Plaintiffs v Defendants

PRACTICE AND PROCEDURE - Whether fair to allow defendants to claim against second plaintiff where claim not previously articulated sufficiently to put second plaintiff on notice.

1. This proceeding was commenced by originating motion filed 31 March 2025 whereby the plaintiffs effectively seek to enforce a deed of settlement entered into by them with the defendants in May 2022 (Deed) and rectification of certain matters in the Deed.
2. The trial proceeded by way of affidavit.
3. At trial, the plaintiffs' rectification claim was consented to.
4. For the reasons which follow, there will be judgment for the first plaintiff on the terms set out below.

1. SK Developments (Aust) Pty Ltd (SK Developments) is the first plaintiff in this proceeding.
2. The second plaintiff is Bharathan Kanagaiyan (Bharathan) who was a director of SK Developments from 24 October 2014 to 16 August 2021.
3. The first defendant is Vansan Construction (Aust) Pty Ltd (Vansan). Vansan was wound up in insolvency on 6 August 2025 and is in liquidation. SK Developments' claim against Vansan is stayed by operation of s 471B of the Corporations Act 2001 (Cth) and the trial proceeded against the other defendants only.
4. The second defendant is Dhruva Development Pty Ltd (Dhruva).
5. The third defendant is Fortunate Star Development Pty Ltd (Fortunate Star).
6. The fourth defendant is Sutharsan Shanmugalingam (Sutharsan).[1] He is the sole director, the company secretary, and the sole shareholder of Vansan, and he is the husband of the fifth defendant.
7. The fifth defendant is Kogulavani Sutharsan (Kogulavani). She is the sole director, the company secretary, and the sole shareholder of each of Dhruva and Fortunate Star, and she is the wife of Sutharsan.

1. The background described in this section A.3 is taken from the documents or based on uncontroversial matters set out in the affidavits relied on at trial.
2. In 2019, SK Developments, as lender, entered into a deed entitled 'Loan Agreement' (Loan Agreement) with Vansan, as borrower, and with Sutharsan and Kogulavani, as guarantors.
3. Pursuant to the Loan Agreement, SK Developments lent and advanced to Vansan the sum of $1.15 million (Amount) for cashflow purposes towards the purchase by Dhruva of land situated at 530-534 Springvale Road, Springvale South (Land).[2]
4. The term of the loan under the Loan Agreement was 1 December 2019 to 31 December 2021. Pursuant to the Loan Agreement, interest on the Amount was payable at a fixed rate of 10% per year during the term of the loan. The parties to the Loan Agreement agreed that if the Amount was not paid by 31 December 2021, SK Developments would have, and be entitled to, a proprietary interest in the Land and be entitled to lodge a caveat over it, and it would be entitled to institute legal proceedings to recover the Amount, together with interest and costs.
5. The Amount was not repaid by 31 December 2021.
6. In May 2022, the parties to this proceeding entered into the Deed. They agreed that the Outstanding Amount (as defined in the Deed, which I will set out shortly) would be paid by Dhruva transferring two of the apartments being developed on the Land, which apartments were specified in the Deed.
7. It is necessary for me to set out the relevant terms of the Deed in some detail.
8. The content of paragraphs 12 to 16 above is taken from recitals A to D, G and H of the Deed. There is no need for me to repeat those recitals here.
9. Other recitals which are relevant are as follows:
   1. Vansan, Sutharsan and Kogulavani acknowledged receipt of the Amount, and agreed to repay the Amount, plus interest, to SK Developments as follows:

(a) $350,000.00 on or before l March 2021, plus the accumulated interest;

(b) $800,000.00, plus the accumulated interest, on or before 31 December 2021; and

(c) $167,500, plus the accumulated interest.

...

1. Vansan, Sutharsan and Kogulavani have acknowledged that they and each of them owe the sum of $1,581,000.00 [principal x interest rate x 2 years] (Outstanding Amount) to SK Developments and that the Outstanding Amount is due and payable to SK Developments.

2. With the knowledge and consent of the other Parties, Vansan, Sutharsan and Kogulavani have asked SK Developments not to commence legal proceeding [sic] to recover the Outstanding Amount but to settle the matter as set out in this Deed.

1. Clause 4 of the Deed relevantly provides as follows:

The Parties agree to settle the payment of the Outstanding Amount by Vansan, Sutharsan and Kogulavani to SK Developments as follows:

(a) On the Execution Date, the Owner will sell and SK Developments will purchase:

(i) Lot 23 for the Purchase Price for Lot 17 [sic]; and

(ii) Lot 24 for the Purchase Price for Lot 28 [sic],

pursuant to deeds in the form of the Contract of Sale of Real Estate: Lot 17 [sic] and Contract of Sale of Real Estate Lot 28 [sic] respectively.

(b) The Owner will Transfer or procure the Transfer on the Transfer Date.

(c) Payment of the Purchase Price for Lot 23 and the Purchase Price for Lot 24 will be by way of setting of [sic] such amounts against the Outstanding Amount.

1. The following definitions are contained in the Deed, which are relevant to clause 4:

(a) 'Contract of Sale of Real Estate: Lot 23' means 'the contract of the sale of Lot 17 [sic] between Dhruva and SK Developments in the form of the document annexed hereto as Annexure B'.

(b) 'Contract of Sale of Real Estate: Lot 24' means 'the contract of the sale of Lot 28 [sic] between Dhruva and SK Developments in the form of the document annexed hereto as Annexure C'.

(c) 'Execution Date' means '31 December 2022 on which the 'Contract of Sale of Real Estate: Lot 23' and the 'Contract of Sale of Real Estate: Lot 24' must be executed by Dhruva and SK Developments respectively'.

(d) 'Lots' means 'Lot 23 and Lot 24'.

(e) 'Outstanding Amount' means 'the amount referred to in recital I'.

(f) 'Owner' means 'Dhruva, the registered owners of Lot 17 and Lot 28, as well as the Land'.

(g) 'Parties' means 'SK Developments, Vansan, Dhruva, Fortune [sic] Star, Sutharsan Kogulavani, and Kanagaiyan'.

(h) 'Purchase Price for Lot 23' means 'the sum of $750,000.00, being the agreed value of Lot 23'.

(i) 'Purchase Price for Lot 24' means 'the sum of $750,000.00, being the agreed value of Lot 24'.

(j) 'Transfer' means 'the transfer and registration of Lot 17 [sic] and Lot 28 [sic] respectively to and in the name of SK Developments or its nominee'.

(k) 'Transfer Date' means 'in respect of (i) Lot 17 [sic], 31 December 2022 and (ii) Lot 28, 31 December 2022'.

1. Clause 7 of the Deed provides as follows in respect of default:

The Parties agree that in the event of the Transfer not occurring on the Transfer Date, Vansan, Sutharsan, Kogulavani, Dhruva and Fortune Star unconditionally and irrevocably consent to SK Developments entering judgment against each one of them jointly and severally for the Outstanding Amount and payment thereof.

1. Clause 9 relevantly provided that, except as stated in the Deed, upon Transfer of the Lots, SK Developments releases Vansan, Dhruva, Fortunate Star, Sutharsan and Kogulavani from their obligation to pay the Outstanding Amount.
2. Clause 29 provides that 'The Parties warrant the truth and accuracy of the Recitals to this Deed'.
3. Lots 23 and 24 were not transferred to SK Developments on the Transfer Date, or at all, and the Outstanding Amount has not been paid by the defendants to SK Developments. Instead, Lots 23 and 24 were sold and transferred by Dhruva to third-party purchasers.

1. As is apparent from the above description of the terms of the Deed, there are a number of errors in the Deed in respect of which the plaintiffs seek rectification. It is uncontroversial that the typed version of the Deed, prior to its execution, contained certain handwritten amendments. In the main, these were to alter the apartments which were to be transferred to SK Developments. After the typed version of the draft deed had been prepared, the parties agreed that instead of transferring Lots 17 and 28, the Transfer would be of Lots 23 and 24. This was changed by hand in the final version of the Deed in some places but not all. Also, Fortunate Star was named in the Deed as 'Fortune Star Development Pty Ltd', whereas its name was actually 'Fortunate Star Development Pty Ltd'.
2. Accordingly, the plaintiffs seek rectification of the Deed as follows:

(a) by deleting the word 'Fortune' where it appears on the cover page, on the second page under the heading 'PARTIES', and on page 14 where the Deed was signed and substituting the word 'Fortunate';

(b) by deleting the words 'Lot 17' wherever they appear in clauses 1(a), 1(h), 1(l), 1(r), 1(s), 1(t), 4(a)(i), and 10(a) and substituting the words 'Lot 23';

(c) by deleting the words 'Lot 28' wherever they appear in clauses 1(b), 1(i), 1(l); 1(r), 1(s), 1(u), 4(a)(ii), and 10(a) and substituting the words 'Lot 24';

(d) by deleting the words 'on Certificate of Title Volume 12333 Folio 497 on plan 835524H situate at 10 Jaffna Place, Springvale South, Victoria' in clause 1(h) and substituting the words 'on Certificate of Title Volume 12333 Folio 503 Plan of Subdivision 835524H situate at 22 Jaffna Place Springvale South Victoria 3127'; and

(e) by deleting the words 'on Certificate of Title Volume 12333 Folio 508 on plan 835524H situated at 3 Chava Place, Springvale South, Victoria' in clause 1(i) and substituting the words 'on Certificate of Title Volume 12333 Folio 504 Plan of Subdivision 835524H situate at 24 Jaffna Place Springvale South Victoria 3172'.

1. At trial, the second to fifth defendants consented to the plaintiffs' rectification claim and hence orders will be made to effect that rectification.

A.4.2 Judgment for the Outstanding Amount, interest, and costs

1. SK Developments seeks judgment, pursuant to clause 7 of the Deed, that the second to fifth defendants jointly and severally pay it the sum of $1,581,000, being the Outstanding Amount as set out in the Deed.
2. SK Developments also seeks orders that the second to fifth defendants pay interest at the statutory rate of 10% from 1 January 2023 to the date of payment, plus costs on an indemnity basis, alternatively the standard basis.

