MARK MUSOLINO In Person v DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA [2025] SASC 199

Appellant: MARK MUSOLINO In Person Respondent: DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA Counsel: MR J SLOCOMBE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 21/11/2025 File No/s: CIV-25-014113 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. MUSOLINO v DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA [2025] SASC 199 Judgment of the Honourable Justice Stanley 28 November 2025 EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS EQUITY - GENERAL PRINCIPLES - UNDUE INFLUENCE AND DURESS HEALTH LAW - MENTAL HEALTH GENERALLY - GENERAL LAW AFFECTING PERSONS WITH MENTAL ILLNESS OR IMPAIRED CAPACITY CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - FORFEITURE OR CONFISCATION - GENERALLY This is an application for an urgent interlocutory injunction restraining the Director of Public Prosecutions (the Director) or his agent from completing settlement or otherwise dealing with property that was automatically forfeited to the Crown pursuant to the Criminal Assets Confiscation Act 2005 (SA) following the conviction of the appellant. There is an appeal against that conviction listed in February 2026. Subsequent to the forfeiture, the parties agreed to consent orders in which the Director gave up rights to forfeited assets under the CAC Act, and the respondent and his wife, Mrs Musolino, agreed to the Director acting to dispose of a property in Crafers West. The question relevant to this interlocutory injunction is whether the consent orders should be set aside. The appellants contention is that Mrs Musolino, at the time of entering into the consent orders, did not have the mental capacity to do so, and was acting under undue influence, not by the Director, but by her own legal advisers. Consideration of the balance of convenience in determining whether to grant the interlocutory injunction requires an assessment of, and a comparison of the prejudice likely to be suffered by each party if an injunction is granted, against the prejudice likely to be suffered if one is not granted. -- 1 of 13 -- Held, per the Court: 1. There is a clear distinction between the difficult circumstances Mrs Musolino faced in June 2025 and a psychological condition so severe that she lacked the mental capacity to provide informed consent. In consideration of the evidence, that distinction is not met, and there is no serious question to be tried as to whether Mrs Musolino lacked capacity when entering the consent orders, where the evidence shows a level of understanding of Mrs Musolino. 2. The balance of convenience weighs in against granting the interlocutory injunction. 3. The application for an interlocutory injunction restraining the Director or his agent from completing settlement, or otherwise dealing with the Crafers West property pursuant to the contract of settlement of 7 October 2025 is refused. Controlled Substances Act 1984 (SA) s 32(1); Criminal Assets Confiscation Act 2005 (SA), referred to. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, applied. Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; Lucisano v Westpac Banking Corporation [2015] FCA 243, considered. -- 2 of 13 -- MUSOLINO v DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA [2025] SASC 199 Civil STANLEY JA: Introduction 1 This is an application for an urgent interlocutory injunction restraining the Director of Public Prosecutions (the Director) or his agent from completing settlement or otherwise dealing with property at 28 Emmett Road, Crafers West (the Crafers West property) in the State of South Australia pursuant to a contract dated 7 October 2025, until determination of an appeal or further order. The appellant also seeks a grant of liberty to apply on 48 hours’ written notice and an order that the costs of the interlocutory application seeking the above orders be costs in the appeal. 2 The appellant filed a notice of appeal from a ruling of McIntyre J delivered on 14 November 2025. This interlocutory application was made urgently on 20 November 2025 and was heard by me on 21 November 2025. I reserved my decision. My decision deals only with the interlocutory application, not with the appeal from the ruling of McIntyre J. 3 The interlocutory application is supported by, amongst other material, an affidavit of the appellant, Mr Musolino, of 20 November 2025. The affidavit exhibits a number of documents. The appellant represented himself in these proceedings. There was no appearance by the first interested party, Mrs Musolino, who I am told by the appellant is suffering from a psychiatric illness. The Court received the report of a psychologist which supported this submission. Background 4 The background to this application lies in the conviction of the appellant for trafficking in a controlled drug contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (CSA). Consequent on the guilty verdict the Crafers West property and other real estate owned by the appellant at Walkerville (the Walkerville property), being the appellant and Mrs Musolino’s family residence, was automatically forfeited to the Crown pursuant to the Criminal Assets Confiscation Act 2005 (SA) (CAC Act). The appellant has appealed the guilty verdict on the drug trafficking charge. It appears the hearing of the appeal against conviction is listed before the Court of Appeal on 18 February 2026. 