OLIVER HUME PROPERTY FUNDS (HACKHAM) PTY LTD v YAS PROPERTY AND DEVELOPMENT PTY LTD; YAS PROPERTY AND DEVELOPMENT PTY LTD v OLIVER HUME PROPERTY FUNDS (HACKHAM) PTY LTD (No 2) [2026] SASC 111

Applicant/Respondent: OLIVER HUME PROPERTY FUNDS (HACKHAM) PTY LTD In Person Counsel: MR L WICKS - Solicitor: JOHNSON WINTER SLATTERY Respondents/Applicants: YAS PROPERTY AND DEVELOPMENT PTY LTD In Person Counsel: MS E KEYNES - Solicitor: COWELL CLARKE Hearing Date/s: 24/07/2026 File No/s: CIV-26-006365; CIV-26-007673 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. OLIVER HUME PROPERTY FUNDS (HACKHAM) PTY LTD v YAS PROPERTY AND DEVELOPMENT PTY LTD; YAS PROPERTY AND DEVELOPMENT PTY LTD v OLIVER HUME PROPERTY FUNDS (HACKHAM) PTY LTD (No 2) [2026] SASC 111 Judgment of the Honourable Justice Gray (ex tempore) 24 July 2026 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INTERLOCUTORY PROCEEDINGS - COSTS IN THE CAUSE This matter concerns applications for costs arising from two interlocutory decisions. The first was an application by the respondent for injunctive relief (FDN 3 in proceedings CIV-26-006365). The second was an application by the applicants to remove caveats and mortgages (FDN 2 in proceedings CIV-26-007673). The applicant sought costs in the cause in respect of both interlocutory applications. In the alternative, it sought for costs to be reserved to the trial judge. The respondents sought the costs of both interlocutory applications. In the alternative, they sought an order conditional on the outcome of the final hearings, such that if they are successful at the final hearings they should have their costs of both interlocutory applications and if they are not successful then there should be no order as to costs. Held: 1. Costs of FDN 3 in proceedings CIV-26-006-365 are to be in the cause; and 2. Costs of FDN 2 in proceedings CIV-26-007673 are to be in the cause. -- 1 of 7 -- -- 2 of 7 -- OLIVER HUME PROPERTY FUNDS (HACKHAM) PTY LTD v YAS PROPERTY AND DEVELOPMENT PTY LTD; YAS PROPERTY AND DEVELOPMENT PTY LTD v OLIVER HUME PROPERTY FUNDS (HACKHAM) PTY LTD (No 2) [2026] SASC 111 Civil: Costs GRAY J: 1 This matter concerns applications for costs arising in two interlocutory decisions. Firstly, an injunction application, Oliver Hume Property Funds (Hackham) Pty Ltd v YAS Property and Development Pty Ltd & Ors,1 concerning an interlocutory application for injunctive relief.2 Secondly, caveat proceedings, YAS Property and Development Pty Ltd & Ors v Oliver Hume Property Funds (Hackham) Pty Ltd,3 concerning an interlocutory application to remove caveats and mortgages.4 2 Both proceedings concern a dispute which arose out of a Development Management Agreement dated 21 August 2021,5 between Oliver Hume Property Funds (Hackham) Pty Ltd (‘Oliver Hume’),6 and YAS Property and Development Pty Ltd (‘YAS’).7 The Agreement concerns a large residential subdivision property at Onkaparinga Heights.8 In respect of the injunction application, Oliver Hume was the applicant and the respondents to those proceedings are YAS and various other companies associated with YAS. In respect of the caveat application, YAS and various other companies associated with YAS were the applicants and Oliver Hume was the respondent. Although the companies associated with YAS named as parties to the proceedings differed slightly, for ease of reference, although ineloquent, in these reasons I will refer to ‘YAS and others’ when describing these parties in a general way. 3 YAS and others’ primary position is that they seek their costs of both interlocutory applications. YAS and others’ secondary position is that if YAS is successful at the final hearing, then it should have its costs of both interlocutory applications and if it is not successful, then there should be no order as to costs. Oliver Hume’s primary position is that costs of both interlocutory applications should be costs in the cause. Oliver Hume’s secondary position is that costs should be reserved to the trial Judge. 1 [2026] SASC 95. 2 FDN 3. 3 [2026] SASC 103. 4 FDN 2. 5 Referred to as ‘DMA’ or ‘the Agreement’. 6 ‘Oliver Hume’ or ‘the Developer’. 7 ‘YAS’ or ‘the Owner’. 8 ‘the Onkaparinga Heights Development’. -- 3 of 7 -- [2026] SASC 111 Gray J 2 4 I consider that the same order for costs should be made in respect of both proceedings. At the hearing of the matter today, neither party submitted that different costs orders were appropriate. I consider that the relevant considerations are largely the same in respect of both matters. In respect of both proceedings, for the reasons that follow, I consider that the appropriate order as to costs is that the costs of the interlocutory application be costs in the cause9 and that the costs of the application to remove the caveats and mortgages10 be costs in the cause. 