//
[2026] VSC 147
General information, not legal advice.
Supreme Court of Victoria
2026-03-24
Sloss J
Original judgment source is linked above.
89 DK OGP continues to seek the substantive relief set out in its summons, by way of an interim or interlocutory injunction restraining Onkar and each of Messrs Brar, Dhillon and Virk from taking any step or further step in [sic.] to give effect to or in furtherance of any transfer, disposal, dealing with, encumbrance or sale of the [Onkar ATF Onkar Trust's] units in the Arundel Estate Unit Trust and shares in Arundel Estate Developments Pty Ltd, subject to DK OGP providing the usual undertaking as to damages.
90 DK OGP submits that the affidavit material before the Court demonstrates that DK OGP is in the category of litigant that would be caused irreparable harm if Onkar completes the Sale Agreement.
91 At this early point in the proceeding, DK OGP says that the Sale Agreement is unenforceable ─ and the Court should not order specific performance of the Sale Agreement ─ because to do so would involve a breach of trust. And while DK OGP does not seek to interfere directly with the interactions of the other (Hollowtree plaintiff) Vendors, the position is that, as things currently stand, by their entry into the Sale Agreement, Onkar (and thereby, effectively, DK OGP) has been deprived of its pre-emptive rights to acquire their Arundel Units and Arundel Shares.
92 At this stage, DK OGP submits it is sufficient for it to establish that Onkar's sale of the Arundel Units and Arundel Shares would be a breach of trust, and the Court should enjoin the parties to the Sale Agreement from proceeding with (what it contends would amount to) an improper disposal of trust property. While the Hollowtree plaintiffs are not parties to the DK OGP proceeding, they have been given notice of the proceeding and requested that the two proceedings be heard together. Counsel for DK OGP submitted that if the Hollowtree plaintiffs pass a resolution approving the transfer of Onkar's Arundel Units and Arundel Shares and their registration in the member's registry in the name of the new purchaser, Alceon, they may be implicated in Onkar's (alleged) breach of trust and would be viewed as having actively taken a step in furtherance of the (alleged) breach of trust.
93 The Sale Agreement provides for the sale of certain of the proposed transferees' shares in Arundel and for the sale of certain of the proposed transferees' units in the Arundel Trust. Importantly, however, DK OGP submits that the documentation pertaining to the Arundel Trust makes clear that the units in the Arundel Trust have other rights attached to them, as set out in the Arundel Unit Holders Agreement.[100]
94 The Arundel Unit Holders Agreement, dated 11 February 2023, records the agreement reached between the holders of units in the Arundel Trust 'that will govern the relationship between them.'[101] To that end, cl 3.1.1 provides:
3.1 Inconsistency between Agreement and the Trust Deed
3.1.1 Where provisions of the Trust Deed are inconsistent with the provisions of this Agreement, the parties to this Agreement must do everything reasonably necessary, including exercising their rights as unit holders in the Trust, so that the provisions of this Agreement prevail to the extent of the inconsistency.
95 The (Arundel) Project is defined in cl 1.1 to mean:[102]
Project means acquisition of the Land [the property known as Arundel Hills Country Club ...] by the Trustee, obtaining approval from the relevant Authorities for the subdivision of the Land into residential Lots and the sale of such Lots as vacant land in accordance with the Business Plan and the Project Budget.
96 Clause 6, which deals with the unitholders' agreement concerning the management of the Arundel Project, provides inter alia for the management of the Project by a committee, the composition of the Board of the Trustee, and for access by unit holders to the books of account, as follows:
6. MANAGEMENT OF PROJECT
6.1 Management of Project
The Committee will control and carry out the Project, subject at all times to the provisions of this Agreement.
6.2 Board of Trustee
Unless agreed otherwise by a Special Majority of the Unit Holders, the Board of the Trustee will consist of Andrew Michael Barbayannis, Dale Leslie Carroll and (while Panache[103] is a Unit Holder) Rupinder Singh Brar and Dushyant Khanna.
6.3 Procedure at meetings of Committee
. . .
6.8 Access by Unit Holders to Books of Accounts
Each Unit Holder will have the right to review (whether personally, or by any duly authorised agent, employee or contractor) the books of account and other records of the Trust at any time at its own expense. Each other Unit Holder, and the Trustee must provide all reasonable cooperation in connection with any such review.
97 Clause 8 deals with transfers of units and pre-emptive rights. Clause 8.1 places restrictions on the transfer of any legal or equitable interest in a unit and cl 8.3 confers (what is effectively) a pre-emptive right on unitholders to acquire additional units where an existing unit holder wishes to transfer its units.[104] In the event that the other remaining unitholders do not exercise their pre-emptive rights in respect of the units offered for sale, the selling unit holder may sell those units to a third party in accordance with cl 8.5.
98 DK OGP accepts that it is not a unitholder in the Arundel Trust, but it submits that because Onkar holds both the Arundel Units and Shares as trustee for the Onkar Trust, and DK OGP holds a 50% beneficial interest in the Onkar Trust, the position is that DK OGP also holds an 'equitable interest' in 50% of the 230 units Onkar holds in the Arundel Trust. Accordingly, DK OGP submits that the contemplated sale to Alceon is an improper disposal of trust property, is a breach of Onkar's duties as trustee, and ought to be enjoined against because:[105]
(a) Onkar's entry into and execution of the terms of the Sale Agreement to Alceon is an improper disposal of the property of the Onkar Trust, and therefore a breach of the Onkar Trust deed;
(b) the parties to the Sale Agreement, including Alceon, were given notice of that breach before entering the Sale Agreement, and again prior to completion;
(c) if Onkar disposes of its units in the Arundel Trust, DK OGP will be permanently deprived of its interest in the Onkar Trust property or, alternatively, will have to claim against Alceon for its return;[106] and
(d) in the circumstances, damages would be an inadequate remedy.
99 Under the Onkar Trust deed, the Trustee is endowed with broad general powers, as follows:
14. General Powers
14.1 All powers at law
Except as expressly provided, the Trustee has in addition to all the specific powers provided in this Deed:
14.1.1 all the powers authorities and discretions of a natural person;
14.1.2 all powers, authorities and discretions conferred by the common law, equity and by legislation on trustees; and
14.1.3 will not be restricted or obligated by provisions relating to trustees contained in any legislation of the Commonwealth of Australia or any of its States or Territories.
14.2 Trustee may act as if beneficial owner
The Trustee may generally with respect to the Trust Fund perform or engage in any transaction or dealing as might have been done if the Trustee was the beneficial owner of the Trust Fund.
14.3 Acts binding on Unitholders
The decisions and actions of the Trustee whether actually made or taken in writing or implied from the actions of the Trustee are conclusive and binding on all the Unitholders and others who in the future acquire any interest under this Deed.
100 The entitlements of unitholders of the Onkar Trust are addressed in cl 4.1. Relevantly, cll 4.1.3 and 4.1.9 provide:[107]
4. The Trust Fund
4.1 Entitlements of Unitholders
...