5 On 3 October 2025, in the District Court, Judge Mackenzie declined an application for an interlocutory injunction seeking to restrain the Director from executing the contract for sale of the Crafers West property which had been agreed pursuant to consent orders made in those proceedings on 13 June 2025. -- 3 of 13 -- [2025] SASC 199 Stanley JA 2 6 The consent orders provide: A. Upon the Court noting that: A. On 01 July 2020, a Restraining Order was made in these proceedings pursuant to section 24(1)(a) of the Criminal Assets Confiscations Act 2005 (“the Act”) by His Honour Judge Burnett in respect of the following property: (i) the Respondent’s interest in the property situated at 2 Wilsden Street, Walkerville, in the State of South Australia, being the whole of the land comprised and described in Certificate of Title Volume 5350 Folio 423 (“the Walkerville Property”); and (ii) the Respondent’s interest in the property situated at 28 Emmet Road, Crafers West, in the State of South Australia, being the whole of the land comprised and described in Certificate of Title Volume 5917 Folio 721 (“the Crafers West Property”); (together “the Property”) B. The Respondent and the First Interested Party are the registered proprietors of the two real properties as joint tenants. C. The Restraining Order was made subject to the rights of the Second Interested Party and the Third Interested Party as mortgagees of the Property. The Second Interested Party is the mortgagee for the Walkerville Property, such rights being derived from the registered mortgage number 12718055 and the Third Interested Party is the mortgagee of the Crafers West Property, such rights being derived from registered mortgage number 11916196. D. On 27 July 2020, the Respondent and First Interested Party filed Applications for Exclusions in the Property. E. The Walkerville Property is subject to the following caveats: (i) Caveat lodged by Ivada Partington on 20 June 2024 (dealing number: 14300980) with respect to the First Interested Party’s interest; and (ii) Caveat lodged by Luke John Charlton Rowley on 24 July 2024 (dealing number: 14324294) with respect to the Respondent’s interest and the First Interested Party’s interest. F. The Crafers West Property is subject to a caveat lodged by Ivada Partington on 20 June 2024 (dealing number: 14300980) with respect to the First Interested Party’s interest. G. On 12 December 2024, the Respondent was found guilty of a commercial drug offence namely Trafficking in a Large Commercial Quantity of a Controlled Drug (“the commercial drug offence”), pursuant to section 32(1) of the Controlled Substances Act 1984. The Respondent is a ‘prescribed drug offender’ by virtue of section 6A of the Act. The Respondent’s interests in the Property were deemed forfeited to the Crown in right of the State of South Australia (the “Crown”) pursuant to section 56A of the Act. H. The Honourable Court is yet to make a Declaration of Deemed Forfeiture pursuant to section 56B of the Act nor to rule on the filed Exclusion Application of the First Interested Party. -- 4 of 13 -- [2025] SASC 199 Stanley JA 3 I. As of the date of these orders, there are appellate proceedings relating to the commercial drug offence which are still pending. J. The Applicant, the Respondent and the First Interested Party (“the Parties”) have come to a negotiated settlement as to the Respondent’s property interests as a ‘prescribed drug offender’ under the Act. This settlement deals with all of the filed Applications for Exclusions in these proceedings. K. The Parties have agreed that: (i) A Declaration for Deemed Forfeiture under section 56B of the Act is made with respect of the whole of the Crafers West Property; (ii) A Declaration will be granted pursuant to section 59B excluding the Walkerville Property from forfeiture under Subdivision 1A of the Act; (iii) The First Interested Party agree as part of the settlement reached in these proceedings, to release the State of South Australia from any liability arising from the undertaking given at time of the imposition of the Restraining Order in relation to the Property as well as any claim in equity, however defined, in relation to the Crafers West Property; and (iv) The Parties have otherwise agreed to the below orders. Date of Order: 13 June 2025 Terms of Consent Order It is ordered by consent that: Pursuant to section 219(1) of the Act, the Parties agree: 1. A Declaration for Deemed Forfeiture be granted pursuant to section 56B of the Act as to the whole of property situated at 28 Emmet Road, Crafers West, in the State of South Australia, being the whole of the land comprised and described in Certificate of Title Volume 5917 Folio 721 (“the Crafers West