YAS PROPERTY AND DEVELOPMENT PTY LTD v OLIVER HUME PROPERTY FUNDS (HACKHAM) PTY LTD [2026] SASC 103

Applicant: YAS PROPERTY AND DEVELOPMENT PTY LTD In Person Counsel: MR T DUGGAN KC WITH MS E KEYNES - Solicitor: COWELL CLARKE Respondent: OLIVER HUME PROPERTY FUNDS (HACKHAM) PTY LTD In Person Counsel: MR D WHITINGTON KC WITH MR L WICKS AND MR N DAY - Solicitor: JOHNSON WINTER SLATTERY Hearing Date/s: 24/06/2026, 26/06/2026 File No/s: CIV-26-007673 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. YAS PROPERTY AND DEVELOPMENT PTY LTD v OLIVER HUME PROPERTY FUNDS (HACKHAM) PTY LTD [2026] SASC 103 Judgment of the Honourable Justice Gray 1 July 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 - RELEVANT CONSIDERATIONS This is an interlocutory application for the removal of caveats and for the discharge of mortgages lodged over some sections of land within a development at Onkaparinga Heights. An issue in dispute on this application is whether the respondent is entitled to maintain caveats and mortgages over the land of the applicants by reason of rights granted to the respondent by the Development Management Agreement (“DMA”) and related charges. The respondent contends that the DMA remains on foot and was not validly terminated. There are three issues in dispute: (1) Whether or not the mortgages should be discharged having regard to the onus that the applicants bear, whether there is a prima facie case and where the balance of convenience lies. (2) Whether or not the mortgages should be discharged having regard to equitable principles of redemption, including the relevant onus that the applicants bear and the question of whether it is fair and just to discharge the mortgage having regard to the substituted security offered by the applicants. (3) Whether or not the caveats should be discharged having regard to the onus that the respondent bears, whether there is a serious question to be tried as to the caveatable interest and whether the balance of convenience favours the maintenance of the caveat. -- 1 of 21 -- The applicants contend that the mortgages should be discharged and the caveats removed. In relation to the relief sought and balance of convenience matters, the applicants emphasise urgency and prejudice, contending that the securities prevent refinancing of the Metrics facility and expose them to default, potential receivership, and loss of the development. The respondent contends that removal of the caveats or discharge of the mortgages would deprive it of valuable proprietary rights and priority security for a large claim, and that the applicants have not provided adequate substituted security or a sufficient evidentiary foundation to justify the relief sought. Held, ordering the discharge of the mortgages and the removal of the caveats: (1) A mortgage may confer a valid, indefeasible proprietary security which secures existing and future obligations. A mortgage may also secure an amount of damages if there was to be an award of damages. It is arguable that the wording of the mortgages supported such a claim, however, the case advanced by the respondent to suggest that the mortgages secure the damages sought is not strong. It follows that the applicants have established a prima facie case for discharge of the mortgages. [40] (2) The submission of the respondent that the proposed alternative security would deprive the respondent of its security and leave it fundamentally disabled from pursuing a substantial claim for damages is not accepted. The substituted security is a reasonable estimate of any amount owing under the mortgages and charges in the event that the mortgages secure the claim for damages. The comparative prejudice is asymmetric, such that refusing relief creates a greater risk of injustice than granting it. If the securities remain, the development will be at risk through enforcement action, whereas if the securities are removed the respondent retains the protection of the substitute security and undertakings. [57], [58] (3) Whilst the respondent has established a serious question to be tried as to the asserted caveatable interest, the case in favour of such an interest is not strong. [78] (4) The balance of convenience considerations favour the removal of the caveats. [80] Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; Bradto Pty Ltd v Victoria (2006) 15 VR 65, applied. Robinson v Harman (1848) 1 Exch 850; Harvey v McWaters (1948) 49 SR (NSW) 173; Liberty Funding Pty Limited v Steele-Smith [2004] NSWSC 1100 ; Equus Financial Services Ltd v RMBL Investments Pty Ltd (1996) 22 ACSR 744; Stone v Leonardis (2011) 110 SASR 503 ; Cini v Pets Paradise Franchising (SA) Pty Ltd (2008) 102 SASR 177 ; Stone Living Pty Ltd v 3 Property Group 9 Pty Ltd [2020] ACTSC 149 ; Tolhurst v Crickett Pty Ltd [2001] NSWSC 1203 ; Maindream Projects Pty Ltd v Melbourne Construction and Management Co Pty Ltd [2001] QSC 136 ; Phoenician Holdings Pty Ltd t/as Cadmus Lawyers v Rahme [2012] NSWSC 1604 , considered. -- 2 of 21 -- YAS PROPERTY AND DEVELOPMENT PTY LTD v OLIVER HUME PROPERTY FUNDS (HACKHAM) PTY LTD [2026] SASC 103 Civil: Application GRAY J 1 This decision concerns an interlocutory application for the removal of caveats and for the discharge of mortgages lodged over some sections of land within a development at Onkaparinga Heights.1 I have considered all of the matters referred to by the parties in their written and oral submissions. I set out below in these reasons which were provided on an urgent basis the central issues in dispute and my findings in respect of these matters. 2 This interlocutory application arises in the context of proceedings brought on 17 June 2026 by the applicants. Those proceedings seek declarations that the applicants have performed all obligations and paid all monies owing under a Development Management Agreement (“DMA”).2 The DMA is dated 31 August 2021. It was entered into between Oliver Hume Property Funds (Hackham) Pty Ltd,3 and the first applicant, YAS Property & Development Pty Ltd.4 The Agreement concerns a large residential subdivision project at Onkaparinga Heights.5 The applicants to this proceeding are YAS and various other companies associated with YAS.6 Mr Hatem Shahin (“Mr Shahin”) is the sole director and shareholder of YAS (AUS) Pty Ltd, which is the sole owner of the shares in YAS.7 3 The division of responsibility under the DMA was that YAS, as landowner, 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. 4 This is the second set of proceedings brought by a party or parties to the DMA and related entities. On 18 May 2026, the first set of proceedings8 were brought by Oliver Hume who was the developer under the DMA. In the first set of proceedings Oliver Hume sought by interlocutory injunction to restrain YAS from 1 YAS Property and Development Pty Ltd, ‘Interlocutory Application (FDN 2)’, CIV-26-007673, 17 June 2026. That is the land described in the Affidavit of Hatem Shahin dated 17 June 2026 (FDN 3) at [4] (other than the Tranche 3 land as defined). See also, Affidavit of Hatem Shahin dated 24 June 2026 (FDN 8) at p 42. The mortgages being second mortgages. 2 YAS Property and Development Pty Ltd, ‘Originating Application (FDN 1)’, CIV-26-007673, 17 June 2026. 3 ‘Oliver Hume’ or ‘the Developer’. 4 ‘YAS’ or ‘the Owner’. 5 ‘the Onkaparinga Heights Development’. 6 Together ‘the applicants’. 7 Applicants’ Summary of Argument (n 11) at [6]. 