4.1.3 Subject to the Trustee's right of indemnity for the proper payment of expenses with respect to the administration of the Trust, each Unit will:-
(a) entitle the Unitholder, equally with the Unitholders owning all other Units, to the Trust Fund as an entirety; and
(b) not entitle the Unitholders to any particular security or investment comprised in the Trust Fund or any part of the Trust Fund.
. . .
4.1.9 Despite anything else express or implied in this Deed, the Unitholders have a vested and indefeasible interest in a share of the income and capital of the Trust in accordance with their Unitholder's Proportion. Any other provision of this Deed that is inconsistent with that vested and indefeasible interest does not apply, to the extent of the inconsistency. The Trustee must not exercise any power that is capable of defeating a Unitholder's interest in the income or capital of the Trust and any attempt to exercise such power is void.
101 Under the Trustee's indemnity conferred under cl 12.1 of the deed, the Onkar Trustee is expressly not indemnified 'in relation to a breach of trust knowingly or wilfully committed by the Trustee'.
102 The 'Trust Fund' is defined in cl 1.23 to mean as follows:
1. Definitions
In this Deed unless the contrary intention appears:
...
1.23 'Trust Fund' means:
1.23.1 the Initial Sum;
1.23.2 any money and other property having the nature of either capital or income acquired or accepted by the Trustee as an addition to the Trust Fund; and
1.23.3 the investments and property for the time being representing those sums or any part of them including accretions to the Trust's assets;
103 The expression 'capital' is not defined in the Onkar Trust deed. Relevantly for present purposes, DK OGP submits that the capital of the Onkar Trust comprises the 230 Arundel Units (and shares) and includes all the rights attached to the Arundel Units, including the pre-emptive rights conferred in respect of the Arundel Units (and shares).
104 Against that background, DK OGP submits that:[108]
(a) granting Cartel Land security over the Arundel Units pursuant to the Heads of Agreement;
(b) committing to transfer the proceeds of the sale of the Arundel Units to Cartel Land pursuant to the Heads of Agreement;[[110]]
(c) waiving the pre-emptive rights attached to the Arundel Units (cl. 6 of the Sale Agreement); and
(d) promising and intending now to sell the Arundel Units to Alceon.
- Each of those steps is, therefore, void within the terms of the Onkar Trust.
- Even without the benefit of clause 4.1.9, each of these steps is a clear breach of a trustee's duty to preserve trust property, including to refrain from making voluntary payments out of trust property.[111]
105 Further, DK OGP contends that as the 'first duty of a trustee on appointment, and one of the most fundamental, is to become acquainted with the terms of the trust instrument'[112], Onkar Trustee and its directors must be taken to be familiar with the terms of the Onkar Trust.[113] Accordingly, DK OGP submits that on the material presented before the Court, it has a reasonable basis to claim that Onkar and each of its three directors knowingly and wilfully breached the terms of the trust. It contends that if the sale were to go ahead and proceed as proposed under the Sale Agreement, DK OGP has demonstrated a reasonable basis for a prima facie case that Alceon has knowingly received trust property of the Onkar Trust in breach of trust, and will be faced with claims that it holds those interests on a constructive trust, having participated or assisted in a 'dishonest and fraudulent design'.[114]
106 The first breach of the Onkar Trust terms that DK OGP alleges is that the (Onkar) Trustee has entered into an agreement to dispose of the entirety of Onkar's interest in the Arundel Shares and units in the Arundel Trust, for the benefit of strangers to the Onkar Trust. DK OGP contends that such a sale of trust property is in contravention of the Trustee's duties as Trustee of the Onkar Trust. Relying upon the decision of Finkelstein J in Fitzwood Pty Ltd v Unique Goal Pty Ltd,[115] counsel for DK OGP submits that the Onkar Trustee was obliged, and under a duty, to 'invite competition' in respect of the sale of the trust assets and thereby ascertain whether a higher price than had been offered by Alceon might be obtained. In Fitzwood, Finkelstein J was of the view that '[i]f a trustee fails to use reasonable diligence to invite competition in respect of the sale of trust assets there is a strong argument that the trustee is in breach of trust.'[116]
107 The second substantive breach of the Onkar Trust terms that DK OGP alleges is that by entering into the Sale Agreement, the Trustee has expressly (under the terms of cl 6 of the Sale Agreement) thereby 'waive[d] all restrictions on transfer, including pre-emptive rights, in respect of the [Arundel] Shares and [Arundel Trust] Units whether under the [Arundel] Trust Deed, [Arundel Trust] Unitholders Agreement or otherwise.' DK OGP submits that by entering into the Sale Agreement, the Onkar Trustee is waiving a trust right and contends DK OGP ought to have been offered the opportunity to buy the units. DK OGP submits that the proposed sale is in breach of trust, and, if the Sale Agreement proceeds, it will operate to deprive DK OGP of its rights under the Onkar Trust with respect to the Arundel Units, and DK OGP will be unable to insist that Onkar exercise any of these unique rights. If the Sale Agreement proceeds to completion, it will also deprive DK OGP of its indirect interest in the Arundel land. DK OGP contends that neither of those losses is adequately remedied by damages.
108 Further, DK OGP maintains that its only interest is in the proper administration of the Onkar Trust. It says that the Vendor parties and Alceon entered into the transaction 'with their eyes open', cognizant of DK OGP's claims and with clear knowledge of the risk that injunctive relief may be obtained by DK OGP to prevent the transaction proceeding.
109 DK OGP submits that on its application, the Court is being asked to exercise its 'exclusive equitable jurisdiction', as was the case in Heavener v Loomes[117], and accordingly, the Court should follow the approach Finkelstein J adopted in Fitzwood, namely of deciding 'whether there is a serious issue to be tried and then whether the balance of convenience justifies the grant of relief.'[118] In Fitzwood, in reaching that position, Finkelstein J said he proposed to be 'guided by what was said by James LJ in Dance v Goldingham [1873] 8 Ch App 902 at 911, in a dictum that was followed by Asprey J in Park v Dawson [1965] NSWR 298'[119], where James LJ stated as follows:[120]
[T]he purchaser, under a mere contract for purchase, is not entitled to insist upon a transaction being completed which, as between the cestuis que trust and the trustees, is a breach of trust. He has a mere contract for purchase which could not be enforced against him under the circumstances, and which he could not have enforced against the trustees. He has, therefore, no right to call upon the trustees, or to ask the Court to allow the trustees, to execute a conveyance, having its origin in a breach of trust when before the thing was completed he had notice of the irregularity which had been committed.
110 In Fitzwood, Finkelstein J went on to explain what is the 'balance of convenience' in such a case where interlocutory injunctive relief is claimed, stating:[121]
Then what is the balance of convenience? The object of an interlocutory injunction is to keep things status quo so that if at the hearing the applicant succeeds, the trustee would have been prevented in the meantime in dealing with the property so as to make that judgment ineffectual. Clearly the convenience is in favour of granting it. If it is not granted, the applicant and Mapeka may be deprived of a valuable asset. If it is granted the position of the remaining beneficiaries will be protected by the undertaking in damages. After all those beneficiaries do not seek to retain an interest in the property, but wish to have their money and any profit returned to them. Pineross is innocent of any wrongdoing. If it desires to keep the contract on foot and the applicant ultimately fails, it will acquire the property. If the applicant succeeds, or if the contract goes off, Pineross may have an action in damages against the trustee. However that may be, its rights should not, at this point in time, be placed above those of the beneficiaries.
