendants that the contracts of sale and Joint Venture Agreements were terminated in late June 2025, and the plaintiff accepted that, at relevant times, there was in fact an equitable interest constituted by a purchaser's lien that was a caveatable interest.

40 The plaintiff emphasised that an important matter to consider in respect of whether there is a serious question to be tried was that the plaintiff's legal interest as registered first mortgagee would plainly take priority over the defendants' equitable interests as under purchasers' liens.

41 I ultimately consider that that issue goes to the question of the balance of convenience and address it in that context. I consider that the only question that I must determine under the serious question to be tried consideration is whether there is a serious question to be tried that the caveators have the estate or interest in the land which they claim the caveat preserves. I am satisfied that there is a serious question to be tried in that the caveators did have an interest in the land at the time the various caveats were lodged and continue to now hold interests under the equitable interest arising from the purchasers' liens.

42 There is a question about those caveators that originally placed their caveats describing their interests as freehold interests. In circumstances where the contracts have now been rescinded, those freehold interests are no longer an accurate description of the nature of the interest. Ultimately, I do not think that will make a substantive difference. It was put that this is a matter that could be addressed by subsequent orders, but for reasons that I will come to, and primarily because I consider that the balance of convenience favours the removal of the caveats, it is not an issue that I need to determine here.

43 Returning to the submissions, the defendants submitted that the balance of convenience favoured maintenance of the caveats until the trial of a claim to be made under the Sale of Land Act 1962, essentially on the basis that the contracts and Joint Venture Agreements entered into between the defendants and Emanda constituted 'terms contracts' as defined under the Sale of Land Act. That definition is provided in s 29A(1) as follows:

For the purposes of this Act a contract is a terms contract if it is an executory contract for the sale and purchase of any land under which the purchaser is-

(a) obliged to make two or more payments (other than a deposit or final payment) to the vendor after the execution of the contract and before the purchaser is entitled to a conveyance or transfer of the land; or

(b) entitled to possession of the land or to the receipt of rents and profits before the purchaser becomes entitled to a conveyance or transfer of the land.

44 The submission in summary, made by the defendants, is that there would be a cause of action available for the defendants under the Sale of Land Act based on provisions of that Act which prohibit the mortgaging of land which is subject to a terms contract. Section 29P of the Sale of Land Act provides that, '[t]he vendor under a terms contract must not mortgage the land that is subject to the contract.'

45 The defendants rely on s 29S of the Sale of Land Act which then provides contravention of mortgage requirements. Sub section (1) states:

If land is mortgaged in contravention of section 29P, 29Q or 29R-

(a) the terms contract is voidable by the purchaser at any time before the completion of the contract; and

(b) the vendor is guilty of an offence and liable to a penalty of not more than 60 penalty units, in the case of a natural person or 300 penalty units, in the case of a body corporate; and

(c) If the mortgagee had actual or constructive notice of the interest of the purchaser under the terms contract:

(i) the mortgagee is not entitled to exercise the mortgagee's remedies under the mortgage; and

(ii) the mortgagee must execute a proper discharge of the mortgage in respect of the land sold and obtain registration of that discharge; and

(iii) any amount paid by the mortgagee to the vendor may be recovered by the mortgagee from the vendor.

46 Also relevant to the overall scheme of the Sale of Land Act is s 29F, which provides circumstances where a purchaser may avoid a prohibited terms contract. Section 29F(1) and (2) states:

(1) Except where otherwise expressly provided, if a terms contract is entered into contravention of this Act-

(a) the contract is voidable by the purchaser at any time before completion of the contract by giving a signed written notice to the vendor; and

(b) if the contract is avoided, a person is entitled to recover any money paid by that person under the contract.

(2) A terms contract is not voidable by the purchaser if a court is satisfied that-

(a) the vendor has acted honestly and reasonably and ought fairly to be excused for the contravention; and

(b) the purchaser is substantially in as good a position as if all of the relevant provisions of this Act had been complied with.

47 I referred earlier to the evidence that the contracts and/or agreements had in fact been rescinded by some, if not all, defendants. The defendants essentially contended that given that they claim there is a prima facie case under the Sale of Land Act that the defendants would be entitled, as against the mortgagor, to seek repayment of the moneys paid pursuant to the rescinded contracts and agreements, it would be appropriate to leave the caveats in place until that matter is finally determined. Initially, it was said that to remove the caveats at this stage would convert the interests of the defendants from secured interests into unsecured interests.

