OLIVER HUME PROPERTY FUNDS (HACKHAM) PTY LTD v YAS PROPERTY AND DEVELOPMENT PTY LTD [2026] SASC 95

Applicant: OLIVER HUME PROPERTY FUNDS (HACKHAM) PTY LTD Counsel: MR D WHITINGTON KC WITH MR L WICKS AND MR N DAY - Solicitor: JOHNSON WINTER SLATTERY Respondents: YAS PROPERTY AND DEVELOPMENT PTY LTD Counsel: MR T DUGGAN KC AND MR I ROBERTSON-CLARKE SC WITH MS E KEYNES - Solicitor: COWELL CLARKE Hearing Date/s: 04/06/2026, 05/06/2026, 11/06/2026, 15/06/2026 File No/s: CIV-26-006365 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. OLIVER HUME PROPERTY FUNDS (HACKHAM) PTY LTD v YAS PROPERTY AND DEVELOPMENT PTY LTD [2026] SASC 95 Decision of the Honourable Justice Gray 22 June 2026 EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - RELEVANT CONSIDERATIONS - BALANCE OF CONVENIENCE GENERALLY EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - SERIOUS QUESTION TO BE TRIED - GENERALLY The applicant and first respondent entered into an agreement in respect of a large residential subdivision at Onkaparinga Heights. The respondents, as owner of relevant land, was to procure and hold the development land and the applicant, as developer, was responsible for managing and delivering the project, including planning, construction and sales. By a notice of termination dated 29 April 2026, the first respondent purported to terminate the agreement on the basis that the applicant had engaged in fraudulent conduct, including misrepresentations in feasibility studies and budgets, misuse of the casting vote within the Project Control Group, improper handling of project funds, or otherwise engaged in a fraud on a power. By a further notice dated 2 June 2026, the first respondent advanced an alternative basis for termination contending that the applicant did not satisfy the contractual conditions precedent alleging a fraud on a power and a further right of immediate termination. The applicant disputes the validity of the termination and seeks interlocutory injunctive relief to restrain the respondent from acting upon the notices of termination pending trial. The applicant contends that the allegations of fraud are in substance commercial disagreements that fall to be resolved under the contractual dispute resolution procedure pursuant to the agreement. The applicant states that all conditions precedent have been satisfied, and that, absent an injunction preserving the -- 1 of 41 -- status quo, its contractual rights, securities and entitlement to profit participation will be irreparably prejudiced. Held, dismissing the application for injunctive relief: (1) There is a strong prima facie case for the claim to declaratory relief in respect of the validity of the termination notices alleging fraudulent conduct, and also in relation to the alternative basis for termination concerning fraud upon the power and failure to satisfy a condition precedent. [142] (2) In respect of each ground upon which the respondents rely to justify the termination, there is a strong prima facie case or a strong serious question to be tried that the termination was invalid. The applicant has established that the strength of their case, considered overall, is such that it does diminish the weight to be placed on other balance of convenience factors. [142]-[143] (3) Significant considerations in reaching the finding that the balance of convenience factors do not favour the grant of injunctive relief are that there is no identified financier to fund the project governed by the agreement, and the relationship of trust and confidence between the parties has irretrievably broken down. If the parties were to be required to work together, the Court considers there would be ongoing disputes, and further and continued litigation. The inability of the parties to work together would be a strong discretionary factor against the grant of any remedy of specific performance at the end of a trial. [144]-[145] (4) In relation to the balance of convenience, particular regard has been had to the financial implications for the parties concerning the grant or refusal to grant injunctive relief. To the extent that the applicant has an interest in some of the land that interest is protected by caveats. The applicant has not demonstrated at this interlocutory stage that damages are not an adequate remedy in respect of the other potential loss asserted. Considering these matters together and weighting these matters and all the balance of convenience factors referred to by the parties, together with the strength of the serious question to be tried, the Court finds that the interlocutory relief sought should not be granted. [146] Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; Bradto Pty Ltd v Victoria (2006) 15 VR 65; Derry v Peek (1889) 14 App Cas 337; Hancock v Rinehart [2015] NSWSC 646; JC Williamson Ltd v Lukey (1931) 45 CLR 282; Dexus Sahmri2 Pty Ltd v South Australian Health and Medical Research Institute Ltd [2025] SASC 61; Nadinic v Drinkwater (2017) 94 NSWLR 518; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156, applied. Bingham v 7-11 Stores [2003] QCA 402; Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; Jones v Dunkel (1959) 101 CLR 298, considered. -- 2 of 41 -- OLIVER HUME PROPERTY FUNDS (HACKHAM) PTY LTD v YAS PROPERTY AND DEVELOPMENT PTY LTD [2026] SASC 95 Civil: Interlocutory Application GRAY J: 1 This matter concerns a dispute arising out of a Development Management Agreement dated 31 August 20211 between the applicant, Oliver Hume Property Funds (Hackham) Pty Ltd,2 and the first respondent, YAS Property & Development Pty Ltd.3 The Agreement concerns a large residential subdivision project at Onkaparinga Heights.4 The respondents to the proceedings are YAS and various other companies associated with YAS.5 2 Both parties accept the existence of the Agreement and broadly the division of responsibilities. YAS was to procure and hold the development land, while Oliver Hume, as developer, was responsible for managing and delivering the project, including planning, funding arrangements, construction, and sales.6 The central controversy concerns YAS’s purported termination of the Agreement on 29 April 2026.7 3 Oliver Hume contends that this termination is invalid and seeks by interlocutory injunction to restrain the termination. YAS maintains the validity of the termination of the Agreement pursuant to the notice of termination issued on 29 April 2026 (‘the first Notice of Termination’) or on the alternative basis of termination set out on 2 June 2026 (‘the second Notice of Termination’). YAS opposes the grant of injunctive relief sought by Oliver Hume.8 4 The issue in dispute in these proceedings is whether YAS validly terminated the Agreement for “fraud” by Oliver Hume, or whether there is another basis upon which the Agreement may be terminated. Oliver Hume characterises the termination as opportunistic and unsupported, arguing that the allegations of fraud are in substance commercial disagreements concerning development strategy, project financing, and cost allocation. Oliver Hume contends that these matters fall to be considered within the contractual dispute resolution procedure,9 and do 1 Referred to as ‘DMA’ or ‘the Agreement’. 2 ‘Oliver Hume’ or ‘the Developer’. 3 ‘YAS’ or ‘the Owner’. 4 ‘the Onkaparinga Heights Development’. 5 Together ‘the respondents’. 6 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [2]-[4]; Summary of Argument of the Respondents filed on 2 June 2026 (FDN 25) at [1]-[3]. 7 Exhibit A2: Affidavit of Eve Danielle Thomson dated 16 May 2026 (FDN 2); Exhibit EDT-1, at p 14- 183 (EDT-1). 8 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [1], [23]; Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [5], [9]. 9 See clause 11 of the Agreement. -- 3 of 41 -- [2026] SASC 95 Gray J 2 not give rise to a right to terminate the Agreement.10 Oliver Hume asserts that the contractual conditions precedent to subsequent project performance were satisfied. 5 By contrast, YAS alleges that Oliver Hume engaged in fraudulent or improper conduct, including misrepresentations in feasibility studies and budgets, misuse of its casting vote within the Project Control Group (‘PCG’), and improper handling of project funds. YAS further contends that approvals central to the project, including the feasibility study and project budget, were adopted in a manner which breached the requirements of the DMA.11 YAS asserts that the contractual conditions precedent to subsequent project performance remain unmet due to defects in the approval process.12 6 The issue that I must determine is whether interlocutory relief should be granted. Oliver Hume contends that, absent an injunction preserving the status quo, its rights under the DMA will be irreparably prejudiced, particularly given the advanced stage of the project and the risk that transfers of land or restructuring of ownership may undermine the security Oliver Hume holds in relevant land,13 and Oliver Hume’s entitlement to profit participation.14 Oliver Hume contends that the funding difficulties associated with the financier calling in the obligations under the loan are matters of YAS’s own making.15 7 YAS, as the Owner, was required to fund the development project. It did so through a finance facility entered into on 25 May 2023, in the name of OVAFS Pty Ltd,16 being a holding company for the entities holding the land.1718 MCH Agency Services Pty Ltd as Agency and Security Trustee (‘Metrics’) provided the finance. Oliver Hume submits that YAS should not be able to avoid the obligations imposed by the DMA, due to the actions of the financier which Oliver Hume contends were precipitated by YAS’s actions.19 8 YAS submits that the grant of an injunction would be impractical and unjust. YAS relies upon the breakdown of the relationship between the parties and the asserted commercial unviability of the project under Oliver Hume’s management.20 YAS asserts that there are financial pressures, including default under the relevant 10 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [36]. 11 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [59], [75]. 12 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [10], [58]-[59]. 13 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [33]; Exhibit A5: Third Affidavit of David James Rogers dated 01 June 2026 (FDN 23) at [75]. 14 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [54], [63]; Exhibit A5: Third Affidavit of David James Rogers dated 01 June 2026 (FDN 23) at [16]. 15 Transcript of Proceedings, Oliver Hume Property Funds (Hackham) Pty Ltd v Yas Property & Development Pty Ltd (Supreme Court of South Australia, Gray J, 04 June 2026) at T50.33-51.10, 72.21- 72.38 (‘T’). 16 ‘OVAFS’. 17 The ‘Metrics Loan Facility’. 18 Summary of Argument of the Respondents filed on 2 June 2026 (FDN 25) at [3]. I note at this point that undertakings were also given in this matter by OVAFS. 19 T 40.38 – 41.30. 20 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [91]. -- 4 of 41 -- [2026] SASC 95 Gray J 3 loan facility and the project financier requiring repayment, giving rise to a risk of receivership.21 YAS contends that in order for the project to continue it must proceed independently of Oliver Hume with alternative financing which has been arranged and other development arrangements.22 Background 9 In or about 2014, Mr Hatem Shahin (‘Mr Shahin’), the sole director of YAS, began discussions with the relevant landowners whose property formed the land in the Hackham area (now known as Onkaparinga Heights), for the purpose of a large-scale residential subdivision.23 10 Mr Hatem Shahin is the sole director and shareholder of YAS (AUS) Pty Ltd, which is the sole owner of the shares in YAS.24 11 At the time of entry into the Agreement, YAS had secured rights to acquire the relevant parcels of land through options contracts or land sale contracts, thereby establishing the foundation for the proposed development.25 12 On 31 August 2021, YAS and Oliver Hume entered into the DMA relating to the development for subdivision of the land at Hackham into suburban allotments.26 Under the Agreement, YAS assumed responsibility for procuring, re- zoning and committing the land to the development.27 Oliver Hume was appointed as development manager and assumed responsibility for delivering the development, including planning, financing arrangements, and overall project management.28 13 The acquisition of the development land was structured through nominee or related entities associated with YAS, which progressively acquired individual parcels for incorporation into the overall development.29 The first tranche of these land acquisitions settled in September 2021.30 14 A key early step in the project was the rezoning of the land for residential development. That rezoning was achieved during 2022–2023, with the land 21 T 151. 22 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [11]–[15], [18], [78]–[88]. 23 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [19]; Exhibit R4: First Affidavit of Hatem Shahin dated 19 May 2026 (FDN 10) at [5]. 24 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [6]. 25 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [2], [21]. 26 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [2]; Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [22]; Exhibit R4: First Affidavit of Hatem Shahin dated 19 May 2026 (FDN 10) at [4]. 27 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [2], [8]-[11]; Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [2], [22], [26]. 28 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [9]-[10], [12]; Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [2], [26]. 29 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [4]-[5]; Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [2], [19]-[21]. 30 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [5]. -- 5 of 41 -- [2026] SASC 95 Gray J 4 ultimately being redesignated as part of the suburb of Onkaparinga Heights, thereby enabling the proposed development to proceed.31 Around that time, the Project Control Group approved nominee entities to take transfers of the land.32 15 To fund the acquisition and development of the land, the Metrics loan facility was entered into on 25 May 2023.33 This facility underpinned the project’s financial structure and was subsequently increased in stages.34 Further parcels of land were acquired, including settlements in May 2023 and November 2024.35 16 By late 2025, a draft feasibility study and a project budget were prepared and then approved by the Project Control Group.36 The applicant contends that all conditions precedent were thereby satisfied.37 The respondents contend those approvals did not comply with the DMA.38 In December 2025, the finance facility was increased to approximately $38,250,000.39 17 In early 2026, further disagreements emerged between the parties in relation to project strategy, financial modelling, and project progress.40 On 29 April 2026, YAS purported to terminate the DMA on the basis that Oliver Hume had acted fraudulently in the course of the development.41 Under the Metrics Loan Facility, the termination date of the facility was 19 May 2026, and the financier ultimately required repayment.42 On 18 May 2026, Oliver Hume commenced proceedings seeking interlocutory and final relief to restrain YAS from acting on the termination of the DMA.43 In late May 2026, the final tranche of land acquisitions settled, completing the acquisition phase.44 This is referred to as the Tranche 3 land. It is not in dispute that this land is important to the success of the Onkaparinga Heights development.45 31 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [14], [25]; Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [24]. 