[2026] SADC 15

Applicant: NORDBURGER PTY LTD Other: MR T MARTIN - Director of Company: SELF REPRESENTED Respondent: KORONIS AND VARI & ORS Counsel: MR A BAILLIE - Solicitor: CARUSO & CO LEGAL Hearing Date/s: 10/07/2025, 08/09/2025 File No/s: CIV-24-011794 B DISTRICT 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. NORDBURGER PTY LTD v KORONIS AND VARI & ORS (No 4) [2026] SADC 15 Reasons for Decision of his Honour Judge Durrant 26 February 2026 LANDLORD AND TENANT - COVENANTS - ACTIONS FOR BREACH OF COVENANT - INJUNCTIONS Applicant tenant operates a hamburger restaurant from leased premises- respondent landlord considered written lease expired and tenant holding over- landlord terminated monthly tenancy- landlord entered into possession of the leased premises- tenant claims during the renewal period under the lease it had exercised its right to renew for five years effective 1 July 2023- relief against forfeiture sought- alternatively declaration sought that termination of monthly tenancy unlawful- interlocutory injunction granted to restore the tenancy until hearing of urgent trial- urgent trial listed and vacated due to interlocutory defaults by the tenant- tenant applied for second listing of an urgent trial and extension of injunction until trial- second urgent trial listed and injunction extended from time to time- second listing of urgent trial vacated due to interlocutory defaults of the tenant- landlord pleads lease not renewed as conduct of the tenant disentitled it of its contractual right to renewal- tenant denies disentitling conduct- landlord applied to discharge injunction- whether serious question to be tried the tenant had renewed the lease- tenant entitled to renew lease if during relevant renewal period it gave notice and had performed and observed the covenants and conditions of the lease- evidence tenant had failed to perform and observe covenants and conditions of the lease during the relevant renewal period- tenant had failed to obtain public liability insurance for the premises as required by the lease- tenant had assigned the lease by transferring its shares to a third party without consent of the landlord as required by the lease- whether serious question to be tried tenant entitled to exercise right of renewal- tenant had failed to perform and observe covenants and conditions of the lease during the relevant renewal period- no serious question to be tried that tenant had renewed the lease- consideration of whether in any event balance of convenience favoured further extension of the lease- no application made for a third listing of an urgent trial by the tenant- conduct of this action by the tenant and its continuing defaults meant trial unlikely to be heard this year- in assessing all the circumstances undertaking as to damages of little substance- no exceptional circumstances to warrant departure from the usual requirement for a viable undertaking as to damages- whether may be prejudice to the landlord if injunction further extended- if lease renewed landlord would have been entitled to adjusted rent from 1 July 2023- if lease not renewed landlord is exposed to adverse changes -- 1 of 28 -- in market conditions in respect of obtaining a new tenant- whether further extension of the injunction would reward tenant for its own default- application to discharge injunction granted- consideration of the form of orders to be made to effect discharge at a further hearing- question of costs of the application to discharge and otherwise reserved to be listed for further hearing. Held: (1) The interlocutory injunction granted on 19 December 2024 restoring the applicant to possession of the premises is to be discharged. Retail and Commercial Leases Act 1995 (SA) ss 12, 26, 68, referred to. Nordburger Pty Ltd v Koronis and Vari & Ors [2025] SADC 15; Nordburger Pty Ltd v Koronis and Vari (No.2) [2025] SADC 26; Nordburger Pty Ltd v Koronis and Vari & Ors (No 3) [2025] SADC 70; Australian Broadcasting Corporation v O’Neill (2006) 277 CLR 57; Australian Broadcasting Corporation v O’Neill [2006] HCA 46; Vincent Cold Storage Pty Ltd v Centuria Property Funds No.2 Ltd [2022] VSC 766; Barker v Perpetual Trustees Australia Ltd (2003) 85 SASR 263; PFJV Pty Ltd v Bartter Enterprises Pty Ltd [2022] QSC 110; Banque Commerciale SA (En Liquidation) v Akhil Holdings Ltd (1990) 169 CLR 279; Lawcover Insurance Pty Ltd v Muriniti [2017] NSWSC 1557, considered. -- 2 of 28 -- NORDBURGER PTY LTD v KORONIS AND VARI & ORS (No 4) [2026] SADC 15 Introduction 1 On 5 December 2024 the applicant Nordburger Pty Ltd (Nordburger) commenced action against its Landlord Messrs Veronis and Vari (the Landlord) in respect of a written lease of premises at Norwood from which it operated a hamburger restaurant (the Lease) (the Premises).1 2 The Landlord considered the Lease expired, terminated a resultant monthly tenancy and took possession of the Premises on 2 December 2024.2 3 Nordburger claims it had exercised its right to renew the Lease for five years from 1 July 2023 and sought declarations to that effect and relief against forfeiture. 4 Alternatively, Nordburger claims the termination of monthly tenancy and taking of possession was unlawful and it has a continuing monthly tenancy.3 5 On 16 December 2024, Nordburger filed an amended interlocutory application for orders by way of injunction to restore its vacant possession under the Lease until further order and for urgent hearing and determination of its claim.4 6 On 19 December 2024 I made orders: restoring Nordburger to its tenancy until further order (the Injunction); listing an urgent trial to commence on 27 February 2025; allowing Nordburger to file an amended Claim by 24 December 2024; and for the Landlord to file its defence by 17 January 2025.5 7 On 30 June 2025 the Landlord applied to discharge the Injunction.6 On 10 July 2025 Nordburger applied to extend the Injunction until further order. 8 For the reasons below the Injunction should be discharged. 9 I will hear the parties as to the form of orders to discharge the Injunction and as to costs, including in respect of any costs reserved to date. Relevant Procedural Background 10 Following the grant of the Injunction and other orders made on 19 December 2024 a hearing for directions was listed for 3 February 2025 to closely case manage this action to the urgent trial listed to commence on 27 February 2025.7 1 Claim filed 6 December 22024 (FDN 1). 2 Amended Statement of Claim filed 14 February 2025 (FDN 34) 5 [31]. 3 Ibid [38.1]. 4 Substituted Amended Interlocutory Application filed 16 December 2024 (FDN 11). 5 Unpublished ruling of Judge Durrant dated 19 December 2024-CIV-24-011794 (FDN 17). 6 Interlocutory Application filed 30 June 2025 (FDN 102). 7 Record of Outcome – Order dated 19 December 2024 (FDN 16). -- 3 of 28 -- [2026] SADC 15 2 11 Nordburger did not by 24 December 2024 as ordered file an amended Claim. 12 On 24 January 2024 the Landlord applied for reasonable security for its costs of this action and for this claim to be stayed until such security was provided.8 13 On 29 January 2025 Nordburger applied to vary the timetabling orders made on 19 December 2024 including to seek further time to file an amended Claim.9 14 On 3 February 2025 I ordered Nordburger to file any amended Claim by 5 February 2025, listed the application for security for costs for hearing on 11 February 2025 and ordered any affidavit in opposition to the application for security for costs and written outlines about that be filed by 5 February 2025.10 15 Nordburger did not by 5 February 2025 file an amended Claim or any affidavits in opposition to the application for security for costs or a written outline. 16 On 11 February 2025 when the application for security for costs was called on for hearing I was told Nordburger had terminated the engagement of its solicitors and had shortly beforehand engaged another firm and counsel. 17 Newly engaged counsel sought a short adjournment to consider amendment of the Claim and the filing of any material in opposition to the application for security for costs. He said his instructions were to maintain the trial date. 18 Counsel for the Landlord urged vacation of the trial and the Injunction be set aside or operate for a short time so Nordburger could apply for a further extension. 19 Counsel for Nordburger indicated he could not speak against vacation of the trial, the listing and hearing of the application for security the following week, or the variation of the Injunction such that it expired at the conclusion of that hearing. 