48 That position was refined by counsel at the hearing on 31 July 2025 to acknowledge that, really, the benefit of the caveats was to seek to secure any surplus and interest in the land, pending the resolution of that matter. In circumstances where, at the time of the hearing, there was no evidence on foot of the position of ACMC to satisfy a judgment debt, should one arise, the caveat continued to 'secure' that interest.

49 In response to the defendants' arguments, the plaintiff essentially agreed that there were caveatable interests, but emphasised the fact that ultimately, the present dispute gave rise to a priority dispute between the interests of the plaintiff as legally registered first mortgagor, so that that legal interest would have claimed priority over the caveators' equitable interests.

50 It was said by the plaintiff that this issue went to the serious question to be tried. As I have said, in my view, that consideration is more properly considered under the balance of convenience. Ultimately there was no real question between the parties as to whether the interests claimed in the caveats were caveatable, equitable interests. So the heart of this application depends, really, on the balance of convenience.

51 The plaintiff submitted that there were numerous reasons why the defendants' proposed action under the Sale of Land Act would not succeed. First, it was said that the contracts and Joint Venture Agreements were not 'terms contracts' as they did not clearly provide for instalments of payment and did not fall within the category of a contract in which the purchaser was entitled to possession of land before being entitled to conveyance or transfer of the land.

52 Arguments were also made by counsel for the plaintiff that the contracts were in contravention of the Sale of Land Act, including because they were less than the prescribed statutory amount provided for by s 29EA and therefore could not operate as 'terms contracts'. I will say no more about that, because it appears likely that that section was not in force at the relevant time the contracts were entered into. Nevertheless, other arguments were made that were consistent with aspects of the defendants' case that if these agreements were 'terms contracts', they did not comply with aspects of the Sale of Land Act, and therefore as void agreements, it would follow that the relief referred to by the defendants would be available as a claim for damages against the plaintiff.

53 At the hearing, some attention was given to the question of whether ACMC could be said in any way to be on constructive notice of the defendants' interests under the Joint Venture Agreements and contracts of sale, so as to come within the terms of s 29S(1)(c), which refers to 'actual or constructive notice of the interest of the purchaser under the terms contract'.

54 There was no suggestion put by counsel for the defendants that the current material was sufficient to establish actual notice of the Joint Venture Agreements and contracts of sale which were said by the defendants to be 'terms contracts'. The submissions of counsel for the defendants focused instead on the question of constructive notice. Broadly, the defendants submitted that the nature of the communications between Mr Logan and Mr Darjai about the caveats, of which the lender plainly had notice at the relevant time, were such as to give rise to a serious question about whether the caveators in fact did have interests in the land that were protected by the caveats.

55 The defendants submitted that the explanations provided by the mortgage broker were of such a spurious nature as to give rise to a serious question as to whether they could be accurate. Most importantly, it was said, the evidence of Mr Logan did refer to the application in 2022 made by Emanda to the Court to have the caveats removed to facilitate the registration of the mortgage. It was submitted that this gave rise to a serious question as to why a court proceeding would be required if the explanation of Mr Darjai as to the reason for the lodgement of the caveats was accurate. Mr Darjai's explanation was that family members of Mr Lulu Seid, the directing mind of Emanda, had lodged them to assist the company protect its interests. The defendants submitted that it was inexplicable that a court proceeding would be required if in fact the family members had lodged the caveats to support Mr Seid.

56 Ultimately, in respect of the Sale of Land Act, matters that might give rise to constructive notice in some circumstances may not be sufficient to constitute constructive notice to a mortgagee. Section 29V(1) provides:

For the purposes of s 29S, a mortgagee is deemed not to have constructive notice of the interest of a purchaser under a terms contract unless notice of the interest of the purchaser under the terms contract would have come to the mortgagee's knowledge if the mortgagee had made-

(a) a proper inspection of the relevant land; and

(b) such inquiries as ought reasonably to be made by the mortgagee of the mortgagor as to the rights of any person in possession of the relevant land; and

(c) inquiries of the municipal council of the municipal district in which the relevant land is situated as to who is shown on the rate book as owner of the relevant land; and

(d) such searches, inquiries and inspections in the Office of the Registrar of Titles and Registrar-General as reasonably ought to have been made by the mortgagee.

57 There is evidence that inquiries had in fact been made of the municipal council. It was also accepted that an inspection of the relevant land would not have put any mortgagee on notice of a purchaser's interest. The issue of notice therefore turned on the terms of subparagraph (d) of section 29V(1) as set out above, and whether such searches, inquiries or inspections would be such that the interest of the purchaser under the terms contract would have come to the mortgagee's knowledge. This is a difficult question.