32 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [25]. 33 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [3], [27]; Exhibit R5: Second Affidavit of Hatem Shahin dated 21 May 2026 (FDN 14) at [30]. 34 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [27]. 35 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [4]-[5]; Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [2], [27]. 36 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [25]; Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [52]-[53]; Affidavit of David James Rogers dated 20 May 2026 (FDN 6), Exhibit DJR-1 (FDN 12) at p 968. 37 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [25]-[26]; Affidavit of David James Rogers dated 20 May 2026 (FDN 6) at [41]-[43]. 38 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [10], [59]. 39 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [3], [27]; Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [60]. 40 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [45]; Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [52]-[53]. 41 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [5], [28]. 42 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [4], [6]–[7], [31]; Exhibit A3: First Affidavit of David James Rogers dated 19 May 2026 (FDN 6), Exhibit DJR-1 (FDN 12) at p 1090. 43 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [6], [8]. 44 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [5]. 45 Exhibit A2: Affidavit of Eve Danielle Thomson dated 16 May 2026 (FDN 2) at [21]. -- 6 of 41 -- [2026] SASC 95 Gray J 5 The parties submissions The applicant’s case 18 In substance, the applicant’s case is that: 1. the termination of the DMA by YAS constitutes an opportunistic attempt to seize the benefit of the project;46 2. the allegations of fraud are legally unsustainable and factually unparticularised; 3. the dispute is one that should have been resolved under the contract’s dispute resolution process; and 4. injunctive relief is required to preserve the contractual relationship and prevent irreparable prejudice pending trial. The termination was wrongful and opportunistic 19 The applicant contends that the purported termination of the Agreement by YAS on 29 April 2026 was wrongful, without merit, and opportunistic.47 The termination is said to have occurred at a critical stage in the project’s development, immediately prior to relevant land settlements and in circumstances where the project had already advanced significantly under Oliver Hume’s management.48 20 The applicant contends that Oliver Hume had carriage of the development for approximately five years and had undertaken the substantive work necessary to bring the Onkaparinga Heights development to its current position, including progressing the planning, financing, and acquisition stages.49 The applicant contends that the timing and circumstances of the termination demonstrate that the termination was a strategic step taken by YAS to remove Oliver Hume and obtain for itself the value created in the project.50 The allegations of fraud are unfounded and mischaracterised 21 A central plank of the applicant’s case is that the allegations of fraud relied upon by YAS are without factual or legal foundation.51 The applicant contends that the matters relied upon do not involve dishonesty, but instead concern: • feasibility modelling and financial projections; • project sequencing and development strategy; and 46 T 40.13-41.12. 47 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [1]. 48 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [23]; Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [79]. 49 Affidavit of David James Rogers dated 20 May 2026 (FDN 13) at [17]-[18]. 50 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [26]-[27]. 51 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [36]. -- 7 of 41 -- [2026] SASC 95 Gray J 6 • commercial disagreements as to assumptions and timing.52 22 The applicant indicates that feasibility studies and project budgets are inherently forward-looking documents based on estimates, assumptions, and information obtained from third parties, which are necessarily revised over time as the project develops.53 The applicant contends that no relevant representation of fact was falsely made, and that there is no evidence of any knowing or reckless falsity.54 Accordingly, the applicant submits that the allegations of “fraud” are merely a label applied to ordinary commercial disputes arising in the course of a complex development, and are incapable of satisfying any legal standard of fraudulent conduct.55 The disputes fall within the contractual dispute resolution mechanism 23 The applicant contends that the present application falls within the exception in cl 11.7(b) of the Agreement permitting a party to seek urgent injunctive relief, and that the validity of the purported termination is a matter properly to be determined by the Court rather than through the contractual expert process.56 24 The applicant also contends that the matters relied upon by YAS to justify the termination should have been raised within the dispute resolution regime provided for in the DMA. Oliver Hume issued a formal Notice of Dispute on 2 April 2026.57 Oliver Hume proposed that the disputes raised by that notice should be resolved by independent expert determination, and the contractual dispute resolution process was actively on foot at the time of the purported termination.58 Further, the applicant contends that YAS did not issue a notice of default in accordance with the contract, as Oliver Hume contends that YAS was required to do as the matters that YAS seeks to raise are commercial disagreements.59 The allegations of fraud made by YAS are said by Oliver Hume to be a deliberate attempt by YAS to bypass the contractual procedures and obtain an immediate termination of the DMA without complying with the agreed dispute resolution framework.60 The conditions precedent had been satisfied and the project had progressed 25 The applicant contends that all contractual conditions precedent had been satisfied prior to termination, including, rezoning approval for the project land 52 Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [99], [107]–[108]. 53 Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [83]–[86]. 54 Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [94]–[97]. 55 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [36]. 56 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [23]; The applicant relies on the reasons of B Doyle J in Dexus Sahmri2 Pty Ltd v South Australian Health and Medical Research Institute Ltd [2025] SASC 61 at [126]-[133]. 57 Exhibit A3: First Affidavit of David James Rogers dated 19 May 2026 (FDN 2) at [134], and Exhibit DJR-1 (FDN 12) at pp 1037-1046, 1076. 58 Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [134]–[135]. 59 Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [66]–[68]. 60 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [36]. -- 8 of 41 -- [2026] SASC 95 Gray J 7 which was completed around February 2023; and approval of nominee entities by the Project Control Group (December 2022). 26 The applicant also relies upon the approval of the Project Budget and Feasibility Study at the PCG meeting of 2 December 2025 as well as an earlier approval in February 2022.61 The applicant contends that the feasibility study and budget were prepared in accordance with the contractual framework, presented to the PCG, and approved using the agreed voting mechanism including the casting vote provision.62 The applicant contends that this approval satisfied the final condition precedent and that, thereafter, the DMA was fully operative and required continued performance.63 Oliver Hume has substantially performed and contributed to the project 27 The applicant contends that it has substantially performed its obligations under the DMA and has been the primary driver of the project’s progress.64 In this regard, Oliver Hume relies upon its actions in relation to the following matters: • Oliver Hume’s funding of initial land acquisitions prior to the establishment of external financing;65 • Oliver Hume’s arrangement and negotiation of the Metrics finance facility and subsequent variations;66 • Oliver Hume’s management of the development process, including planning approvals, engineering coordination, contractor engagement, and construction oversight; and • Oliver Hume’s ongoing responsibility for day-to-day project management.67 28 Oliver Hume contends that it had operational involvement in the project, including regular engagement with consultants, strategy, procurement, site supervision, and regulatory processes.68 The applicant contends that the progress, structure, and value of the Onkaparinga Heights Development are directly attributable to these efforts.69 61 Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [40]–[44]; Exhibit A6: Fourth Affidavit of David James Rogers dated 09 June 2026 (FDN 36) at [11.1]. 62 Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [95]–[96]. 63 Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [40]–[44]. 64 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [24]–[26]. 65 Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [69]–[70]. 66 Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [53]–[56]. 67 Affidavit of David James Rogers dated 20 May 2026 (FDN 13) at [20]. 68 Affidavit of David James Rogers dated 20 May 2026 (FDN 13) at [20]. 69 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [24]–[26]. -- 9 of 41 -- [2026] SASC 95 Gray J 8 There is a strong prima facie case (serious issue to be tried) 29 The applicant contends that it has established a strong prima facie case that: • no fraud has occurred; • the contractual grounds for termination were not available; and • the purported termination is invalid and ineffective.70 30 The matters upon which Oliver Hume rely include that all decisions complained of were taken within the governance structure of the PCG. Further, Oliver Hume contends that financial arrangements and project decisions were transparently documented and communicated. Oliver Hume also states that the allegations of fraud made by YAS were not made prior to the Notice of Termination.71 The balance of convenience favours maintaining the agreement 31 The applicant contends that the balance of convenience strongly favours preserving the existing contractual position.72 The applicant relies upon evidence that Oliver Hume has the resources, expertise, and personnel necessary to continue the project. Further, Oliver Hume contends that the project has established operational systems and relationships critical to delivery of the development; and disruption of those arrangements would cause inefficiency, delay, and further cost.73 32 The applicant further states that, if the injunction is not granted and the Notice of Termination remains operative then, it may be practically impossible to restore Oliver Hume to its role within the project, particularly if third parties are engaged or project structures are altered.74 The applicant contends that YAS should be held to the agreement reached with Oliver Hume reflected in the DMA. The applicant submits that the respondents should not be permitted to avoid their contractual obligations due to a situation brought about by the respondents’ actions. Preservation of the status quo is necessary 33 The applicant emphasises that interlocutory relief is required to preserve the subject matter of the dispute.75 The applicant contends that there is a real risk that, absent injunctive relief being granted, land may be transferred to entities outside the DMA framework and that Oliver Hume’s security and contractual rights will be diminished. It is contended that the project structure will be irreversibly 70 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [28]. 71 Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [131]. 72 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [33], [58]. 73 Exhibit A4: Second Affidavit of David James Rogers dated 20 May 2026 (FDN 13) at [18]–[20]. 74 Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [174]. 75 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [33], [63]. -- 10 of 41 -- [2026] SASC 95 Gray J 9 altered.76 The applicant contends that such steps would undermine its ability to obtain meaningful final relief. The termination threatens the viability of the entire project 34 The applicant contends that the termination places the viability of the project at immediate risk.77 The applicant referred to the Tranche 3 land acquisitions, with a total purchase price of approximately $6.75 million, which were due to settle on 29 May 202678 and contended that those parcels are critical to future development stages; and without them, the project’s staging and marketability will be materially impaired.79 As noted below, ultimately those settlements proceeded. The termination has triggered financing consequences 35 The applicant contends that the purported termination has caused immediate and significant financing consequences.80 These matters include the project financier Metrics issuing a notice of default and requiring repayment of the facility and declining to extend the facility given the existence of the dispute between the parties to this proceeding.81 The applicant contends that funding would likely become available again if the injunction is granted, and Oliver Hume remains as the developer.82 There is a risk of irreparable prejudice 36 Finally, the applicant contends that it faces irreparable prejudice if interlocutory relief is not granted.83 This prejudice includes exclusion from a project in which Oliver Hume has invested substantial time, expertise, and capital. There would also be a loss of anticipated profits which Oliver Hume estimates at approximately $35 million.84 Oliver Hume contends that there is a risk that damages will not be recoverable, given YAS’s limited asset position; and there would be ongoing reputational harm and disruption to the commercial relationship of the parties.85 Further, as noted previously, the applicant contends that, if land and assets are transferred outside the contractual framework, Oliver Hume’s rights will be more difficult to protect.86 76 However, as discussed below caveats have been lodged: see further, Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [161]–[164]. 77 Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [138]–[141]. 78 Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [138]–[141]. 79 Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [141]-[144]. 80 Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [150]. 81 Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [150]. 82 Affidavit of David James Rogers dated 20 May 2026 (FDN 13) at [12]. 83 Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [166]–[167], [175]. 84 Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [166]–[167], [175]. 85 Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [166]–[167], [175]. 