20 Counsel for Nordburger accepted if Nordburger sought another urgent trial and further extension of the Injunction it must file an application to that effect.11 21 I vacated the trial and varied the Injunction to expire on 18 February 2025. I ordered any amended Claim, affidavits in response to the application for security, application for and any affidavit in support of the further extension of the Injunction and a further urgent trial, all be filed by 14 February 2025. 22 On 14 February 2025 Nordburger filed Statement of Claim- Rev 1.12 8 Interlocutory Application filed 24 January 2025 (FDN 18); See also Second Affidavit of Luke Peter Barnett dated 24 January 2025 (FDN 20). 9 Interlocutory Application filed 29 January 2025 (FDN 21); See also Affidavit of James Peter Forde dated 29 January 2025 (FDN 22). 10 Record of Outcome – Order dated 03 February 2025 (FDN 23). 11 T29 (11 February 2025). 12 Amended Statement of Claim – Rev 1 filed 14 February 2025 (FDN 34). -- 4 of 28 -- [2026] SADC 15 3 23 On 17 February 2025 Nordburger filed an application for: variation of the Injunction to operate until further order; a timetable for the filing of a defence and further pleadings; and an urgent trial.13 24 On 20 February 2025 I heard the application for variation of the Injunction to operate until further order and an urgent trial and reserved my decision. 25 I considered Nordburger had at that time established a serious question to be tried and that the balance of convenience favoured extension of the Injunction.14 26 I ordered: the Injunction be extended to 12 March 2025; the Landlord file its defence by 3 March 2025; Nordburger file any reply by 10 March 2025; the application for security for costs be heard on 12 March 2025; the parties make discovery by 24 March 2025; and an urgent trial commencing 29 April 2025.15 27 On 3 March 2025 the Landlord filed its defence as it had been ordered.16 28 On 6 March 2025 the solicitors for Nordburger applied ex-parte to cease to act.17 I heard the application that day.18 Mr Martin as a director of Nordburger was granted leave to represent the company and be heard. 29 Solicitor Ms Daniel deposed her firm had agreed only a limited engagement with Nordburger. She deposed sufficient funds had been deposited with her firm to enable counsel to attend on 11 and 18 February 2025 and to prepare an amended claim and applications for an urgent trial and extension of the Injunction.19 30 Ms Daniel deposed when the urgent trial was listed for 29 April 2025 she provided an estimate of fees to Nordburger. She deposed Nordburger ‘would not deposit the trial fee estimate upfront and by the dates required’ and her firm could not engage counsel for trial nor continue to act.20 31 Nordburger opposed the application. Mr Martin argued the solicitors for Nordburger had accepted a retainer to trial and been secured to the extent they had sought. He alternatively argued the estimate was excessive and it was unnecessary for it to be paid in advance, as the trial was still a few weeks away. 32 I granted leave to the solicitors to cease to act.21 13 Interlocutory Application filed 17 February 2025 (FDN 35). 14 Nordburger Pty Ltd v Koronis and Vari [2025] SADC 15. 15 Record of Outcome- Order dated 6 March 2025 (FDN 46). 16 Defence filed 3 March 2025 (FDN 43). 17 Interlocutory Application filed 6 March 2025(FDN 44); see also Affidavit of Jasmine Daniel dated 4 March 2025 (FDN 45). 18 At the request of those solicitors and Mr Martin, I sealed the application, affidavit and transcript. It has now been unsealed at the request of Nordburger which wished to rely on what was said during that hearing in support of its later application that I recuse myself from hearing this matter. 19 Affidavit of Jasmine Daniel dated 4 March 2025 (FDN 45). 20 Ibid. 21 Record of Outcome dated 6 March 2025 (FDN 46). -- 5 of 28 -- [2026] SADC 15 4 33 At a direction hearing the next day Mr Martin told me Nordburger, acting as a self-represented litigant, had been unsuccessful that day in filing lengthy documents, including an urgent application for summary judgment.22 34 Mr Martin submitted Nordburger was entitled to summary judgment by declaration the termination and re-entry of the premises was unlawful and invalid and the Lease had never been forfeited and remained in force. 35 I informed the parties the security for costs application would still be heard on 12 March 2025, but by another judge.23 I listed a further hearing for directions on 13 March 2025 and extended the Injunction until that day.24 36 On 12 March 2025, Nordburger filed its reply and that same day Judge Burnett heard the application for security for costs25 and reserved his judgment.26 37 On 13 March 2025, at a hearing for directions, I extended the Injunction until 21 March 2025.27 The application for summary judgment had by then been filed. I ordered Nordburger file by 18 March 2025 a written outline concerned with whether that application raised a proper matter for the grant of summary judgment and listed that issue only to be argued on 21 March 2025.28 38 On 21 March 2025, Judge Burnett found Nordburger should pay security for costs as Nordburger would be unable to meet an adverse costs order.29 39 On 21 March 2025, I heard the parties as to whether Nordburger had raised a proper matter for summary judgment and reserved my ruling.30 I fixed a hearing for directions on 31 March 2025 and extended the Injunction to then.31 40 On 26 March 2025, Judge Burnett ordered Nordburger pay security for costs in the amount of $42,500.32 He referred the question of any stay in default of payment to me as trial judge.33 22 Interlocutory Application filed 7 March 2025 (FDN 48). 23 T4.12-22 (7 March 2025); I considered that information provided to me in the course of the application of the solicitors to cease to act was such that I should not hear the application for security for costs. 24 Record of Outcome – Order dated 7 March 2025 (FDN 49). 25 Record of Outcome dated 12 March 2025 (FDN 58). 26 Reply filed 12 March 2025 (FDN 53); Record of Outcome dated 13 March 2025 (FDN 54). 27 Record of Outcome dated 13 March (FDN 54). 28 Ibid; see also Written Submissions of Nordburger dated 18 and 19 March 2025 (FDN 59) and (FDN 60). 29 Record of Outcomes dated 21 and 26 March 2025 respectedly (FDN 69) and (FDN70); Nordburger Pty Ltd v Koronis and Vari (No.2) [2025] SADC 26. 30 Record Of Outcome dated 21 March 2025 (FDN65). 31 Ibid. 32 Record of Outcome dated 26 March 2025 (FDN 69). 33 Judge Burnett has had no further involvement in this case. -- 6 of 28 -- [2026] SADC 15 5 41 On 31 March 2025, I ruled Nordburger had not pleaded the issue the subject of its application for summary judgment and dismissed that application.34 42 Nordburger by its representative Mr Martin raised several matters. He intimated an application for judicial recusal and said the Landlord had breached the Injunction and was in contempt. 43 I ordered any applications about that, any amended claim and any application for Mr Martin to represent Nordburger at trial, be filed by 4 April 2025.35 44 The Landlord was concerned about the adequacy of Nordburger’s discovery. Counsel intimated an application about that. I ordered it be filed by 4 April 2025.36 45 I extended the Injunction to 7 April 2025 being the next date for directions.37 46 By 7 April 2025, Nordburger had not filed an application for recusal or about any breach of the Injunction, any amended pleading or an application Mr Martin have permission to represent Nordburger at trial.38 47 Nordburger had filed its list of documents but had not produced those documents. I ordered Nordburger by 9 April 2025 produce by internet file share those documents and discover and produce further and better discovery as sought by the Landlord in its filed application.39 48 I further extended the time to 9 April 2025 for Nordburger to file any further amended Claim, granted Mr Martin permission to represent Nordburger at a hearing for directions on 11 April 2025 and extended the Injunction until then.40 49 Nordburger had not by 9 April 2025: produced by internet file share the documents it had discovered; made further and better discovery as ordered; or filed any application for recusal or further amended Claim. 50 On 11 April 2025 when the hearing for directions was called on, Mr Martin told me Nordburger needed further time to comply with those orders. I again extended until 14 April 2025, the time to comply with the orders to produce by internet file share the documents discovered and for further and better discovery.41 I extended the Injunction until the next hearing for directions on 16 April 2025 and granted Mr Martin permission to represent Nordburger at that hearing.42 34 Unpublished Ruling of Judge Durrant dated 31 March 2025 (FDN 68). 