Property”) and the following shall apply: (a) Within fourteen (14) days of this Consent Order, the First Interested Party at her own expense will do all things necessary to remove the caveat lodged by Ivada Partington (dealing number 14300980) registered in South Australia; (b) by operation of section 46(4) and section 46(3)(a)(ii) of the Act, the Restraining Order made in these proceedings are discharged; and (c) The Registrar-General be directed pursuant to section 64 of the Real Property Act 1886 to register the Crown as the proprietor of the estate in fee simple (subject to the Registered Mortgage). (d) the Applicant to grant the First Interested Party a licence to enter the Crafers West Property within 30 days of the date of the Consent Orders, for the purpose of removing all personal effects. 2. The sale of the Crafers West Property by the Crown is to occur on the following conditions: -- 5 of 13 -- [2025] SASC 199 Stanley JA 4 (a) The Applicant provides to the First Interested Party, a copy of the contract for sale of the Crafers West Property within 5 days of execution; and (b) The Applicant provides a copy of the settlement and adjustment statements, as soon as is reasonably practicable to the First Interested Party. 3. Upon the sale of the Crafers West Property, the following expenses be paid from the gross proceeds of sale: (a) first, the registered mortgage balance owing to the Third Interested Party, namely National Australia Bank, being derived from registered mortgage number 11916196; and (b) the costs of, and associated with the sale, including agent’s fees and commissions, marketing costs and other associated costs as agreed to in writing by the Applicant. 4. Upon payment of the expenses referred to in paragraph 3 (above), the net proceeds of sale of the Crafers West Property shall be dealt with as follows: (a) A sum of $120,000 (One Hundred and Twenty Thousand Australian Dollars) shall be paid to the First Interested Party; and (b) The net balance proceeds of sale shall be paid to the Applicant at settlement by way of bank cheque made payable to the “District Court Suitors Fund”. 5. The First Interested Party (and any other party claiming through the First Interested Party) will make no further claim in law or equity as to the Crafers West Property. 6. A Declaration is granted pursuant to section 59B of the Act excluding the property situated at 2 Wilsden Street, Walkerville, in the State of South Australia, being the whole of the land comprised and described in Certificate of Title Volume 5350 Folio 423 (“the Walkerville Property”) from forfeiture under Subdivision 1A of the Act and the following shall apply: (a) by operation of section 46(4) and section 46(3)(a)(ii) of the Act, the Restraining Order made in these proceedings are discharged; (b) upon removal of the caveat lodged by Ivada Partington (dealing number 14300980) over the Crafers West Property, the Applicant, will forthwith do all things necessary to remove the restraining order registered in South Australia in relation to the Walkerville Property; and (c) the State of South Australia will make no further claim in law or equity as to the Respondent’s interest in the Walkerville Property. 7. The First Interested Party agrees as part of the settlement reached in these proceedings, to release the State of South Australia from any liability arising from the undertaking given at time of the imposition of the Restraining Order in relation to the Property as well as any claim in equity, however defined, in relation to the Crafers West Property. 8. No order as to costs. -- 6 of 13 -- [2025] SASC 199 Stanley JA 5 7 Judge Mackenzie found that Mrs Musolino initiated a proposal for the early sale of the Crafers West property in a formulation of draft consent orders which culminated in the proposed form of the consent orders. In essence, the orders provide for the Musolinos to retain ownership of the Walkerville property, and for the Crown to have and dispose of the Crafers West property. The judge found the proceeds from the sale are to be applied to expenses, a payment to Mrs Musolino of $120,000, and the balance to be paid into the District Court Suitors’ Fund where it will remain, subject to restraint. Mrs Musolino is then barred by the orders from making any further claim in relation to the Crafers West property. 8 Judge Mackenzie further found that the Crown proceeded to act on those consent orders. Provision has been made for the appellant and Mrs Musolino to remove personal effects from the Crafers West property. The Director has taken steps to find a purchaser of the Crafers West property and was undertaking further work in preparation for sale due to the dilapidated condition of the property. 9 As I have said, a contract for the sale of the Crafers West property was entered into between the Director and a third party on 7 October 2025. The contract, as it stood, provided for settlement on 21 November 2025. 