111 Similarly, in Carlton Clock Tower Complex Pty Ltd v Lew [122], Brooking J expressed the view that save in an exceptional case, it is unlikely that a court of equity would grant specific performance of a contract where such performance would involve a breach of trust.
112 DK OGP further submits that if Onkar's entry into, and participation in, the Sale Agreement is invalid and unenforceable, there is a mechanism within the Sale Agreement to deal with that situation, being the 'Severability' provision in cl 15.4. DK OGP submits that its proposed injunction would remove any controversy about its enforceability, and should that occur, the sale could continue, save that Alceon would not acquire Onkar's units.
113 The provisions in the Sale Agreement pertaining to 'Completion' are set out in cl 8. Clause 8.1 provides:[123]
8.1 Time and Place of Completion
Subject to clause 2, Completion is to occur on the Completion Date via electronic means or at any other time or place agreed in writing by the parties. The obligations of the parties under this clause 8 are interdependent and must occur simultaneously.
114 DK OGP submits that 'on the most natural construction of the Sale Agreement, the Plaintiffs each severally make their promises to Alceon' and says the plaintiffs 'have not established any right (contractual or otherwise) to demand that Onkar perform its promise.'[124] Nor, it says has Alceon, the purchaser, made any such claim.[125] DK OGP acknowledges that '[a] question arises as to whether, on a proper construction of cl. 8.1 of the Sale Agreement, the agreed "interdependence" of obligations refers to an obligation of Alceon to pay the vendors interdependently with their respective transfer of units (i.e. "simultaneously").'[126] But it submits that 'whether this is the case, or whether it makes every party's obligations interdependent with and to be performed simultaneously with the others, is a matter for trial.'[127]
115 DK OGP also points to the warranties given by the respective vendors under cl 9 and Schedule 1 of the Sale Agreement, and observes:[128]
116 DK OGP also contends that on the material before the Court, it is far from clear that subject to Cartel Land's security interest and Onkar's undertaking, the vendors and the purchaser are ready, willing and able to complete the Sale Agreement.[130] Aside from the serious question raised by DK OGP as to Onkar's ability to complete the sale, DK OGP observes:[131]
Alceon has only confirmed that it has sufficient funds to complete the sale (i.e. it is able), if all conditions precedent and vendor obligations are met at completion.[132] Alceon's readiness and willingness is highly questionable, given the email from its lawyers on 3 March 2026, in which it expresses concerns that certain warranties were inaccurate at the time of signing, and questions the vendors' ability to comply with their obligations at completion. In that regard, Alceon has reserved its position.[133]
117 As noted earlier, the defendants to the DK OGP proceeding are the Onkar Trustee and its three directors/shareholders, being Messrs Brar, Dhillion and Virk (referred to earlier as the Punvec parties). Mr Brar also filed a short affidavit on their behalf in which he confirmed that they 'do not object to' the orders sought in the Hollowtree plaintiffs' summons.
118 In his affidavit, Mr Brar does not respond (or at least not in any substantive way) to the evidence given by Mr Khanna including his evidence about what took place in the conversations between them. Nor does Mr Brar provide any evidence about matters such as the Punvec parties' request that Mr Khanna be removed as a director of Alceon Trustee, the subsequent appointment of Messrs Dhillon and Virk as directors of Alceon Trustee and as directors and shareholders of Onkar Trustee, Onkar Trustee's entry into the Sale Agreement with Alceon, whether any consideration was given to the exercise of the pre-emptive rights in Arundel, or Onkar Trustee's entry into the Heads of Agreement with Cartel Land/Mr Goyal and others and the ongoing indebtedness of the Punvec parties to Cartel Land that is the subject of the PPSR registrations.
119 In their submissions, the Onkar and Punvec parties adopt the principles contained in the Hollowtree plaintiffs' submissions. In addition, relying upon the provisions of the Onkar Trust deed, they submit that Onkar has power to enter into the transaction, without the need for permission from DK OGP.[134] Further, citing from Jacobs' Law of Trusts in Australia (8th ed, J D Heydon and M J Leeming, Lexis Nexis Butterworths) at [17-15] they say '[t]here is no general duty on trustees to volunteer documents or information to beneficiaries or possible beneficiaries nor to consult their wishes.' They contend that the effect of these provisions of the Trust deed is that:[135]
Onkar was, and is, free to deal with the units in the Arundel Trust without the need to consult or seek the approval of any unitholders, including DK OGP. The entry by Onkar into the Sale Deed was and is within Onkar's power under both the Arundel Trust deed and the Onkar Trust deed.
120 Accordingly, they submit that whatever be the merits of any separate dispute between Onkar and DK OGP concerning the administration of the Onkar Trust, the Sale Agreement 'remains binding on Onkar and within power' and '[n]o question of its invalidity, or of Alceon's entitlement to completion, arises.'[136] Further, they say, under the proposed sale, Onkar will receive consideration of $2.5 million, loan principal of $725,000 and loan interest of $218,000, or thereabouts, and on the evidence before the Court that consideration package of $3.5 million or thereabouts does not represent a sale at an undervalue. [137] They contend that there is no serious question to be tried that the decision of Onkar as trustee to enter into the Sale Agreement constitutes a breach of trust.
(b) the interests of Cartel Land Pty Ltd (Cartel) and DK OGP are sufficiently protected by the orders proposed; and
(c) the undertaking given on behalf of Onkar should not prevent completion occurring on 12 March 2026.
The Punvec parties' proposed that the arrangements concerning the discharge of Cartel Land's PPSR registrations be modified
122 At the hearing, during the course of Mr Goyal's submissions, counsel for Onkar and the Punvec parties sought to clarify and further inform the Court about the modified arrangements now proposed for the discharge of Cartel Land's PPSR registrations, as follows:[139]
MR BAUM: There will be a separate sum of money paid by a company called Punvec Group to Cartel Land of 3.5 million contemporaneous with the settlement of this transaction, so the same time as this transaction.
MR GOYAL: Yes.
MR BAUM: And it won't come from Onkar, it won't be Onkar's money that is being paid.
MR GOYAL: Yes.
MR BAUM: There's then a separate issue, Your Honour, a separate 3.5 million of proceeds would be paid into court but that's separate to the 3.5 million proposed to be paid to Cartel.
MR GOYAL: Yes. So to (indistinct), Your Honour, - - -
MR BAUM: So it's to be paid - the 3.5 million for Mr Goyal's perspective is to be paid to Cartel Land, not into court.
MR GOYAL: Yes.
MR BAUM: That's the distinction.
HER HONOUR: Right.