1. There have been a number of interlocutory applications and determinations in this proceeding, however these are not relevant to the determination which I must now make, other than to mention that some of the affidavits referred to at trial were made in the context of one or more of those interlocutory matters.
2. On 28 August 2025, I made orders which included the following (Trial Orders):

(a) pursuant to r 45.05(2)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Rules), the requirements for the plaintiffs to comply with rr 5.03(1) and 8.02 of the Rules are dispensed with;

(b) pursuant to r 45.05(2)(b) of the Rules, the plaintiffs are authorised to commence the proceeding by originating motion in Form 5C;

(c) the second to fifth defendants are to file and serve any further affidavits upon which they wish to rely at trial by 4pm on 18 September 2025;

(d) the plaintiffs are to file and serve any affidavits in response upon which they wish to rely at trial by 4pm on 9 October 2025;

(e) the parties are to file and serve their opening submissions, limited to no more than 10 pages, by 4pm on 5 November 2025;

(f) the parties are to provide a trial plan to my Chambers by 4pm on 6 November 2025;

(g) if materials are not filed on time, then a party may not rely on them without obtaining leave from the Court; and

(h) the trial be listed for trial on 10 November 2025 on an estimate of three days.

1. The parties adhered to the Trial Orders in respect of filing their affidavits. The plaintiffs filed and served their written submissions by the date ordered, however the second to fifth defendants did not. Instead, their written submissions were provided at 9.07am on the first day of trial, which was due to commence at 10.00am. The plaintiffs provided a draft trial plan to my Chambers by 6 November 2025, which had been the subject of correspondence with the solicitor for the second to fifth defendants, without a response on their behalf.
2. At trial, counsel for the plaintiffs, Mr Trichardt, made extensive oral submissions as well as relying on his written submissions. Counsel for the second to fifth defendants, Mr Prendergast, stated that he relied on his written submissions and did not intend to make oral opening submissions.
3. Some discussion then ensued between myself and Mr Prendergast, as I sought to clarify the second to fifth defendants' position. From that discussion, and the written submissions, it emerged that the second to fifth defendants contend that the amount of '$167,500 plus interest' included in the Outstanding Amount was included in error and that the Deed ought be rectified to correct that error (Second to Fifth Defendants' Rectification Claim). Obviously, this would have the effect of reducing the Outstanding Amount. The second to fifth defendants submit that this was either a common mistake made by the parties in not reflecting in the Outstanding Amount the amounts actually advanced under the Loan Agreement, or a unilateral mistake made by the defendants when executing the Deed in circumstances where it would be inequitable or unconscionable for the plaintiffs to be able to rely on the 'inflated figure' as reflecting the amount outstanding under the Loan Agreement.
4. Further, it also emerged that the second to fifth defendants contend that the Court ought imply a term into the Deed (Alleged Implied Term):

... to the effect that if the Outstanding Amount was reduced between the date of the Deed and the date when judgment was sought to be entered by reason of any payments of money received by the plaintiffs from the defendants then the Outstanding Amount (or the amount in respect of which the plaintiffs were entitled to enter judgment and/or receive payment of) must be reduced by reference to those payments.

1. The second to fifth defendants contend that Dhruva made payments to Bharathan representing rent for Lots 23 and 24, despite there being no requirement under the Deed to do so, which payments commenced towards the end of FY2022 and continued to the end of FY2024, totalling $93,841.30 (Rent Amount). They say that the Rent Amount should be deducted from the Outstanding Amount.
2. The second to fifth defendants also contend that on 12 November 2019, Bharathan agreed to pay 50% of all liabilities relating to Fortunate Star, such that he is liable for 50% of Fortunate Star's liability for stamp duty pursuant to a notice of assessment from the State Revenue Office for $171,663.32. They say that the sum of $85,831.66 (being 50% of the assessed stamp duty) (Stamp Duty Amount) should be set off against the Outstanding Amount. Alternatively, it should be treated as a counterclaim against Bharathan.
3. After hearing from Mr Prendergast, I commented that it was not until receipt of the written submission that morning, and the ensuing discussion after the plaintiffs' opening address, that the second to fifth defendants gave any indication that they made claims in the proceeding. While some factual matters regarding the $167,500, the Rent Amount and the Stamp Duty Amount were mentioned in the affidavits filed by the second to fifth defendants, apart from disputing that there should be judgment for the Outstanding Amount, nowhere had a claim been articulated.
4. After the lunch adjournment, the second to fifth defendants provided a draft summons which they sought leave to file. The relief sought in the draft summons (Summons) included orders that:

(a) the Deed be rectified to delete sub-paragraph (c) of recital E and amending the Outstanding Amount defined in recital I from $1,581,000 to $1,380,000;

(b) the following amounts be set off against any amounts which the defendants are found to be liable to SK Developments pursuant to its claims in this proceeding:

(i) the Stamp Duty Amount; and

(ii) the Rent Amount;

(c) alternatively to (b), there be orders that Bharathan pay:

(i) the Stamp Duty Amount to Fortunate Star; and

(ii) the Rent Amount to the defendants.

1. The plaintiffs opposed leave being granted to the second to fifth defendants to file the Summons.
2. After hearing argument, for reasons which were exposed during the course of argument and recorded in the transcript, I delivered an oral ruling whereby the second to fifth defendants were granted leave to file the Summons, with some minor modifications, but they were not permitted to lead any additional evidence in respect of those matters. Further, the cross-examination of the plaintiffs' witnesses on those matters was to be confined to the issues as they were raised in the defendants' affidavits and could not go any further than that.
3. The second to fifth defendants attempted to file the Summons after that ruling, however it was rejected for filing by the Registry, as the relevant fee had not been paid. Counsel for the second to fifth defendants acknowledged that this would need to be attended to. The trial was conducted on the basis of the originating motion and on the Summons. During the course of preparing these reasons, it came to my attention that the Summons had still not been filed. The solicitor for the second to fifth defendants was contacted and the Summons was filed on 2 February 2026.

(a) affidavits of Jothimathy Kugan (Jothimathy) sworn on 30 March 2025 and 9 October 2025. Jothimathy is the sole director, secretary and shareholder of SK Developments;

(b) affidavit of Bharathan sworn on 30 March 2025; and

(c) affidavits of Kugan Kanagaiyan (Kanagaiyan) sworn on 1 August 2025 (First Kanagaiyan Affidavit) and 9 October 2025. Kanagaiyan is Jothimathy's husband and was involved in the subject matter of the proceeding.

1. The second to fifth defendants rely upon affidavits of Sutharsan affirmed on 10 July 2025 (First Sutharsan Affidavit) and 18 September 2025. They also rely on another affidavit affirmed 18 September 2025 by Sutharsan, which merely exhibits two building contracts.
2. These affidavits stood as the evidence-in-chief of each of the witnesses. The only witnesses who were required by a party for cross-examination were Kanagaiyan and Sutharsan. It is readily apparent from their affidavits that Kanagaiyan and Sutharsan were the main persons dealing with the relevant subject matter on behalf of the plaintiffs and the defendants respectively. It is also readily apparent that they disagree with each other about many of the factual matters concerning the dealings between the parties.
3. By the conclusion of the trial, it was apparent that much of the affidavit evidence was no longer relevant (if some of it ever was). There is little utility in me summarising the affidavit evidence here. Rather, the relevant evidence (to the extent not already set out in section A of these reasons) is best canvassed within the issues for determination as set out later in these reasons.

1. The plaintiffs refer to several principles enunciated in case law in relation to the construction of commercial agreements. They also refer to principles relating to the circumstances in which a Court will enter judgment for an agreed amount, together with costs, pursuant to a default clause in a settlement agreement. These principles were not expressly rejected by the defendants.

C.1 Principles relevant to construction of commercial agreements

1. The relevant principles regarding the construction of commercial contracts have been stated in numerous cases. These principles were helpfully summarised by the Court of Appeal in Adaz Nominees Pty Ltd v Castleway Pty Ltd.[3] In that case, the Court of Appeal stated:[4]

To construe the terms of a commercial contract, the Court asks 'what a reasonable businessperson would have understood those terms to mean'. To answer that question, 'the reasonable businessperson' [is] placed in the position of the parties', and the Court applies the following principles:

(a) The terms are construed objectively, and the subjective intentions of the parties are irrelevant.

(b) The objective approach requires reference to the text and its ordinary meaning, together with:

(i) the context, being the entire text of the contract including matters referred to in the text; and

(ii) the purpose.

These matters will ordinarily be identified by reference to the contract alone, but evidence of mutually known objective background circumstances relevant to the purpose is admissible 'no matter how clear the "ordinary meaning" of the words'. Identification of purpose may allow admission of evidence of the genesis of the transaction, the background, the context and the market in which the parties are operating.

(c) Unless a contrary intention appears in the contract, the Court is entitled to approach the task of interpretation on the assumption that the parties intended to produce a commercial result, and should construe it so as to avoid a commercial nonsense. However, the Court does not weigh the commerciality of the agreement, and business commonsense is a topic on which reasonable minds may differ.

(d) If, after completion of this process, the language used in the contract 'is ambiguous or susceptible of more than one meaning' then evidence of surrounding circumstances external to the contract is admissible to assist with interpretation of the language in question.

(e) However, 'evidence of the parties' statements and actions reflecting their actual intentions and expectations' is inadmissible. Although evidence of prior negotiations is admissible to establish objective background facts known to both parties and the subject matter of the contract, evidence of negotiations reflective of actual intentions and expectations is not receivable.

(f) Post contractual conduct is inadmissible to construe the terms of the contract. However, the parties' subsequent communications may be relevant to determine whether the parties intended to enter into a binding contract.

1. After citing this passage from Adaz Nominees, in VS Property and Holding Pty Ltd v Zurzolo, Quigley J went on to say that:[5]

I agree that the correct approach to interpretation of the contractual obligations between the parties requires the provisions to be read harmoniously and consistently. However, as indicated at the outset, there are clauses in the documents which are clearly inconsistent and I must determine the meaning and effect of them reading the documents as a whole.