58 The search of the Registry showed, of course, the reason for the caveat, which referred to terms such as liens and freehold interests. These do not reflect that there is a terms contract in place pursuant to the Sale of Land Act. The question which arises is whether the terms of s 29V(1)(d) are such that once a mortgagee is on notice of any contract giving rise to interests in the land, the mortgagee would be required to make a further inquiry as to what the contract is which underlies the purported lien or freehold interest. That is not a question on which there is, according to submissions, any authority. It is certainly an arguable proposition, and the defendants' counsel made some arguments which would suggest a reasonable basis on which to put such an case.

59 Therefore, I accept that there is plainly an arguable case under the Sale of Land Act. I cannot express any views as to the likelihood of success of any such case in obtaining relief from the mortgagee, but do reiterate that the defendants have put before me sufficient material to suggest an arguable case.

60 Ultimately that is not determinative in my view. Even if there is an arguable case, the question is ultimately whether the balance of convenience favours the maintenance of the caveats on the title. In circumstances where the evidence is that there is very little surplus left, following the sale of the land, and the clear legal position is that the plaintiff, as first registered mortgagee, has priority over those proceeds, the caveats assume minimal significance.

61 The real question is whether ACMC, which has had the debt assigned to it and is standing in the position of the mortgagee, would be able to satisfy any compensation which was awarded under a claim pursuant to the Sale of Land Act. Although the defendants noted that there was originally no evidence on that point at the hearing, an affidavit was filed on a confidential basis in the course of the hearing[16] which went to the financial position of the plaintiff, and exhibited a special purpose financial report for the Balmain Opportunity Trust dated 30 June 2024.

62 The Balmain Opportunity Trust is the entity for which ACMC is trustee. The financial report, which is filed on a confidential basis, establishes that the Trust is certainly an entity with sufficient means to satisfy any claims made by the defendants, should a proceeding under the Sale of Land Act be commenced. In those circumstances, I conclude that the balance of convenience does not favour the maintenance of the caveats and rather favours the conclusion that the caveats should be removed in order to facilitate the sale of the Property.

63 In coming to that conclusion, I have also considered the prejudice to the purchaser of the Property should the caveats not be removed and the sale be unable to be completed. I have also considered that it is unlikely that, if this sale cannot go ahead, there would be any more favourable outcome likely to result in a surplus of funds. A more favourable outcome is certainly not something that has been suggested by the evidence in this proceeding, so there is no suggestion that there is an alternative way in which the Property could be disposed of which would result in a greater surplus.

64 Those are my reasons for concluding that the caveats will be removed.

65 Following the delivery of my ex tempore ruling on 1 August 2025, the parties made submissions on costs and agreed that there be no orders as to costs, on the basis that the mortgagee had a right of indemnity for legal costs associated with enforcing its security under the mortgage, under the loan contract.

AUSTRALIAN COMMERCIAL MORTGAGE CORPORATION PTY LTD (ACN 109 865 590) as trustee for the BALMAIN OPPORTUNITY TRUST

ABHIGAM KANAIYALAL MEHTA & HIRAL ABHIGAM MEHTA (as joint caveators)

[1] First Affidavit of Sean Thomas Greenwood sworn on 28 July 2025, [4]-[7] (First Greenwood Affidavit).

[2] First Greenwood Affidavit, Exhibit STG-1, 78 (Deed of Joint Venture Agreement between Emanda and the First Defendant, 1 (First Defendant's Joint Venture Agreement)).

[3] First Defendant's Joint Venture Agreement, 6.

[4] First Defendant's Joint Venture Agreement, 7.

[5] These were summarised in the Plaintiff's Outline of Submissions at Annexures A, B and C.

[6] Affidavit of Jarrod Anthony Logan affirmed on 29 July 2025 (Logan Affidavit).

[9] Orders of Daly AsJ made on 2 August 2022 in proceeding number S ECI 2022 02665.

[10] Affidavit of Christopher Clement Brodrick affirmed on 16 May 2025, [38] (Brodrick Affidavit).

[11] Affidavit of Alana Brooke Giles affirmed on 31 July 2025.

[12] [2010] VSC 240; [2010] 27 VR 489.

[13] [2020] VSCA 235 at [25] and the Court of Appeal cases cited therein.

[14] [1983] 149 CLR 639.

[15] [1991] VicRp 20; [1991] 1 VR 287, 290.

[16] Affidavit of Alana Brooke Giles affirmed on 31 July 2025 (confidential).