MR GOYAL: To that, Your Honour, I've been made (indistinct) from - since from the last three years to pay back my debts which are (indistinct words) and by Alceon but haven't been paid a dollar since. Even back in December I was told by Matt from Alceon that this money will be paid to me by middle of December. I haven't seen a dollar again. So I accept that Alceon have said that again, but again, there's no bank guarantees, there's no money in the bank. And with this promise it might fail again.
MR BAUM: Your Honour, I'm instructed I can give an undertaking to the court that those funds will be paid contemporaneous with the transaction.
HER HONOUR: Well, I think you should formalise the undertaking in a written form and file it in court because that's the only way it's going to be clear to Mr Goyal what the position is and to be making it clear.
MR BAUM: Yes.
The Court's jurisdiction to grant injunctive relief
123 Section 37 of the Supreme Court Act 1986 (Vic) provides that the Court may by order, whether interlocutory or final, grant an injunction 'if it is just and convenient to do so', and such orders may be made 'unconditionally or on such terms and conditions as the Court thinks just'.
124 Generally speaking, in considering whether an interlocutory (or interim) injunction should be granted, the Court must be satisfied that the applicant has made out a prima facie case, that damages would not be an adequate remedy and that the balance of convenience would favour the grant of such relief. Where, however, trustees are intending to perform an act which would constitute a breach of trust, and relief is sought by way of an injunction in the exclusive jurisdiction of equity, the position is, as Finkelstein J explained in Fitzwood, there is no requirement to demonstrate that damages would not be an adequate remedy.[140] In Jacobs' Law of Trusts in Australia, the learned authors state:[141]
Where trustees are intending to perform an act which would constitute a breach of trust, the court will, on the application of a beneficiary, grant an injunction restraining them, even though the consequences of the proposed act may not be irremediable, and perhaps even if they are beneficial. This remedy is sought in the exclusive jurisdiction of equity and so unattended by the requirement to show the inadequacy of damages. It follows that the right to an injunction can only be defeated if the defendant can show one of the traditional equitable defences such as laches or unclean hands.
125 Accordingly, in the present case, the Court should follow the approach Finkelstein J adopted in Fitzwood, namely of deciding whether there is a prima facie case or serious issue to be tried and then whether the balance of convenience justifies the grant of relief.
126 In the leading case of Australian Broadcasting Corporation v O'Neill,[142] Gummow and Hayne JJ said of the first enquiry, as to whether plaintiff has made out a prima facie case, that 'it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial'.[143] Their Honours confirmed that the plaintiff is not required to show that it is more probable than not that at trial the plaintiff will succeed, and in this regard they reiterated the following observations of the Court (Kitto, Taylor, Menzies and Owen JJ) in Beecham Group Ltd v Bristol Laboratories Pty Ltd:[144]
How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.
127 Further, in determining where the 'balance of convenience' lies, the clear guidance given is that the Court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been wrong, in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial.[145] As the Court of Appeal noted in Bradto Pty Ltd v State of Victoria,[146] there is a relationship between 'a prima facie case' or 'a serious question to be tried' and 'the balance of convenience'. The two requirements need to be examined together. It follows that if the claim of a plaintiff is weak, then the balance of convenience must be more strongly in favour of the plaintiff before the court grants injunctive relief.
128 The claim brought by DK OGP is one directed to the proper administration of the Onkar Trust. It alleges that there has been a failure in the process by which the Onkar Trustee has gone about the sale and that is what DK OGP alleges amounts to the breach of trust and impugns the sale of Onkar's shares in Arundel and units in the Arundel Trust. As the learned authors of Jacobs' Law of Trusts in Australia observe, the law recognises the right of beneficiaries to protect their interest in trust property:[147]
The beneficiaries, or any one of them, may institute proceedings to compel the performance of the trustee's duty or to protect their beneficial interest in the trust property even though that interest is only contingent.
129 In my view, on the material before the Court in the two proceedings, DK OGP has established a prima facie case against the Onkar Trustee and Messrs Brar, Dhillon and Virk for breach of trust and demonstrated that unless completion of the sale of Onkar's interests under the Sale Agreement is enjoined, it will operate to deprive DK OGP of its rights and its beneficial interest in the trust property.
130 In essence, DK OGP contends that on the proper construction of the Onkar Trust deed, DK OGP as a 50% unitholder in the Onkar Trust has an equitable interest in the capital of the Onkar Trust, being Onkar's 230 units in the Arundel Trust and Onkar's 230 shares in the (Arundel) Trustee. While DK OGP acknowledges that the Onkar Trust deed endows the Onkar Trustee with broad general powers, it contends that those powers are at all times constrained by the fundamental requirement embodied in cl 4.1.9, that:
Despite anything else express or implied in this Deed, the Unitholders have a vested and indefeasible interest in a share of the income and capital of the Trust in accordance with their Unitholder's Proportion. Any other provision of this Deed that is inconsistent with that vested and indefeasible interest does not apply, to the extent of the inconsistency. The Trustee must not exercise any power that is capable of defeating a Unitholder's interest in the income or capital of the Trust and any attempt to exercise such power is void.
131 The proper construction of the provisions of the Onkar Trust deed will be a matter for trial. But the evidence before the Court on this application is that in or about July 2025, Mr Brar, who was then the sole director and shareholder of the Onkar Trustee, admitted to Mr Khanna that Messrs Dhillon and Virk were seeking to take control of Onkar's interests in Arundel because of an unrelated dispute between Messrs Brar, Dhillon and Virk. And while Mr Brar told Mr Khanna not to worry and assured Mr Khanna that he would look after his interests and ensure they were protected, they have not been.
(a) On 28 August 2025, Mr Dhillon and Mr Virk were appointed as directors and shareholders of Onkar Trustee.
(b) On 2 September 2025, Mr Khanna was removed as a director of Arundel Trustee. He was not informed of this development and Mr Khanna only learned of his removal sometime after the event. According to Mr Fisher, the removal was initiated at the request of Onkar Trustee's then directors, being Messrs Brar, Dhillon and Virk, and in circumstances where Mr Fisher was 'advised by the directors of Onkar that Dushyant Khanna was no longer involved in Onkar's affairs and they wished to remove him as a director of the Trustee accordingly.'[148]
(c) On or about 16 December 2025 the directors of the Onkar Trustee entered into a Heads of Agreement with Cartel Land whereby they agreed, inter alia:
(i) to grant security over Onkar Trust's Arundel Units and Arundel Shares in favour of Cartel Land; and
(ii) to do everything necessary to ensure that Cartel Land receives $3,468,000 from the (then proposed) sale of Onkar Trust's 230 Arundel Units and 230 Arundel Shares to Alceon,
(iii) Onkar Trust had (and has) no relevant indebtedness to Cartel Land; and
(iv) the indebtedness to Cartel Land that gave rise to the foregoing arrangements in the Heads of Agreement arose from loans Cartel Land had made to the 'PUNVEC Borrowers' and personal guarantees given by each of the 'PUNVEC Guarantors' and thus was personal indebtedness of one or more of Messrs Brar, Dhillon and Virk.