8 Action number CIV-26-006365. -- 3 of 21 -- [2026] SASC 103 Gray J 2 acting upon the termination of the DMA.9 That injunction was refused (‘the interlocutory injunction decision’).10 5 An issue in dispute on this application is whether the respondent (“Oliver Hume”) is entitled to maintain caveats and mortgages over the applicants’ land by reason of rights granted to Oliver Hume by the Development Management Agreement (“DMA”) and related charges. Oliver Hume contends that the DMA remains on foot and was not validly terminated. 6 The applicants contend that the DMA was validly terminated (for alleged fraud, a fraud upon the power and pursuant to cl 2.5(c)). The applicants contend that the consequence of the termination is that no secured obligations or “secured money” remain and the mortgages should be discharged.11 They further submit that, at a minimum, there is a prima facie case that the DMA is no longer operative.12 The respondent disputes this. The respondent contends that the Court’s earlier interlocutory findings and the affidavit evidence of the respondent, establishes a strong prima facie case that the DMA was not validly terminated and continues to bind the parties, thereby sustaining its interests pursuant to the mortgages.13 7 On this application there is an issue joined between the parties as to the scope and construction of the mortgages and whether they secure the respondent’s alleged damages claim. The applicants contend that “secured money” is confined to debts or amounts presently or contingently owing and does not extend to unliquidated damages, especially where no money was owing at termination and no claim has been properly particularised.14 8 The applicants also contend that the respondent’s damages case, whether framed by reference to equity in the land or projected profits, is misconceived and unsupported by the contractual framework.15 9 The respondent submits that the securities are broadly expressed and extend to all obligations under the DMA, including damages for breach, and that it need only demonstrate an arguable entitlement at this stage rather than a final 9 Two notices of termination relying upon various grounds were considered in that proceeding. 10 See Oliver Hume Property Funds (Hackham) Pty Ltd v YAS Property and Development Pty Ltd [2026] SASC 95.The decision refusing to grant the interlocutory injunction is currently subject to an appeal: see Oliver Hume Property Funds (Hackham) Pty Ltd v YAS Property and Development Pty Ltd (Supreme Court of South Australia, CIV-26-008075, 1 July 2026). 11 Applicants’ Summary of Argument dated 24 June 2026 (FDN 9) at, [2], [8], [74] (‘Applicants’ Summary of Argument’); Applicants’ Written Submissions in Reply dated 26 June 2026 (FDN 13) at [4.3.1], [11]– [12], [15] (‘Applicants’ Submissions in Reply’). 12 Applicants’ Submissions in Reply (FDN 13) at [11], [14]. 13 Respondent’s Summary of Argument dated 24 June 2026 (FDN 10) at [27], [36] (‘Respondent’s First Summary of Argument’); Respondent’s Summary of Argument dated 26 June 2026 (FDN 11) at [3], [9] (‘Respondent’s Second Summary of Argument’). 14 Applicants’ Summary of Argument (FDN 9) at [8], [10]–[14], [84]–[87]; Applicants’ Submissions in Reply (FDN 13) at [4.3.2], [15]–[18]. 15 Applicants’ Summary of Argument (FDN 9) at [12]–[14], [102]–[103]; Applicants’ Submissions in Reply (FDN 13) at [18]–[20]. -- 4 of 21 -- [2026] SASC 103 Gray J 3 quantification.16 The respondent also submits that its interests under the nominee charges are broader than its interests under the mortgages. 10 The applicants offer substituted security which primarily comprises the payment of a monetary sum into Court, first ranking mortgages in respect of three parcels of land located in the southwest of the Onkaparinga Heights development, and undertakings as adequate protection for any claim Oliver Hume may advance. The respondent contends that the substituted security offered is illusory and materially insufficient.17 Oliver Hume estimates its damages as being some $35 million.18 11 In relation to the relief sought and balance of convenience matters, the applicants emphasise urgency and prejudice, contending that the securities prevent refinancing of the Metrics facility and expose them to default, potential receivership, and loss of the development.19 12 The respondent contends that removal of the caveats or discharge of the mortgages would deprive it of valuable proprietary rights and priority security for a large claim, and that the applicants have not provided adequate substituted security or a sufficient evidentiary foundation to justify the relief sought.20 Issues in dispute 13 There are three issues in dispute, these are: 1. Whether or not the mortgages should be discharged having regard to the onus that the applicants bear, whether there is a prima facie case and where the balance of convenience lies. 2. Whether or not the mortgages should be discharged having regard to equitable principles of redemption, including the relevant onus that the applicants bear and the question of whether it is fair and just to discharge the mortgage having regard to the substituted security offered by the applicants. 3. Whether or not the caveats should be discharged having regard to the onus that the respondent bears, whether there is a serious question to be tried 16 Respondent’s First Summary of Argument (FDN 10) at [26]–[28], [36]; Respondent’s Second Summary of Argument (FDN 11) at [2], [11]–[12]. 17 Applicants’ Summary of Argument (FDN 9) at [108]–[114]; Respondent’s Second Summary of Argument (FDN 11) at [1]. 18 Affidavit of David James Rogers dated 23 June 2026 (FDN 7) at [60]. See also, Respondent’s Third Summary of Argument (FDN 17) at [6]. 19 Applicants’ Summary of Argument (FDN 9) at [69]–[73], [109]; Applicants’ Submissions in Reply (FDN 13) at [29]–[33]. 20 Respondent’s First Summary of Argument (FDN 10) at [7], [39], [54]–[57]; Respondent’s Second Summary of Argument (FDN 11) at [1], [10]. -- 5 of 21 -- [2026] SASC 103 Gray J 4 as to the caveatable interest and whether the balance of convenience favours the maintenance of the caveat.21 14 I consider these matters below, firstly by reference to the question of the discharge of the mortgages and then by reference to the application to remove the caveats. The application to discharge the mortgages, and the equitable principles of redemption 15 In respect of the application to discharge the mortgages YAS bears the onus of establishing that the mortgages should be discharged. YAS must establish: 1. That there is a prima facie case for the discharge of the mortgage; and 2. That the balance of convenience favours the discharge of the mortgage.22 16 On the application to discharge the mortgage on the basis of equitable principles of redemption, the question is whether it is fair and just to discharge the mortgage having regard to the substituted security offered by the respondent.23 17 The applicants contend that there is a clear prima facie case for discharge of the mortgages because they secure no enforceable obligation. The applicants state that the DMA has been validly terminated, with the consequence that no “secured money” or “secured obligations” remain owing. Further, the applicants contend that the terms of the mortgages do not extend to unliquidated damages claims of the kind now asserted by the respondent.24 18 The applicants also contend that the respondent has failed to identify or particularise any ascertainable secured amount. The applicants submit that the respondent advances a speculative and misconceived claim based on equity or projected profits. The absence of any presently payable or properly contingent liability, coupled with the impugned validity and scope of the securities themselves, is said by the applicants to be sufficient to demonstrate that the mortgages lack a proper foundation and should be discharged.25 19 The applicants contend that the mortgages prevent refinancing of the Metrics facility, exposing the applicants to ongoing default, mounting penalty interest, and a real risk of enforcement action or receivership, which would likely destroy the 21 Cini v Pets Paradise Franchising (SA) Pty Ltd (2008) 102 SASR 177 at [51] (Bleby J); Stone v Leonardis (2011) 110 SASR 503 at [20]-[26] (White J). 