35 Record of Outcome dated 31 March 2025 (FDN 71). 36 On 4 April 2025, the Landlord applied for further discovery by Nordburger (FDN 72) and (FDN 73). 37 Record of Outcome dated 31 March 2025 (FDN 71). 38 Record of Outcome dated 7 April 2025 (FDN 76). 39 Ibid. 40 Ibid. 41 Record of Outcome dated 11 April 2025 (FDN 77). 42 Ibid. -- 7 of 28 -- [2026] SADC 15 6 51 At the hearing for directions on 16 April 2025, Mr Martin said Nordburger had not yet produced the documents discovered but was working to do so. He said he had drafted but had not filed a further amended claim. He said he had filed an application for recusal, but it was not on the court portal.43 Further, Mr Martin asserted the Landlord had failed to provide proper discovery. 52 Mr Martin said the trial should be vacated and the application for recusal could be heard at the listed time. He made oral application to extend the Injunction until further order. 53 The Landlord said the second urgent trial should be vacated due to the defaults of Nordburger. It opposed extension of the Injunction until further order. 54 I vacated the second listed urgent trial and refused to extend the Injunction until further order.44 I made orders: listing the recusal application for argument on 29 April 2025; any further evidence concerning the recusal application be filed by 22 April 2025; any further amended claim be filed by 22 April 2025; any written submissions of Nordburger in respect of the recusal application be filed by 24 April 2025; any submissions or material in reply by the Landlord in respect of the recusal application be filed by 28 April 2025; Nordburger produce in the proper form any documents it had currently discovered by 22 April 2025; the Injunction be extended to 29 April 2025; the costs of attendance be reserved; and the costs thrown away due to the vacation of the trial be reserved.45 55 Nordburger did not file further evidence concerning the recusal application, a further amended statement of claim, written submissions in respect of the recusal application and nor did it produce in proper form the documents it had discovered. 56 The Landlord had filed written submissions on the recusal application.46 57 At 9.13am the day that application was listed to commence at 10am, my Associate received an email from Mr Martin: 'Dear Associate. I am unwell today and will not be able to attend or participate in the scheduled hearing before [Judge Durrant]. I apologise for the late notice. Please convey my apologies to his Honour. I respectfully request that today's argument be adjourned until either tomorrow afternoon or Thursday, 1 May. I have a medical appointment tomorrow from 9.45 a.m. for approximately for approximately one hour. I could thereafter be available from 11.30 a.m. Kind regards, Tom Martin’. 58 There being no attendance for Nordburger I ordered:47 43 That application was rejected by the Registrar and remains unfiled. 44 Record of Outcome dated 16 April 2025 (FDN 83). 45 Ibid. 46 Written Submissions filed 28 April 2025 (FDN 84). 47 Record of Outcome dated 29 April 2025 (FDN 85). -- 8 of 28 -- [2026] SADC 15 7 1. That the Injunction extended on 16 April 2025 be further extended until 5pm Wednesday 7 May 2025. 2. That the applicant do provide to the Court and the respondent a medical certificate in respect of the non-attendance of Mr Tom Martin, as representative of the applicant, by 5pm on Thursday 1 May 2025. 3. That the applicant apply by filing and serving an interlocutory application with supporting evidence by way of affidavit, for a date fixing when its application for judicial recusal will be heard and determined, by 5pm on 1 May 2025. 4. That the applicant do file and serve any application to extend the Injunction the subject of order 2 herein, by 5pm on 1 May 2025. 5. That this matter be listed for directions on 7 May 2025 at 9am. 6. That Mr Tom Martin be granted leave to appear at the directions hearing fixed by order 5 in person. 7. That the costs of the hearing today be reserved until the directions hearing fixed by order 5. 8. Liberty to apply. 59 On 1 May 2025, Nordburger provided a letter from a General Practitioner which said Mr Martin had been unable to attend due to a medical issue. Mr Martin filed an affidavit providing detail about his mental health and deposed why Nordburger had not complied with previous court orders.48 60 On 7 May 2025, there was no appearance by Nordburger. Mr Martin requested by email, received at 9.30am that morning and during the scheduled hearing, permission to appear by phone.49 Mr Martin was dialled in. 61 He said he had attempted to file documents which had been rejected by the Registrar. Mr Martin said those rejected documents showed a fraud by the agent of the Landlord in respect of the outgoings for the Premises and the fabrication of documents and evidence in the form of invoices concerning the Lease, created ex post facto and backdated, to make them appear as if they were contemporaneous.50 62 Mr Martin referred to the Landlord’s ‘discovered documents which contain evidence that established fraud on the part of the agent in respect of outgoings and …. the fabrication of documents… in the form of invoices…’.51 63 No such fraud, or any fraud whatsoever, had been pleaded by Nordburger. 48 Affidavit of Thomas Martin dated 2 May 2025 (FDN 87). 49 The hearing had already commenced when my associate received that correspondence. 50 T13.15-33 (7 May 2025). 51 T127 (10 July 2025). -- 9 of 28 -- [2026] SADC 15 8 64 I ordered the recusal application be heard on 16 May 2025, and that the Injunction be extended to that date.52 65 On 15 May 2025, Nordburger filed written submissions in respect of the recusal application.53 On 16 May 2025, Mr Martin appeared and argued that application. He was allowed the whole day and was further allowed to file further written submissions by 23 May 2025. 66 I fixed a further hearing of the application for recusal on 26 May 2025, so counsel for the Landlord could make oral submissions.54 67 On 23 May 2025, Nordburger filed further submissions about the recusal.55 68 On 26 May 2025, the date fixed to hear counsel for the Landlord, there was no attendance by Nordburger. That non-attendance remains unexplained. I heard counsel for the Landlord and ordered Nordburger file any written submissions in reply by 29 May 2025. No submissions were filed by Nordburger. 69 On 16 June 2025, I refused the application for recusal.56 To discharge or extend the Injunction? Application to discharge injunction 70 On 30 June 2025 the Landlord applied for the Injunction to be discharged or not further varied.57 To support that application the Landlord relied upon several affidavits filed in the action.58 71 I listed that application for hearing on 10 July 2025.59 I ordered: the Landlord file and serve its affidavit evidence by 30 June 2025; Nordburger file any amended pleadings, applications and further disclosure by 4 July 2025; and Nordburger file by 8 July 2025 any responding material in respect of the application to discharge. 72 Nordburger failed to file any amended pleadings, applications and further disclosure by COB 4 July 2025 or file by COB on 8 July 2025 any responding material in respect of the extension of the injunction. 52 Record of Outcome dated 7 May 2025 (FDN 89). 53 Written Submissions filed 15 May 2025 (FDN 90). 54 Record of Outcome dated 16 May 2025 (FDN 91). 55 Written Submissions filed 23 May 2025 (FDN 92). 56 Nordburger Pty Ltd v Koronis and Vari (No 3) [2025] SADC 70. 57 Interlocutory Application filed 30 June 2025 (FDN 102). 58 First, Second, Third and Fourth Affidavits of Luke Peter Barnett dated 12 December 2024, 24 January, 30 June, 7 March 2025 (FDN 8) (FDN 20) (FDN 50) (FDN 103); First Affidavit of Andrew Caruso dated 7 March 2025 (FDN 52); Affidavit of Rinaldo Pancione dated 30 June 2025 (FDN 101); First Affidavit of Victoria Martin dated 29 November 2024 (FDN 3); First, Second, Fourth (unsworn) and Sixth Affidavits of Thomas Martin dated 12 December 2024, 14 February, 15 April, 2 May 2025. 59 Record of Outcome dated 26 June 2025 (FDN 100). -- 10 of 28 -- [2026] SADC 15 9 Application of Nordburger to extend injunction and determine preliminary issues 73 The day the application to discharge the Injunction was set to be argued, Nordburger filed applications and supporting affidavits seeking orders that:60 1. The operation of the Injunction dated 19 December 2024 be extended until further order. 