WANG v ONE DIRECTION REAL ESTATE PTY LTD (No 2) [2026] SASCA 90

Appellant: FENG WANG Counsel: MR T HUI - Solicitor: NATHAN WHITE LAWYERS Respondent: ONE DIRECTION REAL ESTATE PTY LTD Counsel: MR S OWER KC WITH MR J NAPIER - Solicitor: ADELTA LEGAL Hearing Date/s: 23/07/2026 File No/s: CIV-25-015240 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) 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. WANG v ONE DIRECTION REAL ESTATE PTY LTD (No 2) [2026] SASCA 90 Decision of the Court of Appeal (The Honourable President Livesey and the Honourable Justice B Doyle) 3 August 2026 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS HIGH COURT AND FEDERAL COURT - HIGH COURT OF AUSTRALIA - APPELLATE JURISDICTION - PROCEDURE - STAY OF PROCEEDINGS - PENDING SPECIAL LEAVE APPLICATION This is an urgent application for a stay pending an application for special leave to appeal to the High Court of Australia, following the dismissal of the appellant’s appeal by the Court of Appeal on 26 March 2026. The application for special leave was filed on 23 April 2026. The response was filed on 11 June 2026, and the appellant’s reply was filed on 29 June 2026. On 4 May 2026, the appellant applied to the District Court for a stay. In detailed reasons delivered on 20 July 2026, the Court declined to make an order, finding that the appropriate forum for the bringing of a stay was the Court of Appeal. The appellant fears that the respondent intends to progress the judgment orders obtained from the District Court. The appellant is presently in breach of those orders. The respondent proposes to proceed with a sale of the property, the subject of this litigation. The respondent has taken the view that because the appellant has failed to comply with the orders made by the District Court, the sale process outlined in the orders made by that Court has been disrupted. The respondent does not wish to proceed to an auction on 31 July 2026 and will be seeking to set aside the order to that effect. The parties are hopeful that the application for special leave will be determined on or before 4 August 2026, and the respondent expects to be in a position to advise the Court the following week about an alternative marketing and auction strategy. -- 1 of 9 -- Held (by the Court), declining to grant the appellant an urgent interim stay: 1. In circumstances where there is no real risk to the interests of the appellant where an auction is no longer imminent, it is difficult to see why this Court should make any orders on an urgent, interim basis. 2. Whilst it may be accepted that some costs will be incurred in connection with seeking advice from the land agent regarding an alternative marketing and auction strategy, it has not been shown that these warrant an order being made. 3. The Court lists the hearing of the application for a stay on Tuesday, 11 August 2026 at 10.15 am, with one hour set aside. Land and Business (Sale and Conveyancing) Act 1994 (SA) ss 24G, 24G(1), referred to. Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; Gnych v Polish Club Ltd (2015) 255 CLR 414; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Miller v Miller (2011) 242 CLR 446; Nelson v Nelson (1995) 184 CLR 538; Solid Times Pty Ltd, One Direction Real Estate Pty Ltd v Wang (No 2) [2026] SADC 85; Wang v One Direction Real Estate Pty Ltd [2026] SASCA 28, considered. -- 2 of 9 -- WANG v ONE DIRECTION REAL ESTATE PTY LTD (No 2) [2026] SASCA 90 Court of Appeal – Civil – Application: Livesey P and B Doyle JA THE COURT: Introduction 1 This is an urgent application for a stay pending an application for special leave to appeal to the High Court of Australia following the dismissal of the appellant’s appeal by the Court of Appeal on 26 March 2026.1 2 The appellant fears that the respondent intends to act on the orders obtained from the District Court, which facilitate a sale of the property that was the subject of a joint venture. The appellant is presently in breach of those orders. The respondent proposes to proceed with a sale of the property.2 3 The application for special leave was filed on 23 April 2026. The response was filed on 11 June 2026, and the appellant’s reply was filed on 29 June 2026. 4 On 4 May 2026, the appellant applied to the District Court for a stay which was heard on 19 June 2026. In detailed reasons delivered on 20 July 2026, the Court declined to make an order, finding that the appropriate forum for the bringing of a stay was the Court of Appeal.3 5 Following argument, this Court declined to make any order and adjourned the hearing. These reasons explain why that course was taken on 23 July 2026. Disposition of the application 6 The essential issue which was determined by the Court of Appeal was whether the respondent was entitled to take a share in the property development joint venture notwithstanding it was an agent appointed by the vendor. 7 Whilst the appellant contended that the failure to order a stay will render the application for special leave to appeal nugatory, that is open to debate. 