86 Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [161]–[164]. -- 11 of 41 -- [2026] SASC 95 Gray J 10 The respondents case Whether the DMA was validly terminated 37 The respondents contend that termination of the DMA on 29 April 2026 was lawful and effective,87 and they rely on an express contractual entitlement to terminate for fraud.88 In the alternative, the respondents assert that termination was justified by the failure to complete contractual conditions precedent in accordance with the requirement of the DMA within the required timeframe.89 38 The respondents acknowledge, for the purposes of this application, the existence of a serious question to be tried, but contend that the applicant has not established a strong prima facie case, and that the evidence discloses multiple instances of unsatisfactory conduct on the applicant’s part.90 Whether the applicant engaged in fraudulent or misleading conduct and breached its contractual obligations 39 The respondents contend that the applicant provided misleading feasibility studies and financial modelling; failed to disclose critical assumptions and risks; and misrepresented the financial position and viability of the project.91 The affidavits of Mr Shahin identify concerns about the reliability of feasibility models, uncertainty in financial assumptions, and discrepancies in projected outcomes.92 The respondents contend that the applicant failed to perform its obligations as developer.93 40 The respondents contend that notwithstanding rezoning being achieved, the project did not progress in a timely manner, and there were delays in subdivision, and civil works being conducted.94 It is alleged that significant delays accrued and key milestones were not met, with little meaningful advancement following rezoning.95 The respondents also contends that the applicant failed to comply with its obligations of transparency and reporting.96 41 The respondents contend that the applicant failed to provide requested financial and project information; did not disclose feasibility models and underlying assumptions; and excluded Mr Shahin from communications with consultants and project stakeholders.97 Mr Shahin in his affidavits refers to repeated 87 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [5]–[6]. 88 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [35]–[40]. 89 Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [8]. 90 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [73], [75]. 91 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [44]–[52]. 92 Exhibit R4: First Affidavit of Hatem Shahin dated 19 May 2026 (FDN 10); Exhibit R6 Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21). 93 See Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [24]–[26] as to the obligations which the respondents contend the applicant has failed to perform. 94 Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21), Exhibit HS-12 at p 48. 95 Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21), Exhibit HS-12 at pp 48-49. 96 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [52]–[60]. 97 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [52]–[60]. -- 12 of 41 -- [2026] SASC 95 Gray J 11 requests for information which were not adequately met and ongoing concerns regarding lack of access to project data.98 42 The respondents also allege deficiencies in the financial management of the project.99 These allegations include, variation and expansion of loan facilities without proper disclosure; movement and allocation of funds without adequate explanation; and reimbursement of costs in a manner said to benefit the applicant.100 Mr Shahin refers to issues arising from the Metrics loan facility, including increases in funding and the application of funds, as well as concerns regarding transparency in financial reporting.101 43 The respondents contend that the parties had also entered into a separate development management agreement at Golden Grove on identical terms,102 which YAS terminated on 6 November 2025 under an equivalent provision to that contained in cl 2.5(c) of the DMA.103 44 YAS contends that as a consequence of Mr Shahin acting to terminate the DMA concerning the Golden Grove project, Oliver Hume took action to avoid that consequence in respect of the Onkaparinga Heights project. The respondents contend that, within a month of termination of the Golden Grove DMA, the applicant altered its approach in respect of the Onkaparinga Heights project and caused the Project Control Group to adopt the draft Project Budget and draft Feasibility Study at the December 2025 meeting in order to deny YAS the opportunity to terminate the DMA on the same basis that the Golden Grove DMA had been terminated.104 45 The respondents contend that the applicant insisted upon commencing the Onkaparinga Heights development from a parcel of land located at the centre of the project, notwithstanding the absence of water and sewerage connections to that area. This is said to have resulted in years of delay awaiting the delivery of services by SA Water, incurring substantial wasted expenditure including on engineering fees, and the continued accrual of interest under the Metrics facility.105 The respondents further contend that this deferred the point at which the project would become self-funding, thereby prolonging the applicant’s retention of the casting vote on the PCG.106 98 See, for example, Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21), Exhibit HS-11 at pp 46-47. 99 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [52]–[60]. 100 Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [14]-[20]. 101 Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [62]-[67]. 102 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [23]; Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [6.4]. 103 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [50]; Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [6.4.4]. 104 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [75.2.5]. 105 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [41]; Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [9.9], [9.9.1]-[9.9.2]. 106 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [60]. -- 13 of 41 -- [2026] SASC 95 Gray J 12 46 The respondents allege that the applicant opened and held sole control of the project bank account in breach of the DMA and used that control to reimburse itself for ‘project soft costs’ before it was entitled to do so.107 The respondents contend that Oliver Hume directed the Metrics loan funds into accounts Oliver Hume solely controlled; that it falsely represented that documents had been provided to YAS through a shared OneDrive folder; and that it incorporated a company and lodged a tax return without YAS’s approval.108 The breakdown of the contractual relationship and issues of serious financial prejudice 47 The respondents contend that the relationship between the parties has irretrievably broken down.109 This is said to arise from ongoing disputes within the Project Control Group; repeated disagreements regarding strategy, finance, and project execution; and a fundamental loss of trust and confidence by Mr Shahin in the applicant.110 Whether the respondents face serious financial prejudice 48 The respondents contend that the project is subject to urgent financial pressure.111 Mr Shahin refers to the Metrics loan facility being called in; the refusal of Metrics to extend financing; and ongoing liabilities, including interest and development costs.112 49 The respondents assert that they are able to proceed with the project independently of the applicant.113 The respondents contend that alternative financing has been identified, and that funding was able to be obtained such that on 26 May 2026, 27 May 2026 and 29 May 2026, the final tranche of land acquisitions settled.114 The respondents contend that the project can progress outside the existing development structure,115 as the alternative financier is prepared to fund the development on the basis of Mr Shahin’s proposal which involves the development of smaller allotments, and the development of the western part of the land first.116 107 Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [7.3], [17]-[18]. 108 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [36.4]–[36.7]; Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [9.3], [9.5], [9.6], [9.8]. 109 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [11]–[18]. 110 Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [77]-[82]. 111 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [11]–[14]. 112 Exhibit R4: First Affidavit of Hatem Shahin dated 19 May 2026 (FDN 10); Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [48], [68.17], [71]-[72], [81], [83]-[84]. 113 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [17]–[18]. 114 Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [4]-[5]; Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [2], [27]. 115 Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [80]. 116 T 108.23-27. -- 14 of 41 -- [2026] SASC 95 Gray J 13 Where the balance of convenience lies 50 The respondents contend that the balance of convenience favours refusal of interlocutory relief.117 They submit that maintaining restraints by granting the injunction will increase financial exposure as it would force the respondents to continue with the DMA which concerns a project from which the financier has withdrawn. There is said to be an irreparable breakdown in the relationship of trust and confidence between the parties to the DMA. The respondents contend that the consequence of those matters, is that there is a real risk of project failure if the injunction sought is granted as the injunction is mandatory in nature and it would force the parties to continue with a project without finance.118 51 The respondents contend that the project, as managed by the applicant, is commercially unviable. They point to the applicant’s own financial modelling, which they say applied a hurdle rate of 15% and yielded a negative net present value of approximately $9.2 million, required peak indebtedness of some $82 million, with the final sale of allotments not being contemplated until about mid- 2033. Further, the respondents refer to a disclosed projected profit of approximately $19 million attributable only to anticipated GST credits rather than to gross sales.119 Relevant legal principles 52 The principles governing interlocutory injunctions are relatively well settled. An interlocutory injunction generally operates as a protective measure. The purpose of such an injunction is to maintain the integrity of the rights of the parties pending final adjudication. The function of an interlocutory injunction is not to determine ultimate rights but seeks to minimise the risk of injustice. 53 As a consequence, for the purposes of this matter, I need only deal provisionally with the facts and the law.120 I must “exercise a discretion” aimed at selecting the course that will cause “the least injustice if it is later shown to have been wrong.”121 The nature of the interlocutory relief to be considered in this case is inherently anticipatory and risk-based, rather than determinative. 54 The relief sought if granted is to be granted “in aid of the final relief” to protect the legal or equitable rights asserted by the applicant.122 The relevant question to be determined may be considered by reference the two factors being, whether there is a serious question to be tried and where the balance of convenience lies.123 There is a question arising from the case law as to whether the 117 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [78]-[88]. 118 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [80]–[88]. 119 Summary of Argument of the Respondents dated 2 June 2026 (FDN 25) at [15], [56]: 120 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622. 121 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533, 535-539 (McLelland J). 122 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [15]–[16]. 123 Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65]-[72] (Gummow and Hayne JJ). -- 15 of 41 -- [2026] SASC 95 Gray J 14 requirement that damages is not an adequate remedy is a separate and distinct matter or is one of the balance of convenience factors.124 However, for the reasons discussed below this distinction is not determinative in this case125 and the parties both accept that damages being an adequate remedy is not a bar to relief, and this is a matter to be weighed with the balance of convenience considerations.126 55 In the context of a serious question to be tried, as Gummow and Hayne JJ held in Australian Broadcasting Corporation v O’Neill:127 …it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. 56 This formulation reflects a low threshold, requiring neither proof of probable success nor a final determination of rights. 57 In determining the balance of convenience as the Court held in Bradto Pty Ltd v State of Victoria:128 the Court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’ in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial. 58 The task in considering the balance of convenience is to conduct a comparative assessment of risks, considering the consequences of error. It follows that matters which may be destructive of the subject matter of the action, and of a parties defence to a claim need to be carefully weighed.129 It is important to consider, for example, whether refusal of relief would render final relief nugatory, such that the balance may strongly favour preservation of the status quo. The two limbs of the test identified above are interdependent, and the stronger the applicant’s case, the less the balance of convenience need favour the grant of the injunction, and vice versa.130 59 A central consideration in the balance of convenience is whether damages would provide an adequate remedy. Relevant matters in this context include, whether damages are sufficient, or whether damages may be inherently inadequate as future profits and complex commercial outcomes are such that damages may be difficult to quantify. The adequacy of damages may be considered as part of the balancing exercise rather than as a threshold requirement, however, the relevance 124 T42.29-44.12. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, at [19] (Gleeson and Crennan JJ), [65]-[72] (Gummow and Hayne JJ). 125 Ultimately whether damages is an adequate remedy is considered separately or as part of the balance of conveniences facts the same conclusion is to be reached: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238. 126 T207.1-7. 127 Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65] (Gummow and Hayne JJ). 128 Bradto Pty Ltd v State of Victoria [2006] VSCA 89; 15 VR 65 at [35]. 129 Cooper v Moloney (No 6) [2012] SASC 212 at [75]. 130 Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [67]. -- 16 of 41 -- [2026] SASC 95 Gray J 15 of this matter will be context specific. Whilst the applicant may show that it will suffer irreparable injury for which damages will not be adequate compensation, this consideration may be subsumed within the broader balancing exercise.131 60 The relief sought in this case is effectively a form of mandatory injunction akin to specific performance. As a consequence, caution should be exercised in considering the suitability of such relief. As Dixon J held in JC Williamson Ltd v Lukey: 132 Specific performance, in the proper sense, is a remedy to compel the execution in specie of a contract which requires some definite thing to be done… the remedy is not available unless complete relief can be given… Specific performance is inapplicable when the continued supervision of the Court is necessary… It is not a form of relief which can be granted if the contract involves the performance by one party of services to the other or requires their continual co-operation. 