22 Temwood Holdings Pty Ltd v Asean Australian Assets Pty Ltd [2000] WASC 84 at [21]-[23]; Transcript of Proceedings, YAS Property and Development Pty Ltd v Oliver Hume Property Funds (Hackham) Pty Ltd (Supreme Court of South Australia, Gray J, 26 June 2026) at 12.8-34; 35.1-35.20 (‘T’). 23 Liberty Funding Pty Ltd v Steele-Smith [2004] NSWSC 1100 at [24]-[35]. 24 Applicants’ Summary of Argument (FDN 9) at [8], [14], [74]–[75]; Applicants’ Submissions in Reply (FDN 13) at [4.3.1]–[4.3.2], [15]. 25 Applicants’ Summary of Argument (FDN 9) at [102]–[105]; Applicants’ Submissions in Reply (FDN 13) at [16]–[18]. -- 6 of 21 -- [2026] SASC 103 Gray J 5 development and significantly diminish the value of the land.26 The applicants submit that the respondent will suffer no comparable prejudice if the mortgages are discharged because the applicants have offered substituted security. 20 The substituted security offered includes cash paid into Court, a first-ranking mortgage over part of the land, and strict undertakings limiting dealings and encumbrances. These securities are said to provide protection for any arguable claim while preserving the value of the land.27 The applicants submit that refusing relief creates a significantly greater risk of injustice than granting it, given the asymmetry between the applicants’ risk of receivership and loss of the development and the protection provided to the respondent by the substituted security. 21 The applicants contend that they are entitled, at least on a prima facie basis, to redeem and procure discharge of the mortgages because no secured liability exists and there is at most, only a disputed and contingent liability of uncertain value. In such circumstances, the applicants contend that the Court may order discharge upon provision of reasonable substituted security rather than requiring payment of any asserted amount in full.28 22 The substituted security that the applicants offer comprises: 29 1. The respondent having the benefit of a first ranking security over approximately $10 million worth of land. 30 2. The payment of $1 million into Court by way of security; and 3. An undertaking to the Court on behalf of the applicants to the effect that they will not: 3.1 sell or transfer the land other than in the ordinary course of the first applicant’s business (being sales expressly contemplated by clause 6.3 of the Nominee Charges said to support the caveats); and 3.2 will not encumber the Onkaparinga Heights land held by the applicants beyond the amount of $83 million. 23 The applicants’ proposed undertaking to the Court to not encumber beyond $83 million, and to not sell the land, is said to provide the respondent with comfort that the applicants will be effectively “leaving” equity of in the order of $36 million 26 Applicants’ Summary of Argument (FDN 9) at [69]–[73], [109]. 27 Applicants’ Summary of Argument (FDN 9) at [108]–[114]; Applicants’ Submissions in Reply (FDN 13) at [6], [30]–[32]. 28 Liberty Funding Pty Ltd v Steele-Smith [2004] NSWSC 1100 at [29] (Palmer J). 29 Applicants’ Submissions in Reply (FDN 13) at [30]; Exhibit MFI-A9. 30 The validation of $10 million is based upon a valuation obtained by Oliver Hume. -- 7 of 21 -- [2026] SASC 103 Gray J 6 in the land. This amount is in addition to the respondent obtaining a first ranking mortgage.31 24 The applicants submit that where the validity or scope of the mortgage is in dispute the Court may require the substituted or alternative security to be such that it affords “adequate” or “reasonable” protection to the mortgagee, rather than insisting on redemption by payment of the mortgagee’s claimed amount.32 The applicants contend that the substituted security and undertakings satisfy any requirement for protection, such that the mortgages should be discharged without the need for payment into Court of the respondent’s disputed and unquantified claim.33 25 The respondent’s case is that the application to discharge the mortgages should be refused because the mortgages confer a valid, indefeasible proprietary security which secures existing and future obligations including if there was to be an award of damages and that the applicants have not met the high threshold required to justify interlocutory removal. The respondent points to the sanctity of registration absent fraud.34 The respondent emphasises that the applicants bear the onus on such an application, and cannot establish even a prima facie case given the Court’s earlier finding of a strong case that the DMA remains on foot; and accordingly, the secured obligations remain live.35 The respondent further submits that, in accordance with established principles, a mortgagor is not entitled to discharge a mortgage securing a contingent liability without paying into Court the full amount (or a proper estimate) of that liability, including costs and interest, which the applicants have not done.36 26 The respondent also contends that the applicants’ proposed substitute security is fundamentally inadequate and illusory when compared to the scale and nature of its secured claim, and cannot justify depriving it of its registered priority and enforcement rights.37 The respondent submits that removal would irreversibly strip it of valuable security and expose it to significant risk in pursuing a substantial damages claim, particularly in circumstances where the applicants propose to 31 Affidavit of Hatem Shahin dated 17 June 2026 (FDN 3) at [30]; Exhibit MFI-A9. 32 Applicants’ Summary of Argument (FDN 9) at [77]–[78], [106]; Applicants’ Submissions in Reply (FDN 13) at [4.1]–[4.3], [6]. Equus Financial Services Ltd v RMBL Investments Pty Ltd (1996) 22 ACSR 744 at 747-748 (Bryson J); Liberty Funding Pty Ltd v Steele-Smith [2004] NSWSC 1100 at [24]-[28] (Palmer J). 33 Applicants’ Summary of Argument (FDN 9) at [108]; Applicants’ Submissions in Reply (FDN 13) at [6]–[7]. See Liberty Funding Pty Ltd v Steele-Smith [2004] NSWSC 1100 at [24]-[28] (Palmer J); Project Research Pty Ltd v Permanent Trustee of Aust Ltd (1990) 5 BPR 11, 225. 34 Respondent’s Summary of Argument dated 29 June 2026 (FDN 17) (‘Respondent’s Third Summary of Argument’). 35 Respondent’s First Summary of Argument (FDN 10) at [50]–[51], [53]. 36 Respondent’s First Summary of Argument (FDN 10) at [52]. 