8 In any event, the respondent has taken the view that because the appellant has failed to comply with the orders made by the District Court, the sale process outlined in the orders made by that Court has been disrupted. The respondent does not now wish to proceed to an auction on 31 July 2026 and will be seeking to set aside the orders to that effect. The respondent wishes to adjust the sale process. 1 Wang v One Direction Real Estate Pty Ltd [2026] SASCA 28 (Wang v One Direction) (Livesey P, S Doyle and B Doyle JJA). 2 Exhibit FW-3 to the affidavit of Feng Wang affirmed 21 July 2026 (FDN 32), p 51. 3 Solid Times Pty Ltd, One Direction Real Estate Pty Ltd v Wang (No 2) [2026] SADC 85, [24]-[31] (Burnett DCJ) -- 3 of 9 -- [2026] SASCA 90 Livesey P and B Doyle JA 2 9 In circumstances where there is no realistic prospect of entry into a sale contract for two or three weeks, there is no reason to make any order by way of an urgent interim stay. 10 The parties are hopeful, though not certain, that the application for special leave for appeal will be determined on or before 4 August 2026. 11 Accordingly, the Court listed the application for a stay for hearing on Tuesday, 11 August 2026 at 10.15 am, with one hour set aside. Timetabling orders have been made and liberty to apply has been granted to the parties. The background to this application 12 The appellant, the respondent and a third party entered into a joint venture agreement concerning the purchase, renovation and sale of a property in North Adelaide. 13 The respondent was the real estate agent for the vendor of that property. The property was purchased in the name of a director of the third party on an ‘and/or nominee’ basis, and the appellant was nominated as the purchaser at settlement. A deposit was paid by the joint venturers in proportions which reflected their agreed interests. The respondent’s interest was 25 per cent. 14 Contributions were made by the third party and the respondent towards the purchase price and the monthly mortgage repayments on the loan taken out to assist with financing the purchase. Further contributions were made by the joint venturers towards works carried out on the property. 15 However, before the property could be sold, their relationship broke down. The respondent and the third party instituted proceedings against the appellant, seeking a declaration that the appellant held the property on trust, partly for them. Before the trial, the third party settled with the appellant. 16 At the trial, the appellant was not legally represented. The trial judge held that the joint venture failed without attributable blame to the respondent and orders were made, including by declaration, that the appellant held the improved property on a constructive trust which included the interest of the respondent. The orders made by the trial judge included detailed orders facilitating a sale of the property. 17 At the trial, the contention that the respondent should be denied equitable relief because it lacked ‘clean hands’ was rejected. The trial judge also rejected the contention that s 24G(1) of the Land and Business (Sale and Conveyancing) Act 1994 (SA) (the LBSC Act) rendered the joint venture, or the respondent’s interest in that joint venture, void. That provision provides that an agent must not obtain, or be in any way concerned in obtaining, a beneficial interest in the land. 18 The appellant appealed to the Court of Appeal, again relying on s 24G(1) and, alternatively, that the respondent should have been denied an equitable -- 4 of 9 -- [2026] SASCA 90 Livesey P and B Doyle JA 3 remedy because it was against public policy for the respondent to be granted an interest that was prohibited by statute, all because the respondent lacked ‘clean hands’. 19 This Court found that the LBSC Act did not expressly, or by necessary implication, require that the joint venture agreement, nor any beneficial interest that might be obtained by an agent under that agreement, be held to be unenforceable at the suit of the agent nor voidable at the election of the other parties. More particularly, this Court held that the trial judge did not err in failing to find that preserving coherence with public policy derived from or manifested in the statutory prohibition in s 24G of the LBSC Act required that discretionary equitable leave be withheld. 