61 Further, His Honour went on to state:133 Probably the true rule is that an injunction should not be granted which compels, in substance, the defendant to perform his side of the agreement when the continuance of his obligation… depends upon the future conduct of the plaintiff… If the contract is one the execution of which the Court cannot superintend, it does not seem… in accordance with principle to bind one party to performance in specie… 62 However, compared to the approach set out in JC Williamson,134 the requirement of judicial supervision may no longer now be such a significant barrier to relief being granted as it was at the time JC Williamson was decided. Rather, the potential future need for the exercise of the Court’s supervisory jurisdiction is a matter to be weighed in the context of the importance of parties being bound to the contractual terms that they have agreed.135 As a consequence the breakdown of a commercial relationship will not necessarily operate as a bar to injunctive relief, and may be dependent on the circumstances be a matter to be weighed in the balance. 63 The other legal principles relevant to this matter, and to be considered in the context of the termination of the agreement are the legal principles concerning fraud. The applicant relies in this case upon “fraud” bearing its common law meaning, requiring dishonesty. The common law meaning of fraud was considered in Derry v Peek, to be:136 a false statement of fact which is made… knowingly, or without belief in its truth or recklessly without caring whether it be true or false, with the intent that it should be acted upon… and which was in fact so acted upon. 131 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57. 132 JC Williamson Ltd v Lukey (1931) 45 CLR 282 at 297–298 (Dixon J). 133 JC Williamson Ltd v Lukey (1931) 45 CLR 282 at 299. 134 (1931) 45 CLR 282 (‘JC Williamson’). 135 Bircan v Portakaldali [2008] NSWSC 791 at [12]. 136 Derry v Peek (1889) 14 App Cas 337 at 374. -- 17 of 41 -- [2026] SASC 95 Gray J 16 64 This reflects the orthodox position that fraud requires conscious dishonesty or recklessness, not mere error or breach. Fraud must be specifically pleaded with particularity, including particularity as to the alleged dishonesty.137 65 The respondents also rely upon the equitable doctrine of fraud on the power. This is said to arise in the context of the assertion that the contractual conditions precedent to subsequent project performance remain unmet due to defects in the approval process. As was held in Hancock v Rinehart,138 this doctrine provides that a power must be exercised: 139 in good faith for the purpose for which it was given and not for any ulterior or extraneous purpose. 66 Further, as Brereton J went on to hold:140 Fraud in this context does not require dishonesty or immoral conduct, nor an intent to deceive. 67 In this way, “fraud on a power” is conceptually distinct from common law fraud. It concerns improper purpose, not dishonesty.141 Consideration 68 I have considered the submissions advanced by the parties both in the written submissions and at the hearings of this matter.142 I have also considered the detailed affidavit evidence relied upon by the parties.143 I have had regard to the undertakings offered by the applicant and to the terms of the open offer made by the respondents, and the other documents received during the course of the hearing.144 I would not find on the evidence before me that the undertaking offered by the applicant was insufficient. 137 Nadinic v Drinkwater (2017) 94 NSWLR 518 at [45]. 138 Hancock v Rinehart [2015] NSWSC 646 at [57]. 139 Hancock v Rinehart [2015] NSWSC 646 at [57]. 140 Hancock v Rinehart [2015] NSWSC 646 at [57]. 141 See further, McKerlie v Drillsearch Energy Ltd [2009] NSWSC 488 at [30]. 142 Summary of Argument of the Applicant for hearing on 20 May 2026 dated 19 May 2026 (FDN 7), Summary of Argument of the Respondents filed on 21 May 2026 (FDN 15), Summary of Argument of the Applicant dated 2 June 2026 (FDN 24), Summary of Argument of the Respondents filed on 2 June 2026 (FDN 25), Submissions in Reply of the Applicant for hearing on 11 June 2026 dated 9 June 2026 (FDN 37) and Submissions in Reply of the Applicant dated 14 June 2026 (FDN 41). 143 Exhibit A2: Affidavit of Eve Danielle Thomson dated 16 May 2026 (FDN 2); Exhibit A3: First Affidavit of David James Rogers dated 19 May 2026 (FDN 6) and Exhibit DJR-1 (FDN 12); Exhibit A4: Second Affidavit of David James Rogers dated 20 May 2026 (FDN 13), Exhibit A5: Third Affidavit of David James Rogers dated 01 June 2026 (FDN 23), Exhibit A6: Fourth Affidavit of David James Rogers dated 09 June 2026 (FDN 36), Exhibit R3: First Affidavit of Andrew Nicholas Wesley Bullock dated 19 May 2026 (FDN 8), Exhibit R4: First Affidavit of Hatem Shahin dated 19 May 2026 (FDN 10), Exhibit R5: Second Affidavit of Hatem Shahin dated 21 May 2026 (FDN 14), Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21), Exhibit R7: Paragraphs [2], [5], [8] and [9]-[13] of the Fourth Affidavit of Hatem Shahin dated 02 June 2026 (FDN 27), and Exhibit R8: Second Affidavit of Andrew Nicholas Wesley Bullock dated 11 June 2026 (FDN 39). 144 See further, MFI-R2: Open Offer/Draft Undertaking as to damages dated 5 June 2026. -- 18 of 41 -- [2026] SASC 95 Gray J 17 69 As I note above, this matter concerns an application for urgent injunctive relief. The findings that I make below are relevantly interlocutory findings and are made on that basis.145 Where I have made findings on the evidence before me these are interlocutory findings. 70 Both parties to this proceeding emphasised the need for expedient determination,146 due to the commercial considerations which I set out below.147 In this context, whilst I have had regard to the detail of the submissions advanced by the parties and to the extensive affidavit material filed, and I have weighed the relevant matters, I set out below the matters of central significance as raised by the parties and the matters of significant relevance to my determination. 71 I must consider the matters raised by the parties by reference to the question of whether the grant of injunctive relief would maintain the integrity of the rights of the parties pending final adjudication, and whether granting or refusing relief would minimise the risk of injustice arising following determination of the substantive claim.148 I must consider whether there is a serious question to be tried, the strength of the case for primary relief, and where the balance of convenience lies.149 I must consider whether the applicant has established that damages are not an adequate remedy.150 The adequacy of damages may be considered as one of the matters to be weighed in the balance. Even if the applicant has not established that damages are not an adequate remedy this is not a bar to injunctive relief.151 Serious question to be tried 72 The applicant asserts that it has a strong prima facie case for an interlocutory injunction to restrain the respondents from giving effect to or acting upon its purported termination notices in support of its claim to declaratory relief. The final relief sought is a declaration that the purported termination notices are invalid and that the DMA remains operative and binding on the parties.152 73 The respondents accept that there is a serious question to be tried as to whether the termination notices were validly issued and whether the respondent had a right to terminate the contract.153 However, the respondents dispute that there is a strong prima facie case. 145 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; see also T 175. 146 T21, T39. 147 Applicants Summary of Argument filed 19 May 2026 at [9], [14]-[17], [32]-[35]. 148 Bradto Pty Ltd v State of Victoria (2006) 15 VR 65 at [35]; Cooper v Moloney (No 6) [2012] SASC 212 at [75]. 149 Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65] (Gummow and Hayne JJ). 150 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 (Mason ACJ); see Gleeson CJ and Crennan J at [19] in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57). 151 Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156 at [61]-[66]; Hyde v Hyde [2026] SASCA 13. 152 See Oliver Hume Property Funds (Hackham) Pty Ltd, ‘Originating Application’, 18 May 2026, CIV- 26-006365 (FDN 1), order 3. 153 T 169.6-11, T 177.4-7. -- 19 of 41 -- [2026] SASC 95 Gray J 18 74 The primary case of the applicant for injunctive relief centres on both the first notice of termination and the second notice of termination being invalid. Invalidity is advanced on the basis that the respondents will not establish fraudulent conduct or otherwise establish a right to terminate. As a consequence the applicant contends that the respondents should be required to comply with the dispute resolution mechanisms in the DMA. The terms of the DMA contemplate that most disagreements between the parties to the DMA will be resolved in accordance with the dispute resolution procedure provided for in clause 11, subject to the limited exceptions provided for in clause 12. The limited exception upon which the respondents rely concern what is said to be fraudulent acts in the performance by the Developer of its obligations under the Agreement. 75 Clause 11 provides for a dispute resolution procedure. The clause provides for cooperation between the parties and for the parties to meet and “conduct in good faith discussions and negotiations as may be necessary or desirable to amicably resolve any Dispute which may from time to time arise”.154 The clause provides for the issuing of a dispute notice,155 and for the conducting of a meeting to resolve the dispute pursuant to that notice.156 Failing those matters resolving the dispute within 14 days after receipt of the dispute notice, the next step in the dispute resolution process is governed by cl 11.4. Clause 11.4 directs the dispute to an independent determination (see cl 11.5) or a mediation (cl 11.6). 76 Clause 11.4 of the DMA provides: 11.4 Failure to resolve If a Dispute is not resolved within 14 days after receipt of the Dispute Notice and the Dispute relates to (as specified in the Dispute Notice): (a) in the Owner’s opinion, the Developer’s performance being contrary to clause 4.1 or contrary to promises and representations made by the Developer to the Owner or contrary to or not in accordance with the spirit and intent of this Agreement, clause 11.6 will apply at the election of the Owner (failing which clause 11.5 will apply); or (b) any other dispute arising under or in connection with the Agreement, clause 11.5 will apply. 77 Where the matter falls within cl 11.6, being referral for mediation, at any time after the end of 20 business days from the time of the appointment of a mediator a party may stop seeking to resolve the dispute through mediation and refer the matter to determination by an independent expert.157 78 In general terms, the effect of cl 11 is to provide for a process of notification, meetings, mediation, and then, subsequent to mediation (or in some circumstances 154 Clause 11.1. 155 Clause 11.2. 156 Clause 11.3. 157 See clause 11.6(d) DMA. -- 20 of 41 -- [2026] SASC 95 Gray J 19 directly pursuant to cl 11.4(b)), the dispute is referred to expert determination to resolve the matter. 79 Clause 12 of the DMA provides for termination in the context of “Material Event of Default.” A Material Event of Default is defined as follows:158 Material Event of Default occurs with respect to: (a) the Developer, where the Developer; (i) fails to perform any obligation under this Agreement and that failure amounts to a material breach of this Agreement; or (ii) commits any wilful misconduct, fraudulent act or gross negligence in the performance of its obligations under the Agreement; (b) the Owner, where the Owner: (i) fails to perform any obligation under this Agreement and that failure amounts to a material breach of this Agreement; or (ii) commits any wilful misconduct, fraudulent act or gross negligence in the performance of its obligations under the Agreement. 80 It follows that fraudulent conduct on the part of one party confers a right upon the other party to terminate the Agreement without needing to comply with the dispute resolution procedure referred to in cl 11.159 81 The termination notice issued on 29 April 2026, by the first respondent, provides, inter alia, as follows:160 NOTICE OF TERMINATION TO: Oliver Hume Property Funds (Hackham) Pty Ltd of: Level 2, 4 Riverside Quay, Southbank VIC 3006 By email: Attention: Michael Duster [email protected] RECITALS A. YAS Property and Development Pty Ltd (the “Owner”) and Oliver Hume Property Funds (Hackham) Pty Ltd (“the Developer”) are the parties to the agreement styled as the ‘Development Management Agreement – Hackham’, dated 31 August 2021 (“the DMA”). 158 See clause 1.1 of the DMA. 159 See sub-cl 12.1(a)(ii). 160 Exhibit A2: Affidavit of Eve Danielle Thomson dated 16 May 2026 (FDN 2), Exhibit EDT-1 at pp 14- 183. -- 21 of 41 -- [2026] SASC 95 Gray J 20 B. This Notice uses terms as defined in the DMA (italicised when first appearing). C. The Owner is the purchaser under the Land Contracts, being the form of agreement described in Schedule 4 to the DMA as the basis for the acquisition of the Land. D. Entities related to the Owner are the nominees of the Land Contracts and are, or are contracted to become, the registered proprietors of the Land. E. By the DMA the Owner appointed the Developer as the development manager of the Hackham Project on the terms and conditions set out in the DMA. F. The Owner contends that the Developer has fraudulently committed one or more Material Events of Default, which entitle the Owner to immediately terminate the DMA. NOW TAKE NOTICE that: 1. The Developer, in the course of the purported performance of the Developer’s obligations under the DMA, has committed one or more acts or omissions as set out in the attached Schedule A that, alone or cumulatively, are Material Event(s) of Default. 2. The acts or omissions are each, or collectively with one or more other act or omission: 2.1 fraudulent; 2.2 a material breach of the DMA; and 2.3 not capable of being remedied. 3. The Owner hereby gives the Developer notice pursuant to clause 12.1(a)(ii) of the DMA, the Owner terminates the DMA with immediate effect. 