C.2 When will the Court enter judgment for an agreed amount together with costs pursuant to a default clause in a deed of settlement?

1. The plaintiffs referred to Judge Robertson's decision in the County Court of Victoria in Eleventh Klingon Pty Ltd v Bell,[6] which they contend is a situation that is analogous to this case. In Eleventh Klingon, the parties had compromised a proceeding in the County Court and entered into a deed of settlement, which contained a default clause entitling the plaintiff to enter judgment for the agreed amount plus the costs of the entry of judgment on an indemnity basis, less any amount paid by the defendant to the date of default. The deed could also be relied on by the plaintiff as sufficient evidence of the defendant's consent to the entry of judgment. After default, Judicial Registrar Muller entered judgment in favour of the plaintiff, plus indemnity costs of and incidental to the application, to enforce the terms of settlement. The defendant then sought a review of the Judicial Registrar's decision, and Judge Robertson affirmed it.
2. The plaintiffs particularly relied upon a section of Eleventh Klingon where Judge Robertson set out the following matters regarding terms of settlement contained within a deed. Her Honour stated that:[7]

Terms of Settlement contained within a deed

[45] In Laszczuk v Bendigo & Adelaide Bank Ltd, the Court of Appeal (Whelan, Hargrave and Emerton JJA) in a joint judgment, observed, in relation to the documentation of the terms of settlement as a deed, that:

"Deeds are a very ancient form of transaction by which a person legally binds themselves to an obligation. The nature of a deed is such that compliance with formalities is critical. In Morley v Boothby, Best CJ said:

'The common law protected men against improvident contracts. If they bound themselves by deed, it was considered that they must have determined upon what they were about to do, before they made so solemn an engagement; and therefore it was not necessary to the validity of the instrument, that any consideration should appear on it.

[46] The Court of Appeal then referred to Manton v Parabolic Pty Ltd and Ors. In that decision, Young J, sitting in the Equity Division, reviewed the nature of a deed in its historical context, and said:

"... Thus the substantial requirement of a deed is that it be intended by the party who does it to be the most solemn indication to the community that he really means to do what he is doing. The solemn indication is given by sealing a deed which witnesses to what has been done ...'

So then, a deed is the most solemn act that a person can perform with respect to a particular property or contract involved, and the form of that deed is as laid down by the law from time to time.'"

[47] The Court of Appeal noted that:

"One consequence of the solemnity required in relation to deeds is that consideration is not required ...."

Consideration

Adequacy

[48] An agreement by a creditor to defer an immediate right to repayment of a debt or to forbear to sue constitutes adequate consideration.

Bona fide compromise of claim

[49] Where a promisor is bound to perform an obligation under a pre-existing contract, and a dispute arises as to whether the promisor is bound to perform the obligation or has a cause of action under the contract, a settlement of the dispute on terms that the promisor does precisely what he had already bargained to do is nevertheless good consideration. The honest compromise of a bona fide disputed claim is good consideration, even if the claim would, in the end, fail. It would be pointless for the Court to examine for itself the correctness of the promisor's claim when the new bargain demonstrates the promise regarded the fresh promise as a benefit. If that were to occur, no settlement would be safe. As a matter of policy, courts support the freedom of parties to resolve disputes between them and are prepared to find a consideration where a dispute is compromised or there is a forbearance.

1. It is well established that the Court has jurisdiction to summarily enforce a settlement agreement by application within an existing proceeding,[8] which is what occurred in Eleventh Klingon. However, that is not the type of application under consideration in this case. Here, there was no existing proceeding, hence the plaintiffs commenced a proceeding in which they sue on the Deed and seek judgment in accordance with its terms.

1. In Adaz Nominees, the Court of Appeal stated as follows:[9]

In relation to the implication of terms (other than terms implied by law), it is well established that five criteria must be satisfied before a term will be implied to give business efficacy to a contract. These are that the implied term:

(a) must be reasonable and equitable;

(b) must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;

(c) must be so obvious that 'it goes without saying';

(d) must be capable of clear expression; and

(e) must not contradict any express term of the contract.

1. The following provides a high level overview of how each party puts its case.

1. The plaintiffs contend that the Court should grant the relief sought by them as, by the Deed, the defendants have unequivocally, unconditionally and irrevocably consented to judgment against each of them jointly and severally for the Outstanding Amount because the Transfers of the Lots did not occur in accordance with the Deed.
2. The plaintiffs also contend that there is no evidence to support judgment not being entered for the full Outstanding Amount.
3. As already noted, the plaintiffs contend that the judgment should include interest at the statutory rate since 1 January 2023 and costs on an indemnity basis.

D.2 The second to fifth defendants' overall position

1. The second to fifth defendants oppose the relief sought by the plaintiffs, as they say that the sum of $1,581,000 does not reflect the amount payable to SK Developments, having regard to the following:

(a) the Outstanding Amount mistakenly includes a sum of "$167,500 plus accumulated interest";

(b) it is implicit from the terms of the Deed that the "Outstanding Amount and payment thereof" which would be reflected in any judgment sought pursuant to clause 7 must account for payments which have been made by the defendants to the plaintiffs in connection with the subject matter of the Deed since the date when the Deed was signed, including the Rent Amount; and

(c) the defendants have a right to legal and/or equitable set-offs against the plaintiffs, including by reason of the Rent Amount and the Stamp Duty Amount.

1. In the alternative to setting off the Outstanding Amount by the Rent Amount and the Stamp Duty Amount, in the Summons, the second to fifth defendants seek orders that Bharathan pay the Rent Amount to the defendants and the Stamp Duty Amount to Fortunate Star. However, that was not how their case was put at trial. Rather, they did not seek orders that Bharathan pay the Rent Amount to the defendants, but that it be deducted from the Outstanding Amount, on the basis of the Alleged Implied Term or alternatively on the basis of set-off. In respect of the Stamp Duty Amount, the case put at trial was as sought in the Summons.
2. The second to fifth defendants also contend that the plaintiffs are not entitled to statutory interest prior to the proceeding having been commenced, or to indemnity costs.

1. Based on the evidence adduced at trial and the submissions made by the parties, it is apparent that the second to fifth defendants do not oppose judgment being given in favour of the plaintiffs, but they do oppose the amount of the judgment (in that they say the Outstanding Amount should be reduced) and they disagree with the claim for statutory interest prior to the proceeding having been commenced. They also now make claims of their own.
2. Accordingly, by the end of oral opening submissions and close of evidence, the following matters appeared to require determination:

(a) Issue 1: should the Deed be rectified to delete sub-paragraph (c) of recital E and amend the Outstanding Amount defined in recital I from $1,581,000 to $1,380,000?

(b) Issue 2: should the Outstanding Amount be reduced by the Rent Amount on the basis of the Court implying a term into the Deed to the effect of the Alleged Implied Term?

(c) Issue 3: alternatively to Issue 2, should the Outstanding Amount be reduced by the Rent Amount on the basis of set-off?

(d) Issue 4: should the Outstanding Amount be reduced by the Stamp Duty Amount on the basis of set-off?

(e) Issue 5: alternatively to Issue 4, should Bharathan be ordered to pay the Stamp Duty Amount to Fortunate Star?

(f) Issue 6: on what basis should interest be ordered?

F Issue 1: should the Deed be rectified to delete sub-paragraph (c) of recital E and amend the Outstanding Amount defined in recital I from $1,581,000 to $1,380,000?

1. Opening submissions were made by the second to fifth defendants regarding this issue. Evidence was adduced in respect of it. Indeed, much of Kanagaiyan's and Sutharsan's affidavit evidence and cross-examinations were directed to this issue. The plaintiffs addressed the issue in closing submissions. It was one of the claims made by the second to fifth defendants by the Summons.
2. However, at the commencement of his closing address, counsel for the second to fifth defendants informed the Court that they no longer pursued that relief. In particular, they no longer sought a reduction of the Outstanding Amount from $1,581,000 to $1,380,000. Therefore, there is no need for me to deal with the merits of this issue.
3. Thus, any reduction sought to the Outstanding Amount by the second to fifth defendants was then confined to the deduction of the Rent Amount and/or the Stamp Duty Amount, noting that these issues will be dealt with below and were not part of the rectification claim made by the second to fifth defendants.

G Issue 2: should the Outstanding Amount be reduced by the Rent Amount on the basis of the Court implying a term into the Deed to the effect of the Alleged Implied Term?

1. As delineated at paragraphs 37 and 38 above, the second to fifth defendants contend that the Court ought to imply the Alleged Implied Term into the Deed and reduce the Outstanding Amount by the Rent Amount when calculating the amount for which judgment should be ordered.
2. This requires consideration of two key matters: whether the Alleged Implied Term should be implied into the Deed and whether the Outstanding Amount should be reduced by the Rent Amount as a consequence of the implied term.

1. Given that the Alleged Implied Term is relied upon for the contention that the Outstanding Amount should be reduced by the Rent Amount, it is convenient to set out here the evidence regarding the Rent Amount.

1. In the First Sutharsan Affidavit, Sutharsan deposes that as soon as the Deed was signed, Kanagaiyan demanded receipt of rents for Lots 23 and 24.
2. He says that Bharathan and Kanagaiyan received rent of $93,841.40, described as:

1. He exhibits what he describes as copies of the rent ledger for 22 Jaffna Place and summary of rental payments. There are no such documents exhibited for 24 Jaffna Place. Despite describing the payments as being received by Bharathan and Kugan (ie Kanagaiyan), the ledger exhibited shows the rental payments for 22 Jaffna Place as being made to Bharathan after 1 July 2022. There is no evidence of any payments of rent to Kanagaiyan.
2. In cross-examination, Sutharsan said that he paid the Rent Amount to Bharathan because Kanagaiyan told him to. Despite vehemently asserting that the rent ledger for 24 Jaffna Place was in his affidavit, when taken through it, he eventually conceded that this was not the case.
3. Sutharsan also conceded in cross-examination that Bharathan made payments of rates, utilities and land taxes while rent was being paid. He said he did not know how much Bharathan had paid.