5 In respect of both the interlocutory injunction application and the caveat removal application, a prima facie case was established. In respect of both applications, the applications were determined (in a way appropriate to the nature of each application) to the assessment of the strength of the prima facie case and balance of convenience considerations, including the adequacy of damages. 6 In determining the question of costs on this interlocutory application, I accept that the Court has an overriding discretion as to costs,11 and that there is a presumptive position that the costs of an interlocutory application are costs in the cause, unless the Court otherwise orders.12 7 Whilst I have had regard to, and weighed all of the submissions of the parties, matters which I consider favour the order indicated above are as follows. 8 Firstly, the parties adduced a significant amount of affidavit evidence, annexing extensive documentary material on both applications. These affidavits were given in a large part on behalf of Oliver Hume by Mr Rogers and in respect of YAS and others, by Mr Shahin. It can be anticipated that both Mr Rogers and Mr Shahin are likely to be witnesses at the trial of this matter and I consider that much of the affidavit evidence given by Mr Rogers and Mr Shahin on the interlocutory applications is likely to be relevant to the issues to be ventilated at trial. This is because much of the affidavit material addressed matters such as the validity of YAS’s termination of the Development Agreement, the enforceability of Oliver Hume’s securities, the history and progress of the development project, and the value of Oliver Hume’s claim for damages. 9 Secondly, the parties made extensive submissions in respect of the interpretation of the Development Agreement, and again, this is likely to be an issue at trial. 10 Thirdly, I consider that the evidence and submissions on both interlocutory applications did not go to discrete points which were finally determined, but concerned interlocutory findings made on facts and the law, much of which will be central to the issues to be determined at trial. 9 FDN 3 in proceeding CIV-26-006365. 10 FDN 2, in proceeding CIV-26-007673. 11 Uniform Civil Rules 2020 (SA) rr 194.4(1), 194.5(1)(d); Supreme Court Act 1935 (SA) s 40(1). 12 Uniform Civil Rules 2020 (SA) r 194.4(5). -- 4 of 7 -- [2026] SASC 111 Gray J 3 11 Fourthly, I consider that there is a real risk of unfairness if YAS was to be awarded costs at this stage, in circumstances where Oliver Hume may yet succeed at trial. 12 Fifthly, I do not consider that Oliver Hume, in bringing the application for the injunction or in opposing YAS and others’ application to remove the caveats and mortgages, acted unreasonably. The matters raised on both interlocutory applications required careful consideration and involved the weighing of many competing considerations and interrelated matters. 13 In Mayfield Wines Group Pty Ltd v Growers Wine Group Pty Ltd (No 2) (‘Mayfield’), 13 Blue J referred to the principles applicable to the exercise of the Court’s discretion on the question of costs of interlocutory applications in a variety of circumstances. In relation to applications for interlocutory injunctions Blue J held:14 The analysis in relation to an interlocutory application for an interlocutory injunction is more complex. If the applicant for the interlocutory injunction fails to establish a prima facie case (or a reasonable case to be tried) and the application is consequentially dismissed, it may be that it is an appropriate exercise of the discretion to order that the applicant pay the costs of the interlocutory application. However, most applications for interlocutory injunctions are decided on the “balance of convenience”. The principal purpose of an interlocutory application is to regulate the interim rights and liabilities of the parties on a basis that is most fair and equitable pending the ultimate determination of the ultimate rights and liabilities of the parties (assuming that the applicant establishes a prima facie case). The balancing exercise may be finely tuned and in any event involves the exercise of a discretion. As a result, it will often be the case that the Court is not at that stage in a position to analyse confidently which party caused the incurring of the costs of the interlocutory application and often an order will be made that the costs be costs in the cause. (citations omitted) 14 I consider that the facts and circumstances on the interlocutory applications favour the approach set out by Blue J in Mayfield. Whilst I have considered the approach taken in a number of decisions relied upon by YAS and others at this hearing,15 I do not consider that the principles referred to in those cases suggest that on the facts and circumstances of this case, an order to the effect that costs be costs in the cause is not the most appropriate order. 