4. The Owner reserves all its rights against the Developer (including by the commencement of legal proceedings). Dated: Executed by YAS Property and Development Pty Ltd Hatem Shain Sole director/Secretary 29/4/2026 82 The acts or omissions referred to in Schedule A of the termination notice, referred to four general matters. The first concerns an allegation of fraudulent misrepresentation in relation to the draft project budget and feasibility study which -- 22 of 41 -- [2026] SASC 95 Gray J 21 was presented at the PCG meeting in December 2025.161 The second matter concerns what is said to be a deliberate misrepresentation by the Developer to the Owner that the purpose of obtaining a loan from Metrics in the amount of $5 million was to obtain working capital for the Onkaparinga Heights development. It is alleged that the Developer knew, or was indifferent to the truth of, these representations because the purpose of the loan was to enable the Developer to use the majority of the loan to reimburse itself for amounts it had paid on account of ‘project soft costs’.162 The third matter concerns an allegation of fraudulent misrepresentation in relation to a feasibility study. It is said that at the PCG meetings in January and March 2026, and subsequently following the March meeting, the Developer deliberately misrepresented to the Owner that the information contained in four different versions of a feasibility study was accurate. The fourth matter concerns an allegation of a fraud on the power. That is an allegation that the Developer, by its representative, the Chairperson of the PCG, deliberately and intentionally misused its casting vote to control the Onkaparinga Heights development in a manner intended to disadvantage the Owner, and to advantage the Developer. It is alleged that this was done in disregard of the Developer’s obligation of good faith under the DMA or the best interests of the Onkaparinga Heights development. 83 The applicant alleges that each of the matters raised in the notice of termination had been raised prior to the service of the termination notice by Mr Shahin.163 The applicant contends the matters raised in the termination notice are matters which fall within the dispute resolution processes provided for in the DMA,164 and that these matters should have been dealt with pursuant to the dispute resolution procedure provided for in cl 11 of the DMA.165 I consider that to be a strongly arguable proposition. I find that the currently available evidence indicates there is a serious dispute between the parties concerning the factual substratum underlying the allegations of fraud set out in the termination notice. I find that the currently available evidence does not, clearly indicate fraudulent conduct involving dishonesty. 84 As was set out in Derry v Peek,166 fraud requires conscious dishonesty, being a false statement of fact which is made knowingly or without belief as to its truth or recklessly without caring whether it be true or false, with the intent that it should be acted on. Mere error or breach of a contractual obligation will not amount to fraudulent conduct. Fraud must be specifically pleaded with particularity, including particularity as to the alleged dishonesty.167 The currently available 161 Exhibit A2: Affidavit of Eve Danielle Thomson dated 16 May 2026 (FDN 2), Exhibit EDT-1 at pp 14- 183. 162 Exhibit A3: First Affidavit of David James Rogers dated 19 May 2026 (FDN 6), Exhibit DJR-1 (FDN 12) at p 223. 163 Exhibit A3: First Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [132]-[136]. 164 T19. 165 Exhibit A3: First Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [132]-[136]; Summary of Argument of the Applicant dated 2 June 2026 (FDN 24) at [36]. 166 Derry v Peek (1889) 14 App Cas 337 at 374. 167 Nadinic v Drinkwater (2017) 94 NSWLR 518 at [45]. -- 23 of 41 -- [2026] SASC 95 Gray J 22 evidence before me, considered on an interlocutory basis, does not clearly indicate fraudulent conduct and readily identifiable dishonesty.168 On the evidence before me, considered at this interlocutory stage, I find that there is a strong prima facie case for declaratory relief concerning the invalidity of the notice of termination to the extent that that notice alleges fraudulent conduct.169 85 In respect of the alternative basis upon which the respondents allege in the notice of termination that they were justified in terminating the DMA, these matters suggest there is a ‘fraud on the power’. The respondents contend that these matters fall within cl 12 of the DMA and give rise to an immediate right of termination. The respondents also contend in respect of the allegation of fraud on a power and the consequent alternative basis for termination set out in the letter of 2 June 2026 concerning a failure to satisfy a condition precedent, that there is an additional right of termination contained in cl 2.5 which gives rise to an immediate right of termination. In response to this submission the applicant places emphasis upon the alleged failure to satisfy the third condition precedent being expressed in the first purported termination notice by reference to the fraud exception in cl 12.1(a)(ii).170 86 The alternative basis upon which the respondents allege that the agreement may be terminated is set out in a letter of 2 June 2026.171 The 2 June 2026 letter, inter alia, provides: In our client’s termination of the DMA by way of its termination notice dated 29 April 2026 (“Termination Notice”), it referred to a number of matters arising from your client’s purported draft Feasibility Study and proposed Project Budget (see paragraphs 1, 4 -6, 7 8). Clause 2.5(a)(iii) provides as a condition precedent that the Developer is required to be “satisfied as to the Project Budget and the Feasibility Study”. We note that clause 2.5(b) of the DMA expressly provides that the conditions precedent under clause 2.5(a) are for the benefit of both parties and can only be waived or varied by agreement. Before the Developer could be “satisfied as to the Project Budget and the Feasibility Study” within the meaning of clause 2.5(a)(iii), the Developer was required to comply with the requirements of clause 6.1(a), which clause required the Developer to “with the assistance of the Owner prepare a draft Feasibility Studt and a proposed Project Budget”. Notwithstanding repeated requests made by the Owner, at no stage did the Developer take any serious steps to obtain the assistance of the Owner in the preparation of a draft Feasibility Study and/or a proposed Project Budget. Indeed, from at least 28 July 2025, the Owner was, by formal notice, seeking a copy of any draft Feasibility Study and proposed Project Budget. 168 Nadinic v Drinkwater (2017) 94 NSWLR 518 at [45]. 169 That is, fraudulent conduct in the common law sense as set out under the first three headings referred to in Schedule A of the Notice of Termination. 170 Submissions in Reply of the Applicant dated 14 June 2026 (FDN 41); T39.15-40.37. 171 Exhibit A6: Fourth Affidavit of Hatem Shahin dated 2 June 2026 (FDN 27), Exhibit HS-21 at p 25. -- 24 of 41 -- [2026] SASC 95 Gray J 23 The documents that the Developer provided in an email to the Owner on 2 December 2025 (being the documents which the Developer caused the chairperson to use its casting vote to approve as the Project Budget and Feasibility Study at the PCG meeting on 2 December 2025, some 2 hours after the draft documents were provided to the Owner) was a PDF entitled “Onkaparinga Heights – Project Budget & Feasibility Study (December 2005)” and was not a draft Project Budget or a draft Feasibility Study within the meaning of the DMA. The Owner subsequently became aware in March 2026 that the Developer had an actual draft Project Budget and draft Feasibility Study (which contained the data behind the PDF provided by the Developer) which had not been provided to the Owner by the Developer despite the data being available to the Developer. This included the failure to provide the cash flow (which was required to be provided – see reference to the cash flow in Schedule 1, 1(d)(ii)) and the Net Present Value of the project, based on a discount rate of 15%, which was stated to be - $9.2m. The December meeting of the PCG occurred on 2 December 2025, some 2 hours after the Developer’s email providing the PDF to the Owner. Plainly this was insufficient time to enable the Owner to consider and thereby it was plainly insufficient for the PCG to consider the document. As is apparent from Mr Hatem Shahin’s subsequent conduct, had he been aware of the actual documents and had he been provided with an accurate statement of the feasibility and project budget (and has he been given a reasonable time to consider the documents before the scheduled PCG to approve them ) he would have terminated the DMA prior to any such meeting pursuant to clause 2.5(c). As the minutes of the PCG meeting in December 2025 record, Mr Hatem Shain at the PCG meeting “objected to the timing, lack of detail, and absence of supporting assumptions” in the PDF document and did not support the “feasibility (the more accurate statement is that Mr Shahin opposed the PCG approving the “feasibility”). Pursuant to clause 6.1(b)(ii), “the parties must act reasonably when deciding whether to approve or not approve a draft Project Budget at the PCG”. Plainly the Developer did not act reasonably by acting as set out above and by forcing the vote at the PCG meeting, 2 hours after providing the PDF to the Owner. Further, there was no proper basis for the cash flow to predict cash inflows from the sale of Lots in January 2026, given the state of the project, and noting that the cash flow had not been provided to the Owner. In the circumstances, the purported approval by the PCG of a “draft Project Budget and a draft Project Feasibility” was void and of no effect and by reason of the conduct of the Developer, the approval by the PCG cannot be relied upon and/or the Developer is estopped from relying upon it. The actions of the Developer in putting forward the PDF as the “draft Project Budget and a draft Project Feasibility” in the circumstances surrounding the December PCG meeting also amounted to a clear breach by the Developer of its obligation to act in good faith and in the best interests of the Project. For the above reasons, the Developer never satisfied the Conditions Precedent under the DMA. As such, without resiling from the fact that our client has already terminated the DMA by way of its Termination Notice, the Owner hereby provides your client with notice that, in -- 25 of 41 -- [2026] SASC 95 Gray J 24 the event that the Termination Notice is for whatever reason invalid or ineffective (which is denied), it terminates the DMA pursuant to clause 2.5(c). 87 The respondents assert that the contractual conditions precedent to subsequent project performance remain unmet due to defects in the approval process concerning the Project Budget, which are referred to in the 2 June 2026 letter cited above. These matters are said to be a fraud on the power.172 88 The equitable doctrine of fraud on a power is distinguishable from common law fraud. The doctrine has application including when a power has been exercised other than in good faith for the purposes for which it was given. The doctrine may have application where a power is exercised for an ulterior or extraneous purpose.173 Considering the matter on an interlocutory basis, I have some doubt that cl 12 is to be construed to include the equitable doctrine of a fraud on the power. 89 That said, the respondents contend that cl 2.5(a)(iii) gives rise to an independent basis upon which the DMA could be terminated. Considering the matter on an interlocutory basis there is some force in that argument, and there is evidence which supports the respondents’ claim that the manner in which the Developer is to be “satisfied”, for the purposes of clause 2.5(a)(iii), did not comply with the terms of the Agreement, including the requirements of cl 6.1. 90 Against these matters, the applicant contends that cl 2.5(a)(iii) is dependent only upon the Developer being satisfied as to the Project budget and the feasibility study and thus is independent of cl 6.1 of the DMA.174 Further, it is asserted that the reliance on cl 6.1, in the context of the late notice to Mr Shahin of the feasibility study and project budget shortly prior to the PCG meeting on 2 December 2025, cannot be seen as a fraud on the power, nor is it precipitated by the termination of the Golden Grove DMA as the relevant expiry date was 31 December 2025.175 Further, the applicant refers to the unchallenged evidence of Mr Rogers176 that the condition precedent had been satisfied in February 2022 and that Mr Rogers had overlooked the record in circumstances where Mr Tuck had left Oliver Hume in November 2024.177 91 Considering the matter on an interlocutory basis, I have some difficulty in accepting that cl 2.5(a)(iii) operates independently of cl 6.1. I accept that cl 2.5(a)(iii) concerns a matter of which the Developer must be satisfied. That said, I have more difficulty in accepting that the Developer could act unreasonably in 172 T165.19-38; Submissions in Reply of the Applicant for hearing on 11 June 2026 dated 9 June 2026 (FDN 37); Summary of Argument of the Applicant dated 2 June 2026 (FDN 24). 173 Hancock v Rinehart [2015] NSWSC 646 at [57]. 174 T17.35-19.4; Submissions in Reply of the Applicant for hearing on 11 June 2026 dated 9 June 2026 (FDN 37) at [4]-[6]. 175 Submissions in Reply of the Applicant for hearing on 11 June 2026 dated 9 June 2026 (FDN 37). 176 Exhibit A6: Fourth Affidavit of David James Rogers dated 09 June 2026 (FDN 36) at [11.1]. 177 See further, Exhibit R3: First Affidavit of Andrew Nicholas Wesley Bullock dated 19 May 2026 (FDN 8) at [11]; Submissions in Reply of the Applicant for hearing on 11 June 2026 dated 9 June 2026 (FDN 37) at [71]. -- 26 of 41 -- [2026] SASC 95 Gray J 25 reaching such a view. Considering the matter on an interlocutory basis, the concept of reasonableness embodied in cl 6.1 of the DMA may include a requirement to act reasonably having regard to the rights and interests of the other contracting party, or, at the least, to consider and evaluate the interests of the other contracting party. 92 Considering the matters advanced in respect of the alternative basis for the termination, I consider that there is strength in the contention advanced by the respondents that there is an independent right of termination in cl 2.5(a)(iii). I also consider that the respondents contentions on the issue of a fraud on the power conferred upon the applicant pursuant to cl 2.5(a)(iii) and cl 6.1, in respect of the applicant’s conduct concerning the draft Project Budget at the PCG and by reason of non-compliance of the applicant with the requirement to act reasonably as stipulated in cl 6.1, are reasonably arguable. However, I do not consider that the respondents have provided significant evidence concerning the more recent evidence of Mr Rogers in relation to the condition precedent being satisfied in February 2022.178 93 I find there is a strong prima facie case for the claim to declaratory relief based upon the invalidity of the first Notice of Termination and the allegations of fraudulent conduct, and the other matters raised concerning fraud on a power. In respect of the alternative basis for termination, set out in the second Notice of Termination I also find that there is a prima facie case. I find that there is force in that case as the respondent has not produced significant evidence concerning the alleged earlier satisfaction of the condition precedent in February 2022. Thus, in considering this matter, I consider there is a strong prima facie case for the claim to declaratory relief. 