(d) Cartel Land effected PPSR security registrations over Onkar Trust's 230 Arundel units and 230 Arundel shares on 27 and 28 January 2026. It is now proposed by Messrs Brar, Dhillon and Virk that the indebtedness to Cartel Land recorded under the Heads of Agreement will be repaid from a separate facility that has recently been established with, or made available through, Alceon, and arrangements have been made by Mr Fisher to progress that course. Thus far, however, the PPSR registrations remain and Mr Goyal has indicated that Cartel Land is not prepared to discharge them unless interest in the sum of $445,500 or thereabouts is also paid.
(e) The Sale Agreement has been entered into by Onkar Trustee, providing for the sale of the whole of its interests in the Arundel Shares and Arundel Units. Here again, Mr Khanna was not informed by the directors of Onkar Trustee of the proposed sale of Onkar Trust's Arundel Units and Arundel Shares. Mr Khanna remained unaware of the proposed sale until he had a conversation with Mr Goyal (of Cartel Land) on 26 January 2026, when he learned (to the effect that) Onkar's Arundel Units and Arundel Shares were to be sold to Alceon and that pursuant to the Heads of Agreement the proceeds were to be paid to Mr Goyal's company, Cartel Land, in satisfaction of indebtedness of the Punvec parties and/or Messrs Brar, Dhillon and Virk.
(f) The solicitor for Onkar, and Messrs Brar, Dhillon and Virk has confirmed that his clients intend to proceed with the sale of the whole of Onkar's interests in the Arundel Shares and Arundel Units to Alceon.
133 The right that Mr Khanna (through DK OGP) now seeks to protect by way of an interim injunction is his (ongoing) participation in the Arundel Project, through his 50% unitholding in the Onkar Trust and Onkar's ownership of the 230 units in Arundel Trust and 230 shares in Arundel. His evidence is that Onkar was established as a special purpose vehicle for use by him and Mr Brar as a means of investing in and participating in the Arundel Project. If he is unsuccessful in restraining the sale of Onkar's interest and the Sale Agreement proceeds to completion, DK OGP will no longer have any interest in the Arundel Project and the whole of the undertaking of the Onkar Trust will effectively be liquidated. In that event, Mr Khanna submits that DK OGP would be required to pursue costly litigation, by way of a tracing claim directed to re-securing those rights,[149] which 'will necessarily involve "unscrambling the egg" [and] such litigation will be complex, risky and any adjudicated result is likely to be sub-optimal.'[150]
134 In my view, on the material before the Court, DK OGP has demonstrated a sufficient likelihood of success to justify in the circumstances the preservation of the status quo by way of the injunctive relief sought against Onkar and Messrs Brar, Dhillon and Virk pending the trial.
135 If the injunctive relief sought by DK OGP is granted, the interests of the other Vendors under the Sale Agreement and the guarantors under the APMF Facility Agreement may be affected, but at this stage of the proceeding, it is unclear precisely how or in what way. In that regard, it will be noted that in his affidavit filed in the DK OGP proceeding, Mr Brar, who through his company RB OGP is the holder of the other 50% unitholding in the Onkar Trust, does not depose as to any injustice he might suffer if the injunctive relief sought by DK OGP is granted.
136 As counsel for DK OGP observes, the corollary to the position contended for by DK OGP is that 'if Onkar is restrained from completing the sale, there is a risk (as yet unquantified) that Alceon will terminate' and in that event the Hollowtree plaintiffs 'would have to establish that, but for Onkar's non-completion, the transaction would have proceeded.'[151] On the evidence before the Court, including the recent evidence filed on behalf of the Arundel Trustee concerning the dealings with Mr Goyal to discharge the PPSR registrations, that is not clear. But to the extent that those plaintiffs were to suffer any loss by reason of an injunction having been granted, they would be in a position to claim on the undertaking as to damages given to the Court by Mr Khanna on behalf of DK OGP.
137 To the extent that the Sale Agreement contains a 'severability' clause, an issue may also arise as to whether the balance of the 'interdependent' obligations of the other parties could proceed to completion, notwithstanding the injunctive relief granted in respect of the Arundel Shares and Arundel Units held by Onkar.
138 The evidence is that the Sale Agreement was executed on 20 February 2026. The parties to the Sale Agreement were on notice of DK OGP's claims before they entered into the Sale Agreement. So too were the representatives of Alceon, Messrs Liston and Rose.
139 If the injunctive relief sought is not granted, DK OGP may be deprived of its interest in a valuable development property asset. If an injunction is granted the remaining beneficiaries - who do not seek to retain an interest in the development property asset - will be protected by the undertaking as to damages given by Mr Khanna on behalf of DK OGP.
140 In my view, the balance of convenience strongly favours the grant of the injunctive relief sought by DK OGP - that course is, within the meaning in Bradto, the course that appears to carry the lower risk of injustice if the Court should turn out to have been 'wrong'.
141 It follows from the conclusions I have reached that DK OGP's application for interim injunctive relief should be granted, effectively in the form proposed in its summons and noting the form of undertaking that Mr Khanna has given on behalf of DK OGP. DK OGP must also proceed to file and serve a statement of claim within 7 days of the making of orders and each party to the proceeding must also, within a further period of 14 days[152], comply with its obligation under s 26 of the Civil Procedure Act 2010 (Vic) to disclose to each other party the existence of all documents that are, or have been, in the possession, custody or control of the party of which the person is aware and which the person considers, or ought reasonably to consider, are critical to the resolution of the dispute.
142 I will hear from the parties on the appropriate form of orders.
143 Turning now to the Hollowtree proceeding, as noted earlier the position is that pursuant to the amended summons filed following the hearing, the Hollowtree plaintiffs now seek substantive orders concerning only two matters: the removal of Cartel Land's PPSR registrations and the formal discharge of the undertaking provided by Onkar to DK OGP.
Relief sought concerning Cartel Land's PPSR registrations
144 The security interests that Cartel Land holds over assets of Onkar Trustee pursuant to the Heads of Agreement dated on or about 16 December 2025 are notified in PPSR registrations numbers 202601270073335 and 202601280025454.[153] The first registration (ending in 3335), being a 'Commercial - All Paap With Except', which was registered on 27 January 2026, describes the Collateral as being:
All present and after acquired property except property that is not the grantor's interest in (a) shares in the capital of Arundel Estate Developments Pty Ltd (ACN 662 459 243) (Company) owned by the grantor; (b) units issued by the Company as Trustee of the Arundel Estate Unit Trust owned by the grantor.
145 However, in Mr Barbayannis's affidavit, he describes the first registration against Onkar as being:[154]
one over all present and after acquired property except its shares in Arundel and units in the Arundel Estate Unit Trust.
146 The second registration (ending in 5454) is a 'Commercial - Investment Instrument', which was registered on 28 January 2026, and it describes the Collateral as being:
All the grantor's right, title and interest in and to a) shares in the capital of Arundel Estate Developments Pty Ltd (ACN 662 459 243) (Company) b) units issued by the trustee of the Arundel Estate Unit Trust
147 In Mr Barbayannis's affidavit, he describes the second registration against Onkar as being:[155]
one specifically over the Arundel units and shares.