2. The following matters be listed and determined [sic] as preliminary issues on a date no later than 14 August 2025: (a) The applicants Interlocutory Application of 16 April 2025 seeking orders in relation to the respondents compliance with its discovery obligations; (b) The allegations that: (i) the respondent’s forcible entry of the Premises by an [sic] 2 December 2025 [sic] was unlawful; (ii) the respondent’s notice of termination dated 21 October 2024 and 5 March 2025 are invalid; (c) The applicant be entitled to repayment of the property management fees charged as outgoings; (d) The allegation that the respondent has committed a contempt of court be referred to the Registrar for consideration of prosecution in relation to its conduct: (i) by issuing a notice of termination of monthly tenancy dated 5 March 2025 in contravention of the Injunction date 19 December 2024; (ii) by the fabrication of evidence produced in its discovery. 74 Nordburger requested the issues raised by its application under proposed order 2 be listed and dealt with urgently and before the application to discharge.61 In the interim, Nordburger said the Injunction should be extended. 75 I declined to take that approach for several reasons. 76 On 27 June 2025, I had listed the application for discharge of the Injunction for hearing on 10 July 2025.62 I had ordered Nordburger to file any amended pleadings, applications and further disclosure by COB 4 July 2025; and any responding material in respect of the extension of the injunction by 8 July 2025. 60 Interlocutory Application filed 10 July 2025 (FDN 107); Seventh Affidavit of Thomas Patrick Martin dated 7 July 2025 (FDN 105); Eighth Affidavit of Thomas Patrick Martin dated 8 July 2025 (FDN 106); Fourth Affidavit of Victoria Mary Martin dated 9 July 2025 (FDN 108). 61 T18-T20.34; T21.17-T22.17 (10 July 2025). 62 Record of Outcome dated 26 June 2025 (FDN 100). -- 11 of 28 -- [2026] SADC 15 10 77 Nordburger had to failed to comply with the orders to file any amended pleadings, applications and further disclosure by 4 July 2025 or file by 8 July 2025 any responding material in respect of the extension or discharge of the injunction. 78 The preliminary issues sought to be ventilated had not been pleaded notwithstanding the multiple opportunities given to do so. 79 Some of those issues had been raised previously. For example, Nordburger asserted a fraud on 7 May 2025 and asserted a contempt on 31 March 2025. 80 No proposed amended claim was provided to the Court at that hearing and Nordburger had not sought leave to amend its pleadings.63 81 Nor was any order sought for an urgent trial. Asked whether Nordburger would bring such an application Mr Martin replied, ‘no, not at this stage’.64 82 I declined to extend the Injunction and rule on those preliminary issues before determining the application to discharge the Injunction. 83 Rather, I heard the applications to either discharge or extend the Injunction based on the pleadings as they stood. Principles applicable to discharge or extension of injunction 84 The applications to discharge or extend the Injunction were argued on the basis the onus was on Nordburger to establish a serious question to be tried that it had validly renewed the Lease.65 85 The Landlord argued Nordburger could not establish a serious question to be tried because its conduct had disentitled it of the right to renew. In that respect, the Landlord relied on two pleaded breaches of clause 2C of the Lease. 86 Clause 2C of the Lease provides: That unless provided in the Twelfth Schedule hereto the Lessee paying the rent hereby reserved and other moneys hereby payable by the Lessee and observing or performing the covenants agreement provisions and conditions contained or implied and on the part of the Lessee to be performed and observed shall have the right to a renewal or extension of this lease for such further terms as may be specified in the Third Schedule hereto subject to an increase in rental to be agreed and if not agreed at such increased rental as shall be fixed as a fair rent for the renewal period in accordance with the provisions in the Fourteenth Schedule hereto but provided that the Lessee shall give to the Lessor notice in writing of not less than the period stipulated in the Thirteenth Schedule hereto prior to the expiration of the term hereby secured of the Lessee’s desire to exercise this right of renewal or extension. 63 T9.18-T10.23 (10 July 2025). 64 Ibid 11.7-11. 65 Australian Broadcasting Corporation v O’Neill (2006) 277 CLR 57, per Gummow and Hayne JJ [65]; That is, does Nordburger have ‘a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending trial’. -- 12 of 28 -- [2026] SADC 15 11 87 First, the Landlord pleads and submitted Nordburger failed to observe and perform the lease during the relevant renewal period by assigning the Lease by transfer of it shares to a third party without consent of the Landlord as required. 88 Clause 1P provides relevantly: P) ASSIGNMENT The Lessee shall not assign transfer demise underlet mortgage or otherwise part with possession of the premises without written consent of the Lessor which consent shall not be unreasonably or capriciously withheld provided that: 10.1 The Lessee has not been in default in the performance and observance of any covenant or agreement on the Lessee’s part herein contained; 1.0.4 In the event the Lessee being a proprietary company or private company a transfer of shares (and/or a change in the beneficial entitlement thereto) totally more than one half of the issued share capital of the Lessee company or the controlling interest therein. 89 Second, the Landlord pleads and submitted Nordburger had failed to observe and perform the Lease during the relevant renewal period, by failing to properly effect insurance for the Premises, as required by Clause 1N. 90 Clause 1N provides: N) Insurance The Lessee will effect such insurance in respect of the premises as are set forth in the Eleventh Schedule hereto (and unless otherwise stated in the such Schedule such insurance shall cover the full replacement of the item insured and shall provide indemnity in respect of fire lightning storm tempest flooding earthquake riot malicious action explosion aircraft or aerial devices or articles dropped there from or by any act of the Queen's enemies or anything attributable thereto) against such risks and with such extensions as the Lessor may from time to time reasonably require and from time to time reinsure with an Insurance Company approved by the Lessor which approval shall not be unreasonably withheld in the joint names of the Lessor and the Lessee and from time to time when so called upon to produce to the Lessor the policy for such insurance and shall within seven (7) days of being requested so to do produce a certificate from such Insurance Company that the insurance is current and if default shall be made by the Lessee in keeping the same so insured or if the Lessee shall made default in producing from time to time such certificates of currency as aforesaid it shall be lawful for the Lessor to insure the same at the cost of the Lessee and all moneys expended by the Lessor in effecting such insurance and renewals of the same shall be forthwith recoverable from the Lessee in the same way as rent in arrears. 91 The Eleventh Schedule of the Lease details the required insurances: ‘Lessee to be responsible for and insure (1) All plate glass in the premises (2) Public Liability insurance minimum TEN MILLION DOLLARS ($10,000,000.00)’. -- 13 of 28 -- [2026] SADC 15 12 92 The power to grant, discharge or extend an injunction is discretionary.66 93 It requires consideration of whether there is a serious question to be tried or a prima facie case.67 94 The applicant for injunction must show a sufficient likelihood of success in the proceeding to justify, in the circumstances, preservation of the status quo pending trial.68 95 The court must also consider if the balance of convenience favours the injunction. That includes consideration of the adequacy or otherwise of any undertaking as to damages offered69 and whether the resources of the applicant are sufficient and available to meet any damages awarded.70 96 The intended duration of the injunction and if the proceedings are to be disposed of expeditiously and urgently, is relevant to balance of convenience.71 Serious Question to be tried 97 Nordburger pleads it has a leasehold interest in the Premises because it had validly renewed the Lease in accordance with Clause 2C.72 98 Clause 2C provided Nordburger the right to renew subject to its ‘paying the rent hereby reserved and other moneys hereby payable’ and its ‘observance and performance [of] the covenants agreements provisions and conditions contained or implied and on the part of the Lessee to be performed and observed’.73 99 Nordburger sought to rely on matters it had not pleaded but had raised in its application filed that day which it said were relevant to the Injunction: • the commercial agent who took possession of the premises on 2 December 2024, had engaged in criminal behaviour;74 • the Landlord had taken possession for the improper purpose of obtaining illegitimate leverage to coerce Nordburger to agree an oppressive lease;75 • the property manager had engaged in fraud by fabrication of documents concerning outgoings payable by Nordburger; and 66 Australian Broadcasting Corporation v O’Neill [2006] HCA 46, supra at [65]-[72]. 