94 In finding that there is a strong, serious question to be tried or a strong prima facie I have considered each of the grounds for termination advanced by the respondents. I have also considered the answers of the applicant to each of these grounds. These are matters to be weighed together with the balance of convenience factors. I have had regard to declaratory relief being discretionary remedy. It is relevant to consider that for the applicant to succeed in its claim for primary declaratory relief the applicant is likely to need to establish that each and every basis upon which the respondent seeks to rely to justify the termination by reason the Notice of Termination dated 29 April 2026 are not made out. The applicant by reason of the nature of the declaratory relief sought179 would also need to establish that the DMA remains on foot. For this reason, the validity of the grounds for termination set out in the second Notice of Termination dated 2 June 178 See further, Exhibit A6: Fourth Affidavit of David James Rogers dated 09 June 2026 (FDN 36) at [11.1]; Submissions in Reply of the Applicant dated 14 June 2026 (FDN 41) at [11]; Submissions in Reply of the Applicant for hearing on 11 June 2026 dated 9 June 2026 (FDN 37) at [71]. 179 The applicant seeks, inter alia, a declaration that the First Respondent’s purported termination of the Development Agreement by its Notice of Termination dated 29 April 2026 was invalid and that the Development Agreement remains on foot; see Oliver Hume Property Funds (Hackham) Pty Ltd, ‘Originating Application’, 18 May 2026, CIV-26-006365 (FDN 1), order 3. -- 27 of 41 -- [2026] SASC 95 Gray J 26 2026 are also relevant, and to obtain the declaratory relief sought the applicant would need to establish that the grounds of termination put forward in the second notice of termination are not made out. Balance of convenience factors including whether damages are an adequate remedy 95 Central to the submissions of the parties concerning the balance of convenience factors are the financial implications for each party and for the Onkaparinga Heights development which will follow from the grant or refusal of injunctive relief. Another significant factor concerns the breakdown of the relationship between the parties. As indicated above, the parties took different positions in relation to these matters and also in relation to the question of whether damages are an adequate remedy. The parties accepted that the question of whether damages are an adequate remedy is a matter to be weighed together with other balance of convenience factors.180 Further, as the applicant submitted the fact that damages may be an adequate remedy does not operate as a bar to injunctive relief.181 Rather, this is a matter to be weighed in the balance. Financial implications of the grant of injunctive relief 96 In relation to the question of balance of convenience, central to the dispute between the parties is the question of the finance available in respect of the project. 97 The background of the financial arrangements is that YAS, as the Owner, was required to fund the development project. It did so through a finance facility entered into on 25 May 2023, in the name of OVAFS Pty Ltd (‘OVAFS’), being a holding company for the entities holding the land (the ‘Metrics Loan Facility’).182 MCH Agency Services Pty Ltd as Agency and Security Trustee (‘Metrics’) provided the finance. The original debt was $17,730,000,183 this was increased to $32,674,950 on 29 November 2024 and then, in December 2025, by $5 million to $38,250,000.184 Under the Metrics Loan Facility, the termination date of the facility was 19 May 2026, by which time OVAFS was required to pay all outstanding amounts together with all accrued unpaid interests and fees due and payable. As indicated above, YAS sought to terminate the DMA on 29 April 2026. The originating application seeking interlocutory and final relief was filed some 19 days later on 18 May 2026. This was the day before the Metrics Loan Facility was due to expire. A week prior to that on 7 May 2026, Metrics had written to both the respondents and Oliver Hume informing them that, due to the dispute between the parties, there was no appetite to consider an extension of the Metrics Loan Facility. Metrics also stated that it required the repayment of the outstanding 180 Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156, at [61]-[66]; Hyde v Hyde [2026] SASCA 13. 181 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 (Mason ACJ). 182 Summary of Argument of the Respondents filed on 2 June 2026 (FDN 25) at [3]. 183 Exhibit R5: Second Affidavit of Hatem Shahin dated 21 May 2026 (FDN 14) at [30]. 184 Exhibit A3: First Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [60]; see further, Summary of Argument of the Respondents filed on 2 June 2026 (FDN 25). -- 28 of 41 -- [2026] SASC 95 Gray J 27 funds of $38.25 million on 19 May 2026.185 Metrics then sent a notice of default and demand on 1 June 2026, which was expressed as a final notice. 98 The respondents contend that finance will not be available for the development if the DMA remains on foot with Oliver Hume as the developer as the relationship between Mr Shahin and Oliver Hume has irretrievably broken down. On that basis, the respondents submit that the Owner will only be able to proceed with obtaining finance with another financier if there is a developer other than Oliver Hume. Mr Shahin indicates that he has already engaged another developer.186 99 The evidence put forward by the respondents and in particular the evidence contained in the third affidavit of Mr Shahin187 indicates that Labarssa Capital (the ‘Owner’s financier’) has agreed to advance funds for the totality of the project in three stages. The evidence put forward by the respondents asserts that the proposed funding agreement is conditional on the project being carried out using the Owner’s development methodology. It is said that the proposed stages are firstly to settle on the third tranche of land (which settlement was ultimately finalised on 26 and 29 May 2026). The second stage is to discharge the Metrics facility, and the third stage is to provide the project with a construction facility from early July 2026.188 If the Owner is prevented from continuing the development using the Owner’s development methodology by reason of an injunction being granted, the respondents contend that the Owner’s financier will view this as an event of default or some other breach by the Owner and it is likely that the Owner’s financier will demand immediate repayment of the funds that the Owner’s financier has advanced. These funds are currently secured over the Tranche 3 land. Given the importance of the Tranche 3 land, this consequence is said to materially impede the development potential of the Owner’s land. It is said to also require significant amendments to the staging and layout of the development. These matters are said to come at further cost and delay and may prevent further development of the land by the Owner.189 100 A further consequence is said to be that the Owner’s financier will not advance the Owner funds to refinance the Metrics Loan Facility which will mean that Metrics will likely seek to enforce its security and sell the Owner’s land and the consequences of this will deprive the Owner of the efforts made in relation to that land over the course of the last 10 years.190 101 Against these matters, the applicant contends that the respondents have not put on evidence of how much debt the respondents will take on, on what terms 185 Exhibit A3: First Affidavit of David James Rogers dated 19 May 2026 (FDN 6), Exhibit DJR-1 (FDN 12) at p 223, p 1090. 186 Exhibit R5: Second Affidavit of Hatem Shahin dated 21 May 2026 (FDN 14) at [63.6]; Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [82]. 187 Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21), see in particular [80]-[81]. 188 Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [80]. 189 Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [81.1]. 190 Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [81.2]. -- 29 of 41 -- [2026] SASC 95 Gray J 28 debt will be taken on, and in what time frame. The applicant contends that these matters are necessary so as to enable an assessment of whether there will be sufficient equity in the project at the time of judgment to satisfy an award of damages. 102 The applicant also challenges the evidence of the respondents to the extent that the respondents assert that only the respondents can continue with the project. The applicant points to there being no evidence of the respondents having obtained finance to fund the balance of the development or the terms of any finance. Further, the applicant submits there is no evidence in the nature of a feasibility study or budget as to the respondents’ proposed development and there is no evidence of the structure of the respondents’ proposed development and further, there is no evidence of the respondent having engaged a developer. The applicant refers to Mr Shahin’s assertions as to these matters as being inconsistent and unsupported by the documents.191 103 The applicant contends that the only reason the project is currently suffering financial difficulties is that the respondents sought to sabotage the Metrics Loan Facility.192 On the applicant’s case, this was a calculated and engineered situation brought about by Mr Shahin so the respondents could force the Court’s hand on an application to restrain termination by setting up the submission that it now makes about the lack of finance available for the project to continue under the development agreement.193 The applicant contends that it has the capacity and relationships so as to enable the rectification of the project’s finance problems which Oliver Hume suggests Mr Shahin has brought about.194 104 The applicant submits that it should be afforded the opportunity in the face of a purported termination which is entirely without merit to seek to obtain the necessary finance given, and that the difficulties with finance have, on the applicant’s case, been brought about entirely by the conduct of Mr Shahin. The applicant also relies on evidence195 which indicates that Oliver Hume has already been able to obtain a letter of comfort from a new financier in the time available and has access to some $8 million to continue funding the project pending the Developer’s proposed financier’s approval.196 191 In particular the applicant refer inter alia to Exhibit R4: First Affidavit of Hatem Shahin dated 19 May 2026 (FDN 10) at [9]; Exhibit R5: Second Affidavit of Hatem Shahin dated 21 May 2026 (FDN 14) at [63.6]; Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [75]-[80]-[82]; Exhibit R7: Fourth Affidavit of Hatem Shahin dated 02 June 2026 (FDN 27) at [2], [5], [8] and [9]-[13]. 192 Exhibit A3: First Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at 223, at [147]-[152]. 193 Submissions in Reply of the Applicant filed 10 June 2026 (FDN 37) at [60]. 194 Exhibit A3: First Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [2]-[4], [153]-[154]; Exhibit A4: Second Affidavit of David James Rogers dated 20 May 2026 (FDN 13) at [14]-[16]; Exhibit A5: Third Affidavit of David James Rogers dated 01 June 2026 (FDN 23) at [19]-[39], [57], [63], [71], [77] and [89]. 195 Exhibit A6: Fourth Affidavit of David James Rogers dated 09 June 2026 (FDN 36) at [18]. 196 Submissions in Reply of the Applicant filed 10 June 2026 (FDN 37) at [60]. -- 30 of 41 -- [2026] SASC 95 Gray J 29 105 The effect of the applicant’s submissions197 is also that if the injunction is granted and the development agreement continues in force then Metrics may continue to fund the Onkaparinga Heights development,198 or the applicant may find another funder, as Oliver Hume is experienced in obtaining finance. In contrast, the applicant asserts that the proposal put forward by the respondents is “effectively destructive” of the applicant’s ultimate claim to enforce the development agreement and to have the benefit of the agreement that Oliver Hume suggests was fairly struck between the parties on commercial terms.199 106 The applicant relies upon an email from Metrics dated 7 May 2026 which inter alia provides as follows:200 It is apparent to us, from the Notice of Termination and communications we have had from both parties in relation to it, that there is material dispute between the parties to the Development Agreement. We do not comment on the merit of either side’s position in respect of that dispute nor do we wish to engage in any further communication in respect of it. Our position is that, in light of the dispute, we have no appetite to consider an extension of the Maturity Date, or any period of forbearance and, as such, we require repayment of the Secure Money in full by no later than 19 May 2026. We expressly reserve all rights of the Finance Parties under the Finance Documents in connection with the Default that will occur if the Secured Money is not repaid in full on that date. 107 On 19 May 2026, YAS contacted Metrics to provide an update on refinancing and to request Metrics to provide a forbearance for a further four weeks. Mr Shahin indicates in his affidavit that no response to that communication has been received.201 The respondents accordingly remain in default of the Metrics Loan Facility and assert that penalty interest has been charged since 4 May 2026, at the rate of $4000 per day.202 108 Mr Shahin indicates that he has entered into a new facility with a new financier and that the new financier has provided finance of part of that new facility of over $7.5 million for the settlement of the Tranche 3 land contracts.203 Two of those land contracts settled on 26 and 27 May 2026 and one settled on 29 May 2026. The Owner’s Financier now has security over the Tranche 3 land pursuant to the new facility.204 109 I accept that the information and details of the finance available with the Owner’s financier is limited. I accept the validity of a number of the criticisms 197 See in particular, submissions on 04 June 2026 at T58.29-59.31. See also, T60.4-61.6. 198 Exhibit A4: Second Affidavit of David James Rogers dated 20 May 2026 (FDN 13) at [14]. 199 See in particular T60.38-61.6. 200 Exhibit A3: First Affidavit of David James Rogers dated 19 May 2026 (FDN 6), Exhibit DJR-1 (FDN 12) at p 1090. 201 Exhibit R5: Second Affidavit of Hatem Shahin dated 21 May 2026 (FDN 14) at [48]. 202 Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [72]. Penalty interest of $4000 per day since 4 May 2026 is also found in the Summary of Argument of the Respondents filed on 2 June 2026 (FDN 25) at [32], [85]. The Metrics facility figures and dates at para [95], see also FDN 25 at [3], [27], [31]. 203 Summary of Argument of the Respondents filed on 2 June 2026 (FDN 25) at [33]. 204 Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [17.3]. -- 31 of 41 -- [2026] SASC 95 Gray J 30 advanced by the applicant concerning the lack of detail in respect of that evidence. However, my task on this urgent interlocutory application is not to make final factual findings as to the finance available but rather to make an appropriate assessment of risk and to make a comparative assessment of the risk considering the consequence of error based upon the evidence before me and drawing any appropriate inference from that evidence or the lack of evidence.205 Matters which may be destructive of the subject matter of the action and of parties’ defence to a claim need to be weighed. It is relevant for me to question whether a refusal of injunctive relief would render final relief nugatory such that the balance may strongly favour the preservation of the status quo. I would not find on the evidence before me that the applicant has insufficient prospects of financial recovery of damages if successful at trial. 