37 Respondent’s First Summary of Argument (FDN 10) at [57]; Respondent’s Second Summary of Argument (FDN 11) at [1]. -- 8 of 21 -- [2026] SASC 103 Gray J 7 refinance and deal with the land on undisclosed terms, such that the balance of convenience decisively favours maintaining the mortgages in place pending trial.38 27 The respondent’s case is that the applicants are not entitled to invoke or obtain the benefit of the equity of redemption unless and until they fully satisfy the secured liabilities (including contingent liabilities), and that the present application improperly seeks to circumvent that settled principle. The respondent submits that the mortgages secure broad obligations, including claims for damages and costs, and therefore the applicants cannot compel discharge while any such liabilities remain unresolved or unsecured.39 28 The respondent contends that the orthodox principle is that a mortgagor seeking to redeem must either pay the secured amount or provide equivalent protection, and the respondent emphasises that where the applicants seek the “unusual advantage” of being freed from the mortgage before final determination of those liabilities, the Court should adopt a strict and conservative approach in favour of the mortgagee and against exposing it to risk.40 The respondent contends that the applicants’ proposal fails to meet this standard. Consideration in relation to the application to discharge the mortgages, and the equitable principles of redemption 29 The findings in this matter, like the findings made in the judgment on the injunction application brought in the earlier proceedings are interlocutory findings. One purpose of the interlocutory findings is to maintain the integrity of the rights of the parties pending final adjudication, not to determine ultimate rights, but to seek to minimise the risk of injustice.41 30 In the context of a serious question to be tried, as Gummow and Hayne JJ held in Australian Broadcasting Corporation v O’Neill:42 …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. 31 This formulation reflects a low threshold, requiring neither proof of probable success nor a final determination of rights. It is the applicants who bears the onus of establishing the prima facie case for discharge of the mortgages. The applicants contend that there is a clear prima facie case for discharge of the mortgages because they secure no enforceable obligation. The applicants state that the DMA has been validly terminated, with the consequence that no “secured money” or “secured obligations” remain owing. Further, the applicants contend that the terms 38 Respondent’s First Summary of Argument (FDN 10) at [54], [56]–[57]. 39 Respondent’s First Summary of Argument (FDN 10) at [52]. 40 Respondent’s Second Summary of Argument (FDN 11) at [7]–[8]. 41 Bradto Pty Ltd v State of Victoria [2006] VSCA 89; 15 VR 65 at [35] (Maxwell P and Charles JA). 42 Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65] (Gummow and Hayne JJ). -- 9 of 21 -- [2026] SASC 103 Gray J 8 of the mortgages do not extend to unliquidated damages claims of the kind now asserted by the respondent. 32 The respondent submits that even a prima facie case cannot be established by the applicants given the Court’s earlier finding of a strong prima facie case that the DMA remains on foot; and accordingly, the secured obligations remain live.43 33 On this interlocutory application, I consider that there are two difficulties with the position advanced by the respondent: 1. Firstly, a finding of a prima facie case, even a finding of a strong prima facie case, does not equate to a finding on the balance of probabilities. It follows that it is not inconsistent with the earlier finding of a strong prima facie case to make a finding of a prima facie case in this proceeding. There was some acceptance of this in the submissions advanced by counsel for the respondent.44 2. Secondly, the evidence before this Court on this hearing is different to the evidence that was before the Court when the previous interlocutory findings were made. One basis upon which the finding of a strong prima facie case for the invalidity of the termination was made in the previous proceeding, was that YAS and the other respondents in those proceedings had not provided significant evidence concerning the evidence of Mr Rogers in relation to the condition precedent contained in cl 2.5(a)(iii) of the DMA being satisfied in February 2022.45 Such evidence, has been provided in these proceedings.46 34 The effect of the new evidence provided on this proceeding considered together with all of the evidence provided in this proceedings is that the evidence that the termination of the DMA is invalid is not as strong as the evidence presented in respect of the application for an interlocutory injunction. 35 I do not accept on the evidence before me that the construction of the minutes of the meeting of 3 February 2022 are clear as the respondent contends considering both the terms of the minute as a whole and the other evidence before this Court on the issue of whether or not the draft feasibility study and project budget was approved in 2022.47 The terms of the minute of 3 February 2022 do not clearly indicate that the draft feasibility study and project budget was approved, rather that 43 Respondent’s First Summary of Argument (FDN 10) at [50]–[51], [53]. 44 T 70.35-71.18. 45 See Fourth Affidavit of David James Rogers dated 9 June 2026 (FDN 36) in CIV-26-006365 at [11.1]; Exhibit R4. 46 Second Affidavit of Hatem Shahin dated 24 June 2026 (FDN 8) at [36]-[41]. 47 First Affidavit of David James Rogers dated 19 May 2026 (FDN 6 in CIV-26-006365) at [86], [96], Exhibit DJR-1 at p 869; Third Affidavit of David James Rogers dated 01 June 2026 (FDN 23 in CIV- 26-006365) at [78]-[79]; Fourth Affidavit of David James Rogers dated 09 June 2026 (FDN 36 in CIV- 26-006365), Exhibit DJR-5 at pp 45-47; Second Affidavit of Hatem Shahin dated 24 June 2026 (FDN 8 in CIV-26-007673) at [37]. -- 10 of 21 -- [2026] SASC 103 Gray J 9 it was noted and that Scenario 1A would be progressed.48 The evidence now available and before me on this hearing casts some doubt upon the claim advanced by Oliver Hume that the draft feasibility study and project budget was approved on 3 February 2022.49 36 I do not consider that the findings on the interlocutory injunction application precludes a finding of a prima facie case for the discharge of the mortgages. The question of the validity of the termination will ultimately be a question for the trial. Considering the matter of the validity of the termination based on the currently available evidence, I find that there is a prima facie case that the termination was valid.50 37 On the basis of the evidence before me I find that the applicants have established a prima facie case for the discharge of the mortgages. In reaching this conclusion I have had particular regard to the evidence before me, which indicates that there is a prima facie case that the DMA was validly terminated by YAS by reason of non-compliance by Oliver Hume with clause 2.5(a)(iii) of the DMA, and also to the evidence concerning the scope of the interest protected by the mortgages. 