67 Ibid [55]. 68 Ibid. 69 Vincent Cold Storage Pty Ltd v Centuria Property Funds No.2 Ltd [2022] VSC 766, per M Osborne J [98]-[100]. 70 Ibid. 71 Barker v Perpetual Trustees Australia Ltd (2003) 85 SASR 263 per Bleby J [55]. 72 Amended Statement of Claim – Rev 1 filed 14 February 2025 (FDN 34) [20]-[33]. 73 Ibid. 74 First Affidavit of Luke Peter Barnett dated 12 December 2024 (FDN 8), 3.13. 75 T16.24-34 (10 July). -- 14 of 28 -- [2026] SADC 15 13 • the Landlord, its agents and the solicitors for the Landlord had been motivated by an improper purpose to ruin the Nordburger so as to prevent criminal wrongdoing from coming to light.76 100 As those serious matters have not been pleaded, I have not had regard to those matters in determining whether to discharge or extend the Injunction. 101 Nordburger had plenty of opportunity to plead its case. 102 As to whether there is a serious question to be tried, I have confined my consideration to the pleaded case as it stood, and the evidence before the court relevant to that pleaded case. 103 As to the conduct of the commercial agent, I note that was the subject of the application of Nordburger for summary judgment on 7 March 2025.77 104 I ruled on that application on 31 March 2025.78 Nordburger had contended the purported termination and re-entry was unlawful and invalid and Nordburger had argued the Landlord had waived its right to terminate and re-enter. 105 I found Nordburger had not pleaded waiver and election. On that basis I declined to hear the application for summary judgment before trial and extended on several occasions thereafter time to enable Nordburger to amend its Claim. 106 Nordburger pleads the termination of the monthly tenancy was unlawful in the alternative.79 It alleges the rendering and payment of an invoice in November 2024 secured its monthly tenancy for December 2024 and the termination and re- entry on 2 December 2024 was unlawful and in breach of the Lease. 107 In respect of the unpleaded assertions of fraud and fabrication of outgoings, Mr Martin said that conduct had commenced in February 2022, when the property manager had been appointed.80 108 That was not the first time Nordburger had asserted in court unpleaded allegations of fraud. It did so through Mr Martin on 7 March 2025.81 109 Mr Martin submitted also that as the Landlord had overcharged outgoings Nordburger was entitled to repayment of monies paid.82 76 Nordburger said it wished to be released from its Harman undertaking in respect of the discovery of the Landlord so that it could bring some documents to the attention of relevant agencies. 77 Interlocutory Application filed 7 March 2025 (FDN 48). 78 Unpublished Ruling of Durrant DCJ CIV-24-011794 (31 March 2025). 79 Amended Statement of Claim dated 14 February 2025 (FDN 34) [37]. 80 T17.12-32 (10 July). 81 T12.15-23 (7 May). 82 Amended Statement of Claim dated 14 February 2025 (FDN 34) [15]-[19] and [38]. -- 15 of 28 -- [2026] SADC 15 14 110 Mr Martin said that had been pleaded and referred to the pleaded claim for damages for breach of contract or an order compensating Nordburger pursuant to of the Retail and Commercial Leases Act 1995 (SA).83 111 Repayment of monies paid to the Landlord is not what is pleaded.84 Loss and damage is claimed consequent upon wrongful termination and breach of the Lease comprising lost profits and revenue and any ongoing costs and expenses and wastage. 112 The Landlord has pleaded four defaults by Nordburger which it alleged invalidated or disentitled the purported renewal under the Lease:85 (1) monetary default by non-payment of property managers fees;86 (2) sub-letting (or the parting with possession) to Nordburger Norwood Pty Ltd without consent;87 (3) deemed assignment of the Lease arising from the transfer of the shares of Nordburger without permission;88 and (4) the failure to effect insurance in respect of the Premises as required.89 113 As already mentioned, the argument whether there is a serious question to be tried was limited to issues 3 and 4.90 114 Nordburger must, to succeed at trial in its claim the lease was renewed, succeed in respect of all pleaded disentitling defaults. 115 I have, in determining the applications to discharge or extend the Lease, only considered if Nordburger has established a serious question to be tried it renewed the Lease having regard to whether it had not complied with its obligation to obtain insurance, or had assigned its Lease without authorisation by transferring its shares. 116 When the Injunction was previously argued Nordburger had not filed its Defence. In its Defence, the landlord pleads Nordburger had not obtained the insurance required by the Lease and that meant it was not entitled to renewal.91 117 When the Injunction was previously argued the Landlord had put on evidence that by transfer of shares Nordburger had assigned the Lease without permission 83 Retail and Commercial Leases Act 1995 (SA) ss 12(5)(d) and 68(2). 84 Ibid s 34. 85 Defence filed 3 March 2025 (FDN 43). 86 Ibid, [21.3.1]. 87 Ibid, [21.3.3]. 88 Ibid, [21.3.2]. 89 Ibid, [21.3.4]. 90 Submissions of the Respondent in relation to the Extension of the Interlocutory Injunction filed 7 July 2025 (FDN 104), [17]. 91 Nordburger Pty Ltd v Koronis and Vari [2025] SADC 15. -- 16 of 28 -- [2026] SADC 15 15 of the Landlord. I considered there was a serious question to be tried about that but on a different basis to that issue as now joined in the pleadings.92 118 The pleadings have now settled what is the serious issue to be tried in respect of the obtaining of insurance and the transfer of shares as being matters of contractual interpretation having regard to documents discovered and in evidence.93 No public liability insurance- disentitling conduct? 119 By its defence the Landlord pleads:94 ’21.3.4 …[Nordburger] was in default of its obligations pursuant to clause 1(N) and the Eleventh Schedule of the Lease by reason that from around December 2019, [it] did not effect public liability insurance in the amount of at least $10 Million in respect of the Premises’ 120 Nordburger does not plead to that in its Reply or elsewhere. Accordingly, the default alleged is taken to be denied.95 121 Clause 1(N) and the Eleventh Schedule required Nordburger to effect public liability insurance for $10 million in the ‘joint names of the Lessor and Lessee’.96 122 Nordburger provided discovery in respect of the category of all ‘certificates of insurance covering the period from December 2019 to July 2023 in relation to insurance held in respect of the premises’, as it had been ordered to do.97 123 Nordburger, on 15 April 2025, produced a Tax Invoice it had received from Guardian Insurance Brokers relating to Business Insurance for the year ending on 20 December 2023.98 124 That invoice attaches a ‘schedule of insurance’ which names the ‘insured’ as Nordburger Norwood Pty Ltd, Nordburger Frewville Pty Ltd, Nordburger Chinatown Pty Ltd and Nordburger Hindmarsh Pty Ltd.99 125 Notably, Nordburger is neither an insured or an interested party on the schedule of insurance. 92 Ibid [24]-[31] [34]-[50] and [95]. 93 Ibid [24]-[30] and [95]-[99]. 94 Defence filed 3 March 2025 (FDN 43) [21.3.4]. 95 Reply filed 12 March 2025 (FDN 53) [14]; Uniform Civil Rules 2020 (SA) r 67.7(4). 96 First Affidavit of Victoria Martin dated 29 November 2024 (FDN 3); exhibited (without being marked or paginated) to that affidavit is the Lease; see clause 1N and the Eleventh Schedule. 97 Interlocutory Application dated 4 April 2025 (FDN 72); Record of Outcome dated 7 April 2025 (FDN 76). 98 Ninth Affidavit of Barnett dated 30 June 2025 (FDN 103) 156; Being the relevant renewal period. 