110 Whilst there is a lack of detail in relation to the finance that is available to the Owner from the Owner’s financier, this is a matter that needs to be weighed in the balance in the context of the risk to both parties if an injunction is granted and the parties are required to continue under the DMA. The previous financier of the Onkaparinga Heights development, Metrics, has refused to further fund the development and states amongst other things that there is a material dispute between the parties to the Agreement.206 The terms of the email from Metrics dated 7 May 2026 does not demonstrate an appetite to continue funding the Onkaparinga Heights development under the DMA between the parties.207 111 The Owner’s financier has already funded the further purchase of land to the sum of some $7.5 million. The applicant’s evidence considered at its highest in relation to further financing relies upon the potential for Metrics to continue to finance or refinance the development should the injunction be granted and to the letter of comfort that has been provided from the proposed Developer financier, and to the potential for another financier to be obtained.208 112 Considering the question of the financial arrangements overall and having regard to the potential implications of the caveats upon those financial arrangements, none of the arrangements put forward by the parties suggest that there will be a completely satisfactory resolution to the financial difficulties facing the Onkaparinga Heights development whether the injunction is granted or not. There is a lack of detail provided concerning the respondents proposed financial arrangements. Further, the arrangements offered by the respondents may well be affected by the caveats and the mortgages held by Oliver Hume. That said, the Owner has engaged an alternative financier who has funded the purchase of the 205 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. 206 Exhibit A3: First Affidavit of David James Rogers dated 19 May 2026 (FDN 6), Exhibit DJR-1 (FDN 12) at p 1090. 207 See however, Exhibit A4: Second Affidavit of David James Rogers dated 20 May 2026 (FDN 13) at [14]. 208 Exhibit A6: Fourth Affidavit of David James Rogers dated 09 June 2026 (FDN 36), Exhibit DJR-5 at p 108. -- 32 of 41 -- [2026] SASC 95 Gray J 31 Tranche 3 land. Oliver Hume has a letter of comfort, and the potential of other financing. Oliver Hume has not engaged an alternative financier. 113 I consider that in weighing the balance of convenience factors that to grant the injunction and require the parties to continue under the DMA would be to require the parties to continue in an agreement which currently has no engaged financier to fund the project the DMA. 114 The risk of injustice is something I must consider even though evidence is in a number of respects incomplete. I find there would be difficulty with requiring parties to continue in a relationship for the development of land under an agreement that currently has no financier. On balance, considering the matters at this interlocutory stage, I consider that the respective financial arrangements somewhat favour the refusal of interlocutory relief. Given that both the position of the applicant and the position of the respondents concerning financial arrangements do not offer a solution that would see the Onkaparinga Heights development securely funded, I do not place significant weight on this matter but rather consider that it is a matter to be weighed in the balance together with the other balance of convenience considerations, which must be considered in the context of the strength of the applicant’s claim for primary relief. Irretrievable breakdown of the relationship between the Owner and the Developer 115 It is not in dispute between the parties that the effect of a grant of an interlocutory injunction would be to require the parties to continue in their contractual relationship notwithstanding that there has been a degree of breakdown in that relationship. The respondents point to decisions such as JC Williamson,209 that to grant the injunction would be to require the parties to specially perform their obligations under the DMA and that this may require a degree of supervision by the Court. I accept as the respondents contend and for the reasons set out in JC Williamson that in circumstances where the continued supervision of the Court is likely to be necessary, a grant of injunctive relief may be undesirable.210 However, I also accept that, as the applicant contends relying upon the more recent decisions that where the grant of injunctive relief may involve a degree of supervision by the Court arising out of the maintenance of the relationship between the parties, this is no longer necessarily to be regarded as such a strong factor against the grant of interlocutory relief.211 Whilst the consequence of a breakdown of a commercial relationship will not necessarily operate as a bar to injunctive relief, the appropriateness of injunctive relief is dependent, upon the specific circumstances of the matter and is a matter to be weighed in the balance. 209 (1931) 45 CLR 282. 210 JC Williamson Ltd v Lukey (1931) 45 CLR 282 at 299. 211 That is, in comparison to the principles set out in JC Williamson. See Submissions in Reply of the Applicant for hearing on 11 June 2026 dated 9 June 2026 (FDN 37) at [11]. See further, Bingham v 7- 11 Stores [2003] QCA 402, at [10] (Williams JA); Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 46-47 (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ). -- 33 of 41 -- [2026] SASC 95 Gray J 32 116 The respondents submit that the breakdown of the relationship is irretrievable. The respondents further submit that requiring two parties to continue to work together on a development on which is, on the documents before this Court, likely to continue for a number of additional years in circumstances where the parties cannot agree on fundamental issues impacting the development will cause ongoing conflict.212 Further, the respondents contend that the availability of dispute resolution process under the DMA will not ensure the effective resolution of the parties difficulties and the respondents submit that to suggest that these dispute resolution processes will assist shows a complete disconnect from the reality of the situation between the parties. Further, the numerous allegations of fraudulent conduct made by the respondents against the applicant is indicative of a complete breakdown of trust between the parties. 117 The applicant refers to the fact that the parties may have locked horns in the past, and that Mr Shahin has seen fit to make unmeritorious allegations against Oliver Hume involving dishonesty as being no bar to the parties being required to continue to work together within the structures of the DMA.213 However, even on the submissions of the applicant, it is accepted that requiring the parties to work together under the current DMA in the context of the current breakdown of the relationship would be something that would need to be compelled through the grant of an injunction and compelled in circumstances where there is no currently available financier for the project. 118 Mr Shahin’s attempt to link the timing of the PCG meeting on 2 December 2025, to a notice given by him on 6 November 2025 in respect of the purported determination of a different project at Golden Grove for a different reason is said by the applicant to be “mere speculation infected by an unnatural suspicion”.214 This submission is indicative of the nature of the breakdown in the relationship of trust and confidence between the parties. 119 The evidence before the Court already indicates that one financier who was funding the project and was invested in the project by reason of that funding had no appetite to extend the funding in circumstances where there was a breakdown in the relationship. The applicant accepted in submissions that if the injunction were to be granted requiring the parties to work together and no further funding was forthcoming, then the parties could come back to Court. However, that submission exemplifies in some ways the anticipated difficulty with the grant of injunctive relief given the nature of the breakdown in the relationship between the parties combined with the lack of finance.215 It is already the case that, notwithstanding that the application for injunctive relief will be determined, the parties foreshadowed during the hearing of these proceedings further Court 212 Summary of Argument of the Respondents filed on 2 June 2026 (FDN 25) at [91]. 213 Summary of Argument of the Applicant filed on 2 June 2026 (FDN 24) at [62]; Exhibit A5: Third Affidavit of David James Rogers dated 01 June 2026 (FDN 23) at [72]. 214 Summary of Argument of the Applicant filed 9 June 2026 (FDN 37) at [11]. 215 T64.33-65.07. -- 34 of 41 -- [2026] SASC 95 Gray J 33 proceedings between them concerning the caveats that have been lodged on the land.216 120 Whilst there is force in the submission advanced by the applicant that parties should be continue to be bound to the terms of the contract that they have agreed and that they should not readily be released from those obligations due a breakdown in a relationship, that is matter which in the context of this litigation needs to be weighed in the balance with other matters. These other matters include, inter alia, the already anticipated further litigation between these parties whether the injunction is granted or not.217 121 I accept the validity of a number of the criticisms that the applicant makes of the respondents submission that YAS should not be forced to remain yoked to Oliver Hume under the DMA because YAS does not agree with Oliver Hume’s methodology and seeks now to pursue its own methodology, and does not wish to become indebted to the extent anticipated under the current projected indebtedness. These criticisms are based upon the lack of detail contained in the alternative methodology put forward by YAS which does not contain significant detail of the alternative extent of indebtedness. That said, however, the continued fractured and litigious nature of the relationship between the two parties currently before the Court needs to be assessed and weighed in the balance. 122 I consider based upon a consideration of a number of the matters emerging from the evidence that neither party offers a satisfactory commercial resolution whereby the relationship will be terminated without the need for ongoing disputes should the injunction not be granted. Similarly, I consider that the likelihood of ongoing and increasing disputation between the parties is likely to occur should the parties be required to continue in a commercial relationship under a Development Management Agreement when there is a clear breakdown in the relationship of trust and confidence between the parties and there is a complete lack of a financier being ready and willing and able to fund the Development under the DMA. 123 The undisputed evidence before the Court is that the previous financier Metrics, had no appetite to continue as financier in the context of the material dispute between the parties.218 The matter for me to weigh in the balance is which of these two alternative scenarios, neither which is desirable, is less likely to cause injustice having regard to the potential outcome of the substantive dispute, and the other balance of convenience factors. I find that there is limited prospects of these parties being able to work together. The relationship of trust and confidence has broken down. This has occurred in a context where pursuant to the DMA, the Developer was to act in some ways as an agent for the Owner concerning the 216 Those proceedings have now been brought: see matter CIV-26-007673. 217 Accepting of course that should an injunction be granted requiring the parties to work together, Oliver Hume may reconsider its position in relation to the caveats. However, on that scenario there remains the issue of further proceedings if financing cannot be obtained. 218 Exhibit A3: First Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at p 1090. -- 35 of 41 -- [2026] SASC 95 Gray J 34 relevant land. I place significant weight upon the likely inability of the parties to work together in considering the balance of convenience. As I discuss further below this difficulty is compounded by the decision of Metrics to not continue funding. Whether damages are an adequate remedy 124 The respondents contend that Oliver Hume has provided no evidence or satisfactory reason as to why damages are not an adequate remedy should Oliver Hume be successful in obtaining final relief.219 The respondents assert that Oliver Hume has already given an estimate of its damages claim being in the amount of $35 million.220 The respondents assert that this amount is the amount put forward by Oliver Hume as representing what Oliver Hume says is its share of the projected profit from the project.221 The respondents claim that this projected profit is inconsistent with the estimate of the previous projected profit figures for the project which were some $20 million, of which Oliver Hume was to receive 50 per cent. However, the respondents rely upon these figures as indicating that if the Court was to determine at the final hearing that specific performance was not available to Oliver Hume, but that Oliver Hume was entitled to relief, Oliver Hume could be compensated by a way of damages. The respondents assert that relief in the form of damages will be the appropriate type of relief at a final hearing as the parties to this matter are unable to work together.222 125 Against these matters the applicant asserts that the reliance placed upon the projection of profits presents difficulty as these matters are based on feasibility studies which are in effect only projections and that assessing profits at this stage of the proceedings can be “fraught and speculative”.223 Further, the applicants point to the lack of information put forward by YAS concerning YAS’s assessment of its likely profit.224 Oliver Hume contends that as the respondent have not put on evidence of how much debt the respondents will, under their proposal be taking on and on what terms and in what time frame, it is not possible to make an assessment as to whether there will be sufficient equity in the project by the time of judgment to satisfy any award of damages.225 Oliver Hume also points to the significant contribution Oliver Hume has made to the Onkaparinga Heights development.226 126 I accept the position put forward by both parties that whether damages are an adequate remedy may be considered as part of the balancing exercise rather than 219 Summary of Argument the Respondents filed 2 June 2026 (FDN 25) at [76.1]. 220 Summary of Argument of the Respondents filed on 2 June 2026 (FDN 25) at [76.1], [77]; see also, Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [166]–[167], [175]. 221 Summary of Argument of the Respondents filed on 2 June 2026 (FDN 25) at [77]. 222 See further, Summary of Argument of the Respondents filed on 2 June 2026 (FDN 25) at [77]. 223 Exhibit A3: First Affidavit of David James Rogers dated 19 May 2026 (FDN 6) at [82]-[108]. See further, Submissions in Reply of the Applicant for hearing on 11 June 2026 dated 9 June 2026 (FDN 37) at [47]. 