148 As will be noted, Mr Barbayannis's description (above) of the first registration appears to regard Onkar's shares in the capital of Arundel and units issued in the Arundel Trust as being excluded from the Collateral the subject of the registration. To date, however, in their submissions counsel have not focused attention on the PPSR registrations and what they entail, but in the context of the relief sought by way of discharge, it will be necessary for them to do so.
149 As noted earlier, in the Second Fisher affidavit and the Third Fisher affidavit that were filed following the hearing, Mr Fisher informs the Court and the parties as to the arrangements made to facilitate the payment to Cartel Land in order to discharge its PPSR security interests.
150 In his second affidavit, Mr Fisher deposes that he has been informed that the entities associated with the directors of Onkar have made arrangements to borrow the Discharge Funds in the sum of $3,468,000 from Alceon for the purpose of discharging the security held by Cartel Land over the assets of Onkar. He deposes that he also prepared the solicitor's undertakings required to be given to Alceon and to Cartel Land to facilitate the payment to Cartel Land and the discharge of its security interest, to ensure that:[156]
(a) the advance made by Alceon was only used to pay for the discharge of the Cartel Land security interest; and
(b) the release of the Cartel Land security interest would only take effect once Cartel Land received payment of the Discharge Funds.
151 When the solicitor's undertaking was communicated to Alceon, Mr Liston of Alceon replied that the proposal was acceptable to Alceon.[157] However, when the solicitor's undertaking was communicated to Mr Goyal (of Cartel Land) he replied that he 'did not agree to provide the Cartel Release on the terms of [Mr Fisher's] undertaking'.[158] Mr Fisher deposed that 'Mr Goyal indicated that he required payment of an additional amount of $445,500 in interest, bringing the total amount to $3,913,500, and that the funds be held in the trust account of Cornwalls Lawyers rather than Mayfair Legal's trust account.[159] Mr Fisher exhibited email correspondence from Mr Goyal dated 16 March 2026 in which he stated:[160]
Hi Ilya,
3.468 mil was due back on 15/12 as per my last chat with Matt Alceon amd Punvec parties.
445500 need to be added as per same calculations interest on whixh HOA was drafted.
3913541 is the new figure. Pls confirm ur instructions if this new figure is accepted.
Say this week 20/3 fri money will be paid to me; interest at same rate as per Hoa of stolen funds need to be calculated and applied.
Plus I want trust funds in Cornwalls trust account not yours so at Ppsr pexa removal those funds are guaranteed to be paid to me.
Harry
152 Mr Fisher deposes that he has reviewed the Heads of Agreement and is 'unable to identify a provision which provides for interest to accrue on the amount of $3,468,000 after the date of the HOA.'[161]
153 On 17 March 2026, Mr Fisher filed a third affidavit. Relevantly for present purposes, Mr Fisher deposes therein (to the effect that) on the afternoon of 17 March 2026 he received the Discharge Funds in the amount of $3,468,000 in Mayfair Legal's law practice trust account, and holds them in accordance with the 'Alceon Undertaking' and the 'Cartel [Land] Undertaking' as described in the Second Fisher affidavit.[162] He also deposes as to further correspondence he received from Mr Goyal on 17 March 2026 in which he sought inter alia to clarify the basis on which his calculations of the moneys due under the Heads of Agreement were made, as follows:[163]
...
For clarity; HOA calculations as part of my debt are based on 6 monthly interest of 25% PA and 10% Estab fee. Stolen funds as agreed by all
Parties are also based on similar calculations and also agreed by all parties for the basis on signing HOA.
Please confirm your instructions today COB 5 Pm or I will reserve my rights to terminate HOA. Or take over Onkar Global units as I cannot wait forever for this to happen; I have been waiting for 2 years already to get my debt funds back with failed promised several times from punvec parties time and again. Plus there is Master loan agreement for all Loans Punvec parties need to execute being the most important document along Arundel payment.
Specific performance from Alceon to complete Arundel sale was due 15/12 as agreed by all parties. I waited 3 months beyond let alone 2 more payments of 10 mil on 20/1 and 10 mil 20/2 were also not made as part of HOA plus many more breaches.
154 Mr Fisher responded to Mr Goyal by email sent later that day, copying in all recipients shown on Mr Goyal's email and notifying him that he would be providing a copy of Mr Goyal's email, and his reply, to the Court. In his reply, Mr Fisher stated:[164]
I again recommend that you obtain independent legal advice as a matter of urgency in relation to this matter.
I note the following:
The sum of $3,468,000 has now arrived in Mayfair Legal's trust account today in cleared funds (Trust receipt attached) and can be paid to Cartel immediately upon receipt of the signed release.
I have given solicitor's undertakings as an officer of the Supreme Court of Victoria to both Alceon and Cartel in relation to these funds. I am not in a position to redirect the funds to another trust account.
I have reviewed the Heads of Agreement in full and am not able to identify any provision that provides for interest to accrue on the $3,468,000 figure after the date of that agreement.
The matters that you raise concerning other disputes and other parties are not before the Court and I am not able to comment on them.
If you have submissions to make in relation to this proceeding, those submissions should be made to the Court.
155 Mr Joseph Di Mauro, the solicitor for Onkar and Messrs Brar, Dhillon and Virk, also filed an affidavit on 18 March 2026, in which he deposed as to his correspondence with Mr Goyal following the exchange of correspondence between Mr Goyal and Mr Fisher, and exhibited a copy of the letter he sent to Mr Goyal later on the afternoon of 17 March 2026. Mr Di Mauro deposes that:[165]
156 There has been no further correspondence from Mr Goyal in relation to this matter. Nor has the Court been informed of any solicitor having been appointed to act on his behalf.
157 Mr Goyal's reply to Mr Fisher sent by email on the morning of 17 March 2026 seeks to clarify the basis on which the interest he contends is due has been arrived at:[166]
For clarity; HOA calculations as part of my debt are based on 6 monthly interest of 25% PA and 10% Estab fee. Stolen funds as agreed by all
Parties are also based on similar calculations and also agreed by all parties for the basis on signing HOA.
158 It is unclear from Mr Goyal's reply whether he is relying on a course of commercial dealing between the Punvec parties on the one hand and Cartel Land on the other as the basis for the interest claimed. In that regard, his affidavit sworn on 10 March 2026 refers to 'entities identified as the "Punvec Borrowers"' having entered into '11 separate loan agreements related to different development projects.'[167] The 11 Punvec Loans referred to are set out in a table which appears at paragraph 41 of his affidavit, and he deposes that he has not exhibited 'each of the loan agreements and associated documentation as it is voluminous but the loan and associated documentation is available on request (Punvec Loans).'[168]
159 In his email correspondence with Mr Fisher, Mr Goyal has also referred to a 'Master loan agreement for all Loans Punvec parties need to execute' as being 'the most important document along Arundel payment'.[169] It is unclear whether the 'Master loan agreement' is an 'associated document' and if so, whether it has any, and if so what, relevance to Cartel Land's claim for interest in respect of the 'Onkar loan moneys' the subject of the Heads of Agreement and the PPSR registrations.