1. In response to the First Sutharsan Affidavit, Kanagaiyan deposes in the First Kanagaiyan Affidavit that some rent was received by Bharathran for 22 and 24 Jaffna Place while SK Developments waited for the transfer of the properties to it pursuant to the Deed. He also deposes that while Bharathran received some rent payments, he also made utilities and rates payments associated with those properties pursuant to invoices made out to Dhruva, and he exhibits those invoices.
2. Kanagaiyan was not cross-examined on matters concerning the Rent Amount or the payments he said Bharathan made.

1. I now turn to the parties' submissions on the Alleged Implied Term and it being employed to reduce the Outstanding Amount by the Rent Amount. Both parties addressed each of the factors set out in BP Refinery for the implication of a term, which are described at paragraph 55 above.

G.2.1 The second to fifth defendants' submissions

1. The second to fifth defendants submit that all of the factors set out in BP Refinery are met.
2. The second to fifth defendants submit that it is reasonable and equitable for the Court to imply the Alleged Implied Term into the agreement between the parties because it is reasonable and equitable that the plaintiffs not be entitled to enter judgment for the original amount that was outstanding as at the date of the Deed if payments have been made to them since that date. They contend that it is standard in settlement agreements for default provisions to be made whereby judgment may be entered upon default in payment, with the amount of the judgment to be the settlement amount less any payments made in reduction of the agreed settlement amount before judgment is sought to be entered. They say that this would be a reasonable and equitable arrangement.
3. The second to fifth defendants submit that the Rent Amount was paid without an obligation to do so. They say that the only conclusion that can be drawn from that is that the Rent Amount should come off the Outstanding Amount. They submit that as there is no obligation to pay it, it must be treated as coming off the amounts that the parties had agreed were outstanding as at the date of the Deed. Further, with there being no term in the Deed that addresses that question expressly, which might often be the case, if there are terms dealing with amounts that were paid prior to any default, but there being no express term addressing that issue, it must be implied into the Deed. This is to ensure that the plaintiffs do not receive a commercial windfall when they come to apply for a default judgment of the full Outstanding Amount that was agreed to be outstanding as at the date of the signing of the Deed some two years earlier.
4. The second to fifth defendants contend that if there have been payments made for the benefit of SK Developments, or at its direction, in connection with the subject matter of the Deed, then those payments should be deducted from the Outstanding Amount. They say that the Rent Amount comprises such payments.
5. The second to fifth defendants submit that the Alleged Implied Term is necessary to give business efficacy to the Deed, as otherwise the Deed does not account for payments made in reduction of what was outstanding as at the date of the Deed.
6. They also submit that the Alleged Implied Term is so obvious that it 'goes without saying' by virtue of the way that settlement deeds are normally structured. More precisely, the incorporation of the Alleged Implied Term essentially gives the Deed the effect of how typical settlement payments are structured. That is, that any payments made before the entitlement to enter judgment arises are to be deducted from the amount in respect of which the plaintiffs are entitled to enter judgment.
7. The second to fifth defendants submit that the term - as enunciated in their written opening submissions on the first day of trial - is capable of clear expression. They say that the Alleged Implied Term is one commonly used in settlement agreements and allows for the reduction of what had been agreed to be the Outstanding Amount as at the day of the Deed, not the time when the plaintiffs seek to apply for default judgment.
8. The second to fifth defendants submit that the Alleged Implied Term does not contradict any express term of the Deed. They did not make any other substantive submissions directed to this factor.
9. In what I assume was a response to the plaintiffs' emphasis on the solemnity of a deed and concepts such as estoppel by deed, which were more relevant to issues which now do not need to be decided, counsel for the second to fifth defendants stated that he had not been able to locate a case expressly dealing with the power to imply terms into a deed, as opposed to an agreement. In the short time counsel had to consider this, he found and referred the Court to a decision of Attiwill J in Chen v Blockchain Global Ltd.[12] In that case, the Court followed the principles in BP Refinery, and subsequent cases, to determine whether to imply a term into the deed, without making any comment about it being a deed rather than an agreement. Counsel submitted that there was no reason for treating them differently when dealing with the implication of terms, and that absent any authority to the contrary, that is the approach which I should take.

1. The plaintiffs submit that it is not reasonable and equitable to imply the Alleged Implied Term into the Deed as it would reduce the amount owing to SK Developments on account of a payment not to it, but to Bharathan. They also submit that the Alleged Implied Term has not been raised factually at all. Counsel for the plaintiffs submits that it is not reasonable and equitable to incorporate the Alleged Implied Term when that was an arrangement between Sutharsan and Bharathan.
2. The plaintiffs submit that the Alleged Implied Term is not necessary to give business efficacy to the Deed based on the evidence before the Court. They say that the Deed operates effectively as it is - it clearly deals with everything, the parties had signed it, they were in possession of it, and at that stage they did not contemplate the payment of rent.
3. They also submit that the Alleged Implied Term is not so obvious that it goes without saying. They say no reasonable bystander, looking at the Deed, would say that there should have been a term in this Deed to say that if you pay rent, the rent should be deducted.
4. The plaintiffs contend that the second to fifth defendants had not articulated the Alleged Implied Term in writing or in opening or closing submissions, and that therefore the Alleged Implied Term is not capable of clear expression.
5. The plaintiffs submit that the Alleged Implied Term must not contradict any express term in the Deed. They contend that it does so contradict the express terms in the Deed as the parties agreed on the sum contained in the Deed (ie the Outstanding Amount) and they agreed, unconditionally and irrevocably, that judgment could be entered for that amount if the Lots were not transferred by 31 December 2022.

1. I agree that it is not uncommon for default provisions in settlement agreements to contain a term that provides for any payments made in reduction of the agreed settlement sum before judgment being entered due to a default under the agreement to be taken into account when arriving at the judgment sum. I also accept that where a settlement agreement does not contain such a term, it may be appropriate for such a term to be implied. The primary purpose of such a term would be to prevent double dipping, or put another way, to ensure that the amount ultimately paid (whether by payments under the agreement or the order upon default) is the amount agreed between the parties, if that is what the parties intended. But whether or not a term will be implied to that effect will differ from case to case and will depend heavily on the express terms of the relevant settlement agreement and the surrounding circumstances, as well as the term which is sought to be implied.
2. I see no reason to distinguish between a deed or agreement when determining whether a term should be implied into a deed. There are numerous cases where courts have used general principles regarding the implication of terms into contracts, including by applying the BP Refinery test, into deeds in the same way as they have for agreements.[13] Accordingly, that is the approach I will follow.
3. When determining whether to imply a term into the Deed, the starting point is the express terms of the Deed. In this instance, the Deed provided for settlement of the obligation of Vansan, Sutharsan and Kogulavani to pay the Outstanding Amount to SK Developments by them selling and transferring (or procuring the transfer) of Lots 23 and 24 to SK Developments by 31 December 2022. If the transfer of the Lots did not occur by that date, then the defendants 'unconditionally and irrevocably consent' to SK Developments entering judgment against them, jointly and severally, for the Outstanding Amount and payment thereof.
4. Thus, the primary obligation under the Deed was for the relevant defendant to transfer Lots 23 and 24 to SK Developments, or its nominee, by 31 December 2022. Transferring the Lots to SK Developments, or its nominee, thereby had the effect of discharging Vansan, Sutharsan and Kogulavani from payment of the Outstanding Amount to SK Developments. It did not discharge a debt, if any, to the nominee. The Deed itself did not provide for payment of the Outstanding Amount as an alternative: rather, it provided for judgment to be entered in SK Developments' favour for that amount, by SK Developments entering such judgment.[14]
5. The Outstanding Amount was due and payable to SK Developments, not Bharathan. It was SK Developments (or its nominee) to whom Lots 23 and 24 were to be transferred. It was SK Developments who was entitled to enter judgment, not Bharathan, for the Outstanding Amount if the Transfer did not occur by 31 December 2022.
6. The Alleged Implied Term goes well beyond what would be necessary to prevent SK Developments from double dipping. The effect of the Alleged Implied Term is that payments to SK Developments or Bharathan would reduce the amount for which they could enter judgment.
7. While it may be reasonable and equitable for me to imply a term to prevent SK Developments from double dipping, it is not reasonable and equitable to imply a term that has the effect of reducing the amount owing to one party (SK Developments) on account of a payment to another party (Bharathan, noting that he had no direct or indirect interest in SK Developments).
8. Further, it is implicit within the Alleged Implied Term that the payments to be deducted from the Outstanding Amount would be those made in reduction of the Outstanding Amount (so much is apparent from the phrase 'if the Outstanding Amount was reduced' at the start of the Alleged Implied Term). This aspect is virtually ignored by the second to fifth defendants when contending that the Rent Amount falls within the operation of the Alleged Implied Term. On the one hand, they contend that there was no obligation in the Deed to pay rent, but then say that once paid, it must be treated as reducing the Outstanding Amount. That does not follow. The second to fifth defendants' notion that the Outstanding Amount should be reduced by the Rent Amount as it concerns the same subject matter must also be rejected. There is nothing in the Deed about entitlement to or payment of rent for Lots 23 and 24 if they were leased to another person prior to the Transfer being effected. There is no evidence that the parties' intention, objectively ascertained, was that payment of such rent would serve to reduce the Outstanding Amount or impact upon the Transfer of Lots 23 and 24 in terms of the Purchase Price for each.
9. For all of these reasons, it is not reasonable or equitable to imply the Alleged Implied Term into the Deed.
10. I turn now to the second of the BP Refinery factors, whether the Alleged Implied Term is necessary to give business efficacy to the Deed.
11. I do not accept the plaintiffs' submission that the Deed just simply 'operates', or has business efficacy without any implied term concerning reduction of the Outstanding Amount by payments made before judgment is entered. The practical effect of ignoring any payment in consideration of the Outstanding Amount means that the imposition of an implied term may be important in giving business efficacy to a defective contract and vindicating the obvious intention of the parties.[15] A failure to imply such a term would only create further disputation between the parties and undermine any efficacious business between the parties.
12. However, that is not this case, as the Alleged Implied Term goes further than what would be necessary for the Deed to have business efficacy. It is not necessary to imply the Alleged Implied Term into the Deed so as to give the Deed business efficacy. That is because the Alleged Implied Term is far broader than what I consider would be necessary to give the Deed business efficacy, for the same reasons I have just set out.
13. The Victorian Court of Appeal in Grocon summarised the key considerations in determining whether an implied term is so obvious that it 'goes without saying' with respect to the third of the BP Refinery factors:

The condition that an implied term 'must be so obvious that "it goes without saying"' requires consideration of whether, at the time that the parties were making their bargain, the suggestion of insertion of the implied term into the agreement by an "officious bystander" would have been met "with a common, "Oh, of course"" from the parties.[16]

1. In this case, the implication of the Alleged Implied Term is not so obvious that it goes without saying. It is not obvious that all parties would have said 'of course' if asked whether a payment owing to one party could be reduced by a payment made to another party.
2. Insofar as the fourth of the BP Refinery factors is concerned, I accept that the Alleged Implied Term is clearly articulated and capable of clear expression. Accordingly, this factor weighs in favour of the Alleged Implied Term.
3. In respect of that factor, I reject the plaintiffs' assertion that the second to fifth defendants failed to articulate the Alleged Implied Term in writing. The Alleged Implied Term was clearly expressed in paragraph 10 of the second to fifth defendants' written opening submissions. So much was pointed out to the plaintiffs' counsel by counsel for the second to fifth defendants, where he confirmed that that was the term they wished to have implied by the Court.
4. In respect of the fifth BP Refinery factor, the Alleged Implied Term does contradict express terms in the Deed. It is SK Developments that is entitled, upon failure by the defendants to Transfer the Lots by 31 December 2022, to enter judgment for it to be paid the Outstanding Amount. The Alleged Implied Term would have payments which were not paid to SK Developments operate to reduce the Outstanding Amount.
5. Thus, of the five factors set out in BP Refinery, and applied in numerous cases since, only one factor weighs in favour of implying the Alleged Implied Term into the Deed, that factor being that it is capable of clear expression, whereas the other four factors weigh against it. This is not a numerical exercise: it is a matter of assessing the Alleged Implied Term, taking all of those matters into account.
6. For all of the reasons set out above, I reject the second to fifth defendants' claim that the Outstanding Amount should be reduced by the Rent Amount when entering judgment in favour of SK Developments by reason of implying the Alleged Implied Term into the Deed.
7. While it may be appropriate to imply a term into the Deed to prevent double dipping by SK Developments, the Alleged Implied Term goes well beyond that. In this case, I was asked to find in favour of the Alleged Implied Term. I have rejected that. It is not appropriate for me to devise other implied terms for which there may be some justification. Even if I did, that would not assist the second to fifth defendants here, since the Rent Amount would not fall within the operation of such other implied term as it was not paid to SK Developments. Further, the contention of the second to fifth defendants, poorly developed, that the Outstanding Amount should be reduced by the Rent Amount because it concerns the same subject matter is rejected (as I have set out above) and is therefore also a barrier to the Rent Amount reducing the Outstanding Amount.
8. For the sake of completeness, there are some other arguments raised by the parties which can be briefly dealt with.
9. To the extent that the plaintiffs assert that they are prejudiced by the Alleged Implied Term not being raised by the second to fifth defendants until the morning of the trial - which is not explicitly made clear in their submissions - I reject that assertion. In my view, it is not inequitable for the second to fifth defendants to raise a legal argument which is already premised on the evidence before the Court. No new evidence was adduced by the second to fifth defendants, and the plaintiffs were provided with an opportunity to read the second to fifth defendants' written opening submissions and respond accordingly by way of opening and closing oral submissions.
10. The plaintiffs dispute the correctness of the Rent Amount. They contend that it was less, and that the only evidence for the amount was an assertion in the First Sutharsan Affidavit. The second to fifth defendants countered this by reference to the documents which Sutharsan had exhibited, noting that Kanagaiyan conceded that some rent had been paid without conceding the amount. It is not necessary for me to resolve that question. The plaintiffs point to Bharathan having paid utilities and rates for the two Lots, based on Kanagaiyan's evidence and accepted by Sutharsan in cross‑examination, and say that if the Rent Amount is to be factored into the judgment amount, then so should the payments for utilities and rates. Counsel for the second to fifth defendants accepted as a factual matter that rates and utilities may have been paid by Bharathan but disputed the legal basis for taking those payments into account. The second to fifth defendants contend that the utilities and rates payments do not fit within the scope of the Alleged Implied Term and so should not affect the calculation of the judgment amount. Such a position is untenable in my view. If, contrary to my findings, the Rent Amount should be applied to reduce the Outstanding Amount, then the rates and utilities paid by Bharathan should also be factored into that calculation.
11. The plaintiffs contend that they had not had sufficient notice or an adequate opportunity to respond to the second to fifth defendants' claim that the Outstanding Amount should be reduced by the Rent Amount. In response, the second to fifth defendants referred to Kanagaiyan's evidence that some rent was received by Bharathan for 22 and 24 Jaffna Place. They submit that Kanagaiyan did not challenge the amounts comprising the Rent Amount, but instead referred to rates and utilities paid by Bharathan and exhibited the relevant invoices. The second to fifth defendants contend that the plaintiffs had an adequate opportunity to respond to the Rent Amount reduction claim, and so the amount of the payments that were made must be accepted. Given my conclusions, it is unnecessary for me to resolve this.
12. I accept the second to fifth defendants' submission that for the purposes of Issue 2, it does not matter which of them paid the Rent Amount, as liability to pay the Outstanding Amount if judgment was entered in default was expressed to be joint and several.

H Issue 3: alternatively to Issue 2, should the Outstanding Amount be reduced by the Rent Amount on the basis of set-off?

1. As I have found that the Outstanding Amount should not be reduced by the Rent Amount on the basis of the Alleged Implied Term, it is necessary to turn to Issue 3.
2. By their opening submissions, the second to fifth defendants' alternative position to that considered in Issue 2 was that if the Alleged Implied Term was not accepted by me, then the Outstanding Amount should be reduced by the Rent Amount on the basis of set-off.
3. However, during closing address, counsel for the second to fifth defendants stated that they no longer relied on this alternative position and relied solely on the Alleged Implied Term as the basis for reducing the Outstanding Amount by the Rent Amount. Having abandoned set-off in this way, it is no longer necessary for me to consider Issue 3.
4. By way of completeness, I note that although by the Summons, the second to fifth defendants sought payment of the Rent Amount by Bharathan to them, this was not how they pursued it at trial. In any event, during closing submissions, counsel for the second to fifth defendants made it clear that the alternative relief in the Summons was no longer sought.

I Issue 4: should the Outstanding Amount be reduced by the Stamp Duty Amount on the basis of set-off?

1. In respect of the Stamp Duty Amount, by the Summons and their opening submissions, the second to fifth defendants sought the following as alternatives:

(a) that the Outstanding Amount be reduced by the Stamp Duty Amount, on the basis of set-off; or

(b) that Bharathan be ordered to pay the Stamp Duty Amount to Fortunate Star.

1. At the time of closing address by counsel for the second to fifth defendants, counsel stated that they were no longer seeking to set off the Outstanding Amount by the Stamp Duty Amount, and so that was abandoned. Instead, they relied solely on the counterclaim against Bharathan for him to pay the Stamp Duty Amount to Fortunate Star.
2. Consequently, I no longer need to determine whether the Outstanding Amount should be reduced by the Stamp Duty Amount, as it is no longer sought by the second to fifth defendants.

J Issue 5: alternatively to Issue 4, should Bharathan be ordered to pay the Stamp Duty Amount to Fortunate Star?

1. In the First Sutharsan Affidavit, Sutharsan deposes that in May 2017, he and Kogulavani purchased a purchased a parcel of land at 580 Springvale Road, Springvale South, with a view to constructing 15 units, and registered the third defendant, Fortunate Star, to complete the project.[17]
2. He deposes that Kanagaiyan approached him about investing in the development. A bank account in the name of Fortunate Star was established and between July and November 2017, Bharathan deposited a total of $1 million into the account. Sutharsan deposes that he and Kanagaiyan agreed that a 15% interest rate would be payable upon completion of the project.
3. Sutharsan deposes that Kanagaiyan said that Bharathan wanted security for the investments. The parcel was subject to mortgages following purchase, so Kanagaiyan demanded that half the shares in Fortunate Star be transferred to Bharathan on trust. A heads of agreement document was drawn up to reflect the arrangements and signed by the director of Fortunate Star and Bharathan (HoA).
4. The HoA is exhibited to the First Sutharsan Affidavit. It is dated 1 November 2017 and signed by Kogulavani and Bharathan. Its operative terms are reproduced below:

1. The HoA refers to a declaration of trust. This declaration is also exhibited. It is dated 24 November 2017 and is signed by Bharathan, and it states that Kogulavani is the beneficial owner of the shares in Fortunate Star and that Bharathan holds these shares on trust for her (Declaration of Trust).
2. Sutharsan deposes that in November 2019, Kanagaiyan demanded that the shares security be abandoned, that Bharathan would transfer his shares back to Kogulavani and that he would draw up a loan agreement instead. He states that Kanagaiyan announced that Bharathan wanted to get out of any responsibility for any liabilities that Fortunate Star might incur. The share transfer was effected on 25 November 2019. Sutharsan deposes that as part of this arrangement, Bharathran signed an agreement to pay 50% of any liability costs that Fortunate Star might incur (Alleged Liability Agreement). He exhibits a copy of this Alleged Liability Agreement, which is dated 12 November 2019 and is reproduced below:

1. Sutharsan deposes that as Fortunate Star is a land rich corporation, stamp duty has been assessed against it for the two transfers of shares required by Kanagaiyan. He exhibits a copy of a notice of assessment from the State Revenue Office of Victoria dated 17 April 2023 issued to Fortunate Star (Stamp Duty Assessment). It lists Fortunate Star as the liable party and sets out the assessment as being $171,663.32, with payment due by 18 May 2023, as follows:

Acquisition of a 50% interest by Bhararathan on 24 November 2017

Acquisition of a 50% interest by Kogulavani on 25 November 2019

1. Sutharsan then deposes that Fortunate Star demands that the stamp duty and penalty of $171,663.32 be paid by Bharathan.
2. In cross-examination, Sutharsan conceded that Bharathan had never been the beneficial owner of the shares in Fortunate Star.