38 The interpretation of the Owner Security Deed/Nominee Security Deed is the subject of a dispute between the parties. I have some doubt as to whether the terms of the Owner Security Deed/Nominee Security Deed extends to damages and contingent liabilities as contended by Oliver Hume for the following reasons: 1. In this case, the project was debt funded. That the Owner Security Deed/Nominee Security Deeds provide that the grantor grants a security interest in the Secured property to secure the payment of the Secured Money and the performance of the Secured obligations (cl 3.2). The nature of the interest is a fixed charge over Secured Property which is not personal property (cl 3.2).51 2. Clause 3.5 provides that the Secured party must discharge the Security, at the request of the Grantor, “when the Grantors obligations to pay the Secured Money and perform the Secured Obligations are satisfied”. 3. Cl 5.2(c) provides that: “Each representation and warranty survives the execution of this document and is deemed to be repeated with reference to the facts and circumstances on each day that money is owing 48 Fourth Affidavit of David James Rogers dated 09 June 2026 (FDN 36 in CIV-26-006365), Exhibit DJR- 5 at pp 45-46. 49 First Affidavit of David James Rogers dated 19 May 2026 (FDN 6 in CIV-26-006365) at [86]; Fourth Affidavit of David James Rogers dated 09 June 2026 (FDN 36 in CIV-26-006365), Exhibit DJR-5 at pp 45-47; Second Affidavit of Hatem Shahin dated 24 June 2026 (FDN 8 in CIV-26-007673) at [37]. 50 As noted above, such a finding is not inconsistent with a finding that there is a prima facie case that the termination was invalid. Such interlocutory findings can co-exist. 51 Affidavit of David James Rogers dated 23 June 2026 (FDN 7), Exhibit DJR-6 at p 26. -- 11 of 21 -- [2026] SASC 103 Gray J 10 (actually or contingently) by the Grantor to the Secured Party under the Transaction Documents”. 4. Clause 6.3 of the Security Deed expressly permits the grantor to “dispose of any estate or interest in any Current Asset in the ordinary course of its ordinary trading business”. This is subject to the transaction documents and clause 6.4, which clause provides for crystallization on certain events. 5. The security mortgage provides that: Secured Money means all amounts that at any time, for any reason or circumstance in connection with any Transaction Document; whether at law, in equity, under statute or otherwise; and whether or not of a type within the contemplation of the parties at the date of this mortgage: a. are payable, are owing but not currently payable, are contingently owing, or remain unpaid by the Mortgagor to the Mortgagee; or b. the Mortgagee has advanced or paid on the Mortgagor’s behalf or on the Mortgagor’s express or implied request; or c. the Mortgagee is liable to pay by reason of any act or omission on the Mortgagor’s part, or that the Mortgagee has paid or advanced in the protection or maintenance of the Secured Property or this mortgage following an act or omission on the Mortgagor’s part; d. are reasonable foreseeable as likely, after that time, to fall within any of the above paragraphs.52 39 The definition of secured money is primarily referable to amounts payable; or moneys advanced, or that Oliver Hume is liable to pay by reason of act or omission, or moneys paid or advanced. The language of the clause refers to an amount which is “payable”, “payable but not owing” and “contingently owing”. It follows that whilst Oliver Hume asserts that the above clauses are all monies clause and extend to damages such a construction does not clearly emerge from the wording of the clause. 40 I accept that a mortgage may confer a valid, indefeasible proprietary security which secures existing and future obligations. A mortgage may also secure an amount of damages if there was to be an award of damages and contingent liabilities, but as I have indicated above, whilst it may be arguable that the above wording supports such a construction of the security deed the matter is not clear.53 It is not possible to determine that matter on an urgent interlocutory basis. There is a basis to suggest that contingent liabilities include a damages claim. There is also reasonable arguments to indicate that unliquidated damages may not be contingent liabilities with the meaning of the relevant definition. It follows that as 52 Affidavit of David James Rogers dated 23 June 2026 (FDN 7) at [99]-[100]. See also ‘secured obligations’. 53 Liberty Funding Pty Ltd v Steele-Smith [2004] NSWSC 1100 at [23]-[25] (Palmer J). -- 12 of 21 -- [2026] SASC 103 Gray J 11 indicated above, I find that the applicants have established a prima facie case for discharge of the mortgages. 41 On the balance of convenience factors I accept that it is relevant that Oliver Hume, and Mr Duster personally have guaranteed the Metrics facility.54 It is also relevant that under cl 3.2(b) and 7.1(d)(i) of the DMA, it is the Developer (Oliver Hume) who was solely responsible for arranging finance and under cl 4.3(f) and 7.1(a) YAS was obliged to enter into facilities arranged by Oliver Hume, and that the consequence of the discharge of the mortgages is that those arrangements previously made would come to an end. 42 I accept that as a matter of general principle a mortgagor is not entitled to discharge a mortgage securing a contingent liability without paying into Court the full amount (or a proper estimate) of that liability, including costs and interest.55 However, this general principle does not mean that in all circumstances the payment of any estimate provided by the respondent as to its damages is the amount that is required to be paid. 43 If there were monies due and payable by YAS to Oliver Hume at the time of the termination of the DMA, these monies would be secured by the mortgages. Oliver Hume has been provided with two requests by YAS for information as to what if anything is secured by the mortgages.56 Oliver Hume has primarily responded to those requests through the evidence and submissions adduced in this proceeding. I have also had regard to the various ways in which the claim for damages was quantified in the oral submissions advanced on behalf of Oliver Hume.57 44 The evidence of Oliver Hume on this application suggests as follows: 1. That Oliver Hume’s equity in the project includes contractual entitlements such as a development management fee, share of project income, and reimbursements of costs, and that quantification of those matters is required.58 2. That the securities are uncapped so any meaningful comparison between the current uncapped amount and the substituted security would require expert evidence.59 3. That the estimate of damages is as set out in paragraph [60] of the affidavit of David Rogers of 23 June 2026. Mr Rogers is the managing 54 Affidavit of David James Rogers dated 23 June 2026 (FDN 7) at [57.3]; Affidavit of David James Rogers dated 19 May 2026 (FDN 6) in CIV-26-006365 at [56.4]. 55 Liberty Funding Pty Ltd v Steele-Smith [2004] NSWSC 1100 at [24]-[25] (Palmer J) 56 Affidavit of Andrew Nicholas Wesley Bullock dated 16 June 2026 (FDN 5) at [51]-[53]. 57 T 80.37-89.34; see also Respondent’s Third Summary of Argument (FDN 17) at [6]. 58 Affidavit of David James Rogers dated 23 June 2026 (FDN 7) at [58]. 59 Affidavit of David James Rogers dated 23 June 2026 (FDN 7) at [59]. -- 13 of 21 -- [2026] SASC 103 Gray J 12 director of Oliver Hume Property Funds Limited (ACN 107 091 770) and Oliver Hume Property Syndications Pty Ltd (ACN 158 631 997). 