10 The appellant brought an appeal from the refusal of Judge Mackenzie to grant the interlocutory injunction restraining the Director from executing the sale contract for the Crafers West property. McIntyre J dismissed this appeal on 14 November 2025. McIntyre J applied the test in Australian Broadcasting Corporation v O’Neill.1 Her Honour weighed whether there was a serious question to be tried, the balance of convenience, and whether damages would be an adequate remedy in the event that the appeal against conviction was successful. In addition, the Court had to consider whether in the exercise of its discretion it would grant interlocutory relief in circumstances where the appellant declined to give the usual undertaking as to damages. 11 In effect, the appellant now seeks from this Court the same relief that he was denied by Judge Mackenzie and McIntyre J. The urgency in hearing the application lay in the fact that settlement was due at 12:00 p.m. on 21 November 2025. However, counsel for the Director indicated to the Court that the Director would not take any action to settle on the contract until the Court has delivered judgment on the interlocutory application, notwithstanding that the Crown had incurred costs in excess of $41,000. This is one limb upon which there is some urgency in deciding the application. 12 In the meantime, the Crown is incurring holdings costs by way of interest payments on the Crafers West property and has lost the opportunity to pursue forfeiture proceedings over the Walkerville property. The current position of the appellant is to have the consent orders in relation to the Crafers West property set 1 [2006] HCA 46, (2006) 227 CLR 57. -- 7 of 13 -- [2025] SASC 199 Stanley JA 6 aside. Once the consent orders were made the appellant’s interest in the Walkerville property was transferred to Mrs Musolino. 13 From the perspective of the appellant and Mrs Musolino there is urgency in resolving the matter because the continuing uncertainty as to whether the Crafers West property will be sold is a source of stress to Mrs Musolino. Consideration 14 The real issue now is whether the consent orders should be set aside. The consent orders were made following an agreement pursuant to which the Director gave up rights to forfeited assets under the CAC Act, and the respondent and Mrs Musolino agreed to the Director acting to dispose of the Crafers West property notwithstanding an appeal of the appellant’s criminal conviction. The interlocutory injunction the appellant seeks would restrain the Director from selling the Crafers West property. This would be contrary to the terms of the consent orders made on 13 June 2025. Whether an interlocutory injunction should be granted requires consideration of the criteria for an interlocutory injunction as articulated by the High Court in Australian Broadcasting Corporation v O’Neill.2 The test requires the Court to ask whether the appellant has shown that there is a serious question to be tried as to his or her entitlement to relief, has shown that he or she is likely to suffer injury for which damages would not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles to be applied having regard to the nature and circumstances of the case.3 The two criteria consisting of whether there is serious question to be tried, and a consideration of the balance of convenience interrelate, and the extent to which it is appropriate to examine the merits of an appellant’s claim for relief will always depend on the circumstances of the case.4 Serious question to be tried 15 In the proceedings to set aside the consent orders the appellant’s case is, as it currently stands, that in June this year Mrs Musolino agreed to the consent orders when she lacked the mental capacity to understand what she was doing. The appellant relies on a report of a psychologist, Ms Melissa Stokes, dated 20 November 2025. Ms Stokes interviewed Mrs Musolino on 3, 8, 12 and 19 November 2025. Ms Stokes diagnosed Mrs Musolino as suffering from Post- traumatic Stress Disorder (PTSD), complex PTSD, depression and anxiety. Notwithstanding that Mrs Musolino first presented to Ms Stokes in November 2025, Ms Stokes felt able to express the opinion that at the time Mrs Musolino agreed to the consent orders in June 2025 she was in acute psychological crisis, caring for her dying mother, separated from her incarcerated husband and subjected to an ultimatum by her legal advisors. In these circumstances, Ms Stokes is of the opinion that Mrs Musolino lacked the mental capacity to provide informed 2 [2006] HCA 46, (2006) 227 CLR 57. 3 Australian Broadcasting Corporation v O’Neill [2006] HCA 46 at [19], (2006) 227 CLR 57 at 68-69. 4 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 per Gleeson CJ at [18]. -- 8 of 13 -- [2025] SASC 199 Stanley JA 7 agreement to the consent orders in June 2025. Ms Stokes report says Mrs Musolino was not of sound mind, could not comprehend the documents, and was operating under extreme duress and undue influence. Ms Stokes’ opinion was that the consent orders were agreed in circumstances that rendered her legally incapable of making such decisions. 