99 Ibid 159. -- 17 of 28 -- [2026] SADC 15 16 126 The Premises in the schedule are noted as a ‘situation’ the insureds operate from. The business of those insureds is noted as ‘hamburgers, retailing (cooked [sic]’.100 127 In respect of the Premises, the schedule records Nordburger Norwood Pty Ltd as the insured in certain respects, but as ‘not insured’ for public liability. No other named insured holds public liability for the Premises. 128 On 15 April 2025, the solicitors for the Landlord wrote to Nordburger ‘[i]n relation to the insurance documents you have produced for the period prior to 20 December 2023, it appears from our review that the invoices produced do not relate to public liability in respect of the Norwood restaurant’ and ‘[a]dditionally it appears that Nordburger Pty Ltd is not relevantly an insured, nor are [the Landlord] named as an insured or interested party’. 129 The solicitors requested ‘[t]o the extent that public liability insurance was taken out in respect of the Norwood premises, please make discovery of, and produce, the certificates of insurance and schedules of insurance in respect of that cover for the period from December 2019 to December 2024’.101 130 Nordburger did not respond to that correspondence. Nor did Nordburger discover any further documents as requested.102 131 No documents evidencing the effecting of public liability insurance in the name of Nordburger in respect of the Premises were put before the court. Nordburger did not file any evidence on the application to discharge the Injunction to establish it had taken out public liability cover. 132 It did though make several assertions which had not been pleaded to argue a serious issue arose to be tried in respect of that alleged default of the Lease. 133 ‘[I]t may be open’ submitted Nordburger, to contend at trial its obligation to insure against public liability was discharged or waived by the Landlord. 134 Mr Martin said, the payment of insurance outgoings by Nordburger may have related to the obtaining by the Landlord of public liability cover and the waiver of the contractual obligation of Nordburger to do so.103 135 That submission must also logically extend to it be being open at trial for Nordburger to argue the Landlord had also waived compliance and observance of the Lease as a prerequisite to the exercise of its right of renewal. 100 Ibid 161. 101 Ibid 168. 102 Ibid 55; I note also that the Lease in Clause 1N requires Nordburger to produce the relevant policy to the Landlord upon demand. 103 Applicants Supplementary Submissions dated 13 July 2025 (FDN 111) [4.b]. -- 18 of 28 -- [2026] SADC 15 17 136 Clause 1N is inconsistent with a waiver. It provides the Landlord the right to effect insurance and charge Nordburger if it is in default of its obligations. 137 It is not pleaded, and there is no evidence to show the abandonment of the legal rights of the Landlord to charge for insurance not effected, or its right to refuse to renew if Nordburger is in default of its obligation to obtain insurance. 138 Nordburger relied also on s 26 of Retail and Commercial Lease Act 1995 (SA). It submitted ‘it may be open’ at trial to contend the requirement for insurance in ‘joint names’ was waived by the Landlord demanding the payment of outgoings otherwise than in accordance with the Lease. 139 A waiver in those terms is also not pleaded. Further, there was no evidence the Landlord had demanded the payment of outgoings otherwise than in accordance with the Lease. As already noted, there was also no evidence the Landlord had abandoned its legal right to charge for insurance not taken out or to refuse to renew the Lease if Nordburger defaulted in obtaining insurance. 140 Nordburger asserted in oral submissions the insurance schedule to the invoice relied upon the landlord (showing it had not taken out public liability cover) was incomplete or incorrect. That was also not pleaded and there was no evidence about that at all. 141 In the further alternative, Nordburger submitted the words ‘effect insurance’ contained in clause 1(N) allowed for it to effect insurance for the Premises in the name of the insureds shown in the schedule. 142 The schedule though shows Nordburger Norwood Pty Ltd as the named insured for the Premises and public liability is not insured. 143 That submission is also contrary to the clear words of Clause 1N which requires that ‘[t]he Lessee will effect insurance’. The ‘Lessee’ under the Lease is Nordburger. To put that beyond doubt, clause 1N requires the public liability insurance for the Premises to be in the ‘joint names of the Lessor and the Lessee’.104 144 Given Nordburger must, to succeed in its claim the lease was renewed, succeed in respect of all pleaded disentitling defaults, Nordburger has not established a serious question to be tried it was entitled to renew the Lease because it had not complied with its obligation to obtain insurance. 145 For that reason, the Injunction should be discharged. 104 Ninth Affidavit of Barnett dated 30 June 2025 (FDN 103) 55; Clause 1N and Eleventh Schedule to the Lease. -- 19 of 28 -- [2026] SADC 15 18 Sale of shares- disentitling conduct 146 By its Defence, the Landlord pleads as a further disentitling breach that all shares in Nordburger were transferred by its then sole shareholder Mrs Victoria Martin to Nordburger Operations Pty Ltd, without the consent of the Landlord.105 147 By its Reply, Nordburger does not dispute the transfer of shares and pleads that was not a deemed assignment for the purposes of clause 1(P) 1.0.4:106 “As to sub-paragraph 21.3.2 of the Defence the alleged ‘Change of Control’ did not qualify as a deemed assignment pursuant to clause 1P of the Lease, properly construed, because it did not involve any alteration of the ‘beneficial entitlement’ to the shares in the Lessee, or of the ‘controlling interest therein’. 148 That pleading in Reply reflects the construction of clause 1P contended by Nordburger in submissions characterising clause 1P as directed to a change in control of Nordburger. 149 It submitted a deemed assignment would only occur when there is a transfer of the legal title to 50% of the shares and a ‘change in the beneficial entitlement thereto’ and a change to the ‘controlling interest therein’ and ‘practical control’. 150 Nordburger submitted the inclusion of the words ‘and/or’ in clause 1(P) ‘permits of the interpretation that what is actually required is not merely a transfer of shares, but a transfer of shares that alters the beneficial entitlement, because that is consistent with the substance of the issue to which the clause is directed’.107 151 Further, submitted Nordburger, ‘and/or’ was intended to incorporate the concept of practical control. That is, the change must go to the control and beneficial interest of Mrs Martin, not a superficial alteration to her legal interest. 152 For the purpose of considering whether there is a serious question to be tried, and without finally determining the proper construction of Clause 1P, I consider each of those scenarios is an alternative and separate pathway to a deemed assignment. 153 In reaching that conclusion, I am conscious and have kept in mind judicial criticism of the use of the words ‘and/or’ in agreements and in pleadings.108 154 In respect of clause 1P, I consider ‘and/or’ has been used to mean either of those things or all of them. 155 There are therefore three ways a deemed assignment can occur. 105 Defence filed 3 March 2025 (FDN 43) [21.3.2]; Clause 1(P)1.0.4. 106 Reply filed 12 March 2025 (FDN 53) [14.2]. 107 T77.5-37 (10 July). 108 See for example PFJV Pty Ltd v Bartter Enterprises Pty Ltd [2022] QSC 110 per Martin J. -- 20 of 28 -- [2026] SADC 15 19 156 First, an assignment occurs if there is a transfer of more than 50% of the legal ownership of the shares in Nordburger. 157 Second, an assignment occurs there is a change in the beneficial entitlement in more than 50% of the shares in Nordburger. 158 Third, an assignment occurs if there is a transfer of the ‘controlling interest’ in Nordburger. 159 In each case Landlord consent is required. In the absence of consent, the assignment is unauthorised and if it occurs during the renewal period it is a disentitling event in respect of the right to renew. 160 That approach reflects the way in which shares can be held and the different rights or entitlement which might attach. 161 Shares can be beneficially held by the legal owner who is entitled to deal with the shares and receive the economic benefit of the shareholding. 162 Legal ownership and beneficial entitlement can be split by agreement or arrangement whereby another person has the beneficial entitlement to the shares. 