45 Paragraph [60] of Mr Rogers’ affidavit provides as follows:60 [60] As discussed at paragraphs 26 and 58 above, whilst Oliver Hume's damages in relation to its Originating Application filed in the Related Proceeding are yet to be quantified, for the purposes of this affidavit, I have estimated Oliver Hume's damages as follows: 60.1. the current valuation of all properties the subject of the development (which have now all been settled) is approximately $112,875,000; 60.2. cash amounts owed to Oliver Hume in relation to paid invoices to third parties totalling approximately $514,396; 60.3. the outstanding balance owed to Metrics is approximately $37,000,000; 60.4. the amount paid to settle the Tranche 3 land is approximately $7,500,000; 60.5. the total equity in the project is therefore approximately $68,889,396; and 60.6. Oliver Hume's 50% stake in that equity is approximately $34,444,698. 46 The difficulty with the submission advanced by Oliver Hume concerning its security position is that even if the mortgages secured a claim for damages, the evidence put forward by Oliver Hume as to its best estimation of the quantum of those damages need to be considered by reference to whether the amount fairly represents the recoverable damages, if Oliver Hume were ultimately successful in the first set of proceedings. 47 The rights that Oliver Hume had under the DMA was a right to profits and a management fee and the like, being a contractual entitlement after the performance of the fee for such management, and reimbursement of the costs paid by Oliver Hume. Oliver Hume does not have as the calculations in paragraph [60] suggest a 50% entitlement to the value of the land under the DMA. 48 Clause 6.3, inter alia, refers to “paying the Developer 50% of the balance of the Project Income as fee for the provision of the Developer’s Services, subject to it providing the Owner a valid tax invoice for the relevant amount.” 49 Further, and in any event, the claim for damages, if established, would be made in circumstances where Oliver Hume had not performed those services and the assessment of contractual damages would be on the basis of the assessment of expectation loss.61 I can only assess what is a reasonable estimate of the damages claim by reference to the current situation. That is there has been a termination of the DMA. That termination will ultimately be found at trial to be valid or invalid. 60 Affidavit of David James Rogers dated 23 June 2026 (FDN 7) at [60]. 61 Robinson v Harman (1848) 1 Exch 850. -- 14 of 21 -- [2026] SASC 103 Gray J 13 Further, an interlocutory injunction has not been granted with the consequence that Oliver Hume will not perform its services under the DMA. 50 Oliver Hume however calculates the value of the mortgages as being the value of the entirety of the management fee and real estate commissions on the basis that the contracts had been performed.62 That is, Oliver Hume in some respects63 calculates the mortgages as protecting the entirety of the amount that Oliver Hume would receive if the DMA remained on foot and had not been terminated (whether validly or not) or on the basis that the interlocutory injunction had been granted. 51 The calculation put forward by Oliver Hume does not take into account that the current situation which is that the agreement has been terminated. Even if the agreement had been invalidly terminated the contractual loss would likely be the expectation loss. The basis of any equity or projected profits claim to establish the entirety of the management fee and real estate commissions would be owing in circumstance where those matters are in effect a fee for service and the service has not been performed is unclear. That contention is advanced on the basis of the value of the security being assessed presumably by reference to the DMA not having been terminated. Whilst it may be at trial that it is established that the DMA was invalidly terminated, that is not an issue that I consider I can determine assessing the matter on an interlocutory basis. 52 I consider that the respondent’s approach to the assessment of any potential damages which assesses the loss by reference to the projected profit based upon the draft budget and feasibility report prepared in December 2025, being a document prepared by Oliver Hume and then calculates an amount of half the amount referred to in the report as being approximately $9.5 to $10 million as being more likely to reflect the expectation damages.64 53 Oliver Hume has not provided a quantification of the amounts it claims are owing under the mortgages or charges other than by reference to calculation which state the full extent of all potential contingent amounts.65 I do not consider that at this interlocutory stage a finding can be made as to the quantum of any or all contingent liabilities. Rather, the question I must consider is whether Oliver Hume has provided a reasonable estimate of the contingent liabilities or amount secured by the mortgage. 54 If Oliver Hume could establish on an interlocutory basis an amount owing under the DMA and provide a reasonable estimate of the contingent liabilities claimed, that would be a strong discretionary consideration that would weigh against the discharge of the mortgage without the payment into Court of the 62 Respondent’s Third Summary of Argument (FDN 17) at [6]. 63 Respondent’s Third Summary of Argument (FDN 17) at [6]. 64 T 46.10-19. 65 See, inter alia, the $514,396 and the other matters referred to in the Affidavit of David James Rogers dated 23 June 2026 (FDN 7) at [60]. -- 15 of 21 -- [2026] SASC 103 Gray J 14 reasonable sum or the provision of equivalent security.66 I consider Oliver Hume has not done so. It follows that I must consider the matter on the basis of considering whether what the applicants have offered as substituted security is reasonable, having regard to a reasonable estimate of the contingent liability. 55 The question that I must consider is whether the substituted security would give adequate protection to the mortgagee.67 As it is the applicants who seek the unusual advantage of being freed from the mortgage before final determination of those liabilities, I adopt a strict and conservative approach in favour of the mortgagee and against exposing the mortgagee to risk. However, even a strict and conservative approach in my view calls for a commercial assessment of the substituted security. 56 The parties appear to accept that the value of the land is approximately $112 million.68 The terms of the substituted security mean that the land will not be encumbered beyond the amount of $83 million. Given that the lenders are lending on a land value ratio of 65% the proposed undertaking to the Court not to encumber the land beyond $83 million, and not to sell the land there remains significant equity in the land. That is, in addition to first ranking mortgage over part of the land valued at around $10 million, and the payment into Court of $1 million, the unregistered charges would concern land with equity of a significant amount, albeit restraints are sought to be imposed on these charges. 57 I find that the details of the substituted security which include security by way of a first mortgage over $10 million dollars in land, and the retention by Oliver Hume of its unregistered charges, together with the sum paid into Court, offers sufficient security to meet the reasonable estimate of the damages claim allowing also for costs and interest.69 58 The mortgages lodged by Oliver Hume prevent the refinancing of the Metrics facility and expose the applicants to ongoing default, mounting penalty interest, and a real risk of enforcement action or receivership. These matters would impact the Onkaparinga Heights development and significantly diminish the value of the land. The respondent will not suffer a comparable prejudice if the mortgages are not discharged because the applicants have offered substituted security. As I have found above, the substituted security offers security to meet the reasonable estimate of the contingent liabilities. 