16 However, while Ms Stokes undertook extensive interviews with Mrs Musolino on four occasions in November 2025, the fact is Ms Stokes was reliant upon a history provided by Mrs Musolino and/or her immediate family as to her presentation and condition at the time the consent orders were agreed. The reliability of that history as given to Ms Stokes and as set out in her report does not necessarily present an accurate portrait of her mental state at that time. It must also be recognised that there is a distinction between what were no doubt distressing circumstances under which Mrs Musolino was operating in June 2025 and a diagnosis of a psychological condition so severe that she lacked the mental capacity to provide informed consent and was not of sound mind. It is also relevant that it is now claimed that she was acting under undue influence, not by the Director, but by her own legal advisers. Moreover, in the context of the submission that Mrs Musolino lacked the mental capacity to understand what she was doing in June 2025, there is no evidence until November 2025 of this incapacitating psychological condition. For example, on 9 June 2025, the day before Mrs Musolino agreed to the consent orders,5 she sent an email to her solicitor which includes the following; Obviously both mine and Marks main objective is to protect myself and the boys from eviction of our Walkerville home and we will accept their offer begrudgingly considering the losses incurred with the sale are not solely financial. No amount of money will compensate for an asset such as this which we have held since 2004 nor the sentimental value it holds. Although fully within their legal rights, the DPP hold the discretion to continue to restrain the property rather than the proceeds of the sale. They are forcing my hand knowing my desperate need to refinance while trying to sweeten the deal with compensating me with “my own” money… until and if and when it is not. This is only swapping one level of stress and anxiety I am experiencing for another. 17 There are two aspects to this email for present purposes. First, it is evidence, which I accept, that Mrs Musolino was finding the situation stressful. Second, it is clear that far from her lacking mental capacity, she understood the situation she was in and was capable of making rational decisions in response. 18 On 22 July 2025, and again on 1 August 2025, the appellant’s then solicitor, Mr Lister, wrote to the Director expressing a concern about the sale of the Crafers West property at a price that was not commensurate with its true market value, and offered various undertakings if the Director was prepared to defer a sale of the 5 The consent orders were agreed on 10 June 2025 but were made on 13 June 2025. -- 9 of 13 -- [2025] SASC 199 Stanley JA 8 property until the outcome of the appellant’s appeal. On 1 August 2025, Mr Lister in his letter to the Director said; I am instructed to reiterate that the order was obtained in circumstances where the force of the Act was deployed to gain an unfair advantage over a family where only one member was convicted (at trial) of an offence which made him a prescribed drug offender. The circumstances of the restraining order over his share of the restrained properties created an unfair advantage for the DPP in circumstances where the family where at an extreme financial disadvantage and risked imminent eviction from their family home. Because of this risk, they were compelled to reach an agreement with respect to the restrained assets, which enabled them to avoid eviction but which will result in the sale of Crafers West at a greatly diminished price, because of both the condition it is in and the fact that the purchases will know that it is being disposed of in a “fire sale”. From Mr and Mrs Musolino’s point of view, there is no necessity for the Director to sell the property in these circumstances. 19 It can be seen that as of 22 July 2025, and in the subsequent letter of 1 August 2025, there was no issue identified concerning Mrs Musolino’s state of mind and certainly no suggestion that she lacked the requisite mental capacity to understand what she was doing when she agreed to the making of the consent orders, other than the indication that she seemed distressed at the meeting on 28 May 2025. I note that Mr Lister is a very experienced legal practitioner who would have been likely to have raised the matter of mental capacity if it was apparent at that time. 20 Further, on 30 September 2025 and on 3 October 2025 Mrs Musolino appeared in person in the District Court for the hearing of the application for an interlocutory injunction before Judge Mackenzie. There is no suggestion in the reasons of Judge Mackenzie that any submission was made in the course of the hearing that the Director should be restrained from proceeding to sell the Crafers West property on the basis that the consent orders had been made in reliance upon consent given by Mrs Musolino, when she lacked the mental capacity to appreciate what she was doing. On the contrary, the judge addressed an application for setting aside the consent orders by identifying grounds for doing so, such as fraud, duress, misrepresentation, undue influence, unconscionability and the like. The judge expressly found that she was not satisfied that the circumstances which existed constituted a coercion of the appellant or Mrs Musolino’s will or duress when agreeing to the consent orders. Her Honour found the appellant and Mrs Musolino were legally represented and, particularly in Mrs Musolino’s case, very keen to save the Walkerville property from possession orders. Again, there was no suggestion in the judge’s reasons for decision that Mrs Musolino was unable to understand the meaning and effect of the consent orders. 