163 Shares may also be of different classes or types, with differing rights and entitlements going to amongst other things the control of a company. 164 Mrs Martin did transfer 100% of her shares during the relevant renewal period without the consent of the Landlord. 165 I am satisfied for the purpose of considering the applications to discharge or extend the legal ownership of 100% of the shares was transferred from Mrs Martin to Nordburger Operations Pty Ltd. That is not disputed.109 166 Nordburger must, to succeed in its claim that the lease was renewed, succeed in respect of all pleaded disentitling defaults. 167 Given the construction I have adopted, I am satisfied Nordburger has not established a serious question to be tried it was entitled to renew the Lease as it said it did, because it had failed to observe the Lease by assigning it without consent of the Landlord. 168 For that reason also, the Injunction should be discharged. 169 The Landlord submitted further that, assuming the construction contended by Nordburger, by analysis of the restructure under which the shares were transferred, more than 50% of the beneficial entitlement to those shares was transferred. 109 Second Affidavit of Victoria Martin dated 9 December 2024 (FDN 4) [5.12]-[5.16]. -- 21 of 28 -- [2026] SADC 15 20 170 The Share Transfer Form records Victoria Martin as the shareholder transferor of 100% of the shares.110 The transfer is not limited to her legal ownership. She transfers the shares in her own right, not as a trustee and she does not distinguish between her legal ownership and beneficial entitlement. 171 By way of contrast, the Share Transfer Form records the transferee, Nordburger Operations Pty Ltd executes as trustee of the Nordburger Holdings Trust. 172 I do not understand it to be contested that Operations legally owns the shares in its capacity as a trustee and, subject to the relevant trust deed in evidence, the beneficiaries of that trust have a beneficial entitlement to the shares.111 173 In that case legal ownership and beneficial ownership has been split. 174 As I understand it, Nordburger submitted it may be open at trial for the court to find Mrs Martin legally owned the shares in her capacity as trustee of the Hillier PIAH Trust and the beneficiaries of that trust held the beneficial entitlement. 175 As I understand it, Nordburger submitted the PIAH Trust and the Nordburger Trust were settled on mostly identical terms, share common beneficiaries and have common controlling interests, hence an assignment has not occurred. 176 For the purposes of consideration of that contention, which is not pleaded, the evidence before the court is that Mrs Martin held the shares beneficially. That means when she transferred the shares, she transferred the whole of her interest. 177 The Deed of Restructure dated 2 December 2019 is premised on Mrs Martin transferring her legal ownership and beneficial entitlement. As already discussed she is described simplicitor. 178 Nordburger (also in its own right) and Nordburger Operations, as trustee for the NH Trust, and other related companies, executed that Deed. 179 While Mrs Martin was not a party, she executed the Deed on behalf of all parties, in her various capacities. 180 Recital C records Mrs Martin as the “ultimate economic owner and controller of” Nordburger, connoting legal ownership and beneficial entitlement. 181 Recital F records Mrs Martin’s intention to transfer her shares in Nordburger to the NH Trust, such that Nordburger would be wholly owned by that trust. Again, that connotes the transfer of legal ownership and beneficial entitlement. 110 Ninth Affidavit of Barnett dated 30 June 2025 (FDN 103) 148. 111 Ibid 91-92. -- 22 of 28 -- [2026] SADC 15 21 182 Consistent with those recitals, and the connotations drawn, cl 2 provides ‘[a]s the sole shareholder, sole director and ultimate controller of [Nordburger], [Mrs Martin] is entering into the restructure contemplated by this deed…” 183 On the same day the Restructure Deed was executed, Mrs Martin signed the Share Transfer Form and sold her shares for valuable consideration. 184 Nordburger submitted there was a serious question to be tried, as a matter of fact, in respect of that scenario. 185 As I understood it, Nordburger said there was a serious question to be tried Mrs Martin was the legal owner of the shares and that the PIAH Trust had held the beneficial entitlement. 186 Nordburger submitted ‘the lack of any evidence of execution by the settlor of the trust deed for the PIAH Trust clearly caused uncertainty as to whether [Mrs Martin] held the shares beneficially or merely legally’.112 187 The trust deed in evidence is not executed. On that basis, that lack of evidence does not create uncertainty about how she held the shares, as there is no evidence such a trust has been settled. 188 I was told the beneficial entitlement in the shares in Nordburger is now held by Nordburger Operations Pty Ltd as trustee of the NH Trust (NH Trust). It was submitted the key terms of the PIAH Trust and the Nordburger Holdings Trust were identical and that the beneficiaries overlapped. 189 Even if those trusts were in identical terms, the beneficiaries of those trusts do not have the same beneficial entitlement, even where they overlap. 190 The PIAH and NH Trust are discretionary trusts and different entities. 191 The settlors are different. The settlement sums to establish the trusts are distinct and were settled at different times. 192 A beneficiary of a discretionary trust has no more than an expectation of consideration for a distribution. 193 The expectation of a beneficiary under the PIAH Trust is different to the expectation arising under the Nordburger Holdings Trust. 194 An overlap between the beneficiaries of different discretionary trusts does not mean the beneficial entitlement they have is the same. 195 If assets (the beneficial entitlement in the shares in this case) are transferred between trusts as trust property, that does not mean any beneficial entitlement of the beneficiaries under the later trust is the same as that under the former trust. It 112 Applicant Supplementary Submissions filed 14 July 2025 (FDN 111) [7.b]. -- 23 of 28 -- [2026] SADC 15 22 is trust property under a different trust in each instance, which must be dealt with under that trust. 196 It is also the case that the ‘controlling interest’ in the shares was relevantly transferred by Mrs Martin to Nordburger Operations as trustee of the NH Trust. 197 The control of that trust was changed when Mr Martin was appointed a co- trustee with Mrs Martin for a period.113 198 Nordburger Operations (the trustee) was also for a time jointly in the control of Mr and Mrs Martin when Mr Martin was appointed as a joint appointor of the NH Trust. 199 I accept the Landlord’s contention that even adopting Nordburger’s construction of cl 1P and for the purpose of considering whether there is any serious question to be tried, the second and third scenarios have also eventuated. 200 For all those reasons, I am satisfied Nordburger does not have a sufficient prospect of establishing that it was not in default of the Lease. 201 Having considered the applications to discharge or extend the Injunction, I am therefore not satisfied for the reasons explained there is a serious question to be tried as to whether Nordburger has validly renewed the Lease. 202 The Injunction should be discharged. 203 I would have also, if it had been necessary to consider it, declined to extend the Injunction any further, as the balance of convenience does not favour doing so. 204 The Injunction has been in place now for over 14 months. 205 The order when made was premised on, and its continuation dependent upon, the listing and completion of the now long vacated urgent trials. 206 Those two listings, in February 2024 and April 2024, were vacated due to the defaults of Nordburger. 207 No urgent trial is now sought by Nordburger. 208 It is not certain when a trial in this action will be listed in the ordinary course. 209 Given its history and for several other reasons, I do not consider a trial in this action is likely to take place this year. There is much interlocutory action to come. 210 While Nordburger has not availed itself of several opportunities to amend its pleadings, it is likely Nordburger will eventually seek to amend its pleadings. 