15 In forming this view, I have given careful consideration to the submissions advanced at today’s hearing concerning the matters which were said by YAS and others to be the three matters which were addressed at the interlocutory hearings, but which were said to be largely irrelevant to the matters which will be raised at trial. The three matters identified by YAS and others in this regard are: 13 [2021] SASC 75. 14 Ibid at [11]. 15 Grundy v Ley [1984] NSWLR 467; Kickers International SA v Paul Kettle Agencies Ltd [1990] FSR 436; Petar v Macedonian Othodox Community Church St Petka Inc (No 2) [2007] NSWCA 142; Benson v Seven Network (Operations) Ltd [2015] SASC 185. -- 5 of 7 -- [2026] SASC 111 Gray J 4 1. The availability of finance; 2. The irretrievable breakdown of the relationship between Oliver Hume and Mr Shahin; and 3. The finding that Oliver Hume has not established that damages were not an adequate remedy. 16 In respect of these three matters, Oliver Hume submitted to the effect that whilst the precise interlocutory findings made in respect of these three matters may not form part of the final hearing, the underlying evidence relevant to these three matters will be relevant to the substantive proceedings. In particular, it was submitted that the final hearing will involve an assessment of the availability of finance, as this will be relevant to the opportunity lost. It was further submitted that the allegations of fraud and related matters underlying the irretrievable breakdown of the relationship between Oliver Hume and Mr Shahin will be relevant at the final hearing. It was also submitted that the quantification of damages would be relevant at trial. I acknowledge, as was relied upon by YAS and others,16 that I found that the refusal for grant of injunctive relief is likely to mean Oliver Hume, even if successful at trial, is unlikely to be restored the position that it held under the Development Agreement prior to the termination of that agreement. However, I do not consider that that finding amounts to a final determination of the issue. 17 I consider that the underlying evidence concerning the three matters identified above is likely to remain relevant to the trial. I also consider that to the extent that these three matters may have canvassed issues at the interlocutory hearing which will not be an issue at the final hearing, those matters are not sufficient to justify the order for costs that YAS and others seek. I consider that seeking to distil issues that may have been decided more favourably to one party than another from what was a complex balancing exercise is not a preferable approach to take to the costs in the circumstances of this case, and I further consider that such an exercise would not in any event, in the circumstances of these matters, justify the costs order that YAS and others seek. 18 The substantive proceedings as currently framed concern an application that the termination by YAS of the Development Agreement was invalid and that the Development Agreement remains on foot.17 I accept that the nature of the relief ultimately sought in the proceedings in which the injunction application was brought18 may vary as the matter progresses but the underlying issue is likely to continue to be the validity of the termination of the Development Agreement by YAS. Further, the relief sought in the caveat proceedings19 may change. That said, 16 [2026] SASC 95 at [141]. 17 Originating Application filed 18 May 2026 (FDN 1), CIV-26-006365. 18 CIV-26-06365. 19 CIV-26-007673. -- 6 of 7 -- [2026] SASC 111 Gray J 5 the nature of the orders that I propose to make are to be considered by reference to the nature of the relief as currently framed. 19 I do not consider that there is unfairness to YAS and others in making an award that should Oliver Hume fail to establish in action CIV-26-006365 that the Development Agreement was unlawfully terminated, then costs of the interlocutory injunction application20 should be costs in the cause. The effect of this order will mean that if Oliver Hume does not establish that the agreement was unlawfully terminated, then YAS and others would have their costs of that interlocutory application. A similar result would follow in the caveat proceedings. 20 As I have indicated above, I consider that there would be unfairness to Oliver Hume if Oliver Hume was ultimately to succeed in establishing the development agreement was unlawfully terminated if YAS was, at this stage, to be awarded the costs of the interlocutory application in the injunction proceedings. 21 Whilst I will hear further from the parties as to the precise terms of the orders, I propose to make orders to the effect that: 1. Costs of FDN 3 in proceedings CIV-26-006365 be costs in the cause. 2. Costs of FDN 2 in proceedings CIV-26-007673 be the costs in the cause. 22 I will hear further from the parties as to any further or other orders. 20 Interlocutory Application filed 18 May 2026 (FDN 3), CIV-26-006365. -- 7 of 7 --