21 Further, at the hearing before McIntyre J on 14 November 2025, another application for an interlocutory injunction was heard. The appellant sought to restrain the Director from completing settlement on the contract for the sale of the Crafers West property, entered into on 7 October 2025. That application for the -- 10 of 13 -- [2025] SASC 199 Stanley JA 9 termination of the sales contract was founded in a challenge to the consent orders. Again, there was no submission put that the consent orders should be set aside because Mrs Musolino lacked the mental capacity to understand their meaning and effect. 22 It can be seen that contrary to what Ms Stokes was led to believe, the available evidence does not support the assumption she made that Mrs Musolino’s psychological presentation and condition was substantially the same in June 2025 as it was when she saw Mrs Musolino in November 2025. 23 I do not doubt that by November 2025 Mrs Musolino was suffering from a psychological condition that necessitated her being hospitalised. I also have no doubt that these were and continue to be difficult circumstances for Mrs Musolino. However, the evidence before me does not satisfy me that there is a serious question to be tried that Mrs Musolino lacked the mental capacity to enter into the consent agreement in June 2025. On the contrary, that submission smacks of recent invention. 24 I do not overlook the fact that in granting the applicant bail pending the hearing and determination of the criminal appeal, Bleby JA considered that at least one, and maybe two, of the grounds of appeal against conviction were arguable. However, while the grounds of appeal have not been put before me, I am prepared to assume they relate to the drug offending, and not to the question of whether the consent orders should be set aside. 25 In these circumstances, I am not prepared to proceed on the basis that there is a serious question to be tried as to whether the consent orders should be set aside. Will damages be an adequate remedy 26 The appellant submits that if the interlocutory injunction sought preserving the status quo is not granted and he is ultimately successful in having the consent orders set aside, his position will be irreparably damaged as his interest in the Crafers West property will be lost by reason of the Director’s conduct in selling the property to which he and his family have an emotional attachment. The appellant says that in these circumstances damages will not be an adequate remedy as money cannot adequately compensate for the loss of the property which he has owned for 21 years. 27 I do not accept this submission. In the course of argument before me the appellant advised the Court that the National Australia Bank, being the mortgagee, was looking for him to refinance the Walkerville property. He informed the Court that he had considered selling the Crafers West property to enable that refinancing to occur. I do not consider this to be consistent with the strength of the appellant’s claimed emotional attachment to the property. Likewise, the appellant submits that the Director is prepared to sell the Crafers West property at an undervalue, namely, $870,000. The evidence that this represents a sale price well below its market value is supported by a rates notice for the fourth quarter of 2024/25 which -- 11 of 13 -- [2025] SASC 199 Stanley JA 10 provides a capital value of the property at $1.400,000 and appraisals by real estate agents of $1,550,000 to $1,700,0000 and another in the range of $1,655,000 to $2,064,000. However, relevant to this application I am satisfied the appellant’s principal concern in seeking to set aside the consent orders is to prevent the financial loss he apprehends he will suffer if the consent orders are not set aside. It follows that in the event the appellant succeeds in the litigation he will be able to claim compensation for any financial loss he has suffered. In addition, he may be entitled to monetary compensation for any emotional loss he is proven to have suffered. In the circumstances, I am satisfied that if the appellant succeeds in the appeal against conviction, damages will be an adequate remedy. In reaching this view I do not exclude that the appellant has some emotional investment in the Crafers West property, however, the fact remains that the house on the property is in a dilapidated state; the appellant has or had plans