1. The only evidence given on behalf of the plaintiffs about events concerning the Stamp Duty Amount is in the First Kanagaiyan Affidavit, where he responds to the First Sutharsan Affidavit.
2. In the First Kanagaiyan Affidavit, Kanagaiyan refers to Bharathan's investment in the project at 580 Springvale Road, Springvale, and deposes that the HoA was entered into. He also refers to Bharathan ceasing to be a director of Fortunate Star in 2019 and to the arrangements being restructured into a loan agreement.
3. Kanagaiyan was not cross-examined about matters relating to the Stamp Duty Amount.

J.2 The second to fifth defendants' submissions

1. The second to fifth defendants rely on the Alleged Liability Agreement to contend that Bharathan is liable to Fortunate Star in respect of the Stamp Duty Assessment. They concede that, contrary to the Sutharsan July Affidavit, where he says that Fortunate Star demands payment of $171,663.32 for the Stamp Duty Assessment, 50% of that amount, being the Stamp Duty Amount, is what Bharathan should be held liable for. They now seek, by way of a counterclaim against Bharathan, payment of the Stamp Duty Amount to Fortunate Star.
2. Noting the plaintiffs' objection to their reliance on Sutharsan's affidavit and oral evidence concerning the Alleged Liability Agreement, which was that the parol evidence rule prevented them from relying on extraneous evidence other than the document itself, counsel for the second to fifth defendants relied on an exception to the parol evidence rule. They contend that the parol evidence is admissible for the purpose of identifying the parties to a contract. Further, parol evidence is only intended to be excluded where the document captures the complete and comprehensive agreement. They say that for a document such as this, which does not have the name of the entity that Bharathan is agreeing to pay the liabilities for, Sutharsan's evidence is admissible for confirming the identity of that company.
3. The second to fifth defendants submit that there is no evidence contradicting the Alleged Liability Agreement and Sutharsan's evidence about it. They say that the Court should treat Sutharsan's evidence about it as uncontested.
4. The second to fifth defendants submit that the failure to insert an end date for Bharathan's liability means that his liability is ongoing and is not limited. They submit that although the Stamp Duty Assessment was issued in April 2023, the liability arose earlier and falls within the scope of what Bharathan had agreed to pay, being 50% of the liability.
5. The second to fifth defendants submit that the capacity in which Bharathan may or may not have held the shares, that is, whether he held them as trustee or whether he had beneficial ownership, is irrelevant because the Alleged Liability Agreement clearly evidences that Bharathan agreed to pay 50% of the liabilities of the company without any qualification. They say that it cannot be read into that agreement that there is any issue in relation to the capacity in which he held the shares. They contend that there is no evidence to the contrary, despite the plaintiffs having had the opportunity to put on any responsive evidence.

1. The plaintiffs object to the second to fifth defendants pursuing a counterclaim against Bharathan for the Stamp Duty Amount, which is the relief set out in the Summons and which was pressed at trial.
2. The plaintiffs say that until the first day of the hearing, no claim had been put against Bharathan, the second plaintiff. Rather, the evidence filed by the second to fifth defendants was directed to opposing the relief sought by the plaintiffs in respect of the plaintiffs' rectification claim[18] and by opposing the judgment sought to be entered by SK Developments. They say that no positive case against Bharathan was put in the affidavits relied on by the second to fifth defendants.
3. The plaintiffs submit that it would be unjust for Bharathan to be faced with a judgment for any amount payable by him when he has not had an adequate opportunity to deal with it.
4. The plaintiffs submit that there is no evidence that State Revenue Office has been paid any amount in the Stamp Duty Assessment, or any evidence of requests by Fortunate Star to seek it from Bharathan. They contend that unless the Stamp Duty Assessment has been paid, Bharathan has no liability to Fortunate Star for it, if he has any liability at all. Counsel for the plaintiffs asserted that the Stamp Duty Assessment was addressed to Kogulavani as director of Fortunate Star, not Bharathan. They say that therefore, Bharathan was not obliged to pay the Stamp Duty Amount, including as there has been no demand on him for payment by Kogulavani.
5. According to the plaintiffs, the second to fifth defendants' claim for the Stamp Duty Amount is an opportunistic attempt to extract $85,000 from Bharathan in circumstances where the claim is belatedly raised without any factual basis amidst changing positions from the second to fifth defendants. In short, the Court should not accede to the claim factually, and that legally, there is no obligation to pay it.
6. The plaintiffs submit that the Alleged Liability Agreement does not properly found the second to fifth defendants' claim against Bharathan for the Stamp Duty Amount. They say that the document's date of 12 November 2019 renders the agreement statute barred. It is vague, incomplete and does not make sense on its face. They say that the agreement does not refer to which company the agreement is subject to, there is no relevant period stated and there is uncertainty as to whom the agreement is addressed and in respect of what liability. They contend that Sutharsan's affidavit and oral evidence, which they characterise as being evidence to bolster the Alleged Liability Agreement, is inadmissible due to the operation of the parol evidence rule.

1. Sutharsan's affidavit and oral evidence as to the Alleged Liability Agreement may well be inadmissible due to the parol evidence rule, as the plaintiffs contend. However, I have decided to admit his evidence on the question, for what it is worth, mainly because the question of whether it was an agreement at all, as opposed to some sort of unilateral statement, was not really canvassed at trial. Further, the applicability of the parol evidence rule to the latter was not dealt with at all. In treating his evidence as admissible, it should not be assumed that I have accepted it. Rather, I have just allowed it to be adduced and will take it into account in my consideration of the second to fifth defendants' counterclaim against Bharathan.
2. It is useful at this point to note how the Summons came into being. During the course of his opening submissions, counsel for the second to fifth defendants observed that the proceeding had been commenced by way of originating motion and that there had been no order for pleadings. Insofar as they now made claims to reduce the Outstanding Amount, had there been pleadings, these would have been put either as a set-off or as a counterclaim in the alternative. Counsel submitted that the Court must be able to take that into account in the judgment, otherwise the purposes of the Civil Procedure Act 2010 (Vic) are not being achieved, as it would leave an issue unresolved despite, on the affidavit evidence, it being litigated. The second to fifth defendants did not want a technical argument that the claim was against Bharathan rather than SK Developments to prevent that issue being resolved. I then queried how the amount claimed by the first plaintiff in this proceeding could be set off or counterclaimed against the second plaintiff, when the only claim made by the second plaintiff was for rectification of the Deed and for costs.
3. It seems to me that in circumstances where there are no pleadings, but there were orders for affidavits and written submissions, as well as an admonishment at the hearing when I made those orders that the written materials would need to make any claims very clear, that it is vital as a matter of fairness that the parties clearly articulate their positions.
4. The second to fifth defendants failed to comply with my orders for their written submissions to be filed by 5 November 2025. Instead, they were provided less than an hour prior to commencement of the trial. Those written submissions identified the following claims:

(a) the Second to Fifth Defendants' Rectification Claim;

(b) the second to fifth defendants' claim that the Outstanding Amount should be reduced by the Rent Amount on the basis of the Alleged Implied Term; and

(c) the second to fifth defendants' claim that the Outstanding Amount should be reduced by the Stamp Duty Amount on the basis of set-off.