20 In the course of its reasons, this Court reviewed a number of authorities, including Nelson v Nelson,4 Miller v Miller,5 Equuscorp Pty Ltd v Haxton,6 and Gnych v Polish Club Ltd.7 21 Importantly, this Court also reviewed the conduct of the trial and noted the way in which the appellant had conducted his defence. It was observed that the questioning of the respondent’s director did not demonstrate that the vendor was unaware that the respondent was party to a joint venture concerning the purchase, renovation and sale of the property.8 There was no evidence from the appellant on the topic. In addition, this Court held:9 There is no evidence to suggest that any breach of fiduciary duty, or contravention of s 24G by entry into the joint venture agreement, resulted in the sale being effected at less than market value. The increase in value over time which is suggested by the valuation evidence may therefore be assumed to be attributable to the improvements made with the financial and other contributions of the joint venturers, along with any subsequent improvements in market conditions. The appellant does not now resist the notion that, on any view, he must make restitution of the actual financial contributions made by the respondent. 22 This Court went on to point out that the real import of imposing a constructive trust was to permit the respondent to share, to the extent of 25 per cent, in the net surplus after accounting for the parties’ contributions. The Court explained that the remedy responded in large part to the respondent’s participation in, and contributions made to, the joint venture after or at least independently of any asserted breach of fiduciary duty or contravention of s 24G by the respondent.10 4 Nelson v Nelson (1995) 184 CLR 538. 5 Miller v Miller (2011) 242 CLR 446. 6 Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498. 7 Gnych v Polish Club Ltd (2015) 255 CLR 414. 8 Wang v One Direction Real Estate Pty Ltd [2026] SASCA 28, [140] (Livesey P, S Doyle and B Doyle JJA). 9 Wang v One Direction Real Estate Pty Ltd [2026] SASCA 28, [142] (Livesey P, S Doyle and B Doyle JJA). 10 Wang v One Direction Real Estate Pty Ltd [2026] SASCA 28, [143] (Livesey P, S Doyle and B Doyle JJA). -- 5 of 9 -- [2026] SASCA 90 Livesey P and B Doyle JA 4 The application for special leave to appeal 23 The appellant’s proposed grounds of appeal before the High Court are as follows: Part I: Proposed Grounds of Appeal and Orders sought Proposed Grounds of Appeal 1. The Court of Appeal erred in holding that s 24G of the Land and Business (Sale and Conveyancing) Act 1994 (the Act or the statute) did not preclude the grant of equitable relief conferring a beneficial interest in land to an agent, contrary to s 24G, obtained that interest without the Commissioner’s approval. The Court granted to the Respondent the very interest that the statute prohibited it from obtaining. 2. The Court of Appeal ought to have found that the respondent had contravened s 24G of the Act, and accordingly was confined to a restitutionary remedy, rather than relief that allowed it to profit from the contravention. 3. The Court of Appeal erred in concluding that denying a constructive trust would be disproportionate notwithstanding: (a) that the illegal conduct was that of the respondent; and (b) the applicant’s acceptance that restitutionary relief was appropriate. 4. The Court of Appeal erred by focusing on whether the statute made the contract void or voidable, whereas the correct question was whether relief in the form of granting should be refused as being contrary to the statute. 24 In addition, the appellant’s application for special leave to appeal identifies the following special leave questions: Part II: Special Leave Questions 1. Does s 24G preclude a court from granting equitable relief that confers a beneficial interest in land upon an agent who is expressly prohibited from obtaining such an interest without the Commissioner’s approval? 2. Where an agent has contravened s 24G, is restitutionary relief the only relief consistent with the statute’s purpose? Does the grant of restitutionary relief avoid an unjust or disproportionate outcome? 3. Is it consistent with the statutory purpose for a Court to confer, by order, the very interest the Act prohibits? Or does that lead to an incoherent outcome? 25 For the purposes of this ruling, it is not necessary to address the appellant’s arguments, nor the response from the respondent about them. The application for a stay pending special leave 26 Although the appellant made it clear that he was fearful that, in the absence of a stay, his application for special leave may be rendered nugatory, he provided little in the way of evidence demonstrating prejudice. At paragraphs [15] to [17] of his affidavit, affirmed 21 July 2026, the appellant said: -- 6 of 9 -- [2026] SASCA 90 Livesey P and B Doyle JA 5 … One Direction has indicated that it will seek orders including execution of the agency agreement, delivery of keys, vacant possession and related steps to implement the sale orders. Because no stay is presently in place, the orders sought at the hearing on 24 July 2026 may permit immediate steps to obtain possession of and sell the Property before this Court can determine my application for a stay. If the Property is auctioned, a contract is entered into, the Property is transferred, or the proceeds are distributed before the High Court proceeding is determined, the position may be impossible or impractical to reverse and the special leave application and any appeal may be rendered nugatory. 