to demolish the residence on the Crafers West property and build a new house on the property; and it is not the family home. Whatever emotional investment he has in the property it is secondary to his financial interest, and his intention to preserve the family home at Walkerville. Balance of convenience 28 The appellant submits that the balance of convenience favours the grant of the interlocutory injunction. In considering the balance of convenience the Court must assess and compare the prejudice likely to be suffered by each party if an injunction is granted, against the prejudice likely to be suffered if one is not granted.6 The appellant submits that the balance of convenience favours making an interlocutory injunction because the costs that have and might be incurred in the future are a result of the conduct of the Director. The appellant contends that the Director has refused to agree to reasonable proposals the appellant has made to deal with the Crafers West property in a way that would be better placed to realise the underlying value of the property. I do not accept this submission. It misunderstands the concept of the Court weighing the balance of convenience in the exercise of the discretion to grant or refuse an interlocutory injunction. The submission has no regard to the fact that there is an agreement between the Director and the prospective purchaser for the sale of the land. If the Court was to grant the application for an interlocutory injunction the Director would be exposed to a risk of the prospective purchaser seeking to recover any loss it suffered as a result of the Director reneging on the agreement to sell. In any event, this Court would not make orders as to whom or how the Director should sell the property. These are matters for the Director acting in accordance with the provisions of the CAC Act which deal with forfeiture of assets of crime. The Director has a legitimate concern about mounting costs while he is unable to sell the property. In considering where the balance of convenience lays it is relevant to note that the Musolino’s may take such action as they consider appropriate to obtain financial compensation for any loss they might suffer if the property is sold at under value. While I accept there is force in the appellant’s submission that if the property is sold, and he is 6 Lucisano v Westpac Banking Corporation [2015] FCA 243 at [7]. -- 12 of 13 -- [2025] SASC 199 Stanley JA 11 ultimately successful in the appeal he would have loss the enjoyment of that property. But in the weighing of the relevant considerations I consider this is a secondary consideration. Mr Musolino submits that his family stands to suffer a great deal. While I acknowledge that this is difficult for the family, I am satisfied that the balance of convenience favours the dismissal of the application to restrain the Director from settling on the contract of sale of the Crafers West Property. The failure to provide the usual undertaking as to damages 29 In addition, in the exercise of the Court’s discretion it must consider that the appellant has not proffered the usual undertaking as to damages. A court cannot compel the giving of an undertaking, it can merely refuse injunctive relief if an undertaking is not given.7 An undertaking as to damages need not be given in all cases. Litigation brought in the public interest is frequently cited as an example of such a case. But the absence of an undertaking is a factor that may weigh against the grant of an interlocutory injunction. Where litigation is brought for the enforcement of private rights, an application for an interlocutory injunction is more likely to be refused in the absence of the usual undertaking. This case concerns the enforcement of private rights, notwithstanding that the proceedings were brought by the Director. In Australian Broadcasting Corporation v O’Neill the High Court emphasised that an appellant for an interlocutory injunction must show a sufficient likelihood of success to justify the preservation of the status quo for the duration of the restraint.8 The sufficiency of the likelihood depends upon the nature of the rights the appellant asserts and the consequences that are likely to flow from the order.9 In this case the appellant has failed to demonstrate a sufficient likelihood of success on the application to set aside the consent orders to justify restraining the Director from enforcing his contractual right to forfeiture of the Crafers West property for what would be a period of many months. Conclusion 30 For these reasons I would refuse the application for an interlocutory injunction restraining the Director or his agent from completing settlement, or otherwise dealing with the Crafers West property pursuant to the contract of settlement of 7 October 2025. I will hear the parties as to the costs of this application. 7 Meagher, Heydon and Leeming, Equity Doctrines and Remedies 4th ed. (2001) 793 [21]-[410]. 8 [2006] HCA 46 at [65], (2006) 227 CLR 57. 9 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622. -- 13 of 13 --