1. It was not until after the lunch adjournment on the first day, and after the plaintiffs' opening address, that the Court was presented with the Summons and it was clear that, in addition to the above, the second to fifth defendants claimed a reduction in the Outstanding Amount by the Rent Amount on the basis of set-off and that they claimed the Stamp Duty Amount and the Rent Amount from Bharathan as a counterclaim. I allowed the second to fifth defendants to file the Summons, but indicated that the question of whether Bharathan had been given sufficient notice of a claim being made against him personally would be part of my consideration of this case, and that such concerns may be a basis for me refusing the relief sought against him. I will turn first to this concern.
2. It was clear from the Sutharsan affidavits that the second to fifth defendants challenged the Outstanding Amount on the basis of many matters deposed to by Sutharsan, a number of which were not pursued at trial. However, a fair reading of the Sutharsan affidavits is that they were directed to why the second to fifth defendants contended that judgment should not be entered for the Outstanding Amount but for a lesser amount. They did not contain a clear articulation of the claims made by the second to fifth defendants: rather, it was an amalgam of alleged facts. For example, while he mentions the Alleged Liability Agreement and exhibits it, he does not refer to this in the context of the Stamp Duty Assessment or state that it is the basis for the demand that Bharathan pay it. Indeed, he says that Fortunate Star demands payment of the full amount in the Stamp Duty Assessment, not half of it, such that this 'demand' is not even consistent with the Alleged Liability Agreement. I do not consider that this was sufficient to put Bharathan on notice that the second to fifth defendants were claiming, in this proceeding, that he pay Fortunate Star the Stamp Duty Amount. Prior to trial, it was left to the plaintiffs and to the Court to try and discern what the basis of the second to fifth defendants' opposition was. There is nothing in Sutharsan's affidavits that even hints at a claim that Bharathan repay the Rent Amount.
3. It was also clear from Kanagaiyan's affidavits after being provided with the Sutharsan affidavits that Kanagaiyan focused on payments alleged to have been made to or to be owing by SK Developments. Insofar as Kanagaiyan addressed the Rent Amount or the Stamp Duty Amount, that was to establish that these were either payments said to be made to Bharathan or liabilities said to be owing by Bharathan. He was clearly seeking to distinguish them from amounts paid to or owing by SK Developments.
4. I reject the second to fifth defendants' contention that Bharathan had had ample opportunity to put on evidence refuting the claims made against him personally. He did not know, and could not have known from the affidavits filed by the second to fifth defendants, that claims were made against him. It is one thing for the plaintiffs to adduce evidence, as they did, that the Rent Amount and Stamp Duty Amount were not referable to SK Developments by explaining them, including Bharathan's involvement. Such a response is explicable and orthodox given the content of Sutharsan's affidavits. It is quite another thing, however, for the plaintiffs to know that they needed to go further than that and refute any liability of Bharathan, given that it was not apparent from Sutharsan's affidavits that a counterclaim against Bharathan personally was being, or going to be, agitated. It was not at all apparent that the second to fifth defendants were seeking orders that Bharathan pay the Stamp Duty Amount to Fortunate Star or repay the Rent Amount.
5. Accordingly, Sutharsan's affidavits did not provide Bharathan with ample opportunity to put on evidence in respect of a claim against him personally.
6. In addition, in circumstances where no claim against Bharathan personally had been articulated prior to trial, and was not even articulated until after counsel for the second to fifth defendants made his oral opening submissions at trial, returning after the lunch adjournment with the Summons (where it was articulated for the first time),[19] I consider it to be manifestly unfair for an order to be made against Bharathan that he pay the Stamp Duty Amount to Fortunate Star.[20]
7. In my view, that is a sufficient basis for me to reject the second to fifth defendants' counterclaim against Bharathan and to find that there should be no order made that Bharathan pay the Stamp Duty Amount to Fortunate Star.
8. Even if that was not the case, I would still refuse to make such an order as I do not consider that the second to fifth defendants have made out their counterclaim. As the parties pursuing that claim, they bear the onus of establishing it, and I am not satisfied on the balance of probabilities that they have done so. In particular, they have not established that Bharathan is liable for 50% of the Stamp Duty Assessment. My reasons for that finding are set out below.
9. On its face, I consider the Alleged Liability Agreement to be void for uncertainty. The meaning of 'liability costs' is not clear, the company in respect of which Bharathan accepts 50% liability for is not named, and the period during which such liability is accepted is left blank. It is clearly incomplete, and I reject the second to fifth defendants' submission that because the space for an end date is left blank, it is unlimited in duration. Further, the second to fifth defendants describe the Alleged Liability Agreement as just that, an agreement, but I am not satisfied that it is. There is no counterparty identified and the document is not signed by that counterparty. Rather, at best, it is a written statement that Bharathan accepts 50% 'liability costs' in respect of an unnamed company for a limited period of time which is not specified, which he has signed.
10. I do not consider that Sutharsan's evidence is sufficient to overcome this, for two reasons.
11. First, I disagree with the second to fifth defendants' submission that Sutharsan's evidence on the issue should be treated as being uncontested. This is because Bharathan did not have a sufficient opportunity to adduce contrary evidence, for the reasons I have set out above.
12. Accordingly, there is just Sutharsan's assertion that the Alleged Liability Agreement was made in respect of Fortunate Star's liabilities, an assertion which Bharathan did not have the opportunity to challenge.
13. Second, I am unwilling to accept Sutharsan's assertion in this regard, as it is illogical. His own evidence on the point is that Kanagaiyan 'announced that Bharathan wanted to get out of any responsibility for any liabilities that [Fortunate Star] might incur and signed an agreement to pay 50% of any liability costs that [Fortunate Star] might incur.' The latter part of this appears entirely at odds with the earlier part. Further, and perhaps more importantly, it does not make sense that Bharathan would accept liability for 50% of Fortunate Star's 'costs liability' when he only ever held shares in Fortunate Star on trust for Kogulavani such that he was never the beneficial owner of those shares. It is tolerably clear from the HoA and the Declaration of Trust that the shares being transferred to Bharathan, and his holding of them on trust for Kogulavani, was so that he had a form of security for the investment he had made in the project at 580 Springvale Road. The arrangement was always more akin to a loan with some form of security, and was not an equity stake in Fortunate Star.
14. For the sake of completeness, I do not regard the fact that there is no evidence of Fortunate Star having paid the Stamp Duty Assessment as a barrier to Bharathan being found liable for the Stamp Duty Amount, were the Court to have otherwise found him to be liable. Whether it has been paid by Fortunate Star may affect whether it is a current liability or something that is due and payable to Fortunate Star, but I do not think that the question is a barrier to finding Bharathan liable. However, this issue is irrelevant given my findings.
15. Accordingly, the claim by the second to fifth defendants that Bharathan should be ordered to pay the Stamp Duty Amount to Fortunate Star is dismissed.

K Issue 6: on what basis should interest be ordered?

1. SK Developments seeks interest on $1,581,000 (ie the Outstanding Amount) at the statutory rate of 10% from 1 January 2023 to the date of payment. SK Developments relies on s 58(1) of the Supreme Court Act 1986 (Vic) (SC Act).
2. Section 58 of the SC Act provides that:[21]

58 Interest to be allowed when debts or sums certain recovered

(1) If in a proceeding a debt or sum certain is recovered, the Court must on application, unless good cause is shown to the contrary, allow interest to the creditor on the debt or sum at a rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 or, in respect of any bill of exchange or promissory note, at 2% per annum more than that rate from the time when the debt or sum was payable (if payable by virtue of some written instrument and at a date or time certain) or, if payable otherwise, then from the time when demand of payment was made.

(2) Subsection (1) does not authorise the computation of interest on any bill of exchange or promissory note at a higher rate than the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 if there has been no defence pleaded.

(3) A debt or sum payable or a date or time is to be taken to be certain if it has become certain.

1. The second to fifth defendants oppose this, contending that interest should be awarded at the statutory rate from the commencement of the proceeding, on the amount in respect of which the Court grants judgment.
2. Thus, the only issue between the parties as to interest is whether it should be calculated from 1 January 2023 or from 31 March 2025.

1. The plaintiffs say that penalty interest is payable from 1 January 2023 until the date of judgment because the transfer of the properties had to occur by the end of December 2022. This did not occur and therefore the default clause became operative and payment to SK Developments was then required.
2. The plaintiffs submit that a sum certain within the meaning of s 58(1) of the SC Act is involved, as the Deed specifically states the outstanding amount of $1.581 million. They say that if no Transfer of the Lots occurred by 31 December 2022, then the Outstanding Amount was due and payable to SK Developments, which was consented to unconditionally and irrevocably by the defendants. Therefore, that is a sum certain and interest is to run from 1 January 2023 and not from the date upon which the proceeding was commenced.
3. Counsel for the plaintiffs relied heavily on the decision of McMillian J in Seoud v Fortythird Garland Pty Ltd,[22] where a plaintiff sought an order for interest pursuant to s 58(1) of the SC Act. While the plaintiffs acknowledge that Seoud concerned the determination of penalty interest in the context of a trustee and beneficiaries, they argued that her Honour's summation of the principles relating to s 58(1) were equally applicable here.
4. Counsel pointed to paragraph 35, in which McMillan J stated that the purpose of s 58(1) was as follows:[23]

Section 58 of the Act provides the Court with the statutory power, in certain circumstances, to make an award of interest in favour of a party that has successfully recovered 'a debt or sum certain' in a proceeding. This provision, along with other provisions of the Act, has the purpose of compensating a party for having to commence and undertake litigation to recover an amount of money which, in the absence of that litigation, could have otherwise been used by the party. In doing so, the provision also encourages the early resolution of litigation.

1. Counsel then referred me to her Honour's delineation of the applicable principles, in which the Court held that 'Consistent with the judgment of Batt JA in Dimos, the term 'creditor' in s 58(1) of the Act is not 'simply a shorthand method for denoting a successful plaintiff or someone who recovers a sum certain'.[24] Furthermore, the plaintiffs relied on the Court's analysis of s 58(1) in Seoud to illustrate their entitlement to recover interest from 1 January 2023 by way of SK Development's obligation to pay, and the plaintiffs' subsequent entitlement to recover interest pursuant to s 58(1):[25]

Where the trustee acknowledges to a beneficiary that the trustee holds an amount of money to which that beneficiary is immediately and unconditionally entitled to payment, the trustee will become a debtor to the beneficiary in respect of that amount. The amount to which the beneficiary is entitled may be recovered by the beneficiary at common law as money had and received.

...

Where a trustee admits or otherwise acknowledges to a beneficiary that the trustee has an immediate and unconditional obligation to pay a specified amount of money to the beneficiary, and the beneficiary would thereby be entitled at law to recover that amount as money had and received, and the beneficiary then recovers a sum certain from the trustee in a proceeding, the beneficiary is a 'creditor' for the purposes of s 58 of the Act. If the remaining criteria in the statutory provision are satisfied, the beneficiary will be entitled to an award of interest to the extent permitted by the provision.

1. The plaintiffs submit that the principles regarding s 58(1) set out in Seoud are applicable here in that the defendants have unconditionally and irrevocably agreed that the Outstanding Amount is due and payable. If there was no transfer by 31 December 2022, then the 'trustee will become a debtor to the beneficiary in respect of that amount.' They say that the defendants became a debtor to SK Developments in which 'the amount to which the beneficiary is entitled may be recovered by the beneficiary at common law as money had and received.'
2. The plaintiffs submit that the second to fifth defendants have not shown good cause to the contrary. They say that delay does not constitute good cause to the contrary and that the second to fifth defendants have not adduced any evidence that they were somehow prejudiced by that delay. They submit that the mere fact the proceeding was only commenced in March 2025 is not good cause to the contrary.