27 This was the basis upon which the appellant sought an urgent hearing before Friday, 24 July 2026 or an interim stay pending determination of the application. 28 There was, however, no evidence from the appellant indicating whether there was any concern about the property being sold in circumstances where the evidence before the trial judge suggested that it was always intended as a commercial investment. In addition, there was no evidence from the appellant to suggest that a sale of the property at market value would necessarily prejudice his interests. 29 Before this Court, the appellant suggested that it was a ‘question of principle’, and he ought not be forced into a sale process. For that reason, unless and until the application for special leave was determined the sale process should not continue, notwithstanding the orders made by the District Court. 30 In a detailed affidavit filed on behalf of the respondent, it emerged that the appellant was in breach of a number of orders made by the District Court. The respondent suggested that the appellant had been deliberately flouting those orders so as to impede the sale process. The appellant has retained possession of the property and refused to deliver a copy of the keys to the respondent or the real estate agent who has been appointed to market and sell the property. The marketing and styling of the property recommended by the agent has not been undertaken. The trial judge has ordered that the reserve for the auction be set at $3.7 million. 31 At the hearing, this Court was advised that the respondent’s contributions had been quantified by the trial judge at just over $370,000, whereas the appellant’s contributions (which included the interest he acquired from the third party) had been quantified at around $1.37 million. Those contributions totalled, very broadly, around $1.75 million. 32 If the property was sold at $3.7 million, the respondent’s interest in the surplus, subject to sale expenses, would be 25 per cent of $1.95 million or around $480,000. -- 7 of 9 -- [2026] SASCA 90 Livesey P and B Doyle JA 6 33 There was no evidence about whether the appellant would be prejudiced by being denied that sum or, indeed, about any prejudice to the respondent if that sum was set aside pending the determination of the application for special leave to appeal. 34 Notwithstanding these matters, the respondent raised a number of practical issues. 35 Because it contended that the sale process had been undermined by the appellant, the respondent did not wish to proceed to the auction ordered to take place on or before 31 July 2026. The respondent wished to defer that pending advice from the land agent about an appropriate alternative marketing campaign and auction date. The respondent proposed making an application to the District Court in order to set aside the order concerning an auction on or before 31 July 2026. 36 In circumstances where the parties were hopeful that the application for special leave will be determined on or before 4 August 2026, the respondent expected that it would be in a position to advise the Court the following week about an alternative marketing and auction strategy. The determination of the application for an urgent, interim stay 37 In circumstances where there is no real risk to the interests of the appellant where an auction is no longer imminent, it is difficult to see why this Court should make any orders on an urgent, interim basis. 38 Whilst it may be accepted that some costs will be incurred in the District Court and in connection with seeking advice from the land agent regarding an alternative marketing and auction strategy, it has not been shown that these generate prejudice sufficient to warrant any order being made by this Court. 39 In consequence, it is not necessary for this Court to consider the issues that arise under authorities such as Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd.11 Those matters can be addressed, if they need to be addressed, at the next hearing of the appellant’s stay application which has been listed for 11 August 2026. Conclusion 40 In these circumstances, the Court made the following orders: 1. The Court declines to grant the appellant an urgent interim stay. 2. The Court lists the hearing of the application for a stay on Tuesday, 11 August 2026 at 10.15 am, with one hour set aside. 11 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 (Brennan J). See also Solid Times Pty Ltd v Wang (No 2) [2026] SADC 85, [24]-[27] (Burnett DCJ). -- 8 of 9 -- [2026] SASCA 90 Livesey P and B Doyle JA 7 3. The Court grants the parties liberty to apply. 4. The Court reserves the question of costs. 41 The Court explained to the parties at the hearing that although the respondent would be seeking to set aside the order concerning the auction date on or before 31 July 2026, the parties were otherwise subject to the orders made by the District Court and prima facie obliged to comply with them. -- 9 of 9 --