66 Particularly having regard to the sanctity of registration. 67 Harvey v McWaters (1948) 49 SR (NSW) 173 at 178 (Sugarman J); Liberty Funding Pty Limited v Steele-Smith [2004] NSWSC 1100 at [29] (Palmer J); Equus Financial Services Ltd v RMBL Investments Pty Ltd (1996) 22 ACSR 744 at 77-749 (Bryson J). 68 Affidavit of David James Rogers dated 23 June 2026 (FDN 7) at [57.2]; Affidavit of Hatem Shahin dated 17 June 2026 (FDN 3) at [41]. 69 Stone Living Pty Ltd v 3 Property Group 9 Pty Ltd [2020] ACTSC 149 at [38]-[41] (McWilliam AsJ); Stone v Leonardis [2011] SASC 153 at [73] (White J); Tolhurst v Crickett Pty Ltd [2001] NSWSC 1203 at [7]-[13] per Young CJ in Eq; Maindream Projects Pty Ltd v Melbourne Construction and Management Co Pty Ltd [2001] QSC 136 at [13]-[15] (Wilson J); Phoenician Holdings Pty Ltd t/as Cadmus Lawyers v Rahme [2012] NSWSC 1604 at [22]-[24] (Rothman J). -- 16 of 21 -- [2026] SASC 103 Gray J 15 59 The refusal of the respondent to particularise any secured amount, and the absence of a reasonable estimate of its contingent liabilities are also discretionary matters which I consider favour the grant of the relief sought.70 60 Whilst I accept that the undertaking offered by the respondent provides protection to the applicants, those undertakings do not prevent the risk of a receiver being appointed. The appointment of a receiver would potentially adversely affect both parties and diminish the value of the land. 61 I find that the substituted security is a reasonable estimate of any amount owing under the mortgages and charges. I do not accept the respondent’s submission that the proposed alternative security would deprive Oliver Hume of its security and leave it fundamentally disabled from pursuing a substantial claim for damages. I find the comparative prejudice is asymmetric, such that refusing relief creates a greater risk of injustice than granting it. If the securities remain, the development will be at risk through enforcement action, whereas if the securities are removed the respondent retains the protection of the substitute security and undertakings. 62 It follows that I would make the orders sought namely, that upon the provision of the substituted security and upon the undertakings proffered,71 the mortgages should be discharged. 63 It follows that I do not need to consider further the question of whether or not the applicants can in equity separately redeem the mortgages. The application to remove the caveats 64 The applicants’ case is that there is no serious question to be tried as to the respondent having a caveatable interest because, properly analysed, the caveats do not protect any valid or existing proprietary interest in the land. 65 First, the applicants contend that the caveats cannot be supported because the underlying security secures nothing. They contend that the caveatable interest depends on the existence of “secured money” or “secured obligations” under the DMA and associated security documents, but those obligations ceased upon termination of the DMA.72 66 The applicants further contend that the securities do not extend to a claim for unliquidated damages, such that the respondent’s asserted entitlement (being a speculative damages claim) cannot found a proprietary interest capable of 70 Applicants’ Summary of Argument (FDN 9) at [104]–[105], [109]–[110]; Applicants’ Submissions in Reply (FDN 13) at [5]–[6], [26]–[28]. 71 As set out in Exhibit MFI-A9. 72 Applicants’ Summary of Argument (FDN 9) at [8], [14]; Applicants’ Submissions in Reply (FDN 13) at [4.3.1], [15]. -- 17 of 21 -- [2026] SASC 103 Gray J 16 supporting a caveat.73 On this basis, the applicants contend there is no arguable legal or equitable interest in land at all. 67 Secondly, the applicants contend that, even leaving aside the substantive construction issue, the caveats are defective on their face and unsupported by any identifiable underlying agreement. They point out that the caveats refer to agreements dated September or November 2024, but no such agreements exist, meaning the stated source of the claimed interest is incorrect.74 They submit that this is not a mere technical error but demonstrates the absence of a valid caveatable interest altogether. 68 Thirdly, the applicants rely on illegality or impropriety in the lodgement of the caveats as undermining any serious question. They contend that the respondent was contractually prohibited (under the Metrics facility and/or the DMA) from lodging caveats and did so in breach of those obligations, which provides a prima facie basis for removal.75 The applicants assert that the caveats were lodged for an improper purpose to block refinancing—rather than to protect a genuine proprietary interest.76 69 Finally, the applicants emphasise that the caveats add nothing beyond the registered mortgages, and therefore lack any independent justification. They contend that the same alleged interest is already protected by the mortgages, such that the caveats operate merely as an additional impediment to dealings with the land without any legitimate proprietary basis.77 70 Taken together, the applicants submit that the respondent cannot demonstrate even an arguable proprietary interest in land capable of supporting the caveats. 71 The applicants contend that there is prejudice if relief is refused and that adequate protection for the respondent is provided pursuant to the substituted security such that the balance of convenience strongly favours removal of the caveats and mortgages. The balance of convenience factors relied upon by the applicants in support of removal of the caveats are similar to those relevant to the discharge of the mortgages. 72 The applicants contend, inter alia, that there is a real risk that Metrics will enforce its security, including by appointing a receiver. This, they say, would lead to a forced sale of the land at a substantial discount, destruction of the 73 Applicants’ Summary of Argument (FDN 9) at [14], [84]–[87]; Applicants’ Submissions in Reply (FDN 13) [4.3.2], [16]–[18]. 74 Applicants’ Summary of Argument (FDN 9) at [21], [115]–[117]. 75 Applicants’ Summary of Argument (FDN 9) at [2], [37.1], [118]; Applicants’ Submissions in Reply (FDN 13) at [4.3]. 76 Applicants’ Submissions in Reply (FDN 13) at [2], [25]–[26]. 