160 In Mr Brar's affidavit affirmed on 10 March 2026, he deposes that the 'Alceon Payment' - a reference to the $3.5 million that Alceon was willing to provide to the Punvec Group to allow the repayment to Cartel Land and facilitate the release of its security - 'will result in payment being made to Cartel of all monies required to be paid in order to fully satisfy Cartel's security interest over Onkar's property (including the shares in Arundel Estates Developments and units in the Arundel Estate Unit Trust).'[170] Mr Brar is a director of the Punvec Group Pty Ltd (ACN 622 043 609).
161 Mr Brar has not filed any further affidavit addressing Mr Goyal's recently notified claim for interest.
162 In the circumstances, the Court has only become aware of the dispute concerning Cartel Land's claim for interest after the hearing, and the evidence before the Court appears to be incomplete. Thus far, none of the parties have made submissions concerning the PPSR registrations and their coverage, nor have they addressed Cartel Land's recently notified claim for interest.
163 Accordingly, I propose to hear from the parties before determining the course to be followed.
The formal discharge of the (notification) undertaking provided by Onkar to DK OGP
164 The second matter that is the subject of relief sought by the Hollowtree plaintiffs is the order sought in paragraph 4 of their amended summons, for the formal release of the undertaking that Onkar provided to DK OGP on 2 March 2026, not to complete the sale of its interests in Arundel without giving three business days' notice to DK OGP. It will be recalled that due to Monday, 9 March 2026 being a public holiday in Victoria, the position was that DK OPG was effectively given only two business days' notice, rather than the three required by the undertaking.
165 Counsel for the Hollowtree plaintiffs submitted that the order sought in paragraph 4 of the summons, should be made readily, in circumstances where the affected party, DK OPG, has commenced its foreshadowed proceeding and was present before the Court.
166 During the hearing, counsel for DK OPG effectively acknowledged that the giving of the undertaking by Onkar enabled DK OPG to commence and present its case for injunctive relief restraining the first to fourth defendants. Its case has been heard and the Court has indicated that it is just and convenient that the injunctive relief sought be granted.
167 In those circumstances, the undertaking has served its purpose and accordingly, I am satisfied that the formal release sought should be granted.
custodian (pursuant to the Barbayannis Custody Trust) for Maclee Pty Ltd (ACN 062 366 885)
SKDC INVESTMENTS PTY LTD (ACN 662 444 582) as trustee for the SKDC Unit Trust
BRYCE CARROLL SETTLEMENT PTY LTD (ACN 006 069 227) as trustee for the Dale Carroll Provident Fund
MACLEE PTY LTD (ACN 0062 366 885) as trustee for Barbayannis Superannuation Fund
CARSIN HOLDINGS PTY LTD (ACN 665 428 893) as trustee for the Carsin Discretionary Trust
ONKAR GLOBAL PROPERTIES PTY LTD (ACN 663 451 321) as trustee for the Onkar Global Properties Trust
ARUNDEL ESTATE DEVELOPMENTS PTY LTD (ACN 662 459 243) in its own capacity and as trustee for the Arundel Estate Unit Trust
DK OGP PTY LTD (ACN 663 448 628) AS TRUSTEE FOR THE DK OGP TRUST
ONKAR GLOBAL PROPERTIES PTY LTD (ACN 663 451 321) AS TRUSTEE FOR THE ONKAR GLOBAL PROPERTIES TRUST
ANNEXURE A - BEFORE COMPLETION OF THE SALE AGREEMENT
ANNEXURE B - AFTER COMPLETION OF THE SALE AGREEMENT
[1] Counsel for the plaintiffs struck out paragraph 68 of the affidavit of Andrew Barbayannis sworn 5 March 2026 (Barbayannis affidavit).
[2] Affidavit of Steven Kleytman affirmed 6 March 2026 (First Kleytman affidavit), at [19].
[3] Affidavit of Steven Kleytman affirmed 10 March 2026 (Second Kleytman affidavit), at [6].
[14] First Kleytman affidavit, at [30].
[15] At Transcript 11.03.26, at 72, counsel explained:
MR PETRIE: Yes. What that means is when we filed this application, Onkar wasn't willing to complete, now it is, so we don't need an order for specific performance. That is just what the parties are going to do, unless the DK parties succeed in its application to stop it. What we do seek though, still under this summons is an order requiring Cartel to remove its PPSR registration.
[16] An amended summons was filed on 12 March 2026.
[17] At Transcript 11.03.26, at 138, Mr Fisher, on behalf of the Arundel Trustee informed the Court of the 'usual process' that applies whereby the executed PPSR discharge is held in escrow pending completion of the sale.
[18] Barbayannis Affidavit, at [46]; First Kleytman Affidavit, at [20].
[19] Affidavit of Dale Carroll affirmed 6 March 2026 (Carroll affidavit), at [5].
[21] Affidavit of Dushyant Khanna sworn 10 March 2026 (First Khanna affidavit), at [9].
[23] First Khanna affidavit, at [10].
[24] First Khanna affidavit, at [11].
[26] First Khanna affidavit, at [12].
[27] First Khanna affidavit, at [13]-[14].
[28] First Khanna affidavit, at [18].
[29] First Khanna affidavit, at [19].
[36] First Khanna affidavit, at [24].
[37] First Khanna affidavit, at [26].
[39] First Khanna affidavit, at [25].
[40] Affidavit of Ilya Fisher affirmed 9 March 2026 (First Fisher affidavit) at [10]-[19]. Emphasis in bold italics added.
[41] First Khanna affidavit, at [27].
[42] First Khanna affidavit, at [28].
[45] First Khanna affidavit, at [30].
[47] Exhibit IF-1 260, at 263-264 (emphasis in bold italics added).
[48] The parties in the DK OGP proceeding acknowledge that this reference should be to 'Onkar Global Properties Pty Ltd', which is listed as one of the (defined) 'PUNVEC Additional Entities'. In his affidavit, Mr Goyal at [15] deposes that 'cl 1(c)(i) of the Heads of Agreement refers to "Onkar Global Pty Ltd". I [Mr Goyal] believe that this is a mistake, and cl 1(c) was intended to refer to "Onkar Global Properties Pty Ltd"...'.
[49] First Khanna affidavit, at [31].
[51] The PPSR is established under the Personal Property Securities Act 2009 (Cth).
[52] The security interests that Cartel Land holds over assets of Onkar Trustee pursuant to the Heads of Agreement dated on or about 16 December 2025 are notified in PPSR registrations numbers 202601270073335 and 202601280025454.
[53] The Heads of Agreement defines the 'PUNVEC Parties' as being collectively a reference to the 'PUNVEC Borrowers', the 'PUNVEC Guarantors' and the 'PUNVEC Additional Entities' (which expression includes Onkar ATF Onkar Trust).