K.2 The second to fifth defendants' submissions

1. The second to fifth defendants contend that there is no interest payable pursuant to the Deed and so therefore the Deed itself does not entitle the plaintiffs to interest. Their primary position was that s 58(1) of the SC Act does not apply.
2. The second to fifth defendants submit that this situation falls outside the scope of s 58(1) because the Deed itself did not require payment by a particular time - rather, it required the Transfer of the Lots. The payment is therefore not a debt within the meaning of s 58(1).
3. The second to fifth defendants also submit that the plaintiffs were entitled to enter judgment when the Transfer did not occur on 31 December 2022. They argue that the fact that the plaintiffs did not then do so does not mean that they are entitled to penalty interest arising from that point in time. That is not an interest claim within the scope of s 58(1) of the SC Act. In essence, the plaintiffs' interest would be limited to the time from which the proceeding was commenced - that being 31 March 2025.

1. In my view, the situation here does not fall within the scope of s 58(1) of the SC Act.
2. Even if SK Developments' claim here fell within the scope of s 58(1), I am satisfied that there is good cause to the contrary for interest not to be ordered pursuant to that section. Rather, I consider this situation to be an orthodox application of s 60(1) of the SC Act, such that the second to fifth defendants should be ordered to pay interest on the Outstanding Amount from the commencement of the proceeding. My reasons for this view follow.
3. I accept the plaintiffs' contention that the Outstanding Amount of $1.581 million in the Deed is a sum certain. I have not been taken to any evidence to the contrary by the defendants to sway me on this point. Although not expressed as such, it seems to me that the second to fifth defendants' position was that the Deed did not create a debt in the sum of the Outstanding Amount, or at least a debt that is due and payable. That might be so, but it does not mean that the Outstanding Amount is not a sum certain. However that is not sufficient on its own to bring this within the scope of s 58(1) of the SC Act.
4. I agree with the second to fifth defendants' submission that the Deed did not require payment of the Outstanding Amount by a specified date. The Deed also did not provide for interest on the Outstanding Amount. Thus, there was no contractual entitlement to interest under the Deed. The fact that interest did accrue under the earlier Loan Agreement does not assist SK Developments here, as any rights under the Loan Agreement have merged into the Deed. This tells against calculating interest from 1 January 2023.
5. There being no time for payment stipulated in the Deed, there is no date from which the sum certain was payable. Accordingly, awarding interest at the statutory rate from the time when the sum certain was payable, as s 58(1) provides, does not apply. Where there is no contractual time from when the sum certain was payable, then s 58(1) provides an alternative, which is that interest accrues from the time when a demand for payment of the sum certain was made. However, that also does not apply here to make interest payable from 1 January 2023. There is no evidence of any demand by SK Developments for payment of the Outstanding Amount. At best, therefore, it may be said that service of the originating motion may constitute a demand.
6. Accordingly, s 58(1) of the SC Act does not apply. Even if it did, I am satisfied that the second to fifth defendants have established good cause to the contrary of awarding interest at the statutory rate from 1 January 2023.
7. There is a strong body of case law that clarifies how 'good cause to the contrary' is established. It is for the defendant to show good cause.[26] The Court of Appeal in Clarke v Foodland Stores Pty Ltd held that:[27]

..."good cause to the contrary" means no more or less than good reason, according to the justice of the case, for not allowing interest at all or, if interest is to be allowed, then for not allowing interest for the whole of the period marked out by the section.

1. Delay on the part of the plaintiff in carrying on with the proceeding is ground for the court awarding interest at a lower rate,[28] or for a shorter period than the statutory period.[29]
2. I accept the second to fifth defendants' submissions that SK Developments' unexplained delay in commencing the proceeding to enter judgment is good cause to the contrary, and I reject the plaintiffs' submissions on this question.
3. There is clear delay on SK Developments' part in pursuing its rights and commencing this proceeding. There is no evidence at all as to why SK Developments did not commence the proceeding shortly after 31 December 2022 or at any time up to 31 March 2025. That is a delay of some 27 months, which I view as considerable.
4. In the same vein, while I accept that s 58(1) has the purpose of compensating a party for having to commence and undertake litigation to recover an amount of money which otherwise could have been used by the party, a party cannot sit on their rights and then accumulate interest in the meantime. In this case, SK Developments has sat on its rights to enter judgment. I do not accept the plaintiffs' submission that the second to fifth defendants have to establish prejudice in order to show good cause to the contrary.
5. For these reasons, interest at the statutory rate will not be ordered to be paid from 1 January 2023 on the basis of s 58(1) of the SC Act.
6. In my view, the applicable provision here is s 60(1) of the SC Act.
7. Section 60(1) relevantly provides:

The Court, on application in any proceeding for the recovery of debt or damages, must, unless good cause is shown to the contrary, give damages in the nature of interest at such rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 as it thinks fit from the commencement of the proceeding to the date of the judgment over and above the debt or damages awarded.

1. In this instance, I see no good reason not to order that the second to fifth defendants pay SK Developments interest at the statutory rate on the Outstanding Amount from 31 March 2025. In any event, no reason to the contrary, good or otherwise, was contended for.

1. For all of the above reasons, orders will be made to the effect that:

(a) the Summons be dismissed;

(b) the Deed be rectified in the manner sought by the plaintiffs;

(c) there be judgment for SK Developments that the second to fifth defendants pay to SK Developments the sum of $1,581,000; and

(d) the second to fifth defendants pay interest on $1,581,000 to SK Developments at the rate set under the Penalty Interest Rates Act 1983 (Vic) from 31 March 2025 to the date the order is made.

1. I will hear from the parties on the question of the form of order and as to costs. To that end, the parties are to confer on those matters and provide my Chambers, by 4pm on 18 February 2026:

(a) an agreed form of order, including the interest calculation referred to in sub‑paragraph (c) above and as to costs; or

(b) if agreement cannot be reached, each party's preferred form of order.

1. If paragraph 197(b) applies, the proceeding will be listed for 20 February 2026 for the making of final orders. Otherwise, unless I form a contrary view once provided with the agreed form of order, orders will be made in Chambers on 20 February 2026.

VANSAN CONSTRUCTION (AUST) PTY LTD (ACN 104 943 732)

FORTUNATE STAR DEVELOPMENT PTY LTD (ACN 618 921 976)

[1] In the originating motion, the fourth defendant is named in this way. In his affidavits, he says that his name is Shanmugalingam Sutharsan. If the originating motion is incorrect, then the plaintiffs should file an amendment correcting the name of the fourth defendant, so that orders, when made, will be correct.

[2] The Land was being developed by Vansan and Dhruva into apartments which would be sold.

[3] [2020] VSCA 201, [70] (Whelan and McLeish J JA and Riordan AJA) (Adaz Nominees).

[4] Adaz Nominees, [70] (citations omitted).

[5] [2024] VSC 89, [107] (VS Property).

[6] [2025] VCC 364 (Eleventh Klingon). Eleventh Klingon was affirmed on appeal to the Court of Appeal: Bell v Eleventh Klingon Pty Ltd [2025] VSCA 183.

[7] Eleventh Klingon, [45]-[49] (citations omitted).

[8] I recently summarized the principles regarding that summary procedure in Re RM Road Services Pty Ltd (in liq) & Ors (No 2) [2025] VSC 382, [39]-[44].

[9] Adaz Nominees, [71], referring to BP Refinery v Hastings [1977] UKPCHCA 1; (1977) 180 CLR 266, 283 (Lord Simon, Viscount Dilhorne and Lord Keith) (BP Refinery) adopted in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596, 605-6 (Mason J).

[12] [2025] VSC 216 (Chen v Blockchain).

[13] By way of example, in addition to Chen v Blockchain as cited by the second to fifth defendants, see Grocon Constructors (Victoria) Pty Ltd v APN DF2 Project 2 Pty Ltd [2015] VSCA 190 (Grocon); Feeney v Southstar Homes Pty Ltd [2024] VSCA 153; Kendells (NSW) Pty Ltd (in liq) v Sweeney [2005] QSC 64; Central Exchange Ltd v Anaconda Nickel Ltd [2002] WASCA 94.

[14] As a matter of practical reality, I would assume that if the defendants had sought to make payment of the Outstanding Amount consequent upon the default, SK Developments would have accepted it rather than reject it and seek to enter judgment. But that did not occur.

[16] Grocon, [143] citing BP Refinery, 283-4, quoting Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206, 227.

[17] This is a different project to the one which was the subject of the Loan Agreement that led to the Deed.

[18] As already noted, it was not until the commencement of the trial that the second to fifth defendants indicated they did not oppose the plaintiffs' rectification claim.

[19] Claims against Bharathan personally were not mentioned in the second to fifth defendants' written opening submissions.

[20] As the second to fifth defendants abandoned the claim that Bharathan be ordered to pay them the Rent Amount, I do not address it. However, I would have reached the same conclusion.

[21] Supreme Court Act 1986 (Vic), s 58(1).

[22] [2019] VSC 192 (Seoud).

[23] Seoud, [35] (citations omitted).

[24] Seoud, [55]; Dimos v Willetts [2000] VSCA 154; (2000) 2 VR 170, 209 [108] (Batt JA).

[25] Seoud, [56]-[57] (citations omitted).

[26] For example, see Brew v Whitlock (No 3) [1968] VicRp 63; [1968] VR 504; (1968) 118 CLR 445; Williams v Volta [1982] VicRp 74; [1982] VR 739,742; Gould v Vaggelas [1984] HCA 68; (1984) 157 CLR 215; (1984) 56 ALR 31; Serisier Investments Pty Ltd v English [1989] 1 Qd R 678.

[27] Clarke v Foodland Stores Pty Ltd [1993] 394.

[28] Willetts v Dimos (VSC, Smith J, No 9150/91, 27 February 1998, unreported, BC9800607))

[29] University of Sydney v Raine & Horne Commercial (NSW) Pty Ltd (1999) V ConvR 54-607; [1999] VSC 123; Nemur Varity Pty Ltd v National Australia Bank Ltd [1999] VSC 366; PGA Group Pty Ltd v Idameneo (No 789) Ltd (formerly Symbion Health Ltd) [2011] VSC 420; BC201106666, [9].