77 Applicants’ Submissions in Reply (FDN 13) at [23]–[25]. -- 18 of 21 -- [2026] SASC 103 Gray J 17 development, and loss of anticipated profits and business opportunities, as well as reputational harm to Mr Shahin.78 73 The respondent’s case is that it has a valid caveatable interest arising from the contractual security regime created under the DMA, which gives rise to an equitable charge over the applicants’ land securing all obligations (including damages) owed to it. It relies on the security deeds, which grant it a security interest (including a fixed charge over real property) in the “secured property” to secure “secured money” and “secured obligations,” defined broadly to include all present and future liabilities under the transaction documents.79 74 The respondent contends that this plainly confers a proprietary interest sufficient to support the caveats, rejecting the applicants’ assertion that the securities “secure nothing,” and emphasising that a presently crystallised debt is not required so long as there is a reasonably arguable claim to an interest.80 The respondent submits that there is at least a serious question to be tried as to its entitlement to substantial damages arising from breach of the DMA, and that such contingent or future liabilities are within the scope of the security.81 Accordingly, the respondent maintains that the caveats properly protect an arguable equitable charge over the land and should remain pending final determination of its claim. 75 The respondent submits that the balance of convenience strongly favours maintaining the caveats because they protect a valuable proprietary security which would be materially prejudiced if removed, particularly by loss of priority and exposure to dealings with the land before trial. The respondent contends that once a serious question to be tried is established, the balance will ordinarily favour maintaining the caveat, and this is not an exceptional case justifying removal.82 The respondent emphasises that removal would leave it exposed to uncertain substitute security, not of its choosing and of unclear value, particularly in circumstances where the applicants intend to refinance and further encumber or deal with the land in undisclosed ways that could erode or eliminate its security position.83 76 The respondent also relies on the applicants’ lack of detailed evidence about any proposed refinancing or alternative arrangements and maintains the position that the substituted security is speculative and inadequate. The respondent claims that the substituted security fails to provide equivalent protection for a substantial and unquantified claim.84 Against this, the respondent contends that the applicants’ claimed urgency, and any financial difficulty is self-inflicted and that the 78 Applicants’ Summary of Argument (FDN 9) at [5]–[7], [69]–[73], [109]; Applicants’ Submissions in Reply (FDN 13) at [29], [33]. 79 Respondent’s First Summary of Argument (FDN 10) at [14]–[18], [26], [28]. 80 Respondent’s First Summary of Argument (FDN 10) at [26]–[28], [31]. 81 Respondent’s First Summary of Argument (FDN 10) at [36]; Respondent’s Second Summary of Argument (FDN 11) at [2]. 82 Respondent’s First Summary of Argument (FDN 10) at [31]–[33]. 83 Respondent’s First Summary of Argument (FDN 10) at [7], [39]. 84 Respondent’s First Summary of Argument (FDN 10) at [38]–[39]; Respondent’s Second Summary of Argument (FDN 11) at [1]. -- 19 of 21 -- [2026] SASC 103 Gray J 18 applicants should not be permitted to remove a valid proprietary security simply to facilitate their own commercial objectives, particularly where doing so would shift risk and uncertainty onto the respondent.85 The respondent also contends that the error in the date referred to on the caveats can be amended.86 Consideration in respect of the application to remove the caveats 77 In respect of the application to remove the caveats the onus is upon the respondent, Oliver Hume to establish: 1. Whether there is a serious question to be tried as to the asserted caveatable interest, and 2. Whether the balance of convenience favours the maintenance of the caveat.87 78 As I note above, I have some doubt that the reference to an amount which is “payable but not owing” and “contingently owing” and the terms of the definition of secured money extends to a claim for further damages. However, the applicants need only establish a prima facie case that such damages and contingent liabilities are included. I acknowledge that it is sufficient for the applicants to show that there is a serious question to be tried as to the asserted caveatable interest. Whilst I would find that the respondent has established a serious question to be tried as to the asserted caveatable interest, the case in favour of such an interest is not strong. 79 I accept that having established a serious question to be tried, the balance of convenience will often favour the caveator.88 In relation to the balance of convenience matters, the balance of convenience matters are similar to those considered above, noting of course that the onus is relevantly different. I find the comparative prejudice is asymmetric, such that refusing relief creates a greater risk of injustice than granting it. I have considered the submissions advanced by the applicants as to the caveat protecting an interest that extends beyond the interest protected by the mortgages, however, the quantum of that interest has not been clearly articulated.89 80 If the caveats and securities remain, the development will be at risk through enforcement action, whereas if the caveats and securities are removed the respondent retains the protection of the proposed substitute security and undertakings. Whilst the undertakings offered by the applicants would offer protection to the respondent in terms of a monetary claim, they do not prevent the 85 Respondent’s First Summary of Argument (FDN 10) at [40]; Respondent’s Second Summary of Argument (FDN 11) at [5]. 86 T 10.9-11.38. 87 Cini v Pets Paradise Franchising (SA) Pty Ltd (2008) 102 SASR 177 at [51] (Bleby J); Stone v Leonardis (2011) 110 SASR 503 at [20]-[26] (White J). See Real Property Act 1886 (SA) s 191(1)(d). 88 Cini v Pets Paradise Franchising (SA) Pty Ltd (2008) 102 SASR 177 at [57] (Bleby J); Stone v Leonardis (2011) 110 SASR 503 at [26] (White J) 89 Affidavit of David James Rogers dated 23 June 2026 (FDN 7) at [60]. -- 20 of 21 -- [2026] SASC 103 Gray J 19 risk of receivership. I consider the balance of convenience considerations favour the removal of the caveats. 81 It follows that I would make the orders sought by the respondent for the discharge of the caveats. 82 The matters referred to above favour the discharge of the mortgages, also similarly also favour the discharge of the caveats (noting the relevant onus is different) and noting that even on the respondent’s submissions the primary interest that the caveats support are the interests pursuant to the registered mortgages. The caveats have the effect of preventing the refinancing of the development project and place the development project at risk a matter which would not appear to be in the interest of either party. 83 The respondent has not particularised any secured amount,90 pursuant to the mortgages or securities, and have not provided a reasonable estimate of its contingent liabilities and damages claim. Whilst the caveats protect the interest in land pursuant to the mortgages, the mortgages secure a monetary sum. Further, the substituted security, offers sufficient security to meet the reasonable estimate of the damages claim and contingent liabilities. Conclusion 84 For the reasons given above, I would make orders upon the provision of the substituted security that the mortgages be discharged and removed from the title, I would also make orders for the removal of the caveats. 85 I will hear further from the parties as to the precise form of the orders sought. 86 The parties have liberty to apply. 90 Affidavit of David James Rogers dated 23 June 2026 (FDN 7) at [60]. -- 21 of 21 --