224 Summary of Argument of Applicant filed on 9 June 2026 (FDN 37) at [48]. 225 Submissions in Reply of the Applicant for hearing on 11 June 2026 dated 9 June 2026 (FDN 37) at [50]. 226 Exhibit A5: Third Affidavit of David James Rogers dated 01 June 2026 (FDN 23) at [8], [20], [21] and [26]-[28]. -- 36 of 41 -- [2026] SASC 95 Gray J 35 as a threshold requirement.227 The adequacy of damages as a remedy needs to be considered in the context of the applicant’s primary position that it seeks restoration of its position pursuant to the DMA and restoration of the contractual relationship under the DMA, so that it may continue as the Developer in respect of the Onkaparinga Heights development. 127 I accept that the assessment of damages will be complex as if Oliver Hume were successful in the claim for final relief, an assessment of damages would need to consider projected profits. However, I do not consider that Oliver Hume has established that damages are not an adequate remedy for financial loss. If Oliver Hume establishes an interest in relevant land this will be protected by the caveats lodged. I accept that this finding does not bar injunctive relief and that it is a matter to be weighed together with the other factors. 128 In reaching this conclusion I note, as was accepted by Oliver Hume at the hearing,228 that as Oliver Hume has issued caveats over the land other than in respect of the Tranche 3 land and also hold mortgages. As a consequence, Oliver Hume presently holds some security to protect its position in respect of that land. 229 Any caveatable interest in the relevant land and any valid mortgages will protect Oliver Hume’s interest in the land. In respect of their other interests, including in maintaining their position under the DMA I accept that if Oliver Hume were successful in obtaining the primary relief they seek in the substantive proceedings and were to seek specific performance, then given the change in position by that time it is unlikely that they would be restored to their position of Developer under the DMA. However, even considering all these matters, I find that Oliver Hume has not established that damages are not an adequate remedy in that respect of the relevant loss they are likely to claim.230 Other balance of convenience matters 129 The applicant submits that the way to ensure that the agreement under the DMA and the Onkaparinga Heights development proceeds is to enjoin the respondents from resiling from the DMA on what is said to be spurious grounds and to allow funding to be found which accommodates the DMA and is acceptable to Oliver Hume having regard to the security which Oliver Hume says it is entitled, under the mortgages and charges and which form the basis of the caveats which 227 Submissions in Reply of the Applicant for hearing on 11 June 2026 dated 9 June 2026 (FDN 37), at [45]; See further, Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [67] (Dowsett, Foster and Yates JJ). 228 T 187.20-189.37. 229 I note that the respondents have challenged the position put forward by Oliver Hume and suggest that Oliver Hume does not have a caveatable interest. Neither party has sought at this urgent injunctive hearing to make detailed submissions concerning the nature of the caveatable interest, although, the caveats have been put in evidence before this Court. Neither party sought at the hearing of this matter to have the validity of the caveats determined in advance of the determination of the injunction application: at T 225.26-226.2. A separate application was brought and urgent hearing sought in respect of the caveats after this matter was reserved. 230 Summary of Argument of the Respondents filed on 2 June 2026 (FDN 25) at [92]–[93], that is the loss, other than the claimed interest in the land. -- 37 of 41 -- [2026] SASC 95 Gray J 36 Oliver Hume indicates are validly lodged in respect of the land other than the Tranche 3 land.231 130 The applicant rejects the claims that Oliver Hume’s actions in protecting its securities and lodging the caveats “blows up from a commercial perspective the ability to refinance”.232 Oliver Hume submits that this submission should be ignored in circumstances where it was within the power of the respondents to produce details of alternate development proposals and financing and that the respondents have failed to do so. 131 The applicants submit that the respondents have not thought through its purported termination of the DMA and that the respondent must have thought it could sabotage the Metrics Loan Facility and then put in place other arrangements, such that the project could only proceed by way of an alternate proposed development and that the balance of convenience would favour the respondents no matter how spurious its ground for termination. The applicant submits that that strategy is fundamentally flawed in light of Oliver Hume’s security position. 132 The applicant submits that the only way forward for the project is for the DMA to continue on its terms and an injunction to be granted pending trial to facilitate that happening. The applicant also contends that the respondents have not obtained any approvals from council, state government or utilities and infrastructure bodies and further the respondents have no way to obtain finance without Oliver Hume’s co-operation under its nominee charges.233 The applicant submits that there is no reason to diminish the value of the several undertakings it has offered.234 I have regard to those matters and the undertakings offered. 133 The respondents contend that it is progressing the Development since termination of the DMA, including: 1. Fundamentally changing the design by increasing the allotments in the northern parcel of the Development, resulting in changes to the pricing, size, design, and entrance to the Development;235 2. Engaging with third parties to undertake revisions to the staging of the Development including to arrange the changes listed above;236 231 See further Submissions in Reply of the Applicant dated 14 June 2026 (FDN 41) at [18]. 232 T 180. 233 See further, Submissions in Reply of the Applicant for hearing on 11 June 2026 dated 9 June 2026 (FDN 37) at [58]. 234 The respondents further submit that the applicant’s undertaking as to damages is inadequate, the Oliver Hume group having profitability of around $2 million and no substantial landholding: Submissions in Reply of the Applicant for hearing on 11 June 2026 dated 9 June 2026 (FDN 37) at [57]) 235 Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [74.1]; Summary of Argument of the Respondents filed on 2 June 2026 (FDN 25) at [34.1]–[34.7]. 236 Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [74.2]; Summary of Argument of the Respondents filed on 2 June 2026 (FDN 25) at [34.1]–[34.7] -- 38 of 41 -- [2026] SASC 95 Gray J 37 3. Lodging and presenting an application with the relevant council for development approval.237 Any previous applications have been cancelled;238 4. Engaging with consultants to undertake the new masterplan design,239 with $600,000 of fees incurred to date paid to these consultants to progress the new development;240 5. Events have been scheduled to launch the development with council, builders and members of the public in July, August, and September 2026;241 6. A website is being created and marketing updates have been posted;242 7. YAS has engaged in discussions with two developers in respect of the Development who had expressed their interest in becoming involved and has appointed a developer.243 134 The further matters raised by the applicants and the respondents are matters to be weighed in the balance together with the other matters advanced by the parties. Conclusion 135 I have considered the detail of the matters raised by the parties and the detail of the submissions advanced by the parties and the extensive affidavit material filed. I have weighed the relevant matters and set out above my findings on central issues in contention. 136 Neither party to this proceeding has on my assessment of the balance of convenience factors put forward a satisfactory basis upon which the Onkaparinga Heights development could properly proceed. The difficulty with seeking to balance the relative risk of injustice to each party considering the matter at this interlocutory stage is that the interest of neither party will be served by a receiver being appointed and the Onkaparinga Heights development failing. Yet neither party offers a satisfactory resolution. 137 If an injunction were to be granted and the parties forced to continue under the Development Management Agreement, I consider assessing the matter at this stage that it is highly likely that the parties will continue in litigation and will simply not be able to work together. 237 Exhibit R4: First Affidavit of Hatem Shahin dated 19 May 2026 (FDN 10) at [9]. 238 Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [74.2]. 239 Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) and Exhibits HS-5 to HS- 17 at [74.3]. 240 Exhibit R4: First Affidavit of Hatem Shahin dated 19 May 2026 (FDN 10) at [9]. 241 Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [74.5]. 242 Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [74.5]. 243 Exhibit R5: Second Affidavit of Hatem Shahin dated 21 May 2026 (FDN 14) at [63.6]; Exhibit R6: Third Affidavit of Hatem Shahin dated 29 May 2026 (FDN 21) at [75] and [82]. -- 39 of 41 -- [2026] SASC 95 Gray J 38 138 I do not accept the applicant’s submission that granting the injunction is the only way the project can proceed. I consider that it is likely that no financier would have an appetite to fund the development under the current DMA between the parties given the irreconcilable differences between the parties and the likely disputes that will arise between the parties as to the suitability of any proffered finance. That is, even if there was a financier who was willing to make an offer of finance, it is unlikely that both parties would agree upon the terms of that finance and their respective obligations. 139 Whilst, I have considered carefully the applicant’s submission that if an injunction was granted and the parties were unable to obtain finance the parties could come back to Court, I consider that that approach would likely lead to further litigation. YAS, as the Owner is required to fund the development project. I do not consider it likely that Mr Shahin would be able to reach an agreement concerning finance acceptable to both Mr Shahin and the applicant. Alternatively, if the injunction is refused, I accept there is likely to be difficulty in the respondents obtaining finance given the current existence of the caveats over the relevant land other than the Tranche 3 land and there is already further proceedings which have been brought concerning those caveats. 140 In short, having regard to the relevant considerations which I have set out above and to the detailed submissions advanced by the parties and to the extensive affidavit material filed, whilst I consider there is no entirely satisfactory commercial outcome from either the grant or refusal of injunctive relief, I must determine which approach would minimise the risk of injustice arising following determination of the substantive claim, having regard to the balance of convenience factors. 141 I consider based upon the evidence before me that there is very limited prospect of the parties ever resuming a satisfactory commercial relationship that would not be characterised by ongoing litigation and further disputes. I do not consider that the grant of injunctive relief would maintain the integrity of the rights of parties pending final adjudication. Rather, I consider that the grant of injunctive relief would simply result in further litigation and disputes between the parties. I consider that the applicant has not established that damages are not an adequate remedy to protect Oliver Hume’s interest outside of any interest Oliver Hume may have in the land. I acknowledge that the refusal of the grant of injunctive relief is likely to mean that the applicant, even if successful at trial is unlikely to be restored to the position that it held under the DMA prior to the termination of that Agreement by the respondents. However, balancing the relevant matters, I consider the refusal to grant injunctive relief is appropriate. 142 I find as set out above, there is a strong prima facie case for the claim to declaratory relief in respect of the invalidity of the termination based on allegations of fraudulent conduct, and also in relation to the alternative basis for termination concerning a fraud upon the power. I accept that there is an interrelationship between the strength of the case to be tried and the balance of convenience factors. -- 40 of 41 -- [2026] SASC 95 Gray J 39 I accept that the balance of convenience factors needs to be considered in the context of the findings I have made concerning the strength of the serious question to be tried.244 143 I have found considering this matter at this interlocutory stage that in respect of each and every ground upon which the respondents rely to justify the termination that there is a strong prima facie case or a strong serious question to be tried that the termination was invalid. I consider that the applicant has established that the strength of the applicant’s case is such that it diminishes the weight to be placed on other balance of convenience factors. 144 I have considered the matters advanced by the parties concerning the balance of convenience. I have had particular regard to the financial implications for the parties concerning the grant or refusal to grant injunctive relief. I have also had regard to the applicant not having demonstrated at this interlocutory stage that damages are not an adequate remedy. Considering these matters together and weighting these matters and all the balance of convenience factors referred to by the parties together with the strength of the serious question to be tried, I find that the interlocutory relief sought should not be granted. 145 I consider that the balance of convenience factors do not favour the grant of interlocutory relief. Significant considerations in reaching this finding are that there is no identified financier to fund the project governed by the DMA, and the relationship of trust and confidence between the parties has irretrievably broken down. If the parties were to be required to work together, I consider there would be ongoing disputes and further and continued litigation. This would be a strong discretionary factor against not only the grant of interlocutory relief but also against the grant of any remedy of specific performance at the end of a trial in the event Oliver Hume were to be successful. 146 I consider that to the extent that the applicant has a caveatable interest in land its interest will be protected by the caveats and any relevant mortgage. In respect of the applicant’s other financial interest arising from the DMA the applicant has not established on this interlocutory application that damages are not an adequate remedy. 147 It follows that I would dismiss the application for injunctive relief to restrain the first respondent until trial or further order from acting upon its purported termination of the DMA. 148 I will hear the parties as to any other or further orders. 244 Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65] (Gummow and Hayne JJ). -- 41 of 41 --