[54] First Khanna affidavit, at [32].
[56] First Khanna affidavit, at [33].
[57] First Khanna affidavit, at [36].
[58] First Khanna affidavit, at [37].
[59] First Khanna affidavit, at [38].
[60] First Khanna affidavit, at [39].
[62] Barbayannis affidavit, at [52]; Hollowtree plaintiffs' submissions filed 6 March 2026, at [28]-[30].
[64] Barbayannis affidavit, at [26]-[27].
[65] First Khanna affidavit, at [41].
[66] First Khanna affidavit, at [41]; Exhibit DK-1, at 279-280.
[67] Affidavit of Stefan De Palma affirmed 10 March 2026 (De Palma affidavit), at [9]; Exhibit SDP-1, at 4-5.
[71] De Palma affidavit, at [17]-[18]; Exhibit SDP-1, at 22-25.
[72] Affidavit of Rupinder Singh Brar sworn 10 March 2026 (Brar affidavit), at [5].
[75] Brar affidavit, at [9]. In the second affidavit filed by Mr Fisher, he indicates that Mr Goyal (of Cartel Land) does not share this view, and Mr Goyal contends that a sum of $445,500 (or thereabouts) is also payable by way of interest.
[80] The affidavit of Pankaj Goyal sworn 10 March 2026 (Goyal affidavit), at [11]-[17].
[82] Emphasis in bold italics added.
[88] Second affidavit of Ilya Fisher affirmed on 16 March 2026 (Second Fisher affidavit).
[89] Second Fisher affidavit, at [9].
[90] Second Fisher affidavit, at [18].
[91] Second Fisher affidavit, at [10].
[92] Second Fisher affidavit, at [11]-[12].
[93] Second Fisher affidavit, at [15].
[94] Second Fisher affidavit, at [16].
[95] Second Fisher affidavit, at [17].
[96] Third affidavit of Ilya Fisher affirmed on 17 March 2026 (Third Fisher affidavit).
[98] In paragraph 30 of his affidavit, Mr Goyal states that he 'told Mr Rose that the Punvec Borrowers still owed [him] approximately $23 million in loan debt and a further $3.46 million was still outstanding in relation to the debt referred to in the Heads of Agreement.'
[99] Affidavit of Joseph Di Mauro sword 18 March 2026 (Di Mauro affidavit), at [6]-[8].
[103] Mr Khanna deposes that Onkar Global Properties is also referred to as 'Panache': see First Khanna affidavit, at [13(a)]. In the Unit Holders Agreement, on page 1 where the parties are described, Onkar Global Properties Pty Ltd ATF the Onkar Global Properties Unit Trust is defined as 'Panache'.
[105] Seventh defendant's outline of submissions, at [5].
[106] In accord with the principles, for example, in Consul Development Pty Ltd v DPC Estates Pty Ltd [1975] HCA 8; (1975) 132 CLR 373.
[107] Emphasis (in bold italics) added.
[108] DK OGP submissions, at [39]-[41].
[109] Contrary to cl 4.1.9 of the Onkar Trust deed: see Exhibit DK-1, 167.
[110] As is discussed below, there is no longer any prospect that the proceeds of the sale of the Arundel Units owned by Onkar will be transferred to Cartel Land, a separate loan facility having recently been arranged by the Punvec parties to discharge the PPSR registrations.
[111] Sainer v Clore [1966] 2 All ER 272.
[112] See Arakella Pty Ltd v Paton (No 2) [2004] NSWSC 605 at [38] per Austin J.
[114] Counsel for the plaintiff referred the Court to the decision of the Court of Appeal in Harstedt Pty Ltd v Tomanek [2018] VSCA 84; (2018) 55 VR 158, at 175 [70] where the Court (Santamaria, McLeish and Niall JJA) discusses what are the necessary elements of liability under the second limb of Barnes v Addy, as conventionally understood in Australia.
[116] [2000] FCA 36, at [48].
[117] [1924] HCA 10; (1924) 34 CLR 306 at 326 (per Isaacs and Rich JJ).
[118] [2000] FCA 36, at [59].
[119] [2000] FCA 36, at [60].
[120] [1873] 8 Ch App 902 at 911.
[121] [2000] FCA 36, at [61].
[122] (1990) V Conv R 54-389; BC9000638, at [19].
[123] Emphasis in bold italics added.
[128] DK OGP submissions, at [50]-[51].
[129] See: Sale Agreement, Schedule 1.
[132] Email from Talbot Sayer to Mayfair Legal 5 March 2026 at p157 of Exhibit SK-1 to the Affidavit of Steven Kleytman dated 6 March 2026 (Kleytman Affidavit) [20].
[133] Email from Talbot Sayer to Mayfair Legal dated 3 March 2026 at p.142 of Exhibit AMB-1 to Barbayannis Affidavit [32].
[134] Onkar and Punvec parties' submissions, at [3(a)].
[135] Onkar and Punvec parties' submissions, at [8].
[136] Onkar and Punvec parties' submissions, at [9].
[137] Transcript 11.03.26, at 124-125 (Mr Baum).
[138] Onkar and Punvec parties' submissions, at [3(b)] and [3(c)].
[139] Transcript 11.03.26, at 136-137.
[140] See also Padkohe Pty Ltd v Fletcher [2006] NSWSC 102, at [35] per Brereton J.
[141] Jacobs' Law of Trusts in Australia (8th ed, J D Heydon and M J Leeming, Lexis Nexis Butterworths), at [23-04] (citations omitted).
[144] (1968) 118 CLR 618, 622.
[145] See Bradto Pty Ltd v State of Victoria [2006] VSCA 89; (2006) 15 VR 65, 73 [35] (Maxwell P and Charles JA).
[146] [2006] VSCA 89; (2006) 15 VR 65, 82 [84] (citations omitted).
[147] Jacobs' Law of Trusts in Australia (8th ed, J D Heydon and M J Leeming, Lexis Nexis Butterworths), at [23-03] (citations omitted).
[148] First Fisher affidavit, at [14].
[149] In accord with the principles, for example, in Consul Development Pty Ltd v DPC Estates Pty Ltd [1975] HCA 8; (1975) 132 CLR 373.
[152] This period has been extended to 14 days so as to accommodate the public holidays over the Easter break.
[153] A copy of each of the PPSR Registrations appears at Exhibit AMB-1, at 201-212.
[154] Barbayannis affidavit, at [47].
[156] Second Fisher affidavit, at [10].
[157] Second Fisher affidavit, at [12]; Exhibit IF-2, at 14.
[158] Second Fisher affidavit, at [15].
[161] Second Fisher affidavit, at [17].
[162] Third Fisher affidavit, at [12].
[163] Third Fisher affidavit, at [6]-[9]; Exhibit IF-3, at 7 (emphasis in bold italics added).
[165] Di Mauro affidavit, at [6]-[8].
(1975) 132 CLR 373
(2018) 55 VR 158
(1924) 34 CLR 306
(2006) 227 CLR 57
(1968) 118 CLR 618
(2006) 15 VR 65