113 Ninth Affidavit of Barnett dated 30 June 2025 (FDN 103) 149-153. -- 24 of 28 -- [2026] SADC 15 23 211 Particularly, if Nordburger wishes to agitate the asserted fraud by the property manager, that will need to be attended to with specificity and skill.114 212 Nordburger has been represented by its director Mr Martin. He has not demonstrated the ability and diligence required to properly, effectively and efficiently prosecute this action. Nordburger has consequently failed to prosecute the proceedings expeditiously or comply with timetables and orders. 213 For example, Nordburger has yet to produce some of its discovery and has not complied with court orders it do so. 214 Nordburger will need to make application if it wishes Mr Martin or the other director Mrs Martin to represent it at trial. There is no right in this court to self- representation. Nordburger will need to satisfy the court it is in the interests of justice to give such leave.115 215 If solicitors are appointed, they will need time to review this action and may wish to replead or take a different approach. 216 Further, in my assessment of all the current circumstances, the undertakings as to damages provided by Nordburger and Mr and Mrs Martin are of little substance. 217 Mr Martin has deposed to the financial inability of Nordburger to engage solicitors and that the directors ‘will likely be left with crippling personal debts from guarantees and statutory liabilities’.116 218 Judge Burnett has previously determined Nordburger will be unable to meet an adverse costs order.117 219 The sum in court of $42,500 will now, given the likely further delay, be exceeded by the future costs of this litigation. 220 The draft financial statements of Nordburger for the year ended 30 June 2023 disclose a net asset position of approximately $2.25 million.118 Of that $3.4 million is owed by related entities Nordburger Capital Pty Ltd, Nordburger Chinatown Pty Ltd and Nordburger Norwood Pty Ltd.119 The financial statements of those entities indicate insufficient assets to repay those loans, in full or at all.120 114 Banque Commerciale SA (in Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 per Mason CJ and Gaudron J [285]-[286]; see also Lawcover Insurance Pty Ltd Muriniti [2017] NSWSC 1557 per Sackar J [195]. 115 Uniform Civil Rules 2020 (SA) r 25.6. 116 Fourth Affidavit of Thomas Martin dated 15 April 2025 (FDN 81) 4-11; see also First Affidavit of Thomas Martin dated 12 December 2024 (FDN 9) 37. 117 Nordburger Pty Ltd v Koronis and Vari (No.2) [2025] SADC 26 per Judge Burnett [18] and [26]. 118 Ninth Affidavit of Luke Barnett dated 30 June 2025 (FDN 103) 15-17. 119 Ibid 120 Ibid. -- 25 of 28 -- [2026] SADC 15 24 221 Nordburger has transferred all its plant, equipment, leasehold improvements, intellectual property and liquor licenses to the NH Trust for $10 consideration.121 222 Nordburger otherwise owns no real property.122 223 Nordburger has disclosed to this court that an action it had taken to set aside a statutory demand issued by the ATO, has been dismissed.123 224 Freezing orders previously made and undertakings given in the Federal Court mean Nordburger is not to dispose of assets beyond its ordinary business.124 225 No exceptional circumstances are known to me to warrant departure from the usual requirement a viable undertaking as to damages must be given. 226 Going to the substance of the current undertaking, I am not satisfied Nordburger or its directors have sufficient and available resources to meet any damages or costs award in favour of the Landlord. 227 In respect of any damages or loss the Landlord might suffer if successful, it has been receiving a lesser rent than it is entitled to under the Lease or that it would have been likely to obtain from another lessee. 228 The Lease provides for increases in rent if renewed as fixed by agreement or as a fair rent under the Fourteenth Schedule. 229 Nordburger submitted I should have no regard to the affidavit of Mr Pancione about what rent the landlord may be able to obtain under that clause or from another tenant, as he is partisan given his employment by the property manager. 230 I have taken that into account in the weight I have given the evidence of Mr Pancione. The same goes for the evidence of Mrs Martin about what rent she said might be paid. She is a director of Nordburger and she is not a qualified real estate and property manager, as Mr Pancione is. 231 I am satisfied under the terms of the Lease, if it had been renewed, the Landlord may have received an increase in the rent payable by Nordburger. I accept the evidence of Mr Pancione a market rate will be greater than what is currently being paid. 232 I am concerned about the financial position of Nordburger extending to its ability to pay the balance of any increased rent under the Lease or the difference between a market rent and what Nordburger has been paying. 121 Ibid 136; Clause 3 of the Deed of Restructure. 122 Ibid 9. 123 Ibid 13-14. 124 Fourth Affidavit of Thomas Martin dated 15 April 2025 (FDN 81) 4-11. -- 26 of 28 -- [2026] SADC 15 25 233 Mrs Martin candidly deposed in respect of the renewal in 2018, it was agreed the rent would increase by 3% the first year, CPI thereafter, and a market review at the next renewal.125 234 I do not accept her evidence though to the extent she suggests the rent obtained by any new tenant will be less or the same as the rent agreed in 2018. 235 I do accept her evidence ‘the rent payable under the lease has continually increased each year for almost 20 years, either by CPI or by an agreed percentage at the time of each renewal [and] [t]he agreed percentage on these occasions usually approximated the CPI rate, in any event’.126 236 I also consider, but for the Injunction, the Landlord would have obtained a new tenant and may have obtained a rate of rent commensurate with or exceeding the 2018 rate. I accept what Mr Pancione, an experienced Licensed Real Estate Agent and Managing Agent, said about that, as making commercial sense. 237 The likely time to trial exposes the Landlord to adverse changing market conditions in relation to market rent and in obtaining a replacement tenant. 238 If the Injunction continues for an indefinite period, the Landlord will likely suffer prejudice if ultimately successful in this action. 239 It is also relevant that these proceedings have not been prosecuted expeditiously, as the detailed chronology I have set out demonstrates. 240 Two listed trials have been vacated solely because of defaults by Nordburger. 241 Nordburger has failed to attend at scheduled Court hearings, giving short or no prior notice of its non-attendance. 242 Nordburger has not produced the documents disclosed. 243 Nordburger has foreshadowed and been ordered to file numerous interlocutory applications and other documents, which it has failed to do. 244 I accept the submission of the Landlord that further extension of the Injunction would reward Nordburger for its defaults. For example, Nordburger’s application for recusal was listed to be heard and determined on 29 April 2025 but was not determined until 16 June 2025, due to a series of defaults by Nordburger. Applications after hearing of argument 245 Finally, I note one further application brought by Nordburger. 125 Fourth Affidavit of Victoria Martin made 9 July 2025 (FDN 108) 29. 126 Ibid 6. -- 27 of 28 -- [2026] SADC 15 26 246 On 3 September 2025, Nordburger applied for the hearing of the applications to discharge or extend the Injunction to be reopened so the Court could receive further argument and evidence.127 247 The application was made on the grounds set out in an accompanying 158- page affidavit sworn Mr Martin.128 That affidavit contained scandalous matters directed to persons involved in this litigation which I have not considered. Conclusion and orders 248 For these reasons, I decline to further extend the Injunction and will discharge it. 249 I am concerned in doing so to have regard to the restoration of the tenancy of Nordburger since 19 December 2024 and that Nordburger has operated its hamburger business from the Premises since. 250 I am also mindful the Landlord has intimated it will take steps it considers it is legally entitled to take, in the event the Injunction is discharged, to enter possession of the Premises again. 251 I propose to hear urgently from the parties as to the form of the orders to be made in discharging the Injunction. 252 I grant liberty to apply at short notice to bring this matter back on if required in the interim. 253 I will also further hear the parties as to the costs of this application and in respect of any costs reserved to date. 127 Interlocutory Application filed 4 September 2025 (FDN 120). 128 Tenth Affidavit of Thomas Patrick Martin dated on 2 September 2025 (FDN 121). -- 28 of 28 --